22 September 1995

 

General List No. 97

 
     

international Court of Justice

     
     

Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests

 

 

New Zealand

  v.  
  France  
     
 

Order

 
     
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BEFORE: Vice-President: Schwebel
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1995.09.22_nuclear_tests.htm
   
Citation: Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (N.Z. v. Fr.), 1995 I.C.J. 288 (Order of Sept. 22)
 
     
 
 
     
 


[p288]
The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Article 48 of the Statute of the Court,

Having regard to the Judgment delivered by the Court on 20 December 1974 in the Nuclear Tests (New Zealand v. France) case, and in particular its paragraph 63,

Makes the following Order:

1. Whereas on 21 August 1995 the New Zealand Government filed in the Registry a "Request for an Examination of the Situation" ;whereas it is indicated therein that the Request concerned "aris[es] out of a proposed [p289] action announced by France which will, if carried out, affect the basis of the Judgment rendered by the Court on 20 December 1974 in the Nuclear Tests (New Zealand v. France) case"; and it is stated therein that "the immediate circumstance giving rise to the present phase of the Case is a decision announced by France in a media statement of 13 June 1995" by the President of the French Republic, according to which "France would conduct a final series of eight nuclear weapons tests in the South Pacific starting in September 1995";

2. Whereas in that "Request for an Examination of the Situation" it is recalled that the Court, at the end of its Judgment of 20 December 1974, found that it was not called upon to give a decision on the claim submitted by New Zealand in 1973, that claim no longer having any object, by virtue of the declarations by which France had undertaken not to carry out further atmospheric nuclear tests; and whereas, moreover, New Zealand emphasizes therein that the Court included in that Judgment paragraph 63 "to cover the possibility that France might subsequently cease to comply with its undertakings regarding atmospheric testing or that something else underlying the Court's Judgment was no longer applicable" ;

3. Whereas New Zealand expressly founds its "Request for an Examination of the Situation" on paragraph 63 of the Judgment of 20 December 1974, worded as follows:


"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" (I.C.J. Reports 1974, p. 477);

whereas it asserts that this paragraph gives it the "right", in such circumstances, to request "the resumption of the case begun by Application on 9 May 1973"; and whereas it observes that the operative part of the Judgment concerned cannot be construed as showing any intention on the part of the Court definitively to close the case;

4. Whereas in its "Request for an Examination of the Situation" New Zealand argues that the key passage in paragraph 63 of the Judgment of 20 December 1974 is the phrase "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"; that, although this passage does not expressly identify the "basis" of the Court's Judgment, it is most likely that the Court intended to refer to the declarations constituting legal obligations, by which France had entered into a binding commitment [p290] not to carry out further atmospheric nuclear tests in the South Pacific region; that, however, it was stated in the Application of 1973 that the dispute concerned nuclear contamination of the environment arising from nuclear testing of whatever nature; that the scope of the Judgment of 1974 must be measured not by reference to atmospheric testing as such, but rather by reference to the true and stated object of the Application; that in 1974 the only mode of testing used by France in the Pacific was atmospheric and such tests were then New Zealand's primary concern; that the Court had therefore "matched" the French undertaking with New Zealand's primary concern and had felt able to treat the dispute as resolved, but that the "matching" would doubtless not have been made had it realized, in 1974, that a shift to underground testing would not remove the risks of contamination; that, according to a variety of scientific evidence, underground nuclear testing at Mururoa and Fangataufa has already led to some contamination of the marine environment and risks leading to further, potentially significant, contamination; that the basis of the 1974 Judgment has therefore been altered and that, consequently, New Zealand is entitled to seek a resumption of the proceedings instituted in 1973, the bases of the jurisdiction of the Court remaining the General Act for the Pacific Settlement of International Disputes of 26 September 1928, as well as France's acceptance of the Optional Clause as it stood at the time of the original Application;

