| |
[p.457]
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 New Zealand to the Netherlands transmitted to the
Registrar an Application instituting proceedings against France, in respect
of a dispute concerning the legality of atmospheric nuclear tests conducted
by the French Government in the South Pacific region. In order to found the
jurisdiction of the Court, the Application relied on Article 36, paragraph
1, and Article 37 of the Statute of the Court and Article 17 of the General
Act for the Pacific Settlement of International Disputes done at Geneva on
26 September 1928, and, in the alternative, on Article 36, paragraphs 2 and
5, 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.
3. Pursuant to Article 31, paragraph 2, of the Statute of the Court, the
Government of New Zealand 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; 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 14 May 1973, the Agent of New Zealand filed in the Registry of the
Court a request for the indication of interim measures of protection under
[p 459]Article 33 of the 1928 General Act for the Pacific Settlement of
International Disputes and Articles 41 and 48 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 New Zealand and 21 December 1973
as the time-limit for a Counter-Memorial by the French Government. The
Co-Agent of New Zealand having requested an extension to 2 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 6 September
1973, to 2 November 1973 for the Memorial and 22 March 1974 for the
Counter-Memorial. The Memorial of the Government of New Zealand 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 23 March 1974, the day following the expiration of the time-limit
fixed for the Counter-Memorial of the French Government.
7. On 18 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, Australia, Fiji and Peru requested that the
pleadings and annexed documents should be made available to them 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 10 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 Professor R. Q. Quentin-Baxter, Agent of New
Zealand, and Dr. A. M. Finlay and Mr. R. C. Savage, counsel, on behalf of
the Government of New Zealand. 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 New Zealand:[p 460]
in the Application:
"New Zealand asks the Court to adjudge and declare: That the conduct by the
French Government of nuclear tests in the South Pacific region that give
rise to radio-active fall-out constitutes a violation of New Zealand's
rights under international law, and that these rights will be violated by
any further such tests."
in the Memorial:
". . . the Government of New Zealand submits to the Court that it is
entitled to a declaration and judgment that--
(a) the Court has jurisdiction to entertain the Application filed by New
Zealand and to deal with the merits of the dispute; and
(b) the Application is admissible".
12. At the close of the oral proceedings, the following written submissions
were filed in the Registry of the Court on behalf of the Government of New
Zealand:
"The Government of New Zealand is entitled to a declaration and judgment
that:
(a) the Court has jurisdiction to entertain the Application filed by New
Zealand and to deal with the merits of the dispute; and
(b) the Application is admissible."
13. No pleadings were filed by the French Government, and it was not
represented at the oral proceedings; no formal submissions were therefore
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
Netherlands and the document annexed thereto. The said letter stated in
particular that:
". . . the Government of the [French] Republic, as it has notified the
Government of New Zealand, considers that the Court is manifestly not
competent in this case and that it cannot accept its jurisdiction".
***
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 24 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 [p 461] 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 New
Zealand and the French Government concerning the legality of atmospheric
nuclear tests conducted by the latter Government in the South Pacific
region. 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:
"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 2,500 nautical miles from
the nearest point of the North Island of New Zealand and approximately 1,050
nautical miles from the nearest point of the [p 462] Cook Islands, a
self-governing State linked in free association with New Zealand. 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 New Zealand that the French atmospheric tests have caused some
fall-out of this kind to be deposited, inter alia, on New Zealand 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 any fall-out on New Zealand territory has never involved any danger
to the health of the population of New Zealand. 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 21 September 1973 and 1 November 1974, the Government of
New Zealand 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 on New Zealand 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 New
Zealand territory, analysis of samples of which, according to the New
Zealand Government, established conclusively the presence of fall-out from
these tests, and that it was "the view of the New Zealand Government that
there has been a clear breach by the French Government of the Court's Order
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 region. 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.
***[p 463]
21. The Application founds the jurisdiction of the Court on the following
basis:
"(a) Articles 36 (1) and 37 of the Statute of the Court and Article 17 of
the General Act for the Pacific Settlement of International Disputes, done
at Geneva on 26 September 1928; and, in the alternative,
(b) Article 36 (2) and (5) of the Statute of the Court."
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 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 therefore 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 New Zealand. 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 [p 464]
"that the conduct by the French Government of nuclear tests in the South
Pacific region that give rise to radio-active fall-out constitutes a
violation of New Zealand's rights under international law"--the alleged
rights so violated being enumerated in the Application--and "that these
rights will be violated by any further such tests".
26. The diplomatic correspondence between New Zealand and France over the
past ten years reveals New Zealand's preoccupation with French nuclear tests
in the atmosphere in the South Pacific region, and indicates that its
objective was to bring about their termination. Thus in a letter from the
Prime Minister of New Zealand to the French Ambassador in Wellington dated
19 December 1972, the Prime Minister said:
"My Government is committed to working through all possible means to bring
the tests to an end, and we shall not hesitate to use the channels available
to us in concert as appropriate with like-minded countries. It is my hope,
however, Mr. Ambassador, that you will convey to your Government while in
Paris my earnest desire to see this one element of serious contention
removed from what is in other respects an excellent relationship between our
countries. For my part, I see no other way than a halt to further testing."
Furthermore in the Application of New Zealand, it is stated, in connection
with discussions held in April 1973 between the two Governments that:
"Unfortunately, however, they [the discussions] did not lead to agreement.
In particular, the French Government did not feel able to give the Deputy
Prime Minister of New Zealand the assurance which he sought, namely that the
French programme of atmospheric nuclear testing in the South Pacific had
come to an end."
And in a letter to the President of the French Republic by the Prime
Minister of New Zealand dated 4 May 1973, following those discussions, the
Prime Minister said:
"Since France has not agreed to our request that nuclear weapons testing in
the atmosphere of the South Pacific be brought to an end, and since the
French Government does not accept New Zealand's view that these tests are
unlawful, the New Zealand Government sees no alternative to its proceeding
with the submission of its dispute with France to the International Court of
Justice.
I stress again that we see this as the one question at issue between us, and
that our efforts are solely directed at removing it from contention."
27. Further light is thrown on the nature of the New Zealand claim by the
reaction of New Zealand, both through its successive Prime Ministers and
through its representatives before the Court, to the state-[p 465] ments,
referred to in paragraph 20 above, made on behalf of France and relating to
nuclear tests in the South Pacific region. In the course of the oral
proceedings, the Attorney-General of New Zealand outlined the history of the
dispute, and included in this review mention of diplomatic correspondence
exchanged between 10 June and 1 July 1974 by France and New Zealand, which
was communicated to the Court on 3 July by the Applicant, and of a
communique issued by the Office of the President of the French Republic on 8
June 1974. The Attorney-General's comments on these documents, which are
thus part of the record in the case, indicated that they 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, when referring to a Note of 10 June
1974 from the French Embassy in Wellington to the New Zealand Ministry of
Foreign Affairs (quoted in paragraph 36 below) he stated: "New Zealand has
not been given anything in the nature of an unqualified assurance that 1974
will see the end of atmospheric nuclear testing in the South Pacific". The
Attorney-General continued:
"On 11 June the Prime Minister of New Zealand, Mr. Kirk, asked the French
Ambassador in Wellington to convey a letter to the President of France.
Copies of that letter have been filed with the Registry. It urged among
other things that the President should, even at that time, weigh the
implications of any further atmospheric testing in the Pacific and resolve
to put an end to an activity which has been the source of grave anxiety to
the people of the Pacific region for more than a decade." (Hearing of 10
July 1974.)
It is clear from these statements, read in the light of the diplomatic
correspondence referred to above, that if the Note of 10 June 1974 could
have been construed by New Zealand as conveying "an unqualified assurance
that 1974 [would] see the end of atmospheric nuclear testing" by France "in
the South Pacific", or if the President of the Republic, following the
letter of 11 June 1974, did "resolve to put an end to [that] activity", the
applicant Government would have regarded its objective as having been
achieved.
