|
[p.253]
The Court,
composed
as above,
delivers the following Judgment:
1. By a letter of 9 May 1973, received in the Registry of the Court the same
day, the Ambassador of Australia to the Netherlands transmitted to the
Registrar an Application 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. In order to found to the
jurisdiction of the Court, the Application relied on Article 17 of the
General Act for the Pacific Settlement of International Disputes done at
Geneva on 26 September 1928, read together with Articles 36, paragraph 1,
and 37 of the Statute of the Court, and alternatively on Article 36,
paragraph 2, of the Statute of the Court.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
at once communicated to the French Government. In accordance with paragraph
3 of that Article, all other States entitled to appear before the Court were
notified of the Application. [p 255]
3. Pursuant to Article 31, paragraph 2, of the Statute of the Court, the
Government of Australia chose the Right Honourable Sir Garfield Barwick,
Chief Justice of Australia, to sit as judge
ad hoc in the case.
4. 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, for reasons set out in the letter and an Annex
thereto, 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. Nor has an agent been
appointed by the French Government.
5. On 9 May 1973, the date of filing of the Application instituting
proceedings, the Agent of Australia also filed in the Registry of the Court
a request for the indication of interim measures of protection under Article
33 of the 1928 General Act for the Pacific Settlement of International
Disputes and Article 41 of the Statute and Article 66 of the Rules of Court.
By an Order dated 22 June 1973 the Court indicated, on the basis of Article
41 of the Statute, certain interim measures of protection in the case.
6. By the same Order of 22 June 1973, the Court, considering that it was
necessary to resolve as soon as possible the questions of the Court's
jurisdiction and of the admissibility of the Application, decided that the
written proceedings should first be addressed to the questions of the
jurisdiction of the Court to entertain the dispute and of the admissibility
of the Application, and fixed 21 September 1973 as the time-limit for the
filing of a Memorial by the Government of Australia and 21 December 1973 as
the time-limit for a Counter-Memorial by the French Government. The Co-Agent
of Australia having requested an extension to 23 November 1973 of the
time-limit fixed for the filing of the Memorial, the time-limits fixed by
the Order of 22 June 1973 were extended, by an Order dated 28 August 1973,
to 23 November 1973 for the Memorial and 19 April 1974 for the
Counter-Memorial. The Memorial of the Government of Australia was filed
within the extended time-limit fixed therefor, and was communicated to the
French Government. No Counter-Memorial was filed by the French Government
and, the written proceedings being thus closed, the case was ready for
hearing on 20 April 1974, the day following the expiration of the time-limit
fixed for the Counter-Memorial of the French Government.
7. On 16 May 1973 the Government of Fiji filed in the Registry of the Court
a request under Article 62 of the Statute to be permitted to intervene in
these proceedings. By an Order of 12 July 1973 the Court, having regard to
its Order of 22 June 1973 by which the written proceedings were first to be
addressed to the questions of the jurisdiction of the Court and of the
admissibility of the Application, decided to defer its consideration of the
application of the Government of Fiji for permission to intervene until the
Court should have pronounced upon these questions.
8. On 24 July 1973, the Registrar addressed the notification provided for in
Article 63 of the Statute to the States, other than the Parties to the case,
which were still in existence and were listed in the relevant documents of
the League of Nations as parties to the General Act for the Pacific
Settlement of International Disputes, done at Geneva on 26 September 1928,
which was invoked in the Application as a basis of jurisdiction.
9. The Governments of Argentina, Fiji, New Zealand and Peru requested that
the pleadings and annexed documents should be made available to them [p 256]
in accordance with Article 48, paragraph 2, of the Rules of Court. The
Parties were consulted on each occasion, and the French Government having
maintained the position stated in the letter of 16 May 1973, and thus
declined to express an opinion, the Court or the President decided to accede
to these requests.
10. On 4-6, 8-9 and 11 July 1974, after due notice to the Parties, public
hearings were held, in the course of which the Court heard the oral
argument, on the questions of the Court's jurisdiction and of the
admissibility of the Application, advanced by Mr. P. Brazil, Agent of
Australia and Senator the Honourable Lionel Murphy, Q.C., Mr. M. H. Byers,
Q.C., Mr. E. Lauterpacht, Q.C., and Professor D. P. O'Connell, counsel, on
behalf of the Government of Australia. The French Government was not
represented at the hearings.
11. In the course of the written proceedings, the following submissions were
presented on behalf of the Government of Australia: in the Application:
"The Government of Australia asks the Court to adjudge and declare that, for
the above-mentioned reasons or any of them or for any other reason that the
Court deems to be relevant, 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."
in the Memorial:
"The Government of Australia submits to the Court that it is entitled to a
declaration and judgment that:
(a) the Court has jurisdiction to entertain the dispute, the subject of the
Application filed by the Government of Australia on 9 May 1973; and
(b) the Application is admissible."
12. During the oral proceedings, the following written submissions were
filed in the Registry of the Court on behalf of the Government of Australia:
"The final submissions of the Government of Australia are that:
(a) the Court has jurisdiction to entertain the dispute the subject of the
Application filed by the Government of Australia on 9 May 1973; and
(b) the Application is admissible
and that accordingly the Government of Australia is entitled to a
declaration and judgment that the Court has full competence to proceed to
entertain the Application by Australia on the Merits of the dispute."
13. No pleadings were filed by the French Government, and it was not
represented at the oral proceedings; no formal submissions were therefor
made by that Government. The attitude of the French Government with regard
to the question of the Court's jurisdiction was however defined in the
above-mentioned letter of 16 May 1973 from the French Ambassador to the [p
257] Netherlands, and the document annexed thereto. The said letter stated
in particular that:
". ..the Government of the [French] Republic, as it has notified the
Australian Government, considers that the Court is manifestly not competent
in this case and that it cannot accept its juridiction".
***
14. As indicated above (paragraph 4), the letter from the French Ambassador
of 16 May 1973 also stated that the French Government "respectfully requests
the Court to be so good as to order that the case be removed from the list".
At the opening of the public hearing concerning the request for interim
measures of protection, held on 21 May 1973, the President announced that
"this request . . . has been duly noted, and the Court will deal with it in
due course, in application of Article 36, paragraph 6, of the Statute of the
Court". In its Order of 22 June 1973, the Court stated that the
considerations therein set out did not "permit the Court to accede at the
present stage of the proceedings" to that request. Having now had the
opportunity of examining the request in the light of the subsequent
proceedings, the Court finds that the present case is not one in which the
procedure of summary removal from the list would be appropriate.
***
15. It is to be regretted that the French Government has failed to appear in
order to put forward its arguments on the issues arising in the present
phase of the proceedings, and the Court has thus not had the assistance it
might have derived from such arguments or from any evidence adduced in
support of them. The Court nevertheless has to proceed and reach a
conclusion, and in doing so must have regard not only to the evidence
brought before it and the arguments addressed to it by the Applicant, but
also to any documentary or other evidence which may be relevant. It must on
this basis satisfy itself, first that there exists no bar to the exercise of
its judicial function, and secondly, if no such bar exists, that the
Application is well founded in fact and in law.
***
16. The present case relates to a dispute between the Government of
Australia and the French Government concerning the holding of atmospheric
tests of nuclear weapons by the latter Government in the South Pacific
Ocean. Since in the present phase of the proceedings the Court has to deal
only with preliminary matters, it is appropriate to recall that its approach
to a phase of this kind must be, as it was expressed in the Fisheries
Jurisdiction cases, as follows: [p 258]
"The issue being thus limited, the Court will avoid not only all expressions
of opinion on matters of substance, but also any pronouncement which might
prejudge or appear to prejudge any eventual decision on the merits." (I.C.J.
Reports 1973, pp. 7 and 54.)
It will however be necessary to give a summary of the principal facts
underlying the case.
17. Prior to the filing of the Application instituting proceedings in this
case, the French Government had carried out atmospheric tests of nuclear
devices at its Centre d'experimentations du Pacifique, in the territory of
French Polynesia, in the years 1966, 1967, 1968, 1970, 1971 and 1972. The
main firing site used has been Mururoa atoll some 6,000 kilometres to the
east of the Australian mainland. The French Government has created
"Prohibited Zones" for aircraft and "Dangerous Zones" for aircraft and
shipping, in order to exclude aircraft and shipping from the area of the
tests centre; these "zones" have been put into effect during the period of
testing in each year in which tests have been carried out.
18. As the United Nations Scientific Committee on the Effects of Atomic
Radiation has recorded in its successive reports to the General Assembly,
the testing of nuclear devices in the atmosphere has entailed the release
into the atmosphere, and the consequent dissipation in varying degrees
throughout the world, of measurable quantities of radio-active matter. It is
asserted by Australia that the French atmospheric tests have caused some
fall-out of this kind to be deposited on Australian territory; France has
maintained in particular that the radio-active matter produced by its tests
has been so infinitesimal that it may be regarded as negligible, and that
such fall-out on Australian territory does not constitute a danger to the
health of the Australian population. These disputed points are clearly
matters going to the merits of the case, and the Court must therefore
refrain, for the reasons given above, from expressing any view on them.
***
19. By letters of 19 September 1973,29 August and 11 November 1974, the
Government of Australia informed the Court that subsequent to the Court's
Order of 22 June 1973 indicating, as interim measures under Article 41 of
the Statute. (inter alia) that the French Government should avoid nuclear
tests causing the deposit of radio-active fall-out in Australian territory,
two further series of atmospheric tests, in the months of July and August
1973 and June to September 1974, had been carried out at the Centre
d�experimentations du Pacifique. The letters also stated that fall-out had
been recorded on Australian territory which, according to the Australian
Government, was clearly attributable to these tests, [p 259] and that "in
the opinion of the Government of Australia the conduct of the French
Government constitutes a clear and deliberate breach of the Order of the
Court of 22 June 1973".
20. Recently a number of authoritative statements have been made on behalf
of the French Government concerning its intentions as to future nuclear
testing in the South Pacific Ocean. The significance of these statements,
and their effect for the purposes of the present proceedings, will be
examined in detail later in the present Judgment.
***
21. The Application founds the jurisdiction of the Court on the following
basis:
"(i) Article 17 of the General Act for the Pacific Settlement of
International Disputes, 1928, read together with Articles 36 (1) and 37 of
the Statute of the Court. Australia and the French Republic both acceded to
the General Act on 21 May 193 1 . . .
(ii) Alternatively, Article 36 (2) of the Statute of the Court. Australia
and the French Republic have both made declarations thereunder."
22. The scope of the present phase of the proceedings was defined by the
Court's Order of 22 June 1973, by which the Parties were called upon to
argue, in the first instance, questions of the jurisdiction of the Court and
the admissibility of the Application. For this reason, as already indicated,
not only the Parties but also the Court itself must refrain from entering
into the merits of the claim. However, while examining these questions of a
preliminary character, the Court is entitled, and in some circumstances may
be required, to go into other questions which may not be strictly capable of
classification as matters of jurisdiction or admissibility but are of such a
nature as to require examination in priority to those matters.
23. In this connection, it should be emphasized that the Court possesses an
inherent jurisdiction enabling it to take such action as may be required, on
the one hand to ensure that the exercise of its jurisdiction over the
merits, if and when established, shall not be frustrated, and on the other,
to provide for the orderly settlement of all matters in dispute, to ensure
the observance of the "inherent limitations on the exercise of the judicial
function" of the Court, and to "maintain its judicial character" (Northern
Cameroons, Judgment, I.C.J. Reports 1963, at p. 29). Such inherent
jurisdiction, on the basis of which the Court is fully empowered to make
whatever findings may be necessary for the purposes just indicated, derives
from the mere existence of the Court as a judicial [p 260] organ established
by the consent of States, and is conferred upon it in order that its basic
judicial functions may be safeguarded.
24. With these considerations in mind, the Court has first to examine a
question which it finds to be essentially preliminary, namely the existence
of a dispute, for, whether or not the Court has jurisdiction in the present
case, the resolution of that question could exert a decisive influence on
the continuation of the proceedings. It will therefore be necessary to make
a detailed analysis of the claim submitted to the Court by the Application
of Australia. The present phase of the proceedings having been devoted
solely to preliminary questions, the Applicant has not had the opportunity
of fully expounding its contentions on the merits. However the Application,
which is required by Article 40 of the Statute of the Court to indicate "the
subject of the dispute", must be the point of reference for the
consideration by the Court of the nature and existence of the dispute
brought before it.
25. The Court would recall that the submission made in the Application
(paragraph 11 above) is that the Court should 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
-- the Application having specified in what respect further tests were
alleged to be in violation of international law -- and should order "that
the French Republic shall not carry out any further such tests".
26. The diplomatic correspondence of recent years between Australia and
France reveals Australia's preoccupation with French nuclear atmospheric
tests in the South Pacific region, and indicates that its objective has been
to bring about their termination. Thus in a Note dated 3 January 1973 the
Australian Government made it clear that it was inviting the French
Government "to refrain from any further atmospheric nuclear tests in the
Pacific area and formally to assure the Australian Government that no more
such tests will be held in the Pacific area". In the Application, the
Government of Australia observed in connection with this Note (and the
French reply of 7 February 1973) that:
"It is at these Notes, of 3 January and 7 February 1973, that the Court is
respectfully invited to look most closely; for it is in them that the shape
and dimensions of the dispute which now so sadly divides the parties appear
so clearly. The Government of Australia claimed that the continuance of
testing by France is illegal and called for the cessation of tests. The
Government of France asserted the legality of its conduct and gave no
indication that the tests would stop." (Para. 15 of the Application.)
That this was the object of the claim also clearly emerges from the request
for the indication of interim measures of protection, submitted to the Court
by the Applicant on 9 May 1973, in which it was observed:
"As is stated in the Application, Australia has sought to obtain from the
French Republic a permanent undertaking to refrain from [p 261] further
atmospheric nuclear tests in the Pacific. However, the French Republic has
expressly refused to give any such undertaking. It was made clear in a
statement in the French Parliament on 2 May 1973 by the French Secretary of
State for the Armies that the French Government, regardless of the protests
made by Australia and other countries, does not envisage any cancellation or
modification of the programme of nuclear testing as originally planned."
(Para. 69.)
27. Further light is thrown on the nature of the Australian claim by the
reaction of Australia, through its Attorney-General, to statements, referred
to in paragraph 20 above, made on behalf of France and relating to nuclear
tests in the South Pacific Ocean. In the course of the oral proceedings, the
Attorney-General of Australia outlined the history of the dispute subsequent
to the Order of 22 June 1973, and included in this review mention of a
communique issued by the Office of the President of the French Republic on 8
June 1974. The Attorney-General's comments on this document indicated that
it merited analysis as possible evidence of a certain development in the
controversy between the Parties, though at the same time he made it clear
that this development was not, in his Government's view, of such a nature as
to resolve the dispute to its satisfaction. More particularly he reminded
the Court that "Australia has consistently stated that it would welcome a
French statement to the effect that no further atmospheric nuclear tests
would be conducted . . . but no such assurance was given". The
Attorney-General continued, with reference to the communique of 8 June:
"The concern of the Australian Government is to exclude completely
atmospheric testing. It has repeatedly sought assurances that atmospheric
tests will end. It has not received those assurances. The recent French
Presidential statement cannot be read as a firm, explicit and binding
undertaking to refrain from further atmospheric tests. It follows that the
Government of France is still reserving to itself the right to carry out
atmospheric nuclear tests." (Hearing of 4 July 1974.)
It is clear from these statements that if the French Government had given
what could have been construed by Australia as "a firm, explicit and binding
undertaking to refrain from further atmospheric tests", the applicant
Government would have regarded its objective as having been achieved.
28. Subsequently, on 26 September 1974, the Attorney-General of Australia,
replying to a question put in the Australian Senate with regard to reports
that France had announced that it had finished atmospheric nuclear testing,
said:
"From the reports I have received it appears that what the French Foreign
Minister actually said was 'We have now reached a stage in [p 262] our
nuclear technology that makes it possible for us to continue our program by
underground testing, and we have taken steps to do so as early as next year'
. . . this statement falls far short of a commitment or undertaking that
there will be no more atmospheric tests conducted by the French Government
at its Pacific Tests Centre . . . There is a basic distinction between an
assertion that steps are being taken to continue the testing program by
underground testing as early as next year and an assurance that no further
atmospheric tests will take place. It seems that the Government of France,
while apparently taking a step in the right direction, is still reserving to
itself the right to carry out atmospheric nuclear tests. In legal terms,
Australia has nothing from the French Government which protects it against
any further atmospheric tests should the French Government subsequently
decide to hold them."
Without commenting for the moment on the Attorney-General's interpretation
of the French statements brought to his notice, the Court would observe that
it is clear that the Australian Government contemplated the possibility of
"an assurance that no further atmospheric tests will take place" being
sufficient to protect Australia.
29. In the light of these statements, it is essential to consider whether
the Government of Australia requests a judgment by the Court which would
only state the legal relationship between the Applicant and the Respondent
with regard to the matters in issue, or a judgment of a type which in terms
requires one or both of the Parties to take, or refrain from taking, some
action. Thus it is the Court's duty to isolate the real issue in the case
and to identify the object of the claim. It has never been contested that
the Court is entitled to interpret the submissions of the parties, and in
fact is bound to do so; this is one of the attributes of its judicial
functions. It is true that, when the claim is not properly formulated
because the submissions of the parties are inadequate, the Court has no
power to "substitute itself for them and formulate new submissions simply on
the basis of arguments and facts advanced" (P.C.I.J., Series A, No. 7, p.
35), but that is not the case here, nor is it a case of the reformulation of
submissions by the Court. The Court has on the other hand repeatedly
exercised the power to exclude, when necessary, certain contentions or
arguments which were advanced by a party as part of the submissions, but
which were regarded by the Court, not as indications of what the party was
asking the Court to decide, but as reasons advanced why the Court should
decide in the sense contended for by that party. Thus in the Fisheries case,
the Court said of nine of the thirteen points in the Applicant's
submissions: "These are elements which might furnish reasons in support of
the Judgment, but cannot constitute the decision" [p 263] (I.C.J. Reports
1951, p. 126). Similarly in the Minquiers and Ecrehos case, the Court
observed that:
"The Submissions reproduced above and presented by the United Kingdom
Government consist of three paragraphs, the last two being reasons
underlying the first, which must be regarded as the final Submission of that
Government. The Submissions of the French Government consist of ten
paragraphs, the first nine being reasons leading up to the last, which must
be regarded as the final Submission of that Government." (I.C.J. Reports
1953, p. 52; see also Nottebohm, Second Phase, Judgment, I.C.J. Reports
1955, p. 16.)
30. In the circumstances of the present case, although the Applicant has in
its Application used the traditional formula of asking the Court "to adjudge
and declare" (a formula similar to those used in the cases quoted in the
previous paragraph), the Court must ascertain the true object and purpose of
the claim and in doing so it cannot confine itself to the ordinary meaning
of the words used; it must take into account the Application as a whole, the
arguments of the Applicant before the Court, the diplomatic exchanges
brought to the Court's attention, and public statements made on behalf of
the applicant Government. If these clearly circumscribe the object of the
claim, the interpretation of the submissions must necessarily be affected.
In the present case, it is evident that the fons et origo of the case was
the atmospheric nuclear tests conducted by France in the South Pacific
region, and that the original and ultimate objective of the Applicant was
and has remained to obtain a termination of those tests; thus its claim
cannot be regarded as being a claim for a declaratory judgment. While the
judgment of the Court which Australia seeks to obtain would in its view have
been based on a finding by the Court on questions of law, such finding would
be only a means to an end, and not an end in itself. The Court is of course
aware of the role of declaratory judgments, but the present case is not one
in which such a judgment is requested.
31. In view of the object of the Applicant's claim, namely to prevent
further tests, the Court has to take account of any developments, since the
filing of the Application, bearing upon the conduct of the Respondent.
Moreover, as already mentioned, the Applicant itself impliedly recognized
the possible relevance of events subsequent to the Application, by drawing
the Court's attention to the communique of 8 June 1974, and making
observations thereon. In these circumstances the Court is bound to take note
of further developments, both prior to and subsequent to the close of the
oral proceedings in view of the non-appearance of the Respondent, it is
especially incumbent upon the Court to satisfy itself that it is in
possession of all the available facts.
32. At the hearing of 4 July 1974, in the course of a review of developments
in relation to the proceedings since counsel for Australia had [p 264]
previously addressed the Court in May 1973, the Attorney-General of
Australia made the following statement:
"You will recall that Australia has consistently stated it would welcome a
French statement to the effect that no further atmospheric nuclear tests
would be conducted. Indeed as the Court will remember such an assurance was
sought of the French Government by the Australian Government by note dated 3
January 1973, but no such assurance was given.
I should remind the Court that in paragraph 427 of its Memorial the
Australian Government made a statement, then completely accurate, to the
effect that the French Government had given no indication of any intention
of departing from the programme of testing planned for 1974 and 1975. That
statement will need now to be read in light of the matters to which I now
turn and which deal with, the official communications by the French
Government of its present plans."
He devoted considerable attention to a communique dated 8 June 1974 from the
Office of the President of the French Republic, and submitted to the Court
the Australian Government's interpretation of that document. Since that
time, certain French authorities have made a number of consistent public
statements concerning future tests, which provide material facilitating the
Court's task of assessing the Applicant's interpretation of the earlier
documents, and which indeed require to be examined in order to discern
whether they embody any modification of intention as to France's future
conduct. It is true that these statements have not been made before the
Court, but they are in the public domain, and are known to the Australian
Government, and one of them was commented on by the Attorney-General in the
Australian Senate on 26 September 1974. It will clearly be necessary to
consider all these statements, both that drawn to the Court's attention in
July 1974 and those subsequently made.
33. It would no doubt have been possible for the Court, had it considered
that the interests of justice so required, to have afforded the Parties the
opportunity, e.g., by reopening the oral proceedings, of addressing to the
Court comments on the statements made since the close of those proceedings.
Such a course however would have been fully justified only if the matter
dealt with in those statements had been completely new, had not been raised
during the proceedings, or was unknown to the Parties. This is manifestly
not the case. The essential material which the Court must examine was
introduced into the proceedings by the Applicant itself, by no means
incidentally, during the course of the hearings, when it drew the Court's
attention to a statement by the French authorities made prior to that date,
submitted the documents containing it and presented an interpretation of its
character, touching particularly upon the question whether it contained a
firm assurance. Thus both the statement and the Australian interpretation of
it are before [p 265] the Court pursuant to action by the Applicant.
Moreover, the Applicant subsequently publicly expressed its comments (see
paragraph 28 above) on statements made by the French authorities since the
closure of the oral proceedings. The Court is therefore in possession not
only of the statements made by French authorities concerning the cessation
of atmospheric nuclear testing, but also of the views of the Applicant on
them. Although as a judicial body the Court is conscious of the importance
of the principle expressed in the maxim audi alteram partem, it does not
consider that this principle precludes the Court from taking account of
statements made subsequently to the oral proceedings, and which merely
supplement and reinforce matters already discussed in the course of the
proceedings, statements with which the Applicant must be familiar. Thus the
Applicant, having commented on the statements of the French authorities,
both that made prior to the oral proceedings and those made subsequently,
could reasonably expect that the Court would deal with the matter and come
to its own conclusion on the meaning and effect of those statements. The
Court, having taken note of the Applicant's comments, and feeling no
obligation to consult the Parties on the basis for its decision finds that
the reopening of the oral proceedings would serve no useful purpose.
34. It will be convenient to take the statements referred to above in
chronological order. The first statement is contained in the communique
issued by the Office of the President of the French Republic on 8 June 1974,
shortly before the commencement of the 1974 series of French nuclear tests:
"The Decree reintroducing the security measures in the South Pacific nuclear
test zone has been published in the Official Journal of 8 June 1974.
The Office of the President of the Republic takes this opportunity of
stating that in view of the stage reached in carrying out the French nuclear
defence programme France will be in a position to pass on to the stage of
underground explosions as soon as the series of tests planned for this
summer is completed."
A copy of the communique was transmitted with a Note dated 11 June 1974 from
the French Embassy in Canberra to the Australian Department of Foreign
Affairs, and as already mentioned, the text of the communique was brought to
the attention of the Court in the course of the oral proceedings.
35. In addition to this, the Court cannot fail to take note of a reference
to a document made by counsel at a public hearing in the proceedings,
parallel to this case, instituted by New Zealand against France on 9 May
1973. At the hearing of 10 July 1974 in that case, the Attorney-General of
New Zealand, after referring to the communique of 8 June 1974, mentioned
above, stated that on 10 June 1974 the French Embassy in Wellington sent a
Note to the New Zealand Ministry of Foreign Affairs, containing a passage
which the Attorney General read out, and which, in the translation used by
New Zealand, runs as follows: [p 266]
"France, at the point which has been reached in the execution of its
programme of defence by nuclear means, will be in a position to move to the
stage of underground tests, as soon as the test series planned for this
summer is completed.
Thus the atmospheric tests which are soon to be carried out will, in the
normal course of events, be the last of this type."
36. The Court will also have to consider the relevant statements made by the
French authorities subsequently to the oral proceedings: on 25 July 1974 by
the President of the Republic; on 16 August 1974 by the Minister of Defence;
on 25 September 1974 by the Minister for Foreign Affairs in the United
Nations General Assembly; and on 11 October 1974 by the Minister of Defence.
37. The next statement to be considered, therefore, will be that made on 25
July at a press conference given by the President of the Republic, when he
said:
". . . on this question of nuclear tests, you know that the Prime Minister
had publicly expressed himself in the National Assembly in his speech
introducing the Government's programme. He had indicated that French nuclear
testing would continue. I had myself made it clear that this round of
atmospheric tests would be the last, and so the members of the Government
were completely informed of our intentions in this respect . . ."
38. On 16 August 1974, in the course of an interview on French television,
the Minister of Defence said that the French Government had done its best to
ensure that the 1974 nuclear tests would be the last atmospheric tests.
39. On 25 September 1974, the French Minister for Foreign Affairs,
addressing the United Nations General Assembly, said:
"We have now reached a stage in our nuclear technology that makes it
possible for us to continue our programme by underground testing, and we
have taken steps to do so as early as next year."
40. On 11 October 1974, the Minister of Defence held a press conference
during which he stated twice, in almost identical terms, that there would
not be any atmospheric tests in 1975 and that France was ready to proceed to
underground tests. When the comment was made that he had not added "in the
normal course of events", he agreed that he had not. This latter point is
relevant in view of the passage from the Note of 10 June 1974 from the
French Embassy in Wellington to the Ministry of Foreign Affairs of New
Zealand, quoted in paragraph 35 above, to the effect that the atmospheric
tests contemplated "will, in the normal course of events, be the last of
this type". The Minister also mentioned that, whether or not other
governments had been officially advised of the [p 267] decision, they could
become aware of it through the press and by reading the communiques issued
by the Office of the President of the Republic.
41. In view of the foregoing, the Court finds that France made public its
intention to cease the conduct of atmospheric nuclear tests following the
conclusion of the 1974 series of tests. The Court must in particular take
into consideration the President's statement of 25 July 1974 (paragraph 37
above) followed by the Defence Minister's statement on 11 October 1974
(paragraph 40). These reveal that the official statements made on behalf of
France concerning future nuclear testing are not subject to whatever
proviso, if any, was implied by the expression "in the normal course of
events [normalement]".
***
42. Before considering whether the declarations made by the French
authorities meet the object of the claim by the Applicant that no further
atmospheric nuclear tests should be carried out in the South Pacific, it is
first necessary to determine the status and scope on the international plane
of these declarations.
43. It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating
legal obligations. Declarations of this kind may be, and often are, very
specific. When it is the intention of the State making the declaration that
it should become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if given publicly, and with an
intent to be bound, even though not made within the context of international
negotiations, is binding. In these circumstances, nothing in the nature of a
quid pro quo nor any subsequent acceptance of the declaration, nor even any
reply or reaction from other States, is required for the declaration to take
effect, since such a requirement would be inconsistent with the strictly
unilateral nature of the juridical act by which the pronouncement by the
State was made.
44. Of course, not all unilateral acts imply obligation; but a State may
choose to take up a certain position in relation to a particular matter with
the intention of being bound -- the intention is to be ascertained by
interpretation of the act. When States make statements by which their
freedom of action is to be limited, a restrictive interpretation is called
for.
45. With regard to the question of form, it should be observed that this is
not a domain in which international law imposes any special or strict
requirements. Whether a statement is made orally or in writing makes no
essential difference, for such statements made in particular circumstances
may create commitments in international law, which does not require that
they should be couched in written form. Thus the ques-[p 268] tion of form
is not decisive. As the Court said in its Judgment on the preliminary
objections in the case concerning the Temple of Preah Vihear:
"Where . . . as is generally the case in international law, which places the
principal emphasis on the intentions of the parties, the law prescribes no
particular form, parties are free to choose what form they please provided
their intention clearly results from it." (I.C.J. Reports 1961, p. 31 .)
The Court further stated in the same case: ". . . the sole relevant question
is whether the language employed in any given declaration does reveal a
clear intention. . ." (ibid., p. 32).
46. One of the basic principles governing the creation and performance of
legal obligations, whatever their source, is the principle of good faith.
Trust and confidence are inherent in international co-operation, in
particular in an age when this co-operation in many fields is becoming
increasingly essential. Just as the very rule of pacta sunt servanda in the
law of treaties is based on good faith, so also is the binding character of
an international obligation assumed by unilateral declaration. Thus
interested States may take cognizance of unilateral declarations and place
confidence in them, and are entitled to require that the obligation thus
created be respected.
***
47. Having examined the legal principles involved, the Court will now turn
to the particular statements made by the French Government. The Government
of Australia has made known to the Court at the oral proceedings its own
interpretation of the first such statement (paragraph 27 above). As to
subsequent statements, reference may be made to what was said in the
Australian Senate by the Attorney-General on 26 September 1974 (paragraph 28
above). In reply to a question concerning reports that France had announced
that it had finished atmospheric nuclear testing, he said that the statement
of the French Foreign Minister on 25 September (paragraph 39 above) "falls
far short of an undertaking that there will be no more atmospheric tests
conducted by the French Government at its Pacific Tests Centre" and that
France was "still reserving to itself the right to carry out atmospheric
nuclear tests" so that "In legal terms, Australia has nothing from the
French Government which protects it against any further atmospheric tests".
48. It will be observed that Australia has recognized the possibility of the
dispute being resolved by a unilateral declaration, of the kind specified
above, on the part of France, and its conclusion that in fact no
"commitment" or "firm, explicit and binding undertaking" had been given is
based on the view that the assurance is not absolute in its terms, [p 269]
that there is a "distinction between an assertion that tests will go
underground and an assurance that no further atmospheric tests will take
place", that "the possibility of further atmospheric testing taking place
after the commencement of underground tests cannot be excluded" and that
thus "the Government of France is still reserving to itself the right to
carry out atmospheric nuclear tests". The Court must however form its own
view of the meaning and scope intended by the author of a unilateral
declaration which may create a legal obligation, and cannot in this respect
be bound by the view expressed by another State which is in no way a party
to the text.
49. Of the statements by the French Government now before the Court, the
most essential are clearly those made by the President of the Republic.
There can be no doubt, in view of his functions, that his public
communications or statements oral or written, as Head of State, are in
international relations acts of the French State. His statements, and those
of members of the French Government acting under his authority, up to the
last statement made by the Minister of Defence (of 11 October 1974),
constitute a whole. Thus, in whatever form these statements were expressed,
they must be held to constitute an engagement of the State, having regard to
their intention and to the circumstances in which they were made.
50. The unilateral statements of the French authorities were made outside
the Court, publicly and erga omnes, even though the first of them was
communicated to the Government of Australia. As was observed above, to have
legal effect, there was no need for these statements to be addressed to a
particular State, nor was acceptance by any other State required. The
general nature and characteristics of these statements are decisive for the
evaluation of the legal implications, and it is to the interpretation of the
statements that the Court must now proceed. The Court is entitled to
presume, at the outset, that these statements were not made in vacuo, but in
relation to the tests which constitute the very object of the present
proceedings, although France has not appeared in the case.
51. In announcing that the 1974 series of atmospheric tests would be the
last, the French Government conveyed to the world at large, including the
Applicant, its intention effectively to terminate these tests. It was bound
to assume that other States might take note of these statements and rely on
their being effective. The validity of these statements and their legal
consequences must be considered within the general frame-work of the
security of international intercourse, and the confidence and trust which
are so essential in the relations among States. It is from the actual
substance of these statements, and from the circumstances attending their
making, that the legal implications of the unilateral act must be deduced.
The objects of these statements are clear and they were addressed to the
international community as a whole, and the Court holds that they constitute
an undertaking possessing legal effect. The Court considers
[p 270] that the President of the Republic, in deciding upon the effective
cessation of atmospheric tests, gave an undertaking to the international
community to which his words were addressed. It is true that the French
Government has consistently maintained, for example in a Note dated 7
February 1973 from the French Ambassador in Canberra to the Prime Minister
and Minister for Foreign Affairs of Australia, that it "has the conviction
that its nuclear experiments have not violated any rule of international
law", nor did France recognize that it was bound by any rule of
international law to terminate its tests, but this does not affect the legal
consequences of the statements examined above. The Court finds that the
unilateral undertaking resulting from these statements cannot be interpreted
as having been made in implicit reliance on an arbitrary power of
reconsideration. The Court finds further that the French Government has
undertaken an obligation the precise nature and limits of which must be
understood in accordance with the actual terms in which they have been
publicly expressed.
52. Thus the Court faces a situation in which the objective of the Applicant
has in effect been accomplished, inasmuch as the Court finds that France has
undertaken the obligation to hold no further nuclear tests in the atmosphere
in the South Pacific.
53. The Court finds that no question of damages arises in the present case,
since no such claim has been raised by the Applicant either prior to or
during the proceedings, and the original and ultimate objective of Applicant
has been to seek protection "against any further atmospheric test" (see
paragraph 28 above).
54. It would of course have been open to Australia, if it had considered
that the case had in effect been concluded, to discontinue the proceedings
in accordance with the Rules of Court. If it has not done so, this does not
prevent the Court from making its own independent finding on the subject. It
is true that "the Court cannot take into account declarations, admissions or
proposals which the Parties may have made during direct negotiations between
themselves, when such negotiations have not led to a complete agreement"
(Factory at Chorz�w (Merits), P.C.I.J., Series A, No. 17, p. 51). However,
in the present case, that is not the situation before the Court. The
Applicant has clearly indicated what would satisfy its claim, and the
Respondent has independently taken action; the question for the Court is
thus one of interpretation of the conduct of each of the Parties. The
conclusion at which the Court has arrived as a result of such interpretation
does not mean that it is itself effecting a compromise of the claim; the
Court is merely ascertaining the object of the claim and the effect of the
Respondent's action, and this it is obliged to do. Any suggestion that the
dispute would not be capable of being terminated by statements made on
behalf of France would run counter to the unequivocally expressed views of
the Applicant both before the Court and elsewhere.
55. The Court, as a court of law, is called upon to resolve existing
disputes between States. Thus the existence of a dispute is the primary [p
271] condition for the Court to exercise its judicial function; it is not
sufficient for one party to assert that there is a dispute, since "whether
there exists an international dispute is a matter for objective
determination" by the Court (Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania (First Phase), Advisory Opinion, I.C.J. Reports 1950, p.
74). The dispute brought before it must therefore continue to exist at the
time when the Court makes its decision. It must not fail to take cognizance
of a situation in which the dispute has disappeared because the object of
the claim has been achieved by other means. If the declarations of France
concerning the effective cessation of the nuclear tests have the
significance described by the Court, that is to say if they have caused the
dispute to disappear, all the necessary consequences must be drawn from this
finding.
56. It may be argued that although France may have undertaken such an
obligation, by a unilateral declaration, not to carry out atmospheric
nuclear tests in the South Pacific Ocean, a judgment of the Court on this
subject might still be of value because, if the judgment upheld the
Applicant's contentions, it would reinforce the position of the Applicant by
affirming the obligation of the Respondent. However, the Court having found
that the Respondent has assumed an obligation as to conduct, concerning the
effective cessation of nuclear tests, no further judicial action is
required. The Applicant has repeatedly sought from the Respondent an
assurance that the tests would cease, and the Respondent has, on its own
initiative made a series of statements to the effect that they will cease.
Thus the Court concludes that, the dispute having disappeared, the claim
advanced by Australia no longer has any object. It follows that any further
finding would have no raison d'�tre.
57. This is not to say that the Court may select from the cases submitted to
it those it feels suitable for judgment while refusing to give judgment in
others. Article 38 of the Court's Statute provides that its function is "to
decide in accordance with international law such disputes as are submitted
to it"; but not only Article 38 itself but other provisions of the Statute
and Rules also make it clear that the Court can exercise its jurisdiction in
contentious proceedings only when a dispute genuinely exists between the
parties. In refraining from further action in this case the Court is
therefore merely acting in accordance with the proper interpretation of its
judicial function.
58. The Court has in the Dast indicated considerations which would lead it
to decline to give judgment. The present case is one in which "circumstances
that have . . . arisen render any adjudication devoid of purpose" (Northern
Cameroons, Judgment, I.C.J. Reports 1963, p. 38). The Court therefore sees
no reason to allow the continuance of proceedings which it knows are bound
to be fruitless. While judicial settlement may provide a path to
international harmony in circumstances of conflict, it is none the less true
that the needless continuance of litigation is an obstacle to such harmony.
59. Thus the Court finds that no further pronouncement is required [p 272]
in the present case. It does not enter into the adjudicatory functions of
the Court to deal with issues in abstracto, once it has reached the
conclusion that the merits of the case no longer fall to be determined. The
object of the claim having clearly disappeared, there is nothing on which to
give judgment.
***
60. Once the Court has found that a State has entered into a commitment
concerning its future conduct it is not the Court's function to contemplate
that it will not comply with it. However, the Court observes that if the
basis of this Judgment were to be affected, the Applicant could request an
examination of the situation in accordance with the provisions of the
Statute; the denunciation by France, by letter dated 2 January 1974, of the
General Act for the Pacific Settlement of International Disputes, which is
relied on as a basis of jurisdiction in the present case, cannot by itself
constitute an obstacle to the presentation of such a request.
***
61. In its above-mentioned Order of 22 June 1973, the Court stated that the
provisional measures therein set out were indicated "pending its final
decision in the proceedings instituted on 9 May 1973 by Australia against
France". It follows that such Order ceases to be operative upon the delivery
of the present Judgment, and that the provisional measures lapse at the same
time.
***
62. For these reasons,
The Court,
by nine votes to six,
finds that the claim of Australia no longer has any object and that the
Court is therefore not called upon to give a decision thereon.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twentieth day of December, one thousand nine
hundred and seventy-four, in three copies, one of which will be placed in
the archives of the Court and the others transmitted to the Government of
Australia and the Government of the French Republic, respectively.
(Signed) Manfred Lachs,
President.
(Signed) S. Aquarone,
Registrar.
[p 273]
President Lachs makes the following declaration:
Good administration of justice and respect for the Court require that the
outcome of its deliberations be kept in strict secrecy and nothing of its
decision be published until it is officially rendered. It was therefore
regrettable that in the present case, prior to the public reading of the
Court's Order of 22 June 1973, a statement was made and press reports
appeared which exceeded what is legally admissible in relation to a case sub
judice.
The Court was seriously concerned with the matter and an enquiry was ordered
in the course of which all possible avenues accessible to the Court were
explored.
The Court concluded, by a resolution of 21 March 1974, that its
investigations had not enabled it to identify any specific source of the
statements and reports published.
I remain satisfied that the Court had done everything possible in this
respect and that it dealt with the matter with all the seriousness for which
it called.
Judges Bengzon, Onyeama, Dillard, Jimenez de Arechaga and Sir Humphrey
Waldock make the following joint declaration:
Certain criticisms have been made of the Court's handling of the matter to
which the President alludes in the preceding declaration. We wish by our
declaration to make it clear that we do not consider those criticisms to be
in any way justified.
The Court undertook a lengthy examination of the matter by the several means
at its disposal: through its services, by convoking the Agent for Australia
and having him questioned, and by its own investigations and enquiries. Any
suggestion that the Court failed to treat the matter with all the
seriousness and care which it required is, in our opinion, without
foundation. The seriousness with which the Court regarded the matter is
indeed reflected and emphasized in the communiques which it issued, first on
8 August 1973 and subsequently on 26 March 1974.
The examination of the matter carried out by the Court did not enable it to
identify any specific source of the information on which were based the
statements and press reports to which the President has referred. When the
Court, by eleven votes to three, decided to conclude its examination it did
so for the solid reason that to pursue its investigations and inquiries
would in its view, be very unlikely to produce further useful information.
[p 274]
Judges Forster, Gros, Petren and Ignacio-Pinto append separate opinions to
the Judgment of the Court.
Judges Onyeama, Dillard, Jimenez de Arechaga and Sir Humphrey Waldock append
a joint dissenting opinion, and Judge De Castro and Judge ad hoc Sir
Garfield Barwick append dissenting opinions to the Judgment of the Court.
(Initialled) M.L.
(Initialled) S.A.
[p 275]
Separate opinion of judge Forster
[Translation ]
I voted in favour of the Judgment of 20 December 1974 whereby the
International Court of Justice has brought to an end the proceedings
instituted against France by Australia on account of the French nuclear
tests carried out at Mururoa, a French possession in the Pacific.
The Court finds in this Judgment that the Australian claim "no longer has
any object and that" it "is therefore not called upon to give a decision
thereon".
Thus end the proceedings.
I wish, however, to make the following clear:
That the Australian claim was without object was apparent to me from the
very first, and not merely subsequent to the recent French statements: in my
view it lacked object ab initio, and radically.
The recent French statements adduced in the reasoning of the Judgment do no
more than supplement (to useful purpose, I admit) what I conceived to be
the legal arguments for removal of the case from the Court's list. But there
would be no point in rehearsing these arguments now that the proceedings are
over.
I wish, finally, to state in terms that I personally have noted nothing in
the French statements which could be interpreted as an admission of any
breach of positive international law; neither have I observed in them
anything whatever bearing any resemblance to a concession wrested from
France by means of the judicial proceedings and implying the least
abandonment of that absolute sovereignty which France, like any other State,
possesses in the domain of its national defence.
As for the transition from atmospheric to underground tests, I see it simply
as a technical step forward which was due to occur; that, and no more.
(Signed) I. Forster.
[p 276]
Separate Opinion of Judge Gros
[Translation ]
Although my opinion on this case is not based on the Court's reasoning as
set out in the grounds of the Judgment, I voted in favour of the operative
clause because the Judgment puts an end to the action commenced by the
Applicant, and this coincides with the views of those who took the view, as
long ago as the first phase of the Court's study of the case in June 1973,
that there was no legal dispute. By finding that, today at least, the case
between the two States no longer has any object, the Court puts an end to it
by other means.
The Court has taken as legal basis of its Judgment the need to settle this
question of the existence of the object of the dispute as absolutely
preliminary, even in relation to questions concerning its jurisdiction and
other questions relating to admissibility. The Judgment only deals with the
disappearance of the object of the claim, and no decision has been taken on
the questions concerning the Court's lack of jurisdiction or the
inadmissibility of the claim; it is thus inappropriate to deal with these
questions. But there remains the problem of the non-existence, from the
outset of the case submitted to the Court, of any justiciable dispute, and
on this point I find it necessary to make some observations.
1. In order to ascertain whether the proceedings were without foundation at
the outset, the Application instituting proceedings, dated 9 May 1973, which
defines the object of the claim, must clearly be taken as point of
departure. The Applicant asked the Court to "order that the French Republic
shall not carry out any further such tests" [sc., atmospheric tests of
nuclear weapons in the South Pacific]. This request is based on 22 lines of
legal argument which makes up for its brevity by observing finally that, for
these reasons "or for any other reason that the Court deems to be relevant,
the carrying out of further ... tests is not consistent with applicable
rules of international law". I have had occasion in another case to recall
that submissions, in the strict sense, have frequently been confused with
reasons in support, a practice which has been criticized by Judge Basdevant
(I.C.J. Reports 1974, pp. 137 ff.); such confusion still occurs however, and
is particularly apparent in this case. In order to have these nuclear tests
prohibited for the future, the Applicant had to base its contention, however
elliptically, on rules of law which were opposable to the Respondent, rules
which in its Application it left it to the Court to discover and select. But
it is not apparent how it is possible to find in these few lines which
precede the formulation of the claim, and which are both formally and
logically distinct from it, a request for a declaratory judgment by the
Court as to the unlawfulness of the tests. The question
[p 277] raised is that of prohibition of French tests in the South Pacific
region inasmuch as all nuclear tests, wherever and by whoever conducted,
are, according to the Applicant, unlawful. Legal grounds, i.e., the
unlawfulness of the tests, therefore had to be shown in order to achieve
the object of the claim, namely a judicial prohibition. The submission, in
the strict sense, was the prayer for prohibition, and the unlawfulness was
the reasoning justifying it.
2. The rule is that the Court is seised of the precise object of the claim
in the way in which this has been formulated. The present case consisted in
a claim for prohibition of atmospheric tests on the ground that they were
unlawful. This is a procedure for establishing legality (contentieux de
legalite), not a procedure for establishing responsibility (contentieux de
responsabilite), with which the Application does not concern itself. In
order to succeed the Applicant had to show that its claim for prohibition of
French atmospheric tests was based on conduct by the French Government
which was contrary to rules of international law which were opposable to
that Government.
But it is not sufficient to put a question to the Court, even one which as
presented is apparently a legal question, for there to be, objectively, a
dispute. The situation is well described by the words of Judge Morelli: "The
mere assertion of the existence of a dispute by one of the parties does not
prove that such a dispute really exists" (J.C.J. Reports 1962, p. 565; see
also pp. 564 and 566-568), and even at the time of the Order of 22 June 1973
I had raised this question, when I referred to "an unreal dispute" (I.C.J.
Reports 1973, p. 118) and "a dispute which [a State] alleges not to exist"
(ibid., p. 120). I then emphasized the preliminary nature, particularly in a
case of failur to appear, of examination of the question of the real
existence of the dispute before a case can be dealt with by the Court in the
regular exercise of its judicial function. By deciding to effect such
preliminary examination, after many delays, and without any reference to the
voluntary absence of one of the Parties, the Court is endorsing the
principle that examination of the question of the reality of the dispute is
necessarily a matter which takes priority. This point is thus settled. There
was nothing in the Court's procedure to prevent examination in June 1973 of
the question whether the dispute described to the Court by the Applicant
was, and had been from the outset, lacking in any real existence.
3. When several reasons are invoked before the Court in support of the
contention that a case may not be judged on the merits�whether these reasons
concern lack of jurisdiction or inadmissibility�the Court has always taken
the greatest possible care not to commit itself either to any sort of
classification of these various grounds, any of which may lead to dismissal
of the claim, or to any sort of ranking of them in order. In the Northern
Cameroons case, the Court refused to establish any system for these
problems, or to define admissibility and interest, while analysing in detail
the facts of the case which enabled it to arrive at its decision (cf. I.C.J.
Reports 1963, p. 28): [p 278]
"The arguments of the Parties have at times been at cross-purposes because
of the absence of a common meaning ascribed to such terms as 'interest' and
'admissibility'. The Court recognizes that these words in differing contexts
may have varying connotations but it does not find it necessary in the
present case to explore the meaning of these terms. For the purposes of the
present case, a factual analysis undertaken in the light of certain guiding
principles may suffice to conduce to the resolution of the issues to which
the Court directs its attention."
And further on, at page 30: "... it is always a matter for the determination
of the Court whether its judicial functions are involved."
Thus the principle which the Court applies is a common-sense one: if a
finding is sufficient in itself to settle the question of the Court's
competence, in the widest sense of the word, that is to say to lead to the
conclusion that it is impossible to give judgment in a case, there is no
need to proceed to examine other grounds. For there to be any proceedings on
the merits, the litigation must have an object capable of being the subject
of a judgment consistently with the role attributed to the Court by its
Statute; in the present case, where numerous objections as to lack of
jurisdiction and inadmissibility were raised, the question of the absence of
any object of the proceedings was that which had to be settled first for
this very reason, namely that if it were held to be well founded, the case
would disappear without further discussion. The concept of a merits phase
has no meaning in an unreal case, any more than has the concept of a
jurisdic-tion/admissibility phase, still less that of an interim measures
phase, on the fallacious pretext that such measures in no way prejudge the
final decision (on this point, see dissenting opinion appended to the Order
of 22 June 1973, p. 123). In a case in which everything depends on
recog-nizing that an Application is unfounded and has no raison d'�tre, and
that there was no legal dispute of which the Court could be seised, a marked
taste for formalism is required to rely on the inviolability of the usual
categories of phases. To do so would be to erect the succession of phases in
examination of cases by the Court into a sort of ritual, totally
unjustified in the general conception of international law, which is not
formalistic. These are procedural practices of the Court, which organizes
its procedure according to the requirements of the interests of justice.
Article 48 of the Statute, by entrusting the "conduct of the case" to the
Court, did not impose any limitation on the exercise of this right by
subjecting it to formalistic rules, and the institution of phases does not
necessarily require successive stages in the examination of every case,
either for the parties or for the Court.
4. To wait several years�more than a year and a half has already elapsed�in
order to reach the unhurried conclusion that a court is competent merely
because the two States are formally bound by a jurisdictional clause,
without examining the scope of that clause, and then to join the questions
of admissibility to the merits, only subse-[p 279] quently to arrive
(perhaps) at the conclusion on the merits that there were no merits, would
not be a good way of administering justice.
The observation that, on this view of the matter, a State which declined to
appear would more rapidly be rid of proceedings than a State which replied
by raising preliminary objections, is irrelevant; apart from the problem of
non-appearance (on this point cf. paras. 23 to 29 below), when the
hypothesis arises that the case is an unreal one, with the possible
implication that there was a misuse of the right of seising the Court, there
is no obvious reason why a decision should be delayed unless from force of
habit or routine.
In the Judgment of 21 December 1962 in the South West Africa cases, (I.C.J.
Reports 1962, p. 328), the Court, before examining the preliminary
objections to jurisdiction and admissibility raised by the Respondent,
itself raised proprio motu the problem of the existence of a genuine dispute
between the Applicants and the Respondent (see also the opinion of Judge
Morelli on this point, I.C.J. Reports 1962, pp. 564-568).
5. The facts of the case leave no room for doubt, in my opinion, that there
was no dispute even at the time of the filing of the Application.
In the series of diplomatic Notes addressed to the French Government by the
Australian Government between 1963 and the end of 1972 (Application, pp.
34-48), at no time was the argument of the unlawfulness of the French tests
advanced to justify a claim for cessation of such tests, based on rules of
international law opposable to the French Government. The form of protests
used expresses "regrets" that the French Government should carry out such
tests, and mention is made of the "deep concern" aroused among the peoples
of the area (Application, pp. 42, 44 and 46). So little was it thought on
the Australian side that there was a rule which could be invoked against
France's tests that it is said that the Government of Australia would like
"to see universally applied and accepted" the 1963 test ban treaty (Note of
2 April 1970, Application, p. 44; in the same terms exactly, Note of 20
April 1971, Application, p. 46, and Note of 29 March 1972, Application, p.
48). There is no question of unlawfulness, nor of injury caused by the tests
and international responsibility, but merely of opposition in principle to
all nuclear tests by all States, with complete consistency up to the Note of
3 January 1973, in which for the first time the Australian Government
invites the French Government "to refrain from any further . . . tests",
which it regards as unlawful (Application, Ann. 9, p. 51); this, then, was
the Note which, by a complete change of attitude, paved the way to the
lawsuit.
The reason for the change was given by the Australian Government in
paragraph 14 of its Application:
"In its Note [of 3 January 1973], the Australian Government indicated
explicitly that in its view the French tests were unlawful and unless the
French Government could give full assurances that no further tests would be
carried out, the only course open to the Australian Government would be the
pursuit of appropriate interna-[p 280]tional legal remedies. In thus
expressing more forcefully the point of view previously expounded on behalf
of Australia, the Government was reflecting very directly the conviction of
the Australian people who had shortly before elected a Labour
Administration, pledged to a platform which contained the following
statement: 'Labour opposes the development, proliferation, possession and
use of nuclear, chemical and bacteriological weapons'." (Application, pp.
8-10.)
In the succeeding paragraph 15 the following will also be noticed: "The
Government of Australia claimed [in its Notes of 3 January and 7 February
1973] that the continuance of testing by France is illegal and called for
the cessation of tests."
6. Thus the basis of the discussion is no longer the same; it is "claimed"
that the tests are unlawful, and France is "invited" to stop them because
the Labour Party is opposed to the development, possession and use of
nuclear weapons, and the Government is bound by its electoral programme.
This reason, the change of government, is totally irrelevant; a State
remains bound by its conduct in international relations, whatever electoral
promises may have been made. If for ten years Australian governments have
treated tests in the Pacific as unwelcome but not unlawful, subject to
certain protests on principle and demonstrations of concern, an electoral
programme is not sufficient argument to do away with this explicit
appreciation of the legal aspects of the situation.
The Applicant, as it happens, perceived in advance that its change of
attitude gave rise to a serious problem, and it endeavoured in the
Application to cover it up by saying that it had done no more than express
"more forcefully the point of view previously expounded on behalf of
Australia". It can easily be shown that the previous viewpoint was totally
different. Apart from the diplomatic Notes of the ten years prior to 1973,
which are decisive, and which show that the Government of Australia did not
invoke any legal grounds to oppose the decision of the French Government to
conduct tests in the South Pacific region, it will be sufficient to recall
that Australia has associated itself with various atmospheric explosions
above or in the vicinity of its own territory, and that by its conduct it
has expressed an unequivocal view on the lawfulness of those tests and those
carried out by other States in the Pacific.
7. The first atmospheric nuclear explosion effected by the United Kingdom
occurred on 3 October 1952 in the Montebello Islands, which are situated
near the north-west coast of Australia. It was the Australian Minister of
Defence who announced that the test had been successful, and the Prime
Minister of Australia described it as "one further proof of the very
important fact that scientific development in the British Commonwealth is
at an extremely high level" (Keesing's Contemporary Archives, 11-18 October
1952, p. 12497). The Prime Minister of the United Kingdom sent a message of
congratulation to the Prime Minister [p 281] of Australia. The Navy and Air
Force and other Australian government departments were associated with the
preparation and execution of the test; three safety-zones were forbidden for
overflight and navigation, on pain of imprisonment and fines.
On 15 October 1953 a further British test was carried out at Woomera in
Australia, with a new forbidden zone of 80,000 square miles. The British
Minister of Supply, addressing the House of Commons on 24 June 1953,
announced the new series of tests, which had been prepared in collaboration
with the Australian Government and with the assistance of the Australian
Navy and Air Force (Keesing's Contemporary Archives 1953, p. 13222).
Two further series of British tests took place in 1956, one in the
Montebello Islands (on 16 May and 19 June), the other at Maralinga in South
Australia (27 September, 4, 11 and 21 October). The acting Prime Minister of
Australia, commenting on fall-out, stated that no danger to health could
arise therefrom. Australian military personnel were present as observers
during the second series of tests (Keesing's Contemporary Archives, 1956, p.
14940). The British Government stated on 7 August 1956 that the Australian
Government had given full co-operation, and that various Australian
government departments had contributed valuable assistance under the
co-ordinating direction of the Australian Minister for Supply. The second
test of this series was observed by that Minister and members of the
Australian Parliament (Keesing's Contemporary Archives, 1956, p. 15248).
The British Prime Minister stated on 7 June 1956:
"Her Majesty's Governments in Australia and New Zealand have agreed to make
available to the task force various forms of aid and ancillary support from
Australian and New Zealand territory. We are most grateful for this."