5. Whereas in its "Request for an Examination of the Situation" New Zealand contends that, both by virtue of specific treaty undertakings (in the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region of 25 November 1986 or "Noumea Convention") and customary international law derived from widespread international practice, France has an obligation to conduct an environmental impact assessment before carrying out any further nuclear tests at Mururoa and Fangataufa; and it further contends that France's conduct is illegal in that it causes, or is likely to cause, the introduction into the marine environment of radioactive material, France being under an obligation, before carrying out its new underground nuclear tests, to provide evidence that they will not result in the introduction of such material to that environment, in accordance with the "precautionary principle" very widely accepted in contemporary international law;

6. Whereas at the end of its "Request for an Examination of the Situation" New Zealand states that the rights for which it seeks protection all fall within the scope of the rights invoked in paragraph 28 of the 1973 Application, but that, at the present time, it seeks recognition only of those rights that would be adversely affected by entry into the marine environment of radioactive material as a result of the further tests to be carried out at Mururoa or Fangataufa Atolls, and of its entitlement to [p291] protection and to the benefit of a properly conducted Environmental Impact Assessment; and whereas, within these limits, New Zealand asks the Court to adjudge and declare:

"(i) that the conduct of the proposed nuclear tests will constitute a violation of the rights under international law of New Zealand, as well as of other States;

further or in the alternative;

(ii) that it is unlawful for France to conduct such nuclear tests before it has undertaken an Environmental Impact Assessment according to accepted international standards. Unless such an assessment establishes that the tests will not give rise, directly or indirectly, to radioactive contamination of the marine environment the rights under international law of New Zealand, as well as the rights of other States, will be violated";

7. Whereas the "Request for an Examination of the Situation" submitted by New Zealand was accompanied by a letter dated 21 August 1995 from the Ambassador of New Zealand to the Netherlands, by which the Registrar was informed of the appointment by New Zealand of an Agent and two Co-Agents and also of the resignation of the Right Honourable Sir Garfield Barwick, Judge ad hoc chosen by New Zealand in 1973, and the choice of the Right Honorable Sir Geoffrey Palmer to replace him;

8. Whereas, in addition to its "Request for an Examination of the Situation", the New Zealand Government also filed in the Registry, on 21 August 1995, a "Further Request for the Indication of Provisional Measures", in which reference is made, inter alia, to the preceding document, as well as to the Order for the Indication of Provisional Measures made by the Court on 22 June 1973; whereas in that new document the following provisional measures are requested "as a matter of priority and urgency", in accordance with Article 33 of the General Act of 26 September 1928 and Article 41 of the Statute of the Court:


"(1) that France refrain from conducting any further nuclear tests at Mururoa and Fangataufa Atolls;
(2) that France undertake an environmental impact assessment of the proposed nuclear tests according to accepted international standards and that, unless the assessment establishes that the tests will not give rise to radioactive contamination of the marine environment, France refrain from conducting the tests;
(3) that France and New Zealand ensure that no action of any kind is taken which might aggravate or extend the dispute submitted to the Court or prejudice the rights of the other Party in [p292] respect of the carrying out of whatever decisions the Court may give in this case";

and whereas at the end of that document New Zealand "separately request[s] the President of the Court to exercise his powers under the Rules pending the exercise by the Court of its powers";

9. Whereas the "Further Request for the Indication of Provisional Measures" submitted by New Zealand was accompanied by two letters dated 21 August 1995, one from the Minister for Foreign Affairs of New Zealand, and the other from the Ambassador of New Zealand to the Netherlands, in which the urgency of the situation was referred to and the President was also asked to exercise the powers provided for under Article 66, paragraph 3, of the 1972 Rules of Court, "in force at the time of the institution of the proceedings in 1973";

10. Whereas the same day the Registrar transmitted a copy of all those letters and documents to the French Government; whereas he transmitted a copy of the "Request for an Examination of the Situation" and of the "Further Request for the Indication of Provisional Measures" to the Secretary-General of the United Nations; and whereas he notified all States entitled to appear before the Court of the filing of those documents;