28. Subsequently, on 1 November 1974, the Prime Minister of New Zealand, Mr.
W. E. Rowling, commented in a public statement on the indications given by
France of its intention to put an end to atmospheric tests in the Pacific,
and said:
"It should . . . be clearly understood that nothing said by the French
Government, whether to New Zealand or to the international community at
large, has amounted to an assurance that there will [p 466] be no further
atmospheric nuclear tests in the South Pacific. The option of further
atmospheric tests has been left open. Until we have an assurance that
nuclear testing of this kind is finished for good, the dispute between New
Zealand and France persists . . ." (Emphasis added.)
Without commenting for the moment on the Prime Minister's interpretation of
the French statements, the Court would observe that the passage italicized
above clearly implies that an assurance that atmospheric testing is
"finished for good" would, in the view of New Zealand, bring the dispute to
an end.
29. The type of tests to which the proceedings relate is described in the
Application as "nuclear tests in the South Pacific region that gave rise to
radio-active fall-out", the type of testing contemplated not being
specified. However, New Zealand's case has been argued mainly in relation to
atmospheric tests; and the statements quoted in paragraphs 26, 27 and 28
above, particularly those of successive Prime Ministers of New Zealand, of
11 June and 1 November 1974, show that an assurance "that nuclear testing of
this kind", that is to say, testing in the atmosphere, "is finished for
good" would meet the object of the New Zealand claim. The Court therefore
considers that, for purposes of the Application, the New Zealand claim is to
be interpreted as applying only to atmospheric tests, not to any other form
of testing, and as applying only to atmospheric tests so conducted as to
give rise to radio-active fall-out on New Zealand territory.
30. In the light of the above statements, it is essential to consider
whether the Government of New Zealand 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 [p 467]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" (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.)
31. In the circumstances of the present case, as already mentioned, the
Court must ascertain the true subject of the dispute, the object and purpose
of the claim (cf. Interhandel, Judgment, I.C.J. Reports 1959, p. 19; Right
of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports 1960, pp.
33-34). In doing so it must take into account not only the submission, but
the Application as a whole, the arguments of the Applicant before the Court,
and other documents referred to above. If these clearly define the object of
the claim, the interpretation of the submission must necessarily be
affected. The Court is asked to adjudge and declare that French atmospheric
nuclear tests are illegal, but at the same time it is requested to adjudge
and declare that the rights of New Zealand "will be violated by any further
such tests". The Application thus contains a submission requesting a
definition of the rights and obligations of the Parties. However, it is
clear that the fons et origo of the dispute 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. This is indeed confirmed by the various
statements made by the New Zealand Government, and in particular by the
statement made before the Court in the oral proceedings, on 10 July 1974,
when, after referring to New Zealand's submission, the Attorney-General
stated that "My Government seeks a halt to a hazardous and unlawful
activity". Thus the dispute brought before the Court cannot be separated
from the situation in which it has arisen, and from further developments
which may have affected it.
32. 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 subsequent [p 468]
diplomatic correspondence, 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.
33. At the hearing of 10 July 1974 the Court was presented by counsel for
New Zealand with an interpretation of certain expressions of intention
communicated to the New Zealand Government by the French Government and the
French President. In particular he referred to a communique of 8 June 1974
(paragraph 35 below) and a diplomatic Note of 10 June 1974 (paragraph 36
below), and after quoting from that Note, he said:
"I emphasize two points: first, the most France is offering is that in her
own time she will cease to disregard an existing Order of the Court; and
second, even that offer is qualified by the phrase 'in the normal course of
events'. New Zealand has not been given anything in the nature of an
unqualified assurance that 1974 will see the end of atmospheric nuclear
testing in the South Pacific."
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, are known to the New Zealand
Government, and were commented on by its Prime Minister in his statement of
1 November 1974. It will clearly be necessary to consider all these
statements, both those drawn to the Court's attention in July 1974 and those
subsequently made.
34. 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 statements by the French authorities made prior to that date,
submitted the documents containing them and presented an interpretation of
their character, touching particularly upon the [p 469] question whether
they contained a firm assurance. Thus both the statements and the New
Zealand interpretation of them 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 pattem, 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.
35. 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."
36. The second is contained in a Note of 10 June 1974 from the French
Embassy in Wellington to the New Zealand Ministry of Foreign Affairs:
"It should . . . be pointed out that the decision taken by the Office of the
President of the French Republic to have the opening of the nuclear test
series preceded by a press communique represents a departure from the
practice of previous years. This procedure has been chosen in view of the
fact that a new element has intervened in the development of the programme
for perfecting the French deterrent force. This new element is as follows:
France, at the point which has been reached in the execution of its
programme of defence [p 470] by nuclear means, will be in a position to move
to the stage of underground firings as soon as the test series planned for
this summer is completed.
Thus the atmospheric tests which will be carried out shortly will, in the
normal course of events, be the last of this type.
The French authorities express the hope that the New Zealand Government will
find this information of some interest and will wish to take it into
consideration."
37. As indicated by counsel for the Applicant at the hearing of 10 July
1974, the reaction of the New Zealand Prime Minister to this second
statement was expressed in a letter to the President of the French Republic
dated 11 June 1974, from which the following are two extracts:
". . . I have noted that the terms of the announcement do not represent an
unqualified renunciation of atmospheric testing for the future."
"I would hope that even at this stage you would be prepared to weigh the
implications of any further atmospheric testing in the Pacific and [resolve
to put an end to this activity which has been the source of grave anxiety to
the people in the Pacific region for more than a decade."
Thus the phrase "in the normal course of events" was regarded by New Zealand
as qualifying the statement made, so that it did not meet the expectations
of the Applicant, which evidently regarded those words as a form of escape
clause. This is clear from the observations of counsel for New Zealand at
the hearing of 10 July 1974. In a Note of 17 June 1974, the New Zealand
Embassy in Paris stated that it had good reason to believe that France had
carried out an atmospheric nuclear test on 16 June and made this further
comment:
"The announcement that France will proceed to underground tests in 1975,
while presenting a new development, does not affect New Zealand's
fundamental opposition to all nuclear testing, nor does it in any way reduce
New Zealand's opposition to the atmospheric tests set down for this year:
the more so since the French Government is unable to give firm assurances
that no atmospheric testing will be undertaken after 1974."
38. The third French statement is contained in a reply made on 1 July 1974
by the President of the Republic to the New Zealand Prime Minister's letter
of 11 June:
"In present circumstances, it is at least gratifying for me to note the
positive reaction in your letter to the announcement in the communique of 8
June 1974 that we are going over to underground [p 471] There is in this a
new element whose importance will not, I trust, escape the New Zealand
Government."
39. These three statements were all drawn to the notice of the Court by the
Applicant at the time of the oral proceedings. As already indicated, the
Court will also have to consider the relevant statements subsequently made
by the French authorities: 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.
40. 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 . . ."
41. 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.
42. 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."
43. 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 Note of 10 June 1974 from the French Embassy in
Wellington to the Ministry of Foreign Affairs of New Zealand (paragraph 36
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 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. [p 472]
44. In view of the foregoing, the Court finds that the communique issued on
8 June 1974 (paragraph 35 above), the French Embassy's Note of 10 June 1974
(paragraph 36 above) and the President's letter of 1 July 1974 (paragraph
38) conveyed to New Zealand the announcement that France, following the
conclusion of the 1974 series of tests, would cease the conduct of
atmospheric nuclear tests. Special attention is drawn to the hope expressed
in the Note of 10 June 1974 "that the New Zealand Government will find this
information of some interest and will wish to take it into consideration",
and the reference in that Note and in the letter of 1 July 1974 to "a new
element" whose importance is urged upon the New Zealand Government. The
Court must consider in particular the President's statement of 25 July 1974
(paragraph 40 above) followed by the Defence Minister's statement of 11
October 1974 (paragraph 43). 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]".