(Hansard, House of Commons, 1956, Col. 1283.)
8. Active participation in repeated atmospheric tests over several years in
itself constitutes admission that such tests were in accordance with the
rules of international law. In order to show that the present tests are not
lawful, an effort has been made to argue, first, that what is laudable on
the part of some States is execrable on the part of others and, secondly,
that atmospheric tests have become unlawful since the time when Australia
itself was making its contribution to nuclear fall-out.
9. On 3 March 1962, after the Government of the United States had decided to
carry out nuclear tests in the South Pacific, the Australian Minister for
External Affairs said that:
"... the Australian Government ... has already made clear its view that if
the United States should decide it was necessary for the security of the
free world to carry out nuclear tests in the atmosphere, then the United
States must be free to do so" (Application, Ann. 3, p. 36).[p 282]
A few days after this statement, on 16 March 1962, the Australian Government
gave the United States its permission to make use of Christmas Island (where
more than 20 tests were carried out between 24 April and 30 June, while
tests at very high altitude were carried out at Johnston Island from 9 July
to 4 November 1962).
In an aide-memoire of 9 September 1963 the Australian Government likewise
stated:
"Following the signature of the Treaty Banning Nuclear Tests in the
Atmosphere, in Outer Space and Under Water, the Australian Government also
recognizes that the United States must take such precautions as may be
necessary to provide for the possibility that tests could be carried out in
the event, either of a breach of the Treaty, or of some other States
exercising their right to withdraw from the Treaty." (Ibid., p. 38.)
In contrast, five years later, with solely the French and Chinese tests in
mind, the Australian Government wrote:
"On 5 April 1968, in Wellington, New Zealand, the Australia-New
Zealand-United States (ANZUS) Council, included the following statement in
the communique issued after the meeting:
'Noting the continued atmospheric testing of nuclear weapons by Communist
China and France, the Ministers reaffirmed their opposition to all
atmospheric testing of nuclear weapons in disregard of world opinion as
expressed in the Nuclear Test Ban Treaty.' " (Ibid., Ann. 5, p. 42.)
10. On another occasion the Australian Government had already evinced the
same sense of discrimination. In 1954, in the Trusteeship Council, when
certain damage caused the Marshall Islands by the nuclear tests of the
administering authority was under consideration, the Austra-lian delegate
could not go along with the views of any of the delegations who objected to
the tests in principle.
11. It is not unjust to conclude that, in the eyes of the Australian
Government, what should be applauded in the allies who might protect it is
to be frowned upon in others: Quod licet Jovi non licet bovi. It is at the
time when the delegate of the United States has been revealing to the United
Nations that his Government possesses the equivalent of 615,385 times the
original Hiroshima bomb (First Committee, 21 October 1974) that the
Australian Government seeks to require the French Government to give up the
development of atomic weapons.
It remains for me briefly to show how this constant attitude of the
Australian Government, from 1963 to the end of 1972, i.e., up to the change
described in paragraph 5 above, forms a legal bar to the Applicant's
appearing before the Court to claim that, among nuclear tests,[p 283]
certain can be selected to be declared unlawful and they alone prohibited.
Indeed the Court, in June 1973, already had a choice among numerous
impediments on which it might have grounded a finding that the case was
without object. For simplicity's sake let us take the major reason: the
principle of the equality of States.
12. The Applicant's claim to impose a certain national defence policy on
another State is an intervention in that State's internal affairs in a
domain where such intervention is particularly inadmissible. The United
Kingdom Government stated on this point on 2 July 1973 as follows:
"... we are not concerned ... with the question of whether France should or
should not develop her nuclear power. That is a decision entirely for France
..." (Hansard, col. 60).
In The Function of Law in the International Community (Oxford 1933, p. 188)
Mr. (later Sir) Hersch Lauterpacht wrote:
"... it means stretching judicial activity to the breaking-point to entrust
it with the determination of the question whether a dispute is political in
the meaning that it involves the independence, or the vital interests, or
the honour of the State. It is therefore doubtful whether any tribunal
acting judicially can override the assertion of a State that a dispute
affects its security or vital interests. As we have seen, the interests
involved are of a nature so subjective as to exclude the possibility of
applying an objective standard not only in regard to general arbitration
treaties, but also in regard to each individual dispute."
The draft law which the French Government laid before its Parliament in 1929
to enable its accession to the General Act of Geneva of 26 September 1928
has been drawn to the Court's attention; this draft embodied a formal
reservation excluding "disputes connected with claims likely to impair the
organization of the national defence". On 11 July 1929 the rapporteur of the
parliamentary Committee on Foreign Affairs explained that the reservation
was unnecessary
:
"Moreover the very terms in which the expose des motifs presents it show how
unnecessary it is. 'In the absence of contractual provisions arising out of
existing treaties or such treaties as may be concluded at the instigation
of the League of Nations in the sphere of armaments limitation,' says the
text: 'disputes connected with claims likely to impair the organization of
the national defence.' But, precisely because these provisions do not exist,
how could an arbitration tribunal rule upon a conflict of this kind
otherwise than by recognizing that each State is at present wholly free to
organize its own national defence as it thinks fit? Is it imagined that the
action of some praetorian arbitral case-law might oust or at any rate range
[p 284] beyond that of Geneva? That would seem to be a somewhat chimaerical
danger." (Documents parlementaires: Chambre des deputes, 1929, Ann. 1368,
pp. 407 f.; Ann. 2031, p. 1143.)
The expose des motifs of the draft law of accession, lays strong emphasis on
the indispensability of the competence of the Council of the League of
Nations for the "appraisal of the political or moral factors likely to be
relevant to the settlement of certain conflicts not strictly legal in
char-acter", disputes "which are potentially of such political gravity as to
render recourse to the Council indispensable" (ibid., p. 407). Such was the
official position of the French Government upon which the rapporteur of the
Foreign Affairs Committee likewise sheds light here when he stresses the
combination of resort to the Council and judicial settlement (ibid., p.
1142).
13. It is not unreasonable to believe that the present-day world is still
persuaded of the good sense of the observations quoted in the preceding
paragraph (cf. the Luxembourg arrangement of 29 January 1966, between the
member States of the European Economic Community, on "very important
interests"). But there is more than one negative aspect to the want of
object of the Australian claim. The principle of equality before the law is
constantly invoked, reaffirmed and enshrined in the most solemn texts. This
principle would become meaningless if the attitude of "to each his rule"
were to be tolerated in the practice of States and in courts. The proper
approach to this matter has been exemplified in Sir Gerald Fitzmaurice's
special report to the Institute of International Law: "The Future of Public
International Law" (1973, pp. 35-41).
In the present case the Applicant has endeavoured to present to the Court,
as the object of a legal dispute, a request for the prohibition of acts in
which the Applicant has itself engaged, or with which it has associated
itself, while maintaining that such acts were not only lawful but to be
encouraged for the defence of a certain category of States. However, the
Applicant has overlooked part of the statement made by the Prime Minister of
the United Kingdom in the House of Commons on 7 June 1956, when he expressed
his thanks to Australia for its collaboration in the British tests (para. 7
above). The Prime Minister also said:
"Certainly, I do not see any reason why this country should not make
experiments similar to those that have been carried out by both the United
States and Soviet Russia. That is all that we are doing. I have said that we
are prepared to work out systems of limitation. Personally, I think it
desirable and I think it possible." (Hansard, col. 1285.)
On 2 July 1973, the position of the British Government was thus analysed by
the Attorney-General:[p 285]
"... even if France is in breach of an international obligation, that
obligation is not owed substantially to the United Kingdom, and there is no
substantive legal right of the United Kingdom which would seem to be
infringed" (Hansard, col. 99).
And that despite the geographical position in the Pacific of Pitcairn
Island.
The Applicant has disqualified itself by its conduct and may not submit a
claim based on a double standard of conduct and of law. What was good for
Australia along with the United Kingdom and the United States cannot be
unlawful for other States. The Permanent Court of International Justice
applied the principle "allegans contraria non audi-endus est" in the case of
Diversion of Water from the Meuse, Judgment, 1937, P.C.I.J., Series A/B, No.
70, page 25.
14. In the arguments devised in 1973 for the purposes of the present case,
it was also claimed that the difference in the Australian Government's
attitude vis-�-vis the French Government was to be explained by the fact
that, at the time of the explosions with which the Australian Government had
associated itself and which it declared to be intrinsically worthy of
approval, awareness of the danger of fall-out had not yet reached the acute
stage. One has only to read the reports of the United Nations Scientific
Committee on the Effects of Atomic Radiation, a committee set up by the
General Assembly in 1955, to see that such was not the case. While it is
true to say that more abundant and accurate information has become available
over the years, the reports of this committee have constantly recalled
that: "Those [tests of nuclear weapons] carried out before 1963 still
represent by far the largest series of events leading to global radio-active
contamination." (UNSCEAR Report 1972, Chap. I, p. 3.)
As for awareness of particular risks to Australia, the National Radiation
Advisory Committee was set up by the Australian Government in May 1957 for
the purpose of advising on all questions concerning the effects of radiation
on the Australian population. The Court has had cognizance of the reports of
1967 (two reports), 1969, 1971 and 1972; the report of March 1967 indicates
that the previous report dated from 1965, and that it dealt in detail with
the question of fall-out over the Australian environment and the effects
upon man:
"The Committee at that time was satisfied that the proposed French nuclear
weapons tests in the South Pacific Ocean were unlikely to lead to a
significant hazard to the health of the Australian population." (Report to
the Prime Minister, March 1967, para. 3.)
This same form of words is repeated in paragraph 11 of the March 1967
report, in reference to the first series of French tests, which took place
in the period July-October 1966, and also in paragraph 11 of the report for
December 1967, issued following a study of the effects of the second series
[286] of tests (June-July 1967) and taking radiation doses from both series
into account. The report which the Australian NRAC addressed to the Prime
Minister in March 1969 concerned the French tests of July-September 1968 and
repeated in its paragraph 12 the conclusions cited above from paragraph 3 of
the March 1967 report. The Committee's March 1971 report recalls in its
paragraph 3 that fall-out from all the French tests, in 1966, 1967 and 1968,
did not constitute a hazard to the health of the Australian population. The
form of words used in paragraph 12 of that report comes to the traditional
conclusion as to the tests held in 1970. The absence of risk is again
recognized in the report issued by the NRAC in July 1972 (paras. 8, 9 and
11). When, however, the new administration took office in Australia, this
scientific committee was dissolved. On 12 February 1973 the Prime Minister
requested a report of the Australian Academy of Science, the Council of
which appointed a committee to report on the biological effects of fall-out;
the conclusions of this report were considered at a joint meeting with
French scientists in May 1973, shortly before the filing of the Application
instituting proceedings. It appears that the debate over this last-mentioned
report is continuing even between Australian scientists.
15. For the similar experiments of the French Government to be the subject
of a dispute with which the Court can deal, it would at all events be
necessary that what used to be lawful should have become unlawful at a
certain moment in the history of the development of nuclear weapons. What is
needed to remove from the Applicant the disqualification arising out of its
conduct is proof that this change has taken place: what Australia presented
between 1963 and the end of 1972 as a conflict of interests, a clash of
political views on the problems of the preparation, development, possession
and utilization of atomic weapons, i.e., as a challenge to France's
assertion of the right to the independent development of nuclear weapons,
cannot have undergone a change of legal nature solely as a result of the
alteration by a new government of the formal presentation of the contention
previously advanced. It would have to be proved that between the pre-1963
and subsequent explosions the international community effected a passage
from non-law to law.
16. The Court's examination of this point could have taken place as early as
June 1973, because it amounts to no more than the preliminary investigation
of problems entirely separate from the merits, whatever views one may hold
on the sacrosanctity of the distinction between the different phases of the
same proceedings (cf. para. 3 above). The point is that if the Treaty of 5
August 1963 Banning Nuclear Tests in the Atmosphere, in Outer Space and
Under Water is not opposable to France, there is no dispute which Australia
can submit to the Court, and dismissal would not require any consideration
of the contents of the Treaty.
17. The multilateral form given to the Treaty of 5 August 1963 is of course
only one of several elements where the legal analysis of the extent of its
opposability to States not parties to it is concerned. One need only say
that the preparation and drafting of the text, the unequal regime as
[p 287] between the parties for the ratification of amendments, and the
system of supervision have enabled the Treaty to be classified as,
constructively, a bi-polar statute, accepted by a large number of States but
not binding on those remaining outside the Treaty. There is in fact no
necessity to linger on the subject in view of the subsequent conduct of the
States assuming the principal responsibility for the Treaty. None of the
three nuclear Powers described as the "Original Parties" in Article II of
the Treaty has ever informed the other nuclear Powers, not parties thereto,
that this text imposed any obligation whatever upon them; on the contrary,
the three Original Parties, even today, call upon the Powers not parties to
accede to the Treaty. The Soviet delegate to the Disarmament Conference
declared at the opening of the session on 20 February 1974 that the
negotiations for the termination of nuclear tests "required the
participation of all nuclear States". On 21 October 1974, in the First
Committee of the General Assembly, the delegate of the United States said
that one of the aims was to call for the co-operation of States which had
not yet ratified the 1963 Treaty. Statements to the same effect have been
made on behalf of the Government of the United Kingdom; on 2 July 1973 the
Minister of State for Foreign and Commonwealth Affairs stated during a
parliamentary debate:
"As far back as 1960, however, the French and the Chinese declined to
subscribe to any international agreement on testing. They are not bound,
therefore, by the obligations of the test ban treaty of 1963 ...
In 1963 Her Majesty's Government, as well as the United States Government,
urged the French Government to sign the partial test ban treaty.
As initiators and signatories of the treaty, we are seriously concerned at
the continuation of nuclear tests in the atmosphere, and we urge that all
Governments which have not yet done so should adhere to it. This view is
well known to the French and Chinese Govern-ments. It has been stated
publicly by successive Governments." (Hansard, cols. 58 and 59.)
18. The conduct of the Original Parties which laid down the rules of the
present nuclear statute by mutual agreement shows that those nuclear States
which have refused to accede to this statute cannot be considered as
subjected thereto by virtue of a doctrinal construction contrary to the
formally expressed intentions of the sponsors and guardians of the Statute.
The French Government, for its part, has always refused to recognize the
existence of a rule opposable to it, as many statements made by it show.
19. The Treaty which the United States and the Union of Soviet Socialist
Republics signed in Moscow on 3 July 1974, on the limitation of underground
nuclear testing (United Nations, General Assembly Official Records, A/9698,
9 August 1974, Ann. I) contains the following preambular paragraph:[p 288]
"Recalling the determination expressed by the Parties to the 1963 Treaty
Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under
Water in its preamble to seek to achieve the discontinuance of all test
explosions of nuclear weapons for all time, and to continue negotiations to
this end." (Cf. the second preambular paragraph of the 1963 Treaty.)
Like the 1963 Treaty, the Treaty of 1974 embodies the right of each party to
withdraw from the treaty if extraordinary events jeopardize "its supreme
interests".
20. To determine whether a rule of international law applicable to France
did or did not exist was surely an operation on the same level as the
ascertainment of the non-existence of a justiciable dispute. To find that
the Treaty of 1963 cannot be relied on against France requires merely the
determination of a legal fact established by the text and by the consistent
conduct of the authors of the legal statute in question. Similarly, to find
that no custom has come into being which is opposable to those States which
steadfastly declined to accept that statute, when moreover (as we have seen
in the foregoing paragraphs) the existence of such customary rule is
disproved by the positions adopted subsequent to the treaty supposed to give
it expression, would merely be to verify the existence of a source of
obligation.
By not proceeding, as a preliminary, to verification of the existence of any
source of obligation opposable to the French Government, the Court refused
to render justice to a State which, from the very outset, manifested its
categorical opposition to proceedings which it declared to be without object
and which it requested the Court to remove from the list; an action which
the Court was not to take until 20 months had elapsed.
21. The character of the quarrel between the Australian Government, and the
French Government is that of a conflict of political interests concerning a
question, nuclear tests, which is only one inseparable element in the whole
range of the problems to which the existence of nuclear weapons gives rise
and which at present can be approached and settled only by means of
negotiations.
As the Court said in 1963, "it is not the function of a court merely to
provide a basis for political action if no question of actual legal rights
is involved" (Northern Cameroons, I.C.J. Reports 1963, p. 37).
In the absence of any rule which can be opposed to the French Government
for the purpose of obtaining from the Court a declaration prohibiting the
French tests and those alone, the whole case must collapse. I shall
therefore say nothing as to the other grounds on which the claim can be
dismissed at the outset on account of the Applicant's want of standing, such
as the inadmissibility either of an actio popularis or of an action erga
omnes disguised as an action against a single State. The accumulation of
fall-oul is a world-wide problem; it is not merely the last straw which [p
289] breaks the camel's back (cf. the refusal of United States courts to
admit the proceedings brought by Professor Linus Pauling and others who
claimed that American nuclear tests in the Pacific should stopFN1).
---------------------------------------------------------------------------------------------------------------------
FN1 District Court for the District of Columbia, 31 July 1958, 164 Federal
Supplement, p. 390; Court of Appeals, 12 April 1960, 278 Federal Reporter,
Second Series, pp. 252-255.
---------------------------------------------------------------------------------------------------------------------
***
22. I have still certain brief observations to make as to the conduct, from
the very outset, of these proceedings before the Court, in relation to
certain general principles of the regular functioning of international
adjudication, for the conduct of the proceedings gave rise to various
problems, concerning Articles 53 and 54 of the Statute of the Court, whose
existence will not be evident to the reader of the Judgment, given the
adopted grounds of decision.
23. What happened, in sum, was that a misunderstanding arose when the
questions of jurisdiction and admissibility were written into the Order of
22 June 1973 as the prescribed subject-matter of the phase which had been
decided upon "to resolve [them] as soon as possible"; for the separate and
dissenting opinions of June 1973 reveal on the one hand that, for certain
Members of the Court, the problem of the existence of the object of the
dispute should be settled in the new phase, whereas a majority of judges, on
the other hand, had made up their minds to deal in that phase solely with
the questions of the jurisdiction of the Court stricto sensu, and of the
legal interest of the Applicant, and to join all other questions to the
merits, including the question whether the proceedings had any object. At
best, therefore, the jurisdiction/admissibility phase could only result in a
decision on jurisdiction and the legal interest of the Applicant, and if
that decision were positive, all the rest being joined to the merits, the
real decision would have been deferred to an extremely remote phase. A
settlement would therefore have been possible "sooner" if
jurisdiction/admissibility and merits had not been separated. The reason for
this refusal in 1973 to decide on the "preliminary" character of the
question concerning the existence of a justiciable dispute is to be found in
an interpretation of Article 53 consisting of the application to a default
situation of Article 67 of the Rules of Court, governing preliminary
objections in adversary proceedings, the analogy thus provoking a veritable
breach of Article 53 of the Statute.
24. The misunderstanding on the scope of the phase decided on by the Order
of 22 June 1973 was not without effect before the Court: the apparent
contradiction between paragraph 23 and paragraph 35 of the Order enabled the
Applicant to say to the Court, at the hearing of 6 July 1974, that the only
question of admissibility was that of "legal interest", subject to any
indication to the contrary from the Court. That indication was given by the
President on 9 July: "The Court will of course appre-[p 290]ciate the
question of admissibility in all the aspects which it considers relevant."
This process of covert and contradictory allusions, in which the conflicts
of views expressed in the opinions sometimes reappear, is not without its
dangers. This is evident both as regards this Order of 22 June 1973 and as
regards the attempts to make use of paragraphs 33 and 34 of the Judgment in
the Barcelona Traction case without taking account of the existence of
paragraphs inconsistent with these, i.e., paragraphs 89 to 91, which were in
fact intended to qualify and limit the scope of the earlier pronouncement.
That pronouncement was in fact not directly related to the subject of the
judgment, and was inserted as a sort of bench-mark for subsequent use; but
all bench-marks must be observed.
25. Article 53 of the Statute has had the Court's attention from the outset
of the proceedings, i.e., ever since the receipt on 16 May 1973 of a letter
from the French Government declaring its intention not to appear and setting
forth its reasons; but, in my view, it has been wrongly applied. A further
general examination of the interpretation of the rule embodied in Article 53
is required.
To speak of two parties in proceedings in which one has failed to appear,
and has on every occasion re-affirmed that it will not have anything to do
with the proceedings is to refuse to look facts in the face. The fact is
that when voluntary absence is asserted and openly acknowledged there is no
longer more than one party in the proceedings. There is no justification for
the fiction that, so long as the Court has not recognized its lack of
jurisdiction, a State which is absent is nevertheless a party in the
proceedings. The truth of the matter is that, in a case of default, three
distinct interests are affected: that of the Court, that of the applicant
and that of the respondent; the system of wholly ignoring the respondent's
decision not to appear and of depriving it of effect is neither just nor
reasonable. In the present case, by its reasoned refusal to appear the
Respondent has declared that, so far as it is concerned, there are no
proceedings, and this it has repeated each time the Court has consulted it.
Even if the Court refrains for a time from recording that default, the fact
remains that the Respondent has performed an act of default from which
certain legal consequences flow. Moreover, the applicant is entitled under
Article 53 to request immediately that judicial note be taken thereof and
the consequences deduced. That is what the Applicant did, in the present
instance, when it said in 1973 that the Court was under an obligation to
apply its rules of procedure, without indicating which, and to refuse to
take account of views and documents alleged by the Applicant to have been
irregularly presented by the Respondent. And the Court partially accepted
this point of view, in not effecting all communications to the Respondent
which were possible.
The result of not taking account of the Respondent's default has been the
granting of time-limits for pleadings which it was known would not be
forthcoming, in order to maintain theoretical equality between the parties,
whereas in fact the party which appeared was favoured. There was [p 291]
nothing to prevent the Court from fixing a short time-limit for the
presumptive Respondent�one month, for example�the theoretical possibility
being left open of a statement by the State in default during that time, to
the effect that it had changed its mind and requested a normal time-limit
for the production of a Memorial.
26. When it came to receiving or calling in the Agent of the Applicant in
the course of the proceedings in 1973, there was a veritable breach of the
equality of the Parties in so far as some of these actions or approaches
made by the Applicant were unknown to the presumptive Respondent. (On this
point, cf. paras. 31 and 33 below.)
On this question of time-limits the Court has doubtless strayed into paths
already traced, but precedents should not be confused with mandatory rules;
each case has its own particular features and it is mere mechanical justice
which contents itself with reproducing the decisions of previous
proceedings. In the present case the Court was never, as in the Fisheries
Jurisdiction cases, informed of negotiations between the Parties after the
filing of the Application, and the double time-limits accorded did not even
have the justification, which they might have had in the above-mentioned
cases, of enabling progress to be made in such negotiations; and there was
never the slightest doubt, from the outset, on the question of the existence
of a genuine legal dispute.
27. It is not my impression that the authors of Article 53 of the Statute
intended it to be interpreted as if it had no effect of its own. It is not
its purpose to enable proceedings to be continued at leisure without regard
to the positions adopted by the absent respondent; it is true that the
applicant is entitled to see the proceedings continue, but not simply as it
wishes, with the Court reliant on unilateral indications of fact and law;
the text of Article 53 was designed to avoid such an imbalance in favour of
the applicant. When the latter calls upon the Court to decide in favour of
its claim, which the present Applicant did not do explicitly on the basis of
Article 53 but which resulted from its observations and submissions both in
June 1973, at the time of the request for interim measures of protection,
and in the phase which the Judgment brings to a close today, it would be
formalistic to maintain that the absence of any explicit reference to
Article 53 changes the situation. It must needs be realized that the
examination of fact and law provided for in Article 53 has never begun,
since the Court held in 1973 that the consequences of the nonappearance
could be joined to the questions of jurisdiction and admissibility, and
that, in the end, the question of the effects of non-appearance will not
have been dealt with. Thus this case has come and gone as if Article 53 had
no individual significance.
28. If we return to the sources, we note that the rapporteur of the Advisory
Committee of Jurists (PV, p. 590) stated that the Committee had been guided
by the examples of English and American jurisprudence in drafting what was
then Article 52 of the Statute on default. Lord Phillimore, a member of the
Committee, had had inserted the sentence which in large measure has
survived: "The Court must, before [deciding in [p 292] favour of the claim],
satisfy itself that the claim is supported by conclusive evidence and well
founded in fact and law." The words which disappeared in the course of the
consideration of the text by the Assembly of the League of Nations were
regarded as unnecessary and as merely overlapping the effect of the formula
retained. The matter was clarified in only one respect by the Court's 1922
discussion, on account of the personality of the judges who expressed their
views on a draft article proposed for the Rules of Court by Judge Anzilotti:
"If the response to an application is confined to an objection to the
jurisdiction of the Court, or if the State affected fails to reply within
the period fixed by the Court, the latter shall give a special decision on
the question of jurisdiction before proceeding further with the case."
(P.C.I.J., Series D, No. 2, p. 522.)
Judge Huber supported the text. Lord Finlay did not feel that the article
was necessary, because,
"... even if there was no rule on the subject, the Court would always
consider the question of its jurisdiction before proceeding further with the
case. It would have to be decided in each particular case whether the
judgment with regard to the jurisdiction should be delivered separately or
should be included in the final judgment" (ibid., p. 214).
Judge Anzilotti's text was rejected by 7 votes to 5. The general impression
given by the influence English jurisprudence was recognized to possess, and
by the observations first of Lord Phillimore and then of Lord Finlay, is
that the Court intended to apply Article 53 in a spirit of conscientious
verification of all the points submitted by the applicant when the
respondent was absent from the proceedings, and that it would have regard
to the circumstances of each case. As is well known, in the British system
important precautions are taken at a wholly preliminary stage of a case to
make sure that the application stands upon a genuinely legal claim, and the
task of ascertaining whether this is so is sometimes entrusted to judges
other than those who would adjudicate (cf. Sir Gerald Fitzmaurice's opinion
in the Northern Cameroons case (I.C.J. Reports 1963, pp. 106 f.), regarding
"filter" procedures whereby, as "part of the inherent powers or jurisdiction
of the Court as an international tribunal", cases warranting removal can be
eliminated at a preliminary stage).
Between this interpretation and that which the Court has given of Article 53
in the present case, there is all the difference that lies between a
pragmatic concern to hold a genuine balance between the rights of two States
and a procedural formalism that treats the absent State as if it were a
party in adversary proceedings, which it is not, by definition.
***[p 293]
29. On 22 June 1973, before the Court's decision had been read at a public
sitting, a public statement which had been made by the Prime Minister of
Australia on 21 June at Melbourne, and which had been widely reported by the
Australian pressFN1, reached Europe; in it the Prime Minister stated that
the Court had acceded by 8 votes to 6 to Australia's request.
--------------------------------------------------------------------------------------------------------------------
FN1 A Melbourne newspaper printed on 22 June the following article:
"The Prime Minister: We've won N-test case. The Prime Minister (Mr. Whitlam)
said last night that Australia would win its appeal to the International
Court of Justice by a majority of eight votes to six. Mr. Whitlam said he
had been told the Court would make a decision within 22 hours. The Prime
Minister made the prediction while addressing the annual dinner of the
Victorian Law Institute. He said: 'On the matter of the High Court, I am
told a decision will be given in about 22 hours from now. The majority in
our favour is going to be eight to six.' When asked to elaborate on his
comments after the dinner, Mr. Whitlam refused to comment, and said his
remarks were off the record. The dinner was attended by several hundred
members of the Law Institute, including several prominent judges. While
making the prediction that the Court would vote eight to six, Mr. Whitlam
placed his hand over a microphone. The microphone was being monitored by an
ABC reporter."
---------------------------------------------------------------------------------------------------------------------
30. It must first be explained that, whether by inadvertence or for some
other reason, the Court was not aware of that disclosure until after its
decision had been read out at the public sitting of 22 June; it can be
imagined that the Court would otherwise have postponed the reading of the
Order on 22 June. As the aftermath of this incident has only been dealt with
in two communiques, one issued on 8 August 1973 and the other on 26 March
1974, it would be difficult to describe it if the Court had not finally
decided on 13 December 1974 that certain documents would be published in the
volume of Pleadings, Oral Arguments, Documents to be devoted to this
caseFN2. Taking into account certain press items and these public documents
or communiques, I find it necessary to explain why I voted on 21 March 1974
against the Court's decision, by 11 votes to 3, to close its investigations
on the scope and origins of the public disclosure by the Prime Minister of
Australia of the decision of 22 June 1973. The Court's vote was on a
resolution reproduced in the press communique of 26 March 1974.
---------------------------------------------------------------------------------------------------------------------
FN2 Four documents are to be published in this way. Two (see para. 31 below)
have already been communicated to the French Government; the others are
reports to the Court.
---------------------------------------------------------------------------------------------------------------------
It is to be hoped that no-one will dispute the view that, if the head of
government of a State party to a case discloses a decision of the Court
before it is made public, there has been a breach of the prescriptions of
Article 54, paragraph 3, of the Statute: "The deliberations of the Court
shall take place in private and remain secret." At the moment of the
disclosure, on 21 June, the decision was as yet no more than a text which [p
294]had been deliberated and adopted by the Court and was covered by the
rule of secrecy embodied in Article 54. In a letter of 27 June 1973FN1, the
Prime Minister of Australia referred to the explanations furnished on that
same date by a letter from the Co-Agent of AustraliaFN1 and expressed his
regret "at any embarrassment which the Court may have suffered as a result
of my remarks". According to the Co-Agent, the Prime Minister's statement of
21 June had been no more than a speculative comment, inasmuch as a view had
been current among Australian advisers to the effect that the decision could
be in Australia's favour, but by a small majority, while press comment
preceding the Prime Minister's remarks had speculated in some instances that
Australia would win by a narrow margin.
---------------------------------------------------------------------------------------------------------------------
FN1Communicated to the French Government, by decision of the Court, on 29
March 1974.
---------------------------------------------------------------------------------------------------------------------
31. But whatever endeavours may have been made to explain the Prime
Minister's statement, whether at the time or, subsequently, by the Agent and
Co-Agent of Australia on various occasions, the facts speak for themselves.
The enquiry opened at the request of certain Members of the Court on the
very afternoon of 22 June 1973 was closed nine months later without the
Court's having given any precise indication, in its resolution of 21 March
1974, as to the conclusions that might have been reached in consequence. The
only elements so far published, or communicated to the Government which was
constantly regarded by the Court as the Respondent and had therefore the
right to be fully informed, which was by no means the case, are: the
Australian Prime Minister's letter of 27 June 1973 and the Co-Agent's letter
of the same dateFN2; the text of a statement made by the Attorney-General of
Australia on 21-22 June 1973FN2; the communique of 8 August 1973; the reply
by the Prime Minister to a question put in the Australian House of
Representatives on the circumstances in which he had been apprised of the
details of the Court's decision (Australian Hansard, 12 September 1973); a
resolution by which the Court on 24 January 1974 decided to interrogate the
Agent of Australia FN2 (the minutes of these conversations were not
communicated to the Respondent and will not be published); the communique of
26 March 1974 FN3.
---------------------------------------------------------------------------------------------------------------------
FN2 Documents communicated to the French Government with a letter of 29
March 1974.
FN3 A letter of 28 February 1974 from the Agent of Australia to the
Registrar is to be reproduced in the Pleadings, Oral Arguments, Documents
volume; it is connected with the interrogation.
---------------------------------------------------------------------------------------------------------------------
I found it contrary to the interests of the Court, in the case of so grave
an incident, one which lays its 1973 deliberation open to suspicion, to
leave that suspicion intact and not to do what is necessary to remove it. L
will merely observe that the crystal-gazing explanation relied on by the
Prime Minister and the Agent's statements enlarging thereon, with the
attribution of an oracular role to the Australian advisers, brought the
Court no positive enlightenment in its enquiry and should be left to the
sole responsibility of their authors.[p 295]
32. Were it maintained that a head of government did not have to justify to
the Court any statements made out of court and that moreover, even if his
statement was regrettable, the harm was done and could not affect the case
before the Court, L would find these propositions incorrect. The statement
in question concerned a decision of the Court and could lead to a belief
that persons privy to its deliberations had violated their obligation to
keep it secret, with all the consequences that supposition would have
entailed if confirmed.
33. In concluding on 21 March 1974 that it could not pursue the matter
further, and in making this publicly known, the Court stigmatized the
incident and indirectly signified that it could not accept the excuse that
its decisions had been divined, but it recognized that, according to its own
assessment, it was not possible to uncover anything further as to the
origins of the disclosure.
I voted against this declaration and the closure of the enquiry because I
consider that the investigation should have been pursued, that the initial
results were not inconsequential and could be used as a basis for further
enquiry, especially when not all the means of investigation available to
the Court had been made use of (Statute, Arts. 48, 49 and 50). Such was not
the opinion of the Court, which decided to treat its investigations as
belonging to an internal enquiry. My understanding, on the contrary, was
that the incident of the disclosure was an element in the proceedings before
the Court�which is why the absent Respondent was kept partly informed by the
Court, in particular by a letter of 31 January 1974�and that the Court was
fully competent to resolve such an incident by judicial means, using any
procedure it might decide to set up (cf. the Court's decision on "the
competence required to enable [the] functions [of the United Nations] to be
effectively discharged" (I.C.J. Reports 1949, p. 179)). How could one
suppose a priori that pursuit of the enquiry would have been ineffectual
without having attempted to organize such an enquiry? Even if circumstances
suggested that refusals to explain or evasions could be expected, to note
those refusals or evasions would not have been ineffectual and would have
been a form of censure in itself.
34. Symptomatic of the hesitation to get to the bottom of the incident was
the time taken to begin looking into the disclosure: six weeks, from 22 June
to 8 August 1973, were to elapse before the issue of the mildest of
communiques, palliative in effect and not representing the unanimous views
of the Court. For more than six months, all that was produced was a single
paper embodying a documented analysis of the successive press disclosures on
the progress of the proceedings before the Court up to the dramatic public
disclosure of the result and of the Court's vote by the Prime Minister on 21
June in MelbourneFN1. This analysis of facts publicly known demonstrates how
the case was accompanied by a succession of rumours whose disseminators are
known but whose source is not [p 296] unmasked. On 21 March 1974 the
investigation was stopped, and the various paths of enquiry and deduction
opened up by this analysis as also by the second report will not be pursued.
---------------------------------------------------------------------------------------------------------------------
FN1 This is one of the documents which the Court, on 13 December 1974,
decided to publish in the Pleadings, Oral Arguments, Documents volume.
---------------------------------------------------------------------------------------------------------------------
I consider that the indications and admissions that had already come to
light opened the path of enquiry instead of closing it. A succession of
mistakes, forgettings, tolerations, failures to react against uncalled-for
overtures or actions, each one of which taken in isolation could have been
considered devoid of particular significance, but which assume such
significance by their accumulation and impunity; unwise conversations at
improper moments, of which no minutes exist: all this combines to create a
sense of vagueness and embarrassment, as if a refusal to acknowledge and
seek to unravel the facts could efface their reality, as if a saddened
silence were the only remedy and the sole solution.
35. The harm was done, and has been noted (report of the Court to the United
Nations 1973-1974, para. 23; debate in the Sixth Committee of the General
Assembly, 1 October 1974, A/C.6/SR.1466, p. 6; parliamentary answers by the
French Minister for Foreign Affairs on 26 January 1974, Journal Officiel No.
7980, and 20 July 1974, Journal Officiel No. 11260). Even if it is not, at
the present moment, possible to discover more concerning the origin and
development of the process of disclosure, as the Court has stated in its
resolution of 21 March 1974, I remain convinced that a judicially conducted
enquiry could have elucidated the channels followed by the multiple
disclosures noted in this case, the continuity and accuracy of which suggest
that the truth of the matter was not beyond the Court's reach. Such is the
meaning of my refusal of the resolution of 21 March 1974 terminating an
investigation which was begun with reluctance, conducted without persistence
and concluded without reason.
***
36. Among the lessons to be learned from this case, in which a conflict of
political interests has been clothed in the form of a legal dispute, I would
point to one which I feel to merit special attention. Before these
proceedings were instituted, the General Act, ever since 1939, had been
dwelling in a kind of chiaroscuro, formally in force if one took account
only of express denunciation, but somewhat dormant:
"So far as the General Act is concerned, there prevails, if truth be told, a
climate of indifference or obliviousness which casts some doubt on its
continuance in force, at least where the Act of 1928 is concerned." (H.
Rolin, L'arbitrage obligatoire: une panacee illusoire, 1959, p. 259.)
After the General Act had, with great elaboration, been presented to the
Court as a wide-open basis of possible jurisdiction, the behaviour of the
States formally considered as parties thereto is noteworthy. The French
Government was the first to denounce the General Act, on 2 January 1974,
then on 6 February 1974 the Government of the United [p 297] Kingdom did
likewise. The Government of India, since June 1973, has informed the Court
and the United Nations of its opinion as to the General Act's having lapsed
(see also the new declaration by which India, on 15 September 1974, accepted
the jurisdiction of the Court under Article 36, paragraph 2, of the
Statute). Thus we see that States with substantial experience of
international adjudication and arbitration have only to note that there is
some possibility of the General Act's being actually applied, instead of
declarations less unreservedly accepting the jurisdiction of the Court, to
announce either (in two cases) that they are officially putting an end to it
or (in the other) that they consider it to have lapsed. The cause of
international adjudication has not been furthered by an attempt to impose
the Court's jurisdiction, apparently for a formal reason, on States in whose
eyes the General Act was, quite clearly, no longer a true yardstick of their
acceptance of international jurisdiction.
Mr. Charles De Visscher had already shown that courts should take care not
to substitute doctrinal and systematized views for the indispensable
examination of the intentions of States. This is how he defined the
obligation upon the international judge to exercise reserve:
"The man of law, naturally enough, tends to misunderstand the nature both of
political tensions and of the conflicts they engender. He is inclined to see
in them only 'the object of a dispute', to enclose within the terms of legal
dialectic something which is pre-eminently refractory to reasoning, to
reduce to order something wholly consisting of unbridled dynamism, in a
word, to try to depoliticize something which is political of its essence.
Here it is not merely a question, as is all too often repeated, of a
deficiency in the mechanism of law-transformation, or of gaps in the legal
regulation of things. We are dealing with a sphere into which, a priori, it
is only exceptionally that law penetrates. Law can only intervene in the
presence of elements it can assimilate, i.e., facts or imperatives
possessing a regularity and at least minimum correspondence with a given
social order that enable them to be subjected to reasoned analysis,
classified within some known category, and reduced to an objective
value-judgment capable of serving in its turn as a basis for the application
of established norms." (Theories et realites en droit international public,
1970, p. 96.)
There is a certain tendency to submit essentially political conflicts to
adjudication in the attempt to open a little door to judicial legislation
and, if this tendency were to persist, it would result in the institution,
on the international plane, of government by judges; such a notion is so
opposed to the realities of the present international community that it
would undermine the very foundations of jurisdiction.
(Signed) A. Gros
[p 298]
Separate opinion of judge Petren
[Translation ]
If I have been able to vote for the Judgment, it is because its operative
paragraph finds that the claim is without object and that the Court is not
called upon to give a decision thereon. As my examination of the case has
led me to the same conclusion, but on grounds which do not coincide with the
reasoning of the Judgment, I append this separate opinion.
The case which the Judgment brings to an end has not advanced beyond the
preliminary stage in which the questions of the jurisdiction of the Court
and the admissibility of the Application fall to be resolved. Australia's
request for the indication of interim measures of protection could not have
had the consequence of suspending the Court's obligation to consider the
preliminary questions of jurisdiction and admissibility as soon as possible.
On the contrary, that request having been granted, it was particularly
urgent that the Court should decide whether it had been validly seised of
the case. Any delay in that respect meant the prolongation, embarrassing to
the Court and to the Parties, of uncertainty concerning the fulfilment of
an absolute condition for the justification of any indication of interim
measures of protection.
In this situation, it was highly imperative that the provisions of the Rules
of Court which were revised not so long ago for the purpose of accelerating
proceedings should be strictly applied. Only recently, moreover, on 22
November 1974, the General Assembly of the United Nations adopted, on the
item concerning a review of the Court's role, resolution 3232 (XXIX), of
which one preambular paragraph recalls how the Court has amended its Rules
in order to facilitate recourse to it for the judicial settlement of
disputes, inter alia, by reducing the likelihood of delays. Among the
reasons put forward by the Court itself to justify revision of the Rules,
there was the necessity of adapting its procedure to the pace of world
events (I.C.J. Yearbook 1967-1968, p. 87). Now if ever, in this atomic age,
there was a case which demanded to be settled in accordance with the pace of
world events, it is this one. The Court nevertheless, in its Order of 22
June 1973 FN1 indicating interim measures of protection, deferred the
continuance of its examination of the questions [p 299] of jurisdiction and
admissibility, concerning which it held, in one of the consideranda to the
Order, that it was necessary to resolve them as soon as possible.
--------------------------------------------------------------------------------------------------------------------
FN1 Having voted against the resolution whereby the Court, on 24 March 1974,
decided to close the enquiry into the premature disclosure of its decision,
as also of the voting-figures, before the Order of 22 June 1973 was read at
a public sitting, I wish to state my opinion that the enquiry referred to
was one of a judicial character and that its continuance on the bases
already acquired should have enabled the Court to get closer to the truth. I
did not agree with the decision whereby the Court excluded from
publication, in the volume of Pleadings, Oral Arguments, Documents to be
devoted to the case, certain documents which to my mind are important for
the comprehension of the incident and the search for its origins.
---------------------------------------------------------------------------------------------------------------------
Despite the firmness of this finding, made in June 1973, it is very nearly
1975 and the preliminary questions referred to have remained unresolved.
Having voted against the Order of 22 June 1973 because I considered that the
questions of jurisdiction and admissibility could and should have been
resolved without postponement to a later session, I have a fortiori been
opposed to the delays which have characterized the continuance of the
proceedings and the upshot of which is that the Court has concluded that
Australia's Application is without object now. I must here recall the
circumstances in which certain time-limits were fixed, because it is in the
light of those circumstances that I have had to take up my position on the
suggestion that consideration of the admissibility of the Application should
be deferred until some later date.
When, in the Order of 22 June 1973, the Court invited the Parties to produce
written pleadings on the questions of its jurisdiction and the admissibility
of the Application, it fixed 21 September 1973 as the time-limit for the
filing of the Australian Government's Memorial and 21 December 1973 as the
time-limit for the filing of a Counter-Memorial by the French Government.
This decision was preceded by a conversation between the Acting President
and the Agent of Australia, who stated that he could agree to a three-month
time-limit for his own Government's pleading. No contact was sought with the
French Government at that same time. No reference is to be found in the
Order to the application of Article 40 of the Rules of Court or,
consequently, to the consultation which had taken place with the Agent of
Australia. After the Order had been made, the Co-Agent of Australia, on 25
June 1973, informed the Acting President that his Government felt it would
require something in the nature of a three-month extension of time-limit on
account of a new element which was bound to have important consequences,
namely that the Memorial would now have to deal not only with jurisdiction
but also with admissibility. Although the Court remained in session until 13
July 1973, this information was not conveyed to it. On 10 August 1973 the
Co-Agent was received by the President and formally requested on behalf of
his Government that the time-limit be extended to 21 December 1973, on the
ground that questions of admissibility had not been foreseen when the Agent
had originally been asked to indicate how much time he would require for the
presentation of a Memorial on jurisdiction. Following this conversation the
Co-Agent, by a letter of 13 August, requested that the time-limit should be
extended to 23 November. Contrary to what had been done in June with regard
to the fixing of the original time-limits, the French Government was invited
to make known its opinion. Its reply was that, having denied the Court's
jurisdiction in the case, it was unable to express any opinion. After he had
consulted his colleagues by correspondence on the subject of the time-limits
and a majority had expressed a favourable view, the President, by an Order
of 28 August,
[p 300] extended the time-limit for the filing of the Australian
Government's Memorial to 23 November 1973 and the time-limit for the filing
of a Counter-Memorial by the French Government to 19 April 1974.
The circumstances in which the written proceedings on the preliminary
questions were thus prolonged until 19 April 1974 warrant several
observations. In the first place, it would have been more in conformity
with the Statute and the Rules of Court not to have consulted the Australian
Government until after the Order of 22 June 1973 had been made and to
proceed at the same time to consult the French Government. Let us suppose
that this new procedure were to be put into general practice and it became
normal, before the Court's decision on a preliminary phase, to consult the
Agents of the Parties regarding the time-limits for the next phase: any
Agent who happened not to be consulted on a particular occasion would not
require supernatural perspicacity to realize that this case was not going to
continue.
To return to the present case, there is every reason to think that the
French Government, if it had been consulted immediately after the making of
the Order of 22 June 1973, would have given the same reply as it did two
months later. It would then have been clear at once that the French
Government had no intention of participating in the written proceedings and
that there would be no necessity to allocate it a three-month period for the
production of a Counter-Memorial. In that way the case could have been ready
for hearing by the end of the summer of 1973, which would have enabled the
Court to give its judgment before that year was out. After having deprived
itself of the possibility of holding the oral proceedings during the autumn
of 1973, the Court found itself faced with a request for the extension of
the time-limit for the filing of the Memorial. It is to be regretted that
this request, announced three days after the reading of the Order of 22 June
1973, was not drawn to the Court's attention while it was yet sitting, which
would have enabled it to hold a regular deliberation on the question of
extension. As it happened, the Order of 28 August not only extended the
time-limit fixed for the filing of the Memorial of the Australian Government
but also accompanied this time-limit with a complementary time-limit of five
months for the filing of a Counter-Memorial which the French Government had
no intention of presenting. Those five months merely prolonged the period
during which the Australian Government was able to prepare for the oral
proceedings, which was another unjustified favour accorded to that
Government.
But that is not all: the Order of 28 August 1973 also had the result of
reversing the order in which the present case and the Fisheries Jurisdiction
cases should have become ready for hearing. In the latter cases, the Court,
after having indicated interim measures of protection by Orders of 17 August
1972, had found, by its Judgments of 2 February 1973, that it possessed
jurisdiction and, by Orders of 15 February 1973, had fixed the time-limits
for the filing of Memorials and Counter-Memorials at 1 August 1973 and 15
January 1974 respectively. If the Order of 28 [p 301] August 1973 extending
the time-limits in the present case had not inter-vened, this case would
have been ready for hearing on 22 December 1973, i.e., before the Fisheries
Jurisdiction cases, and would have had priority over them by virtue of
Article 50, paragraph 1, of the 1972 Rules of Court and Article 46,
paragraph 1, of the 1946 Rules of Court which were still applicable to the
Fisheries Jurisdiction cases. After the Order of 28 August 1973 had
prolonged the written proceedings in the present case until 19 April 1974,
it was the Fisheries Jurisdiction cases which became entitled to priority on
the basis of the above-mentioned provisions of the Rules of Court in either
of their versions. However, the Court could have decided to restore the
previous order of priority, a decision which Article 50, paragraph 2, of the
1972 Rules, and Article 46, paragraph 2, of the 1946 Rules, enabled it to
take in special circumstances. The unnecessary character of the time-limit
fixed for the filing of a Counter-Memorial by the French Government was in
itself a special circumstance, but there were others even more weighty. In
the Fisheries Jurisdiction cases, there was no longer any uncertainty
concerning the justification for the indication of interim measures of
protection, inasmuch as the Court had found that it possessed jurisdiction,
whereas in the present case this uncertainty had persisted for many months.
Yet France had requested the removal of the case from the list and,
supposing that attitude were justified, had an interest in seeing the
proceedings brought to an end and, with them, the numerous criticisms
levelled at it for not applying interim measures presumed to have been
indicated by a Court possessing jurisdiction. Moreover, as France might
during the summer of 1974 be carrying out a new series of atmospheric
nuclear tests, Australia possessed its own interest in having the Court's
jurisdiction confirmed before then, inasmuch as that would have conferred
greater authority on the indication of interim measures.
For all those reasons, the Court could have been expected to decide to take
the present case before the Fisheries Jurisdiction cases. Nevertheless, on
12 March 1974, a proposal in that sense was rejected by 6 votes to 2, with 6
abstentions. In that way the Court deprived itself of the possibility of
delivering a judgment in the present case before the end of the critical
period of 1974.
The proceedings having been drawn out until the end of 1974 by this series
of delays, the Court has now found that Australia's Application is without
object and that it is therefore not called upon to give a decision thereon.
It is not possible to take up any position vis-�-vis this Judgment without
being clear as to what it signifies in relation to the preliminary
questions which, under the terms of the Order of 22 June 1973, were to be
considered by the Court in the present phase of the proceedings, namely the
jurisdiction of the Court to entertain the dispute and the admissibility of
the Application. As the Court has had frequent occasion to state, these are
questions between which it is not easy to distinguish. The ad-[p
302]missibility of the Application may even be regarded as a precondition of
the Court's jurisdiction. In Article 8 of Resolution concerning the Internal
Judicial Practice of the Court, competence and admissibility are placed side
by side as conditions to be satisfied before the Court may undertake the
consideration of the merits. It is on that basis that the Order of 22 June
1973 was drawn up. It emerges from its consideranda that the aspects of
competence which are to be examined include, on the one hand, the effects of
the reservation concerning activities connected with national defence which
France inserted when it renewed in 1966 its acceptance of the Court's
jurisdiction and, on the other hand, the relations subsisting between France
and Australia by virtue of the General Act of 1928 for the Pacific
Settlement of International Disputes, supposing that instrument to be still
in force. However, the Order is not so precise regarding the aspects of the
question of the admissibility of the Application which are to be explored.
On the contrary, it specifies none, and it is therefore by a wholly general
enquiry that the Court has to determine whether it was validly seised of the
case. One of the very first prerequisites is that the dispute should concern
a matter governed by international law. If this were not the case, the
dispute would have no object falling within the domain of the Court's
jurisdiction, inasmuch as the Court is only competent to deal with disputes
in international law.
The Judgment alludes in paragraph 24 to the jurisdiction of the Court as
viewed therein, i.e., as limited to problems related to the jurisdictional
provisions of the Statute of the Court and of the General Act of 1928. In
the words of the first sentence of that paragraph, "the Court has first to
examine a question which it finds to be essentially preliminary, namely the
existence of a dispute, for, whether or not the Court has jurisdiction in
the present case, the resolution of that question could exert a decisive
influence on the continuation of the proceedings". In other words, the
Judgment, which makes no further reference to the question of jurisdiction,
indicates that the Court did not find that there was any necessity to
consider or resolve it. Neither�though this it does not make so plain� does
it deal with the question of admissibility.
For my part, I do not believe that it is possible thus to set aside
consideration of all the preliminary questions indicated in the Order of 22
June 1973. More particularly, the Court ought in my view to have formed an
opinion from the outset as to the true character of the dispute which was
the subject of the Application; if the Court had found that the dispute did
not concern a point of international law, it was for that absolutely
primordial reason that it should have removed the case from its list, and
not because the non-existence of the subject of the dispute was ascertained
after many months of proceedings.
It is from that angle that I believe I should consider the question of the
admissibility of Australia's Application. It is still my view that, as I
said in the dissenting opinion which I appended to the Order of 22 June
1973, what is first and foremost necessary is to ask oneself whether
atmospheric tests of nuclear weapons are, generally speaking, governed by
norms of
[p 303] international law, or whether they belong to a highly political
domain where the international norms of legality or illegality are still at
the gestation stage. It is quite true that disputes concerning the
interpretation or application of rules of international law may possess
great political importance without thereby losing their inherent character
of being legal disputes. It is nonetheless necessary to distinguish between
disputes revolving on norms of international law and tensions between States
caused by measures taken in a domain not yet governed by international law.
In that connection, I feel it may be useful to recall what has happened in
the domain of human rights. In the relatively recent past, it was generally
considered that the treatment given by a State to its own subjects did not
come within the purview of international law. Even the most outrageous
violations of human rights committed by a State towards its own nationals
could not have formed the subject of an application by another State to an
international judicial organ. Any such application would have been declared
inadmissible and could not have given rise to any consideration of the truth
of the facts alleged by the applicant State. Such would have been the
situation even in relations between States having accepted without
reservation the optional clause of Article 36 of the Statute of the
Permanent Court of International Justice. The mere discovery that the case
concerned a matter not governed by international law would have been
sufficient to prevent the Permanent Court from adjudicating upon the claim.
To use the terminology of the present proceedings, that would have been a
question concerning the admissibility of the application and not the
jurisdiction of the Court. It is only an evolution subsequent to the Second
World War which has made the duty of States to respect the human rights of
all, including their own nationals, an obligation under international law
towards all States members of the international community. The Court
alluded to this in its Judgment in the case concerning the Barcelona
Traction, Light and Power Company, Limited (I.C.J. Reports �970, p. 32). It
is certainly to be regretted that this universal recognition of human rights
should not, up to now, have been accompanied by a corresponding evolution in
the jurisdiction of international judicial organs. For want of a watertight
system of appropriate jurisdictional clauses, too many international
disputes involving the protection of human rights cannot be brought to
international adjudication. This the Court also recalled in the
above-mentioned Judgment (ibid., p. 47), thus somewhat reducing the impact
of its reference to human rights and thereby leaving the impression of a
self-contradiction which has not escaped the attention of writers.
We can see a similar evolution taking place today in an allied field, that
of the protection of the environment. Atmospheric nuclear tests, envisaged
as the bearers of a particularly serious risk of environmental pollution,
are a source of acute anxiety for present-day mankind, and it is only
natural that efforts should be made on the international plane to erect
legal barriers against that kind of test. In the present case, the ques-[p
304] tion is whether such barriers existed at the time of the filing of the
Australian Application. That Application cannot be considered admissible if,
at the moment when it was filed, international law had not reached the stage
of applicability to the atmospheric testing of nuclear weapons. It has been
argued that it is sufficient for two parties to be in dispute over a right
for an application from one of them on that subject to be admissible. Such
would be the situation in the present case, but to my mind the question of
the admissibility of an application cannot be reduced to the observance of
so simple a formula. It is still necessary that the right claimed by the
applicant party should belong to a domain governed by international law. In
the present case, the Application is based upon an allegation that France's
nuclear tests in the Pacific have given rise to radio-active fall-out on the
territory of Australia. The Australian Government considers that its
sovereignty has thereby been infringed in a manner contrary to
international law. As there is no treaty link between Australia and France
in the matter of nuclear tests, the Application presupposes the existence of
a rule of customary international law whereby States are prohibited from
causing, through atmospheric nuclear tests, the deposit of radio-active
fall-out on the territory of other States. It is therefore the existence or
non-existence of such a customary rule which has to be determined.
It was suggested in the course of the proceedings that the question of the
admissibility of the Application was not of an exclusively preliminary
character and that consideration of it could be deferred until the
examination of the merits. This raises a question regarding the application
of Article 67 of the 1972 Rules of Court. The main motive for the revision
of the provisions of the Rules which are now to be found in that Article was
to avoid the situation in which the Court, having reserved its position
with regard to a preliminary question, orders lengthy proceedings on the
substantive aspects of a case only to find at the end that the answer to
that preliminary question has rendered such proceedings superfluous. It is
true that Article 67 refers only to preliminary objections put forward by
the respondent, but it is obvious that the spirit of that Article ought also
to apply to the consideration of any questions touching the admissibility
of an application which the Court is to resolve ex officio. It is also
plainly incumbent upon the Court, under Article 53 of the Statute, to take
special care to see that the provisions of Article 67 of the Rules are
observed when the respondent is absent from the proceedings.