11. Whereas on 23 August 1995, the Australian Government filed in the Registry a document entitled "Application for Permission to Intervene under the Terms of Article 62 of the Statute Submitted by the Government of Australia"; whereas on 24 August 1995 the Governments of Samoa and Solomon Islands each filed a document, similar in content, entitled "Application for Permission to Intervene under Article 62/Declaration of Intervention under Article 63"; and whereas on 25 August 1995 similar documents bearing the same titles were filed, respectively, by the Government of the Marshall Islands and the Government of the Federated States of Micronesia; and whereas these five documents refer both to the "Request for an Examination of the Situation" and to the "Further Request for the Indication of Provisional Measures" submitted by New Zealand;

12. Whereas the Registrar transmitted copies of these documents to the Governments of New Zealand and France, as well as to the Secretary-General of the United Nations, and notified all States entitled to appear before the Court of the filing of those documents;

13. Whereas by letter dated 28 August 1995, received in the Registry the same day, the Ambassador of France to the Netherlands, referring to the two Requests submitted by New Zealand on 21 August 1995, informed the Court, among other things, that his Government considered that no basis existed which might found, even if only prima facie, the jurisdiction of the Court to entertain those Requests; that the action by New Zealand did not fall within the framework of the case which has been the object of the Judgment of 20 December 1974, since that case related exclusively, as the Court itself emphasized in paragraph 29 of that Judgment, to atmospheric tests; that since the Court considered, following the [p293] announcement of the decision taken by France to terminate atmospheric tests and pass to the stage of underground testing, that the claim submitted by New Zealand in 1973 had no object, that claim no longer existed and New Zealand's action of 21 August 1995 could not therefore be linked to it; that as the Court manifestly lacked jurisdiction in the absence of the consent of France, neither the question of the choice of a judge ad hoc, nor that of the indication of provisional measures, arose; and that, lastly, the action of New Zealand could not properly be the object of entry in the General List;

14. Whereas a copy of that letter was immediately transmitted by the Registrar to the Government of New Zealand;

15. Whereas, during a meeting held by the President of the Court on 30 August 1995 with the representatives of New Zealand and France, the latter expressed views which from the outset were very different regarding the legal nature of the New Zealand Requests and of their effects; and whereas the President invited the two States, if they so wished, to assist the Court by briefly presenting, in an "informal aide-mémoire", their positions on the points discussed at the meeting;

16. Whereas New Zealand filed its aide-mémoire in the Registry on 5 September 1995, stressing its non-official character and declaring that it was not a complete restatement of its position and could not be regarded as sufficient to meet New Zealand's entitlement to a formal and public presentation of its position in relation to the issues raised by the President and by the letter from the French Ambassador dated 28 August 1995;

17. Whereas in that aide-mémoire New Zealand recalls that the Court concluded, in its Order for the Indication of Provisional Measures of 22 June 1973, that "the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded" (I.C.J. Reports 1973, p. 138, para. 18); whereas New Zealand indicates that the additional question whether the present proceedings are a continuation of those to which that finding of the Court applies must itself be considered as a question of jurisdiction or as analogous to one-and can therefore be determined by reference to the same criteria as are applied to other questions of jurisdiction in the context of proceedings for the indication of provisional measures; and whereas it concludes there from that, since in this instance the Court is seized with a new request for the indication of provisional measures, it only has to determine, at the stage under consideration, whether there is a prima facie case of continuity of the proceedings commenced on 9 May 1973;

18. Whereas in its aide-mémoire New Zealand contends that such prima facie continuity is established; that paragraph 63 of the Judgment of 20 December 1974 confers upon it a right to resume the 1973 proceedings and that its wording clearly shows that the Court had no intention to close the case, as evinced, in particular, by the statement that the denunciation by France of the General Act of 1928 could not by itself constitute an obstacle to the presentation of a request for an examination of the [p294] situation; that the effect upon the "basis" of the Judgment, which the paragraph concerned sets as a condition of the resumption of the case, does not relate only to the possible resumption by France of atmospheric nuclear tests, but also to "any developments that might reactivate New Zealand's concern that French testing could produce contamination of the Pacific marine environment by any artificial radioactive material"; and that such "developments" exist in this instance, since France has not shown, as it has a duty to do under the conventional and customary rules of contemporary international environmental law, that no contamination of the marine environment will result from the new tests despite the cumulative damage to the atolls;