***
45. 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.
46. 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.
47. 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 [p 473]
interpretation of the act. When States make statements by which their
freedom of action is to be limited, a restrictive interpretation is called
for.
48. 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 question 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 intention 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).
49. 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.
***
50. Having examined the legal principles involved, the Court will now turn
to the particular statements made by the French Government. The Government
of New Zealand has made known to the Court its own interpretation of some of
these statements at the oral proceedings (paragraph 27 above). As to
subsequent statements, reference may be made to what was said by the Prime
Minister of New Zealand on 1 November 1974 (paragraph 28 above). It will be
observed that New Zealand has recognized the possibility of the dispute
being resolved by a unilateral declaration, of the kind specified above, on
the part of France. In the public statement of 1 November 1974, it is stated
that "Until we have an assurance that nuclear testing of this kind is
finished for good, the dispute between New Zealand and France persists".
This is based on the view [p 474] that "the option of further atmospheric
tests has been left open". 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.
51. 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.
52. The unilateral statements of the French authorities were made outside
the Court, publicly and erga omnes, even if some of them were communicated
to the Government of New Zealand.
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.
53. 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 framework 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 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 that its nuclear experi-[p 475] ments do not contravene any
subsisting provision 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.
54. The Court will now confront the commitment entered into by France with
the claim advanced by the Applicant. Though the latter has formally
requested from the Court a finding on the rights and obligations of the
Parties, it has throughout the dispute maintained as its final objective the
termination of the tests. It has sought from France an assurance that the
French programme of atmospheric nuclear testing would come to an end. While
expressing its opposition to the 1974 tests, the Government of New Zealand
made specific reference to an assurance that "1974 will see the end of
atmospheric nuclear testing in the South Pacific" (paragraph 33 above). On
more than one occasion it has indicated that it would be ready to accept
such an assurance. Since the Court now finds that a commitment in this
respect has been entered into by France, there is no occasion for a
pronouncements in respect of rights and obligations of the Parties
concerning the past--which in other circumstances the Court would be
entitled and even obliged to make--whatever the date by reference to which
such pronouncement might be made.
55. 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.
56. This conclusion is not affected by a reference made by the New Zealand
Government, in successive diplomatic Notes to the French Government from
1966 to 1974, to a formal reservation of "the right to hold the French
Government responsible for any damage or losses received by New Zealand . .
. as a result of any nuclear weapons tests conducted by France"; for no
mention of any request for damages is made in the Application, and at the
public hearing of 10 July 1974 the Attorney-General of New Zealand
specifically stated: "My Government seeks a halt to a hazardous and unlawful
activity, and not compensation for its continuance." The Court therefore
finds that no question of damages in respect of tests already conducted
arises in the present case.
57. It must be assumed that had New Zealand received an assurance, on one of
the occasions when this was requested, which, in its interpretation, would
have been satisfactory, it would have considered the dispute as concluded
and would have discontinued the proceedings in [p 476] 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
Chorzow (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.
58. 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
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 final
objective which the Applicant has maintained throughout 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.
59. 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 region, 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 New Zealand no longer has any object. It follows that any
further finding would have no raison d'être.[p 477]
60. 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.
61. The Court has in the past 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.
62. Thus the Court finds that no further pronouncement is required 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.
***
63. 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 constitute
by itself an obstacle to the presentation of such a request.
***
64. 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 New Zealand 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.
***
65. For these reasons,
The Court,
by nine votes to six,
finds that the claim of New Zealand 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
New Zealand and the Government of the French Republic, respectively.
(Signed) Manfred Lachs,
President.
(Signed) S. Aquarone,
Registrar.
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 479]
Separate opinion of judge Forster
[Translation ]
I have voted in favour of the Judgment which has brought to an end the
proceedings instituted against France by New Zealand, just as I voted for
the Judgment which likewise terminated the proceedings brought at the same
time by Australia on account of France's nuclear tests at Mururoa, a French
possession in the Pacific.
To the Judgment in the case brought by Australia against France I appended a
separate opinion which is also applicable, mutatis mutandis, to the present
Judgment, delivered in New Zealand's case against France.
(Signed) I. Forster.
[p 480]
Separate opinion of judge Gros
[Translation ]
As is shown by the texts of the two Judgments, one in the Australian and the
other in the New Zealand case, one is modelled on the other, the cases were
examined, pleaded and deliberated upon together; the Applications
instituting proceedings were filed on the same day and the steps preparatory
to the judicial proceedings had been exactly parallel. Having been of the
opinion that the two cases ought to have been joined (Order of 22 June 1973,
I.C.J. Reports 1973, p. 149) I would refer to my opinion on the Judgment
concerning the Government of the Commonwealth.
However, part of that opinion deals with the conduct of the Applicant in
relation to the nuclear tests and some brief indication should be given to
show how the attitude of the New Zealand Government was analogous to that of
the Australian Government.
1. It is sufficient to read the series of diplomatic Notes addressed by the
Government of New Zealand to the French Government between 14 March 1963 and
the end of 1972 (Application, Ann. III, pp. 22-62) in which the argument
that the French tests were unlawful was at no time put forward by New
Zealand as justifying a request that the French tests be halted. The form of
words used for the protests is always based on anxieties, never on a right.
Thus, as late as 29 March 1972, a Note of the New Zealand Embassy in Paris
stated:
"If such testing of nuclear weapons is carried out during 1972, the New
Zealand Government will expect the French Government once again to make
every effort to minimize potential risks and to ensure that all explosions
take place only in meteorological conditions which afford the greatest
possibility of eliminating the risk of dangerous fallout in inhabited areas.
The New Zealand Government reaffirms that it formally reserves the right to
hold the French Government responsible for any damage or losses incurred by
New Zealand, or the Pacific Islands for which New Zealand has a
responsibility, as a result of any nuclear weapons tests conducted by the
Government of France." (Ibid., pp. 58 and 60.)
Exactly the same form of words, "if such testing of nuclear weapons is
carried out" is to be found in the other New Zealand Notes (Note of 27 May
1966, Application, p. 42; Note of 5 June 1968, Application, p. 52; Note of 6
April 1970, Application, p. 54; Note of 14 May 1971, Application, p. 56).
After elections at the end of 1972 in which, as in Australia, the Labour [p
481] Party obtained a majority, the policy was modified and the conflict of
political interests with France was brought before the Court.
2. As for the differentiation of New Zealand's attitude as between its
direct allies and France or China, a few quotations will suffice.
The Prime Minister of New Zealand said in 1956:
"In the absence of any agreement among the major powers on the question of
the control and supervision of conventional armaments, the development of
this branch of the nuclear sciences must continue. Periodic tests are
essential to this workFN1."
------------------------------------------------------------------------------------------------------------
FN1 All the quotations are from the review published by the New Zealand
Ministry for Foreign Affairs, as reproduced in Nigel Roberts, New Zealand
and Nuclear Testing in the Pacific, 1972.
------------------------------------------------------------------------------------------------------------
Then a little before the first British thermonuclear bomb, in 1957, the
Prime Minister stated:
"If Britain were to call a halt now it would leave her uncertain in her
knowledge as to whether she did in fact possess adequate means of
retaliation should nuclear weapons be used against her or should she be
threatened with attack by this means. The United Kingdom understandably
wishes to have that knowledge."
At the same period the Government's policy on the subject was thus defined:
"First, this is one of the most serious problems that has ever faced the
world.