In sum, the Court, for the first time, has had occasion to apply the
provision of its revised Rules which replaced the former provisions enabling
preliminary objections to be joined to the merits. One may ask where the
real difference between the new rule and the old lies. For my part, I
consider that the new rule, like the old, bestows upon the Court a
discretionary power to decide whether, in the initial stage of a case, such
and such a preliminary question ought to be settled before anything else. In
exercising this discretionary power the Court ought, in my view, to assess
the degree of complexity of the preliminary question in relation to [p 305]
the whole of the questions going to the merits. If the preliminary question
is relatively simple, whereas consideration of the merits would give rise to
lengthy and complicated proceedings, the Court should settle the
preliminary question at once. That is what the spirit in which the new
Article 67 of the Rules was drafted requires. These considerations appear to
me to be applicable to the present case.
The Court would have done itself the greatest harm if, without resolving the
question of admissibility, it had ordered the commencement of proceedings
on the merits in all their aspects, proceedings which would necessarily have
been lengthy and complicated if only because of the scientific and medical
problems involved. It should be recalled that, in the preliminary stage from
which they have not emerged, the proceedings had already been subjected to
considerable delays, which left the Australian Government ample time to
prepare its written pleadings and oral arguments on all aspects of
admissibility. How, in those circumstances, could the consideration of the
question have been postponed to some later date?
As is clear from the foregoing, the admissibility of the Application
depends, in my view, on the existence of a rule of customary international
law which prohibits States from carrying out atmospheric tests of nuclear
weapons giving rise to radio-active fall-out on the territory of other
States. Now it is common knowledge, and is admitted by the Australian
Government itself, that any nuclear explosion in the atmosphere gives rise
to radio-active fall-out over the whole of the hemisphere where it takes
place. Australia, therefore, is only one of many States on whose territory
France's atmospheric nuclear tests, and likewise those of other States, have
given rise to the deposit of radio-active fall-out. Since the Second World
War, certain States have conducted atmospheric nuclear tests for the purpose
of enabling them to pass from the atomic to the thermo-nuclear stage in the
field of armaments. The conduct of these States proves that their
Governments have not been of the opinion that customary international law
forbade atmospheric nuclear tests. What is more, the Treaty of 1963 whereby
the first three States to have acquired nuclear weapons mutually banned
themselves from carrying out further atmospheric tests can be denounced. By
the provision in that sense the signatories of the Treaty showed that they
were still of the opinion that customary international law did not prohibit
atmospheric nuclear tests.
To ascertain whether a customary rule to that effect might have come into
being, it would appear more important to learn what attitude is taken up by
States which have not yet carried out the tests necessary for reaching the
nuclear stage. For such States the prohibition of atmospheric nuclear tests
could signify the division of the international community into two groups:
States possessing nuclear weapons and States not possessing them. If a
State which does not possess nuclear arms refrains from carrying out the
atmospheric tests which would enable it to acquire them and if that
abstention is motivated not by political or economic considerations but by a
conviction that such tests are prohibited by [p 306] customary international
law, the attitude of that State would constitute an element in the formation
of such a custom. But where can one find proof that a sufficient number of
States, economically and technically capable of manufacturing nuclear
weapons, refrain from carrying out atmospheric nuclear tests because they
consider that customary international law forbids them to do so? The
example recently given by China when it exploded a very powerful bomb in the
atmosphere is sufficient to demolish the contention that there exists at
present a rule of customary international law prohibiting atmospheric
nuclear tests. It would be unrealistic to close one's eyes to the attitude,
in that respect, of the State with the largest population in the world.
To complete this brief outline, one may ask what has been the attitude of
the numerous States on whose territory radio-active fall-out from the
atmospheric tests of the nuclear Powers has been deposited and continues to
be desposited. Have they, generally speaking, protested to these Powers,
pointing out that their tests were in breach of customary international law?
I do not observe that such has been the case. The resolutions passed in the
General Assembly of the United Nations cannot be regarded as equivalent to
legal protests made by one State to another and concerning concrete
instances. They indicate the existence of a strong current of opinion in
favour of proscribing atmospheric nuclear tests. That is a political task of
the highest urgency, but it is one which remains to be accomplished. Thus
the claim submitted to the Court by Australia belongs to the political
domain and is situated outside the framework of international law as it
exists today.
I consider, consequently, that the Application of Australia was, from the
very institution of proceedings, devoid of any object on which the Court
could give a decision, whereas the Judgment finds only that such an object
is lacking now. I concur with the Judgment so far as the outcome to be
given the proceedings is concerned, i.e., that the Court is not called upon
to give a decision, but that does not enable me to associate myself with the
grounds on which the Judgment is based. The fact that I have nevertheless
voted for it is explained by the following considerations.
The method whereby the judgments of the Court are traditionally drafted
implies that a judge can vote for a judgment if he is in agreement with the
essential content of the operative part, and that he can do so even if he
does not accept the grounds advanced, a fact which he normally makes known
by a separate opinion. It is true that this method of ordering the matter
is open to criticism, more particularly because it does not rule out the
adoption of judgments whose reasoning is not accepted by the majority of the
judges voting in favour of them, but such is the practice of the Court.
According to this practice, the reasoning, which represents the fruit of
the first and second readings in which all the judges participate, precedes
the operative part and can no longer be changed at the moment when the vote
is taken at the end of the second reading. This vote concerns solely the
operative part and is not followed by the indi-[p 307]cation of the reasons
upheld by each judge. In such circumstances, a judge who disapproves of the
reasoning of the judgment but is in favour of the outcome achieved by the
operative clause feels himself obliged, in the interests of justice, to vote
for the judgment, because if he voted the other way he might frustrate the
correct disposition of the case. The present phase of the proceedings in
this case was in reality dominated by the question whether the Court could
continue to deal with the case. On that absolutely essential point I reached
the same conclusion as the Judgment, even if my grounds for doing so were
different.
I have therefore been obliged to vote for the Judgment, even though I do not
subscribe to any of its grounds. Had I voted otherwise I would have run the
risk of contributing to the creation of a situation which would have been
strange indeed for a Court whose jurisdiction is voluntary, a situation in
which the merits of a case would have been considered even though the
majority of the judges considered that they ought not to be. It is precisely
that kind of situation which Article 8 of the Resolution concerning the
Internal Judicial Practice of the Court is designed to avoid.
I have still to explain my position with regard to the question of the
Court's jurisdiction, in the sense given to that term by the Order of 22
June 1973. As the Judgment expressly states, this many-faceted question is
not examined therein. That being so, and as I personally do not feel any
need to examine it in order to conclude in favour of the disposition of the
case for which I have voted, I think that there is no place in this separate
opinion for any account of the ideas I have formed on the subject. A
separate opinion, as I conceive it, ought not to broach any questions not
dealt with by the judgment, unless it is absolutely necessary to do so in
order to explain the author's vote. I have therefore resisted the temptation
to engage in an exchange of views on jurisdiction with those of my
colleagues who have gone into this question in their dissenting opinions. A
debate between judges on matters not dealt with in the judgment is not
likely to add up to anything more than a series of unrelated monologues�or
choruses. For whatever purpose it may serve, however, I must stress that my
silence on the subject does not signify consent to the proposition that the
Court had jurisdiction.
(Signed) Sture Petren.
[p 308]
Separate Opinion of Judge Ignacio-Pinto
[Translation ]
I concur in the Judgment delivered by the Court in the second phase of this
case, but without entirely sharing the grounds on which it has relied to
reach the conclusion that the Australian claim "no longer has any object".
Before explaining on what points my reasoning differs from that of the
Court, I must refer to the Order of 22 June 1973, by which the Court, after
having acceded to Australia's request for the indication of interim measures
of protection, decided that the proceedings would next be con-cerned with
the questions of jurisdiction and admissibility. The Court having thus
defined the character which the present phase of the proceedings was to
possess, I find myself, much to my regret, impelled not to criticize the
Court's Judgment, but to present the following observations in order
unequivocally to substantiate my separate opinion in the matter.
First I wish to confirm my view, already set forth in the dissenting opinion
which I appended to the above-mentioned Order of 22 June 1973, that,
considering the all too markedly political character of this case,
Australia's request for the indication of interim measures of protection
ought to have been rejected as ill founded. Now that we have come to the end
of these proceedings and before going any further, I think it useful to
recall certain statements emanating from the competent authorities of the
Australian Government which give the plainest possible illustration of the
political character of this case.
I would first draw attention to the statement made by the Prime Minister and
Minister for Foreign Affairs of Australia in a Note of 13 February 1973 to
the Minister for Foreign Affairs of the French Government (Application, Ann.
11, p. 62):
"In my discussion with your Ambassador on 8 February 1973, I referred to the
strength of public opinion in Australia about the effects of French tests in
the Pacific. I explained that the strength of public opinion was such that,
whichever political party was in office, it would be under great pressure to
take action. The Australian public would consider it intolerable if the
nuclear tests proceeded during discussions to which the Australian
Government had agreed." (Emphasis added.)
Secondly I wish to recall what the Solicitor-General of Australia said at
the hearing which the Court held on 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 [p 309]Court will make
upon this application. Governments and people all 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." (Emphasis added.)
It appears therefore, taking into account my appreciation of the political
character of the claim, that it was from the beginning that, basing myself
on this point, I had considered the claim of Australia to be without object.
That said, I now pass to the observations for which my appraisal of the
Court's Judgment calls, together with the explanation of my affirmative
vote.
First of all, I consider that the Court, having called upon the Applicant to
continue the proceedings and return before it so that it might rule upon its
jurisdiction to entertain the case and on the admissibility of the
Application, ought to treat these two questions clearly, especially as
certain erroneous interpretations appear to have lent credence among the lay
public to the idea that Australia "had won its case against France", since
in the final analysis it had obtained the object of its claim, which was to
have France forbidden to continue atmospheric nuclear testing.
As I see the matter, it is extremely regrettable that the Court should have
thought it ought to omit doing this, so that unresolved problems remain with
regard to the validity of the 1928 General Act, relied on by Australia, as
also to the declaration filed under Article 36, paragraph 2, of the Statute
and the express reservations made by France in 1966 so far as everything
connected with its national defence was concerned. It would likewise have
been more judicious to give an unequivocal ruling on the question of
admissibility, having regard to what I consider to be the definitely
political character revealed by the Australian claim, as I have recalled
above.
These, I find, are so many important elements which deserved to be taken
into consideration in order to enable the Court to give a clear
pronouncement on the admissibility of Australia's claim, more particularly
as the objective of this claim is to have the act of a sovereign State
declared unlawful even though it is not possible to point to any positive
international law.
I must say in these circumstances that I personally remain unsatisfied as to
the procedure followed and certain of the grounds relied on by the Court for
reaching the conclusion that the claim no longer has any object.
I nevertheless adhere to that conclusion, which is consistent with the
position which I have maintained from the outset of the proceedings in the
first phase; I shall content myself with the Court's recognition that the
Australian Application "no longer" has any object, on the understan-ding,
nevertheless, that for me it never had any object, and ought to have [p 310]
been declared inadmissible in limine litis and, therefore, removed from the
list for the reasons which I gave in the dissenting opinion to which I have
referred above.
The fact remains that, to my mind, the Court was right to take the decision
it has taken today. I gladly subscribe�at least in part�to the
considerations which have led to its doing so, for, failing the adoption by
the Court of my position on the issues of jurisdiction and the
admissibility of the Australian claim, I would in any case have been of the
view that it should take into consideration, at least in the alternative,
the new facts which supervened in the course of the present proceedings and
after the closure of the oral proceedings, to wit various statements by
interested States, with a view to ascertaining whether circumstances might
not have rendered the object of the Application nugatory. Since, in the
event, it emerges that the statements urbi et orbi of the competent French
authorities constitute an undertaking on the part of France to carry out no
more nuclear tests in the atmosphere, 1 can only vote in favour of the
Judgment.
It is in effect evident that one could not rule otherwise than the Court has
done, when one analyses objectively the various statements emanating whether
from the Applicant or from France, which, confident in the reservations
embodied in the declaration filed under Article 36, paragraph 2, of the
Statute, contested the Court's jurisdiction even before the opening of oral
proceedings.
As should be re-emphasized, it cannot be denied that the essential object of
Australia's claim is to obtain from the Court the cessation by France of the
atmospheric nuclear tests it has been conducting in the atoll of Mururoa
which is situated in the South Pacific and is under French sovereignty.
Consequently, if France had changed its attitude, at the outset of the
proceedings, and had acquiesced in Australia's request that it should no
longer carry out its tests, the goal striven for by the Applicant would have
been attained and its claim would no longer have had any object. But now the
Court has been led by the course of events to take note that the President
of the French Republic and his competent ministers have made statements to
the effect that the South Pacific test centre will not be carrying out any
more atmospheric nuclear tests. It follows that the goal of the Application
has been attained. That is a material finding which cannot properly be
denied, for it is manifest that the object of the Australian claim no longer
has any real existence. That being so, the Court is bound to accord this
fact objective recognition and to conclude that the proceedings ought to be
closed, inasmuch as it has acquired the conviction that, taking the
circumstances in which they were made into account, the statements of the
competent French authorities are sufficient to constitute an undertaking on
the part of France which connotes a legal obligation erga omnes, despite the
unilateral character of that undertaking.
One may regret�and I do regret�that the Court, particularly at this stage,
did not devote more of its efforts to seeking a way of first settling [p
311] the questions of jurisdiction and admissibility. Some would doubtless
go so far as strongly to criticize the grounds put forward by the Court to
substantiate its decision. I could not take that attitude, for in a case so
exceptionally characterized by politico-humanitarian considerations, and in
the absence of any guiding light of positive international law, I do not
think the Court can be blamed for having chosen, for the settlement of the
dispute, the means which it considered to be the most appropriate in the
circumstances, and to have relied upon the undertaking, made urbi et orbi in
official statements by the President of the French Republic, that no more
atmospheric nuclear tests will be carried out by the French Government. Thus
the Judgment rightly puts an end to a case one of whose consequences would,
in my opinion, be disastrous�I refer to the disregard of Article 36,
paragraph 2, of the Statute of the Court�and would thereby be likely to
precipitate a general flight from the jurisdiction of the Court, inasmuch as
it would demonstrate that the Court no longer respects the expression of the
will of a State which has subordinated its acceptance of the Court's
compulsory jurisdiction to express reservations.
In spite of the criticisms which some of my colleagues have expressed in
their opinions, and sharing as I do the opinion of Judge Forster, I will
say, bearing in mind the old adage that "all roads lead to Rome", that I
find the Judgment just and well founded and that there is, at all events,
nothing in the French statements "which could be interpreted as an
admission of any breach of positive international law".
In conclusion, I would like to emphasize once again that I am fully in
agreement with Australia that all atmospheric nuclear tests whatever should
be prohibited, in view of their untold implications for the survival of
mankind. I am nevertheless convinced that in the present case the Court has
given a proper Judgment, which meets the major anxieties which I expressed
in the dissenting opinion to which I have referred, inasmuch as it must not
appear to be flouting the principles expressed in Article 2, paragraph 7, of
the United Nations Charter (Order of 22 June 1973, I.C.J. Reports 1973, p.
130), and indirectly inasmuch as it respects the principle of sovereign
equality of the member States of the United Nations. France must not be
given treatment inferior to that given to all other States possessing
nuclear weapons, and the Court's competence would not be well founded if it
related only to the French atmospheric tests.
(Signed) L. Ignacio-Pinto .
[p312]
Joint dissenting opinion of judges Onyeama, Dillard, Jimenez de Arechaga and
sir Humphrey Waldock
1. In its Judgment the Court decides, ex proprio motu, that the claim of the
Applicant no longer has any object. We respectfully, but vigorously
dissent. In registering the reasons for our dissent we propose first to make
a number of observations designed to explain why, in our view, it is not
justifiable to say that the claim of the Applicant no longer has any object.
We shall then take up the issues of jurisdiction and admissibility which
are not examined in the Judgment but which appear to us to be of cardinal
importance to the Court's treatment of the matters decided in the Judgment.
It is also to these two issues, not touched in the Judgment, to which the
Applicant was specifically directed to address itself in the Court's Order
of 22 June 1973.
Part I. Reasons for Our Dissent
2. Basically, the Judgment is grounded on the premise that the sole object
of the claim of Australia is "to obtain a termination of" the "atmospheric
nuclear tests conducted by France in the South Pacific region" (para. 30).
It further assumes that, although the judgment which the Applicant seeks
would have been rested on a finding that "further tests would not be
consistent with international law, such finding would be only a means to an
end, and not an end in itself" (ibid.).
3. In our view the basic premise of the Judgment, which limits the
Applicant's submissions to a single purpose, and narrowly circumscribes its
objective in pursuing the present proceedings, is untenable. In consequence
the Court's chain of reasoning leads to an erroneous conclusion. This
occurs, we think, partly because the Judgment fails to take account of the
purpose and utility of a request for a declaratory judgment and even more
because its basic premise fails to correspond to and even changes the nature
and scope of Australia's formal submissions as presented in the Application.
4. In the Application Australia:
". . . Asks the Court to adjudge and declare that, for the above-mentioned
reasons or any of them or for any other reason that the Court deems to be
relevant, the carrying out of further atmospheric nuclear weapon tests in
the South Pacific Ocean is not consistent with applicable rules of
international law.[p 313]
and to Order
that the French Republic shall not carry out any further such tests."
5. This submission, as observed by counsel for Australia before the Court
(CR 73/3,p. 60):
". . . has asked the Court to do two things: the first is to adjudge and
declare that the conduct of further atmospheric nuclear tests is contrary to
international law and to Australia's rights; the second is to order France
to refrain from further atmospheric nuclear tests".
As appears from the initial words of the actual submission, its first part
requests from the Court a judicial declaration of the illegality of
atmospheric tests conducted by France in the South Pacific Ocean.
6. In paragraph 19 of the Application it is stated that:
"The Australian Government will seek a declaration that the holding of
further atmospheric tests by the French Government in the Pacific Ocean is
not in accordance with international law and involves an infringement of the
rights of Australia. The Australian Government will also request that,
unless the French Government should give the Court an undertaking that the
French Government will treat a declaration by the Court in the sense just
stated as a sufficient ground for discontinuing further atmospheric testing,
the Court should make an order calling upon the French Republic to refrain
from any further atmospheric tests." (Emphasis added.)
In other words, the request for a declaration is the essential submission.
If a declaration of illegality were obtained from the Court which the French
Government agreed to treat as a sufficient ground for discontinuing further
atmospheric tests, then Australia would not maintain its request for an
Order.
Consequently, it can hardly be said, as is done in paragraph 30 of the
Judgment, that the declaration of illegality of atmospheric tests asked for
in the first part of the Applicant's formal submission is merely a means for
obtaining a Court Order for the cessation of further tests. On the contrary,
the declaration of illegality is the basic claim submitted by Australia to
the Court; and this request is indeed described in the Memorial (para. 430)
as the "main prayer in the Application".
7. The Applicant asks for a judicial declaration to the effect that
atmospheric nuclear tests are "not consistent. . . with international law".
This bare assertion cannot be described as constituting merely a reason
advanced in support of the Order. The legal reasons invoked by the Applicant
both in support of the declaration and the Order relate inter alia to the
alleged violation by France of certain rules said to be generally [p 314]
accepted as customary law concerning atmospheric nuclear tests; and its
alleged infringement of rights said to be inherent in the Applicant's own
territorial sovereignty and of rights derived from the character of the high
seas as res communis. These reasons, designed to support the submissions,
are clearly distinguished in the pleadings from the decisions which the
Court is asked to make. According to the terms of the submission the Court
is requested to make the declaration of illegality "for the above-mentioned
reasons or any of them or for any other reason that the Court deems to be
relevant". Isolated from those reasons or legal propositions, the
declaration that atmospheric nuclear tests are "not consistent with
applicable rules of international law" is the precise formulation of
something that the Applicant is formally asking the Court to decide in the
operative part of the Judgment. While "it is no part of the judicial
function of the Court to declare in the operative part of its Judgment that
any of those arguments is or is not well founded FN1" to decide and declare
that certain conduct of a State is or is not consistent with international
law is of the essence of international adjudication, the heart of the
Court's judicial function.
---------------------------------------------------------------------------------------------------------------------
FN1 Right of Passage over Indian Territory, I.C.J. Reports 1960, p. 32.
---------------------------------------------------------------------------------------------------------------------
8. The Judgment asserts in paragraph 30 that "the original and ultimate
objective of the Applicant was and has remained to obtain a termination of
those tests; thus its claim cannot be regarded as being a claim for a
declaratory judgment". In our view the premise in no way leads to the
conclusion. In international litigation a request for a declaratory
judgment is normally sufficient even when the Applicant's ultimate objective
is to obtain the termination of certain conduct of the Respondent which it
considers to be illegal. As Judge Hudson said in his individual opinion in
the Diversion of Water from the Meuse case:
"In international jurisprudence, however, sanctions are of a different
nature and they play a different role, with the result that a declaratory
judgment will frequently have the same compulsive force as a mandatory
judgment; States are disposed to respect the one not less than the other."
(P.C.I.J., Series A/B, No. 70, p. 79.)
And, as Charles De Visscher has stated:
"The essential task of the Court, as emerges both from the submissions of
the parties and from the operative parts of its judgments, normally amounts
to no more than defining the legal relationships between the parties,
without indicating any specific requirements of conduct. Broadly speaking,
the Court refrains from pronouncing condemnations and leaves it to the
States parties to the case to draw the conclusions flowing from its
decisions FN2." [Translation.]
------------------------------------------------------------------------------------------------------------
FN2 Ch. De Visscher, Aspects recents du droit procedural de la Cour
internationale de Justice, Paris, 1966, p. 54.
------------------------------------------------------------------------------------------------------------
[p 315]
9. A dual submission, like the one presented here, comprising both a request
for a declaration of illegality and a prayer for an order or injunction to
end certain measures is not infrequent in international litigation.
This type of dual submission, when presented in other cases has been
considered by this Court and its predecessor as containing two independent
formal submissions, the first or declaratory part being treated as a true
submission, as an end in itself and not merely as part of the reasoning or
as a means to obtain the cessation of the alleged unlawful activity.
(Diversion of Water from the Meuse, P.C.I.J., Series A/B, No. 70, pp. 5, 6
and 28; Right of Passage over Indian Territory, I.C.J. Reports I960, pp. 10
and 31.)
The fact that consequential requests for an Order or an equivalent
injunction are made, as they were made in the above-mentioned cases, was
not then considered and cannot be accepted as a sufficient reason to ignore
or put aside the Applicant's primary submission or to dispose of it as part
of the reasoning. Nor is it justified to introduce a conceptual dichotomy
between declaratory and other judgments in order to achieve the same effect.
The fact that the Applicant's submissions are not limited to a declaration
of the legal situation but also ask for some consequential relief cannot be
used to set aside the basic submission in which the declaration of the
legal situation is asked to be made in the operative part of the Judgment.
10. In the above-mentioned cases the judges who had occasion to analyse in
detail in their individual opinions the Applicant's submissions recognized
that in these basic submissions the Applicants sought a declaratory judgment
from the Court. The individual opinion of Judge Hudson in the Diversion of
Water from the Meuse case has already been mentioned. In the Right of
Passage over Indian Territory case, Judges Winiarski and Badawi in their
dissenting opinion recognized that: "What the Portuguese Government is
asking of the Court, therefore, is that it shall deliver in the first place
a declaratory judgment." They added something which is fully applicable to
the present case:
". . . although this claim is followed by the two others, complementary and
contingent, it constitutes the very essence of the case . . .
The object of the suit, as it follows from the first Portuguese submission,
is to obtain from the Court a recognition and statement of the situation at
law between the Parties" (I.C.J. Reports I960, p. 74).
Judge Armand-Ugon in his dissenting opinion also said: "The Court is asked
for a declaratory judgment as to the existence of a right of passage."
(Ibid., p. 77.) And this approach was not limited to dissenting opinions.
The Court's Judgment in that case states that the Applicant [p 316]
"invoked its right of passage and asked the Court to declare the existence
of that right" (emphasis added) and also says:
"To this first claim Portugal adds two others, though these are conditional
upon a reply, wholly or partly favourable, to the first claim, and will lose
their purpose if the right alleged is not recognized." (Ibid., p. 29.)
11. In a case brought to the Court by means of an application the formal
submissions of the parties define the subject of the dispute, as is
recognized in paragraph 24 of the Judgment. Those submissions must therefore
be considered as indicating the objectives which are pursued by an applicant
through the judicial proceedings.
While the Court is entitled to interpret the submissions of the parties, it
is not authorized to introduce into them radical alterations. The Permanent
Court said in this respect: ". . . though it can construe the submissions
of the Parties, it cannot substitute itself for them and formulate new
submissions simply on the basis of arguments and facts advanced" (P.C.I.J.,
Series A, No. 7, p. 35, case concerning Certain German Interests in Polish
Upper Silesia). The Judgment (para. 29) refers to this as a limitation on
the power of the Court to interpret the submissions "when the claim is not
properly formulated because the submissions of the parties are inadequate".
If, however, the Court lacks the power to reformulate inadequate
submissions, a fortiori it cannot reformulate submissions as clear and
specific as those in this case.
12. In any event, the cases cited in paragraph 29 of the Judgment to justify
the setting aside in the present instance of the Applicant's first
submission do not, in our view, provide any warrant for such a summary
disposal of the "main prayer in the Application". In those cases the
sub-missions held by the Court not to be true submissions were specific
propositions advanced merely to furnish reasons in support of the decision
requested of the Court in the "true" final submission. Thus, in the
Fisheries case the Applicant had summarized in the form of submissions a
whole series of legal propositions, some not even contested, merely as steps
logically leading to its true final submissions (I.C.J. Reports 1951, at pp.
121-123 and 126). In the Minquiers and Ecrehos case the "true" final
submission was stated first and two legal propositions were then adduced by
way of furnishing alternative grounds on which the Court might uphold it
(I.C.J. Reports 1953, at p. 52); and in the Nottebohm case a submission
regarding the naturalization of Nottebohm in Liechtenstein was considered by
the Court to be merely "a reason advanced for a decision by the Court in
favour of Liechtenstein" on the "real issue" of the admissibility of the
claim (I.C.J. Reports 1955, at p. 16). In the present case, as we have
indicated, the situation is quite otherwise. The legality or illegality of
the carrying out by France of atmospheric nuclear tests in the South Pacific
Ocean is the basic issue submitted to the Court's decision, and it seems to
us as wholly unjustifiable to treat the Applicant's request [p 317] for a
declaration of illegality merely as reasoning advanced in support of its
request for an Order prohibiting further tests.
13. In accordance with these basic principles, the true nature of the
Australian claim, and of the objectives sought by the Applicant ought to
have been determined on the basis of the clear and natural meaning of the
text of its formal submission. The interpretation of that submission made by
the Court constitutes in our view not an interpretation but a revision of
the text, which ends in eliminating what the Applicant stated is "the main
prayer in the Application", namely the request for a declaration of
illegality of nuclear atmospheric tests in the South Pacific Ocean. A
radical alteration or mutilation of an applicant's submission under the
guise of interpretation has serious consequences because it constitutes a
frustration of a party's legitimate expectations that the case which it has
put before the Court will be examined and decided. In this instance the
serious consequences have an irrevocable character because the Applicant is
now prevented from resubmitting its Application and seising the Court again
by reason of France's denunciation of the instruments on which it is sought
to base the Court's jurisdiction in the present dispute.
14. The Judgment revises, we think, the Applicant's submission by bringing
in other materials such as diplomatic communications and statements made in
the course of the hearings. These materials do not justify, however, the
interpretation arrived at in the Judgment. They refer to requests made
repeatedly by the Applicant for an assurance from France as to the cessation
of tests. But these requests for an assurance cannot have the effect
attributed to them by the Judgment. While litigation is in progress an
applicant may address requests to a respondent to give an assurance that it
will not pursue the contested activity, but such requests cannot by
themselves support the inference that an unqualified assurance, if received,
would satisfy all the objectives the applicant is seeking through the
judicial proceedings; still less can they restrict or amend the claims
formally submitted to the Court. According to the Rules of Court, this can
only result from a clear indication by the applicant to that effect,
through a withdrawal of the case, a modification of its submissions or an
equivalent action. It is not for nothing that the submissions are required
to be presented in writing and bear the signature of the agent. It is a non
sequitur, therefore, to interpret such requests for an assurance as
constituting an implied renunciation, a modification or a withdrawal of the
claim which is still maintained before the Court, asking for a judicial
declaration of illegality of atmospheric tests. At the very least, since the
Judgment attributes intentions and implied waivers to the Applicant, that
Party should have been given an opportunity to explain its real intentions
and objectives, instead of proceeding to such a determi-nation inaudita
parte.
***
[p 318]
15. The Judgment, while it reiterates that the Applicant's objective has
been to bring about the termination of atmospheric nuclear tests, fails to
examine a crucial question, namely from what date the Applicant sought to
achieve this objective. To answer this point it is necessary to take into
account the date from which, according to the Australian submission, the
legality of the French atmospheric tests is brought into question. The term
"further atmospheric tests" used in the submission was also employed in the
Australian diplomatic Note of 3 January 1973 addressed to the French
Government. In that Note the claim as to the illegality of the tests and an
express request to refrain from them were raised for the first time. When a
State sends a communication asking another State "to refrain from any
further acts" which are said to be illegal, it seems obvious that this claim
and request refer to all acts which may take place after the date of the
diplomatic communication. Similarly, when Australia filed its Application it
seems evident that its request to the Court to declare the illegality of
"further atmospheric nuclear weapons tests" must be understood as referring
to all tests conducted as from 9 May 1973, the date of the Application.
While an injunction or an Order from the Court on the holding of "further
atmospheric tests" could have effect only as from the date it is delivered,
a judicial declaration of illegality like the one requested would embrace
not merely subsequent tests but also those which took place in 1973 and 1974
after the Application was filed. That such was the objective of the
Applicant is confirmed by the fact that as soon as the Application was filed
Australia requested interim measures in order to protect its position with
regard to the possible continuation of atmospheric tests by France after the
filing of the Application and before the delivery of the Court's Judgment on
the merits. A request for a declaration of illegality covering the
atmospheric tests which were conducted in 1973 and 1974, in disregard of the
interim Order of the Court, could not be deprived of its object by
statements of intention limited to tests to be conducted in 1975 or
thereafter.
16. Such a view of the matter takes no account of the possibility of
Australia seeking to claim compensation in respect of the 12 tests conducted
in 1973 and 1974. It is true that the Applicant has not asked for
compensation for damage in the proceedings which are now before the Court.
However, the Australian Government has not waived its right to claim them in
the future. It has significantly stated in the Memorial (para. 435) that:
"At the present time" (emphasis added), it is not the "intention of the
Australian Government to seek pecuniary damages". The possibility cannot
therefore be excluded that the Applicant may intend to claim damages, at a
later date, through the diplomatic channel or otherwise, in the event of a
favourable decision furnishing it with a declaration of illegality. Such a
procedure, which has been followed in previous cases before international
tribunals, would have been particu-[p 319]larly understandable in a case
involving radio-active fall-out in which the existence and extent of damage
may not readily be ascertained before some time has elapsed.
17. In one of the instances in which damages have been claimed in a
subsequent Application on the basis of a previous declaratory judgment, the
Permanent Court endorsed this use of the declaratory judgment, stating that
it was designed:
"... to ensure recognition of a situation at law, once and for all, and with
binding force as between the Parties; so that the legal position thus
established cannot again be called in question in so far as the legal
effects ensuing therefrom are concerned" (Factory at Chorz�w, P.C.I.J.,
Series A, No. 13, p. 20).
18. Furthermore, quite apart from any claim to compensation for damage, a
request for a declaration of the illegality of France's atmospheric nuclear
weapon tests cannot be said to be without object in relation to the
numerous tests carried out in 1973 and 1974. The declaration, if obtained,
would characterize those tests as a violation of Australia's rights under
international law. As the Court's Judgment in the Corfu Channel case clearly
confirms (I.C.J. Reports 1949, at p. 35) such a declaration is a form of
"satisfaction" which the Applicant might have legitimately demanded when it
presented its final submissions in the present proceedings, independently of
any claim to compensation. Indeed, in that case the Court in the operative
part of the Judgment pronounced such a declaration as constituting "in
itself appropriate satisfaction" (ibid., p. 36).
***
19. The Judgment implies that there was a dispute between the Parties, but
asserts that such a dispute has now disappeared because "the objective of
the claim has been achieved by other means" (para. 55).
We cannot agree with this finding, which is based on the premise that the
sole purpose of the Application was to obtain a cessation of tests as from
the date of the Judgment. In our view the dispute between the Parties has
not disappeared since it has concerned, from its origin, the question of the
legality of the tests as from the date of the Application. It is true that
from a factual point of view the extent of the dispute is reduced if no
further atmospheric tests are conducted in 1975 and thereafter, but from a
legal point of view the question which remains in dispute is whether the
atmospheric nuclear tests which were in fact conducted in 1973 and 1974 were
consistent with the rules of international law.
There has been no change in the position of the Parties as to that issue.
Australia continues to ask the Court to declare that atmospheric nuclear [p
320] tests are inconsistent with international law and is prepared to argue
and develop that point. France, on its part, as recognized in the Judgment
(para. 51), maintains the view that "its nuclear experiments have not
violated any rule of international law". In announcing the cessation of the
tests in 1975 the French Government, according to the Judgment, did not
recognize that France was bound by any rule of international law to
terminate its tests (ibid.).
Consequently, the legal dispute between the Parties, far from having
disappeared, still persists. A judgment by the Court on the legality of
nuclear atmospheric tests in the South Pacific region would thus pronounce
on a legal question in which the Parties are in conflict as to their
respective rights.
20. We cannot accept the view that the decision of such a dispute would be a
judgment in abstracto, devoid of object or having no raison d'�tre. On the
contrary, as has been already shown, it would affect existing legal rights
and obligations of the Parties. In case of the success of the Applicant, it
would ensure for it advantages on the legal plane. In the event, on the
other hand, of the Respondent being successful, it would benefit that Party
by removing the threat of an unfounded claim. Thus a judgment on the
legality of atmospheric nuclear tests would, as stated by the Court in the
Northern Cameroons case:
". . . have some practical consequence in the sense that it can affect
existing legal rights or obligations of the parties, thus removing
uncertainty from their legal relations" (I.C.J. Reports 1963, p. 34).
In the light of this statement, a declaratory judgment stating the general
legal position applicable between the Parties�as would the one pronouncing
on the first part of the Applicant's submission�would have given the Parties
certainty as to their legal relations. This desired result is not satisfied
by a finding by the Court of the existence of a unilateral engagement based
on a series of declarations which are somewhat divergent and are not
accompanied by an acceptance of the Applicant's legal contentions.
Moreover, the Court's finding as to that unilateral engagement regarding the
recurrence of atmospheric nuclear tests cannot, we think, be considered as
affording the Applicant legal security of the same kind or degree as would
result from a declaration by the Court specifying that such tests
contravened general rules of international law applicable between France and
Australia. This is shown by the very fact that the Court was able to go only
so far as to find that the French Government's unilateral undertaking
"cannot be interpreted as having been made in implicit reliance on an
arbitrary power of reconsideration" (emphasis added); and that the
obligation undertaken is one "the precise nature and limits of which must be
understood in accordance with the actual terms in which they have been
publicly expressed". [p 321]
21. Whatever may be thought of the Judgment in the Northern Cameroons case,
the Court in that case recognized a critically significant distinction
between holding a declaratory judgment to be "without effect" the subject of
which (as in that case) was a treaty which was no longer in force and one
which "interprets a treaty that remains in force" (emphasis added) or
"expounds a rule of customary law" (emphasis added). As to both the latter,
the Court said that the declaratory judg-ment would have a "continuing
applicability" (I.C.J. Reports 1963, p. 37). In other words, according to
the Northern Cameroons case a judgment cannot be said to be "without
effect" or an issue moot when it concerns an analysis of the continuing
applicability of a treaty in force or of customary international law. That
is precisely the situation in the present case.
The present case, as submitted by the Applicant, concerns the continuing
applicability of a potentially evolving customary international law,
elaborated at numerous points in the Memorial and oral arguments. Whether
all or any of the contentions of the Applicant would or would not be
vindicated at the stage of the merits is irrelevant to the central issue
that they are not manifestly frivolous or vexatious but are attended by
legal consequences in which the Applicant has a legal interest. In the
language of the Northern Cameroons case, a judgment dealing with them would
have "continuing applicability". Issues of both fact and law remain to be
clarified and resolved.
The distinction drawn in the Northern Cameroons case is thus in keeping with
the fundamental purpose of a declaratory judgment which is designed, in
contentious proceedings involving a genuine dispute, to clarify and
stabilize the legal relations of the parties. By foreclosing any argument on
the merits in the present stage of the proceedings the Court has precluded
this possibility. Accordingly, the Court, in our view, has not only wrongly
interpreted the thrust of the Applicant's submissions, is has also failed to
recognize the valid role which a declaratory judgment may play in reducing
uncertainties in the legal relations of the parties and in composing
potential discord.
***
22. In paragraph 23 the Judgment states that the Court has "inherent"
jurisdiction enabling it to take such action as may be required. It asserts
that it must "ensure" the observance of the "inherent limitations on the
exercise of the judicial function of the Court" and "maintain its judicial
[p 322] character". It cites the Northern Cameroons case in support of these
very general statements.
Without pausing to analyse the meaning of the adjective "inherent", it is
our view that there is nothing whatever in the concept of the integrity of
the judicial process ("inherent" or otherwise) which suggests, much less
compels, the conclusion that the present case has become "without object".
Quite the contrary, due regard for the judicial function, properly
understood, dictates the reverse.
The Court, "whose function is to decide in accordance with international
law such disputes as are submitted to it" (Art. 38, para. 1, of the
Statute), has the duty to hear and determine the cases it is seised of and
is competent to examine. It has not the discretionary power of choosing
those contentious cases it will decide and those it will not. Not merely
requirements of judicial propriety, but statutory provisions governing the
Court's constitution and functions impose upon it the primary obligation to
adjudicate upon cases broughl before it with respect to which it possesses
jurisdiction and finds no ground of inadmissibility. In our view, for the
Court to discharge itself from carrying out that primary obligation must be
considered as highly exceptional and a step to be taken only when the most
cogent considerations of judicial propriety so require. In the present case
we are very far from thinking that any such considerations exist.
23. Furthermore, any powers which may attach to "the inherent jurisdiction"
of the Court and its duty "to maintain its judicial character" invoked in
the Judgment would, in our view, require it at least to give a hearing to
the Parties or to request their written observations on the questions dealt
with and determined by the Judgment. This applies in particular to the
objectives the Applicant was pursuing in the proceedings, and to the
question of the status and scope of the French declarations concerning
future tests. Those questions could not be examined fully and substantially
in the pleadings and hearings, since the Parties had received definite
directions from the Court that the proceedings should "first be addressed to
the questions of the jurisdiction of the Court to entertain the dispute, and
of the admissibility of the Application". No intimation or suggestion was
ever given to the Parties that this direction was no longer in effect or
that the Court would go into other issues which were neither pleaded nor
argued but which now form the basis for the final disposal of the case.
It is true that counsel for the Applicant alluded to the first French
declaration of intention during one of the hearings, but he did so only as a
prelude to his treatment of the issues of jurisdiction and admissibility and
in the context of a review of developments in relation to the proceedings.
He was moreover then acting under formal directions from the Court to deal
exclusively with the questions of jurisdiction and admissibility of the
Application. Consequently, counsel for the Applicant could not and did not
address himself to the specific issues now decided in the Judgment, namely
what were the objectives sought by the Applicant by [p 323] the judicial
proceedings and whether the French declarations and statements had the
effect of rendering the claim of Australia without object.
The situation is in this respect entirely different from that arising in the
Northern Cameroons case where the Parties had full opportunity to plead,
both orally and in writing, the question whether the claim of the Applicant
had an object or had become "moot" before this was decided by the Court.
Accordingly, there is a basic contradiction when the Court invokes its
"inherent jurisdiction" and its "judicial character" to justify its disposal
of the case, while, at the same time, failing to accord the Applicant any
opportunity whatever to present a countervailing argument.
No-one doubts that the Court has the power in its discretion to decide
certain issues ex proprio motu. The real question is not one of power, but
whether the exercise of power in a given case is consonant with the due
administration of justice. For all the reasons noted above, we are of the
view that, in the circumstances of this case, to decide the issue of
"moot-ness" without affording the Applicant any opportunity to submit
counterarguments is not consonant with the due administration of justice.
In addition, we think that the Respondent should at least have been notified
that the Court was proposing to consider the possible effect on the present
proceedings of declarations of the French Government relating to its policy
in regard to the conduct of atmospheric tests in the future. This was
essential, we think, since it might, and did in fact lead the Court to
pronounce upon nothing less than France's obligations, said to have been
unilaterally undertaken, with respect to the conduct of such tests.
24. The conclusions above are reinforced when consideration is paid to the
relationship between the issue of mootness and the requirements of the
judicial process.
It is worth observing that a finding that the Applicant's claim no longer
has any object is only another way of saying that the Applicant no longer
has any stake in the outcome. Located in the context of an adversary
proceeding, the implication is significant.
If the Applicant no longer has a stake in the outcome, i.e., if the case is
really moot, then the judicial process tends to be weakened, inasmuch as the
prime incentive for the Applicant to argue the law and facts with sufficient
vigour and thoroughness is diluted. This is one of the reasons which
justifies declaring a case moot, since the integrity of the judicial process
presupposes the existence of conflicting interests and requires not only
that the parties be accorded a full opportunity to explore and expose the
law and facts bearing on the controversy but that they have the incentive to
do so.
Applied to the present case, it is immediately apparent that this reason [p
324] for declaring a case moot or without object is totally missing, a
conclusion which is not nullified by the absence of the Respondent in this
particular instance.
The Applicant, with industry and skill, has already argued the nature of its
continuing legal interest in the dispute and has urged upon the Court the
need to explore the matter more fully at the stage of the merits. The
inducement to do so is hardly lacking in light of the Applicant's
submissions and the nature and purposes of a declaratory judgment.
25. Furthermore the Applicant's continued interest is manifested by its
conduct. If, as the Judgment asserts, all the Applicant's objectives have
been met, it would have been natural for the Applicant to have requested a
discontinuance of the proceedings under Article 74 of the Rules. This it has
not done. Yet this Article, together with Article 73 on settlement, provides
for the orderly regulation of the termination of proceedings once these have
been instituted. Both Articles require formal procedural actions by agents,
in writing, so as to avoid misunderstandings, protect the interests of each
of the two parties and provide the Court with the certainty and security
necessary in judicial proceedings.
***
26. Finally, we believe the Court should have proceeded, under Article 36
(6) and Article 53 of the Statute, to determine its own jurisdiction with
respect to the present dispute. This is particularly important in this case
because the French Government has challenged the existence of jurisdiction
at the time the Application was filed, and, consequently, the proper
seising of the Court, alleging that the 1928 General Act is not a treaty in
force and that the French reservation concerning matters of national
defence made the Court manifestly incompetent in this dispute. In the
Northern Cameroons case, invoked in paragraph 23 of the Judgment, while the
Respondent had raised objections to the jurisdiction of the Court, it
recognized that the Trusteeship Agreement was a convention in force at the
time of the filing of the Application. There was no question then that the
Court had been regularly seised by way of application.
27. In our view, for the reasons developed in the second part of this
opinion, the Court undoubtedly possesses jurisdiction in this dispute. The
Judgment, however, avoids the jurisdictional issue, asserting that
questions related to the observance of "the inherent limitations on the
exercise of the Court's judicial function" require to be examined in
priority to matters of jurisdiction (paras. 22 and 23). We cannot agree with
this assertion. The existence or lack of jurisdiction with respect to a
specific dispute is a basic statutory limitation on the exercise of the
Court's judicial function and should therefore have been determined in the
Judgment as Article 67, paragraph 6, of the Rules of Court seems clearly to
expect. [p 325]
28. It is difficult for us to understand the basis upon which the Court
could reach substantive findings of fact and law such as those imposing on
France an international obligation to refrain from further nuclear tests in
the Pacific, from which the Court deduces that the case "no longer has any
object", without any prior finding that the Court is properly seised of the
dispute and has jurisdiction to entertain it. The present Judgment by
implication concedes that a dispute existed at the time of the Application.
That differentiates this case from those in which the issue centres on the
existence ab initio of any dispute whatever. The findings made by the Court
in other cases as to the existence of a dispute at the time of the
Application were based on the Court's jurisdiction to determine its own
competence, under the Statute. But in the present case the Judgment
disclaims any exercise of that statutory jurisdiction. According to the
Judgment the dispute has disappeared or has been resolved by engagements
resulting from unilateral statements in respect of which the Court "holds
that they constitute an undertaking possessing legal effect" (para. 51) and
"finds that France has undertaken the obligation to hold no further nuclear
tests in the atmosphere in the South Pacific" (para. 52). In order to make
such a series of findings the Court must possess jurisdiction enabling it
to examine and determine the legal effect of certain statements and
declarations which it deems relevant and connected to the original dispute.
The invocation of an alleged "inherent jurisdiction ... to provide for the
orderly settlement of all matters in dispute" in paragraph 23 cannot provide
a basis to support the conclusions reached in the present Judgment which
pronounce upon the substantive rights and obligations of the Parties. An
extensive interpretation appears to be given in the Judgment to that
inherent jurisdiction "on the basis of which the Court is fully empowered to
make whatever findings may be necessary for the purposes of" providing "for
the orderly settlement of all matters in dispute" (para. 23). But such an
extensive interpretation of the alleged "inherent jurisdiction" would blur
the line between the jurisdiction conferred to the Court by the Statute and
the jurisdiction resulting from the agreement of States. In consequence, it
would provide an easy and unacceptable way to bypass a fundamental
requirement firmly established in the jurisprudence of the Court and
international law in general, namely that the jurisdiction of the Court is
based on the consent of States.
The conclusion thus seems to us unavoidable that the Court, in the process
of rendering the present Judgment, has exercised substantive jurisdiction
without having first made a determination of its existence and the legal
grounds upon which that jurisdiction rests.
29. Indeed, there seems to us to be a manifest contradiction in the
jurisdictional position taken up by the Court in the Judgment. If the
so-called "inherent jurisdiction" is considered by the Court to authorize it
to decide that France is now under a legal obligation to terminate [p 326]
atmospheric nuclear tests in the South Pacific Ocean, why does the "inherent
jurisdiction" not also authorize it on the basis of that same international
obligation, to decide that the carrying out of any further such tests would
"not be consistent with applicable rules of international law" and to order
that "the French Republic shall not carry out any further such tests"? In
other words, if the Court may pronounce upon France's legal obligations with
respect to atmospheric nuclear tests, why does it not draw from this
pronouncement the appropriate conclusions in relation to the Applicant's
submissions instead of finding them no longer to have any object? The above
observation is made solely with reference to the concept of "inherent
jurisdiction" developed in the Judgment and is of course not addressed to
the merits of the case, which are not before the Court at the present stage.
***
Since we consider a finding both as to the Court's jurisdiction and as to
the admissibility of the Application to be an essential basis for the
conclusions reached in the Judgment as well as for our reasons for
dissenting from those conclusions, we now proceed to examine in turn the
issues of jurisdiction and admissibility which confront the Court in the
present case.
Part II. Jurisdiction
Introduction
30. At the outset of the present proceedings the French Government
categorically denied that the Court has any competence to entertain
Australia's Application of 9 May 1973; and it has subsequently continued to
deny that there is any legal basis for the Court's Order of 22 June 1973
indicating provisional measures of protection or for the exercise of any
jurisdiction by the Court with respect to the matters dealt with in the
Application. The Court, in making that Order for provisional measures,
stated that the material submitted to it led to the conclusion, at that
stage of the proceedings, that the jurisdictional provisions invoked by the
Applicant appeared "prima facie, to afford a basis on which the
jurisdiction of the Court might be founded". At the same time, it directed
that the questions of the jurisdiction of the Court to entertain the dispute
and of the admissibility of the Application should be the subject of the
pleadings in the next stage of the case, that is, in the proceedings with
which the Court is now concerned. In our view, these further proceedings
confirm that the jurisdictional provisions invoked by the Applicant not
merely afforded a wholly sufficient basis for the Order of 22 June 1973 but
also provided a valid basis for establishing the competence of the Court in
the present case.
*
31. The Application specifies as independent and alternative bases of the
Court's jurisdiction:
"(i) Article 17 of the General Act for the Pacific Settlement of
International Disputes, 1928, read together with Articles 36 (1) and 37 of
the Statute of the Court. Australia and the French Republic both acceded to
the General Act on 21 May 1931. The texts of the conditions to which their
accessions were declared to be subject are set forth in Annex 15 and Annex
16 respectively.
(ii) Alternatively, Article 36 (2) of the Statute of the Court. Australia
and the French Republic have both made declarations thereunder."
It follows that, if these are indeed two independent and alternative ways of
access to the Court and one of them is shown to be effective to confer
jurisdiction in the present case, this will suffice to establish the Court's
jurisdiction irrespective of the effectiveness or ineffectiveness of the
other. As the Court stated in its Judgment on the Appeal Relating to the
Jurisdiction of the ICAO Council, if the Court is invested with
jurisdiction on the basis of one set of jurisdictional clauses "it becomes
irrelevant to consider the objections to other possible bases of
jurisdiction" (I.C.J. Reports 1972, p. 60).
***
The General Act of 1928
32. Article 17 of the General Act of 1928 reads as follows:
"All disputes with regard to which the parties are in conflict as to their
respective rights shall, subject to any reservations which may be made under
Article 39, be submitted for decision to the Permanent Court of
International Justice, unless the parties agree, in the manner hereinafter
provided, to have resort to an arbitral tribunal.
It is understood that the disputes referred to above include in particular
those mentioned in Article 36 of the Statute of the Permanent Court of
International Justice."
The disputes "mentioned in Article 36 of the Statute of the Permanent Court"
are all or any of the classes of legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a
breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an
international obligation. [p 328]
33. The same four classes of legal disputes are reproduced word for word, in
Article 36 (2)�the optional clause�of the Statute of the present Court
which, together with the declarations of Australia and France, constitutes
the second basis of jurisdiction invoked in the Application.
34. Accordingly, the jurisdiction conferred on the Court under Article 17 of
the General Act of 1928 and under the optional clause of the present
Statute, in principle, covers the same disputes: namely the four classes of
legal disputes listed above. In the present instance, however, the bases of
jurisdiction resulting from these instruments are clearly not co-extensive
because of certain differences between the terms of the Parties' accessions
to the General Act and the terms of their declarations accepting the
optional clause. In particular, France's declaration under the optional
clause excepts from the Court's jurisdiction "disputes concerning activities
connected with national defence", whereas no such exception appears in her
accession to the General Act of 1928. Consequently, it is necessary to
examine the two bases of jurisdiction separately.
***
35. The French Government, in its letter of 16 May 1973 addressed to the
Registrar, and in the Annex to that letter, put forward the view that the
present status of the General Act of 1928 and the attitude of the Parties,
more especially of France, in regard to it preclude that Act from being
considered today as a clear expression of France's will to accept the
Court's jurisdiction. It maintained that, since the demise of the League of
Nations, the Act of 1928 is recognized either as no longer being in force or
as having lost its efficacy or as having fallen into desuetude. In support
of this view, the French Government agreed that the Act of 1928 was,
ideologically, an integral part of the League of Nations system "in so far
as the pacific settlement of international disputes had necessarily in that
system to accompany collective security and disarmament"; that there was
correspondingly a close link between the Act and the structures of the
League, the Permanent Court of International Justice, the Council, the
Secretary-General, the States Members and the Secretariat; that these links
were emphasized in the terms of certain of the accessions to the Act,
including those of Australia, New Zealand and France; and that this was also
shown by the fact that Australia and New Zealand, in acceding to the Act,
made reservations regarding disputes with States not members of the League.
It further argued that the integration of the Act into the structure of the
League of Nations was shown by the fact that, after the latter's demise, the
necessity was recognized of a revision of the Act, substituting new terms
for those of the defunct system instead merely of relying on the operation
of Article 37 of the Statute of the Court. This, according to the French
Government, implied that the demise of the [p 329] League was recognized as
having rendered it impossible for the General Act of 1928 to continue to
function normally.
***
36. The fact that the text of the General Act of 1928 was drawn up and
adopted within the League of Nations does not make it a treaty of that
Organization; for even a treaty adopted within an organization remains the
treaty of its parties. Furthermore, the records of the League of Nations
Assembly show that it was deliberately decided not to make the General Act
an integral part of the League of Nations structure (Ninth Ordinary Session,
Minutes of the First Committee, p. 68); that the General Act was not
intended to be regarded as a constitutional document of the League or
adjunct of the Covenant (ibid., p. 69); that the General Act was envisaged
as operating parallel to, and not as part of the League of Nations system
(ibid., p. 71); and that the substantive obligations of the parties under
the General Act were deliberately made independent of the functions of the
League of Nations. Stressing the last point, Mr. Rolin of Belgium said
specifically:
"The intervention of the Council of the League was not implied as a matter
of necessity in the General Act; the latter had been regarded as being of
use in connection with the general work of the League, but it had no
administrative or constitutional relationship with it." (Ibid., p. 71 ;
emphasis added.)
That the French Government also then understood the pacific settlement
system embodied in the General Act to be independent of that of the Covenant
of the League of Nations was made clear when the ratification of the Act was
laid before the French Chambre des deputes, whose Com-mission des affaires
etrang�res explained:
"... alors que, dans le syst�me con�u par les fondateurs de la Societe des
Nations, l'action du Conseil, telle quelle est prevue par l'article 15,
constitue un mode normal de r�glement des differends au m�me titre que la
procedure d'arbitrage, l'Acte general, au contraire, ignore compl�tement le
Conseil de la Societe des Nations" (Journal officiel, documents
parlementaires, Chambre, 1929, p. 407; emphasis added).
37. Australia and France, it is true, inserted reservations in their
accessions to the General Act designed to ensure the priority of the powers
of the Council of the League over the obligations which they were assuming
by acceding to the Act. But the fact that they and some other States thought
it desirable so to provide in their instruments of accession [p 330] seems
to testify to the independent and essentially autonomous character of the
General Act rather than to its integration in the League of Nations system.
Similarly, the fact that, in order to exclude disputes with non-member
States from their acceptance of obligations under the Act, Australia and
some other States inserted an express reservation of such disputes in their
instruments of accession, serves only to underline that the Covenant and the
General Act were separate systems of pacific settlement. The reservation was
needed for the very reason that the General Act was established as a
universal system of pacific settlement independent of the League of Nations
and open to States not members of the Organization, as well as to Members
(cf. Report of Mr. Politis, as Rapporteur, 18th Plenary Meeting of 25
September 1928, at p. 170).
38. Nor do we find any more convincing the suggested "ideological
integration" of the General Act in the League of Nations system: i.e., the
thesis of its inseparable connection with the League's trilogy of
collective security, disarmament and pacific settlement. Any mention of a
connection between those three subjects is conspicuously absent from the
General Act, which indeed makes no reference at all to security or
disarmament, unlike certain other instruments of the same era. In these
circumstances, the suggestion that the General Act was so far intertwined
with the League of Nations system of collective security and disarmament as
necessarily to have vanished with that system cannot be accepted as having
any solid basis.
39. Indeed, if that suggestion had a sound basis, it would signify the
extinction of numerous other treaties of pacific settlement belonging to the
same period and having precisely the same ideological approach as the
General Act of 1928. Yet these treaties, without any steps having been taken
to amend or to "confirm" them, are unquestionably considered as having
remained in force despite the dissolution of the League of Nations in 1946.