19. Whereas at the end of its aide-mémoire New Zealand states that, in view of the at least presumed continuity of the proceedings and of the principle of the equality of the Parties, it is entitled to choose a new judge ad hoc, who must be admitted to the bench forthwith; and whereas it adds that the continuity of the proceedings also implies the maintenance of the jurisdictional basis relied on in 1973, the resumption of the case at the procedural stage which it had reached on 20 December 1974, and the application of the Rules of Court adopted on 6 May 1946 as amended on 10 May 1972;

20. Whereas a copy of the aide-mémoire of New Zealand was transmitted to France by the Registrar;

21. Whereas France filed its aide-mémoire in the Registry on 6 September 1995, indicating that the document submitted in no way formed part of proceedings governed by the Statute and Rules of Court, in no way constituted acceptance by the French Government of the jurisdiction of the Court and in no way prejudiced its future position;

22. Whereas in its aide-mémoire France contends initially that the case instituted by the Application of 9 May 1973 was definitively closed by the Judgment of 20 December 1974 and that the "Request for an Examination of the Situation" submitted by New Zealand on 21 August 1995 has no connection with the operative part of the Judgment of 20 December 1974; that the allegations of New Zealand that the case is not closed because, on the one hand, the initial Application was not limited to atmospheric tests and, on the other hand, the Court could not at the time envisage the negative effects of underground tests, are manifestly incompatible with the reasoning followed by the Court in its Judgment of 1974; that both the structure and the terms of that Judgment (in particular, the terms of its paragraph 29) show that the Court considered that the dispute between the two States related exclusively to atmospheric tests, and that that view was shared not only by the Judges having appended a dissenting opinion to the Judgment, but also, at the time, by New Zealand itself; that paragraph 63 of the Judgment limits the possibility of a request for an examination of the situation to the eventuality of "the basis of [the] Judgment [being] affected" and that in the light of the context [p295] of that paragraph, the "basis" can be understood only as "the 'match' between [the] commitment by the French authorities to hold no further tests in the atmosphere and New Zealand's claims to that effect"; that underground tests are outside the scope of New Zealand's Application of 1973 and of the Court's Judgment of 1974, and that it was France's commitment to undertake no further atmospheric tests, in dissociable linked to its announcement of its intention to carry out underground tests, which constituted the ratio decidendi of the Court's decision to the effect that the object of the dispute had disappeared; and that consequently, as the New Zealand Request of 21 August 1995 had a new object, it could not be linked to the Judgment of 20 December 1974;

23. Whereas in its aide-mémoire France further contends that New Zealand's Request of 21 August 1995 cannot be brought within any provision of the Statute; that paragraph 63 of the Judgment of 20 December 1974 is in no manner sufficient of itself and expressly states that the possible steps to which it alludes are subject to compliance with the "provisions of the Statute"; that the Statute of the Court circumscribes the powers of the Court and prescribes the conduct that States must observe; that the "Request for an Examination of the Situation" submitted by New Zealand is not and cannot be either a request for interpretation or an application for revision; and that even if it were a matter of a new application, such an application would inevitably be subject to Article 38, paragraph 5, of the Rules of Court, which would preclude its entry in the General List and any procedural action "unless and until the State against which such application is made consents to the Court's jurisdiction for the purposes of the case" ;

24. Whereas at the end of its aide-mémoire France states that "in the absence of a case coming within the jurisdiction of the Court, no procedural action can be taken"; that the result of this is the preclusion of any public hearing and any incidental proceedings, and that, consequently, in particular, the "Further Request for the Indication of Provisional Measures" submitted by New Zealand cannot be examined by the Court; and that France is not in any sense making preliminary objections within the meaning of Article 79 of the Rules of Court, since the problem facing the Court in this case is "anterior" and the solution to this problem is a "categorical prerequisite" not related to any incidental proceedings;