Second, the course being followed by Britain is the right course, and we
must continue to support her. Her aim is the security of the Commonwealth
and the free world and our safety lies in that security.
Third, we should and will press for assurances that nuclear tests will be
kept to a minimum, consistent with the defence of the free world.
Fourth, we are ready to support and to work for the complete banning of
nuclear tests when the other nations will do the same and conditionally on
their agreeing to an adequate system of international inspection. Surely
nothing could be fairer than that. The very safety of the free world is at
stake and we cannot afford to take risks."
After 1966 the emphasis was placed on the desirability of securing the
observance by all States of the restrictions provided for in the 1963
Treaty. The Prime Minister declared:
"I think it important that we get our priorities straight. The New Zealand
Government's primary objection to the continuation [p 482] of the French
testing programme—as it is to the development of nuclear weapons by
Communist China—is that it flies in the face of the clear international
trend in the last few years towards limiting the spread of weapons of mass
destruction. I have in mind such encouraging steps as the Partial Test Ban
Treaty of 1963, and this year's Non-Proliferation Treaty, and the prospects
that further specific measures such as a comprehensive ban on all testing
will again be taken up for serious study by the great powers. It is in this
context that the French determination to press ahead with their weapon
development programme seems to me mostly to be regretted."
3. For the rest, the principles to be applied to the so-called legal dispute
submitted by New Zealand to the Court are those which I have set forth in
connection with the Australian Application. There is nothing for the Court
to judge in this clash of political interests.
4. Paragraphs 29-35 of my opinon in the case brought by Australia, which I
had to devote to the premature disclosure by the Australian Prime Minister
of the Court's decision of 22 June 1973 and of the voting-figures, do not
concern the New Zealand case.
(Signed) A. Gros.
[p 483]
Separate opinion of judge Petren
[Translation ]
For the reasons which I have already expressed in the dissenting opinion
which I appended to the Order of 22 June 1973, I have always been of the
view that the present proceedings should have been joined to those in the
case concerning Nuclear Tests (Australia v. France). The Court having
rejected this proposal, it only remains for me to append to the present
Judgment a separate opinion similar to the one I have appended to the
Judgment delivered in the other case.
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. 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.
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. New Zealand'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 indicating interim measures of protection, deferred the
continuance of its examination of the questions of jurisdiction and
admissibility, concerning which it held, in one of the [p 484] consideranda
of the Order, that it was necessary to resolve them as soon as possible.
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 New
Zealand'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
suggestions that consideration of the admissibility of the Application
should be deferred to 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 New Zealand Government's Memorial and 21 December 1973 as the
time-limit for the filing of a Counter-Memorial by the French Government. An
Order which the President made on 6 September 1973 extended the time-limit
for the filing of the Memorial, at the request of the New Zealand
Government, to 2 November 1973 and the time-limit for the filing of a
Counter-Memorial by the French Government to 22 March 1974.
The circumstances in which the written proceedings on the preliminary
questions were thus prolonged until 22 March 1974 warrant several
observations. Thus, no contact on the subject of time-limits was sought with
the French Government before the first fixing of the time-limits, whereas
such contact was sought before their extension. The French Government then
replied that, having denied the Court's jurisdiction in the case, it was not
able to express any opinion. There is every reason to think that the French
Government, if it had been consulted at the time of the first fixing of
time-limits, would have given the same reply as it did two-and-a-half 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.
The only reason given by the Co-Agent of New Zealand for this request
consisted in references to the extension, in the other case, of the
time-limit for the filing of the Memorial of the Australian Government and
the Court's "presumed wish" to set common limits in both [p 485] cases. Thus
the extension of time-limits in the present case was but the consequence of
the extension of time-limits in the other case, a fact which casts a certain
reflection upon the soundness of the Court's decision to join the two cases.
In neither of them did the extensions appear to me justified, especially
when it was a matter of granting several months for the filing of
Counter-Memorials which the French Government had no intention of
presenting. But that is not all.
The Order of 6 September 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 6 September 1973 extending the time-limits in
the present case had not intervened, 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 6 September 1973 had prolonged the written proceedings in the
present case until 22 March 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, New Zealand
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 [p
486] take the present case before the Fisheries Jurisdiction cases.
Nevertheless, on 12 March 1974, a proposal in that sense was rejected by six
votes to two, with six 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 New Zealand'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 admissibility of
the Application may even be regarded as a precondition of the Court's
jurisdiction. In Article 8 of the 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 New Zealand 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 [p 487]
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 New Zealand'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 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 inter-national 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,[p 488] Limited (I.C.J. Reports 1970, 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 question
is whether such barriers existed at the time of the filing of the New
Zealand 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 New Zealand. The New Zealand Government considers that its
sovereignty has thereby been infringed in a manner contrary to international
law. As there is no treaty link between New Zealand 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 [p
489] 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 provision 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 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 New Zealand 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 New Zealand
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. New Zealand, 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 [p 490] 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 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 deposited. 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 New Zealand 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 New Zealand 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 [p 491] 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 indication 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 1 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 col-[p
492] leagues 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 493]
Separate opinion of judge Ignacio-Pinto
[Translation]
I have voted in favour of the Judgment which the Court has given today in
the present proceedings, just as I voted for the Judgment in the proceedings
instituted against France by Australia, these being two cases which the
Court decided to regard as different, whereas in my opinion it should have
pronounced a joinder of the proceedings.
Adhering as I do to the reasons relied on in the dissenting opinion which I
appended to the Order of 22 June 1973, I do not see that there would be any
point in repeating the arguments already developed in the separate opinion
which I have appended to the Judgment also delivered today in the case
between Australia and France; these arguments and reasons apply mutatis
mutandis to the Judgment in the present case.
(Signed ) L. Ignacio-Pinto
[p 494]
[Translation]
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 New Zealand is "to obtain a termination of" the "atmospheric
nuclear tests conducted by France in the South Pacific region" (para. 31)
.
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
pursing 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 New
Zealand's formal submission as presented in the Application.
3. In the Application New Zealand:
". . . asks the Court to adjudge and declare: That the conduct by the French
Government of nuclear tests in the South Pacific region that give rise to
radio-active fall-out constitutes a violation of New Zealand's rights under
international law, and that these rights will be violated by any further
such tests".
4. As appears from the initial words of the actual submission, it
unequivocally requests from the Court a judicial declaration on the [p 495]
illegality of nuclear tests conducted by France in the South Pacific region
and giving rise to radio-active fall-out.
This is made abundantly clear in paragraph 10 of the Application where it is
stated:
"The New Zealand Government will seek a declaration that the conduct by the
French Government of nuclear tests in the South Pacific region that give
rise to radio-active fall-out constitutes a violation of New Zealand's
rights under international law, and that these rights will be violated by
any further such tests." (Emphasis added).
This request is described in the Applicant's Memorial (para. 5) as "the
principal issue before the Court"
5. It has to be asked what are the reasons given in the Judgment as
justifying the setting aside of the request for a declaration presented by
the Applicant? In the present case it is not asserted, as it was in the
parallel case of Australia v. France, that the judgment requested from the
Court is not a declaratory judgment for that could evidently not be
maintained in view of the actual terms of New Zealand's submission. Nor is
it stated in the present Judgment that the request for a declaration is
merely a means to an end and not an end in itself. However, without adopting
those lines of reasoning, the Judgment ignores no less completely the formal
request for a declaration of illegality made by New Zealand, and this is
apparently done on the basis of three arguments.
6. The first argument appears to take as a starting point the following
observation:
"The Court is asked to adjudge and declare that French atmospheric nuclear
tests are illegal, but at the same time it is requested to adjuge and
declare that the rights of New Zealand 'will be violated by any further such
tests'. The Application thus contains a sub-mission requesting a definition
of the rights and obligations of the Parties." (Para. 31 of the Judgment.)