As evidence of this two examples will suffice: the Hispano-Belgian Treaty of
Conciliation, Judicial Settlement and Arbitration of 19 July 1927, Article
17 of which was applied by this Court as the source of its jurisdiction in
the Barcelona Traction, Light and Power Company,Limited case (I.C.J. Reports
1964, at pp. 26-39); and the Franco-Spanish Treaty of Arbitration of 10 July
1929 on the basis of which France herself and Spain constituted the Lac
Lanoux arbitration in 1956 (UNRIAA, Vol. 12, at p. 285). In truth, these
treaties and the General Act itself, although largely inspired by the League
of Nations aim of promoting the peaceful settlement of disputes together
with collective security and disarmament, also took their inspiration from
the movement for the development of international arbitration and judicial
settlement which had grown up during the nineteenth century and had played a
major role at the Hague Peace Conferences of 1899 and 1907. It was,
moreover, the French Government itself which in the General Assembly in 1948
emphasized this quite separate source of the "ideology" of the General Act
of 1928. Having referred to the General Act as "a valuable [p 331] document
inherited from the League of Nations", the French delegation added that it
constituted:
"... an integral part of a long tradition of arbitration and conciliation
which had proved itself effective long before the existence of the League
itself" (GA, OR, Third Session, Plenary Meeting, 199th Meeting, p. 193).
That tradition certainly did not cease with the League of Nations.
**
40. The General Act of 1928 was, however, a creation of the League of
Nations era, and the machinery of pacific settlement which it established
almost inevitably exhibited some marks of that origin. Thus, the tribunal to
which judicial settlement was to be entrusted was the Permanent Court of
International Justice (Art. 17); if difficulties arose in agreeing upon
members of a conciliation commission, the parties were empowered, as one
possible option, to entrust the appointment to the President of the Council
of the League (Art. 6); the Conciliation Commission was to meet at the seat
of the League, unless otherwise agreed by the parties or otherwise decided
by the Commission's President (Art. 9); a Conciliation Commission was also
empowered in all circumstances to request assistance from the
Secretary-General of the League (Art. 9); if a deadlock arose in effecting
the appointment of members of an arbitral tribunal, the task of making the
necessary appointments was entrusted to the President of the Permanent Court
of International Justice (Art. 23); in cases submitted to the Permanent
Court, it was empowered to lay down "provisional measures" (Art. 33), and
to decide upon any third party's request to intervene (Art. 36) and its
Registrar was required to notify other parties to a multilateral convention
the construction of which was in question (Art. 37); the Permanent Court was
also entrusted with a general power to determine disputes relating to the
interpretation or application of the Act (Art. 41); the power to extend
invitations to non-member States to become parties to the General Act was
entrusted to the Council of the League (Art. 43); and, finally, the
depositary functions in connection with the Act were entrusted to the
Secretary-General of the League (Arts. 43-47). The question has therefore to
be considered whether these various links with the Permanent Court and with
the Council of the League of Nations and its Secretariat are of such a
character that the dissolution of these organs in 1946 had the necessary
result of rendering the General Act of 1928 unworkable and virtually a dead
letter.
*
[p 332]
41. In answering this question, account has first to be taken of Article 37
of the Statute of this Court, on which the Applicant specifically relies for
the purpose of founding the Court's jurisdiction on Article 17 of the 1928
Act. Article 37 of the Statute reads:
"Whenever a treaty or convention in force provides for reference of a matter
... to the Permanent Court of International Justice, the matter shall, as
between the parties to the present Statute, be referred to the International
Court of Justice."
The objects and purposes of that provision were examined at length by this
Court in the Barcelona Traction, Light and Power Company, Limited case (New
Application, Preliminary Objections, I.C.J. Reports 1964, at pp. 31-36)
where, inter alia, it said:
"The intention therefore was to create a special regime which, as between
the parties to the Statute, would automatically transform references to the
Permanent Court in these jurisdictional clauses, into references to the
present Court.
In these circumstances it is difficult to suppose that those who framed
Article 37 would willingly have contemplated, and would not have intended to
avoid, a situation in which the nullification of the jurisdictional clauses
whose continuation it was desired to preserve, would be brought about by the
very event�the disappearance of the Permanent Court�the effects of which
Article 37 both foresaw and was intended to parry; or that they would have
viewed with equanimity the possibility that, although the Article would
preserve many jurisdictional clauses, there might be many others which it
would not; thus creating that very situation of diversification and
imbalance which it was desired to avoid." (P. 31, emphasis added.)
In a later passage the Court was careful to enter the caveat that Article 37
was not intended "to prevent the operation of causes of extinction other
than the disappearance of the Permanent Court" (ibid., p. 34). However, it
continued:
"And precisely because it was the sole object of Article 37 to prevent
extinction resulting from the particular cause which the disappearance of
the Permanent Court would represent, it cannot be admitted that this
extinction should in fact proceed to follow from this very event itself."
(Ibid., emphasis added.)
42. The Court's observations in that case apply in every particular to the
1928 Act. It follows that the dissolution of the Permanent Court in 1946 was
in itself wholly insufficient to bring about the termination of the Act.
Unless some other "cause of extinction" is shown to prevent the Act from
being considered as "a treaty or convention in force" at the date of the
dissolution of the Permament Court, Article 37 of the Statute automatically
has the effect of substituting this Court for the Permanent Court as the
tribunal designated in Article 17 of the General Act for the [p 333]
judicial settlement of disputes. And Article 37, in our opinion, also has
the effect of automatically substituting this Court for the Permanent Court
in Articles 33, 36, 37 and 41 of the General Act.
*
43. Account has further to be taken of the arrangements reached in 1946
between the Assembly of the League and the General Assembly of the United
Nations for the transfer to the United Nations Secretariat of the depositary
functions performed by the League Secretariat with respect to treaties.
Australia and France, as Members of both organizations, were parties to
these arrangements and are, therefore, clearly bound by them. In September
1945 the League drew up a List of Conventions with Indication of the
Relevant Articles Conferring Powers on the Organs of the League of Nations,
the purpose of which was to facilitate consideration of the transfer of
League functions to the United Nations in certain fields. In this list
appeared the General Act of 1928, and there can be no doubt that when
resolutions of the two Assemblies provided in 1946 for the transfer of the
depository functions of the League Secretariat to the United Nations
Secretariat, the 1928 Act was understood as, in principle, included in those
resolutions. Thus, the first list published by the Secretary-General in
1949 of multilateral treaties in respect of which he acts as depositary
contained the General Act of 1928 (Signatures, Ratifications, Acceptances,
Accessions, etc., concerning the Multilateral Conventions and Agreements in
respect of which the Secretary-General acts as Depositary, UN Publications,
1949, Vol. 9). Moreover, in a letter of 12 June 1974, addressed to
Australia's Permanent Representative and presented by Australia to the
Court, the Secretary-General expressly confirmed that the 1928 Act was one
of the "multilateral treaties placed under the custody of the
Secretary-General by virtue of General Assembly resolution 24 (I) of 12
February 1946".
44. Consequently, on the demise of the League of Nations in 1946, the
depositary functions entrusted to the Secretary-General and Secretariat of
the League of Nations by Articles 43 to 47 of the 1928 Act were
automatically transferred to the Secretary-General and Secretariat of the
United Nations. It follows that the demise of the League of Nations could
not possibly constitute "a cause of extinction" of the General Act by reason
of the references to the League Secretariat in those Articles.
*
45. The disappearance of the League of Nations system, it is true, did
slightly impair the full efficacy of the machinery provided for in the 1928
Act. In conciliation, recourse could no longer be had to the President of [p
334] the Council as one of the means provided by Article 6 of the Act for
resolving disagreements in the appointment of members of the conciliation
commission; nor could the commission any longer assert the right under
Article 9 of the Act to meet at the seat of the League and to request
assistance from the Secretary-General of the League. As to arbitration, it
became doubtful whether Article 37 of the Statute would suffice, in the
event of the parties' disagreement, to entrust to the President of this
Court the extra-judicial function of appointing members of an arbitral
tribunal entrusted by Article 23 of the 1928 Act to the President of the
Permanent Court. In both conciliation and arbitration, however, the
provisions involving League organs concerned machinery of a merely
alternative or ancillary character, the disappearance of which could not be
said to render the 1928 Act as a whole unworkable or impossible of
performance. Nor could their disappearance be considered such a fundamental
change of circumstances as might afford a ground for terminating or
withdrawing from the treaty (cf. Art. 62 of the Vienna Convention on the Law
of Treaties). Moreover, none of these provisions touched, still less
impaired, the procedure for judicial settlement laid down in Article 17 of
the 1928 Act.
46. Another provision the efficacy of which was impaired by the dissolution
of the League was Article 43, under which the power to open accession to the
General Act to additional States was given to the Council of the League. The
disappearance of the Council put an end to this method of widening the
operation of the 1928 Act and prejudiced, in consequence, the achievement
of a universal system of pacific settlement founded on the Act. It did not,
however, impair in any way the operation of the Act as between its parties.
Indeed, in principle, it did not preclude the parties to the Act from
agreeing among themselves to open it to accession by additional States.
47. Analysis of the relevant provisions of the General Act of 1928 thus
suffices, by itself, to show that neither the dissolution of 1946 of the
Permanent Court of International Justice nor that of the several organs of
the League of Nations can be considered as "a cause of extinction" of the
Act. This conclusion is strongly reinforced by the fact, already mentioned,
that a large number of treaties for the pacific settlement of disputes,
clauses of which make reference to organs of the League, are undoubtedly
accepted as still in force; and that some of them have been applied in
practice since the demise of the League. For present purposes, it is enough
to mention the application by France herself and by Spain of their bilateral
Treaty of Arbitration of 10 July 1929 as the basis for the constitution of
the Lac Lanoux Arbitral Tribunal in 1956 (UNRIAA, Vol. 12, at p. 285). That
convention was conspicuously a treaty of the League of Nations era,
containing references to the Covenant and to the Council of the League as
well as to the Permanent Court. Moreover, some of those references did not
deal with the mere machinery of peaceful settlement
[p 335] procedures, but with matters of substance. Article 20, for example,
expressly reserved to the parties, in certain events, a right of unilateral
application to the Council of the League; and Article 21, which required
provisional measures to be laid down by any tribunal dealing with a dispute
under the treaty, provided that "it shall be the duty of the Council of the
League of Nations, if the question is brought before it, to ensure that
suitable provisional measures be taken". Those Articles provided for much
more substantial links with organs of the League than anything contained in
the 1928 Act; yet both France and Spain appear to have assumed that the
treaty was in force in 1956 notwithstanding the demise of the League.
***
The So-Called Revision of the General Act
48. In the case of the 1928 Act, the French Government maintains that the
so-called revision of the General Act undertaken by the General Assembly in
1948 implies that the demise of the League was recognized as having rendered
it impossible for the 1928 Act to continue to function normally. This
interpretation of the proceedings of the General Assembly and the Interim
Committee regarding the "revision" of the Act does not seem to us
sustainable. Belgium introduced her proposal for the revision of the 1928
Act in the Interim Committee at a time when the General Assembly was engaged
in revising a number of treaties of the League of Nations era in order to
bring their institutional machinery and their terminology into line with the
then new United Nations system. It is therefore understandable that,
notwithstanding the automatic transfers of functions already effected by
Article 37 of the Statute and General Assembly resolution 24 (I), the
Interim Committee and the General Assembly should have concerned themselves
with the replacement of the references in the General Act to the Permanent
Court, the Council of the League and the League Secretariat by references to
their appropriate counterparts in the United Nations system.
49. In any event, what began as a proposal for the revision of the 1928
General Act was converted in the Interim Committee into the preparation of a
text of a new Revised General Act which was to be opened for accession as
an entirely independent treaty. This was to avoid the difficulty that
certain of the parties to the 1928 Act, whose agreement was necessary for
its revision, were not members of the United Nations and not taking part in
the revision (cf. Arts. 39 and 40 of the Vienna Convention on the Law of
Treaties). As the Belgian delegation explained to the Interim Committee, the
consent of the parties to the 1928 Act would now be unnecessary "since in
its final form their proposal did not suppress or [p 336] modify the General
Act, as established in 1928, but left it intact as also, therefore, whatever
rights the parties to that Act might still derive from it" (emphasis added).
This explanation was included in the Committee's report to the General
Assembly and, in our opinion, clearly implies that the 1928 Act was
recognized to be a treaty still in force in 1948. Moreover, the records of
the debates contain a number of statements by individual delegations
indicating that the 1928 Act was then understood by them to be in force; and
those statements did not meet with contradiction from any quarter.
50. Equally, the mere fact that the General Assembly drew up and opened for
accession a new Revised General Act could not have the effect of putting an
end to, or undermining the validity of, the 1928 Act. In the case of the
amendment of multilateral treaties, the principle is well settled that the
amending treaty exists side by side with the original treaty, the latter
remaining in force unamended as between those of its parties which have not
established their consent to be bound by the amending treaty (cf. Art. 40 of
the Vienna Convention on the Law of Treaties). Numerous examples of the
application of this principle are to be found precisely in the practice of
the United Nations regarding the amendment of League of Nations Treaties;
and it was this principle to which the General Assembly gave expression in
the preamble to its resolution 268A (III), by which it instructed the
Secretary-General to prepare and open to accession the text of the Revised
Act. The preamble to the resolution, inter alia, declared:
"Whereas the General Act, thus amended, will only apply as between States
having acceded thereto, and, as a consequence, will not affect the rights of
such States, parties to the Act as established on 26 September 1928, as
should claim to invoke it in so far as it might still be operative."
(Emphasis added.)
It is therefore evident that the General Assembly neither intended that the
Revised General Act should put an end to its predecessor, the 1928 Act, nor
understood that this would be the result of its adoption of the Revised Act.
Such an intention in the General Assembly would indeed have been surprising
when it is recalled that the "revision" of the General Act was undertaken in
the context of a programme for encouraging the development of methods for
the pacific settlement of disputes.
51. In the above-quoted clause of the preamble, it is true, resolution 268A
(III) qualifies the statement that the amendments would not affect rights of
parties to the 1928 Act by the words "in so far as it might still be
operative". Moreover, in another clause of the preamble the resolution also
speaks of its being "expedient to restore to the General Act its original
efficacy, impaired by the fact that the organs of the League of Nations and
the Permanent Court of International Justice to which it refers have now
disappeared". We cannot, however, accept the suggestion that by these
phrases the General Assembly implied that the 1928 Act [p 337] was no longer
capable of functioning normally. These phrases find a sufficient explanation
in the fact, which we have already mentioned, that the disappearance of the
League organs and the Permanent Court would affect certain provisions
regarding alternative methods for setting up conciliation commissions or
arbitral tribunals, which might in the event of disagreements impair the
efficacy of the procedures provided by the Act.
52. But there was also another reason for including those words in the
preamble to which the Interim Committee drew attention in its report (UN
doc. A/605, para. 46):
"Thanks to a few alterations, the new General Act would, for the benefit of
those States acceding thereto, restore the original effectiveness of the
machinery provided in the Act of 1928, an Act which, though still
theoretically in existence, has largely become inapplicable.
It was noted, for example, that the provisions of the Act relating to the
Permanent Court of International Justice had lost much of their
effectiveness in respect of parlies which are not members of the United
Nations or parties to the Statute of the International Court of Justice."
(Emphasis added.)
In 1948 several parties to the 1928 Act were neither members of the United
Nations nor parties to the Statute of this Court so that, even with the aid
of Article 37 of the Statute, the provisions in the 1928 Act on judicial
settlement were not "operative" as between them and other parties to the
Act. Therefore, in this respect also it could properly be said that the
original efficacy of the 1928 Act had been impaired. On the other hand, the
clear implication, a contrario, of the Interim Committee's report was that
the provisions of the 1928 Act concerning judicial settlement�Article
17�had not lost their efficacy as between those of its parties who were
parties to the Statute of this Court.
***
The Question of the Continued Force of the 1928 Act
53. Equally, we do not find convincing the thesis put forward by the French
Government that the 1928 Act cannot serve as a basis for the competence of
the Court because of "the desuetude into which it has fallen since the
demise of the League of Nations system". Desuetude is not mentioned in the
Vienna Convention on the Law of Treaties as one of the grounds for
termination of treaties, and this omission was deli-[p 338] berate. As the
International Law Commission explained in its report on the Law of Treaties:
". . . while 'obsolescence' or 'desuetude' may be a factual cause of the
termination of a treaty, the legal basis of such termination, when it
occurs, is the consent of the parties to abandon the treaty, which is to be
implied from their conduct in relation to the treaty" (Yearbook of the
International Law Commission, 1966, Vol. II, p. 237).
In the present instance, however, we find it impossible to imply from the
conduct of the parties in relation to the 1928 Act, and more especially from
that of France prior to the filing of the Application in this case, their
consent to abandon the Act.
54. Admittedly, until recently the Secretary-General was not called upon to
register any new accession or other notification in relation to the 1928
Act. But this cannot be considered as evidence of a tacit agreement to
abandon the treaty, since multilateral treaties not infrequently remain in
force for long periods without any changes in regard to their parties.
55. Nor is such evidence to be found in the fact, referred to in the Annex
to the French Government's letter of 16 May 1973, that "Australia and Canada
did not feel, in regard to the Act, any need to regularize their
reservations of 1939 as they did those expressed with regard to their
optional declarations". The reservations in question, made by both countries
four days after the outbreak of the Second World War, notified the
depositary that they would not regard their accessions to the 1928 Act as
"covering or relating to any dispute arising out of events occurring during
the present crisis". These reservations were not in accord with Article 45
of the 1928 Act, which permitted modification of the terms of an accession
only at the end of each successive five-year period for which the Act runs
unless denounced. But both countries justified the reservations on the
basis of the breakdown of collective security under the League and the
resulting fundamental changes in the circumstances existing when they
acceded to the Act; and if that justification was well founded there was no
pressing need to "regularize" their reservations in 1944 when the current
five-year period was due to expire. Nor would it be surprising if in that
year of raging war all over the globe they should not have had their
attention turned to this question. Moreover, the parallelism suggested
between the position of these two countries under the 1928 Act and under the
optional clause is in any case inexact. Their declarations under the
optional clause expired in 1940, so that they were called upon to re-examine
their declarations; under Article 45 of the 1928 Act, on the other hand,
their accessions remained in force inde-finitely unless denounced.
56. A more general argument in the Annex to the letter of 16 May 1973,
regarding a lack of parallelism in States' acceptance respectively of the
1928 Act and the optional clause, also appears to us unconvincing.[p 339]
The desuetude of the 1928 Act, it is said, ought to be inferred from the
following facts: up to 1940 reservations made to the 1928 Act and to the
optional clause were always similar but after that date the parallelism
ceased; reservations to the optional clause then became more restrictive and
yet the same States appeared unconcerned with the very broad jurisdiction to
which they are said to have consented under the Act.
57. Even before 1940, however, the suggested parallelism was by no means
complete. Thus, France's declaration of 19 September 1929, accepting the
optional clause, did not contain the reservation of matters of domestic
jurisdiction which appeared in her accession to the 1928 Act; and the
declarations made in that period by Australia, Canada, New Zealand and the
United Kingdom did not exclude disputes with non-member States, as did their
accessions to the 1928 Act. The provisions of Articles 39 and 45 of the Act
in any case meant that there were material differences in the conditions
under which compulsory jurisdiction was accepted under the two instruments.
Moreover, even granting that greater divergencies appear in the two systems
after 1940, this is open to other explanations than the supposed desuetude
of the 1928 Act. The more striking of these divergencies arise from
reservations to the optional clause directed to specific disputes either
already existing or imminently expected. Whereas under the optional clause
many States have placed themselves in a position to change the terms of
their declarations in any manner they may wish, without notice and with
immediate effect, their position under the 1928 General Act is very
different by reason of the provisions of Articles 39 and 45 regulating the
making and taking effect of reservations. Because of these provisions a new
reservation to the 1928 Act directed to a specific matter of dispute may
serve only to alert the attention of the other party to the State's
obligations under the Act and hasten a decision to institute proceedings
before the reservation becomes effective under Article 45. In short, any
parallelism between the optional clause and the 1928 Act is in this respect
an illusion.
58. As to the further suggestion in the above-mentioned letter that if the
1928 Act were still in force the refusal of Australia, New Zealand and
France to become parties to the Revised General Act would be difficult to
explain, this does not appear to us to bear a moment's examination. Since
1946, the 1928 Act has had a limited number of existing parties and has been
open to accession only by a small and finite group of other States, while
the Revised General Act is open to accession by a much wider and still
expanding group of States. Accordingly, it is no matter for surprise that
parties to the 1928 General Act should have been ready simply to continue as
such, while not prepared to take the new step of assuming more wide-ranging
commitments under the Revised Act. Even more decisive is the fact that, of
the six parties to the 1928 Act which have
[p 340] become parties to the Revised Act, at least four are on record as
formally recognizing that the 1928 Act is also still in force for them.
59. It follows that, in our opinion, the various considerations advanced in
the French Government's letter and Annex of 16 May 1973 fall far short of
establishing its thesis that the 1928 Act must now be considered as having
fallen into desuetude. Even if this were not the case, the State practice in
relation to the Act in the post-war period, more especially that of France
herself, appears to us to render that thesis manifestly untenable.
***
Evidence of the 1928 Act's Continuance in Force
60. Between the dissolution of the League of Nations in April 1946 and
Australia's invocation of the 1928 Act in her Application of 9 May 1973
there occurred a number of examples of State practice which confirm that, so
far from abandoning the Act, its parties continued to recognize it as a
treaty in force. The first was the conclusion of the Franco-Siamese
Settlement Agreement on 17 November 1946 for the purpose of re-establishing
the pre-war territorial situation on Siam's borders and renewing friendly
relations between the two countries. Siam was not a party to the General Act
of 1928, but in the Franco-Siamese Treaty of Friendship of 1937 she had
agreed to apply the provisions of the Act for the settlement of any disputes
with France. Under the Settlement Agreement of 1946 France and Siam agreed
to constitute immediately "a Conciliation Commission, composed of the
representatives of the Parties and three neutrals, in accordance with the
General Act of Geneva of 26 September 1928 for the Pacific Settlement of
International Disputes, which governs the constitution and working of the
Commission". The 1928 Act, it is true, applied between France and Siam, not
as such, but only through being incorporated by reference into the 1937
Treaty of Friendship. But it is difficult to imagine that in November 1946,
a few months after she had participated in the dissolution of the League,
France should have revived the operation of the provisions of the 1928 Act
in her relations with Siam if she had believed the dissolution of the League
to have rendered that Act virtually defunct.
61. In 1948-1949, as we have already pointed out, a number of member States
in the debates and the General Assembly in resolution 268A (III) referred to
the 1928 Act, as still in force, and met with no contradiction. In 1948 also
the 1928 Act was included in New Zealand's official treaty list published in
that year. Again, in 1949, the Norwegian Foreign Minister, in reporting to
parliament on the Revised Act, stated that the 1928 Act was still in force,
and in 1950 the Swedish Government did likewise in referring the Revised Act
to the Swedish parliament. Similarly, [p 341] in announcing Denmark's
accession to the Revised Act in 1952, the Danish Government referred to the
1928 Act as still in force.
**
62. Accordingly, France was doing no more than conform to the general
opinion when in 1956 and 1957 she made the 1928 Act one of the bases of her
claim against Norway before this Court in the Certain Norwegian Loans case
(I.C.J. Reports 1957, p. 9). In three separate passages of her written
pleadings France invoked the 1928 Act as a living, applicable, treaty
imposing an obligation upon Norway to submit the dispute to arbitration; for
in each of these passages she characterized Norway's refusal to accept
arbitration as a violation, inter alia, of the General Act of 1928 (I.C.J.
Pleadings, Certain Norwegian Loans case, Vol. I, at pp. 172, 173 and 180).
She did so again in a diplomatic Note of 17 September 1956, addressed to the
Norwegian Government during the course of the proceedings and brought to the
attention of the Court (ibid., p. 211), and also at the oral hearings
(ibid., Vol. II, p. 60). The reason was that Norway's refusal to arbitrate
was a specific element in the French claim that Norway was not entitled
unilaterally to modify the conditions of the loans in question "without
negotiation with the holders, with the French State which has adopted the
cause of its nationals, or without arbitration . . ." (I.C.J. Reports 1957,
at. p 18, emphasis added). Consequently, the explanation given in the Annex
to the French Government's letter of 16 May 1973 that it had confined itself
in the Certain Norwegian Loans case "to a very brief reference to the
General Act, without relying on it expressly as a basis of its claim", is
not one which it is possible to accept.
63. Nor do we find the further explanation given by the French Government
in that Annex any more convincing. In effect this is that, if the 1928 Act
had been considered by France to be valid at the time of the Certain
Norwegian Loans case, she would have used it to found the jurisdiction of
the Court in that case so as to "parry the objection which Norway was to
base upon the reciprocity clause operating with reference to the French
Declaration"; and that her failure to found the Court's jurisdiction on the
1928 Act "is only explicable by the conviction that in 1955 it had fallen
into desuetude". This explanation does not hold water for two reasons.
First, it does not account for the French Government's repeated references
to the 1928 Act as imposing an obligation on Norway in 1955 to arbitrate,
one of which included a specific mention of Chapter II of the Act relating
to judicial settlement. Secondly, it is not correct that France, by founding
the Court's jurisdiction on the Act, would have been able to escape the
objection to jurisdiction under the optional clause raised by Norway on [p
342] the basis of a reservation in France's declaration; and it is
unnecessary to look further than to Article 31, paragraph 1, of the 1928 Act
for the reason why France did not invoke the Act as a basis for the Court's
jurisdiction. This paragraph reads:
"In the case of a dispute the occasion of which, according to the municipal
law of one of the parties, falls within the competence of its judicial or
administrative authorities, the party in question may object to the matter
in dispute being submitted for settlement by the different methods laid down
in the present General Act until a decision with final effect has been
pronounced . . ." (Emphasis added.)
Since the French bond holders had deliberately abstained from taking any
action in the Norwegian tribunals, the above clear and specific provision of
Article 31 constituted a formidable obstacle to establishing the Court's
jurisdiction on the basis of the 1928 Act.
64. Thus, the position taken by France in the Certain Norwegian Loans case,
so far from being explicable only on the basis of a conviction of the
desuetude of the Act, provides evidence of the most positive kind of her
belief in its continued validity and efficacy at that date. As to Norway, it
is enough to recall her Government's statement in Parliament in 1949 that
the 1928 Act remained in force, and to add that at no point in the Certain
Norwegian Loans case did Norway question either the validity or the efficacy
of the Act as an instrument applicable between herself and France at that
date.
65. Furthermore, the interpretation placed in the Annex on the treatment of
the 1928 Act by the Court and Judge Basdevant in the Certain Norwegian Loans
case does not seem to us to be sustained by the record of the case. The
Court did not, as the French Government maintains, have to decide the
question of the 1928 Act. Stressing that France had based her Application
"clearly and precisely on the Norwegian and French declarations under
Article 36, paragraph 2, of the Statute", the Court held it "would not be
justified in seeking a basis for its jurisdiction different from that which
the French Government itself set out in its Application...". Having so held,
it examined the question of its jurisdiction exclusively by reference to the
parties' declarations under the optional clause and made no mention of the
1928 Act. As to Judge Basdevant, at the outset of his dissenting opinion (p.
71) he emphasized that on the question of jurisdiction he did not dispute
the point of departure on which the Court had placed itself. In holding that
the matters in dispute did not fall within the reservation of matters of
domestic jurisdiction, on the other hand, he expressly relied on the 1928
Act as one of his grounds for so holding. The fact that the Court did not
follow him in this approach to the interpretation of the reservation
cannot, in our view, be understood as meaning that it rejected his view as
to the 1928 Act's being in force between France [p 343] and Norway. Indeed,
if that had been the case, it is almost inconceivable that Judge Basdevant
could have said, as he did, of the 1928 Act: "At no time has any doubt been
raised as to the fact that this Act is binding as between France and Norway"
(I.C.J. Reports 1957, p. 74).
66. The proceedings in the Certain Norwegian Loans case, therefore, in
themselves constitute unequivocal evidence that the 1928 Act did survive the
demise of the League and was recognized by its parties, in particular by
France, as in force in the period 1955-1957. We may add that in this period
statements by parties to the 1928 Act are also to be found in the records of
the proceedings of the Council of Europe leading to the adopting of the
European Convention for the Pacific Settlement of International Disputes in
1957, which show that they considered the Act to be still in force. A Danish
delegate, for example, stated in the Consultative Assembly in 1955, without
apparent contradiction from anyone, that the 1928 Act "binds twenty States".
67. No suggestion is made in the letter of 16 May 1973 or its Annex that, if
the 1928 Act was in force in 1957, there was nevertheless some development
which deprived it of validity before Australia filed her Application; nor
does the information before the Court indicate that any such development
occurred. On the contrary, the evidence consistently and pointedly confirms
the belief of the parties to the 1928 Act as to its continuance in force. In
1966 Canada's official publication The Canada Treaty Series: 1928-1964
listed the 1928 Act as in force; as likewise did Finland's list in the
following year. In Sweden the treaty list published by the Ministry of
Foreign Affairs in 1969 included the 1928 Act, with a footnote "still in
force as regards some countries". In 1971 the Netherlands Minister for
Foreign Affairs, in submitting the Revised Act for parliamentary approval,
referred to the 1928 Act as an agreement to which the Netherlands is a party
and, again, as an Act "which is still in force for 22 States"; and
Australia's own official treaty list published in that year included the
1928 Act. In addition, the 1928 Act appears in a number of unofficial treaty
lists compiled in different countries.
68. As to France herself, there is nothing in the evidence to show any
change of position on her part regarding the 1928 Act prior to the filing of
Australia's Application on 9 May 1973. Indeed, a written reply to a deputy
in the National Assembly, explaining why France was not con-templating
ratification of the European Convention for the Pacific Settlement of
Disputes, gives the opposite impression. That reply stated that, like the
majority of European States, France was already bound by numerous
obligations of pacific settlement amongst which was mentioned "l'Acte
general d'arbitrage du 26 septembre 1928 revise en 1949". The [p 344] French
Government, in a footnote in the Livre blanc sur les experiences nucleaires,
has drawn attention to the confused character of the reference to the 1928
Act revised in 1949. Even so, and however defective the formulation of the
written reply, it is difficult to understand it in any other way than as
confirming the position taken up by the French Government in the Certain
Norwegian Loans case, that the 1928 Act was to be considered as a treaty in
force with respect to France ; for France had not ratified the Revised
General Act and could be referred to as bound by the General Act only in its
original form, the 1928 Act.
69. Accordingly, we are bound to conclude that the 1928 Act was a treaty in
force between Australia and France on 9 May 1973 when Australia's
Application in the present case was filed. Some months after the filing of
the Application, on 10 January 1974, the French Government transmitted to
the Secretary-General a notification of its denunciation of the Act,
without prejudice to the position which it had taken regarding the lack of
validity of the Act. Under the settled jurisprudence of the Court, however,
such a notification could not have any retroactive effect on jurisdiction
conferred upon the Court earlier by the filing of the Application; the
Nottebohm case (Preliminary Objection, I.C.J. Reports 1953, at pp. 120-124).
70. Nor, in our view, can the conclusion that the 1928 Act was a treaty in
force between Australia and France on 9 May 1973 be in any way affected by
certain action taken with respect to the Act since that date by two other
States, India and the United Kingdom. In the case con-cerning Trial of
Pakistani Prisoners of WarFN1, by a letter of 24 June 1973 India informed
the Court of its view that the 1928 Act had ceased to be a treaty in force
upon the disappearance of the organs of the League of Nations. Pakistan,
however, expressed a contrary view and has since addressed to the
Secretary-General a letter from the Prime Minister of Pakistan affirming
that she considers the Act as continuing in force. Again, although the
United Kingdom, in a letter of 6 February 1974, referred to doubts having
been raised as to the continued legal force of the Act and notified the
Secretary-General of its denunciation of the Act in conformity with the
provisions of paragraph 2 of Article 45, it did so in terms which do not
prejudge the question of the continuance in force of the Act. In any event,
against these inconclusive elements of State practice in relation to the
1928 Act which have occurred since the filing of Australia's Application, we
have to set the many indications of the Act's continuance in force, some
very recent, to which we have already drawn attention. Moreover, it is
axiomatic that the termination of a multilateral treaty requires the express
or tacit consent of all the parties, a requirement which is manifestly not
fulfilled in the present instance.
---------------------------------------------------------------------------------------------------------------------
FN1 I.C.J. Reports 1973, p. 348.
---------------------------------------------------------------------------------------------------------------------
[p 345]
We are therefore clearly of the opinion that Article 17 of the 1928 Act, in
combination with Article 37 of the Statute of the Court, provided Australia
with a valid basis for submitting the Nuclear Tests case to the Court on 9
May 1973, subject only to any particular difficulty that might arise in the
application of the Act between Australia and France by reason of
reservations made by either of them. This question we now proceed to
examine.
***
Applicability of the 1928 Act as Between Australia and France
71. The French Government has urged in the Annex to its letter of 16 May
1973 that, even if the 1928 Act should be considered as not having lost its
validity, it would still not be applicable as between Australia and France
by reason of two reservations made by Australia to the Act itself and, in
addition, a reservation made by France to its Declaration under the optional
clause of 20 May 1966.
72. The Australian reservations to the 1928 Act here in question are (1) a
clause allowing the temporary suspension of proceedings under the Act in the
case of a dispute that was under consideration by the Council of the League
of Nations and (2) another clause excluding from the scope of the Act
disputes with any State party to the Act but not a member of the League of
Nations. The disappearance of the League of Nations, it is said, means that
there is now uncertainty as to the scope of these reservations; and this
uncertainty, it is further said, is entirely to the advantage of Australia
and unacceptable.
73. The clause concerning suspension of proceedings was designed merely to
ensure the primacy of the powers of the Council of the League in the
handling of the disputes; and the disappearance of the Council, in our
opinion, left intact the general obligations of pacific settlement
undertaken in the Act itself. Indeed, a similar reservation was contained in
a number of the declarations made under the optional clause of the Statute
of the Permanent Court of International Justice, and there has never been
any doubt that those declarations remained effective notwithstanding the
demise of the Council of the League. Thus, in the Anglo-Iranian Oil Co. case
the declarations of both Parties contained such a reservation and yet it was
never suggested that the demise of the Council of the League had rendered
either of them ineffective. On the contrary, Iran invoked the reservation,
and the United Kingdom contested Iran's right to do so only on the ground
that the merits of the dispute were not [p 346] under consideration by the
Security Council (I.C.J. Pleadings, Anglo-Iranian Oil Co. case, pp. 282 and
367-368). Furthermore, France's own accession to the 1928 Act contained a
reservation in much the same terms and yet in the Certain Norwegian Loans
case she does not seem to have regarded this fact as any obstacle to the
application of the Act between herself and Norway.
74. Equally, the disappearance of the League of Nations cannot be considered
as having rendered the general obligations of pacific settlement embodied in
the 1928 Act inapplicable by reason of Australia's reservation excluding
disputes with States not members of the League. This Court has not hesitated
to apply the term Member of the League of Nations in connection with the
Mandate of South West Africa (I.C.J. Reports 1950, pp. 138, 158-159 and 169;
South West Africa cases, I.C.J. Reports 1962, pp. 335-338); nor has the
Secretary-General in discharging his functions as depositary of the League
of Nations multilateral treaties open to participation by States "Members of
the League of Nations".
75. Should any question arise in a case today concerning the application of
either of the two reservations found in Australia's accession to the 1928
Act, it would be for the Court to determine the status of the reservation
and to appreciate its meaning and effect. Even if the Court were to hold
that one or other reservation was no longer capable of application, that
would not detract from the essential validity of Australia's accession to
the 1928 Act. Moreover, owing to the well-settled principle of reciprocity
in the application of reservations, any uncertainty that might exist as to
the scope of reservations could not possibly work entirely to the advantage
of Australia. It may be added that France has not suggested that the present
case itself falls within the operation of either reservation.
76. In the light of the foregoing considerations, we are unable to see in
Australia's reservations any obstacle to the applicability of the 1928 Act
as between her and France.
***
77. Another and quite different ground is, however, advanced by the French
Government for considering the 1928 Act inapplicable between France and
Australia with respect to the present dispute. The terms of the declarations
of the two countries under the optional clause, it is said, must be regarded
as prevailing over the terms of their accessions to the 1928 Act. In
consequence, even on the hypothesis of the validity of the 1928 Act, the
reservations in France's declaration of 1966 under the optional clause are,
she maintains, to be treated as applicable. Those reservations include the
one which excepts from France's acceptance [p 347] of jurisdiction under the
optional clause "disputes concerning activities connected with national
defence"; and according to the French Government that reservation
necessarily covers the present dispute regarding atmospheric nuclear weapon
tests conducted by France.
*
78. One argument advanced in support of that contention is that, the Statute
of the Court being an integral part of the Charter of the United Nations,
the obligations of Members undertaken on the basis of the optional clause of
the Statute must in virtue of Article 103 of the Charter be regarded as
prevailing over their obligations under the 1928 Act. This argument appears
to us to be based on a misconception. The Charter itself places no
obligation on member States to submit their disputes to judicial settlement,
and any such obligation assumed by a Member under the optional clause of the
Statute is therefore undertaken as a voluntary and additional obligation
which does not fall within the purview of Article 103. The argument is, in
any case, self-defeating because it could just as plausibly be argued that
the obligations undertaken by parties to the 1928 Act are obligations under
Article 36 (1) of the Statute and thus also obligations under the Charter.
*
79. The French Government, however, also rests the contention on the ground
that the situation here is analogous to one where there is "a later treaty
relating to the same subject-matter as a treaty concluded earlier in the
relations between the same countries". In short, according to the French
Government, the declarations of the Parties under the optional clause are to
be considered as equivalent to a later treaty concerning acceptance of
compulsory jurisdiction which, being a later expression of the wills of the
Parties, should prevail over the earlier Act of 1928, relating to the same
subject-matter. In developing this argument, we should add, the French
Government stresses that it does not wish to be understood as saying that,
whenever any treaty contains a clause conferring jurisdiction on the Court,
a party may release itself from its obligations under that clause by an
appropriate reservation inserted in a subsequent declaration under the
optional clause. The argument applies only to the case of a treaty, like the
General Act, "the exclusive object of which is the peaceful settlement of
disputes, and in particular judicial settlement".
80. This argument appears to us to meet with a number of objections, [p 348]
not the least of which is the fact that "treaties and conventions in force"
and declarations under the optional clause have always been regarded as two
different sources of the Court's compulsory jurisdiction. Jurisdiction
provided for in treaties is covered in paragraph 1 of Article 36 and
jurisdiction under declarations accepting the optional clause in paragraph
2; and the two paragraphs deal with them as quite separate categories. The
paragraphs reproduce corresponding provisions in Article 36 of the Statute
of the Permanent Court, which were adopted to give effect to the compromise
reached between the Council and other Members of the League on the question
of compulsory jurisdiction. The compromise consisted in the addition, in
paragraph 2, of an optional clause allowing the establishment of the Court's
compulsory jurisdiction over legal disputes between any States ready to
accept such an obligation by making a unilateral declaration to that effect.
Thus, the optional clause was from the first conceived of as an independent
source of the Court's jurisdiction.
81. The separate and independent character of the two sources of the Court's
jurisdiction�treaties and unilateral declarations under the optional
clause�is reflected in the special provisions inserted in the present
Statute for the purpose of preserving the compulsory jurisdiction attaching
to the Permanent Court at the time of its dissolution. Two different
provisions were considered necessary to achieve this purpose: Article 36 (5)
dealing with jurisdiction under the optional clause, and Article 37 with
jurisdiction under "treaties and conventions in force". The separate and
independent character of the two sources is also reflected in the
jurisprudence of both Courts. The Permanent Court in its Order refusing
provisional measures in the Legal Status of the South-Eastern Territory of
Greenland case and with reference specifically to a clause in the 1928 Act
regarding provisional measures, underlined that a legal remedy would be
available "even independently of the acceptance by the Parties of the
optional clause" (P.C.I.J., Series A/B, No. 48, at p. 289). Again, in the
Electricity Company of Sofia and Bulgaria case the Permanent Court held
expressly that a bilateral treaty of conciliation, arbitration and judicial
settlement and the Parties' declarations under the optional clause opened
up separate and cumulative ways of access to the Court; and that if
examination of one of these sources of jurisdiction produced a negative
result, this did not dispense the Court from considering "the other source
of jurisdiction invoked separately and independently from the first"
(P.C.I.J., Series A/B, No. 77, at pp. 76 and 80). As to this Court, in the
Barcelona Traction, Light and Power Company, Limited case it laid particular
emphasis on the fact that the provisions of Article 37 of the Statute
concerning "treaties and conventions in force" deal with "a different
category of instrument" from the unilateral declarations to which Article 36
(5) relates (I.C.J. Reports 1964, at p. 29). More recently, in the Appeal
Relating to the Jurisdiction of the ICAO Council case the Court based one of
its conclusions specifi-[p 349] cally on the independent and autonomous
character of these two sources of its jurisdiction (I.C.J. Reports 1972, at
pp. 53 and 60).
*
82. In the present instance, this objection is reinforced by the fact that
the 1928 Act contains a strict code of rules regulating the making of
reservations, whereas no such rules govern the making of reservations to
acceptances of the Court's jurisdiction under the optional clause. These
rules, which are to be found in Articles 39, 40, 41, 43 and 45 of the Act,
impose restrictions, inter alia, on the kinds of reservations that are
admissible and the times at which they may be made and at which they will
take effect. In addition, a State accepting jurisdiction under the optional
clause may fix for itself the period for which its declaration is to run and
may even make it terminable at any time by giving notice, whereas Article 45
(1) of the Act prescribes that the Act is to remain in force for successive
fixed periods of five years unless denounced at least six months before the
expiry of the current period. That the framers of the 1928 Act deliberately
differentiated its regime in regard to reservations from that of the
optional clause is clear; for the Assembly of the League, when adopting the
Act, simultaneously in another resolution drew the attention of States to
the wide possibilities of limiting the extent of commitments under the
optional clause "both as regards duration and as regards scope".
Consequently, to admit that reservations made by a State under the
uncontrolled and extremely flexible system of the optional clause may
automatically modify the conditions under which it accepted jurisdiction
under the 1928 Act would run directly counter to the strict system of
reservations deliberately provided for in the Act.
83. The French Government evidently feels the force of that objection; for
it suggests that its contention may be reconciled with Article 45 (2) of the
Act, which requires any changes in reservations to be notified at least six
months before the end of the current five-year period of the Act's duration,
by treating France's reservations made in her 1966 declaration as having
taken effect only at the end of the then current period, namely in September
1969. This suggestion appears, however, to disregard the essential nature of
a reservation. A reservation, as Article 2, paragraph 1 (d), of the Vienna
Convention on the Law of Treaties records, is:
"... a unilateral statement, however phrased or named, made by a State, when
signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effect [p 350] of certain
provisions of the treaty in their application to that State".
Thus, in principle, a reservation relates exclusively to a State's
expression of consent to be bound by a particular treaty or instrument and
to the obligations assumed by that expression of consent. Consequently, the
notion that a reservation attached to one international agreement, by some
unspecified process, is to be superimposed upon or transferred to another
international instrument is alien to the very concept of a reservation in
international law; and also cuts across the rules governing the
notification, acceptance and rejection of reservations. The mere fact that
it never seems to have occurred to the Secretary-General of the League or of
the United Nations that reservations made in declarations under the optional
clause are of any concern whatever to parties to the General Act shows how
novel is this suggestion.
*
84. The novelty is further underlined by the fact that, whenever States have
desired to establish a link between reservations to jurisdiction under the
optional clause and jurisdiction under a treaty, this has been done by an
express provision to that effect. Thus, the parties to the Brussels Treaty
of 17 March 1948 agreed in Article VIII to refer to the Court all disputes
falling within the scope of the optional clause subject only, in the case of
each of them, to any reservation already made by that party when accepting
that clause. Even in that treaty, we observe, the parties envisaged the
application to jurisdiction under the treaty only of optional clause
reservations "already made". Article 35, paragraph 4, of the European
Convention for the Peaceful Settlement of Disputes goes further in that it
empowers a party at any time, by simple declaration, to make the same
reservations to the Convention as it may make to the optional clause. But
under this Article a specific declaration, made with particular reference to
the European Convention, is needed in order to incorporate reservations
contained in a party's declaration under the optional clause into its
acceptance of jurisdiction under the Convention. Moreover, the power thus
given by Article 35, paragraph 4, of the Convention is expressly subjected
to the general restrictions on the making of reservations laid down in
paragraph 1 of that Article, which confine them to reservations excluding
"disputes concerning particular cases or clearly specified special matters,
such as territorial disputes, or disputes falling within clearly defined
categories" (language taken directly from Art. 39, para. 2 (c), of the 1928
Act). It therefore seems to us abundantly clear that the European States
which framed these two European treaties assumed that declarations under the
optional clause, whether prior or subsequent to the treaty, would not have
any effect on the jurisdictional obligations of the parties under the
treaty, unless they inserted an express [p 351] provision to that effect;
and that this they were only prepared to agree to under conditions specially
stipulated in the treaty in question.
85. The question of the relation between reservations made under the
optional clause and jurisdiction accepted under treaties has received
particular attention in the United States in connection with the so-called
"Connally Amendment", the adoption of which by the Senate resulted in the
United States inserting in its declaration under the optional clause its
well-known "self-judging" form of reservation with regard to matters of
domestic jurisdiction. Two years later, the United States signed the Pact of
Bogota, a general inter-American treaty of pacific settlement which
conferred jurisdiction on the Court for the settlement of legal disputes "in
conformity with Article 36 (2) of the Statute". The United States, however,
made its signature subject to the reservation that its acceptance of
compulsory jurisdiction under the Pact is to be limited by "any
jurisdictional or other limitations contained in any declaration deposited
by the United States under the optional clause and in force at the time of
the submission of any case". It thus appears to have recognized that its
reservations to the optional clause would not be applicable unless it made
provision for this specially by an appropriate reservation to the Pact of
Bogota itself. This is confirmed by the facts that, whenever it has desired
the Connally reservation to apply to jurisdiction conferred by treaty, the
United States has insisted on the inclusion of a specific provision to that
effect, and that the Department of State has consistently advised that,
without such a provision, the Connally reservation will not apply (cf.
American Journal of International Law, 1960, pp. 941-942, and, ibid., 1961,
pp. 135-141). Moreover, the Department of State has taken this position not
merely with reference to jurisdictional clauses attached to treaties dealing
with a particular subject-matter, but also with reference to optional
protocols, the sole purpose of which was to provide for the judicial
settlement of certain categories of legal disputes (cf. Whiteman's Digest of
International Law, Vol. 12, p. 1333). On this point, the United States
appears clearly to recognize that any jurisdiction conferred by treaty on
the Court under Article 36 (1) of the Statute is both separate from and
independent of jurisdiction conferred on it under Article 36 (2) by
accepting the optional clause. Thus, in a report on ratification of the
Supplementary Slavery Convention, the Foreign Relations Committee of the
Senate said: "Inasmuch as the Connally amendment applies to cases referred
to the Court under Article 36 (2), it does not apply to cases referred under
Article 36 (1) which would include cases arising out of this Convention."
(US Senate, 90 Congress, 1st Session, Executive Report No. 17, p. 5.) [p
352]
86. In our opinion, therefore, the suggestion that the reservation made by
France in her optional clause declaration of 1966 ought to be considered as
applicable to the Court's jurisdiction under the 1928 Act does not accord
with either principle or practice.
***
87. It remains to consider the French Government's main thesis that the
terms of its 1966 declaration must be held to prevail over those of the 1928
Act on the ground that the optional clause declarations of France and
Australia are equivalent to a later treaty relating to the same
subject-matter as the 1928 Act. This proposition seems probably to take its
inspiration from the dissenting opinions of four judges in the Electricity
Company of Sofia and Bulgaria case (P.C.I.J., Series A/B, No. 77), although
the case itself is not mentioned in the French Government's letter of 16 May
1973. These judges, although their individual reasoning differed in some
respects, were at one in considering that a bilateral treaty of
conciliation, arbitration and judicial settlement concluded between Belgium
and Bulgaria in 1931 should prevail over the declarations of the two
Governments under the optional clause, as being the later agreement between
them. Quite apart, however, from any criticisms that may be made of the
actual reasoning of the opinions, they provide very doubtful support for the
proposition advanced by the French Government. This is because the situation
in that case was the reverse of the situation in the present case; for there
the bilateral treaty was the more recent "agreement". It is one thing to
say that a subsequent treaty, mutually negotiated and agreed, should prevail
over an earlier agreement resulting from separate unilateral acts; it is
quite another to say that a State, by its own unilateral declaration alone,
may alter its obligations under an existing treaty.
88. In any event, the thesis conflicts with the Judgment of the Permanent
Court in that case; and is diametrically opposed to the position taken by
France and by Judge Basdevant on this question in the Certain Norwegian
Loans case as well as with that taken by this Court in the Appeal Relating
to the Jurisdiction of the ICAO Council case. In the Electricity Company of
Sofia and Bulgaria case, while regarding the two optional clause
declarations as amounting to an agreement, the Permanent Court held that
they and the 1931 treaty constituted independent and alternative ways of
access to the Court both of which, and each under its own conditions, could
be used cumulatively by the Applicant in trying to establish the Court's
jurisdiction. It based its decision on what it [p 353] found was the
intention of the Parties in entering into the multiplicity of agreements:
"... the multiplicity of agreements concluded accepting the compulsory
jurisdiction is evidence that the contracting Parties intended to open up
new ways of access to the Court rather than to close old ways or allow them
to cancel each other out with the ultimate result that no jurisdiction would
remain" (emphasis added; P.C.I. J., Series A/B, No. 77, p. 76).
Moreover, as indications of this intention, it underlined that both Parties
had argued their cases "in light of the conditions independently laid down
by each of these two agreements"; and that:
"Neither the Bulgarian nor the Belgian Government at any time considered the
possibility that either of these agreements might have imposed some
restriction on the normal operation of the other during the period for which
they were both in force." (Ibid., p. 75; emphasis added.)
89. In the Certain Norwegian Loans case, as we have already indicated in
paragraphs 62-65 of this opinion, France sought to found the jurisdiction
of the Court upon the optional clause declarations alone; and she invoked
the 1928 Act, together with an Arbitration Convention of 1904 and Hague
Convention No. II of 1907, for the purpose of establishing that Norway was
subject to an obligation to submit the matters in dispute to arbitration. In
that case, therefore, the issue of the relation between the respective
jurisdictional obligations of the Parties under the optional clause and
under treaties did not arise with reference to the Court's own jurisdiction.
It was raised, however, by France herself in the context of the relation
between the obligations of the Parties to accept compulsory jurisdiction
under the optional clause and their obligations compulsorily to accept
arbitration under the three treaties. Moreover, in this context the temporal
relation between the acceptances of jurisdiction under the optional clause
and under the treaties was the same as in the present case, the three
treaties all antedating the Parties' declarations under the optional clause.
In its observations on Norway's preliminary objections, after referring to
the General Act of 1928 and the other two treaties, the French Government
invoked with every apparent approval the pronouncement of the Permanent
Court in the Electricity Company of Sofia and Bulgaria case that:
"... the multiplicity of agreements concluded accepting the compulsory
jurisdiction is evidence that the contracting Parties intended to open up
new ways of access to the Court rather than to close old ways or to allow
them to cancel each other out with the result that no jurisdiction would
remain". [p 354]
Again at the oral hearing of 14 May 1957, after referring specifically to
Article 17 of the 1928 Act, the French Government said:
"Pour que, de cette multiplicite d'engagements d'arbitrage et de
juridiction, decoule l'incompetence de la Cour, malgre la r�gle contraire
de l'arr�t Compagnie d'Electricite de Sofia, il faudrait que la Cour estime
qu'il n'y a aucun differend d'ordre juridique ..." (I.C.J. Pleadings,
Certain Norwegian Loans, Vol. II, at pp. 60-61; emphasis added.)
And in its oral reply�this time in connection with Hague Convention No. II
of 1907�the French Government yet again reminded the Court of that passage
in the Judgment in the Electricity Company of Sofia and Bulgaria case
(ibid., at p. 197).
90. The Court, in the Certain Norwegian Loans case, for the reasons which
have already been recalled, found it unnecessary to deal with this question.
Judge Basdevant, on the other hand, did refer to it and his observations
touch very directly the issue raised by the French Government in the
present case. Having pointed out that the French declaration under the
optional clause limited "the sphere of compulsory jurisdiction more than did
the General Act in relations between France and Norway", Judge Basdevant
observed :
"Now, it is clear that this unilateral Declaration by the French Government
could not modify, in this limitative sense, the law that was then in force
between France and Norway.
In a case in which it had been contended that not a unilateral declaration
but a treaty between two States had limited the scope as between them of
their previous declarations accepting compulsory jurisdiction, the Permanent
Court rejected this contention . . ." (I.C.J. Reports 1957, p. 75.)
He then quoted the passage from the Electricity Company of Sofia and
Bulgaria case about "multiplicity of agreements" and proceeded to apply it
to the Certain Norwegian Loans case as follows:
"A way of access to the Court was opened up by the accession of the two
Parties to the General Act of 1928. It could not be closed or cancelled out
by the restrictive clause which the French Government, and not the
Norwegian Government, added to its fresh acceptance of compulsory
jurisdiction stated in its Declaration of 1949. This restrictive clause,
emanating from only one of them, does not constitute the law as between
France and Norway. The clause is not sufficient to set aside the juridical
system existing between them on this point. It cannot close the way of
access to the Court that was [p 355] formerly open, or cancel it out with
the result that no jurisdiction would remain." (I.C.J. Reports 1957, pp. 75
and 76; emphasis added.)
It is difficult to imagine a more forcible rejection of the thesis that a
unilateral declaration may modify the terms on which compulsory jurisdiction
has been accepted under an earlier treaty than that of Judge Basdevant on
the Certain Norwegian Loans case.
91. The issue did arise directly with reference to the Court's jurisdiction
in the Appeal Relating to the Jurisdiction of the ICAO Council case (I.C.J.
Reports 1972, p. 46), where India in her Application had founded the
jurisdiction of the Court on certain provisions of the Convention on
International Civil Aviation and of the International Air Services Transit
Agreement, together with Articles 36 and 37 of the Statute of the Court.
Pakistan, in addition to raising certain preliminary objections to
jurisdiction on the basis of provisions in the treaties themselves, had
argued that the Court must in any event hold itself to lack jurisdiction by
reason of the effect of one of India's reservations to her acceptance of
compulsory jurisdiction under the optional clause (ibid., p. 53, and I.C.J.
Pleadings, Appeal Relating to the Jurisdiction of the ICAO Council, p. 379).
In short, Pakistan had specifically advanced in that case the very argument
now put forward by the French Government in the Annex to its letter of 16
May 1973. Furthermore, India's declaration containing the reservation in
question had been made subsequently to the conclusion of the two treaties,
so that the case was on all fours with the present case. The Court, the
Judgment shows, dealt with the treaties and the optional clause declarations
as two separate and wholly independent sources of jurisdiction. Speaking,
inter alia, of Pakistan's reliance on the reservation in India's
declaration, the Court observed:
"In any event, such matters would become material only if it should appear
that the Treaties and their jurisdictional clauses did not suffice, and that
the Court's jurisdiction must be sought outside them, which, for reasons now
to be stated, the Court does not find to be the case." (I.C.J. Reports 1972,
p. 53.)
Having then stated these reasons, which were that the Court rejected
Pakistan's preliminary objections relating to the jurisdictional clauses of
the Treaties and upheld its jurisdiction under those clauses, the Court
summarily disposed of the objection based on the reservation in India's
declaration:
"Since therefore the Court is invested with jurisdiction under those clauses
and, in consequence . . . under Article 36, paragraph 1, and under Article
37, of its Statute, it becomes irrelevant to consider the objections to
other possible bases of jurisdiction." (Ibid., p. 60; emphasis added.) [p
356]
Thus the Court expressly held the reservation in India's subsequent
declaration under the optional clause to be of no relevance whatever in
determining the Court's jurisdiction under the earlier treaties.
