20 December 1974

 

General List No. 59

 
     

international Court of Justice

     
 

Nuclear Tests

 
     

New Zealand

 

v. 

France

     
     
 

Judgment

 
     
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BEFORE:

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

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1974.12.20_nuclear_tests2.htm
   
Citation: Nuclear Tests (N.Z. v. Fr.), 1973 I.C.J. 457 (Dec. 20)
   
Represented By: New Zealand: Professor R. Q. Quentin-Baxter, of the New Zealand Bar, Professor of International Law, Victoria University of Wellington, as Agent and Counsel;
Assisted by
H.E. Mr. H. V. Roberts, Ambassador of New Zealand, as Co-Agent;
Hon. Dr. A. M. Finlay, Q.C., Attorney-General of New Zealand;
Mr. R. C. Savage, Q.C., Solicitor-General of New Zealand;
Professor K. J. Keith, of the New Zealand Bar, Professor of International Law, Victoria University of Wellington;
Mr. C. D. Beeby, of the New Zealand Bar, Legal Adviser, New Zealand Ministry of Foreign Affairs;
Mrs. A. B. Quentin-Baxter, of the New Zealand Bar, as Counsel.
 
     
 
 
     
 


[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.

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FN1 Right of Passage over Indian Territory, I.C.J. Reports I960, p. 32.
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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.
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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.

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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.
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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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