This cannot however be accepted as a valid ground for not dealing with the
request for a declaration. A submission asking for a judicial declaration
may be formulated either as a request to the Court to decide that the
conduct of a State is not in accordance or is contrary to the applicable
rules of international law or as a request to declare that a party possesses
a certain right or is subject to a certain obligation. In both cases, what
is requested from the Court is a definition of the legal situation existing
between the Parties, expressed either in terms of objective rules of law or
of subjective rights and obligations resulting from those rules. In the
Interhandel case, for instance, a submission which in fact requested a
definition of the rights and obligations of the Parties was considered by
the Court as "relating to a request for a declaratory judgment" (I.C.J.[p
496] Reports 1959, p. 20). In the Right of Passage over Indian Territory
case the Applicant's first submission also asked for a definition of the
rights and obligations of the Parties. As the Court said in that case: "Thus
formulated, the claim reveals both the right claimed by Portugal and the
correlative obligation binding upon India" (I.C.J. Reports I960, p. 28).
Yet the Court did not set that submission aside but on the contrary dealt
with it as the basic and essential claim upon which it had the duty to
adjudicate.
7. The second argument hinges upon an invocation of the Court's "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" (para. 30).
This power undoubtedly exists, but it cannot be applied to set aside either
part of the New Zealand submission. A bare declaration that the conduct of
nuclear tests "constitutes a violation of New Zealand's rights under
international law" cannot conceivably be described as constituting merely a
reason advanced in support of the decision requested. The legal reasons
invoked by the Applicant relate inter alia, to the alleged violation by
France of certain rules said to be generally 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
rights derived from the character of the high seas as res communis. These
reasons, designed to support the submission, are clearly distinguished in
the pleadings from the specific decision which the Court is asked to make.
Isolated from those reasons or legal propositions, the declaration that
atmospheric nuclear tests "constitutes a violation of New Zealand's rights
under 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" it is yet of the essence of international adjudication, indeed
the heart of the Court's judicial function, to decide and declare that the
challenged conduct of a State does or does not constitute a violation of
the Applicanl's rights under international law.
---------------------------------------------------------------------------------------------------------------------
FN1 Right of Passage over Indian Territory, I.C.J. Reports I960, p. 32.
---------------------------------------------------------------------------------------------------------------------
8. The third argument advanced in the Judgment as justifying the setting
aside of the request for a declaration is the assertion that:
". . . it is essential to consider whether the Government of New Zealand
requests a judgment by the Court which would only state [p 497] 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" (para. 30)
(emphasis added).
The position taken with respect to New Zealand's submission seems to
indicate that the Court finds that the judgment requested in this case
belongs exclusively to the second part of the above assertion. But in what
respect do the terms of New Zealand's submission require it or the
Respondent to take or refrain from taking some action? We fail to detect any
such requirement in the terms of the submission. The New Zealand submission
is no different in this respect from any other request for a declaratory
judgment. If the Parties may decide to take or refrain from taking some
action it is because such a declaratory judgment is normally sufficient to
bring about that effect. As Judge Hudson has 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 tasks 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 FN1 [Translation.]
------------------------------------------------------------------------------------------------------------
FN1 Ch. De Visscher, Aspects recents du droit procedural de la Cour
internationale de Justice, Paris, 1966, p. 54.
------------------------------------------------------------------------------------------------------------
9. It appears from the terms of the submission that New Zealand seeks a
declaration which is not limited to a general finding on the violation of
its rights by nuclear tests in the South Pacific region giving rise to
radio-active fall-out. It also requests that such declaration include the
pronouncement "that these rights will be violated by any further such
tests". Both parts of New Zealand's submission are, in terms, and with all
deliberation express requests for a judicial declaration.
It is possible to find other examples of formal submissions in which an
applicant has asked not only for a declaration of illegality concerning the
[p 498] respondent's conduct, but also for a complementary declaration to
the effect that the continuation of such conduct would violate the rights of
the applicant or, what amounts to the same, that the respondent is under an
obligation to put an end to the conduct alleged to be unlawful, e.g., the
case concerning Guardianship of Infants (I.C.J. Reports 1958, pp. 61 and 71)
This type of submission has been considered by the Court as containing two
independent requests, the first one being treated as a true submission, as
an end in itself, and not merely as part of the reasoning or as a means for
obtaining the cessation of the alleged unlawful activity. The Court has
first analysed the request for a declaration of illegality before taking up
the consequential request for a declaration concerning the continuation of
the impugned conduct.
The fact that consequential declarations of this nature are made, as they
were made in the above-mentioned case, 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.
10. 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 the 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. 30) 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.
11. In any event, the cases cited in paragraph 30 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
submissions 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 [p
499] pp. 121-123 and 126). In the Minquiers and Ecrehos case the "true"
final submission was stated first and two legal propositions 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 wholly unjustifiable to treat the Applicant's request for a declaration
of illegality merely as reasoning advanced in support of what the Judgment
considers to be the Applicant's objective. This objective it determined in
complete detachment from the formal submission.
12. In accordance with the above-mentioned basic principles, the true nature
of New Zealand's 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 complete
revision of the text, which ends in eliminating what constitutes the
essence of that submission, namely the request for a declaration of
illegality of nuclear tests in the South Pacific Ocean giving rise to
radio-active fall-out. A radical alteration 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 juris-diction in the present dispute.
13. 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 and governmental press statements which are no
part of the judicial proceedings. 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 litiga-tion 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 [p 500] 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 deter-mination inaudita
parte.
***
14. 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 New Zealand's submission, the
legality of the French atmospheric tests is brought into question.
New Zealand's submission refers, in general terms, to nuclear tests "that
give rise to radio-active fall-out". In making a declaration like the one
requested, the Court might have had to pronounce generally on the legality
of tests conducted by France in the South Pacific region, which gave rise to
radio-active fall-out. The judicial declaration of illegality asked for in
the submission would thus have implications not merely for future, but also
for past tests, in respect of which the New Zealand Government reserved the
right to hold the French Government responsible for any damage or losses.
This would certainly include the tests conducted in 1973 and 1974 in
disregard of the Court's interim order. There is not only occasion, but a
duty of the Court, to pronounce on the legality of the tests which have
taken place, since a request for a declaration of illegality covering
atmospheric tests conducted in the past, could not be deprived of its object
by statements of intention limited to tests to be conducted in 1975 or
thereafter.
15. Such a view of the matter takes no account of the possibility of New
Zealand seeking to claim compensation, particularly in respect of the 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 New Zealand Government has since [p 501] 1966 consistently
reserved "the right to hold the French Government responsible for any
damages or losses incurred as a result of the tests by New Zealand or the
Pacific Islands for which New Zealand has special responsibility or
concern". Such a reservation should have been taken into consideration in
determining the Applicant's objectives in the proceedings. Account should
also have been taken of the fact that counsel for the Applicant stated at
the hearings that with respect to some of the damages allegedly caused, its
Government intended to bring at a subsequent stage a claim related to the
dispute before the Court but distinct from it (CR 74/10, p. 23). 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 particularly understandable
in a case involving radio-active fallout in which the existence and extent
of damage may not readily be ascertained before some time has elapsed.
16. 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" (Interpretation of Judgments Nos. 7
and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No.
13, p. 20).
17. 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 from 1966 to 1974. The declaration, if obtained, would
characterize those tests as a violation of New Zealand'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).
***[p 502]
18. The Judgment implies that there was a dispute between the Parties but
asserts that such a dispute has now disappeared because "the final objective
which the Applicant has maintained throughout has been achieved by other
means" (para. 58).