***
Australia's Alleged Breach of the 1928 Act in 1939
92. Finally, one further argument put forward in the Annex to the letter of
16 May 1973 for considering the 1928 Act inapplicable between France and
Australia needs to be mentioned. In connection with another contention of
the French Government, we have already referred to the notification
addressed by Australia to the Secretary-General of the League of Nations
four days after the outbreak of the Second World War to the effect that she
would not regard her accession to the Act as "covering or relating to any
dispute arising out of events occurring during present crisis" (para. 27).
The further argument now requiring our attention is that this notification
was not in accord with the provision in Article 45 concerning modification
of reservations; that Australia refrained from regularizing her position
with regard to this provision when it could have done so in 1944; and that,
although France never protested against the supposed breach of the Act, the
French Government is not bound to respect a treaty which Australia herself
has "ceased to respect since a date now long past". We have already pointed
out that Australia, as also Canada, justified her notification of the new
reservation on the basis of the breakdown of collective security under the
League and the resulting fundamental change in the situation obtaining when
she acceded to the Act, and that if that justification was well founded,
there was no pressing need to "regularize" her position under the Act in
1944. Reference to the historical context in which the Australian
notification was made shows also that this further argument lacks all
plausibility.
93. In February 1939 France, the United Kingdom, India and New Zealand each
notified the Secretary-General of their reservation from the 1928 Act of
"disputes arising out of any war in which they might be engaged". These
notifications were all made expressly under Article 45 of the Act, and were
accompanied by explanations referring to the withdrawal of some Members of
the League and the reinterpretation by others of their collective security
obligations. Having regard to the similarity of the terms of the four
notifications and the fact that they were deposited almost simultaneously
(on 14 and 15 February 1939), it seems evident that the four States acted
together. Similar action was not, however, taken by either Australia or
Canada with reference to the 1928 Act at that date. [p 358]
Conclusions on the Question of Jurisdiction
94. In our view, therefore, close examination of the various objections to
the Court's assuming jurisdiction on the basis of the General Act of 1928,
which are developed in the French Government's letter and Annex of 16 May
1973, show them all to be without any sound foundation. Nor has our own
examination of the matter, proprio motu, revealed any other objection
calling for consideration. We accordingly conclude that Article 17 of the
1928 Act provides in itself a valid and sufficient basis for the Applicant
to establish the jurisdiction of the Court in the present case.
95. It follows that, as was said by the Court in the Appeal Relating to the
Jurisdiction of the ICAO Council case, "it becomes irrelevant to consider
the objections to other possible bases of jurisdiction". We do not,
therefore, find it necessary to examine the alternative basis of
jurisdiction invoked by the Applicant, i.e., the two declarations of the
Parties under the optional clause, or any problems which the reservations to
those declarations may raise.
***
Part III. The Requirements of Article 17 of the 1928 Act and the
Admissibility of the Application
96. In our view, it is clear that there are no grounds on which the
Applicant's claim might be considered inadmissible. The extent to which any
such proposed grounds are linked to the jurisdictional issue or are
considered apart from that issue will be developed in this part of our
opinion. At the outset we affirm that there is nothing in the concept of
admissibility which should have precluded the Applicant from being given the
opportunity of proceeding to the merits. This observation applies, in
particular, to the contention that the claim of the Applicant reveals no
legal dispute or, put differently, that the dispute is exclusively of a
political character and thus non-justiciable.
97. Under the terms of Article 17 of the 1928 Act, the jurisdiction which it
confers on the Court is over "all disputes with regard to which the parties
are in conflict as to their respective rights" (subject, of course, to any
reservations made under Article 39 of the Act). Article 17 goes on to
provide: "It is understood that the disputes referred to above include in
particular those mentioned in Article 36 of the Statute of the Permanent
Court. . ." The disputes "mentioned in Article 36 of the Statute of the
Permanent Court" are the four classes of legal disputes listed [p 359] in
the optional clause of that Statute and of the present Statute. Moreover,
subject to one possible point which does not arise in the present caseFN1,
it is generally accepted that these four classes of "legal disputes" and the
earlier expression in Article 17 "all disputes with regard to which the
parties are in conflict as to their respective rights" have to all intents
and purposes the same scope. It follows that what is a dispute "with regard
to which the parties are in conflict as to their respective rights" will
also be a dispute which falls within one of the four categories of legal
disputes mentioned in the optional clause and vice versa.
---------------------------------------------------------------------------------------------------------------------
FN1 Cf. the different opinions of Judges Badawi and Lauterpacht in the
Certain Norwegian Loans case on the question whether a dispute essentially
concerning the application of municipal law falls within the classes of
legal disputes listed in Article 36 (2) of the Statute; I.C.J. Reports 1957,
at pp. 29-33 and 36-38.
---------------------------------------------------------------------------------------------------------------------
98. In the present proceedings, Australia has described the subject of the
dispute in paragraphs 2-20 of her Application. Inter alia, she there states
that in a series of diplomatic Notes beginning in 1963 she repeatedly voiced
to the French Government her opposition to France's conduct of atmospheric
nuclear tests in the South Pacific region; and she identifies the legal
dispute as having taken shape in diplomatic Notes of 3 January, 7 February
and 13 February 1973 which she annexed to her Application. In the first of
these three Notes, the Australian Government made clear its opinion that the
conducting of such tests would:
". . . be unlawful�particularly in so far as it involves modification of the
physical conditions of and over Australian territory; pollution of the
atmosphere and of the resources of the seas; interference with freedom of
navigation both on the high seas and in the airspace above; and infraction
of legal norms concerning atmospheric testing of nuclear weapons".
This opinion was challenged by the French Government in its reply of 7
February 1973, in which it expressed its conviction that "its nuclear
experiments have not violated any rule of international law" and
controverted Australia's legal contentions point by point. In a further
Note of 13 February, however, the Australian Government expressed its
disagreement with the French Government's views, repeated its opinion that
the conducting of the tests violates rules of international law, and said it
was clear that "in this regard there exists between our two Govern-ments a
substantial legal dispute". Then, after extensive observations on the
consequences of nuclear explosions, the growth of the awareness of the
danger of nuclear testing and of the particular aspects and specific
consequences of the French tests, Australia set out seriatim, in paragraph
49 of her Application, three separate categories of Australia's rights which
she contends have been, are, and will be violated by the French atmospheric
tests. [p 360]
99. Prima facie, it is difficult to imagine a dispute which in its
subject-matter and in its formulation is more clearly a "legal dispute" than
the one submitted to the Court in the Application. The French Government
itself does not seem in the diplomatic exchanges to have challenged the
Australian Government's characterization of the dispute as a "substantial
legal dispute", even although in the above-mentioned Note of 7 February 1973
it expressed a certain scepticism regarding the legal considerations invoked
by Australia. Moreover, neither in its letter of 16 May 1973 addressed to
the Court nor in the Annex enclosed with that letter did the French
Government for a moment suggest that the dispute is not a dispute "with
regard to which the parties are in conflict as to their respective rights"
or that it is not a "legal dispute". Although in that letter and Annex, the
French Government advanced a whole series of arguments for the purpose of
justifying its contention that the jurisdiction of the Court cannot be
founded in the present case on the General Act of 1928, it did not question
the character of the dispute as a "legal dispute" for the purposes of
Article 17 of the Act.
100. In the Livre blanc sur les experiences nucleaires published in June
1973, however, the French Government did take the stand that the dispute is
not a legal dispute. Chapter II, entitled "Questions juridiques" concludes
with a section on the question of the Court's jurisdiction, the final
paragraph of which reads :
"La Cour n'est pas competente, enfin, parce que l'affaire qui lui est
soumise n'est pas fondamentalement un differend d'ordre juridique. Elle se
trouve, en fait et par divers biais, invitee � prendre position sur un
probl�me purement politique et militaire. Ce n'est, selon le Gouvernement
fran�ais, ni son r�le ni sa vocation." (P. 23.)
This clearly is an assertion that the dispute is one concerned with matters
other than legal and, therefore, not justiciable by the Court.
101. Complying with the Court's Order of 22 June 1973, Australia submitted
her observations on the questions of the jurisdiction of the Court and the
admissibility of the Application. Under the rubric of "jurisdiction" she
expressed her views, inter alia, on the question of the political or legal
nature of the dispute; and under the rubric of "admissibility" she furnished
further explanations of the three categories of rights which she claims to
be violated by France's conduct of nuclear atmospheric tests in the South
Pacific region. These rights, as set out in paragraph 49 of the Application
and developed in her pleadings, may be broadly described as follows:
(1) A right said to be possessed by every State, including Australia, to be
free from atmospheric nuclear weapon tests, conducted by any State, in
virtue of what Australia maintains is now a generally accepted rule of
customary international law prohibiting all such tests. As support for the
alleged right, the Australian Government invoked a variety of [p 361]
considerations, including the development from 1955 onwards of a public
opinion strongly opposed to atmospheric tests, the conclusion of the Moscow
Test Ban Treaty in 1963, the fact that some 106 States have since become
parties to that Treaty, diplomatic and other expressions of protests by
numerous States in regard to atmospheric tests, rejected resolutions of the
General Assembly condemning such tests as well as pronouncements of the
Stockholm Conference on the Human Environment, Articles 55 and 56 of the
Charter, provisions of the Universal Declaration of Human Rights and of the
International Covenant on Economic, Social and Cultural Rights and other
pronouncements on human rights in relation to the environment.
(2) A right, said to be inherent in Australia's own territorial sovereignty,
to be free from the deposit on her territory and dispersion in her air
space, without her consent, of radio-active fall-out from the French nuclear
tests. The mere fact of the trespass of the fall-out, the harmful effects
which flow from such fall-out and the impairment of her independent right
to determine what acts shall take place within her territory (which she
terms her "decisional sovereignty") all constitute, she maintains,
violations of this right. As support for this alleged right, the Australian
Government invoked a variety of legal material, including pronouncements of
this Court in the Corfu Channel case (I.C.J. Reports 1949, at pp. 22 and
35), of Mr. Huber in the Island of Palmas Arbitration (UNRIAA, Vol. II, p.
839) and of the Permanent Court of International Justice in the Customs
Union case (P.C.I.J., Series A/B, No. 41, at p. 39), the General Assembly's
Declaration on Principles of International Law concerning Friendly Relations
and Co-operation, the Charter of the Organization of African Unity, and
Declarations of the General Assembly and of Unesco regarding satellite
broadcasting, and opinions of writers.
(3) A right, said to be derived from the character of the high seas as res
communis and to be possessed by Australia in common with all other maritime
States, to have the freedoms of the high seas respected by France; and, in
particular, to require her to refrain from (a) interference with the ships
and aircraft of other States on the high seas and in the superjacent air
space, and (b) the pollution of the high seas by radio-active fall-out. As
support for this alleged right, the Australian Government referred to
Articles 2 and 25 of the Geneva Convention of 1958 on the High Seas, the
commentaries of the International Law Commission on the corresponding
provisions of its draft Articles on the Law of the Sea and to other legal
material, including the records of the debates in the International Law
Commis- [p 362] sion, passages in this Court's Judgment in the
Anglo-Norwegian Fisheries case, various declarations and treaty provisions
relating to marine pollution, and opinions of writers.
In response to a question put by a Member of the Court, the Australian
Government also furnished certain explanations regarding (i) the
distinction which it draws between the transmission of chemical or other
matter from one State's territory to that of another as a result of a normal
and natural use of the former's territory and one which does not result from
a normal and natural use; and (ii) the relevance or otherwise of harm or
potential harm as an element in the legal cause of action in such cases.
102. In regard to each of the above-mentioned categories of legal rights,
Australia maintained that there is a correlative legal obligation resting
upon France, the breach of which would involve the latter in international
responsibility towards Australia. In addition, she developed a general
argument by which she sought to engage the international responsibility of
France on the basis of the doctrine of "abuse of rights" in the event that
France should be considered as, in principle, invested with a right to carry
out atmospheric nuclear tests. In this connection, she referred to a dictum
of Judge Alvarez in the Anglo-Iranian Oil Co. case, the Report of the
Asian-African Legal Consultative Committee in 1964 on the Legality of
Nuclear Tests, Article 74 of the Charter, the opinions of certain jurists
and other legal materials.
103. Under the rubric of "admissibility", Australia also presented her views
on the question, mentioned in paragraph 23 of the Order of 22 June 1973, of
her "legal interest" in respect of the claims put forward in her
Application. She commented, in particular, on the question whether, in the
case of a right possessed by the international community as a whole, an
individual State, independently of material damage to itself, is entitled to
seek the respect of that right by another State. She maintained in regard to
certain categories of obligations owed erga omnes that every State may have
a legal interest in their performance, citing certain pronouncements of the
Permanent Court and of this Court and more especially the pronouncement of
this Court on the matter in the Barcelona Traction Light and Power Company
case (Second Phase, I.C.J. Reports 1970, at p. 32). With regard to the right
said to be inherent in Australia's own territorial sovereignty, she
considered it obvious that a State possesses a legal interest "in the
protection of its territory from any form of external harmful action as well
as in the defence of the well-being of its population and in the protection
of national integrity and independence". With regard to the right said to be
derived from the character of the high seas as res communis, Australia
maintained that "every State has a legal interest in safeguarding the
respect by other States of the freedom of the seas", that the practice of
States demonstrates the irrelevance of the possession of a specific material
interest on the part of the individual State, and that this general legal
interest of all States in safeguarding the freedom of the [p 363] seas has
received express recognition in connection with nuclear tests. As support
for the above proposition she cited a variety of legal material.
***
104. In giving this very summary account of the legal contentions of the
Australian Government, we are not to be taken to express any view as to
whether any of them are well or ill founded. We give it for the sole purpose
of indicating the context in which Article 17 of the 1928 Act has to be
applied and the admissibility of Australia's Application determined. Before
we draw any conclusions, however, from that account of Australia's legal
contentions, we must also indicate our understanding of the principles which
should govern our determination of these matters at the present stage of the
proceedings.
**
105. The matters raised by the issues of "legal or political dispute" and
"legal interest", although intrinsically matters of admissibility, are at
the same time matters which, under the terms of Article 17 of the 1928 Act,
also go to the Court's jurisdiction in the present case. Accordingly, it
would be pointless for us to characterize any particular issue as one of
jurisdiction or of admissibility, more especially as the practice neither
of the Permanent Court nor of this Court supports the drawing of a sharp
distinction between preliminary objections to jurisdiction and
admissibility. In the Court's practice the emphasis has been laid on the
essentially preliminary or non-preliminary character of the particular
objection rather than on its classification as a matter of jurisdiction or
admissibility (cf. Art. 62 of the Rules of the Permanent Court, Art. 62 of
the old Rules of this Court and Art. 67 of the new Rules). This is because,
owing to the consensual nature of the jurisdiction of an international
tribunal, an objection to jurisdiction no less than an objection to
admissibility may involve matters which relate to the merits; and then the
critical question is whether the objection can or cannot properly be decided
in the preliminary proceedings without pleadings affording the parties the
opportunity to plead to the merits. The answer to this question necessarily
depends on whether the Objection is genuinely of a preliminary character or
whether it is too closely linked to the merits to be susceptible of a just
decision without first having pleadings on the merits. So it is that, in
specifying the task of the Court when disposing of preliminary objections,
Article 67, paragraph 7, of the Rules expressly provides, as one
possibility, that the Court should "declare that the objection does not
possess, in the circumstances of the case, an exclusively preliminary
character". These principles clearly apply in the present case even
although, owing to the absence of France from the proceedings, the issues of
jurisdiction [p 364] and admissibility now before the Court have not been
raised in the form of objections stricto sensu.
106. The French Government's assertion that the dispute is not
fundamentally of a legal character and concerns a purely political and
military question is, in essence, a contention that it is not a dispute in
which the Parties are in conflict as to their legal rights; or that it does
not fall within the categories of legal disputes mentioned in Article 36 (2)
of the Statute. Or, again, the assertion may be viewed as a contention that
international law imposes no legal obligations upon France in regard to the
matters in dispute which, therefore, are to be considered as matters left by
inter-national law exclusively within her national jurisdiction; or, more
simply, as a contention that France's nuclear experiments do not violate any
existing rule of international law, as the point was put by the French
Government in its diplomatic Note to the Australian Government of 7 February
1973. Yet, however the contention is framed, it is manifestly and directly
related to the legal merits of the Applicant's case. Indeed, in whatever way
it is framed, such a contention, as was said of similar pleas by the
Permanent Court in the Electricity Company of Sofia and Bulgaria case,
"forms a part of the actual merits of the dispute" and "amounts not only to
encroaching on the merits, but to coming to a decision in regard to one of
the fundamental factors of the case" (P.C.I.J., Series A\B, No. 77, at pp.
78 and 82-83). In principle, therefore, such a contention cannot be
considered as raising a truly preliminary question.
107. We say "in principle" because we recognize that, if an applicant were
to dress up as a legal claim a case which to any informed legal mind could
not be said to have any rational, that is, reasonably arguable, legal basis,
an objection contesting the legal character of the dispute might be
susceptible of decision in limine as a preliminary question. This means that
in the preliminary phase of proceedings, the Court may have to make a
summary survey of the merits to the extent necessary to satisfy itself that
the case discloses claims that are reasonably arguable or issues that are
reasonably contestable; in other words, that these claims or issues are
rationally grounded on one or more principles of law, the application of
which may resolve the dispute. The essence of this preliminary survey of
the merits is that the question of jurisdiction or admissibility under
consideration is to be determined not on the basis of whether the
applicant's claim is right but exclusively on the basis whether it discloses
a right to have the claim adjudicated. An indication of the merits of the
applicant's case may be necessary to disclose the rational and arguable
character of the claim. But neither such a preliminary indication of the
merits nor any finding of jurisdiction or admissibility made upon it may be
taken to prejudge the merits. It is for this reason that, in investigating
the merits for the purpose of deciding preliminary issues, the Court has
always been careful to draw the line at the point [p 365] where the
investigation may begin to encroach upon the decision of the merits. This
applies to disputed questions of law no less than to disputed questions of
fact; the maxim jura novit curia does not mean that the Court may adjudicate
on points of law in a case without hearing the legal arguments of the
parties.
108. The precise test to be applied may not be easy to state in a single
combination of words. But the consistent jurisprudence of the Permanent
Court and of this Court seems to us clearly to show that, the moment a
preliminary survey of the merits indicates that issues raised in preliminary
proceedings cannot be determined without encroaching upon and prejudging
the merits, they are not issues which may be decided without first having
pleadings on the merits (cf. Nationality Decrees Issued in Tunis and
Morocco, Advisory Opinion, P.C.I.J., Series B, No. 4; Right of Passage over
Indian Territory case, I.C.J. Reports 1957, at pp. 133-134; the Interhandel
case, I.C.J. Reports 1959, pp. 23-25). We take as our general guide the
observations of this Court in the Interhandel case when rejecting a plea of
domestic jurisdiction which had been raised as a preliminary objection:
"In order to determine whether the examination of the grounds thus invoked
is excluded from the jurisdiction of the Court for the reason alleged by the
United States, the Court will base itself on the course followed by the
Permanent Court of International Justice in its Advisory Opinion concerning
Nationality Decrees Issued in Tunis and Morocco (Series B, No. 4), when
dealing with a similar divergence of view. Accordingly, the Court does not,
at the present stage of the proceedings, intend to assess the validity of
the grounds invoked by the Swiss Government or to give an opinion on their
interpretation, since that would be to enter upon the merits of the dispute.
The Court will confine itself to considering whether the grounds invoked by
the Swiss Government are such as to justify the provisional conclusion that
they may be of relevance in this case and if so, whether questions relating
to the validity and interpretation of those grounds are questions of
international law." (Emphasis added.)
In the Interhandel case, after a summary consideration of the grounds
invoked by Switzerland, the Court concluded that they both involved
questions of international law and therefore declined to entertain the
preliminary objection.
109. The summary account which we have given above of the grounds invoked by
Australia in support of her claims appears to us amply sufficient, in the
language of the Court in the Interhandel case, "to justify the provisional
conclusion that they may be of relevance in this case" and that "questions
relating to the validity and interpretation of those grounds [p 366] are
questions of international law". It is not for us "to assess the validity of
those grounds" at the present stage of the proceedings since that would be
to "enter upon the merits of the dispute". But our summary examination of
them satisfies us that they cannot fairly be regarded as frivolous or
vexatious or as a mere attorney's mantle artfully displayed to cover an
essentially political dispute. On the contrary, the claims submitted to the
Court in the present case and the legal contentions advanced in support of
them appear to us to be based on rational and reasonably arguable grounds.
Those claims and legal contentions are rejected by the French Government on
legal grounds. In our view, these circumstances in themselves suffice to
qualify the present dispute as a "dispute in regard to which the parties are
in conflict as to their legal rights" and as a "legal dispute" within the
meaning of Article 17 of the 1928 Act.
110. The conclusion just stated conforms to what we believe to be the
accepted view of the distinction between disputes as to rights and disputes
as to so-called conflicts of interests. According to that view, a dispute is
political, and therefore non-justiciable, where the claim is demonstrably
rested on other than legal considerations, e.g., on political, economic or
military considerations. In such disputes one, at least, of the parties is
not content to demand its legal rights, but asks for the satisfaction of
some interest of its own even although this may require a change in the
legal situation existing between them. In the present case, however, the
Applicant invokes legal rights and does not merely pursue its political
interest; it expressly asks the Court to determine and apply what it
contends are existing rules of international law. In short, it asks for the
settlement of the dispute "on the basis of respect for law", which is the
very hall-mark of a request for judicial, not political settlement of an
international dispute (cf. Interpretation of Article 3, paragraph 2, of the
Treaty of Lausanne, P.C.I.J., Series B, No. 12, p. 26). France also, in
contesting the Applicant's claims, is not merely invoking its vital
political or military interests but is alleging that the rules of
international law invoked by the Applicant do not exist or do not warrant
the import given to them by the Applicant. The attitudes of the Parties with
reference to the dispute, therefore, appear to us to show conclusively its
character as a "legal" and justiciable dispute.
111. This conclusion cannot, in our view, be affected by any suggestion or
supposition that, in bringing the case to the Court, the Applicant may have
been activated by political motives or considerations. Few indeed would be
the cases justiciable before the Court if a legal dispute were to be
regarded as deprived of its legal character by reason of one or both parties
being also influenced by political considerations. Neither in contentious
cases nor in requests for advisory opinions has the Permanent [p 367] Court
or this Court ever at any time admitted the idea that an intrinsically legal
issue could lose its legal character by reason of political considerations
surrounding it.
112. Nor is our conclusion in any way affected by the suggestion that in the
present case the Court, in order to give effect to Australia's claims, would
have to modify rather than apply the existing law. Quite apart from the fact
that the Applicant explicitly asks the Court to apply the existing law, it
does not seem to us that the Court is here called upon to do anything other
than exercise its normal function of deciding the dispute by applying the
law in accordance with the express directions given to the Court in Article
38 of the Statute. We fully recognize that, as was emphasized by the Court
recently in the Fisheries Jurisdiction cases, "the Court, as a court of law,
cannot render judgment sub specie legis ferendae, or anticipate the law
before the legislator has laid it down" (I.C.J. Reports 1974, at pp. 23-24
and 192). That pronouncement was, however, made only after full
consideration of the merits in those cases. It can in no way mean that the
Court should determine in limine litis the character, as lex lata or lex
ferenda, of an alleged rule of customary law and adjudicate upon its
existence or non-existence in preliminary proceedings without having first
afforded the parties the opportunity to plead the legal merits of the case.
In the present case, the Court is asked to perform its perfectly normal
function of assessing the various elements of State practice and legal
opinion adduced by the Applicant as indicating the development of a rule of
customary law. This function the Court performed in the Fisheries
Jurisdiction cases, and if in the present case the Court had proceeded to
the merits and upheld the Applicant's contentions in the present case, it
could only have done so on the basis that the alleged rule had indeed
acquired the character of lex lata.
113. Quite apart from these fundamental considerations, we cannot fail to
observe that, in alleging violations of its territorial sovereignty and of
rights derived from the principle of the freedom of the high seas, the
Applicant also rests its case on long-established�indeed elemental� rights,
the character of which as lex lata is beyond question. In regard to these
rights the task which the Court is called upon to perform is that of
determining their scope and limits vis-�-vis the rights of other States, a
task inherent in the function entrusted to the Court by Article 38 of the
Statute.
114. These observations also apply to the suggestion that the Applicant is
in no position to claim the existence of a rule of customary international
law operative against France inasmuch as the Applicant did not object to,
and even actively assisted in, the conduct of atmospheric nuclear tests in
the Pacific Ocean region prior to 1963. Clearly this is a matter involving
the whole concept of the evolutionary character of customary international
law upon which the Court should not pronounce in these prelimi-[p 368] nary
proceedings. The very basis of the Applicant's legal position, as presented
to the Court, is that in connection with and after the tests in question
there developed a growing awareness of the dangers of nuclear fall-out and a
climate of public opinion strongly opposed to atmospheric tests; and that
the conclusion of the Moscow Test Ban Treaty in 1963 led to the development
of a rule of customary law prohibiting such tests. The Applicant has also
drawn attention to its own constant opposition to atmospheric tests from
1963 onwards. Consequently, although the earlier conduct of the Applicant is
no doubt one of the elements which would have had to be taken into account
by the Court, it would have been upon the evidence of State practice as a
whole that the Court would have had to make its determination of the
existence or non-existence of the alleged rule. In short, however relevant,
this point appears to us to belong essentially to the legal merits of the
case, and not to be one appropriate for determination in the present
preliminary proceedings.
115. We are also unable to see how the fact that there is a sharp conflict
of view between the Applicant and the French Government concerning the
materiality of the damage or potential risk of damage resulting from nuclear
fall-out could either affect the legal character of the dispute or call for
the Application to be adjudged inadmissible here and now. This question
again appears to us to belong to the stage of the merits. On the one side,
the Australian Government has given its account of "nuclear explosions and
their consequences" in paragraphs 22-39 of the Application and, in dealing
with the growth of international concern on this matter, has cited a series
of General Assembly resolutions, the establishment of UNSCEAR in 1955 and
its subsequent reports on atomic radiation, the Test Ban Treaty itself, the
Treaty for the Prohibition of Nuclear Weapons in Latin America, and
declarations and resolutions of South Pacific States, Latin American States,
African and Asian States, and a resolution of the Twenty-sixth Assembly of
the World Health Organization. It has also referred to the psychological
injury said to be caused to the Australian people through their anxiety as
to the possible effects of radio-active fall-out on the well-being of
themselves and their descendants. On the other side, there are before the
Court the repeated assurances of the French Government, in diplomatic Notes
and public statements, concerning the precautions taken by her to ensure
that the nuclear tests would be carried out "in complete security". There
are also reports of various scientific bodies, including those of the
Australian National Radiation Advisory Committee in 1967, 1969, 1971 and
1972 and of the New Zealand National Radiation Laboratory in 1972, which all
concluded that the radio-active fall-out from the French tests was below
the damage level for public health purposes. In addition, the Court has
before it the report of a meeting of Australian and French scientists in
May 1973 in which they arrived at common conclusions as to the data of the
[p 369] amount of fall-out but differed as to the interpretation of the data
in terms of the biological risks involved. Whatever impressions may be
gained from a prima facie reading of the evidence so far presented to the
Court, the questions of the materiality of the damage resulting from, and of
the risk of future damage from, atmospheric nuclear tests, appear to us
manifestly questions which cannot be resolved in preliminary proceedings
without the parties having had the opportunity to submit their full case to
the Court.
116. The dispute as to the facts regarding damage and potential damage from
radio-active nuclear fall-out itself appears to us to be a matter which
falls squarely within the third of the categories of legal disputes listed
in Article 36 (2) of the Statute: namely a dispute concerning "the
existence of any fact which, if established, would constitute a breach of an
international obligation". Such a dispute, in our view, is inextricably
linked to the merits of the case. Moreover, Australia in any event contends,
in respect of each one of the rights which she invokes, that the right is
violated by France's conduct of atmospheric tests independently of proof of
damage suffered by Australia. Thus, the whole issue of material damage
appears to be inextricably linked to the merits. Just as the question
whether there exists any general rule of international law prohibiting
atmospheric tests is "a question of international law" and part of the legal
merits of the case, so also is the point whether material damage is an
essential element in that alleged rule. Similarly, just as the questions
whether there exist any general rules of international law applicable to
invasion of territorial sovereignty by deposit of nuclear fall-out and
regarding violation of so-called "decisional sovereignty" by such a deposit
are "questions of international law" and part of the legal merits, so also
is the point whether material damage is an essential ele-ment in any such
alleged rules. Mutatis mutandis, the same may be said of the question
whether a State claiming in respect of an alleged violation of the freedom
of the seas has to adduce material damage to its own interests.
117. Finally, we turn to the question of Australia's legal interest in
respect of the claims which she advances. With regard to the right said to
be inherent in Australia's territorial sovereignty, we think that she is
justified in considering that her legal interest in the defence of that
right is self-evident. Whether or not she can succeed in persuading the
Court that the particular right which she claims falls within the scope of
the principle of territorial sovereignty, she clearly has a legal interest
to litigate that issue in defence of her territorial sovereignty. With
regard to the right to be free from atmospheric tests, said to be possessed
by Australia in common with other States, the question of "legal interest"
again appears to us to be part of the general legal merits of the case. If
the ma-[p 370] terials adduced by Australia were to convince the Court of
the existence of a general rule of international law, prohibiting
atmospheric nuclear tests, the Court would at the same time have to
determine what is the precise character and content of that rule and, in
particular, whether it confers a right on every State individually to
prosecute a claim to secure respect for the rule. In short, the question of
"legal interest" cannot be separated from the substantive legal issue of the
existence and scope of the alleged rule of customary international law.
Although we recognize that the existence of a so-called actio popularis in
international law is a matter of controversy, the observations of this Court
in the Barcelona Traction, Light and Power Company, Limited case FN1 suffice
to show that the question is one that may be considered as capable of
rational legal argument and a proper subject of litigation before this
Court.
---------------------------------------------------------------------------------------------------------------------
FN1 Second Phase, I.C.J. Reports 1970, at p. 32. 121
--------------------------------------------------------------------------------------------------------------------
118. As to the right said to be derived from the principle of the freedom of
the high seas, the question of "legal interest" once more appears clearly to
belong to the general legal merits of the case. Here, the existence of the
fundamental rule, the freedom of the high seas, is not in doubt, finding
authoritative expression in Article 2 of the Geneva Convention of 1958 on
the High Seas. The issues disputed between the Parties under this head are
(i) whether the establishment of a nuclear weapon-testing zone covering
areas of the high seas and the superjacent air space are permissible under
that rule or are violations of the freedoms of navigation and fishing, and
(ii) whether atmospheric nuclear tests also themselves constitute violations
of the freedom of the seas by reason of the pollution of the waters alleged
to result from the deposit of radio-active fall-out. In regard to these
issues, the Applicant contends that it not only has a general and common
interest as a user of the high seas but also that its geographical position
gives it a special interest in freedom of navigation, over-flight and
fishing in the South Pacific region. That States have in-dividual as well as
common rights with respect to the freedoms of the high seas is implicit in
the very concept of such freedoms which involve rights of user possessed by
every State, as is implicit in numerous provisions of the Geneva Convention
of 1958 on the High Seas. It is, indeed, evidenced by the long history of
international disputes arising from conflicting assertions of their rights
on the high seas by individual States. Consequently, it seems to us that it
would be difficult to admit that the Applicant in the present case is not
entitled even to litigate the question whether it has a legal interest
individually to institute proceedings in respect of what she alleges to be
violations of the freedoms of navigation, over-flight and fishing. This
question, as we have indicated, is an integral part of the substantive legal
issues raised under the head of the freedom [p 371] of the seas and, in our
view, could only be decided by the Court at the stage of the merits.
119. Having regard to the foregoing observations, we think it clear that
none of the questions discussed in this part of our opinion would constitute
a bar to the exercise of the Court's jurisdiction with respect to the merits
of the case on the basis of Article 17 of the 1928 Act. Whether regarded as
matters of jurisdiction or of admissibility, they are all either without
substance or do "not possess, in the circumstances of the case, an
exclusively preliminary character". Dissenting, as we do, from the Court's
decision that the claim of Australia no longer has any object, we consider
that the Court should have now decided to proceed to pleadings on the
merits.
Part IV. Conclusion
120. Since we are of the opinion that the Court has jurisdiction and that
the case submitted to the Court discloses no ground on which Australia's
claims should be considered inadmissible, we consider that the Applicant had
a right under the Statute and the Rules to have the case adjudicated. This
right the Judgment takes away from the Applicant by a procedure and by
reasoning which, to our regret, we can only consider as lacking any
justification in the Statute and Rules or in the practice and jurisprudence
of the Court.
(Signed) Charles D. Onyeama.
(Signed) Hardy C. Dillard.
(Signed) E. Jimenez de Arechaga.
(Signed) H. Waldock.
[p 372]
Dissenting opinion of judge De Castro
[Translation]
In its Order of 22 June 1973 the Court decided that the written pleadings
should first be addressed to the questions of the jurisdiction of the Court
to entertain the dispute and of the admissibility of the Application. The
Court ought therefore to give a decision on these two preliminary
questions.
Nevertheless, the majority of the Court has now decided not to broach them,
because it considers, in view of the statements made by French authorities
on various occasions concerning the cessation of atmospheric nuclear tests,
that the dispute no longer has any object.
That may be described as a prudent course to follow, and very learned
arguments have been put forward in support of it, but I am sorry to say that
they fail to convince me. It is therefore, I feel, incumbent upon me to set
out the reasons why I am unable to vote with the majority, and briefly to
state how, in my view, the Court ought to have pronounced upon the questions
specified in the above-mentioned Order.
I. Is the dispute now without object?
Attention should in my view be drawn to various points concerning the value
to be attached to the French authorities' statements in relation to the
course of the proceedings:
1. I think the Court has done well to take these statements into
consideration. It is true they do not form part of the formal documentation
brought to the cognizance of the Court, but some have been cited by the
Applicant and others are matters of public knowledge; to ignore them would
be to shut one's eyes to conspicuous reality. Given the nonappearance of
the Respondent, it is the duty of the Court to make sure proprio motu of
every fact that might be significant for the decision by which it is to
render justice in the case (Statute, Art. 53). In matters of procedure, the
Court enjoys a latitude which is not to be found in the municipal law of
States (P.C.I.J., Series A, No. 2, p. 34; Statute, Arts. 30 and 48).
As in the Northern Cameroons case, the Court may examine ex officio the
questions whether it is or is not "impossible for the Court to render a
judgment capable of effective application" (I.C.J. Reports 1963, p. 33), and
whether the dispute submitted to it still exists�in other words, it may
enquire whether, on account of a new fact, there is no longer any surviving
dispute.
[p 373]
Thus, in the case brought before the Court, there arises a "pre-preliminary"
question (separate opinion of Judge Sir Gerald Fitzmaurice, ibid., p. 103)
which must be given priority over any question of jurisdiction (ibid., p.
105); namely whether the statements of the French authorities have removed
the legal interest of the Application, and whether they may so be relied on
as to render superfluous any judgment whereby the Court might uphold the
Applicant's claims.
2. I am wholly aware that the vote of the majority can be viewed as a sign
of prudence. The "new fact" which the statements of the French authorities
represent is of an importance which should not be overlooked. They are
clear, formal and repeated statements, which emanate from the highest
authorities and show that those authorities seriously and deliberately
intend henceforth to discontinue atmospheric nuclear testing. The French
authorities are well aware of the anxiety aroused all over the world by the
tests conducted in the South Pacific region and of the sense of relief
produced by the announcement that they were going to cease and that
underground tests would hereafter be carried out. These statements are of
altogether special interest to the Applicant and to the Court.
It is true that the French Government has not appeared in the proceedings
but, in point of fact, it has, both directly and indirectly, made known to
the Court its views on the case, and those views have been studied and taken
into consideration in the Court's decisions. The French Government knows
this. One must therefore suppose that the French authorities have been able
to take account of the possible effect of their statements on the course of
the proceedings.
It may be the confidence warranted by the statements of responsible
authorities which explains why the majority of the Court has thought it
desirable to terminate proceedings which it felt to be without object. An
element of conflict (lis) is endemic in any litigation, which it seems only
wise, pro pace, to regard as terminated as soon as possible; this is
moreover in line with the peacemaking function proper to an organ of the
United Nations.
3. Even so, it must be added that the Court, as a judicial organ, must first
and foremost have regard to the legal worth of the French authorities'
statements.
Upon the Court there falls the task of interpreting their meaning and
verifying their purpose. They can be viewed as the announcement of a
programme, of an intention with regard to the future, their purpose being to
enlighten all those who may be interested in the method which the French
authorities propose to follow where nuclear tests are concerned. They can
also be viewed as simple promises to conduct no more nuclear tests in the
atmosphere. Finally, they can be considered as promises giving rise to a
genuine legal obligation.
It is right to point out that there is not a world of difference between the
expression of an intention to do or not do something in the future and a
promise envisaged as a source of legal obligations. But the fact remains [p
374] that not every statement of intent is a promise. There is a difference
between a promise which gives rise to a moral obligation (even when
reinforced by oath or word of honour) and a promise which legally binds the
promiser. This distinction is universally prominent in municipal law and
must be accorded even greater attention in international law.
For a promise to be legally binding on a State, it is necessary that the
authorities from which it emanates should be competent so to bind the State
(a question of internal constitutional law and international law) and that
they should manifest the intention and will to bind the State (a question of
interpretation). One has therefore to ask whether the French authorities
which made the statements had the power, and were willing, to place the
French State under obligation to renounce all possibility of resuming
atmospheric nuclear tests, even in the event that such tests should again
prove necessary for the sake of national defence: an obligation which, like
any other obligation stemming from a unilateral statement, cannot be
presumed and must be clearly manifested if it is to be reliable in law
(obligatio autem non oritur nisi ex voluntate certa et plane declarata).
The identification of the necessary conditions to render a promise animo
sibi vinculandi legally binding has always been a problem in municipal law
and, since Grotius at least, in international law also. When an obligation
arises whereby a person is bound to act, or refrain from acting, in such and
such a way, this results in a restraint upon his freedom (alienatio cuiusdam
libertatis) in favour of another, upon whom he confers a right in respect of
his own conduct (signum volendi ius proprium alteri conferri); for that
reason, and with the exception of those gratuitous acts which are recognized
by the law (e.g., donation, pollicitatio), the law generally requires that
there should be a quid pro quo from the benificiary to the promiser.
Hence�and this should not be forgotten �any promise (with the exception of
pollicitatio) can be withdrawn at any time before its regular acceptance by
the person to whom it is made (ante acceptationem, quippe iure nondum
translatum, revocari posse sine iniust-tia).
4. On the occasion of another unilateral statement�discontinuance� the Court
established that an act of that kind must be considered in close
relationship with the circumstances of the particular case (I.C.J. Reports
1964, p. 19). And it is with the circumstances of the present case in mind
that one must seek an answer to the following questions:
Do those statements of the French authorities with which the Judgment is
concerned mean anything other than the notification to the French people�or
the world at large�of the nuclear-test policy which the Government will be
following in the immediate future?
Do those statements contain a genuine promise never, in any circumstances,
to carry out any more nuclear tests in the atmosphere?[p 375]
Can those statements be said to embody the French Government's firm
intention to bind itself to carry out no more nuclear tests in the
atmosphere?
Do these same statements possess a legal force such as to debar the French
State from changing its mind and following some other policy in the domain
of nuclear tests, such as to place it vis-�-vis other States under an
obligation to carry out no more nuclear tests in the atmosphere?
To these questions one may reply that the French Government has made up its
mind to cease atmospheric nuclear testing from now on, and has informed the
public of its intention to do so. But I do not feel that it is possible to
go farther. I see no indication warranting a presumption that France wished
to bring into being an international obligation, possessing the same binding
force as a treaty�and vis-�-vis whom, the whole world?
It appears to me that, to be able to declare that the dispute brought before
it is without object, the Court requires to satisfy itself that, as a fact
evident and beyond doubt, the French State wished to bind itself, and has
legally bound itself, not to carry out any more nuclear tests in the
atmosphere. Yet in my view the attitude of the French Government warrants
rather the inference that it considers its statements on nuclear tests to
belong to the political domain and to concern a question which, inasmuch as
it relates to national defence, lies within the domain reserved to a State's
domestic jurisdiction.
I perfectly understand the reluctance of the majority of the Court to
countenance the protraction of proceedings which from the practical point of
view have become apparently, or probably, pointless. It is however not only
the probable, but also the possible, which has to be taken into account if
rules of law are to be respected. It is thereby that the application of the
law becomes a safeguard for the liberty of States and bestows the requisite
security on international relations
.
II. Jurisdiction of the court
In its Order of 22 June 1973 the Court considered that the material
submitted to it justified the conclusion that the provisions invoked by the
Applicant appeared, prima facie, to afford a basis upon which the
jurisdiction of the Court might be founded. At the present stage of the
pro-ceedings, the Court must satisfy itself that it has jurisdiction under
Articles 36 and 37 of the StatuteFN1
---------------------------------------------------------------------------------------------------------------------
FN1 I believe that 1 am entitled to express my opinion on the jurisdiction
of the Court and the admissibility of the Application. It is true that, in a
declaration appended to the Judgment in the South West Africa cases (I.C.J.
Reports 1966, pp. 51-57), President Sir Percy Spender endeavoured to narrow
the scope of the questions with which judges might deal in their opinions.
But he was actually going against the practice followed in the cases upon
which the Court was giving judgment at the time. It was in the following
terms that he stated his view: "... such opinions should not purport to deal
with matters that fall entirely outside the range of the Court's decision,
or of the decision's motivation" (ibid., p. 55). In the present case, it
does not seem to me that the questions of jurisdiction and admissibility
fall outside the range of the Court's decision. They are the questions
specified in the Court's Order of 22 June 1973, and they are those which
have to be resolved unless the dispute is manifestly without object.
---------------------------------------------------------------------------------------------------------------------
[p 376]
Jurisdiction of the Court by Virtue of the French Government's Declaration
of 20 May 1966 (Art. 36, para. 2, of the Statute)
The first objection to the jurisdiction of the Court is based on the
reservation made by the French Government as to
". . . disputes arising out of a war or international hostilities, disputes
arising out of a crisis affecting national security or any measure or action
relating thereto, and disputes concerning activities connected with national
defence".
This reservation certainly seems to apply to the nuclear tests. It is true
that it has been contended that the nuclear tests do not fall within
activities connected with national defence, because their object is the
perfection of a weapon of mass destruction. But it must be borne in mind
that we are dealing with a unilateral declaration, an optional declaration
of adhesion to the jurisdiction of the Court. Thus the intention of the
author of the declaration is the first thing to be considered, and the terms
of the declaration and the contemporary circumstances permit of this being
ascertained. The term "national defence" is broad in meaning: "Ministry of
National Defence" is commonly used as corresponding to "Ministry of the
Armed Forces". National defence also includes the possibility of riposting
to the offensive of an enemy. This is the idea behind the "strike force".
The expression used ("concerning activities connected with . . .") rules out
any restrictive interpretation. Furthermore, it is well known that the
intention of the French Government was to cover the question of nuclear
tests by this reservation; it took care to modify reservation (3) to its
declaration of 10 July 1959 FN1 six weeks before the first nuclear test FN2.
---------------------------------------------------------------------------------------------------------------------
FN1 By adding the words "and disputes concerning activities connected with
national defence".
FN2 In my opinion, the Court does not have to deal with the sophistical
arguments of the Applicant on this point, ingenious though they be. The
objective nature of the reservation does not require that the meaning of the
expression "national defence", or what the French Government meant when it
used it, be proved by evidence. The reservation should simply be interpreted
as a declaration of unilateral will, should be interpreted, that is to say,
taking into account the natural meaning of the words and the presumed
intention of the declarer. What would require proof would be that it had a
meaning contrary to the natural meaning of the terms used.
---------------------------------------------------------------------------------------------------------------------
The Applicant contends that the French reservation is void because it is
subjective and automatic, and thus void as being incompatible with the
requirements of the Statute. This argument is not convincing. In reservation
(3) of the French declaration, it is neither stated explicitly nor implied
that the French Government reserves the power to define what is connected
with national defence. However that may be, if the reser-[p 377]vation were
void as contrary to law, the result would be that the declaration would be
void, so that the source of the Court's jurisdiction under Article 36,
paragraph 2, of the Statute would disappear along with the reservation. (In
this sense, cf. separate opinion of Judge Sir Hersch Lauterpacht, I.C.J.
Reports 1957, pp. 34 and 57-59; dissenting opinion of Judge Sir Hersch
Lauterpacht, I.C.J. Reports 1959, p. 101; separate opinion of Judge Sir
Percy Spender, I.C.J. Reports 1959, p. 59.) The reservation is not a
statement of will which is independent and capable of being isolated.
Partial nullity, which the Applicant proposes to apply to it, is only
permissible when there is a number of terms which are entirely distinct
("tot sunt stipulationes, quot corpora", D. 45, 1, 1, para. 5) and not when
the reservation is the "essential basis" of the consent (Vienna Convention
on the Law of Treaties, Art. 44, para. 3 (b)) FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 The separability of the reservation would have to be proved. Despite its
efforts, the Applicant has not succeeded in bolstering this contention with
convincing arguments.
---------------------------------------------------------------------------------------------------------------------
The controversy is really an academic one. The exception or reservation in
the French declaration states, in such a way as to exclude any possible
doubt, that the French Government does not confer competence on the Court
for disputes concerning activities connected with national defence. There is
no possibility in law of the Court's jurisdiction being imposed on a State
contrary to the clearly expressed will of that State. It is not possible to
disregard both the letter and the spirit of Article 36 of the Statute and
Article 2, paragraph 7, of the United Nations Charter.
2. Jurisdiction of the Court by Virtue of the General Act of Geneva of 26
September 1928 (Art. 36, para. 1, and Art. 37 of the Statute)
The question which most particularly requires to be examined is whether the
General Act is still in force. Article 17 thereof reads as follows:
"All disputes with regard to which the parties are in conflict as to their
respective rights shall, subject to any reservations which may be made under
Article 39, be submitted for decision to the Permanent Court of
International Justice, unless the parties agree, in the manner hereinafter
provided, to have resort to an arbitral tribunal."
Article 37 of the Statute provides that:
"Whenever a treaty or convention in force provides for reference of a matter
to a tribunal to have been instituted by the League of Nations, or to the
Permanent Court of International Justice, the matter shall, as between the
Parties to the present Statute, be referred to the International Court of
Justice."
The French Government has informed the Court that it considers that the
General Act cannot serve as a basis for the competence of the Court. It is
therefore necessary to examine the various questions which have [p 378] been
raised as to the efficacy of the Act of Geneva after the dissolution of the
League of Nations.
(a) The General Act, like the contemporary treaties for conciliation,
judicial settlement and arbitration, originated in the same concern for
security and the same desire to ensure peace as underlay the system of the
League of Nations. The question which arises in the present case is whether
Article 17 of the General Act is no more than a repetition or duplication of
Article 36, paragraph 2, of the Statute of the Permanent Court. If this is
so, is Article 17 of the General Act subject to the vicissitudes undergone
by Article 36, paragraph 2, of the Statute, and likewise to the reservations
permitted by that provision?
The two Articles certainly coincide both in objects and means, but they are
independent provisions which each have their own individual life. This
appeared to be generally recognized. For brevity's sake, I will simply refer
to the opinion of two French writers of indisputable autho-rity. Gallus, in
his study "L'Acte general a-t-il une reelle utilite?", reaches the above
conclusion. He points out the similarities between the Articles, and goes
on: "But it would not be correct to say that the General Act is no more than
a confirmation of the system of Article 36 of the Statute of the Permanent
Court of International Justice" (Revue de droit international (Lapradelle),
Vol. III, 1931, p. 390). The author is also careful to point out the
differences between the two sources of jurisdiction (members, conditions of
membership, permitted reservations, duration, denunciation) and the
complications caused by the co-existence of the two sources (ibid., pp.
392-395). In his view, the General Act amounts to "a step further than the
system of Article 36 of the Statute of the Court" (ibid., p. 391).
In the same sense, Rene Cassin has said:
"Does the recent accession of France to the Protocol of the aforesaid
Article 36 not duplicate its accession to Chapter II of the General Act of
arbitration? The answer must be that it does not." ("L'Acte general
d'arbitrage", Questions politiques et juridiques, Affaires etrang�res, 1931,
p. 17.) FN1
------------------------------------------------------------------------------------------------------------
FN1 Chapter II of the General Act, which is entitled "Judicial Settlement",
begins with Article 17. The individual and independent value of the Act,
even after the winding-up of the League of Nations, is clear from the
travaux preparatoires of resolution 268A (III) of the United Nations General
Assembly, and from the actual text of that resolution.
------------------------------------------------------------------------------------------------------------
(b) It has been said that the reservations contemplated by Article 39,
paragraph 2(b), of the General Act, applicable between the Governments which
are Parties to this case, may be regarded as covering reservation (3) of the
French declaration of 1966.
This view is not convincing. The reservation permitted by the General Act is
for "disputes concerning questions which by international law are solely
within the domestic jurisdiction of States". This coincides with [p 379]
reservation (2) in the French declaration of 1959, concerning "disputes
relating to questions which by international law fall exclusively within the
domestic jurisdiction". That reservation was retained (also as No. 2) in the
French declaration of 1966; but it was thought necessary to add, in
reservation (3), an exclusion relating to disputes concerning activities
connected with national defence.
This addition to reservation (3) was necessary in order to modify its scope
in view of the new circumstances created by the nuclear tests. The reserved
domain of domestic jurisdiction does not include disputes arising from acts
which might cause fall-out on foreign territory. The final phrase of
reservation (3) of the French declaration of 1966 has an entirely new
content, and one which therefore differs from Article 39, paragraph 2 (b),
of the General Act.
(c) Paradoxically enough, doubt has been cast on the continuation in force
of the General Act in the light of the proceedings leading up to General
Assembly resolution 268A (III) on Restoration to the General Act of its
Original Efficacy, and in view also of the actual terms of the resolution.
It is true that ambiguous expressions can be found in the records of the
preliminary discussions. It was said that the draft resolution would not
imply approval on the part of the General Assembly, and that it would thus
confine itself to allowing the States to re-establish "the validity" of the
General Act of 1928 of their own free will (Mr. Entezam of Iran, United
Nations, Official Records of the Third Session of the General Assembly, Part
I, Special Political Committee, 26th Meeting, 6 December 1948, p. 302) FN1.
The spokesmen for the socialist republics, for their part, vigorously
criticized the General Act for political reasons, regarding it as a
worthless instrument that had brought forth stillborn measures.
---------------------------------------------------------------------------------------------------------------------
FN1 Mr. Entezam was perhaps using the word "validity" in the sense of "full
efficacy".
---------------------------------------------------------------------------------------------------------------------
But the signatories of the Act, when they spoke of regularizing and
modifying the Act, were contemplating the restoration of its full original
efficacy, and were not casting doubt on its existing validity. Mr. Larock
(Belgium) explained that the General Act "was still valid, but needed to be
brought up to date" (ibid., 28th Meeting, p. 323). Mr. Ordonneau (France)
stated that "the Interim Committee simply proposed practical measures
designed to facilitate the application of provisions of Article 33 [of the
Charter]" (ibid., p. 324). Mr. Van Langenhove (Belgium) said that "the
General Act of 1928 was still in force; nevertheless its effectiveness had
diminished since some of its machinery [i.e., machinery of the League of
Nations] had disappeared" (United Nations, Official Records of the Third
Session of the General Assembly, Part II, 198th Plenary Meeting, 28 April
1949, p. 176). Mr. Viteri Lafronte (Ecuador), the rapporteur, explained that
"there was no question of reviving the Act of 1928 or of making adherence to
it obligatory. The Act remained binding on those [p 380] signatories that
had not denounced it" (ibid., p. 189). Mr. Lapie (France) also said that the
General Act of 1928, which it was proposed "to restore to its original
efficacy, was a valuable document inherited from the League of Nations and
it had only to be brought into accordance with the new Organization" (ibid.,
199th Plenary Meeting, 28 April 1949, p. 193). To sum up, and without there
being any need to burden this account of the matter with further quotations,
it would seem that no-one at that time claimed the Act had ceased to exist
as between its signatories, and that on the contrary it was recognized to be
still in force between them.
Resolution 268A (III) of 28 April 1949, on the Restoration to the General
Act of its Original Efficacy, gives a clear indication of what its object
and purpose is. It considers that the Act was impaired by the fact that the
organs of the League of Nations and the Permanent Court had dis-appeared,
and that the amendments mentioned were of a nature to restore to it its
original efficacy. The resolution emphasizes that such amendments
"will only apply as between the States having acceded to the General Act as
thus amended and, as a consequence, will not affect the rights of such
States, parties to the Act as established on 26 September 1928, as should
claim to invoke it in so far as it might still be operative".
(d) Are Articles 17, 33, 34 and 37 of the General Act, which refer to the
Permanent Court of International Justice, still applicable by the operation
of Article 37 of the Statute? Solely an affirmative answer would appear to
be tenable.
The Court answered the question indirectly in the Barcelona Traction, Light
and Power Company, Limited case (Preliminary Objections stage); Judge
Armand-Ugon demonstrated that the bilateral treaties of conciliation,
judicial settlement and arbitration of the time were of the same nature as
the General Act, a multilateral treaty. He said of the Hispano-Belgian
treaty of 1927 that it "is nothing other than a General Act on a small scale
between two States". That is true. He then reasoned as follows: resolution
268A (III) seemed to him to show, beyond all possible doubt, that the
General Assembly did not think it could apply Article 37 of the Statute of
the Court to the provisions of the General Act relating to the Permanent
Court, because for such a transfer "a new agreement [the 1949 Act] was
essential. This meant that Article 37 did not operate" (dissenting opinion,
I.C.J. Reports 1964, p. 156). The Court did not accept Judge Armand-Ugon's
reasoning as sound, and impliedly denied his interpretation of the 1949 Act
and found Article 37 of the Statute applicable to the 1928 General ActFN1.
The doctrine of the Court was that the real object of the jurisdictional
clause invoking the Permanent Court (under Art. 37) was not "to specify one
tribunal rather than another, but to create an obligation of compulsory
adjudication" (I.C.J. Reports 1964, p. 38).
---------------------------------------------------------------------------------------------------------------------
FN1 It held that the Hispano-Belgian treaty was still in force, because of
the applicability to it of Article 37 of the Statute.
---------------------------------------------------------------------------------------------------------------------
[p 381]
(e) The question which would appear to be basic to the present discussion
on the continuance in force of the General Act is whether or not that
instrument has been subjected to tacit abrogation.
International law does not look with favour on tacit abrogation of treaties.
The Vienna Convention, which may be regarded as the codification of
communis opinio in the field of treaties (I.C.J. Reports 1971, p. 47), has
laid down that the "termination of a treaty" may take place only "as a
result of the application of the provisions of the treaty or of the present
Convention" (Art. 42, para. 2), and that the termination of a treaty under
the Convention may take place:''(a) in conformity with the provisions of the
treaty; or (b) at any time by consent of all the parties after consultation
with other contracting States" (Art. 54).
The General Act laid down the minimum period for which it should be in
force, provided for automatic renewal for five-year periods, and prescribed
the form and means of denunciation (Art. 45). Like the Vienna Convention,
the Act did not contemplate tacit abrogation; and this is as it should be.