25. Whereas a copy of the French aide-mémoire was transmitted to New Zealand by the Registrar;

26. Whereas on 7 September 1995 New Zealand filed in the Registry a document entitled "Supplementary aide-mémoire", which contained comments on certain passages in the French aide-mémoire; and whereas the Registrar transmitted a copy of that document to the French Government ;

27. Whereas on 8 September 1995 the Registrar addressed to New Zealand and France identical letters worded as follows: [p296]

"The Court today held a private meeting in order, inter alia, to enable the President to consult his colleagues on various matters relating to the submission of the documents concerned. At the close of that meeting, it was agreed that on Monday 11 September 1995 at 3 p.m. the Court will hold a public sitting in order to enable New Zealand and France to inform it of their views on the following question: 'Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. France)?'

For the purposes of that sitting, and bearing in mind the composition of the Court at the time when the Judgment was delivered, the Right Honorable Sir Geoffrey Palmer, chosen to sit as Judge ad hoc by New Zealand, will join the Court and make the necessary solemn declaration.

The above arrangements shall in no way prejudice any decision which the Court will subsequently take regarding the existence or not of a case before it":

28. Whereas, at a meeting held by the President of the Court with the representatives of New Zealand and France on 11 September 1995, it was agreed that the Court would hold three public sittings on the abovementioned question, each State being allotted equal speaking time and the opportunity to present a brief reply;

29. Whereas, at the opening of the public sitting of 11 September 1995 (afternoon) devoted to the above-mentioned question, the President of the Court announced that, on 6 September 1995, he had received a letter from the Prime Minister of New Zealand in which the latter, referring to the nuclear test carried out the previous day at Mururoa by the French Government, reiterated the Requests already made by the New Zealand Government that the President should use the powers conferred upon him by Article 66, paragraph 3, of the 1972 Rules of Court; and whereas the President stated that he had been fully aware of the import of those Requests, to which he had given his full attention, but that the powers conferred upon him by the above-mentioned provision of the 1972 Rules of Court, as well as by Article 74, paragraph 4, of the Rules now in force, expressly applied to incidental proceedings for the indication of provisional measures, and that it would therefore have been difficult for him to accede to those Requests without necessarily prejudging the issues submitted to the Court;

30. Whereas, at the public sittings held on 11 and 12 September 1995 in order to enable New Zealand and France to make known their views on the question put by the Court, oral statements were presented: [p297]

on behalf of New Zealand:
by The Honorable Paul East, Q.C., Agent, Mr. John McGrath, Q.C., Mr. Elihu Lauterpacht, C.B.E., Q.C., Sir Kenneth Keith, Q.C., Mr. Don MacKay;

on behalf of France:
by Mr. Marc Perrin de Brichambaut, Mr. Pierre-Marie Dupuy, Mr. Alain Pellet, Sir Arthur Watts, K.C.M.G., Q.C. ;

and whereas during those sittings questions were put by Judges, to which New Zealand and France subsequently replied in writing, within the prescribed time-limit ;

31. Whereas in their oral statements New Zealand and France essentially confirmed the views they had already expressed in writing, while developing certain aspects of their argument;

