20 December 1974

 

General List No. 58

 
     

international Court of Justice

     
 

Nuclear Tests

 
     

Australia

 

v. 

France

     
     
 

Judgment

 
     
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BEFORE:

President: Manfred Lachs;
Judges: Forster, Gros, Bengzon, Petren, Onyeama, Dillard , Ignacio-Pinto, De Castro, Morozov, Jimenez de Arechaga, Sir Humhrey Waldock, Nagendra Singh, Ruda;
Judge ad hoc: Sir Garfield Barwick

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1974.12.20_nuclear_tests1.htm
   
Citation: Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253 (Dec. 20)
   
Represented By: Australia: Mr. P. Brazil, of the Australian Bar, Officer of the Australian Attorney-General's Department, as Agent;
H.E. Mr. F. J. Blakeney, C.B.E., Ambassador of Australia, as Co-Agent;
Senator the Honourable Lionel Murphy, Q.C., Attorney-General of Australia;
Mr. M. H. Byers, Q.C., Solicitor-General of Australia;
Mr. E. Lauterpacht, Q.C., of the English Bar, Lecturer in the University of Cambridge;
Professor D. P. O'Connell, of the English, Australian and New Zealand Bars, Chichele Professor of Public International Law in the University of Oxford, as Counsel;
Professor H. Messel, Head of School of Physics, University of Sydney;
Mr. D. J. Stevens, Director, Australian Radiation Laboratory;
Mr. H. Burmester, of the Australian Bar, Officer of the Attorney-General's Department;
Mr. F. M. Douglas, of the Australian Bar, Officer of the Attorney-General's Department;
Mr: J. F. Browne, of the Australian Bar, Officer of the Department of Foreign Affairs;
Mr. C. D. Mackenzie, of the Australian Bar, Third Secretary, Australian Embassy, The Hague, as advisers.
 
     
 
 
     
 

[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 Chorzów (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'être.

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'être, 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-à-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.
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***

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."
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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.

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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.
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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.

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FN1Communicated to the French Government, by decision of the Court, on 29 March 1974.
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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.

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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.
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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.

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FN1 This is one of the documents which the Court, on 13 December 1974, decided to publish in the Pleadings, Oral Arguments, Documents volume.
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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.

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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.
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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-à-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.

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FN1 Right of Passage over Indian Territory, I.C.J. Reports 1960, p. 32.
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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.]

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FN2 Ch. De Visscher, Aspects recents du droit procedural de la Cour internationale de Justice, Paris, 1966, p. 54.
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[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 Chorzów, 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'être. 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.

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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 etrangères explained:

"... alors que, dans le système conçu 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 règlement des differends au même titre que la procedure d'arbitrage, l'Acte general, au contraire, ignore complètement 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.

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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.


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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.

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FN1 I.C.J. Reports 1973, p. 348.
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[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.


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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.

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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 règle contraire de l'arrêt 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.

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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.

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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.

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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.
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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 à prendre position sur un problème purement politique et militaire. Ce n'est, selon le Gouvernement français, ni son rôle 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.

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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-à-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.

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FN1 Second Phase, I.C.J. Reports 1970, at p. 32. 121
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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-à-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-à-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

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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.
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[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.

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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.
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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.

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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.
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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 etrangères, 1931, p. 17.) FN1

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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.
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(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.

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FN1 Mr. Entezam was perhaps using the word "validity" in the sense of "full efficacy".
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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).

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FN1 It held that the Hispano-Belgian treaty was still in force, because of the applicability to it of Article 37 of the Statute.
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[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.

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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 français de droit international, 1962, pp. 321-323). It should be observed that the data given by this writer are somewhat incomplete.
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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

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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.
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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.

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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).
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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."

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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.
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(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-à-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.

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FN1 Though various hypotheses have been put forward to explain this apparently contradictory conduct.
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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).
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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.
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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).
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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.
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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".

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FN2 Mazeaud, Traite theorique et pratique de la responsabilite civile, 3rd ed., 1938, Vol. I, pp. 647 f., para. 597.
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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:

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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 caractère artificiel de la theorie de l'abus de droit en droit international public, Neuchâtel 1958, p. 121).
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"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.)

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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 für 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.
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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.

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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.
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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.

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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.
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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.

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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.
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(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-à-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-à-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-à-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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