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. In a letter of 9 May 1973, accompanying the
Application, the Agent for New Zealand stated that his Government was
"instituting proceedings on behalf of New Zealand against France in respect
of a dispute concerning the legality of nuclear testing in the Pacific
region . . ." (emphasis added). In its Memorial (para. 5) New Zealand states
that:
"The core of the legal dispute between New Zealand and France is
disagreement as to whether the atmospheric testing of nuclear weapons
undertaken by France in the South Pacific region involves violation of
international law."
Such a definition of the core of the dispute made in the pleadings presented
to the Court by the New Zealand Government cannot be altered by what may
have been said by the Prime Minister of New Zealand in the press statement
referred to in paragraph 28 of the Judgment. Whatever may be the political
significance of that statement it should not be interpreted as overriding
the submissions or formal communications presented to the Court by the Agent
of the New Zealand Government. Moreover, if account is taken of the
circumstances in which such declarations were made, and the context of the
whole statement, it cannot be considered as intending to constitute a
definition of the "subject of the dispute" different from that advanced in
the pleadings and other documents. If any doubt were to remain in this
respect, the Applicant should have been asked to give further explanations
on this matter. The conclusion therefore is that, while from a factual
point of view the extent of the dispute is reduced if no further atmospheric
tests are conducted in 1975 and thereafter, from a legal poi ont of view the
question which remains in dispute is whether the atmospheric nuclear tests
which were in fact conducted from 1966 to 1974 were consistent with the
rules of international law.
There has been no change in the position of the Parties as to that issue.
New Zealand continues to ask the Court to declare that atmospheric nuclear
tests are contrary to international law and is prepared to argue and develop
that point. France, on its part, as recognized in the Judgment (para. 53),
maintains the view that "its nuclear experiments do not contravene any
subsisting provision of international law". In announcing the cessation of
the tests in 1975 the French Government, according to [p 503] 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.
19. 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 dêtre. 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 defining the legal
position applicable between the Parties—as would the one pronouncing on 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 New Zealand. This
is shown by the very fact that the Court was able to go only so far as to
show 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".
20. 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" [p 504] (emphasis added)
or "expounds a rule of customary law" (emphasis added). As to both the
latter, the Court said that the declaratory judgment 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 could 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, it 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.
***
21. 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
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 [p
505] 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 brought 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.
22. 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 the judicial proceedings
and whether the French declarations and statements had the effect of
rendering the claim of New Zealand 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, [p
506] 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
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 this case, to decide the issue of "mootness" without affording
the Applicant any opportunity to submit counter-arguments 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.
23. 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 for
declaring a case moot or without object is totally missing, a conclusion1
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 [p 507]
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.
24. 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.
***
25. 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.
26. 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.
27. It is difficult for us to understand the basis upon which the Court [p
508] 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. 53), and "finds
that the French Government has undertaken the obligation to hold no further
nuclear tests in the atmosphere in the South Pacific" (para. 55). 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 purpose of" providing
"for the orderly settle-ment 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.
28. 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 ground upon which that jurisdiction rests. 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 atmospheric nuclear tests in the South Pacific
Ocean, why does the "inherent jurisdiction" not also authorize it to decide,
on the basis of that same international obligation, that New Zealand's
rights under international law "will be violated by any [p 509] 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?
***
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
29. The bases on which, in paragraph 11 of her Application, New Zealand
seeks to found the jurisdiction of the Court in the present case are, for
present purposes, precisely the same as those invoked by Australia in the
other Nuclear Tests case now before the Court, namely:
(a) Article 17 of the General Act of Geneva for the Pacific Settlement of
International Disputes of 1928, in combination with Articles 36 (1) and 37
of the Statute of the Court, and
(b) the declarations respectively of New Zealand and France under Article 36
(2)—the optional clause—of the Statute, in combination with paragraph 5 of
the same Article.
True, there are some differences in the reservations made by New Zealand and
Australia to their respective declarations under the optional clause. But
these differences are immaterial in the context of the Nuclear Tests cases,
while their reservations to their accessions to the 1928 Act are identical.
The only other difference is that New Zealand's declaration under the
optional clause, unlike that of Australia, was made prior to the dissolution
of the Permanent Court of International Justice and therefore requires the
operation of Article 36 (5) of the Statute to make it applicable with
respect to this Court. Again, however, this difference is immaterial in the
present context.
30. Our views on the question whether the bases of jurisdiction invoked by
New Zealand suffice to invest the Court with jurisdiction in the present
case are the same as those which we have expressed in full in our joint
dissenting opinion in the Nuclear Tests case brought against France by [p
510] Australia. Since for present purposes there is no material difference
between the bases of jurisdiction invoked in the two cases, we think it
sufficient to say here that, subject to one exception, the observations
which we have made in the Nuclear Tests case brought by Australia against
France also apply, mutatis mutandis, in the present case. The one exception
is that paragraphs 92-93 of our observations in that case, relating to an
alleged breach of the General Act of 1928 by Australia in September 1939
are not applicable with respect to New Zealand. Unlike that of Australia,
New Zealand's reservation to the Act, designed to exclude disputes in regard
to matters arising out of a war in which she might be engaged, was notified
in February 1939 at the same time as that of France herself and in
conformity with Article 39 of the Act; and, in consequence, no question of
an alleged breach of the Act could even be suggested in the case of New
Zealand.
Accordingly, as in the Nuclear Tests case brought by Australia against
France, we 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. 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" (I.C.J. Reports 1972, at p. 60).
Part III. The Requirements of Article 17 of the 1928 Act and the
Admissibility of the Application
31. 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.
32. 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 in the
optional clause of that Statute and of the present Statute. Moreover, [p
511] subject to one possible point which does not arise in the present case
FN1, 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.
---------------------------------------------------------------------------------------------------------------------
FN1Cf. 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.
---------------------------------------------------------------------------------------------------------------------
33. In the present proceedings New Zealand has described the subject of the
dispute in paragraphs 2-10 of her Application. Inter alia, she 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; that in a letter of 9 March 1973
from the New Zealand Prime Minister to the French Foreign Minister she made
known her view that France's conduct of such tests was a violation of New
Zealand's rights under international law, including its rights in respect of
areas over which it has sovereignty; that the French Government in turn made
it plain that it did not accept that view; and that, accordingly, there is a
dispute between the two Governments "as to the legality of atmospheric
nuclear tests in the South Pacific region". After various observations on
the facts and the law, New Zealand sets out, seriatim, in the concluding
paragraph of her Application five separate categories of rights which she
claims to be violated by France's atmospheric nuclear tests. In her
submission she then asks the Court to adjudge and declare:
". . . that the conduct by the French Government of nuclear tests in the
South Pacific region that give rise to radio-active fall-out constitutes a
violation of New Zealand's rights under international law, and that these
rights will be violated by any further such tests".
34. Prime 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 New Zealand Application. Indeed, in
the Court's Order of 22 June 1973, it was characterized as "a dispute as to
the legality of atmospheric tests in the South Pacific region". The French
Government itself seems to have placed the dispute on a legal plane when, in
the French Ambassador's letter of 19 February 1973 addressed to the New
Zealand Prime Minister, it expressed the hope that [p 512] the Government of
New Zealand would "refrain from any act which might infringe the fundamental
rights and interests of France". 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.
35. 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.