32. Whereas in its oral statements New Zealand reiterated its essential position, contending that paragraph 63 of the Judgment of 20 December 1974 expressly reserved to it the right, in certain circumstances, to reopen the case instituted by the Application of 9 May 1973; that the Judgment concerned had conclusively decided only two things, namely, that the French statements of intention in relation to atmospheric testing had created binding obligations in international law and that, since the Court had concluded from official New Zealand statements that those commitments met and matched New Zealand's primary concerns, the case no longer had any object; that there was thus no res judicata in respect of certain issues raised in New Zealand's 1973 Application and that, by virtue of paragraph 63, those proceedings were not definitively closed; that the words "if the basis of this Judgment were to be affected" should be given a broad interpretation, and that the right to return to the Court would be activated "if a factor underlying the Court's Judgment of 1974 ceased to be applicable on account of future conduct by France"; that the words "the basis of the Judgment" should not be taken to refer solely to France's undertaking to conduct no further atmospheric tests; that New Zealand's Application, unlike that of Australia, was not limited to "atmospheric" testing, and the Court's conclusion, in paragraph 29 of the Judgment of 20 December 1974, that New Zealand's claim was to be interpreted as applying only to atmospheric tests, must be understood on the sole basis that "no thought [had been] given at that time to whether underground nuclear testing might lead to some of the same environmental consequences that were the subject of New Zealand's Application"; that one of the assumptions underlying the Judgment was that "cessation of atmospheric testing would end contamination of the environment by [p298] radioactive material" because in 1974 the available scientific evidence suggested that while atmospheric tests were dangerous, underground testing was believed to be safe; and that, since this was part of the "basis" of the Court's Judgment, if that basis were to be affected, the conditions for New Zealand to return to the Court would have been met;

33. Whereas in its oral statements New Zealand explained in detail that there was a growing body of recent scientific evidence of the potentially adverse and detrimental effects of underground testing in the South Pacific regions of Mururoa and Fangataufa Atolls, and that contamination of the marine environment was a real risk; that the cumulative effect of continued testinn on Mururoa Atoll had created a situation which experts now believed had seriously weakened its physical structure so that there was a risk that further tests would cause the atoll to "split open or disintegrate in such a way as to discharge into the ocean some part of the quantity of radioactive waste that has accumulated there"; that, consequently, the assumption made in the 1974 Judgment that the abandonment of atmospheric testing would put an end to the risks was erroneous, and that the basis of the Judgment had been affected by virtue of changes in the factual situation;

34. Whereas during its oral statements New Zealand further con-tended that changes in the law were capable of affecting the basis of the 1974 Judgment, since the Court must have been aware at the time of the Judgment in 1974 of "the prospect of a significant forward surge in the evolution of standards and procedures" in the field of international environmental law; that such an evolution had indeed taken place both in customary international law and by virtue of the Noumea Convention; that, under current customary law, especially stringent controls applied to the marine environment, so that, in general, the introduction of radioactive material into the marine environment was forbidden; and that, specifically, "any introduction of radioactive material into the marine environment as a result of nuclear tests" was forbidden; that the standard of proof to which New Zealand should be subject in seeking to demonstrate that France was in breach of its obligations was a prima facie test; and that by virtue of the adoption into environmental law of the "Precautionary Principle", the burden of proof fell on a State wishing to engage in potentially damaging environmental conduct to show in advance that its activities would not cause contamination;

35. Whereas New Zealand reiterated in its oral statements that Article 12 of the Noumea Convention required France to "take all appropriate measures to prevent, reduce and control pollution in the Convention Area which might result from the testing of nuclear devices"; that [p299] Article 16 of that Convention required the carrying out of an environmental impact assessment before any major project "which might affect the marine environment" was embarked upon; that a similar obligation existed under customary law; that, moreover, such obligation was not subject to any exception recognized in international law concerning national security; that the Precautionary Principle required France to carry out such an assessment as a precondition for undertaking the activities, and to demonstrate that there was no risk associated with them; and that France's failure to comply with these obligations had affected the basis of the 1974 Judgment ;

36. Whereas in its oral statements, with regard to the meaning of the words "in accordance with the provisions of the Statute" used in paragraph 63 of the Judgment of 20 December 1974, New Zealand contended that the nature of its present Request must be distinguished from an application for revision under Article 61 of the Statute, which would require the discovery of an essential fact which, had it been known at the time, would have caused a different judgment to be made; that paragraph 63 defined the circumstances for its own application as a "separate derivative proceeding" authorized by the Court in its 1974 Judgment, without any express basis in the Statute, and in the exercise of its inherent right to determine its own procedure; that the Court would not have found it necessary to express a right already provided by the Statute; and that the correct interpretation was that the examination requested, once allowed, "must continue in terms of the general statutory and indeed regulatory requirements for the procedure of any case";