To admit tacit abrogation would be to introduce confusion into the
international system. Furthermore, if tacit abrogation were recognized, it
would be necessary to produce proof of the facta concludentia which would
have to be relied on to demonstrate the con-trarius consensus of the
parties, and proof of sufficient force to relieve the parties of the
obligation undertaken by them under the treaty.
(f) It seems to me to be going too far to argue from the silence surrounding
the Act that this is such as to give rise to a presumption of lapse FN1.
Digests and lists of treaties in force have continued to mention the Act;
legal authors have done likewise FN2.
---------------------------------------------------------------------------------------------------------------------
FN1 The non-invocation of a treaty may in fact be due to its efficacy in
obviating disputes between the parties�and thereby constitute the best
evidence of its continuance in force.
FN2 It has been cited as being still in force by the most qualified writers
in France and in other countries. Nonetheless, the doubts of Siorat should
be noted, as to the validity of the Act after the winding-up of the League
of Nations. He raises the problem whether the General Act might not have
lapsed for a reason other than the winding-up of the Permanent Court:
impossibility of execution, as a result of the disappearance of the
machinery of the League of Nations, might be asserted. But for termination
to have occurred, it would be necessary to prove that the functions laid on
the League of Nations have not been transferred to the United Nations, and
that the situation would both make execution literally impossible and create
a total, complete and permanent impossibility. Generally accepted desuetude
might also be asserted. This writer men-tions that the attitude of the
parties towards the Act is difficult to interpret, and points out that for
there to be desuetude it would be necessary to prove indisputably that the
parties had adopted a uniform attitude by acting with regard to the Act as
though it did not exist, and that they had thus, in effect, concluded a
tacit agreement to regard the Act as having terminated ("L'article 37 du
Statut de la Cour internationale de Justice", Annuaire fran�ais de droit
international, 1962, pp. 321-323). It should be observed that the data given
by this writer are somewhat incomplete.
---------------------------------------------------------------------------------------------------------------------
In the Court also, Judge Basdevant affirmed that the General Act was still
in force and that it was therefore in force between France and Norway, which
were both signatories to it. He drew attention to the fact [p 382] that the
Act had been mentioned in the Observations of the French Government and had
later been explicitly invoked by the Agent of that Government as a basis of
the Court's jurisdiction in the case: he likewise pointed out that the Act
had also been mentioned by counsel for the Norwegian Government (I.C.J.
Reports 1957, p. 74). This is an opinion of considerable authority. But it
seems to me relevant also to observe that, when the Court (despite Judge
Basdevant's opinion) dismissed the French claim in the Certain Norwegian
Loans case, it did not throw doubt on the validity and efficacy of the
General ActFN1
---------------------------------------------------------------------------------------------------------------------
FN1 The Court said that the French Government had mentioned the General Act
of Geneva, but went on to say that such a reference could not be regarded as
sufficient to justify the view that the Application of the French Government
was based upon the General Act. "If the French Government had intended to
proceed upon that basis it would expressly have so stated." The Court
considered that the Application of the French Government was based clearly
and precisely on Article 36, paragraph 2, of the Statute. For that reason,
the Court felt that it would not be justified in seeking a basis for its
jurisdiction "different from that which the French Government itself set out
in its Application and by reference to which the case had been presented by
both Parties to the Court" (I.C.J. Reports 1957, p. 24 f.). It seems that it
would not have been in the interest of the French Government to place
emphasis on the General Act, because the latter, in Article 31, required the
exhaustion of local remedies.
---------------------------------------------------------------------------------------------------------------------
The dissenting opinion of Judges Guerrero, McNair, Read and Hsu Mo, in the
case concerning Reservations to the Convention for the Prevention and
Punishment of the Crime of Genocide, also referred to the 1928 General Act
and to the Revised Act (I.C.J. Reports 1951, p. 37) FN2.
------------------------------------------------------------------------------------------------------------
FN2 The Act is also cited in I.C.J. Reports 1961, p. 19. Pakistan invoked it
as basis of the Court's jurisdiction in its Application of 11 May 1973
against India (a case which was removed from the list by an Order of 15
December 1973 following a discontinuance by Pakistan).
---------------------------------------------------------------------------------------------------------------------
In my view, one can only agree with the following statement, taken from a
special study of the matter:
"In conclusion it may be affirmed that the General Act of Geneva is in force
between twenty contracting States FN3 which are still bound by the Act, and
not only in a purely formal way, for it retains full efficacy for the
contracting States despite the disappearance of some organs of the League of
Nations FN4."
------------------------------------------------------------------------------------------------------------
FN3 France and the United Kingdom have denounced the Act since the
institution of the present proceedings.
FN4 Kunzmann, "Die Generalakte von New York und Genf als
Streitschlichtungsvertrag der Vereinten Nationen", 56 Die Friedens-Warte
(1961-1966), Basle, p. 22.
------------------------------------------------------------------------------------------------------------
(g) The continuance in force of the General Act being admitted, it has still
been possible to ask whether the French declaration recognizing the
compulsory jurisdiction of the Court, with the 1966 reservation as to
national defence, might not have modified the obligations undertaken by
France when it signed the Act, in particular those contained in Chapter II.
In more general terms, the question is whether the treaties and conventions
in force in which acceptance of the Court's jurisdiction is specially
provided for (the hypothesis of Art. 36, para. 1, of the Statute), are
sub-[p 383]ordinate to the unilateral declarations made by States accepting
the compulsory jurisdiction of the Court (the hypothesis of Art. 36, para.
2), or depend on those declarations, with the result that the abrogation of
that obligation to be subject to the Court's jurisdiction, or its limitation
by the introduction of additional reservations, also entails the abrogation
or limitation of the obligations undertaken under a previous bilateral or
multilateral convention.
The respect due to the sovereignty of States, and the optional nature of the
Court's jurisdiction (Art. 2, para. 7, of the Charter), would not seem to
warrant setting aside the principle of pacta sunt servanda, an essential
pillar of international law. Once submission to the Court's jurisdiction has
been established in a treaty or convention (Art. 36, para. 1, of the
Statute), the parties to the treaty or convention cannot of their own free
will and by unilateral declaration escape the obligation undertaken toward
another State. Such declaration does not have prevailing force simply
because it provides for the jurisdiction of the Court in accordance with
Article 36, paragraph 2, of the Statute, or because it is made subject to
reservations, or enshrines a possibility of arbitrarily depriving the Court
of jurisdiction. To undo the obligation undertaken, it will always be
necessary to denounce the treaty or convention in force, in accordance with
the prescribed conditions.
Even if it be thought that a declaration filed under Article 36, paragraph
2, of the Statute gives rise to obligations of a contractual nature, the
answer would still be that such declaration cannot free the declarant State
from all or any of the obligations which it has already undertaken in a
prior agreement, otherwise than in accordance with the conditions laid down
in that agreement. For there to be implied termination of a treaty as a
result of the conclusion of a subsequent treaty, a primary requirement is
that "all the parties to it conclude a later treaty relating to the same
subject-matter" (Vienna Convention, Art. 59).
It should also be noted that there is not such incompatibility between
declarations made by virtue of Article 36, paragraph 2, of the Statute, and
the General Act, as to give rise to tacit abrogation as a result of a new
treaty. The Act operates between the signatories thereto, a closed group of
20 States, and imposes special conditions and limitations on the parties.
The Statute, on the contrary, according to the interpretation which has been
given of Article 36, paragraph 2, opens the door to practically all States
(Art. 93 of the Charter), and permits of conditions and reservations of any
kind whatever being laid down.
The relationship between the General Act and subsequent acceptance of the
compulsory jurisdiction of the Court has been explained in a concise and
masterly fashion by Judge Basdevant:
"A way of access to the Court was opened up by the accession of the two
Parties to the General Act of 1928. It could not be closed or cancelled out
by the restrictive clause which the French Government, and not the
Norwegian Government, added to its fresh [p 384] acceptance of compulsory
jurisdiction stated in its Declaration of 1949. This restrictive clause,
emanating from only one of them, does not constitute the law as between
France and Norway. The clause is not sufficient to set aside the juridical
system existing between them on this point. It cannot close the way of
access to the Court that was formerly open, or cancel it out with the result
that no jurisdiction would remain." (I.C.J. Reports 1957, pp. 75 f.)
(h) There still remains a teasing mystery: why did the French Government
not denounce the General Act at the appropriate time and in accordance with
the required forms, in exercise of Article 45, paragraph 3, of the Act, at
the time in 1966 when it filed its declaration recognizing the jurisdiction
of the Court subject to new reservations? It seems obvious that the French
Government was in 1966 not willing that questions concerning national
defence should be capable of being brought before the Court, and we simply
do not know why the French Government preserved the Court's jurisdiction
herein vis-�-vis the signatories to the ActFN1. But this anomalous situation
cannot be regarded as sufficient to give rise to a presumption of tacit
denunciation of the General Act by the French Government, and to confer on
such denunciation legal effectiveness in violation of the provisions of the
Act itself. To admit this would be contrary to the most respected principles
of the law of treaties; it would be contrary to legal security and even to
the requirements of the law as to presumptions.
---------------------------------------------------------------------------------------------------------------------
FN1 Though various hypotheses have been put forward to explain this
apparently contradictory conduct.
---------------------------------------------------------------------------------------------------------------------
III. The Admissibility of the application
1. The Order of 22 June 1973 decided that the written pleadings should be
addressed both to the question of the Court's jurisdiction to entertain the
dispute and to that of the admissibility of the Application. The Court has
thus followed Article 67 of its Rules.
The term "admissibility" is a very wide one, but the Order, in paragraph
23, throws some light on the meaning in which it uses it, by stating that it
cannot be assumed a priori that the Applicant "may not be able to establish
a legal interest in respect of these claims entitling the Court to admit the
Application".
The question is whether the Applicant, in its submissions, has or has not
asserted a legal interest as basis of its action. At the preliminary stage
contemplated by the Order, the Court has first to consider whether the
Applicant is entitled to open the proceedings (legitimatio ad processum,
Rechtsschutzanspruch), to set the procedural machinery in motion, before
turning to examination of the merits of the case. Subsequently the question
would arise as to whether the interest alleged was, in fact and in law, [p
385] worthy of legal protection FN1 But that would belong to the merits of
the case, and it therefore does not fall to be considered here.
---------------------------------------------------------------------------------------------------------------------
FN1 Judge Morelli once pointed out that the distinction between a right of
action and a substantive interest is proper to municipal law, whereas it is
necessary in international law to ascertain whether there is a dispute
(separate opinion, I.C.J. Reports 1963, pp. 132 f.). I do not find this
observation particularly useful. To hold an application inadmissible because
of the applicant's want of legal interest, or to reach the same conclusion
because for want of such interest there is no dispute, conies to one and the
same thing. Judge Morelli felt bound to criticize the 1962 South West Africa
Judgment because in his view it confused "the right to institute
proceedings" (which has to be examined as a preliminary question) and the
existence of "a legal right or interest" or "a substantive right vested in
the Applicants" (which has to be regarded as a question touching the merits)
(separate opinion, I.C.J. Reports 1966, p. 61).
---------------------------------------------------------------------------------------------------------------------
The Applicant refers to violations by France of several legal rules, and
endeavours to show that it has a legal interest to complain of each of these
violations. It will therefore be necessary to examine the interest thus
invoked in each case of alleged violation, but it would be as well for me
first of all to devote some attention to the meaning of the expression
"legal interest".
2.The idea of legal interest is at the very heart of the rules of procedure
(cf. the maxim "no interest, no action"). It must therefore be used with the
exactitude required by its judicial function. The General Act affords a good
guide in this respect: it distinguishes between "disputes of every kind"
which may be submitted to the procedure of conciliation (Art. 1), the case
of "an interest of a legal nature" in a dispute for purposes of intervention
(Art. 36), and "all disputes with regard to which the Parties are in
conflict as to their respective rights" (Art. 17); only the latter are
disputes appropriate to judicial settlement, and capable of being submitted
for decision to the Permanent Court of International Justice in accordance
with the General Act FN2.
---------------------------------------------------------------------------------------------------------------------
FN2 Sir Gerald Fitzmaurice has shed light on the meaning to be given to the
term "dispute". He says that a legal dispute exists
"only if its outcome or result, in the form of a decision of the Court, is
capable of affecting the legal interests or relations of the parties, in the
sense of conferring or imposing upon (or confirming for) one or other of
them, a legal right or obligation, or of operating as an injunction or a
prohibition for the future, or as a ruling material to a still subsisting
legal situation" (separate opinion, I.C.J. Reports 1963, p. 110).
The point thus made is not upset by the fact that proceedings can be
instituted to secure a declaratory ruling, but in that connection it must be
noted that what may properly fall to be determined in contentious
proceedings is the existence or nonexistence of a right vested in a party
thereto, or of a concrete or specific obligation. The Court cannot be called
upon to make a declaratory finding of an abstract or general character as to
the existence or non-existence of an objective rule of law, or of a general
or non-specific obligation. That kind of declaration may be sought by means
of a request for an advisory opinion.
---------------------------------------------------------------------------------------------------------------------
As is apparent, Article 17 of the General Act does not permit of an
extensive interpretation of the "legal interest" which may be asserted
before the Court. What is contemplated is a right specific to the Applicant
which is at the heart of a dispute, because it is the subject of
conflicting claims between the Applicant and the Respondent. Thus it is a
[p 386] right in the proper sense of that term (ius dominativum), the nature
of which is that it belongs to one or another State, that State being
entitled to negotiate in respect thereof, and to renounce it.
The Applicant however seems to overlook Article 17, and considers that it is
sufficient for it to have a collective or general interest. It has cited
several authorities to support its view that international law recognizes
that every State has an interest of a legal nature in the observation by
other countries of the obligations imposed upon them by international law,
and to the effect also that law recognizes an interest of all States with
regard to general humanitarian causes.
If the texts which have been cited are closely examined, a different
conclusion emerges. In South West Africa (Preliminary Objections) Judge
Jessup showed how international law has recognized that States may have
interests in matters which do not affect their "material" or, say,
"physical" or "tangible" interests. But Judge Jessup also observes that
"States have asserted such legal interests on the basis of some treaty"; in
support of this observation he mentions the minorities treaties, the
Convention for the Prevention and Punishment of the Crime of Genocide,
conventions sponsored by the International Labour Organisation, and the
mandates system (separate opinion, I.C.J. Reports 1962, pp. 425 ff.). Judge
Jessup's opinion in the second phase of the South West Africa cases, in
which he criticizes the Court's Judgment, which did not recognize that the
Applicants or any State had a right of a recourse to a tribunal when the
Applicant does not allege its own legal interest relative to the merits, is
very subtly argued. Judge Jessup took into account the fact that it was a
question of "fulfilment of fundamental treaty obligations contained in a
treaty which has what may fairly be called constitutional characteristics"
(dissenting opinion, I.C.J. Reports 1966, p. 386). More specifically, he
added: "There is no generally established actio popularis in international
law" (ibid., p. 387). In the same case Judge Tanaka stated:
"We consider that in these treaties and organizations common and
humanitarian interests are incorporated. By being given organizational
form, these interests take the nature of 'legal interest' and require to be
protected by specific procedural means." (Dissenting opinion, I.C.J. Reports
1966, p. 252).
In reply to the argument that it should allow "the equivalent of an actio
popularis, or right resident in any member of a community to take legal
action in vindication of a public interest", the Court stated:
". . . although a right of this kind may be known to certain municipal
systems of law, it is not known to international law as it stands at
present: nor is the Court able to regard it as imported by the 'general
principles of law' referred to in Article 38, paragraph 1 (c), of its
Statute" (I.C.J. Reports 1966, p. 47, para. 88). [p 387]
On the other hand the Court has also said that:
"In particular, an essential distinction should be drawn between the
obligations of a State towards the international community as a whole, and
those arising vis-a-vis another State in the field of diplomatic protection.
By their very nature the former are the concern of all States. In view of
the importance of the rights involved, all States can be held to have a
legal interest in their protection; they are obligations erga omnes."
(I.C.J. Reports 1970, p. 32, para. 33.)
These remarks, which have been described as progressive and have been
regarded as worthy of sympathetic consideration, should be taken cum grano
salis. It seems to me that the obiter reasoning expressed therein should not
be regarded as amounting to recognition of the actio popularis in
international law; it should be interpreted more in conformity with the
general practice accepted as law. I am unable to believe that by virtue of
this dictum the Court would regard as admissible, for example, a claim by
State A against State B that B was not applying "principles and rules
concerning the basic rights of the human person" (I.C.J. Reports 1970, p.
32, para. 34) with regard to the subjects of State B or even State C.
Perhaps in drafting the paragraph in question the Court was thinking of the
case where State B injured subjects of State A by violating the fundamental
rights of the human person. It should also be borne in mind that the Court
appears to restrict its dictum on the same lines as Judges Jessup and Tanaka
when referring to "international instruments of a universal or
quasi-universal character" (I.C.J. Reports 1970, p. 32, para. 34)FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 The expression "obligations erga omnes" calls to mind the principle of
municipal law to the effect that ownership imposes an obligation erga omnes;
but this obligation gives rise to a legal right or interest to assert
ownership before a tribunal for the benefit of the owner who has been
injured in respect of his right or interest, or whose right or interest has
been disregarded. Even in the case of theft, one cannot speak of an actio
popularis�which is something different from capacity to report the theft to
the authorities. It should also be borne in mind that a decision of the
Court is not binding erga omnes: it has no binding force except between the
parties to the proceedings and in respect of the particular case decided
(Statute, Art. 59).
---------------------------------------------------------------------------------------------------------------------
In any event, if, as appears to me to be the case, the Court's jurisdiction
in the present case is based upon Article 17 of the General Act and not on
the French declaration of 1966, the Application is not admissible unless the
Applicant shows the existence of a right of its own which it asserts to have
been violated by the act of the Respondent.
3. The claim that the Court should declare that atmospheric nuclear tests
are unlawful by virtue of a general rule of international law, and that all
States, including the Applicant, have the right to call upon France to
refrain from carrying out this sort of test, gives rise to numerous doubts.
[p 388]
Can the question be settled in accordance with international law, or does it
still fall within the political domain? There is also the question whether
this is a matter of admissibility or one going to the merits. A distinction
must be made as to whether it relates to the political or judicial character
of the case (a question of admissibility), or whether it relates to the rule
to be applied and the circumstances in which that rule can be regarded as
part of customary law (a question going to the merits)FN1 This is a
difficulty which could have been resolved by joining the question of
admissibility to the merits.
---------------------------------------------------------------------------------------------------------------------
FN1 The idea that the Moscow Treaty, by its nature, partakes of customary
law or ius cogens is laid open to some doubt by its want of universality and
the reservation in its Article IV to the effect that "Each Party shall ...
have the right to withdraw from the Treaty if it decides that extraordinary
events, related to the subject-matter of this Treaty, have jeopardized the
supreme interests of its country".
On the preconditions for the birth of a rule of customary law, cf. my
separate opinion, I.C.J. Reports 1974, pp. 89 ff.
---------------------------------------------------------------------------------------------------------------------
But there is no need to settle these points. In my opinion, it is clear that
the Applicant is not entitled to ask the Court to declare that atmospheric
nuclear tests are unlawful. The Applicant does not have its own material
legal interest, still less a right which has been disputed by the other
Party as required by the General Act. The request that the Court make a
general and abstract declaration as to the existence of a rule of law goes
beyond the Court's judicial function. The Court has no jurisdiction to
declare that all atmospheric nuclear tests are unlawful, even if as a matter
of conscience it considers that such tests, or even all nuclear tests in
general, are contrary to morality and to every humanitarian consideration.
4. The right relied on by the Applicant with regard to the deposit of
radio-active fall-out on its territory was considered in the Order of 22
June 1973 (para. 30). We must now consider whether reliance on this right
makes the request for examination of the merits of the case admissible. The
Applicant's complaint against France of violation of its sovereignty by
introducing harmful matter into its territory without its permission is
based on a legal interest which has been well known since the time of Roman
law. The prohibition of immissio (of water, smoke, fragments of stone) into
a neighbouring property was a feature of Roman law (D. 8, 5, 8, para. 5).
The principle sic utere tuo ut aliaenum non laedas is a feature of law both
ancient and modern. It is well known that the owner of a property is liable
for intolerable smoke or smells, "because he oversteps [the physical limits
of his property], because there is immissio over the neighbouring
properties, because he causes injury FN2".
---------------------------------------------------------------------------------------------------------------------
FN2 Mazeaud, Traite theorique et pratique de la responsabilite civile, 3rd
ed., 1938, Vol. I, pp. 647 f., para. 597.
---------------------------------------------------------------------------------------------------------------------
In international law, the duty of each State not to use its territory for
acts contrary to the rights of other States might be mentioned (I.C.J.
Reports 1949, p. 22). The arbitral awards of 16 April 1938 and 11 March [p
389] 1941 given in a dispute between the United States and Canada mention
the lack of precedents as to pollution of the air, but also the analogy with
pollution of water, and the Swiss litigation between the cantons of
Solo-thurn and Aargau FN1. The conflict between the United States and Canada
with regard to the Trail Smelter was decided on the basis of the following
rule:
---------------------------------------------------------------------------------------------------------------------
FN1 The Swiss Federal Tribunal laid down that, according to the rules of
international law, a State may freely exercise its sovereignty provided it
does not infringe rights derived from the sovereignty of another State; the
presence of certain shooting-butts in Aargau endangered areas of Solothurn,
and the Tribunal forbade use of the butts until adequate protective measures
had been introduced (Judgments of the Swiss Federal Tribunal, Vol. XXVI,
Part I, pp. 449-451, Recital 3, quoted in Roulet, Le caract�re artificiel de
la theorie de l'abus de droit en droit international public, Neuch�tel 1958,
p. 121).
---------------------------------------------------------------------------------------------------------------------
"No State has the right to use or permit the use of its territory in such a
manner as to cause injury by fumes in or to the territory of another . . .
when the case is of serious consequence and the injury is established by
clear and convincing evidence." (Trail Smelter arbitration, 1938-1941,
United States of America v. Canada, UNRIAA, Vol. III, p. 1965 FN2.)
------------------------------------------------------------------------------------------------------------
FN2 The Award reaches that conclusion "under the principles of international
law, as well as of the law of the United States". The award has been
regarded as "basic for the whole problem of interference. Its bases are now
part of customary international law", A. Randelzhofer, B. Simma, "Das
Kernkraftwerk an der Grenze�Ein 'ultra-hazardous activity' im Schnittpunkt
von internationalem Nachbarrecht und Umweltschutz", Festschrift f�r
Friedrich Berber, Munich, 1973, p. 405. This award marks the abandon-ment of
the theory of Harmon (absolute sovereignty of each State in its territory
with regard to all others); Krakan, Die Harmon Doktrin: Eine These der
Vereinigten Staaten zum internationalen Flussrecht, Hamburg, 1966, p. 9.
------------------------------------------------------------------------------------------------------------
If it is admitted as a general rule that there is a right to demand
prohibition of the emission by neighbouring properties of noxious fumes
FN3, the consequence must be drawn, by an obvious analogy, that the
Applicant is entitled to ask the Court to uphold its claim that France
should put an end to the deposit of radio-active fall-out on its territory.
---------------------------------------------------------------------------------------------------------------------
FN3 I.e., the continuance of the emission of harmful fumes, or the renewed
emission of fumes if it is to be feared (ad metuendum) that harm will
result. Damnum infectum est damnum nondum factum, quod futurum veremur, D.
39, 2, 2.
---------------------------------------------------------------------------------------------------------------------
The question whether the deposit of radio-active substances on the
Applicant's territory as a result of the French nuclear tests is harmful to
the Applicant should only be settled in the course of proceedings on the
merits in which the Court would consider whether intrusion or trespass into
the territory of another is unlawful in itself or only if it gives rise to
damage; in the latter hypothesis, it would still have to consider the nature
of the alleged damage FN4, its existence FN5 and its relative import [p
390] anceFN1 in order to pronounce on the claim for prohibition of the
French nuclear tests FN2.
---------------------------------------------------------------------------------------------------------------------
FN4 It would have to say, for example, whether or not account should be
taken of the fact that continuation of the nuclear tests causes injury, in
particular by way of apprehension, anxiety and concern, to the inhabitants
and Government of Australia.
FN5 This raises the question of evidence (Arts. 48 and 50 of the Statute;
Art. 62 of the Rules).
FN1The relative importance of the interests of the Parties must be assessed,
and the possibility of reconciling them (question of proximity and innocent
usage).
FN2 In its Order of 22 June 1973, the Court alluded to the possibility that
the tests might cause "irreparable damage" to the Applicant; this is a
possibility which should be kept in mind in relation to the indication of
interim measures (in view notably of their urgent character) but not where
admissibility is concerned.
--------------------------------------------------------------------------------------------------------------------
5. A third complaint against France is based upon infringement of the
principle of freedom of the high seas as the result of restrictions on
navigation and flying due to the establishment of forbidden zones. This
raises delicate legal questions.
Is the carrying-out of nuclear tests over the sea, and the establishment of
forbidden zones, part of the other freedoms "which are recognized by the
general principles of international law" or is it contrary to the freedoms
of other States? Are we dealing with a case analogous to that of the
establishment of forbidden zones for firing practice or naval manoeuvres?
The interpretation of Article 2, paragraph 2, of the Convention on the High
Seas requires that in each case reasonable regard be had to the interests of
other States in their exercise of their freedom of the high seas; the nature
and the importance of the interests involved must be considered, as must
the principle of non-harmful use (prodesse enim sibi unusquisque, dum alii
non nocet, non prohibetur, D. 39, 3, 1, para. 11), of the misuse of rights,
and of good faith in the exercise of freedoms.
The question of nuclear tests was examined by the 1958 Conference on the Law
of the Sea. A strong tendency to condemn nuclear testing was then apparent,
yet the Conference accepted India's proposal; it recognized that there was
apprehension on the part of many States that nuclear explosions might
constitute an infringement of freedom of the high seas, and referred the
matter to the General Assembly for appropriate action.
The complaint against France on this head therefore raises questions of law
and questions of fact relating to the merits of the case, which should not
be examined and dealt with at the preliminary stage of proceedings
contemplated by the Order of 22 June 1973.
It seems to me that this third complaint is not admissible in the form in
which it has been presented. The Applicant is not relying on a right of its
own disputed by France, and does not base its Application on any material
injury, responsibility for which it is prepared to prove lies upon France
FN3. The Applicant has no legal title authorizing it to act as spokesman
for the international community and ask the Court to condemn France's
conduct. The Court cannot go beyond its judicial functions and determine in
a general way what France's duties are with regard to the freedoms of the
sea.
---------------------------------------------------------------------------------------------------------------------
FN3 Regarding the conditions on which a claim for damages can be
entertained, c I.C.J. Reports 1974, pp. 203-205, especially para. 76, and
see also ibid., p. 225.
---------------------------------------------------------------------------------------------------------------------
(Signed) F. De Castro.
[p 391]
Dissenting opinion of judge sir Garfield Barwick
The Court, by its Order of 22 June 1973, separated two questions, that of
its jurisdiction to hear and determine the Application, and that of the
admissibility of the Application from all other questions in the case. It
directed that "the written proceedings shall first be addressed" to those
questions. These were therefore the only questions to which the Parties were
to direct their attention. Each question related to the situation which
obtained at the date the Application was lodged with the Court, namely 9 May
1973. The Applicant in obedience to the Court's Order has confined its
Memorial and its oral argument to those questions. Neither Memorial nor
argument has been directed to any other question.
Having read the Memorial and heard that argument, the Court has discussed
those questions but, whilst the Parties await the Court's decision upon
them, the Court of its own motion and without any notice to the Parties has
decided the question whether the Application has ceased to have any object
by reason of events which have occurred since the Application was lodged. It
has taken cognizance of information as to events said to have occurred since
the close of the oral proceedings and has treated it as evidence in the
proceedings. It has not informed the Parties of the material which it has
thus introduced into evidence. By the use of it the Court has drawn a
conclusion of fact. It has also placed a particular interpretation upon the
Application. Upon this conclusion of fact and this interpretation of the
Application the Court has decided the question whether the Application has
ceased to have any object. That question, in my opinion, is not embraced
within either of the two questions on which argument has been heard. It is
a separate, a different and a new question. Thus the Parties have had no
opportunity of placing before the Court their submissions as to the proper
conclusion to be drawn from events which have supervened on the lodging of
the Application or upon the proper interpretation of the Application itself
in so far as each related to the question the Court has decided or as to the
propriety of deciding that question in the sense in which the Court has
decided it or at all at this stage of the proceedings: for it may have been
argued that that question if it arose was not of an exclusively preliminary
character in the circumstances of this case. The conclusion of fact and the
interpretation of the Application are clearly matters about which opinions
differ. Further, the reasoning of the Judgment involves important
considerations of international law. Therefore, there was ample room for
argument and for the assistance of counsel. In any case the Applicant must
have been entitled to make submissions as to all the matters involved in the
decision of the Court. [p 392]
However, without notifying the Parties of what it was considering and
without hearing them, the Court, by a Judgment by which it decides to
proceed no further in the case, avoids deciding either of the two matters
which it directed to be, and which have been argued.
This, in my opinion, is an unjustifiable course, uncharacteristic of a court
of justice. It is a procedure which in my opinion is unjust, failing to
fulfil an essential obligation of the Court's judicial process. As a judge I
can have no part in it, and for that reason, if for no other, I could not
join in the Judgment of the Court. However I am also unable to join in that
Judgment because I do not accept its reasoning or that the material on which
the Court has acted warrants the Court's conclusion. With regret therefore I
dissent from the Judgment.
It may be thought quite reasonable that if France is willing to give to
Australia such an unqualified and binding promise as Australia finds
satisfactory for its protection never again to test nuclear weapons in the
atmosphere of the South Pacific, this case should be compromised and the
Application withdrawn. But that is a matter entirely for the sovereign
States. It is not a matter for this Court. The Rules of Court provide the
means whereby the proceedings can be discontinued at the will of the Parties
(see Arts. 73 and 74 of the Rules of Court). It is no part of the Court's
function to place any pressure on a State to compromise its claim or itself
to effect a compromise.
It may be that a layman, with no loyalty to the law might quite reasonably
think that a political decision by France no longer to exercise what it
claims to be its right of testing nuclear weapons in the atmosphere, when
formally publicized, might be treated as the end of the matter between
Australia and France. But this is a court of justice, with a loyalty to the
law and its administration. It is unable to take the layman's view and must
confine itself to legal principles and to their application.
The Court has decided that the Application has become "without object" and
that therefore the Court is not called upon to give a decision upon it. The
term "without object" in this universe of discourse when applied to an
application or claim, so far as relevant to the circumstances of this case,
I understand to imply that no dispute exists between the Parties which is
capable of resolution by the Court by the application of legal norms
available to the Court or that the relief which is sought is incapable of
being granted by the Court or that in the circumstances which obtain or
would obtain at the time the Court is called upon to grant the relief
claimed, no order productive of effect upon the Parties or their rights
could properly be made by the Court in exercising its judicial function.
To apply the expression "has become without object" to the present
circumstances, means in my opinion, that this Judgment can only be valid if
the dispute between France and Australia as to their respective rights has
been resolved; has ceased to exist or if the Court, in the circumstances
[p 393]now prevailing, cannot with propriety, within its judicial function,
make any declaration or Order having effect between the Parties.
It should be observed that I have described the dispute between France and
Australia as a dispute as to their respective rights. I shall at a later
stage express my reasons for my opinion that that is the nature of their
dispute. But it is proper to point out immediately that if the Parties were
not in dispute as to their respective rights the Application would have been
"without object" when lodged, and no question of its having no longer any
object could arise. On the other hand if the Parties were in dispute as to
their respective rights, it is that dispute which is relevant in any
consideration of the question whether or not the Application no longer has
any object.
Of course, if the Court lacked jurisdiction or if the Application as lodged
was inadmissible because the Parties were never in dispute as to their legal
rights, the Court would be not required to go any further in the matter. But
the Court has not expressed itself on those matters. The Judgment is not
founded either on a lack of jurisdiction or on the inadmissibility of the
Application when lodged, though it seems to concede inferentially that the
Application was admissible when lodged.
In order to make my view in this matter as clear as I am able, it will be
necessary for me in the first place to discuss the only two questions on
which the Court has heard argument. Thereafter I shall express my reasons
for dissenting from the Court's Judgment (see p. 439 of this opinion). I
shall first state my conclusions and later develop my reasons for them.
In my opinion, the Court has jurisdiction to hear a dispute between France
and Australia as to their respective rights by virtue of Articles 36 (1) and
37 of the Statute of the Court and Article 17 of the General Act of Geneva
of 26 September 1928. Further, I am of opinion that at the date the
Application was lodged with the Court, France and Australia were, and in my
opinion still are, in dispute as to their respective rights in relation to
the consequences in the Australian territory and environment of the
explosion by France in the South Pacific of nuclear devices.
Further, they were, and still are, in difference as to the lawfulness or
unlawfulness according to customary international law of the testing of
nuclear weapons in the atmosphere. Subject to the determination of the
question whether the Applicant has a legal interest to maintain its
Application in respect of this difference, I am of opinion that the Parties
were, at the date of the Application, and still are, in dispute as to their
respective rights in respect of the testing of nuclear weapons in the
atmosphere.
If it be a separate question in this case, I am of opinion that the claim of
the Applicant is admissible in respect of all the bases upon which it is
made, with the exception of the basis relating to the unlawfulness of the
testing of nuclear weapons in the atmosphere. I am of opinion that the [p
394] question whether the Applicant has a legal interest to maintain its
claim in respect of that basis is not a question of an exclusively
preliminary character, and that it cannot be decided at this stage of the
proceedings.
The distinctions implicit in this statement of conclusions will be developed
later in this opinion.
I approach the Court's Judgment therefore with the view that the Court is
presently seized of an Application which to the extent indicated is
admissible and which the Court is competent to hear and determine. I am of
opinion that consistently under Article 38 the Court should have decided its
jurisdiction and if it be a separate question the admissibility of the
Application.
I am of opinion that the dispute between the Parties as to their legal
rights was not resolved or caused to disappear by the communique and
statements quoted in the Judgment and that the Parties remained at the date
of the Judgment in dispute as to their legal rights. This is so, in my
opinion, even if, contrary to the view I hold, the communique and statements
amounted to an assurance by France that it would not again test nuclear
weapons in the atmosphere. That assurance, if given, did not concede any
rights in Australia in relation to nuclear explosions or the testing of
nuclear weapons: indeed, it impliedly asserted a right in France to continue
such explosions or tests. Such an assurance would of itself in my opinion be
incapable of resolving a dispute as to legal rights.
I am further of opinion that the Judgment is not supportable on the material
and grounds on which it is based.
I now proceed to express my reasons for the several conclusions I have
expressed.
Indication of Interim Measures
On 22 June 1973, the Court by a majority indicated by way of interim
measures pending the Court's final decision in the proceedings that:
"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 radioactive fall-out on Australian territory."
In its Order the Court recited that:
"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 [p 395] 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 . .
."
After indicating in paragraph 14 of the Order that the Government of
Australia (the Applicant) claimed to found the jurisdiction of the Court to
entertain its Application upon (1) Article 17 of the General Act of Geneva
of 26 September 1928, read with Articles 36 (1) and 37 of the Statute of the
Court, and (2) alternatively, on Article 36 (2) of the Statute of the Court
and the respective declarations of Australia and France made thereunder,
this Court concluded that:
"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 . . ."
In indicating summarily in my declaration of 22 June 1973 my reason for
joining the majority in indicating interim measures, I said:
"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."
I did so to emphasize the fact that the Court had at that time examined its
jurisdiction in considerable depth and that it had not acted upon any
presumptions nor upon any merely cursory considerations. Consistently with
the Court's jurisprudence as a result of this examination there appeared,
prima facie, a basis on which the Court's jurisdiction might be founded.
For my own part I felt, at that time, that it was probable that the General
Act of Geneva of 26 September 1928 (the General Act) continued at the date
of the Application to be valid as a treaty in force between Australia and
France and that the dispute between those States, as evidenced in the
material lodged with the Application, fell within the scope of Article 17 of
the General Act.
Declarations by France and Australia to the compulsory jurisdiction of the
Court under Article 36 (2) of the Court's Statute with the respective [p
396] reservations, but particularly that of France of 20 May 1966, as a
source of the Court's jurisdiction raised other questions which I had then
no need to resolve but which did not ex facie, in my opinion, necessarily
deny the possibility of that jurisdiction.
In order to resolve as soon as possible the questions of its jurisdiction
and the admissibility of the Application, the Court decided that the
written proceedings should first be addressed to those questions.
Whether First to Decide Jurisdiction or Admissibility
In the reported decisions of the Court, and in the recorded opinions of
individual judges, and in the literature of international law, I do not find
any definition of admissibility which can be universally applied. A
description of admissibility of great width was suggested in the dissenting
opinion of Judge Petren in this case (I.C.J. Reports 1973, p. 126); in the
dissenting opinion of Judge Gros, the suggestion was made that the lack of a
justiciable dispute, one which could be resolved by the application of legal
norms, made the Application "without object" and thus from the outset
inadmissible. In his declaration made at that time, Judge Jimenez de
Arechaga pointed to the expressions in paragraph 23 of the Court's Order as
indicating that the existence of a legal interest of the Applicant in
respect of its claims was one aspect of admissibility.
The Applicant confined its Memorial and its oral argument in relation to the
question of admissibility substantially to the question whether it had a
legal interest to maintain its Application. But the Court itself gave no
approval to any such particular view of admissibility. Intervention by the
President during argument indicated that the Court would decide for itself
the ambit of the question of admissibility, that is to say, in particular
that it would not necessarily confine itself to the view seemingly adopted
by counsel. I shall need later to discuss the aspect of admissibility
which, if it is a question in this case separate from that of jurisdiction,
is appropriate for consideration.
The question may arise at the preliminary stage of a matter whether the
admissibility of an application or reference ought first to be decided
before any question of jurisdiction is determined. Opinion appears to be
divided as to whether or not in any case jurisdiction should first be
established before the admissibility of an application is considered, see
for example on the one hand the views expressed in the separate opinion of
Judge Sir Percy Spender, in the dissenting opinions of President Klaestad,
Judge Armand-Ugon and Judge Sir Hersch Lauterpacht in the Interhandel case
(Switzerland v. United States of America, I.C.J. Reports 1959, at p. 6) and,
on the other hand, the views expressed by Judge Sir Gerald Fitzmaurice in
his separate opinion in the case of the Northern Cameroons (Cameroon v.
United Kingdom, I.C.J. Reports 1963, p. 15). There is no universal rule
clearly expressed in the decisions of the Court that the one question in
every case should be determined before the other. [p 397]
But granted that there can be cases in which this Court ought to decide the
admissibility of a matter before ascertaining the existence or extent of its
own jurisdiction, I am of the opinion that in this case the Court's
jurisdiction ought first to be determined. There are two reasons for my
decision in this sense. First, there is said to be a question of
admissibility in this case which, even if it exists as a separate question,
seems to me to be bound up with the question of jurisdiction and which,
because of the suggested source of jurisdiction in Article 17 of the General
Act, to my mind is scarcely capable of discussion in complete isolation from
that question. Second, the Court has already indicated interim measures and
emphasized the need for an early definitive resolution of its jurisdiction
to hear the Application. It would not be judicially proper, in my opinion,
now to avoid a decision as to the jurisdiction of the Court by prior
concentration on the admissibility of the Application, treating the two
concepts as mutually exclusive in relation to the present case.
The Questions to Possess an Exclusively Preliminary Character
I should at this stage make some general observations as to the nature of
the examination of jurisdiction and of admissibility which should take place
in pursuance of the Court's Order of 22 June 1973. Though not so expressly
stated in the Court's Order, these questions, as I understand the position,
were conceived to be of a preliminary nature, to be argued and decided as
such. They are to be dealt with at this stage to the extent that each
possesses "an exclusively preliminary character", otherwise their
consideration must be relegated to the hearing of the merits.
In amending its Rules on 10 May 1972 and in including in them Article 67 (7)
as it now appears, the Court provided for the possibility of a two-stage
hearing of a case, in the first stage of which questions of jurisdiction and
admissibility, as well as any other preliminary question, might be decided,
if those questions could be decided as matters of an exclusively preliminary
character. Textually, Article 67 as a whole depends for its operation upon
an objection to the jurisdiction of the Court or to the admissibility of the
Application by a respondent party in accordance with the Rules of Court.
There has been no objection by the Respondent to the jurisdiction of the
Court or to the admissibility of the Application in this case conformable to
Article 67 of the Court's Rules. Thus, technically it may be said that
Article 67 (7) does not control the proceedings at this stage. But though
not formally controlling this stage of the case, Article 67 (7) and its very
presence in the Rules of Court must have some bearing upon the nature of the
examination which is to be made of these two questions. The Article is
emphatic of the proposition that if such questions as jurisdiction or
admissibility are separated from the hearing of the merits, they may only be
decided apart from the merits if they possess an exclusively preliminary
character; that [p 398]
is to say if they can be decided without trenching on the merits of the
case. The Court's division of this case into stages by its Order of 22 June
1973 must therefore be accommodated to the spirit of its Rules, so that only
questions may be decided at this stage which possess an exclusively
preliminary character. It was apparent from the contents of the Applicant's
Memorial and from the course of the oral argument, that the Applicant
understood the decision of each question depended on it being of such a
preliminary kind. There has been no indication of any dissent from that
view.
Position of Article 53
Article 53 of the Statute of the Court is in the following terms:
"1. Whenever one of the parties does not appear before the Court, or fails
to defend its case, the other party may call upon the Court to decide in
favour of its claim.
2. The Court must, before doing so, 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."
Action pursuant to the Article may be called for by a party when the other
is in default either of appearance or of defence. When the Court is required
by a party to decide its claim notwithstanding such default of the other,
the Court, before deciding the claim, must satisfy itself both of its own
jurisdiction and of the validity of the claim both in fact and in law.
Without the inclusion of this Article in the Statute of the Court, there
would surely have been power in the Court, satisfied of its own jurisdiction
and of the validity of the applicant State's claim, to give judgment for the
applicant, notwithstanding the default of appearance or of defence by the
respondent party. The Article is confirmatory of such a power and its
inclusion in the Statute was doubtless prompted by the circumstance that the
litigants before the Court are sovereign States, and that the presence of
the Article would indicate consent to proceedings in default.
As expressed, the Article is dealing in my opinion exclusively with the
stage of the proceedings at which the merits of the claim are to be
considered and decided. For this reason, and because of the very nature of
and of the occasion for the indication of interim measures, Article 53, in
my opinion, can have no bearing on that phase of a case. The Court has so
treated the Article when considering the indication of interim measures in
the past, as, for example, in paragraph 15 of its Order indicating interim
measures in the Fisheries Jurisdiction (United Kingdom v. Iceland) case
(I.C.J. Reports 1972, p. 15) and in paragraph 13 of the Order of 22 June,
made in this case (I.C.J. Reports 1973, p. 101). The Court expressed itself
in these cases as to the extent to which it must be satisfied in relation to
its own jurisdiction in a manner quite inconsistent with the view that
Article 53 controlled the stage of the proceedings in which the [p 399]
indication of interim measures was being considered. These expressions of
the Court were not inconsistent in my opinion with the views expressed by
Sir Hersch Lauterpacht at page 118 of the Reports of the Interhandel case
(I.C.J. Reports 1957, p. 105); but the Court has been unwilling to accept
the exacting views of Judges Winiarski and Badawi Pasha, expressed in the
Anglo-Iranian Oil Co. case (I.C.J. Reports 1951, pp. 96-98), views which
were endorsed by Judge Padilla Nervo in the Fisheries Jurisdiction case
(I.C.J. Reports 1972, at p. 21).
Allowing the importance of the fundamental consideration that the Court is a
court of limited jurisdiction founded ultimately on the consent of States,
it is essential to observe that Article 41 of the Statute of the Court gives
it express power to indicate interim measures if it considers that
circumstances so require and that, unlike Article 53, Article 41 does not
hedge round that power expressly or, as I think, impliedly, with any
considerations of jurisdiction or of the merits of the case. Paragraph 2 of
Article 41, in opening with the expression "pending the final decision"
makes it apparent to my mind that Article 53 does not refer to or control
consideration of the indication of interim measures. Consequently, I am
unable, with respect, to agree with those who hold a contrary view. But
although Article 41 does not refer to questions of jurisdiction or the
merits, the Court will consider its jurisdiction to the extent already
expressed before indicating interim measures, and an obvious lack of merit
will no doubt be influential in deciding whether or not to indicate interim
measures.
The Applicant has not yet called upon the Court to decide its claim. Indeed,
the Court's direction of 22 June separating the two questions of
jurisdiction and admissibility from the merits has precluded any such step
on the part of the Applicant. Thus Article 53 has not been called into
operation at this stage of the proceedings. The Court by its Order has
directed consideration of its jurisdiction at this stage. If the examination
by the Court of that jurisdiction results in an affirmance of its
jurisdiction, that conclusion will of course satisfy part of the
requirements of Article 53 when it is called into play. No doubt, having
made its Order of 22 June, the Court, quite apart from the provisions of
Article 53, could go no further in the case unless it was either satisfied
of its jurisdiction and of the admissibility of the Application or concluded
that in the circumstances of the case either of those questions failed to
possess an exclusively preliminary character. In that event, that question
could be decided at the stage of the merits, which Article 53 appears to
contemplate. Neither Article 53 nor any other part of the Statute of the
Court refers to the admissibility of the Application.
Jurisdiction
I turn then to the question of the Court's jurisdiction to hear and
determine the Application. It was duly filed with the Court on 9 May [p 400]
1973. This is the date by reference to which the questions of jurisdiction
and of admissibility must be determined. The concluding paragraphs of the
Application are as follows:
"Accordingly, the Government of Australia asks the Court to adjuge and
declare that, for the above-mentioned reasons or any of them or for any
other reason that the Court deems to be relevant, 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."
It is of importance that I emphasize at the outset that the Application
seeks both a declaration and an Order. The request for the declaration is
itself, in my opinion, clearly a matter of substantive relief and not merely
a recital or reason put forward for the request for the making of the Order.
Indeed, it is conceivable that in appropriate circumstances the declaration
only should be made. The full significance of this fundamental observation
as to the nature of the relief sought will be apparent at a later stage.
The Court duly notified France by telegram of the filing of the
Application, and a copy of the Application itself was duly transmitted to
the French Government in due time.
Article 38 (3) of the Rules of Court requires that when acknowledging
receipt of such a notification from the Court, the party against whom the
Application is made and who is so notified shall, when acknowledging receipt
of the notification, or failing this as soon as possible, inform the Court
of the name of its Agent.
By a letter dated 16 May 1973 France, by its Ambassador to the Netherlands,
acknowledged receipt of the notification of the filing of the Application,
but France did not appoint an Agent. France informed the Court that in its
view, that is to say, in France's view, the Court was manifestly without
jurisdiction to hear and determine the Application, and that France did not
propose to participate in the proceedings before the Court. It has not done
so by any formal act according to the Rules of Court. France requested that
the Application be summarily struck from the Court's General List, which in
June 1973 the Court refused to do, an attitude confirmed by its final
Judgment.
It is fundamental that the Court alone is competent to determine whether or
not it has jurisdiction in any matter. This is provided by Article 36 (6) of
the Statute of the Court. No State can determine that question. In its
Rules, the Court has provided machinery whereby it can hear and consider the
submissions of a State which claims that it has no jurisdiction in a
particular matter (see Art. 67 of the Rules of Court). France has made no
use of this facility. The case has proceeded without [p 401] any objection
to jurisdiction duly made according to the Rules of Court.
Attached to the Ambassador's letter of 16 May 1973 was an annex comprising
some 11 pages of foolscap typescript setting out France's reasons for its
conclusion that the Court was manifestly incompetent to entertain the
Application. This document, which has come to be referred to in the
proceedings as "the French Annex", has occupied an ambiguous position
throughout but has come to be treated somewhat in the light of a submission
in a pleading, which, quite clearly, it is not. As I am but judge ad hoc, I
will not express myself as to the desirability or undesirability of the
reception of such a communication as the French Annex. 1 observe however
that a somewhat similar happening occurred in connection with the Fisheries
Jurisdiction case (I.C.J. Reports 1973, p. 1), but whether or not the Court
allows such "submissions" to be made outside its Rules, as a regular
practice, is a matter with which naturally 1 cannot be concerned.
Of course, a court, in the absence of a party, will of its own motion search
most anxiously for reasons which might legitimately have been put forward by
the absent party in opposition to the Application. Consequently, it could
not be said to be unreasonable for the Court to view the contents of the
French Annex, if and when received, as indicative of some of such reasons.
Those contents and that of the French White Paper on Nuclear Tests,
published but not communicated to the Court during the hearing of the case,
have in fact been fully considered.
I turn now to express my reasons for my conclusion that the General Act of
Geneva of 26 September 1928 was a treaty in force between Australia and
France at the date of the lodging of the Application, so as to found the
jurisdiction of the Court under Article 36(1) to decide a dis-pute between
the Parties as to their respective rights.
The Applicant seeks to found the jurisdiction of the Court on two
alternative bases; it does not attempt to cumulate these bases, as was done
by Belgium in the case of the Electricity Company of Sofia and Bulgaria,
P.C.I.J., Series C, 1938, page 64, with respect to the two bases which it
put forward for the jurisdiction of the Court in that case. The Applicant
does not attempt to make one basis assist or complement the other. It takes
them, as in my opinion they are in the Statute of the Court, as two
independent bases of jurisdiction or as may be more colourfully said, two
independent avenues of approach to the Court. The Applicant's principal
reliance is on the jurisdiction conferred on the Court by Article 36 (1) of
its Statute, fulfilling that Article's specification of a "matter specially
provided for in treaties and conventions in force", by resort to the
combined operation of Article 17 of the General Act, Article 37 of the
Court's Statute, and its dispute with France.[p 402]
The alternative basis of jurisdiction is placed on Article 36 (2) of the
Court's Statute, both France and Australia having declared under that
Article to the compulsory jurisdiction of the Court, though in each case
with reservations and, in particular, in the case of France, with the
reser-vation of 20 May 1966.
As I have reached a firm view as to the existence of the Court's
jurisdiction in this case under Article 36 (1) and as each basis of
jurisdiction is put forward in the alternative, I find it unnecessary to
express my conclusions as to the alternative basis of jurisdiction under
Article 36 (2), which for me on that footing becomes irrelevant. I will need
to deal however with the suggestion that a declaration to the optional
clause in Article 36 (2) is inconsistent with a continuance of the
obligations under the General Act and indeed superseded it. I will also need
to deal with the further alternative suggestion that the reservation of 20
May 1966 by France to its declaration to the compulsory jurisdiction of the
Court, qualifies to the extent of the terms of that reservation, its
obligations, if any existed, under the General Act. I may properly say,
however, that I would not be prepared to accept the whole of the Applicant's
submission as to the meaning and operation of the French reservation of 20
May 1966 to its declaration to the compulsory jurisdiction of the Court.
It is trite that the jurisdiction of the Court depends fundamentally on the
consent of States: but that consent may be given generally by a treaty as
well as ad hoc. Whether it is given by a multilateral treaty or by a
compromissory clause in a bilateral treaty the consent to jurisdiction is
irrevocable and invariable except as provided by the treaty, so long as the
treaty remains in force in accordance with the law of treaties. Consent thus
given endures as provided by the treaty and does not need reaffirmation at
any time in order to be effective. Where a treaty stipulates the manner in
which its obligations are to be terminated or varied they can only be
terminated or varied in accordance with those provisions during the life of
the treaty. Thus the consent given by entry into the treaty is insusceptible
of withdrawal or variation by any unilateral act of either party except in
conformity with the terms of the treaty itself. But there is the possibility
of the due termination of the treaty by any of the circumstances, such as
supervening impossibility of performance, fundamental change of
circumstance, or entry into a later treaty between the same parties, which
are referred to in the Vienna Convention on the Law of Treaties, as well as
by termination by mutual consent or in conformity with the provisions of the
treaties.
The General Act it would seem is properly classified as a multilateral
treaty but by acession bilateral obligations were created. By Article 44 of
the Act it was to come into force on the ninetieth day following the
accession of not less than two States. Until then, to use an expression
[p 403] found in the travaux preparatoires it was "a convention in spe"
(Records of Ninth Ordinary Session of the Assembly, Minutes of First
Committee, p. 70). In fact, conformably to this Article, the Act came into
force on 16 August 1929. It was a great treaty, representing a most
significant step forward in the cause of the pacific settlement of disputes.
It had an initial term of five years, and was automatically renewed each
five years dating from its original entry into force, unless denounced at
least six months before the expiry of the current period of five years (Art.
45 (1)). Denunciation might be partial and consist of a notification of
reservations not previously made (Art. 45 (5)). Denunciation was to be
effected by a written notification to the Secretary-General of the League of
Nations who was to inform all accessionaries to the Act (Art. 45 (3)). The
Act covered conciliation of disputes of every kind which it had not been
possible to settle by diplomacy (Chap. I), the judicial settlement of all
disputes with respect to legal rights (Chap. II), and arbitration in a
dispute not being a dispute as to legal rights (Chap. III). Accession could
be to the whole Act or only to parts thereof, for example to Chapters I and
II along with appropriate portions of the general provisions in Chapter IV
or to Chapter 1 only with the appropriate portions of Chapter IV (Art. 38).
The principle of reciprocity of obligations was introduced by the
concluding words of Article 38.
France and Australia acceded to the whole of the General Act on 21 May 1931.
Each attached conditions to its accession, and to these conditions I shall
need later to make a brief reference. As at the date of the Application
neither France nor Australia had denounced the General Act. France lodged
with the Secretary-General of the United Nations on 10 January 1974 a
notification designed as a denunciation in conformity with Article 45 of the
General Act, but this notification is of no consequence in connection with
the present question. Article 45 (5) of the Act provides that all
proceedings pending at the expiry of the current period of the Act are to be
duly completed notwithstanding denunciation. Further, the Court's general
jurisprudence would not allow its jurisdiction to be terminated by the
denunciation of the Treaty subsequent to the commencement of the proceedings
before the Court (see Nottebohm case (Liechtenstein v. Guatemala), I.C.J.
Reports 1953, p. 110 at p. 122).
Article 17 in Chapter II of the General Act provides:
"All disputes with regard to which the parties are in conflict as to their
respective rights shall, subject to any reservations which may be made under
Article 39, be submitted for decision to the Permanent Court of
International Justice, unless the parties agree, in the manner hereinafter
provided, to have resort to an arbitral tribunal.
It is understood that the disputes referred to above include in particular
those mentioned in Article 36 of the Statute of the Permanent Court of
International Justice." [p 404]
Both France and Australia became Members of the United Nations at its
inception, thus each was bound by the Court's Statute (see Art. 93 of the
Charter). Therefore each was bound by Article 37 of the Statute of the Court
which effectively substituted this Court for the Permanent Court of
International Justice wherever a treaty in force provided for reference of a
matter to the Permanent Court of International Justice. Clearly Article 17
did provide for the reference to the Court of all disputes with regard to
which the parties are in conflict as to their respective rights. Thus the
provisions of Article 17 must be read as between France and Australia as if
they referred to the International Court of Justice and not to the Permanent
Court of International Justice.
Whatever doubts might theretofore have been entertained as to the complete
efficacy of Article 37 to effect such a substitution of this Court for the
Permanent Court of International Justice as between Members of the United
Nations were set at rest by the Judgment of this Court in the Barcelona
Traction, Light and Power Company, Limited case (Belgium v. Spain, I.C.J.