36. Complying with the Court's Order of 22 June 1973, New Zealand submitted
her observations on the questions of the jurisdiction of the Court and the
admissibility of the Application. In doing so, she expressed her views on
the question of the political or legal nature of the dispute; and under the
rubric of "admissibility" she furnished further explanations concerning "the
nature of the claim which is the subject of the dispute" and "the legal
rights for which New Zealand seeks protection". In these connections she
restated, in the same terms as in the Application and request for interim
measures of protection, the five different heads of legal rights by
reference to which she asks the Court to characterize France's nuclear
atmospheric tests as illegal. These are as follows:
"(a) the rights of all members of the international community, including New
Zealand, that no nuclear tests that give rise to radio-active fall-out be
conducted ;
(b) the rights of all members of the international community, including New
Zealand, to the preservation from unjustified artificial radio-active
contamination of the terrestrial, maritime
[p 513] and aerial environment and, in particular, of the environment of the
region in which the tests are conducted and in which New Zealand, the Cook
Islands, Niue and the Tokelau Islands are situated;
(c) the right of New Zealand that no radio-active material enter the
territory of New Zealand, the Cook Islands, Niue or the Tokelau Islands,
including their air space and territorial waters, as a result of nuclear
testing;
(d) the right of New Zealand that no radio-active material, having entered
the territory of New Zealand, the Cook Islands, Niue or the Tokelau Islands,
including their air space and territorial waters, as a result of nuclear
testing, cause harm, including apprehension, anxiety and concern, to the
people and Government of New Zealand and of the Cook Islands, Niue and the
Tokelau Islands;
(e) the right of New Zealand to freedom of the high seas, including freedom
of navigation and overflight and the freedom to explore and exploit the
resources of the sea and the seabed, without interference or detriment
resulting from nuclear testing."
At the same time, she characterized the rights which she asserts under heads
(a) and (b) as "shared", in the sense that they are held in common with
other members of the international community and the corresponding
obligation is one owed erga omnes; but stressed that the rights which she
asserts under heads (c), (d) and (e) are not "shared" rights in that sense.
37. In a written reply to questions from a Member of the Court the Agent for
New Zealand also presented certain explanations regarding: (i) the elements
which she considers to constitute the right asserted under head (c) that no
radio-active material enter the territory of New Zealand, the Cook Islands,
Niue or the Tokelau Islands and, in particular, regarding the relevance or
otherwise of harm or potential harm as an element in the violation of that
right; and (ii) the basis upon which she considers that a distinction may be
drawn between a lawful and unlawful interference with the freedom of the
high seas by the declaration of a zone of the high seas reserved for
military purposes in time of peace.
38. Under the rubric of admissibility New Zealand presented her views on the
question, mentioned in paragraph 24 of the Order of 22 June 1973, of her
"legal interest" in respect of the claims put forward in her Application.
With regard to the rights under heads (c), (d) and (e), said to be based on
obligations owed to New Zealand individually, she maintained that her legal
interest is of a "direct, immediate and uncomplicated kind". She stated
that each series of tests, including those carried out in 1973 and 1974
after the filing of the Application, has involved the entry of radio-active
debris into the territory, territorial [p 514] waters and air space of New
Zealand, the Cook Islands, Niue and Tokelau Islands. She further alleged
that, in consequence, the citizens of these Territories have been subjected
to the uncertain genetic and somatic effects of increases in levels of
radio-activity; and that on each occasion anxiety, apprehension and concern
have resulted. The New Zealand Government's concern with the health, both
physical and mental, of her people constitutes, she contended, an interest
which "would undoubtedly be sufficient to give it standing before any
international tribunal". In the case of the freedoms of the high seas
invoked under head (e) of her claims, New Zealand also referred to the fact
that on 18 July and 15 August 1973 New Zealand citizens, on vessels not of
French flag, had been apprehended by the French authorities on the high seas
and taken against their will to French territory and detained for a period
of days. With regard to the rights under heads (a) and (b) mentioned as
shared with other members of the international community, New Zealand
maintained that her legal interest in the judicial protection of these
rights falls under the principle referred to by the Court in a passage in
its Judgment in the Barcelona Traction, Light and Power Company, Limited
case (I.C.J. Reports 1970, at p. 32). According to New Zealand, this passage
and other legal material which she cited show that international law now
recognizes certain categories of international obligations as owed erga
omnes and as conferring on every State a corresponding right of judicial
protection. She contended that the right "to inherit a world in which
nuclear testing in the atmosphere does not take place" and the right "to the
preservation of the environment from unjustified artificial radio-active
contamination" are rights of this kind and that all States therefore have a
legal interest in their observance. In this connection, she referred to
successive resolutions of the General Assembly on atmospheric nuclear
testing and the Declaration on the Environment adopted by the Stockholm
Conference of 1972 on the Human Environment.
***
39. In giving this very summary account of the legal contentions of the New
Zealand 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 New Zealand's Application determined. Before we
draw any conclusions, however, from that account of New Zealand's legal
contentions, we must also indicate our under-[p 515] standing of the
principles which should govern our determination of these matters at the
present stage of the proceedings.
**
40. 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 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 circum-stances 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 issue of
jurisdiction and admissibility now before the Court have not been raised in
the form of preliminary objections, stricto sensu.
41. 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 [p
516] Government in its diplomatic Note to the Australian Government of 7
February 1973, which has been brought to the attention of the Court in the
other Nuclear Tests case. 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.
42. 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 the 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 on 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 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.
43. 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 pre- [p
517]judging 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.
44. The summary account which we have given above of the grounds invoked by
New Zealand in support of her claims appears to us amply sufficient, in the
language of the Court on 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 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. [p 518]
45. 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, at 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.
46. 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 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.
47. Nor is our conclusion in any way affected by the suggestion that in the
present case the Court, in order to give effect to New Zealand'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 [p 519]
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.
48. 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-a-vis the rights of other States, a task inherent
in the function entrusted to the Court by Article 38 of the Statute.
49. 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 endorsed, 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 preliminary proceedings. The very basis
of the Applicant's legal position, as presented to the Court, is that 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 [p 520] legal merits of the case, and not to be one appropriate for
determination in the present preliminary proceedings.
50. We are, moreover, 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 New Zealand Government has given its view of the facts
regarding atmospheric nuclear explosions in the Pacific Ocean region and of
the dangers of radio-active fall-out attendant upon them (paras. 12-22 of
the Application). In presenting its arguments concerning the development of
international law on this matter, it also has cited a series of General
Assembly resolutions, the reports on atomic radiation of UNSCEAR and of the
International Commission on Radiological Protection, the Test Ban Treaty
itself, the Treaty for the Prohibition of Nuclear Weapons in Latin America,
the Treaty on the Non-Proliferation of Nuclear Weapons, and a resolution and
declaration adopted at the Stockholm Conference on the Human Environment. In
addition, it has referred to the psychological injury said to be caused to
the peoples of New Zealand, the Cook Islands, Niue and the Tokelau Islands
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
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.
51. The dispute as to the facts regarding damage and potential damage [p
521] 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, New Zealand contends that rights
which she invokes are violated by France's conduct of atmospheric tests
independently of proof of damage. 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 element 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.
52. Finally, we turn to the question of New Zealand's legal interest in
respect of the claims which she advances. With regard to the right said to
be inherent in New Zealand's territorial sovereignty, we think that she is
justified in considering that her legal interest in the defence of that
right is direct. 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 rights to be free from atmospheric tests, said to be possessed by New
Zealand 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
materials adduced by New Zealand 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, Second Phase, I.C.J. Reports 1970, at page
32, 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. [p 522]
53. As to the rights 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
individual 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 of the seas and, in our view, could only be decided by the Court
at the stage of the merits.
54. 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 New Zealand no longer has any object, we consider
that the Court should have now decided to proceed to pleadings on the
merits. [p 523]
Part IV. Conclusion
55. Since we are of the opinion that the Court has jurisdiction and that the
case submitted to the Court discloses no ground on which New Zealand'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 524]
Dissenting opinion of judge De Castro
[Translation ]
To my regret, I have not been able to vote with the majority of the Court.