37. Whereas the New Zealand Government consequently concluded that it should reply in the affirmative to the question put by the Court to both States, as formulated in the letter from the Registrar dated 8 September 1995;

38. Whereas in its oral statements the French Government recalled its essential position that the problem put to the Court, and on which New Zealand and France had been invited to express their views, was a problem which was not even preliminary, but truly a prerequisite of any formal act of procedure, the case brought before the Court by the New Zealand Application of 9 May 1973 having been definitively closed by the Judgment of 20 December 1974, whose operative part and reasons have the authority of res judicata; that in reply to the arguments put forward by New Zealand, while maintaining that this was not the subject of the debate with which the Court should be concerned, the French Government submitted data with a view to demonstrating, on the one hand, the harmlessness of underground nuclear tests in the short and longer term and to show, on the other, that France very actively endorsed the latest requirements of international law in the field of environmental protection ;

39. Whereas in its oral statements the French Government, referring to the words "if the basis of this Judgment were to be affected" used in [p300] paragraph 63 of the Judgment of 20 December 1974, contended that the said "basis" of the 1974 Judgment was determined by the subject-matter of the New Zealand Application of 1973 and by the nature of the commitment entered into by France in 1974 as to its future conduct; that the New Zealand Application, as appears in particular from paragraph 29 of the Court's Judgment of 20 December 1974, was concerned only with the ending of tests in the atmosphere likely to cause fallout on the territory of New Zealand; that New Zealand could not, without breaching the principle of good faith, attempt unilaterally to modify, by means of a fresh request, the meaning or scope of its 1973 Application, as determined at the time by the Court with binding force; that the commitment entered into by France in 1974 had two inseparable aspects, namely, on the one hand, an end to nuclear explosions in the atmosphere and, on the other, the shift to a new type of testing, underground testing; that the operative part of the Judgment of 20 December 1974 found that, owing to that commitment, the object of the New Zealand Application had been satisfied; that New Zealand had at that time considered itself reassured by the shift to underground testing because of the safety guarantees it offered and that, in its statements, it advanced no evidence or presumption of an unforeseen danger recently arising in the atolls; that the basis of the 1974 Judgment could not be affected by the resumption of underground testing announced in 1995, for the very reason that it was by the shift to testing of this type that the object of the New Zealand Application had been satisfied; and that it was consequently demonstrated that the first condition set in paragraph 63 of the said Judgment for submission of a "Request for an Examination of the Situation" had not, in the present instance, been fulfilled;

40. Whereas in its oral statements France, referring to the words "in accordance with the provisions of the Statute", used in paragraph 63 of the 1974 Judgment, contended that the only provisions of the Statute capable of permitting the "examination of the situation" contemplated by paragraph 63 of the Judgment of 20 December 1974 were Article 60, concerning the interpretation of a judgment, Article 61, relating to the revision of a judgment, and Article 40, paragraph 1, of the Statute, whereby "cases are brought before the Court", as appropriate, "by a written application addressed to the Registrar"; that New Zealand relied on none of those provisions; that its "Request for an Examination of the Situation" did not constitute a request for interpretation of the Judgment of 20 December 1974, since New Zealand was not seeking the interpretation of the said Judgment but the reopening of proceedings declared closed by the Court; that the action by New Zealand was more akin to a request for revision of the 1974 Judgment, New Zealand insisting on the existence of new facts, but that it was manifest that the conditions imposed by Article 61 of the Statute had not been fulfilled, the French decision taken in 1995 to conduct a final series of underground tests not having by definition existed prior to delivery of the Judgment, and the time-limit of ten years provided for in Article 61, paragraph 5, of the [p301] Statute having expired; that the "Request for an Examination of the Situation" submitted by New Zealand had the appearance, in regard to its content, of an application but that New Zealand claimed, at the same time, that there was no new case; that New Zealand was seeking, through the said Request, to seize the Court of an entirely new dispute to which, according to New Zealand, new legal rules applied; that, in the event of a fresh application, New Zealand would have had to indicate a "present day" jurisdictional link between itself and France, and that, in the absence of such indication, Article 38, paragraph 5, of the Rules of Court became applicable; that, if such were the case, and failing the consent of France, the New Zealand application or request could not be entered in the General List and no procedural steps could be taken; that it was consequently demonstrated that the second condition set in paragraph 63 of the 1974 Judgment for submission of a "request for an examination of the situation" had not, in the present instance, been fulfilled;