Reports 1964, pp. 39 and 40). So unless the treaty obligations in Chapter
II, which includes Article 17, of the General Act have been terminated or
displaced in accordance with the law of treaties, the consent of France to
the Court's jurisdiction to entertain and resolve a dispute between France
and Australia as to their respective rights, subject to the effect of any
reservations which may have been duly made under Article 39 of the General
Act, would appear to be clear.
I have already mentioned that neither of the Parties had denounced the Act
as of the date of the Application. The argument in the French Annex, to the
contents of which I will need later to refer, is mainly that the General
Act, by reason of matters to which the Annex calls attention, had lost its
validity, but that if it had not, France's consent to the jurisdiction of
the Court, given through Article 17 of the General Act, was withdrawn or
qualified to the extent of the terms of its reservation of 20 May 1966 made
to its declaration to the compulsory jurisdiction of the Court under Article
36 (2) of the Statute of the Court. It is therefore appropriate at this
point to make some reference to the circumstances in which a treaty may be
terminated.
The Vienna Convention on the Law of Treaties may in general be considered to
reflect customary international law in respect of treaties. Thus, although
France has not ratified this Convention, its provisions in Part V as to the
invalidity, termination or suspension of treaties may be resorted to in
considering the question whether the General Act was otherwise terminated
before the commencement of these proceedings.
Taking seriatim those grounds of termination dealt with in Section 3 of Part
V of the Convention which could possibly be relevant, there has been no
consent by France and Australia to the termination of their obligations
vis-�-vis one another under the General Act. I shall later point out in
connection with the suggestion that the General Act lapsed by "desuetude"
that there is no basis whatever in the material before the [p 405] Court on
which it could be held that the General Act had been terminated by mutual
consent of these Parties as at the date of the Application (Art. 54 of the
Convention). No subsequent treaty between France and Australia relating to
the same subject-matter as that of the General Act has been concluded (Art.
59 of the Convention). Neither of these parties acceded to the amended
General Act of 1949 to which I shall be making reference in due course. No
material breach of the General Act by Australia has been invoked as a ground
for terminating the General Act as between France and Australia. It will be
necessary for me at a later stage to deal briefly with a suggestion that a
purported reservation not made in due time by Australia in 1939 terminated
the General Act as between France and Australia (Art. 60 of the Convention).
There has been no supervening impossibility of performance of the General
Act resulting from the permanent disappearance of an object indispensable
for the execution of the Act, nor had any such ground of termination been
invoked by France prior to the lodging of the Application (Art. 61 of the
Convention). The effect of the demise of the League of Nations was not the
disappearance of an object indispensable to the execution of the General
Act, as I shall indicate in a subsequent part of this opinion. There has
been no fundamental change of any circumstances which constituted an
essential basis of the Treaty, and no such change has radically transformed
the obligations under the Act (Art. 62 of the Convention). No obligation of
the General Act is in conflict witn any jus cogens (Art. 64 of the
Convention). Article 65 of the Vienna Convention indicates that if any of
these grounds of termination are to be relied upon, notification is
necessary. In this case there has been no such notification.
On these considerations it would indeed be difficult not to conclude that
the General Act was a treaty in force between France and Australia at the
date of the Application and that the Parties had consented through the
operation of Article 17 of the General Act and Article 37 of the Statute of
the Court to the jurisdiction of this Court to resolve any dispute between
them as to their respective rights.
But the French Annex confidently asserts the unavailability of the General
Act as a source of this Court's jurisdiction to hear and determine the
Application: it is said that the Act lacks present validity. It will
therefore be necessary for me to examine the arguments put forward in the
French Annex for this conclusion.
However, before turning to do so it is proper to point out that no jurist
and no writer on international law has suggested that the General Act ceased
to be in force at any time anterior to the lodging of the Application.
Indeed, many distinguished writers expressed themselves to the contrary.
Professor O'Connell, in a footnote on page 1071 in the second volume of the
second edition of his work on international law, says as to the General Act:
"It is so connected with the machinery of the League of Nations that its
status is unclear." The Professor was alone in making this observation: it
suffices to say that the Professor's cogent [p 406] advocacy on behalf of
the Applicant in the present case seems to indicate that such a note will
not appear in any further edition of his work.
No mention or discussion of the General Act in the Judgments of this Court
has cast any doubt on its continued operation. Indeed, Judge Basdevant in
the Certain Norwegian Loans case (France v. Norway, I.C.J. Reports 1957, at
p. 74), refers to the General Act as a treaty or conven-tion then in force
between France and Norway. He points out that the Act was mentioned in the
observations of the French Government and was explicitly invoked by the
Agent of the French Government during the hearing. The distinguished judge
said: "At no time has any doubt been raised as to the fact that this Act is
binding as between France and Norway." No judge in that case dissented from
that view. Indeed, the Court in its Judgment does not say anything which
would suggest that the Court doubted the continued validity of the General
Act. In its Judgment the Court said:
"The French Government also referred ... to the General Act of Geneva of
September 26th, 1928, to which both France and Norway are parties, as
showing that the two Governments have agreed to submit their disputes to
arbitration or judicial settlement in certain circumstances which it is
unnecessary here to relate." (Emphasis added.)
France, for evident good reason (i.e., the applicability of Article 31 of
the General Act in that case), did not seek to base the Court's jurisdiction
in that case on the General Act, and as it had not done so the Court did not
seek a basis for its jurisdiction in the General Act. The pertinent passage
in the Judgment of the Court occurs at pages 24 and 25 of the Reports, where
it is said:
"The French Government also referred to the Franco-Norwegian Arbitration
Convention of 1904 and to the General Act of Geneva of September 26th, 1928,
to which both France and Norway are parties, as showing that the two
Governments have agreed to submit their disputes to arbitration or judicial
settlement in certain circumstances which it is unnecessary here to relate.
These engagements were referred to in the Observations and Submissions of
the French Government on the Preliminary Objections and subsequently and
more explicitly in the oral presentations of the French Agent. Neither of
these references, however, can be regarded as sufficient to justify the view
that the Application of the French Government was, so far as the question of
jurisdiction is concerned, based upon the Convention or the General Act. If
the French Government had intended to proceed upon that basis it would
expressly have so stated.[p 407]
As already shown, the Application of the French Government is based clearly
and precisely on the Norwegian and French Declarations under Article 36,
paragraph 2, of the Statute. In these circumstances the Court would not be
justified in seeking a basis for its jurisdiction different from that which
the French Government itself set out in its Application and by reference to
which the case has been presented by both Parties to the Court."
In paragraph 3A of the French Annex it is said that the Court in the case of
Certain Norwegian Loans "had to settle" this point, that is to say the
availability at that time of the General Act as between Norway and France.
It is however quite plain from the Court's Judgment in that case that it did
not have to settle the point but that it accepted that the General Act was a
treaty in force at that time between Norway and France. It is not, as the
French Annex suggests, "difficult to believe that the Court would have so
summarily excluded this ground of its competence if it had provided a
manifest basis for taking jurisdiction". The passage which I have quoted
from the Court's Judgment clearly expresses the reason for which the Court
did not seek to place its jurisdiction upon the General Act.
The Act was also treated as being in force in the arbitration proceedings
and in the proceedings in this Court in connection with the Temple of Preah
Vihear case Cambodia v. Thailand (see for example, I.C.J. Reports 1961, at
pp. 19 and 23). The availability of the General Act in that case was
disputed by Thailand and the Court found no occasion to pass upon that
matter.
The General Act is included in numerous official and unofficial treaty lists
as a treaty in force, and is spoken of by a number of governments who are
parties to it as remaining in force. In 1964 the Foreign Minister of France,
explaining in a written reply to a Deputy in the National Assembly why
France did not join the European Treaty for the Pacific Settlement of
Disputes, pointed to the existence of, amongst other instruments, the
General Act to which France was a party, though the Minister mistakenly
referred to it as the revised General Act.
However, these matters are really peripheral in the present case. The
central and compelling circumstance is that neither France nor Australia had
denounced the Treaty in accordance with its provisions at the date of the
Application, nor had any other event occurred which according to the law of
treaties had brought the General Act, as between them to an end.
The various arguments put forward in the French Annex denying the Court's
competence to entertain the Application now need consideration. It is said
that the General Act disappeared with the demise of the League of Nations
because "the Act of Geneva was an integral part of the League of Nations
system in so far as the pacific settlement of international disputes had
necessarily in that system to accompany collective security and [p 408]
disarmament". If by the expression "an integral part of the League of
Nations system" it is intended to convey that the General Act
constitutionally or organically formed part of the Covenant of the League,
or of any of its organs, the statement quite clearly is incorrect. Textually
the General Act is not made to depend upon the Covenant, and the references
to some of the functionaries of the League are not organic in any sense or
respects, but merely provide for the performance of acts of an incidentally
administrative kind. Contemporaneous expressions of those concerned with the
creation of the General Act leave no doubt whatever in my mind that the
General Act was not conceived as, nor intended to be, an integral or any
part of the League's system, whatever might precisely be included in the use
of the word "system" in this connection. See, for example, Records of the
Ninth Ordinary Session of the Assembly, Minutes of the First Committee
(Constitutional and Legal Questions), pages 68-69 (Tenth Meeting) and pages
71 and 74 (Eleventh Meeting). At page 71 the relationship of the Act to the
League, or, as it was expressed, "the constitutional role that that Act was
going to fill under the League of Nations" was discussed. It was pointed out
by a member of the subcommittee responsible for the draft that the Act "had
been regarded as being of use in connection with the general work of the
League, but it had no administrative or constitutional relation with it".
Alteration to this draft was made to ensure that the Act was not "an
internal arrangement within the League". It was said:
"Today the States were not proposing to create an organ of the League: the
League was merely going to give those which desired them facilities for
completing and extending their obligations in regard to arbitration."
If the expression "an integral part" means that the continued existence of
the League was an express condition of the continued validity of the Act,
again it seems to me it would be plainly incorrect. Nothing in the text
suggests such a situation. The use of the expression "ideological
integration" in the Annex seems to suggest that, because the desire to
maintain peace through the Covenant and through collective security,
disarmament and pacific settlement of international disputes was the
ideological mainspring of the creation of the General Act, all the
manifestations of that philosophy, however expressed, must stand or fall
together.
It is true that the General Act was promoted by the League, that its
preparation in point of time was related to endeavours in the fields of
collective security and disarmament. It is true that it was hoped that the
cause of peace would be advanced by continuing action in each of the various
fields. But in my view, quite clearly the General Act was conceived as a
model treaty outside the Covenant of the League, available to non [p 409]
members of the League and, by accession of at least two States,
self-operating.
It is perhaps worth observing at this point that the Statute of the
Permanent Court of International Justice, not an organ of the League, at
that time provided its own system of pacific settlement of legal disputes by
means of the optional compulsory jurisdiction in Article 36 (2) of the
Statute of the Permanent Court. No doubt, like the Covenant itself, the
inception of the General Act owed much to the pervading desire in the period
after the conclusion of World War I to prevent, if at all possible, the
repetition of that event. Though conceived at, or about the same period, and
though ail stemmed from the over-riding desire to secure international
peace, these various means, the activities of the Council of the League,
disarmament, collective security and the pacific settlement of disputes,
were in truth separate paths thought to be leading to the same end, and thus
in that sense complementary; but the General Act was not dependent upon the
existence or continuance of any of the others.
Emphasis is laid in the French Annex on the use of the organs of the League
by some of the Articles of the General Act.
It seems to me that what the Court said in the Barcelona Traction, Light and
Power Company, Limited case (Belgium v. Spain) in relation to the
Hispano-Belgian Treaty of 1927, a treaty comparable to the General Act, is
quite applicable to the relationship of the reference to the functionaries
of the League in the General Act to its validity:
"An obligation of recourse to judicial settlement will, it is true, normally
find its expression in terms of recourse to a particular forum. But it does
not follow that this is the essence of the obligation. It was this fallacy
which underlay the contention advanced during the hearings, that the alleged
lapse of Article 17 (4) was due to the disappearance of the 'object' of that
clause, namely the Permanent Court. But that Court was never the substantive
'object' of the clause. The substantive object was compulsory adjudication,
and the Permanent Court was merely a means for achieving that object. It was
not the primary purpose to specify one tribunal rather than another, but to
create an obligation of compulsory adjudication. Such an obligation
naturally entailed that a forum would be indicated; but this was
consequential.
If the obligation exists independently of the particular forum (a fact
implicitly recognized in the course of the proceedings, inasmuch as the
alleged extinction was related to Article 17 (4) rather than to Articles 2
or 17 (1)), then if it subsequently happens that the forum goes out of
existence, and no provision is made by the parties, or otherwise, for
remedying the deficiency, it will follow that the clause containing the
obligation will for the time being become (and per-[p 410]haps remain
indefinitely) inoperative, i.e., without possibility of effective
application. But if the obligation remains substantively in existence,
though not functionally capable of being implemented, it can always be
rendered operative once more, if for instance the parties agree on another
tribunal, or if another is supplied by the automatic operation of some other
instrument by which both parties are bound. The Statute is such an
instrument, and its Article 37 has precisely that effect." (I.C.J. Reports
1964, p. 38.)
I make this quotation at length at this time because we are here concerned
with the question as to the continued operation of Chapter II of the General
Act. In that chapter the only reference to the League or to any of its
functionaries is the reference to the Permanent Court of International
Justice, itself not an organ of the League. But there are references in
other chapters of the General Act to functionaries of the League. These, in
my opinion, are merely in respect of incidentally administrative functions
and not in any sense basic to the validity of the General Act itself. In
Chapter I of the General Act the only references to the League or its
functionaries are to be found in Articles 6 and 9. Reference to the Acting
President of the League in Article 6 is in the alternative. Paragraph 2 of
that Article provides further means of appointment of commissions. The place
of meeting of commissions was in the hands of the parties, it not being
obligatory or indispensable to sit at the seat of the League. Thus Articles
6 and 9 did not render Chapter I inoperative with the demise of the League.
It should also be observed that though accession had been to Chapters I and
II, Article 20 removed disputes as to legal rights from the operation of
Chapter I.
So far as Chapter IV is concerned, the reference to the Permanent Court of
International Justice in Articles 31, 33, 34 (b), 37 and 41 would be taken
up as between France and Australia by means of Article 37 of the Statute of
the Court; as far as the Registrar of the Permanent Court is concerned, by
United Nations resolution 24 (1) of 12 February 1946 and the resolution of
the League of Nations of 18 April 1946. Articles 43 and 44 of the General
Act have been fulfilled and denunciation under Article 45 could always be
effected by a direct communication between parties or by the use of the
Secretary-General of the United Nations relying on the resolutions to which
I have just referred, as France and the United Kingdom found no difficulty
in doing in their communications to the Secretary-General in this year.
It can, however, properly be said that for lack of the personnel of the
League, Chapter III of the General Act, relating to arbitration, may not
have been capable of being fully operated after the demise of the League.[p
411]
But this inability to operate a part of the General Act did not render even
that part, in my opinion, invalid.
The General Act itself indicates that specific parts or a combination of its
parts of the Act were intended to be severable, and to be capable of
validity and operation independently of other parts, or combinations of
parts. States acceding to the General Act were not required to accede to the
Act was a whole but might accede only to parts thereof (see Art. 38).
I can find no warrant whatever for the view that in acceding to the General
Act the States doing so conditioned their accession on the continued
existence of the League, or of any of its organs or functionaries, however
much for convenience in carrying out their major agreement as to pacific
settlement of disputes it may have been found convenient to utilize the
functionaries or organs of the League for incidental purposes.
In the language of the Court in the Barcelona Traction, Light and Power
Company, Limited case (I.C.J. Reports 1964, p. 38), "the end" sought by the
Parties so far as Chapter II of the General Act was concerned was
"obligatory judicial settlement"�all else was but means of effecting that
major purpose.
Chapter II thus is in no way dependent on the continued availability of the
Permanent Court of International Justice or of the Secretary or any other
functionary of the League. As between Members of the United Nations, the
resolutions of the United Nations and the League of Na-tions, to which I
have previously referred, render the Secretary-General of the United Nations
available.
I now turn to the suggestion that in some way the resolution of the General
Assembly of 28 April 1949, 268A (III), instructing the Secretary-General to
prepare a revised text of the General Act, including the amendments
indicated in the resolution, and to hold that text open to accession by
States under the title "Revised General Act for the Pacific Settlement of
International Disputes", acknowledged the disappearance of the General Act
as at that date or caused that Act at that time to cease to be valid.
It is important, 1 think, to indicate what effect in truth the
disappearance of the League had on the General Act. In the first place, the
General Act then became a closed treaty in the sense that it had been open
for accession only by Members of the League and by such non-member States to
whom the Council of the League had communicated a copy of the Act. Accepting
the view that a State which had been a Member of the League would have been
able to accede to the General Act after the demise of the League,
nonetheless the General Act could properly then be called a closed treaty.
There were many States who were either then, or could likely become, Members
of the United Nations which could not qualify for accession to the General
Act. In this way it lacked that possible universality, though not
exclusivity, which had been one of its merits at the time of its creation.
Also, some of the 20-odd States who [p 412] were parties to the General Act
were not members of the United Nations and thus did not have the benefit of
Article 37 of the Court's Statute. Further, as I have already pointed out,
Chapter III (Arbitration) was not capable of being fully operated for want
of the functionaries of the League. Bearing in mind the severability of the
parts of the General Act to which 1 have already referred, the precise terms
of Chapters I, II and IV of the General Act and the effect of Article 37 of
the Court's Statute, as its operative extent was fully disclosed by the
decision of the Court in the Barcelona Traction, Light and Power Company,
Limited case (supra), the demise of the League thus left the provisions for
the judicial settlement of legal disputes fully operative between those who
had acceded to the General Act and who were Members of the United Nations,
but settlement of disputes by arbitration under its terms may not have been
any longer available to those States.
This state of affairs is adequately and properly described in the recitals
to the General Assembly's resolution of 28 April 1949:
"The efficacy of the General Act of 26 September 1928 for the Pacific
Settlement of International Disputes is impaired by the fact that the organs
of the League of Nations and the Permanent Court of International Justice to
which it refers have now disappeared."
This recital treats the settlement by conciliation, legal process and
arbitration in the one description without differentiation. The choice of
the word "efficacy" which is in contrast to "validity" and of the word
"impaired" is accurate in the description of the effect of the demise of
the League of Nations on the General Act. The language of this recital is
closely akin to the language of this Court in the passage from the
Barcelona Traction, Light and Power Company, Limited case (supra) which I
have quoted earlier in this opinion.
It was to enable the substantive provisions of the General Act to be
operated to their full efficacy that the Revised General Act was proposed.
The General Assembly could not have destroyed the General Act: it had no
authority so to do. That was a matter exclusively for the parties to the
treaty. In any case the General Assembly was hardly likely to do so, there
being more than 20 parties to the General Act and no certainty as to the
extent of the accession to a new treaty. The problem before the Assembly, I
think, was twofold. First of all, it wanted to have a General Act in the
substantive terms of the 1928 Act, all the parts of which would be capable
of being fully operated. Secondly, it wanted to enable an enlargement of
accession to it. It desired to restore its possible universality whilst not
making it an exclusive means of the settlement of disputes (see Art. 29).
The enlargement of the area of accession to a multilateral treaty has given
difficulty; and it has only been found possible to do so otherwise than by
acts of parties in the case of a narrow group of treaties of a non-political
kind. But by producing a new treaty, with its own accession clause, the
Assembly was able to open a General Act to all [p 413] Members of the United
Nations or to such other States not members of the United Nations to whom a
copy of the General Act should be communicated. Also those who had acceded
to the General Act were enabled, if they so desired, to widen their
obligations by acceding to the Revised Act and to obtain access to a fully
operable provision as to arbitration. On the other hand, they could be
content with the reduced efficacy (which relates only to Part III) but
continuing validity of the Act of 1928.
The Revised Act was a new and independent treaty, though for drafting
purposes it referentially incorporated the provisions of the Act of 1928
with the stated amendments. These amendments included an express provision
for the substitution of the International Court of Justice for the Permanent
Court of International Justice. This is indicative of the fact that there
may have been some doubt in the minds of some at the time as to the full
efficacy of Article 37 of the Court's Statute, and that the Assembly was
conscious that all the signatories to the General Act were not members of
the United Nations, having the benefit of Article 37.
In my view, the resolution of the General Assembly of 28 April 1949 affirms
the validity of the General Act of 1928 and casts no doubt upon it, though
it recognizes that portion of it may not be fully operable. It recognized
that the General Act of 1928 remained available to the parties to it in so
far as it might still be operative. These words, of course, when applied to
an analysis of the General Act of 1928, clearly covered Chapter II as being
an area in respect of which the General Act remained fully operative, in the
case of Members of the United Nations, having regard to Article 37 of the
Court's Statute and the resolutions of the League of Nations and the United
Nations in 1946.
The question was raised as to why so few of those who had acceded to the
General Act acceded to the Revised General Act. This consideration does not,
of course, bear on the validity of the General Act: but as a matter of
interest it may well be pursued. Two factors seem to me ade-quately to
explain the circumstances without in any way casting doubt on the validity
of the General Act. As I have pointed out, the General Act of 1928, after
the demise of the League, became a closed treaty, that is to say, each State
which had acceded to the Act then knew with certainty towards whom it was
bound. The remote possibility that a former Member of the League might still
accede to the General Act does not really qualify that statement. To accede
to the Revised General Act opened up the possibility of obligations to a
vastly increased and increasing number of States under the new General Act.
This feature of a treaty such as the General Act was observed before in the
travaux preparatoires (see p. 67 of the Minutes to which I have already
referred).[p 414]
The second factor was that each State party to the General Act and not
acceding to the new Act was to an extent freed of the demands of the
arbitration procedure. It is one thing to be bound to litigate legal
disputes before the Court: quite another to be bound to arbitrate other
disputes on the relatively loose basis of arbitration under the General Act,
aequo et bono.
The mood of the international community in 1949 was vastly different to the
mood of the community in the immediately post-World War I period in relation
to the pacific settlement of disputes. More hope was probably seen in the
United Nations itself and the existence of the op-tional clause with its
very flexible provisions as to reservations. The latter was no doubt seen by
some as preferable to the more rigid formulae of a treaty such as the
General Act.
I therefore conclude that so far from casting doubt on the continued
validity of the General Act of 1928, the resolution of the General Assembly
of 28 April 1949 confirmed the continuing validity of the General Act. The
resolution did not, as the French Annex asserts, "allow for the eventuality
of the Act's operating if the parties agreed to make use of it". It did not
call for a reaffirmation of the treaty. The resolution makes it quite clear,
to my mind, that it made no impact on the General Act of 1928, but by
providing a new treaty it did afford a widened opportunity to a wider group
of States to become bound by the same substantive obligations as formed the
core of the General Act of 1928.
Some point is made in the Annex of the Australian reservations to its
accession to the General Act. Of the reservations made by Australia upon its
accession to the General Act the French Annex selects first that
reservation which relates to the "non-application or suspension" of Chapter
II of the General Act with respect to any dispute which has been submitted
to, or is under consideration by, the Council of the League of Nations. It
is said that with the disappearance of the League this reservation
introduces such uncertainty into the extent of Australia's obligations
under the Act as to give an advantage to Australia not enjoyed by other
accession-aries to the Act. But in the first place it seems to me that the
disappearance of the possibility that there should be a matter under the
consideration of the Council of the League could have no effect, either
upon validity of the Australian accession or upon the extent of the
obligations of any other accessionary. The operation of the reservation is
reciprocal and the disappearance of the Council of the League simply meant
that there could be no case for resort to this reservation. The making of
the reservation rather emphasized the independence of the General Act from
the activities of the League. Only such a reservation would involve the one
in the other: and then only to the extent of the subject-matter of the
reservation.
The other reservation made by Australia upon which the French Annex fastens
is the exclusion of disputants, parties to the General Act, [p 415] who are
not members of the League of Nations. This is said to have acquired quite an
ambiguous value because no country can be said now to be a Member of the
League of Nations, but it is clear from the decision of this Court in the
South West Africa cases (Preliminary Objections, Judgment, I.C.J. Reports
1962) that the description "Member of the League of Nations" is adequate to
describe a State which has been a Member of the League. Again the very
making of these reservations by some accessionaries to the General Act
emphasizes its independence of the League of Nations and of its "system".
There can be no uncertainty in the matter because the Court exists and by
its decision can remove any dubiety which might possibly exist, although I
see none.
I find no substance in the suggestion that "unacceptable advantages" would
result for Australia from a continuance in force of the General Act, and in
any case would not be willing to agree that any such result would affect the
validity of the General Act.
It is then said that Australia had patently violated the General Act by
attempting in 1939 to modify its reservations otherwise than in accordance
with Article 45. This objection is based on the fact that on 7 September
1939 Australia notified the Secretary-General of the League of Nations that
"it will not regard its accession to the General Act as covering or relating
to any dispute arising out of events occurring during the present crisis.
Please inform all States Parties to the Act". This notification could not
be immediately operative because it was made at an inappropriate time; the
current period of the duration of the General Act expired in August 1940.
Thus the Australian notification would not operate instanter. It had effect
if at all only at the end of the five-year period next occurring after the
date of the notification. What was thought to be the irregularity of giving
this notification at the time it was given was observed upon by some States
party to the General Act, but none, including France, made it the occasion
to attempt to terminate the Act. However, nothing turns on the circumstance
that there was no immediate operation of the notification and I cannot find
any relevance to the problem with which the Court is now faced of the fact
that Australia took the course it did in 1939.
It is next said that the conduct of the two States since the demise of the
League is indicative of the lapse of the General Act. Neither have resorted
to it. In the first place it is not shown that any occasion arose, as
between France and Australia, for resort to the provisions of the General
Act until the present dispute arose. Thus it is not the case of States
having reason to resort to the provisions of the treaty and bypassing or
ignoring its provisions by mutual consent or in circumstances from which a
termination by mutual consent could be inferred. A treaty such as the
General Act does not require affirmation or use to maintain its validity. It
is denunciation which is the operative factor. Also it is not true to say
that there has been utter silence on the part of States accessionary to the
General Act, in the period since the demise of the League. I have already
remarked for instance on the references to the Act by the representative of
[p 416] France. Nor upon the material produced could it be said that France
and Australia at any time, by inactivity, tacitly agreed to terminate the
General Act as between themselves.
I turn now to a different matter put forward in the Annex. The French Annex
suggests either that the reservation of 20 May 1966 to the declaration by
France to the optional compulsory clause (Art. 36 (2)) operated as itself a
reservation under the General Act or that though not such a reservation it
superseded and nullified France's obligations under the General Act. These
seem to be propositions alternative to the major statement in the Annex
which was that the General Act because of non-use and, as it was said,
desuetude was precluded from being allowed to prevail over the expression of
France's will in the reservation of 20 May 1966.
I need not say more as to the argument as to desuetude than that there is in
my opinion no principle that a treaty may become invalid by "desuetude"
though it may be that the conduct of the parties in relation to a treaty,
including their inactivity in circumstances where one would expect activity,
may serve to found the conclusion that by the common consent of the parties
the treaty has been brought to an end. But as I have said there is nothing
whatever in the information before the Court in this case which in my
opinion could found a conclusion that France and Australia mutually agreed
tacitly to abandon the treaty. The French Annex concedes that lapse of time
will not itself terminate a treaty, for the Annex says: "the antiquity of a
text was clearly not regarded in itself as an obstacle to its (i.e., the
treaty) being relied on . . ." Also I have indicated the extent to which the
treaty had in fact been called in aid by other parties including France and
to the fact that there is no evidence of an occasion when the treaty could
have been used between France and Australia and was not used.
I would now say something as to the effect claimed by France for the
reservation of 20 May 1966. At the outset, it is to my mind clear that the
system of optional declaration to the compulsory jurisdiction of the
Permanent Court of International Justice, and latterly to the jurisdiction
of this Court, was, and was always conceived to be, a completely
independent system or avenue of approach to the Court for the settlement of
legal disputes to that which may be provided by treaty�bilateral or
multilateral. The jurisdiction under Article 36 (1), which included treaty
obligations to accept the Court's jurisdiction, and that under Article 36
(2) are separate and independent. The General Act was in fact promoted by
the League of Nations at a time when Article 36 (2) of the Statute of the
Permanent Court was in operation. Thus the system of optional declaration to
the compulsory jurisdiction is regarded as quite separate from, and
independent of, the provisions of the General Act of 1928.
There are notable differences between the two methods of securing pacific
settlement of legal disputes: and it must always be remembered [p 417] that
the General Act was not confined to the settlement of legal disputes by the
Court. The General Act had a term or rather, recurrent terms, of years. In
default of denunciation the treaty renewed automatically: it was tacitly
renewed. Reservations might only be made on accession. If further
reservations are subsequently notified, they may be treated as a
denunciation or may be accepted by other States parties to the Act. Thus
they become consensually based. Permissible reservations are exhaustively
categorized and closely circumscribed in content. Reservations might be
abandoned in whole or in part. The scope of the reservations, if in dispute,
is to be determined by the Court (see Arts. 39, 40 and 41 of the General
Act).
In high contrast a declaration to Article 36 (2) of the Statute of the Court
(the text and the enumeration of the Article was the same in the Statute of
the Permanent Court of International Justice) need not be made for any term
of years. No limitation is placed by the Statute on the nature and extent of
the reservations which can be made, though the jurisprudence of the Court
would seem to require them to be objective and not subjective in content.
Reservations might be made at any time and be operative immediately even
before their notification to States which had declared to the jurisdiction
under the Article (cf. Right of Passage over Indian Territory, Preliminary
Objections, Judgment, I.C.J. Reports 1957, p. 125). Further, though by
declaration to the compulsory jurisdiction under the Article, States might
be brought into contractual relationships with each other, such declarations
do not create a treaty. Each declarant State becomes bound to accept the
jurisdiction of the Court if invoked by another declarant State in a matter
within the scope of Article 36 (2) and not excluded by reservation.
The jurisdiction under Article 36 (2) could only be invoked by a Member of
the United Nations, whereas the General Act had been open to States which
were not members of the League of Nations.
In the light of these notable differences between the two methods of
providing for judicial settlement of international legal disputes, I can see
many objections to the proposition that a declaration with reservations to
the optional clause could vary the treaty obligations of States which were
parties to the General Act. Bearing in mind the readiness with which
reservations to the declaration to the compulsory jurisdiction of the Court
under Article 36 (2) could be added, terminated or varied, acceptance of
the proposition that such a reservation could vary or bring to an end the
obligations in a treaty would mean that there would be little value as
between Members of the United Nations in a treaty which could be varied or
terminated at the will of one of the parties by the simple device of adding
a destructive reservation operating instanter to its declaration to the
compulsory jurisdiction of the Court. This would be a [p 418] cataclysmic
inroad on the accepted view of the law of treaties which does not permit a
unilateral termination or variation of a treaty except in accordance with
its terms. Termination by occurrences which affect the mutual consent of the
parties to the treaty, which include those on which a treaty is conceived by
the mutual will of the parties to have been intended to come to an end,
emphasizes the essentially consensual basis of termination or variation.
Also, when the differences in the provisions of Article 36 and those of the
General Act relating to the making of reservations are closely observed, it
will be seen that, whilst given the same description "reservation", those
for which the General Act provides appear to be of a different order to
those which are permissible under the Article. The purpose of providing for
reservations, it seems to me, is different in each case.
Reservations for which a treaty provides are essentially based on consent
either because within the treaty provisions as permissible reservations, as
for example, in Article 39 of the General Act or because they are accepted
by the other party to the treaty�see generally Part 2, section 2, of the
Vienna Convention on the Law of Treaties. In the case of the General Act,
the reservation falling within one of the classifications of Article 39, not
made on accession, sought to be added by way of partial denunciation under
Article 45 (4), can only be effective with respect to any accessionary to
the General Act, if accepted by that State. It cannot in any case operate
until at least six months from its notification (see Art. 45 (2)).
Again, in high contrast, a reservation to a declaration under the optional
clause, is a unilateral act, can be made at any time, operate in-stanter,
even before notification to other declarants to the optional clause and is
not limited by the Statute as to its subject-matter, for the reason no doubt
that the whole process under the article is voluntary. The State may abstain
altogether or accept the jurisdiction to any extent and for any time. This
"flexibility" of the system of optional compulsory jurisdiction may in due
course increasingly bring that system into disfavour as compared with a more
certain and secure regime of a treaty. But be that as it may, the brief
comparison I have made, which is not intended to be exhaustive, emphasizes
the irrelevance to the treaty of reservations made to a declaration under
the optional clause.
I should also point out that the reservation of 20 May 1966 did not in any
way conform to the requirements of the General Act. It is worth observing
that Article 17 of the General Act requires submission to the Court of all
disputes subject to any reservation which may be made under Article 39. The
reservation of 20 May 1966 was not made under that Article: it was not made
at a time when reservations could be made. It purported to operate
immediately. It was not intended to be notified [p 419] to members bound by
the General Act. I doubt whether it is a reservation of a kind within any of
the categories listed in Article 39 (2) of the General Act. It clearly could
not fall within paragraphs (a) or (b) of that subclause, and it does not
seem to me that it could fall within paragraph (c). Because of the complete
independence of the two means of providing for the resolution of
international legal disputes, I can see no reason whatever on which a
reservation to a declaration to the optional compulsory jurisdiction under
Article 36 (2) could be held to operate to vary the treaty obligations of
such a treaty as the General Act.
Apparently realizing the unacceptable consequences of the proposition that
the obligations of a treaty might be supplanted by a reservation to a
declaration to the optional clause, the French Annex seeks to limit its
proposition to the General Act which, it claims, is:
". . . not a convention containing a clause conferring jurisdiction on the
Court in respect of disputes concerning the application of its provisions,
but a text the exclusive object of which is the peaceful settlement of
disputes, and in particular judicial settlement".
This statement seems to have overlooked the provisions of Article 41 of the
General Act and, in any case, I am unable to see any basis upon which the
position as to the effect of a reservation to a declaration to the optional
clause can be limited as proposed.
It is also said that the declaration to compulsory jurisdiction under
Article 36 (2) was an act in the nature of an agreement relating to the same
matter as that of the General Act. As I have already pointed out, a
declaration to compulsory jurisdiction is not an agreement though it can
raise a consensual bond. In any case, the subject-matter of the General Act
and that of declaration to the optional clause, are not identical.
There is a suggestion in the French Annex that because States bound by the
General Act who have also declared to the optional compulsory jurisdiction
of the Court from time to time have kept the text of their respective
reservations under the Act and under the optional clause conformable to each
other, a departure from this "parallelism" either indicates a disuse of the
General Act or requires the absence of a comparable reservation to the
General Act to be notionally supplied. But the suggested parallelism did not
exist in fact, as the Australian Memorial clearly indicates (see paras.
259-277). Further, there can be no validity in the proposition that because
France did not make a partial denunciation of the General Act in the terms
of its reservation to its declaration under the optional clause, it should,
by reason of former parallelism, be taken to have done so.
In sum, I am unable to accept the proposition that the reservation in the
declaration of 20 May 1966 by France had any effect on the obligation of
France under the General Act of 1928. Its consent to the Court's [p 420]
jurisdiction by accession to the General Act was untouched by the later
expression of its will in relation to the optional clause. The reservation
by France under Article 36 (2) is no more relevant to the jurisdiction of
the Court under Article 36 (1) than was such a reservation in the Appeal
Relating to the Jurisdiction of the ICAO Council, India v. Pakistan (I.C.J.
Reports 1972, p. 46). There an attempt to qualify the jurisdiction derived
from a treaty, by the terms of a reservation to a declaration under the
optional clause, was made. The attempt failed. The Court founded its
jurisdiction exclusively on the treaty provision and regarded the
reservation to the declaration of the optional clause as irrelevant. See
the Judgment of the Court, pages 53 and 60 of the Reports.
There may well have been an explanation why there was no attempt either on
the part of France or earlier on the part of the United Kingdom to denounce
the General Act when contemplating nuclear testing in the atmosphere of the
South Pacific, whilst at the same time making what was considered an
appropriate reservation to the declaration to the optional clause. 1
remarked earlier that the General Act had become a closed treaty. The
identity of those to whom France and the United Kingdom were thereby bound
was known. No doubt as of 1966 the then attitudes of those States to nuclear
testing in the atmosphere of the South Pacific were known or at least
thought to be known. On the other hand, there were States declarant to the
optional clause from whom opposition to nuclear testing in the atmosphere at
all, and particularly in the Pacific, might well have been expected. However
there is not really any need for any speculation as to why denunciation was
not attempted by France in 1966. It suffices from the point of view of
international law that it did not do so.
Article 36 (1) of the Court's Statute erects the jurisdiction of the Court
in respect of all matters specially provided for in treaties and conventions
in force. I have so far reached the conclusion that the General Act of 1928
was a treaty or convention in force between France and Australia as at the
date of the Application. 1 have already quoted Article 17 of the General
Act, in Chapter II, dealing with judicial settlement. The second paragraph
of the Article incorporates the text of Article 36 (2) of the Statute of the
Permanent Court of International Justice in so far as it deals with the
subject-matters of jurisdiction. Thus all "legal disputes concerning: (a)
the interpretation of a treaty; (b) any question of international law; (c)
the existence of any fact which, if established, would constitute a breach
of international obligation; ..." are included in the scope of Article 17.
The question, then, in respect of Article 36 (1) is: what are the matters
specially provided for in the General Act which are referred to the Court?
They are, in my view, so far as presently relevant, each dispute with regard
to which the parties are in conflict as to their respective rights, and [p
421] legal disputes concerning any question of international law or the
existence of any fact, which, if established, would constitute a breach of
an international obligation, subject, in any event, to, and, as I think,
only to, any reservations which may have been made under Article 39 of the
General Act.
It seems to me that there are two possible views as to the elements of the
Court's jurisdiction derived under Article 36 (1) of the Court's Statute and
drawn through the General Act, Article 17 and Article 37 of the Court's
Statute.
On the one hand, it may be said that the jurisdiction is complete if the
General Act is a treaty or convention in force between France and Australia
at the date of the Application. The subject-matter of the Court's
jurisdiction so established would then be described as matters referred to
the Court by the General Act of 1928, that is to say, disputes between
States bound by the Act as to their respective legal rights, etc. Such
disputes are in that view treated as the general kind of matters which the
Court has authority to resolve by its judicial processes because of the
continued existence of the General Act. On that view, the question whether
the dispute in fact existing now between France and Australia at the date of
the Application is of that kind, becomes a matter of admissibility.
On the other hand, the view may be taken that the necessary elements of the
Court's jurisdiction are not satisfied merely by the establishment of the
General Act as a treaty or convention in force between France and Australia,
but require the establishment of the existence of a dispute between them as
to their respective rights, etc.: that is to say the matter referred by the
General Act is not a genus of dispute but specific disputes as to the rights
of two States vis-�-vis one another. The States in that view are taken as
consenting to the jurisdiction to hear those particular disputes. To use
the language used in the case of Ambatielos (Merits), Greece v. United
Kingdom (I.C.J. Reports 1953, p. 29), the dispute must fall under "the
category of differences" in respect of which there is consent to the Court's
jurisdiction. On this analysis, no separate question of ad-missibility
arises; it is all one question of jurisdiction, the existence in fact and in
law of the dispute between the two States as to their respective rights
being a sine qua non of jurisdiction in the Court. It is that dispute which
the Court has jurisdiction to decide.
This is the view of the matter which I prefer. But the Court's Order of 22
June 1973 was made, apparently, on the assumption that a distinct question
of admissibility arose, or at any rate could be said to arise. Accordingly,
notwithstanding the opinion 1 have just expressed, I am prepared for the
purposes of this opinion to treat the question whether the dispute between
France and Australia is a dispute as to their respective rights as a
question of admissibility. However, I would emphasize [p 422] that, whether
regarded as a necessary element of the Court's jurisdiction or as a matter
of admissibility, the question, to my mind, is the same, and the substantial
consequence of an answer to it will be the same whichever view is taken as
between the two views I have suggested of the necessary elements of the
Court's jurisdiction. That question is whether the Parties are in dispute as
to their respective rights, the word "right" connoting legal right.
There is therefore, in my opinion, jurisdiction to hear and determine a
dispute between parties bound by the General Act as to their legal rights.
As indicated I shall deal with the question of admissibility as if it were a
separate question.
Admissibility
A distinction has been drawn in the jurisprudence of the Court between its
jurisdiction in a matter and the admissibility of the reference or
application made to it. The Rules of Court maintain the separateness of the
two concepts (see Art. 67) but the Statute of the Court makes no reference
to admissibility. In particular the default provision, Article 53, does not
do so. This might be significant in a case such as the present where there
has been no preliminary objection to admissibility setting out the grounds
upon which it is said the Application is not admissible. The result of a
strict application of Article 53 in such a case, if there has been no
special Order such as the Court's Order of 22 June 1973, may be that any
question of admissibility where the respondent does not appear is caught up
in the consideration either of jurisdiction or of the merits of the
Application. However, the Court being in control of its own procedure can,
as it has done in this case, direct argument on admissibility as a separate
consideration, but no doubt only to the extent to which that question can
properly be said in the circumstances to be of an exclusively preliminary
character.
It may be said that the jurisdiction of the Court relates to the capacity of
the Court to hear and determine matters of a particular nature, e.g., those
listed in Article 36 (2) of the Statute of the Court, whereas admissibility
relates to the competence, receivability, of the reference or appli-cation
itself which is made to the Court.
It might be said that jurisdiction in the present case includes the right of
the Court to enter upon the enquiry whether or not a dispute of the relevant
kind exists and a jurisdiction, if the dispute exists, to grant the
Applicant's claim for its resolution by declaration and Order. If such a
dispute exists, the claim is admissible.
An examination as to admissibility is itself an exercise of jurisdiction
even though a finding as to admissibility may be a foundation for the
exercise of further jurisdiction in resolving the claim. The overlapping [p
423] nature of the two concepts of jurisdiction and admissibility is
apparent, particularly where, as here, the existence of a relevant dispute
may be seen as a prerequisite to the right to adjudicate derived from
Article 17 of the General Act.
I observed earlier that there is no universally applicable definition of the
requirements of admissibility. The claim may be incompetent, that is to say
inadmissible, because its subject-matter does not fall within the
description of matters which the Court is competent to hear and decide; or
because the relief which the reference or application seeks is not within
the Court's power to consider or to give; or because the applicant is not an
appropriate State to make the reference or application, as it is said that
the applicant lacks standing in the matter; or the applicant may lack any
legal interest in the subject-matter of the application or it may have
applied too soon or otherwise at the wrong time, or, lastly, all
preconditions to the making or granting of such a reference or application
may not have been performed, e.g., local remedies may not have been
exhausted. Indeed it is possible that there may arise other circumstances in
which the reference or application may be inadmissible or not receivable.
Thus admissibility has various manifestations.
Of course all these elements of the competence of the reference or
application will not necessarily be relevant in every case. Which form of
admissibility arises in any given case may depend a great deal on the source
of the relevant jurisdiction of the Court on which reliance is placed and on
the terms in which its jurisdiction is expressed. This, in my opinion, is
the situation in this case.
Is There a Dispute Between the Parties as to Their Respective Rights?
The Court labours under the disability that it has no formal objection to
admissibility, particularizing the respect in which it is said that the
Application in inadmissible. The Annex to the Ambassador's letter of 16 May
1973 in challenging the existence of jurisdiction in the Court under Article
36 (1) of the Statute, bases its objection on the lapse or qualification of
the General Act and not on the absence of a dispute falling within Article
17 of the General Act. Further, there was no express reference to the
admissibility of the Application.
It is, however, possible to construct out of the White Book an argument
that the Application was "without object" in the sense that there were no
legal norms by resort to which the dispute in fact existing between the
Parties could be resolved, which is to say, though it is not expressly said,
that there was no dispute between the Parties as to their respective rights
(see the terms of Art. 17 of the General Act). This, it seems to me, was
suggested in the White Book in relation to the claim that the testing of
nuclear weapons had become unlawful by the customary international law. It
was not, and in my opinion could not be, said that there were no legal norms
by reference to which the claim for the infringement of ter-[p 424]ritorial
and decisional sovereignty could be determined�though important and
difficult legal considerations arise in that connection, as was observed
upon in the French Annex by its reference to a threshold of radio-active
intrusion which should not be exceeded. In relation to the claim for breach
of the freedom of the high seas and superincumbent air space, the French
White Paper refers to international practice as justifying what was proposed
to be done in relation to the area surrounding its atmospheric testing: but
this contention is not related to admissibility.
An element of admissibility is the possession by the applicant State of a
legal interest in the subject-matter of its Application. As it is, in my
opinion, the existence of a dispute as to the respective legal rights of the
Parties which must be the subject-matter of the Application in this case to
satisfy Article 17, I think that upon the establishment of such a dispute
each of the disputants to such a dispute must be held to have a legal
interest in the resolution of the dispute. For my part, the matter of
admissibility would end at the point at which it was decided that there was
a dispute between France and Australia as to their respective legal rights,
that is to say, that a dispute existed as to the right claimed by Australia
as its right or of an obligation of France towards Australia which Australia
claimed to be infringed. There is importance in the presence of the word
their in the formula; it is to be a dispute as to their respective rights.
That possessive pronoun embraces in my opinion the need for a legal interest
in the subject-matter.
Thus, in my opinion, the question to be resolved at this stage of the case
is whether the Parties were, at the date of the Application, in dispute as
to their respective rights.
That these Parties are in dispute is in my opinion beyond question. It is
clear that there were political or merely diplomatic approaches by the
Applicant for a time; and there are political aspects of the subject-matter
of the correspondence which evidences their dispute. But so to conclude does
not deny that the Parties may be in dispute nonetheless about their
respective rights. That question will be determined by what in substance
they are in difference about.
The source material upon which these questions are to be resolved is the
correspondence between France and Australia set out at Annexes 2 to 14
inclusive of the Application instituting the present proceedings, as
explained and amplified in the submissions to the Court. The contents of and
the omissions from the French Annex, which raises arguments of law in
opposition to the legal propositions in the Australian Notes, ought also to
be considered in this connection. Nowhere is it suggested in the Annex that
the dispute between France and Australia is no more than a political
difference, a clash of interest incapable of resolution by judicial process,
perhaps a not unimportant circumstance.
I have found it important in reading the Notes exchanged between [p 425]
France and Australia to differentiate the conciliatory language designed to
secure, if possible French abandonment of the proposal, and the language
employed when claims of right are made. The dispute between the Governments
up to the stage of the change of language might possibly be characterized as
chiefly political, the desired end being sought to be attained by diplomacy
alone, but the language does not certainly remain so. The changed tone of
the Australian Note is visible in the Note of 3 January 1973, where it is
said:
"The Australian Government, which has hitherto adopted a position of
considerable restraint in this matter, wishes to make quite clear its
position with respect to proposed atmospheric nuclear tests to be conducted
in the Pacific by the French Government. In the opinion of the Australian
Government, the conducting of such tests would not only be undesirable but
would be unlawful�particularly in so far as it involves modification of the
physical conditions of and over Australian territory; pollution of the
atmosphere and of the resources of the seas; interference with freedom of
navigation both on the high seas and in the airspace above; and infraction
of legal norms concerning atmospheric testing of nuclear weapons."
Having followed this statement with a request that the French Government
refrain from further testing, the Australian Note proceeds:
"The Australian Government is bound to say, however, that in the absence of
full assurances on this matter, which affects the welfare and peace of mind
not only of Australia but of the whole Pacific community, the only course
open to it will be the pursuit of appropriate international legal
remedies."
The Applicant thus raised claims of legal right.
In its Note in reply, the French Government first of all applied itself to a
justification of its decision to carry out nuclear tests, and then
proceeded:
"Furthermore, the French Government, which has studied with the closest
attention the problems raised in the Australian Note, has the conviction
that its nuclear experiments have not violated any rule of international
law. It hopes to make this plain in connection with the 'infractions' of
this law alleged by the Australian Government in its Note above cited.
The first of these are said to concern the pollution and physical
modifications which the experiments in question are supposed to involve for
Australian territory, the sea, the airspace above.
In the first place, the French Government understands that the [p 426]
Australian Government is not submitting that it has suffered damage, already
ascertained, which is attributable to the French experiments.
If it is not to be inferred from damage that has occurred, then the
'infraction' of law might consist in the violation by France of an
international legal norm concerning the threshold of atomic pollution which
should not be crossed.
But the French Government finds it hard to see what is the precise rule on
whose existence Australia relies. Perhaps Australia could enlighten it on
this point.
In reality, it seems to the French Government that this complaint of the
violation of international law on account of atomic pollution amounts to a
claim that atmospheric nuclear experiments are automatically unlawful.
This, in its view, is not the case. But here again the French Government
would appreciate having its attention drawn to any points lending colour to
the opposite opinion.
Finally, the French Government wishes to answer the assertion that its
experiments would unlawfully hamper the freedom of navigation on the high
seas and in the airspace above.
In this respect it will be sufficient for the French Government to observe
that it is nowadays usual for areas of the high seas to be declared
dangerous to navigation on account of explosions taking place there,
including the firing of rockets. So far as nuclear experiments are
concerned, the Australian Government will not be unaware that it was
possible for such a danger-zone encroaching on the high seas to be lawfully
established at the time of previous experiments."
This note disputes those claims of legal right.
The Australian Note of 13 February 1973 contains the following passages:
"The Australian Government assures the French Government that the present
situation, caused by an activity which the French Government has undertaken
and continues to undertake and which the Australian Government and people
consider not only illegitimate but also gravely prejudicial to the future
conditions of life of Australia and the other peoples of the Pacific . . ."
and again:
"It is recalled that, in its Note dated 3 January 1973, the Australian
Government stated its opinion that the conducting of atmospheric nuclear
tests in the Pacific by the French Government would not only be undesirable
but would be unlawful. In your Ambassador's Note dated 7 February 1973 it is
stated that the French Government, having studied most carefully the
problems raised in the Australian Note, is convinced that its nuclear tests
have violated no rule of international law. The Australian Government
regrets that it cannot agree [p 427] with the point of view of the French
Government, being on the contrary convinced that the conducting of the tests
violates rules of international law. It is clear that in this regard there
exists between our two Governments a substantial legal dispute."
Was this conclusion of the Australian Government thus expressed warranted,
and if it was does it satisfy the question as to whether there was a dispute
of the required kind, the Application being in substance for a settlement of
that dispute by means of a declaration by the Court that the rights which
were claimed do exist and that they have been infringed?
It is quite evident from the correspondence that at the outset the hope of
the Australian Government was that France might be deterred from making or
from continuing its nuclear test experiments in the South Pacific by the
pressure of international opinion and by the importance of maintaining the
undiminished goodwill and the economic co-operation of Australia. In the
period of this portion of the correspondence, and I set that period as
between 6 September 1963 and 29 March 1972, the emphasis is upon the
implications of the partial Nuclear Test Ban Treaty of 1963, the general
international opinion in opposition to nuclear atmospheric tests and the
importance of harmonious relations between Australia and France as matters
of persuasion.
But in January 1973, when it is apparent that none of these endeavours have
been or are likely to be successful, and it is firmly known that a further
series of tests will be undertaken by France in the mid-year, that is to
say, in the winter of the southern hemisphere, the passages occur which I
have quoted from the Note of 3 January 1973 and the response of the French
Government of 7 February 1973 which respectively raise and deny the
Applicant's claim that its legal rights will be infringed by further testing
of nuclear devices in the South Pacific.
Four Bases of Claim
It is apparent from the passages which I have quoted that the various bases
of illegality which the Applicant has put before the Court in support of
its present Application were then nominated. They can be extracted and
listed as follows:
(1) unlawfulness in the modification of the physical conditions of the
Australian territory and environment;
(2) unlawfulness in the pollution of the Australian atmosphere and of the
resources of its adjacent seas;
(3) unlawfulness in the interference with freedom of navigation on sea and
in air; and
(4) breach of legal norms concerning atmospheric testing of nuclear weapons.
None of these were conceded by France and indeed they were disputed. [p 428]
It might be observed at this point that there is a radical distinction to be
made between the claims that violation of territorial and decisional
sovereignty by the intrusion and deposition of radio-active nuclides and of
pollution of the sea and its resources thereby is unlawful according to
international law, and the claim that the testing of nuclear weapons has
become unlawful according to the customary international law, which is
expressed in the Australian Note of 3 January 1973 as "legal norms
concerning atmospheric testing of nuclear weapons".
In the first instance, it is the intrusion of the ionized particles of
matter into the air, sea and land of Australia which is said to be in breach
of its rights sustained by international law. It is not fundamentally
significant in this claim that the atomic explosions from which the ionized
particles have come into the Australian environment were explosions for the
purpose of developing nuclear weapons, though in fact that is what happened.
But in the second instance the customary law is claimed now to include a
prohibition on the testing of nuclear weapons. The particular purpose of the
detonations by France is thus of the essence of the suggested prohibition.
Though, as I will mention later, the Applicant points to the resultant
fall-out in Australia, these consequences are not of the essence of the
unlawfulness claimed: it is the testing itself which is claimed to be
unlawful.
It might be noticed that the objection to the testing of nuclear weapons in
international discussions is placed on a twofold basis: there is the danger
to the health of this and succeeding generations of the human race from the
dissemination of radio-active fall-out, but there is also the antipathy of
the international community to the enlargement of the destructive quality of
nuclear armaments and to the proliferation of their possession. Thus, it is
not only nuclear explosions as such which are the suggested objects of the
prohibition, but the testing of nuclear weapons as an adjunct to the
increase in the extent of nuclear weaponry.
The order in which these four bases of claim were argued and the emphasis
respectively placed upon them has tended to obscure the significance of the
Applicant's claim for the infringement of its territorial and decisional
sovereignty. Because of this presentation and its emotional overtones it
might be thought that the last of the above-enumerated bases of claim which,
I may say, has its own peculiar difficulties, was the heartland of the
Australian claim. But as I understand the matter, the contrary is really the
case. It is the infraction of territorial sovereignty by the intrusion and
deposition of nuclides which is the major basis of the claim.
A dispute about respective rights may be a dispute between the Parties as to
whether a right exists at all, or it may be a dispute as to the extent [p
429] of an admitted right, or it may be a dispute as to the existence of a
breach of an admitted right, or of course it may combine all these things,
or some of them, in the one dispute. The claim on the one hand and the
denial on the other that a right exists or as to its extent or as to its
breach constitute, in my opinion, a dispute as to rights. If such a dispute
between the Parties is as to their respective rights it will in my opinion
satisfy the terms of Article 17 of the General Act which, in my opinion, is
the touchstone of jurisdiction in this case or, if the contrary view of
jurisdiction is accepted, the touchstone of admissibility.
If the dispute is not a dispute as to the existence of a legal right, it
will not satisfy Article 17 and it may be said to be a dispute "without
object" because, if it is not a dispute as to a legal right, the Court will
not be able to resolve it by the application of legal norms: the dispute
will not be justiciable.
But such a situation does not arise merely because of the novelty of the
claim of right or because the claimed right is not already substantiated by
decisions of the Court, or by the opinions of learned writers, or because to
determine its validity considerable research and consideration must be
undertaken.
In his separate opinion in the case of the Northern Cameroons (supra), Sir
Gerald Fitzmaurice adopted as a definition of a dispute which was necessary
to found the capacity of this Court to make a judicial Order the definition
which was given by Judge Morelli in his dissenting opinion in the South West
Africa case (Jurisdiction, I.C.J. Reports 1962, between pp. 566 and 588),
Sir Gerald, adding an element thereto drawn from the argument of the
Respondent in the case of the Northern Cameroons (see pp. 109-110 of I.C.J.
Reports 1963).