In view of the practically identical nature of the present case and the case
concerning Nuclear Tests (Australia v. France), at this stage of the
proceedings, I feel justified in referring the reader to the reasoning set
forth in the dissenting opinion I have appended to the Judgment delivered in
that parallel case.
(Signed) F. De Castro.
[p 525]
Dissenting opinion of judge Sir Humphrey Waldock
I have already expressed my reasons for being unable to join in the Judgment
of the Court in the case of Australia v. France. All those reasons apply
with equal force in this case and need not be repeated.
The analysis of the exchanges between New Zealand and France prior to the
lodgment of the Application results, in my opinion, in the emergence of a
dispute between them as to their respective legal rights. It is apparent
from the letter written on 19 February 1973 by the Ambassador of France to
the Prime Minister of New Zealand that France early recognized that legal
rights were involved in the matters which had been in discussion. The reply
of the Prime Minister, written on 9 March 1973, made it quite clear in my
opinion that New Zealand was asserting the existence of rights under
international law and that France's acts in connection with the detonation
of nuclear devices at Mururoa infringed those rights of New Zealand. As the
letter of the Prime Minister of New Zealand to the President of France,
written on 4 May 1973, points out, France disputed the existence of and the
alleged breach of those rights. Thus in my opinion there was a legal dispute
between the Parties prior to the lodging of the Application.
The various bases of claim made by the Applicant are subsumed under five
headings in the Application (see para. 28) and in the Applicant's Memorial
(see para. 190). They are not expressly spelled out individually in the
pre-Application exchanges to the same extent but they are clearly all
embraced in the formulae there employed. The basis of claim enumerated in
these paragraphs of the Application and Memorial are all comprehended in the
four bases of claim which are set out in my opinion in the case of Australia
v. France. Thus, what I have said there as to those four bases of claim, is
wholly applicable to the five bases of claim which the Applicant has
enumerated in these proceedings. I need not specially differentiate between
the four bases in the one case and the five bases of claim in the other.
Perhaps the emphasis respectively placed upon the unlawfulness of the
testing of nuclear weapons and upon the infringement of sovereignty by the
fall-out in New Zealand resulting from the detonation of nuclear devices,
differs slightly in the two cases. This, in my opinion, does not require any
special treatment in these reasons as the difference is not of any
substantial importance.
The Applicant however, unlike Australia, did not seek an order of [p 526]
injunction. Its only claim was for a declaration. Its claim is expressed in
its Application as follows:
"Accordingly, New Zealand asks the Court to adjudge and declare: That the
conduct by the French Government of nuclear tests in the South Pacific
region that give rise to radio-active fall-out constitutes a violation of
New Zealand's rights under international law, and that these rights will be
violated by any further such tests."
It is thus even more difficult in this case to support the view that the
Applicant's request for a declaration was but as a reason or foundation for
an order of injunction or, as it is put, was merely a means to an end and
not an end in itself. Any suggestion that the claim must be regarded as
either a claim for a declaration or a claim for an injunction would be a
false dichotomy. In truth the claim could seek both, as in the case of
Australia but the claim of the Applicant does not.
In any case, as I pointed out in my opinion in the case of Australia v.
France, it is only by a fallacious identification of the purpose being
pursued by the initiation of the litigation with the substance of the claim
actually made in the proceedings, is it concluded in the Judgment that the
Applicant by its claim did not seek a declaration of right as a means of
resolving its dispute with France as to the unlawfulness of the French
nuclear activity at Mururoa and of its consequences.
Whatever may be said as to its motivation, the Application is in respect of
a dispute as to the legality of the Respondent's actions in exploding
nuclear devices: so much is expressly conceded in the Judgment (see paras. 1
and 16). The Application in terms sought an adjudication upon questions of
legal right as the method of resolving that dispute. Such an adjudication
would result in res judicata binding both parties and, if the Applicant were
successful, forming the basis for further action either of a litigious or
diplomatic nature. A voluntary promise, even if binding, not to exercise
what the Respondent still maintained was its right cannot be the equivalent
or substitute for such an adjudication in these proceedings. It cannot
properly be said, in my opinion, that because France has voluntarily
"assumed an obligation as to conduct, concerning the effective cessation of
nuclear tests, no further judicial action is required . . . that any further
finding would have no raison dêtre" (para. 59) or that:
". . . since the Court now finds that a commitment in this respect has been
entered into by France, there is no occasion for a pronouncement in respect
of rights and obligations of the Parties concerning the past—which in other
circumstances the Court would be entitled and [p 527] even obliged to
make—whatever the date by reference to which such pronouncement might be
made" (para. 54).
Such statements in the Judgment are in my opinion on their face erroneous
and indicative of a failure on the part of the Court to perform its judicial
duty of decision (Art. 38 of the Statute).
Of course, such a promise by France if accepted by the Applicant might well
result in a compromise of the litigation. Despite, and with due respect to
the assertion to the contrary in the Judgment (para. 57), it is, in my
opinion, with the compromise of the litigation rather than with the
settlement of the dispute between the Parties that the Court in this case as
in the case of Australia v. France has, erroneously as I think, concerned
itself.
The terms of the Applicant's request seem wide enough to embrace tests which
had occurred before the Application was lodged. The claim then proceeds that
any further tests will violate French rights under international law. But
this circumstance does not call in my opinion for any different reasoning
from that which I have used nor any qualifications of the opinion I have
expressed in the case of Australia v. France.
It should be mentioned however that throughout the pre-Application
exchanges, the Applicant expressly and consistently reserved its "right to
hold the French Government responsible for any damage or losses incurred by
New Zealand or the Pacific Islands for which New Zealand has special
responsibility or concern, as a result of the weapons tests", which France
intended to conduct. As consistently and as expressly, France denied that
the Applicant had any such right. The fact of this reservation may be added
to the other considerations to which I adverted in my opinion in the case of
Australia v. France, for concluding that the Applicant is not debarred from
seeking compensation from France for the results of the atomic detonations
at Mururoa. It could clearly have done so in my opinion in these proceedings
as to the results of the 1973 and 1974 series of tests, in the latter of
which the Applicant has asserted that the "fall-out levels recorded for the
1974 test series have been significantly higher than those measured in 1972
and 1973". Whether the Applicant in its final submission could have sought
compensation in respect of these pre-Application detonations need not be
decided but it is to my mind clear that if a declaration of unlawfulness had
been made the Applicant would have been able to make it the basis for claims
upon France for compensation in respect of such explosions.
My comments made in the case of Australia v. France as to the use sought to
be made in the Judgment of the introduction and of a comment made upon the
communique of 8 June 1974 by the Applicant, apply equally to this case. Such
introduction and comment were in no sense related to the question the Court
has decided. Further, nothing in the statement of the Prime Minister of New
Zealand made on 1 November 1974 was directed to that question. Neither the
observations of the [p 528] Applicant on the communique of 8 June 1974 nor
the said statement of the Prime Minister afford in my opinion any
justification for not notifying and hearing the Applicant upon the question
the Court has now decided.
Here, as in the case of Australia v. France, the Court in my opinion has
failed in a basic respect to comply with the requirements of its judicial
process. It has decided a question of which the Applicant has had no notice
and by the use of material which the Applicant was unaware had been
introduced into evidence in the proceedings. The injustice of this course is
obvious. Further, unaided by analysis and argument which undoubtedly could
have contributed in my opinion to a right conclusion of fact and a proper
understanding of the substance of the Applicant's claims, the Court has
reached what in my opinion is an insupportable conclusion. It has failed to
decide the questions of jurisdiction and of admissibility, isolated by its
Order of 22 June 1973 in order that there should be an early decision upon
them.
As in the case of Australia v. France, I am unable to join in the Judgment
which follows from an unjust procedure and which produces a result which I
cannot accept as right and proper in the circumstances.
(Signed) G. E. Barwick. |
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