Sir Gerald thought that there was no dispute in that case (though the Court,
including Judge Morelli, considered there was) because the Court could not
in that case make any effective judicial Order about the matter in respect
of which the Parties to the case were in difference. On page 111 of the
Reports of the case, Sir Gerald said:
"In short, a decision of the Court neither would, nor could, affect the
legal rights, obligations, interests or relations of the Parties in any way;
and this situation both derives from, and evidences, the non-existence of
any dispute between the Parties to which a judgment of the Court could
attach itself in any concrete, or even potentially realizable, form. The
conclusion must be that there may be a disagreement, contention or
controversy, but that there is not, properly speaking, and as a matter of
law, any dispute.
To state the point in another way, the impossibility for a decision of the
Court in favour of the Applicant State to have any effective legal
application in the present case (and therefore the incompa-[p 430] tibility
with the judicial function of the Court that would be involved by the Court
entertaining the case) is the reverse of a coin, the obverse of which is
the absence of any genuine dispute.
Since, with reference to a judicial decision sought as the outcome of a
dispute said to exist between the Parties, the dispute must essentially
relate to what that decision ought to be, it follows that if the decision
(whatever it might be) must plainly be without any possibility of effective
legal application at all, the dispute becomes void of all content, and is
reduced to an empty shell."
The nub of these remarks was that, because the trusteeship agreement had
come to an end, the Court could not by a decision confer or impose any right
or obligation on either Party in respect of that agreement: and it was only
this interpretation or application of that agreement which the Application
sought. The qualification of a dispute which Sir Gerald imported into his
definition is present, in my opinion, in the very formulation of the nature
of the dispute which is relevant under Article 17, that is to say, a dispute
as to the respective rights of the Parties. If the dispute is of that kind,
it seems to me that the Court must be able both to resolve it by the
application of legal norms because legal rights of the Parties are in
question and to make at least a declaration as to the existence or
non-existence of the disputed right or obligation.
It is essential, in my opinion, to observe that the existence of a dispute
as to legal rights does not depend upon the validity of the disputed claim
that a right exists or that it was of a particular nature or of a particular
extent. In order to establish the existence of a dispute it is not necessary
to show that the claimed right itself exists. For example, a party who lost
a contested case in a court of law on the ground that in truth he did not
have the right which he claimed to have had against the other party, was
nonetheless at the outset in dispute with that other party as to their
respective rights, that is to say, the right on the one hand and the
commensurate obligation on the other. The solution of the dispute by the
court did not establish that the parties had not been in dispute as to their
rights, though it did determine that what the plaintiff party claimed to be
his right was not validly so claimed. To determine the validity of the
disputed claim is to determine the merits of the application.
It is conceivable that a person may claim a right which, being denied, gives
the appearance of a dispute, but because the claim is beyond all question
and on its face baseless, it may possibly be said that truly there is no
dispute because there was in truth quite obviously nothing to dispute about,
or it may be said that the disputed claim is patently absurd or frivolous.
But these things, in my opinion, cannot be said as to any of the bases of
claim which are put forward in the Application and which were present in the
correspondence which antedated it.[p 431]
Consideration of Bases of Claim
I turn now to consider whether the several bases of claim which I have
listed above are claims as to legal rights possessed by Australia, in other
words, whether these bases of claim being disputed are capable of
resolution by the application of legal norms and whether the Applicant has
a legal interest to maintain its claim in respect of those rights.
In considering these questions, it must be recalled that if they are to be
decided at this stage, they must be questions of an exclusively preliminary
character. If, to resolve either of them, it is necessary to go into the
merits, then that question is not of that character.
It is not disputed in the case that the deposition of radio-active particles
of matter (nuclides) on Australian territory and their intrusion into the
Australian environment of sea and air occurs in a short space of time after
a nuclear explosion takes place in the French Pacific territory of Mururoa,
due to the inherent nature and consequences of such explosions and the
prevailing movements of air in the southern hemisphere. Thus it may be taken
that that deposition and intrusion is caused, and that it is known that it
will be caused, by those explosions.
First and Second Bases
I can take bases 1 and 2 together. Each relates to the integrity of
territory and the territorial environment. The Applicant's claim is that the
deposition and intrusion of the nuclides is an infringement of its right to
territorial and, as it says, decisional sovereignty. It is part of this
claim that the mere deposition and intrusion of this particular and
potentially harmful physical matter is a breach of Australia's undoubted
sovereign right to territorial integrity, a right clearly protected by
international law.
France, for its part, as I understand the French Annex, asserts that the
right to territorial integrity in relevant respects is only a right not to
be subjected to actual and demonstrable damage by matter intruded into its
territory and environment. Hence the reference to a threshold of nuclear
pollution. Put another way, it is claimed that France's right to do as she
will on her own territory in exercise of her own sovereign rights is only
qualified by the obligation not thereby to cause injury to another State;
that means, as I understand the French point of view, not to do actual
damage presently provable to the Australian territory or environment of air
and sea. In such a formulation it would seem that France claims that
although the nuclides were inherently dangerous, their deposition and
intrusion into the Australian territory and environment did not relevantly
cause damage to Australia or people within its territory. Damage in that [p
432] view would not have been caused unless some presently demonstrable
injury had been caused to land or persons by the nuclear fall-out.
Such a proposition is understandable, but it is a proposition of law. It is
disputed by Australia and is itself an argument disputing the Australian
claim as to the state of the relevant law. So far as the question of French
responsibility to Australia may depend upon whether or not damage has been
done by the involuntary reception in Australia of the radio-active fall-out,
it should be said that the question whether damage has in fact been done has
not yet been fully examined. Obviously such a question forms part of the
merits. Again, if there is no actual damage presently provable, the question
remains whether the nuclides would in future probably or only possibly cause
injury to persons within Australian territory; and in either case, there is
a question of whether the degree of probability or possibility, bearing in
mind the nature of the injuries which the nuclides are capable of causing,
is sufficient to satisfy the concept of damage if the view of the law put
forward by the French Annex were accepted. The resolution of such questions,
which in my opinion are legal questions, partakes of the merits of the case.
The French White Book appears to me to attribute to the Applicant and to New
Zealand in its case, a proposition that:
". . . they have the right to decline to incur the risks to which nuclear
atmospheric tests would expose them, and which are not compensated for by
advantages considered by them to be adequate, and that a State disregarding
this attitude infringes their sovereignty and thus violates international
law".
I do not apprehend that the Applicant did put forward that view of the law;
and as phrased by the French White Book, it is a proposition of law. My
understanding of the Applicant's argument was that the Applicant claimed
that in the exercise of its sovereignty over its territory it had to
consider, in this technological age, whether it would allow radio-active
material to be introduced into and used in the country. It claims that it
alone should decide that matter. As some uses of such material can confer
benefit on some persons, it was said that Australia had established for
itself a rule that it would not allow the introduction into, or the use of
radio-active material in Australia unless a benefit, compensating for any
harmful results which could come from such introduction or use, could be
seen. In assessing the benefit and the detriment, account had to be taken of
the level of radio-activity, natural and artificial, which existed at any
time in the environment. It was said, as I followed the argument, that the
involuntary receipt into the territorv and environment of radio-[p 433]
active matter infringed Australian sovereignty and compromised its capacity
to decide for itself what level of radio-activity it would permit in the
territory under its sovereignty. As the introduction was involuntary, no
opportunity was afforded of considering whether the introduction of the
radio-active matter had any compensating benefits. This was the
infringement of what the Applicant called its decisional sovereignty. But
if I be wrong in my understanding of the Australian position in this
respect, and the French view is the correct one, the Parties are in dispute
about a further aspect of international law affecting their relations with
one another.
Thus France and Australia are, in my opinion, in difference as to what is
the relevant international law regulating their rights and obligations in
relation to the consequences on Australian territory or in its environment
of nuclear explosions taking place on French territory. To borrow an
expresion from municipal law, one, but not the only, aspect of the dispute
is whether actual and demonstrable damage is of the "gist" of the right to
territorial integrity or is the intrusion of radio-active nuclides into the
environment per se a breach of that right.
In resolving the question whether damage is of the essence of the right to
territorial integrity in relation to the intrusion of physical matter into
territory, there may arise what is a large question as to the classification
of substances which may not be introduced with impunity by one State on to
and into the territory and environment of another. Is there a possible
limitation or qualification of the right to territorial and environmental
integrity which springs from the nature of the activity which generates the
substance which is deposited or intruded into the State's territory and
environment? There are doubtless uses of territory by a State which are of
such a nature that the consequences for another State and its territory and
environment of such a use must be accepted by that other State. It may very
well be that a line is to be drawn between depositions and intru-sions which
are lawful and must be borne and those which are unlawful; on the other hand
it may be that because of the unique nature of nuclides and the
internationally unnecessary and internationally unprofitable activity which
gives rise to their dissemination, no more need be decided than the question
whether the intrusion of such nuclides so derived is unlawful.
It is important, in my opinion, to bear in mind throughout that we are here
dealing with the emission and deposit of radio-active substances which are
in themselves inherently dangerous. There may be differences of opinion as
to how dangerous they may prove to be, but no dissent from the view that
they are intrinsically harmful and that their harmful effect is neither
capable of being prevented nor, indeed, capable of being ascertained with
any degree of certainty. I mention these possibilities merely as indicating
the scope of the legal considerations which the dispute of the Parties in
relation to territorial sovereignty evokes.
In my opinion, it cannot be claimed, and I do not read the French [p 434]
Annex as claiming, that this difference between France and Australia as to
whether or not there has been an infringement of Australian sovereignty is
other than a legal dispute, a dispute as to the law and as to the legal
rights of the Parties. It is a dispute which can be resolved according to
legal norms and by judicial process. Clearly the Applicant has a legal
interest to maintain the validity of its claim in this respect.
Third Basis of Claim
The third basis of the claim is that Australia's rights of navigation and
fishing on the high seas and of oceanic flight will be infringed by the
action of the French Government not limited to the mere publication of
NOTAMS and AVROMARS in connection with its nuclear tests in the atmosphere
of the South Pacific. Here there is, in my opinion, a claim of right. The
claim also involves an assertion that a situation will exist which would be
a breach of that right. It seems also to be claimed that pollution of the
high seas, with resultant effects on fish and fishing, constitutes an
infringement of the Applicant's rights in the sea.
France disputes that what it proposes to do would infringe Australia's
rights in the high seas and super-incumbent air, bearing in mind
established international practice. Thus the question arises as to the
extent of the right of the unimpeded use of the high seas and
super-incumbent air, and of the nature and effect of international practice
in the closure of areas of danger during the use of the sea and air for the
discharge of weapons or for dangerous experimentation.
Again, in my opinion, there is, in connection with the third basis of claim,
a dispute as to the existence and infringement of rights according to
international law: there is a dispute as to the respective rights of the
Parties. On that footing, the interest of the Applicant to sustain the
Application is, in my opinion, apparent.
Fourth Basis of Claim
The claim in relation to the testing of nuclear weapons in the atmosphere
stands on a quite different footing from the foregoing. It is a claim that
Australia's rights are infringed by the testing of nuclear weapons by France
in the atmosphere of the South Pacific. I have expressed it in that fashion,
emphasizing that it is Australia's rights which are said to be infringed,
though I am bound to say that the claim is not so expressed in the
Australian Note of 3 January 1973. However, the expression of the relevant
claim in paragraph 49 of the Application is susceptible of that
interpretation. The relevant portion of that paragraph reads:
"The Australian Government contends that the conduct of the tests as
described above has violated and, if the tests are continued, [p 435] will
further violate international law and the Charter of the United Nations,
and, inter alia, Australia's rights in the following respects:
(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 . . ."
It is clear enough, in my opinion, that the Applicant has claimed that
international law now prohibits any State from testing nuclear weapons, at
least in the atmosphere. Of course, Australia would have no interest to
complain in this case of any other form of testing, the French tests being
in the atmosphere. The claim is not that the law should be changed on moral
or political grounds, but that the law now is as the Applicant claims it to
be. France denies that there is any such prohibition. It can readily be
said, in my opinion, that this is a dispute as to the present state of
international law. It is not claimed that that law has always been so, but
it is claimed that it has now become so.
It is said that there has been such a progression of general opinion amongst
the nations, evidenced in treaty, resolution and expression of international
opinion, that the stage has been reached where the prohibition of the
testing of nuclear weapons is now part of the customary international law.
It cannot be doubted that that customary law is subject to growth and to
accretion as international opinion changes and hardens into law. It should
not be doubted that the Court is called upon to play its part in the
discernment of that growth and in the authoritative declaration that in
point of law that growth has taken place to the requisite extent and that
the stretch of customary law has been attained. The Court will, of course,
confine itself to declaring what the law has already become, and in doing so
will not be altering the law or deciding what the law ought to be, as
distinct from declaring what it is.
I think it must be considered that it is legally possible that at some stage
the testing of nuclear weapons could become, or could have become,
prohibited by the customary international law. Treaties, resolutions,
expressions of opinion and international practice, may all combine to
produce the evidence of that customary law. The time when such a law emerges
will not necessarily be deferred until all nations have acceded to a test
ban treaty, or until opinion of the nations is universally held in the same
sense. Customary law amongst the nations does not, in my opinion, depend on
universal acceptance. Conventional law limited to the parties to the
convention may become in appropriate circumstances customary law. On the
other hand, it may be that even a widely accepted test ban treaty does not
create or evidence a state of customary international law in which the
testing of nuclear weapons is unlawful, and that resolutions of the United
Nations and other expressions of international opinion, however frequent,
numerous and emphatic, are insufficient to [p 436] warrant the view that
customary law now embraces a prohibition on the testing of nuclear weapons.
The question raised by the Applicant's claim in respect of the nuclear
testing of weapons and its denial by France is whether the stage has already
been reached where it can be said as a matter of law that there is now a
legal prohibition against the testing of nuclear weapons, particularly the
testing of nuclear weapons in the atmosphere. If I might respectfully
borrow Judge Petr!!!en's phrase used in his dissenting opinion at an earlier
stage in this case, the question which arises is 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" (I.C.J. Reports
1973, p. 126),
which is, in my opinion, a description of a question of law.
The difficulties in the way of establishing such a change in the customary
international law are fairly obvious, and they are very considerable, but,
as I have indicated earlier, it is not the validity of the claim that is in
question at this stage. The question is whether a dispute as to the law
exists. However much the mind may be impressed by the difficulties in the
way of accepting the view that customary international law has reached the
point of including a prohibition against the testing of nuclear weapons, it
cannot, in my opinion, be said that such a claim is absurd or frivolous, or
ex facie so untenable that it could be denied that the claim and its
rejection have given rise to a dispute as to legal rights. There is, in my
opinion, no justification for dismissing this basis of the Applicant's claim
as to the present state of international law out of hand, particularly at a
stage when the Court is limited to dealing with matters of an exclusively
preliminary nature. Nor is it the case that the state of the customary law
could not be determined by the application of legal considerations.
There remains, however, another and a difficult question, namely whether
Australia has an interest to maintain an application for a declaration that
the customary law has reached the point of including a prohibition against
the testing of nuclear weapons.
In expressing its claim, it is noticeable that the Applicant speaks of its
right as being a right along with all other States. It does not claim an
individual right exclusive to itself. In its Memorial, it puts the
obligation not to test nuclear weapons as owed by each State to every other
State in the international community; thus it is claimed that each State can
be held to have a legal interest in the maintenance of a prohibition against
the testing of nuclear weapons. The Applicant, in support of this
conclusion, relies upon the obiter dictum in the Barcelona Traction, Light
and Power Company, Limited case (Belgium v. Spain, supra, I.C.J. Reports
1970, at p. 32): [p 437]
"When a State admits into its territory foreign investments or foreign
nationals, whether natural or juristic persons, it is bound to extend to
them the protection of the law and assumes obligations concerning the
treatment to be afforded them. These obligations, however, are neither
absolute nor unqualified. In particular, an essential distinction should be
drawn between the obligations of a State towards the international community
as a whole, and those arising vis-�-vis another State in the field of
diplomatic protection. By their very nature the former are the concern of
all States. In view of the importance of the rights involved, all States
can be held to have a legal interest in their protection : they are
obligations erga omnes.
Such obligations derive, for example, in contemporary international law,
from the outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of general
international law (Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951,
p. 23); others are conferred by international instruments of a universal or
quasi-universal character."
The Applicant says that the prohibition it claims now to exist in the
customary international law against the testing of nuclear weapons is of the
same kind as the instances of laws concerning the basic rights of the human
person as are given in paragraph 34 of the Court's Judgment in the Barcelona
Traction, Light and Power Company, Limited case, and that therefore the
obligation to observe the prohibition is erga omnes. The Applicant says that
in consequence the right to observance of the prohibition is a right of
each State corresponding to the duty of each State to observe the
prohibition, a duty which the Applicant claims is owed by each State to each
and every other State.
If this submission were accepted, the Applicant would, in my opinion, have
the requisite legal interest, the locus standi to maintain this basis of its
claim. The right it claims in its dispute with France would be its right:
the obligation it claims France to be under, namely an obligation to refrain
from the atmospheric testing of nuclear weapons, would be an obligation owed
to Australia. The Parties would be in dispute as to their respective rights.
But in my opinion the question this submission raises is not a matter which
ought to be decided as a question of an exclusively preliminary character.
Not only are there substantial matters to be considered in connection with
it, but, if a prohibition of the kind suggested by the Applicant were to be
found to be part of the customary international law, the precise formulation
of, and perhaps limitations upon, that pro-[p 438]hibition may well bear on
the question of the rights of individual States to seek to enforce it. Thus
the decision and question of the admissibility of the Applicant's claim in
this respect may trench upon the merits.
There is a further aspect of the possession of the requisite legal interest
to maintain this basis of the Applicant's claim which has to be considered.
The Applicant claims to have been specially affected by the breach of the
prohibition against atmospheric testing of nuclear weapons. Conformably with
its other bases of claim the Applicant says that there has been deleterious
fall-out on to and into its land and environment from what it claims to be
the unlawful atmospheric testing of nuclear weapons. It may well be that
when the facts are fully examined, this basis of a legal interest to
maintain the Application in relation to the testing of nuclear weapons may
be made out, both in point of fact and in point of law, but again the matter
is not, in my opinion, a question of an exclusively preliminary nature.
In the result, I am of opinion that the Applicant's claim is admissible in
relation to the first three of the four bases which I have enumerated at an
earlier part of this opinion. But I am not able to say affirmatively at this
stage that the Application is admissible, as to the fourth of those bases of
claim. In my opinion, the question whether the Application is in that
respect admissible is not a question of an exclusively preliminary nature,
and for that reason it cannot be decided at this stage of the proceedings.
I shall add that, if it were thought, contrary to my own opinion, that the
question of admissibility involved to any extent an examination of the
validity of the claims of right which are involved in the dispute between
the Parties, it would be my opinion that the question of admissibility so
viewed could not be decided as a question of an exclusively preliminary
character.
To sum up my opinion to this point, I am of opinion that at the date of the
lodging of the Application the Court had jurisdiction and that it still has
jurisdiction to hear and determine the dispute between France and Australia
which at that time existed as to the claim to the unlaw-fulness, in the
respects specified in the first three bases of claim in my earlier
enumeration, of the deposition and intrusion of radio-active particles of
matter on to and into Australian land, air and adjacent seas resulting from
the detonation by France in its territory at Mururoa in the South Pacific of
nuclear devices, and as to the unlawfulness of the proposed French activity
in relation to the high seas and the super-incumbent air space. I am of
opinion that there is a dispute between the Parties as to a matter of legal
right in respect of the testing by France of nuclear weapons in the
atmosphere of the South Pacific. If it should be found that the Applicant
has a legal right to complain of that testing and thus a legal interest to
maintain this Application in respect of such testing, the Court has
jurisdiction, in my opinion, to hear and determine the dispute between the
Parties as to the unlawfulness of the testing by France of nuclear weapons
in the atmosphere of the South Pacific. It will in that [p 439] event, in
relation to this basis of claim also, be a dispute as to their respective
rights within Article 17 of the General Act.
In so far as the admissibility of the Application may be a question separate
from that of jurisdiction in this case, I am of opinion that the Application
is admissible in respect of all the bases of claim other than that basis
which asserts that the customary international law now in-cludes a
prohibition against the testing of nuclear weapons. In my opinion, it cannot
be said, as a matter of an exclusively preliminary character, that the
Application in respect of this basis of claim is inadmissible, that is to
say, it cannot now be said that the Applicant certainly has no legal
interest to maintain its Application in that respect. In my opinion, the
question of admissibility in respect of this basis of claim is not a
question of an exclusively preliminary character and that it ought to be
decided at a later stage of the proceedings.
Dissent from Judgment
I have already expressed myself as to the injustice of the procedure adopted
by the Court. I regret to find myself unable to agree with the substance of
the Judgment, and must comment thereon in expressing my reasons for
dissenting from it.
Explanation for not Notifying and Hearing Parties
The first matter to which I direct attention in the Judgment is that part of
it which expresses the Court's reason for not having notified the Parties
and for not having heard argument (e.g., see Judgment, para. 33).
The Judgment in this connection begins with the circumstance that a
communique from the Office of the President of France dated 8 June 1974,
which had been communicated to Australia, was brought to the attention of
the Court by the Applicant in the course of the oral hearing on the
preliminary questions. The Judgment then refers to a number of statements
which it designates as acts of France and which it says are "consistent"
with the communique of 8 June 1974; the Court says it would be proper to
take cognizance of these statements (paras. 31 and 32 of the Judgment). I
may remark in passing that the question is not whether these statements were
matters which might properly be considered by the Court if appropriate
procedures were adopted. The question is whether this evidentiary matter
ought to be acted upon without notice to the Parties and without hearing
them. The Court in its Judgment says:
"It would no doubt have been possible for the Court, had it considered that
the interests of justice so required, to have afforded the Parties the
opportunity, e.g., by reopening the oral proceedings, [p 440] of addressing
to the Court comments on the statements made since the close of those
proceedings. Such a course however would have been fully justified only if
the matter dealt with in those statements had been completely new, had not
been raised during the proceedings, or was unknown to the Parties. This is
manifestly not the case. The essential material which the Court must examine
was introduced into the proceedings by the Applicant itself, by no means
incidentally, during the course of the hearings, when it drew the Court's
attention to a statement by the French authorities made prior to that date,
submitted the documents containing it and presented an interpretation of its
character, touching particularly upon the question whether it contained a
firm assurance. Thus both the statement and the Australian interpretation of
it are before the Court pursuant to action by the Applicant. Moreover, the
Applicant subsequently publicly expressed its comments (see paragraph 28
above) on statements made by the French authorities since the closure of
the oral proceedings. The Court is therefore in possession not only of the
statements made by French authorities concerning the cessation of
atmospheric nuclear testing, but also of the views of the Applicant on them.
Although as a judicial body the Court is conscious of the importance of the
principle expressed in the maxim audi alteram partem, it does not consider
that this principle precludes the Court from taking account of statements
made subsequently to the oral proceedings, and which merely supplement and
reinforce matters already discussed in the course of the proceedings,
statements with which the Applicant must be familiar. Thus the Applicant,
having commented on the statements of the French authorities, both that made
prior to the oral proceedings and those made subsequently, could reasonably
expect that the Court would deal with the matter and come to its own
conclusion on the meaning and effect of those statements. The Court, having
taken note of the Applicant's comments and feeling no obligation to consult
the Parties on the basis for its decision, finds that the reopening of the
oral proceedings would serve no useful purpose." (Para. 33.)
It is true that the communique of 8 June 1974 which issued from the Office
of the President of France was brought to the Court's attention by the
Applicant in the course of the oral hearing. Indeed, I should have thought
the Applicant would have been bound to do so. But it seems to me that it was
not introduced in relation to some further question beyond the two questions
mentioned in the Order of 22 June 1973. It is true that a comment was made
on the communique by the Applicant's counsel of which the terms are recited
in the Judgment. But in my opinion it cannot truly be said that the
reference to the communication was made to introduce and argue the questions
the Court has decided. Counsel for the Applicant when making his comment
thereon, as appears from the verbatim record of the proceedings, was
reviewing developments in [p 441]
relation to these proceedings since he last addressed the Court, that is to
say, since he did so in connection with the indication of interim measures.
He referred to the failure of France to observe the Court's indication of
interim measures and to certain further resolutions of the General Assembly
and of UNSCEAR. As indicative of what, from the Applicant's point of view,
was continued French obduracy, he referred to the communique from the
President's Office criticizing its factual inaccuracy and emphasizing that
it did not contain any firm indication that atmospheric testing was to come
to an end. He pointed out that a decision to test underground did not carry
any necessary implication that no further atmospheric testing would take
place. He asserted that the Applicant had had scientific advice that the
possibility of further atmospheric testing taking place after the
commencement of underground tests could not be excluded. He indicated that
the communique had not satisfied the Applicant to the point that the
Applicant desired to discontinue the legal proceedings. On the contrary, he
indicated that the Applicant proposed to pursue its Application, as in fact
it did, continuing the argument on the two questions mentioned in the Order
of 22 June 1973. I might interpolate that that argument continued without
any intervention by the Court.
But in my opinion this comment of counsel for the Applicant was in no sense
a discussion of the question as to whether the claim had become "without
object", either because the dispute as to the legal right had been settled,
or because no opportunity remained for making a judicial Order upon the
Application. It was not directed to that question at all. Nor was it
directed to the question whether the communique was intended to undertake an
international obligation. In no sense did it constitute in my opinion a
submission with respect to those questions or either of them. In my opinion
it cannot be made the basis for the decision without hearing the Parties. It
cannot provide in my opinion any justification for the course the Court has
taken. In my opinion it cannot justly be said, as it is said in the
Judgment, that the Applicant "could reasonably expect that the Court would .
. . come to its own conclusion" from the document of 8 June 1974 (see para.
33), i.e., as to whether or not the Application had become "without object".
Apart from all else, the Applicant was not to know that the Court would
receive the further statements and use them in its decision.
I have said that in my opinion the question whether the Application has, by
reason of the events occurring since the Application was lodged, become
"without object" is not in any sense embraced by or involved in the
questions mentioned in the Order of 22 June 1973. They related, and in my
opinion related exclusively, to the situation which obtained at the date of
the lodging of the Application. They could not conceivably have related to
facts and events subsequent to 22 June 1973. But, of course, events which
occurred subsequent to the lodging of the Application might provoke further
questions which might require to be dealt with in a [p 442] proper
procedural manner and decided by the Court after hearing the Parties with
respect to them.
If there is a question at this stage of the proceedings whether the
Application has become "without object", either because the dispute which is
before the Court had been resolved, or because the Court cannot in the
present circumstances, within its judicial function, now make an Order
having effect between the Parties, the Court ought, in my opinion, first to
have decided the questions then before it and to have fixed times for a
further hearing of the case at which the question whether the Application
had become "without object" could be examined in a public hearing at which
the Parties could place before the Court any relevant evidence which they
desired the Court to consider, for it cannot be assumed that the material
of which the Court has taken cognizance is necessarily the whole of the
relevant material, and at which counsel could have been heard.
The decision of the questions of jurisdiction and of admissibility would in
no wise have compromised the consideration and decision on the question
which the Court has decided. Indeed, as I think, to have decided what was
the nature of the Parties' dispute would have greatly clarified the question
whether an admissible dispute had been resolved. Further the failure to
decide these questions really saves no time or effort. As I have mentioned,
the Memorial and argument of the Applicant have been presented and the
questions have been discussed by the Court.
It is of course for the Court to resolve all questions which come before it:
the Court is not bound by the views of one of the parties. But is this a
sufficient or any reason for not notifying the parties of an additional
question which the Court proposes to consider and for not affording the
parties an opportunity to put before the Court their views as to how the
Court should decide the question, whether it be one of fact or one of law?
The Court's procedure is built on the basis that the parties will be heard
in connection with matters that are before it for decision and that the
Court will follow what is commonly called the "adversary procedure" in its
consideration of such matters. See, e.g., Articles 42, 43, 46, 48 and 54 of
the Statute of the Court. The Rules of Court passim are redolent of that
fact. Whilst it is true that it is for the Court to determine what the fact
is and what the law is, there is to my mind, to say the least, a degree of
judicial novelty in the proposition that, in deciding matters of fact, the
Court can properly spurn the participation of the parties. Even as to
matters of law, a claim to judicial omniscience which can derive no
assistance from the submissions of learned counsel would be to my mind an
unfamiliar, indeed, a quaint but unconvincing affectation.
I find nothing in the Judgment of the Court which, in my opinion, can
justify the course the Court has taken. It could not properly be said, in my
opinion, consistently with the observance of the Court's judicial function,
[p 443] that the Court could feel no obligation to hear the Parties' oral
submissions or that "the reopening of the oral proceedings would serve no
useful purpose" (see para. 33 of the Judgment).
Elements of Judgment
The Judgment is compounded of the following elements: first, an
interpretation of the claim in the Application. It is concluded that the
true nature of the claim before the Court is no more than a claim to bring
about the cessation of the testing of nuclear weapons in the South Pacific;
second, a finding that the Applicant, in pursuit of its goal or objective to
bring about that cessation would have been satisfied to accept what could
have been regarded by it as a firm, explicit and binding undertaking by
France no longer to test nuclear weapons in the atmosphere of that area.
Such an assurance would have been accepted as fulfilling that purpose or
objective; third, a finding that France by the communique of 8 June 1974,
when viewed in the light of the later statements which are quoted in the
Judgment intentionally gave an assurance, internationally binding, and
presumably therefore binding France to Australia, that after the conclusion
of the 1974 series of tests France would not again test nuclear weapons in
the atmosphere of the South Pacific; and lastly, a conclusion that the
giving of that assurance, though not found satisfactory and accepted by
Australia, ended the dispute between Australia and France which had been
brought before the Court, so that the Application lodged on 9 May 1973 no
longer had any object, had become "without object".
Each of these elements of the Judgment has difficulties for me. The Judgment
says that the "objective" of the Applicant was to obtain the termination of
the atmospheric tests, "the original and ultimate objective of the Applicant
was and has remained to obtain a termination of" the atmospheric nuclear
tests (see paras. 26 and 30 of the Judgment). Paragraph 31 of the Judgment
refers to "the object of the Applicant's claim" as being "to prevent further
tests". Thus the objective or object is at times said to be that of the
Applicant, at other times it is said to be the objective of the Application
or of the claim.
The Judgment, in seeking what it describes as the true nature of the claim
submitted by the Applicant, ought to have regarded the Application, which
by the Rules of Court must state the subject of the dispute, as the point of
reference for the consideration by the Court of the nature and extent of the
dispute before it (see Art. 35 of the Rules of Court). The Applicant at no
stage departed from the Application and the relief it claimed.
By the Application the Applicant seeks two elements in the Court's Judgment,
that is to say, a declaration of the illegality of further tests and an
Order terminating such tests. The Applicant's requests are directed to the
future. But the future to which the Application in seeking a [p 444]
declaration relates begins as from 9 May 1973, the date of the lodging of
the Application, and not, as from the date of the Judgment or from some
other time in 1974. The Judgment proceeds as I think, in direct
contradiction of the language of the Application and of its clear intent,
to conclude that the request for a declaration in the Application is no more
than a basis for obtaining an Order having the effect of terminating
atmospheric tests. The Judgment further says that a finding that further
tests would not be consistent with international law would only be a means
to an end and not an end in itself (see para. 30 of the Judgment). The
Judgment overlooks the terms of paragraph 19 of the Application which is in
part in the following terms:
"The Australian Government will seek a declaration that the holding of
further atmospheric tests by the French Government in the Pacific Ocean is
not in accordance with international law and involves an infringement of the
rights of Australia. The Australian Government will also request that,
unless the French Government should give the Court an undertaking that the
French Government will treat a declaration by the Court in the sense just
stated as a sufficient ground for discontinuing further atmospheric testing,
the Court should make an order calling upon the French Republic to refrain
from any further atmospheric tests."
I might interpolate here the observation that it just could not be said, in
my opinion, that a declaration, made now, that the tests carried out in 1973
and 1974 (which as of 9 May 1973, were "future tests") were unlawful, would
do no more than provide a reason for an injunction to restrain the tests
which might be carried out in 1975. In my opinion the obvious incorrectness
of such a statement is illustrative of the fact that the request in the
Application for a declaration was itself a request for substantive relief.
Apart from a claim for compensatory relief in relation to them�a matter to
which I later refer�a declaration of unlawfulness is all that could be done
as to those tests. Obviously there could be no order for an injunction.
In concluding that the nature of the Application was no more than that of a
claim for the cessation of the nuclear tests, two related steps are taken,
the validity of neither of which I am able to accept. First of all, the
purpose with which the litigation was commenced, the goal or objective
sought thereby to be attained, is identified in the Judgment with the
nature of the claim made in the Application and the relief sought in the
proceedings. But it seems to me that they are not the same. They are quite
different things. To confuse them must lead to an erroneous con-clusion as
in my opinion has happened.
Undoubtedly, the purpose of the Applicant in commencing the litigation was
to prevent further atomic detonations in the course of testing nuclear
weapons in the atmosphere of the South Pacific as from the date [p 445] of
the lodgment of its Application. Apparently it desired to do so for two
avowed reasons, first to prevent harmful fall-out entering the Australian
environment and, secondly, to prevent the proliferation of nuclear armament.
I have already called attention to the different bases of the Applicant's
claim which reflect those different reasons. Diplomatic approaches having
failed, the means of achieving that purpose was the creation of a dispute as
to the legal rights of the Parties and the commencement of a suit in this
Court founded on that dispute in which relief of two specific kinds was
claimed, the principal of which in reality, in my opinion, is the
declaration as to the matter of right. The injunctive relief was in truth
consequential. The attitude of the Applicant expressed in paragraph 19 of
its Application is consistent with the practice of international tribunals
which deal with States and of municipal tribunals when dealing with
governments. It is generally considered sufficient to declare the law
expecting that States and governments will respect the Court's declaration
and act accordingly. That I understand has been the practice of this Court
and of its predecessor. Thus the request for a declaration of unlawfulness
in international law is, in my opinion, not merely the primary but the
principal claim of the Application. It is appropriate to the resolution of a
dispute as to legal rights.
The second step taken by the Judgment not unrelated to the first is to
identify the word "object" or "objective" in the sense of a goal to be
attained or a purpose to be pursued, with the word "object" in the
expression of art "without object" as used in the jurisprudence of this
Court. This in my opinion is to confuse two quite disparate concepts. The
one relates to motivation and the other to the substantive legal content of
an Application. Motivation, unless the claim or dispute involved some
matter of good faith, would in my opinion be of no concern to the Court when
resolving a dispute as to legal right.
It is implicit in the Judgment, in my opinion, that the Parties at the date
of the lodgment of the Application were in dispute and presumably in dispute
as to their legal rights. But the Judgment does not condescend to an express
examination of the nature of the dispute between the Parties which it
decides has been resolved and has ceased to exist. I have expressed my
views of that dispute in an earlier part of this opinion. If the Court had
come to the same conclusion as I have, it would in my opinion have been
immediately apparent that the goal or objective of the Appli-cant in
commencing the litigation could not be identified with its claim to the
resolution of the dispute as to the respective legal rights of the Parties.
It would further have been apparent, in my opinion, that for a court called
upon to decide whether such a dispute persisted, the motives, purposes or
objective of the Applicant in launching the litigation were irrelevant. It
would also have been seen that a voluntary promise given [p 446] without
admission and whilst maintaining the right to do so, not to test
atmospherically in the future could not resolve a dispute as to whether it
had been or would be unlawful to do so. I add "had been" because of the 1973
series of tests which had taken place before the issue of the communique of
8 June 1974.
If, on the other hand, the Court on such an examination of the nature of the
dispute, had decided that the dispute between the Parties was not a dispute
as to their respective legal rights, the Court would have decided either
that it had no jurisdiction to hear and determine the Application or that
the Application was inadmissible. In that event no question of the dispute
having been resolved would have emerged.
Although the matter receives no express discussion, and although I think it
is implicit in the Judgment that the Parties were relevantly in dispute when
the Application was lodged, the Judgment, it seems to me, treats the Parties
as having then been in dispute as to whether or not France should cease
tests in the Pacific. But if the Parties had only been in dispute as to
whether or not France should do so or should give an assurance that it would
do so, the dispute would not have been justiciable; in which case, no
question as to the Application having become without object would arise.
Whether the Application when lodged was or was not justiciable was in my
opinion part of the questions to which the Order of 22 June 1973 was
directed and I have so treated the matter in what I have so far written. It
seems to me that in that connection some have thought that the dispute
between France and Australia was no more than a dispute as to whether
France ought or ought not in comity to cease to test in the atmosphere of
the South Pacific. If that were the dispute the Court could have had no
function in its resolution: it could properly have been regarded as an
exclusively political dispute. The Application could properly have been said
to be "without object" when lodged. I have found myself and I find myself
still unable to accept that view. The dispute which is brought before the
Court by the Application is claimed to be, and as I have said in my opinion
it is, a dispute as to the legal rights of the Parties. The question between
them which the Application brings for resolution by the Court in my opinion
is not whether France of its own volition will not, but whether lawfully it
cannot, continue to do as it has done theretofore at Mururoa with the stated
consequences for Australia. The importance of the Court first deciding
whether or not the dispute between the Parties was a dispute as to their
respective rights is thus quite apparent. But in any case it seems to me
that the Applicant's purpose in commencing the litigation is irrelevant to
the question whether the claim which is made is one the Court can entertain
and decide according to legal norms, and the relief which is sought is
relief which the Court judicially can grant.
The confusion of motivation with the substance of the Application permeates
the Judgment in the discussion of the nature of the claim the [p 447]
Application makes. The Judgment refers to statements of counsel in the
course of the oral hearing and proceeds in paragraph 27:
"It is clear from these statements that if the French Government had given
what could have been construed by Australia as 'a firm, explicit and binding
undertaking to refrain from further atmospheric tests', the applicant
Government would have regarded its objective as having been achieved."
In this passage there is again implicit an identification of the Applicant's
ultimate purpose in bringing the proceedings with the claim which it makes
in the Application before the Court. If it were to be assumed that the
Applicant would in fact have treated such an undertaking as the Court
describes as sufficient for its purposes in commencing the litigation, the
Applicant, in my opinion, could not have regarded that undertaking as
having resolved the matter of right which in my opinion was the basis of its
claim in the Application before the Court. It could not have regarded its
dispute as to legal rights as having been resolved. The assurance which the
Court finds to have been given was in no sense an admission of illegality
of the French testing and of its consequences. France throughout continued
to maintain that its nuclear tests "do not contra-vene any subsisting
provision of international law" (French White Book). All the Applicant could
have done would have been to accept the assurance as in the nature of a
settlement of the litigation and thereupon to have withdrawn the Application
in accordance with the Rules of Court. It would not do so in my opinion,
because the dispute as to the respective rights of the Parties had been
resolved, nor because its claim in the Application "had been met", but
because as a compromise the Applicant had been prepared to accept the
assurance as sufficient for its purposes.
The question whether a litigant will accept less than that which it has
claimed in the Court as a satisfaction of its purpose in commencing a
litigation is essentially a matter for the litigant. It is not a matter, in
my opinion, which can be controlled by the Court directly or indirectly.
Indeed, it is not a matter into which the Court, if it confines itself to
its judicial function, ought to enter at all. Even if it be right that the
Applicant would have accepted what the Applicant regarded as a firm,
explicit and binding undertaking to refrain from further atmospheric tests,
the Court is not warranted in deciding what the Applicant ought to accept in
lieu of its claim to the Court's Judgment. So to do is in effect to
compromise the claim, not to resolve the dispute as to a matter of right.
There is in any case, to my mind, obvious incongruity in regarding a
voluntary assurance of future conduct which makes no admission of any legal
right as the resolution of a dispute as to the existence of the legal right
which, if upheld, would preclude that conduct.
The departure from the language of the Application and the identification
of the claim which it makes with the object, objective or goal of the [p
448] Applicant in making the Application thus provided, in my opinion, an
erroneous base upon which to build the Judgment.
Further, the Judgment, it seems to me, overlooks the fact that in all the
references to assurances in the correspondence and in the oral hearings the
Applicant referred to an assurance with the nature and terms of which it was
satisfied. These references cannot be read in my opinion as indi-cating such
an assurance as might be regarded as sufficient for Australia's purposes by
any other judgment than its own.
The Judgment proceeds to hold that France by the communique of 8 June 1974,
as confirmed by the subsequent Presidential and Ministerial statements to
the press, did give to the international community and thus to Australia an
undertaking, binding internationally, not on any occasion subsequent to the
conclusion of the 1974 series of tests to test nuclear weapons in the
atmosphere of the South Pacific.
My first observation is that this is a conclusion of fact. It is not in my
opinion a conclusion of law. The inferences to be drawn from the issuing and
the terms of the communique of 8 June 1974 are, in my opinion, inferences of
fact, including the critical fact of the intention of France in the matter.
So also, in my opinion, is the meaning to be given to the various statements
which are set out in the Judgment. A decision as to those inferences and
those meanings is not in my opinion an exercise in legal interpretation; it
is an exercise in fact-finding.
But whether the conclusion be one of fact or one of law, my comments as to
the judicial impropriety of deciding the matter without notice to the
Parties of the questions to be considered, and without affording them an
opportunity to make their submissions, are equally applicable.
This is a very important conclusion purporting to impose on France an
internationally binding obligation of a far-reaching kind. Nothing is found
as to the duration of the obligation although nothing said in the Judgment
would suggest that it is of a temporary nature. There are apparently no
qualifications of it related to changes in circumstances or to the varying
needs of French security. Apparently it is restricted to the South Pacific
area, a limitation implied from the fact that the source of the obligation
is the communique of 8 June 1974 issued in the context of the imminence of
the 1974 series of tests.
The purpose and intention of issuing the communique and subsequently making
the various statements is to my mind far from clear. The Judgment finds an
intention to enter into a binding legal obligation after giving the warning
that statements limiting a State's freedom of action should receive a
restrictive interpretation. The Judgment apparently finds the clear
intention in the language used. I regret to say that I am unable to do so.
There seems to be nothing, either in the language used or in the
circumstances of its employment, which in my opinion would warrant, and
certainly nothing to compel, the conclusion that those [p 449] making the
statements were intending to enter into a solemn and far-reaching
international obligation rather than to announce the current intention of
the French Government. I would have thought myself that the more natural
conclusion to draw from the various statements was that they were statements
of policy and not intended as undertaking to the international community
such a far-reaching obligation. The Judgment does not seem to my mind to
offer any reason why these statements should be regarded as expressing an
intention to accept an internationally binding undertaking rather than an
intention to make statements of current government policy and intention.
Further, it seems to me strange to say the least that the French Government
at a time when it had not completed its 1974 series of tests and did not
know that the weather conditions of the winter in the southern hemisphere
would permit them to be carried out, should pre-empt itself from testing
again in the atmosphere, even if the 1974 series should, apart from the
effects of weather, prove inadequate for the purposes which prompted France
to undertake them. A conclusion that France has made such an undertaking
without any reservation of any kind, such, for example, as is found in the
Moscow Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space
and Under Water, to which France is not a party, is quite remarkable and
difficult to accept.
It is noticeable that the communique itself as sent to Australia makes no
express reference to atmospheric testing. The message sent by the French
Embassy in Wellington to the Government of New Zealand with respect to the
communique, drew a conclusion not expressed in the communique itself.
Somewhat guardedly the Embassy added the words "in the normal course of
events" which tended to weaken the inference which apparently the Embassy
had drawn from the terms of the communique.
In this connection it may be observed that both the Government of Australia
and the Government of New Zealand in responding to the communique of 8 June
1974, virtually challenged France to give to them an express undertaking
that no further tests would be carried out in the South Pacific. There has
been ample opportunity for France to have unequivocally made such a
statement: but no such express statement has been communicated to either
Applicant. Without entering further into detailed criticism of the finding
of fact of which personally I am not convinced, it is enough to say that
there is, in my opinion, much room for grave doubt as to the correctness of
the conclusion which the Court has drawn. That circumstance underlines the
essential need to have heard argument before decision.
There is a further substantial matter to be mentioned in this connection.
The Court has purported to decide that France has assumed an international
obligation of which Australia has the benefit. It is this [p 450]
circumstance which the Judgment holds has resolved the dispute between
France and Australia and caused it to cease to exist. But the Court has not
decided its jurisdiction as between these Parties. France has steadfastly
maintained that the Court has no jurisdiction. The Court's finding that
France has entered into an international obligation is intended to be a
finding binding both Parties to the litigation, France as well as Australia.
But I am at a loss to understand how France can be bound by the finding if
the Court has not declared its jurisdiction in the matter.
The Judgment seems to call in aid what it calls an inherent jurisdiction to
provide for the orderly settlement of all matters in dispute, to ensure the
observance of the inherent limitations on the exercise of the judicial
function of the Court and to maintain its judicial character. I do not wish
to enter into a discussion of this very broadly stated and, as I think,
far-reaching claim to jurisdiction. Let it be supposed that the so-called
inherent or incidental jurisdiction as some writers call it would enable the
Court to decide that it had no jurisdiction or that an application was not
admissible where this could be done without deciding matters of fact; where
the matter could be decided upon the face of an admitted or uncontested
document. In such a case the Court may be able to find a lack of
jurisdiction or of admissibility. But that is not the position here. The
Judgment does not merely deny the Applicant a hearing of the Application
because of the disappearance of the Applicant's case. The Court purports to
decide a matter of fact whereby to bind France to an international
obligation. Assuming without deciding that the claim to juris-diction made
in paragraph 23 of the Judgment is properly made, that jurisdiction could
not extend in my opinion to give the Court authority to bind France, which
has stoutly and consistently denied that it has consented to the
jurisdiction.
It may well be that even if the Court decided that it has jurisdiction under
Article 36 (I) and the General Act to settle a dispute between Australia and
France as to their respective rights in relation to nuclear testing, the
consent of France given through Article 17 may not extend to include or
involve a consent by France to the determination by the Court that France
had accepted a binding obligation to the international community not to test
in the atmosphere again, a fact not involved in settling the dispute as to
their respective rights. But I have no need to examine that question for the
Court has not even decided that it has jurisdiction to settle the dispute
between the Parties. I am unable to accept that France is bound by the
Court's finding of fact that it has accepted an internationally binding
obligation not again to test in the atmosphere of the South Pacific. This is
an additional reason why the dispute between Australia and France should not
be regarded as resolved.
For all these reasons, I am unable to accept the conclusion that, by [p 451]
reason of the communique of 8 June 1974 and the statements recited in the
Judgment, the dispute between Australia and France has been resolved and
has ceased to exist.
Could the Court Properly Make an Order?
I would now consider the other reason for which a case may become "without
object", namely that in the existing circumstances no judicial Order capable
of effect between the Parties could be made.
Since the Application was lodged, France has conducted two series of
atmospheric nuclear tests in the South Pacific Ocean, one in 1973 and
another in 1974. It has done so in direct breach of this Court's indication
of interim measures. It would seem to be incontestable that as a result
thereof radio-active matter, "fall-out", has entered the Australian
territory and environment. From the information conveyed by the Applicant
to the Court during the hearings, it seems that the Applicant has monitored
its land and atmosphere following upon such nuclear tests in order to
determine whether they were followed by fall-out and in order to determine
the precise extent of such fall-out. I have already indicated that these
were future tests within the meaning of the Application.
Australia has not yet been required to make its final submissions in this
case. These two series of tests and their consequences were clearly not
events for which the Applicant had to make provision in its Application. It
seems to me, therefore, that in the situation that now obtains nothing said
in or omitted from the Application or in its presentation to the Court could
preclude the Applicant from asking in its final submissions for some relief
appropriate to the fact that these nuclear tests, carried out in breach of
the Court's indication of interim measures, caused harm to Australia and its
population and indeed involved the expenditure of money; for though perhaps
a minor matter, it can scarcely be doubted that the monitoring to determine
fall-out, if any, and its extent has involved considerable expenditure,
expenditure that would appear to me to be causally related to the explosions
carried out by France during the 1973 and 1974 series of tests.
It is observable that the request in the Application is not for a
declaration that tests which have already been carried out prior to 9 May
1973 were unlawful, though of course in the nature of things a declaration
that further tests after 9 May 1973 would be unlawful would carry in this
case the conclusion that those which had already taken place were also
unlawful. In the presentation of its case the Applicant said that "at the
present time" it did not seek any compensatory Order in the nature of
damages. In truth such a claim for damages made in the Application [p 452]
would not easily have been seen to be consistent with the nature of the
claims actually made in the Application. They, as I have pointed out, are
for a declaration of right and an Order to prevent any tests occurring after
9 May 1973; hence the request for the indication of interim measures made
immediately upon the lodging of the Application. Any claim to be paid
damages if made in the Application itself would in the circumstances
necessarily have been a claim in respect of past tests carried out by
France, which were not directly embraced in the claim made in the
Application. Further, a claim for damages could scarcely relate to tests
which might yet, as of 9 May 1973, be carried out by France. If the
Applicant were to succeed there would be none, for the Applicant seeks to
restrain them as from the date of the lodgment of the Application. Further,
the case was not one in which the Applicant could ask for compensation as a
substitute for an injunction, that is to say on the assumption that the
Applicant succeeded in obtaining a declaration and failed to get an Order
for injunction.
A claim, therefore, by the Applicant in its final submissions for relief
appropriate to the events of 1973 and 1974 would not be inconsistent with
what has been said so far. Indeed, such a claim would be related to the
dispute on which the Application was founded. Assuming the Applicant to be
right in its contentions, the tests of 1973 and 1974 and their consequences
in Australia constitute a breach of Australia's rights. Thus, as I said
earlier, it could not properly be said that a declaration made now in
conformity with the Application, would be doing no more than affording a
reason for an Order of injunction. A claim for relief related to what has
occurred since the Application was lodged and to the consequences of the
tests of 1973 and 1974 would not transform the dispute which existed at the
date of the lodgment of the Application into another dispute different in
character: nor would it be a profound transformation of the character of the
case by amendment, to use the expression of the Court in the Societe
Commerciale de Belgique case (P.C.J.J., Series A/B, No. 78, at p. 173).
Rather it would attract the observations of the Court in that case to the
effect that the liberty accorded to the parties to amend their submissions
up to the end of the oral proceedings must be construed reasonably but
without infringing the terms of the Statute or the Rules of Court (op.
cit.).
This ability of the Applicant to include in its final submissions to the
Court a claim for relief of the kind I have suggested indicates that a
declaration by the Court in terms of the Application, but made more specific
by a reference to those nuclear tests which took place in 1973 and 1974 and
their consequences, is capable of affecting the legal interests or
relationship of the Parties. It could not properly, in my opinion, be said
that to make such a declaration would be an exercise outside the judicial
function or that it would be purposeless. It would be dealing with a matter
[p 453] of substance. The Court, in my opinion, could also make an Order for
some form of compensatory relief if such an Order were sought. Indeed, if
the Applicant succeeded on the merits of its claim, some Order with respect
to the conduct and consequences of the tests of 1973 and 1974 might well be
expected.
In any case, and quite apart from any question of any additional claim for
relief contained in the Applicant's final submission, should the Applicant
succeed on the merits of its Application in respect of any of the first
three bases of its claim, a declaration by the Court in relation to that
basis or those bases of claim, with possibly a specific reference to the
results in Australia of the carrying out by France of the 1973 and 1974
series of tests, would, in my opinion, be properly made within the scope of
the Court's judicial function. Quite apart from any damage caused by the
1973-1974 series of tests, such a declaration could found subsequent claims
by Australia upon France in respect of past testing by France of nuclear
weapons in the South Pacific.
It was said by the Court in the case of the Northern Cameroons (supra):
"The function of the Court is to state the law, but it may pronounce
judgment only in connection with concrete cases where there exists at the
time of the adjudication an actual controversy involving a conflict of legal
interests between the parties. The Court's judgment must have some practical
consequence in the sense that it can affect existing legal rights or
obligations of the parties, thus removing uncertainty from their legal
relations." (I.C.J. Reports 1963, pp. 33-34.)
The Court also said:
"Moreover the Court observes that if in a declaratory judgment it expounds a
rule of customary law or interprets a treaty which remains in force, its
judgment has a continuing applicability."
Success of the Applicant in respect of one or more of the first three bases
of its claim would establish that it had been in dispute with France as to
their respective legal rights, that its claims of right to which the Court's
declaration related was or were valid, and that France had been in breach of
that right or those rights. To declare this situation, the Judgment, in my
opinion, would satisfy what the Court said in the quotations I have made.
The judgment would be stating the law in connection with a concrete case,
where the Parties remained in dispute as to their respective legal rights.
The Court's declaration would affect their existing legal rights and
obligations. In addition, the Court would be expounding a rule of customary
law in relation to the territorial sovereignty of the Applicant as a State
in the international community.
A judgment affirming the Court's jurisdiction would involve a decision [p
454] that the General Act remained in force and a decision that the Parties
were in dispute as to their respective rights within the meaning of Article
17 of the General Act. Thus an interpretation would be placed on Article 17.
Therefore a declaration could properly be made and would have legal effect.
If the Applicant were also to succeed upon the fourth basis of its claim,
again the Court would be stating the law in a concrete case where the
Parties remained in dispute, and it would be expounding a rule of customary
law, and the other comments I have made would be applicable.
These results would follow, in my opinion, even if the Court, in its
discretion, refrained from making any immediate Order of injunction. It
might do so because it was satisfied that France would not again explode
nuclear devices or test weapons in the atmosphere of the South Pacific,
either because the Court was satisfied that France had already resolved not
to do so, or because the Court was satisfied that France would respect the
declaration of right which the Court had made in the matter. But the Court,
if it saw fit, could in my opinion, with legal propriety, make an Order for
injunction nonetheless. It is a matter of discretion for a court whether or
not to make an order of injunction where it is satisfied that without the
making of the order the conduct sought to be restrained will not occur.
Lastly, for the course the Judgment takes there is no precedent. The case of
the Northern Cameroons (supra), in my opinion, cannot be called in aid to
justify the Judgment. In that case, what the Applicant claimed in its
Application, the Court at the time of giving Judgment held that it could not
do. The Court was asked to declare the breach of a trusteeship agreement
which had ceased to be operative within a day or so of the lodging of the
Application. The Court held that a declaration of its breach during the
period of its operation could have no effect whatever between the Parties,
there being no claim for compensation for the breach.
Judge Sir Gerald Fitzmaurice, in his separate opinion, expressed the view
that from the outset of the case there was no justiciable dispute. Sir
Gerald held that from the terms of the Application it was clear that the
Court was not able to make an Order in the case affecting the legal
relations of the Parties; therefore, in conformity with the definition he
adopted in the case, there was no relevant dispute. He expressed himself at
page 111 of his opinion (I.C.J. Reports 1963) in terms which I have already
quoted.
The contrast between the situation of the present case and that of the case
of the Northern Cameroons is apparent. Even for those who accept the
validity of the Court's decision in the case of the Northern Cameroons, that
case affords, in my opinion, no support for the present Judgment.
In my opinion, there is no discretion in this Court to refuse to decide a
dispute submitted to it which it has jurisdiction to decide. Article 38 of
[p 455] its Statute seems to lay upon this Court a duty to decide. The case
of Northern Cameroons at best covers a very narrow field in which no Order
at all can properly be made by the Court.
Of course, if the dispute upon which it is sought to found jurisdiction has
been resolved, no Order settling it can be made. Thus, the Judgment in this
case can only be justified if the dispute between the Parties as to their
legal rights has been resolved and ceased to exist.
However, for all the reasons I have expressed, I can find no ground upon
which it can properly be held that the dispute between the Parties as to
their respective rights has been resolved or has ceased to exist, or that
the Court could not, in the circumstances of the case, properly make a
judicial Order having effect between the Parties. The Application, in my
opinion, has not become "without object".
(Signed) G. E. Barwick. |
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