41. Whereas in the course of its oral statements the French Government also indicated that, for want of a principal proceeding, there could not be any incidental proceedings; that the Court could not therefore deal with the "New Request for the Indication of Provisional Measures" submitted by New Zealand and that the conditions laid down by the jurisprudence of the Court for the indication of provisional measures had moreover not, in the present instance, been fulfilled; and that the Court could not deal, either, with the "Applications for Permission to Intervene" and "Declarations of Intervention" filed by five Governments in the Registry of the Court;

42. Whereas the French Government consequently concluded that it had to reply in the negative to the question put by the Court to both States, as formulated in the letter from the Registrar dated 8 September 1995;

43. Whereas in the written replies given by New Zealand and France to the questions put by the Judges during the public sittings the two States clarified some of the arguments they had previously put forward; and whereas, inter alia, New Zealand, on the basis of a textual analysis of paragraph 63 of the 1974 Judgment and referring in particular to the position of the words "in accordance with the provisions of the Statute", maintained that: those words could only refer to the procedure applicable to an examination of the situation and not to the need to have recourse to one of the courses of action expressly laid down by the Statute and also that it would have been entitled, had it so wished, to submit its request for an examination in the form of a written application within the meaning of Article 40 of the Statute invoking the same bases of jurisdiction as in its initial Application of 1973 and bearing in mind the indications given in this respect in paragraph 63 of the Judgment or in the form of a request for interpretation according to Article 60 of the Statute; [p302]

44. Whereas New Zealand has submitted a "Request for an Examination of the Situation" under paragraph 63 of' the Judgment delivered by the Court on 20 December 1974 in the Nuclear Tests (New Zealand v. France) case; whereas such a request, even if it is disputed in limine whether it fulfills the conditions set in that paragraph, must nonetheless be the object of entry in the General List of the Court for the sole purpose of enabling the latter to determine whether those conditions are fulfilled; and whereas, consequently, the Court has instructed the Registrar, pursuant to Article 26, paragraph 1 (b), of its Rules, to enter that Request in the General List;

45. Whereas New Zealand bases its Request on paragraph 63 of the Judgment of 20 December 1974, which provides:

"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";

46. Whereas, in the present instance, the following question has to be answered in limine: "Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. France) ?"; and whereas the Court has consequently limited the present proceedings to that question;

47. Whereas that question has two elements; whereas one concerns the courses of procedure envisaged by the Court in paragraph 63 of its 1974 Judgment, when it stated that "the Applicant could request an examination of the situation in accordance with the provisions of the Statute" ;and whereas the other concerns the question whether the "basis" of that Judgment has been "affected" within the meaning of paragraph 63 thereof;

48. Whereas, as to the first element of the question before it, New Zealand expresses the following view :

"paragraph 63 is a mechanism enabling the continuation or the resumption of the proceedings of 1973 and 1974. They were not fully determined. The Court foresaw that the course of future events might in justice require that New Zealand should have that opportunity [p303] to continue its case, the progress of which was stopped in 1974. And to this end in paragraph 63 the Court authorized these derivative proceedings" ;

49. Whereas New Zealand claims that it

"is given a right, in stated circumstances 'to request an examination of the situation in accordance with the provisions of the Statute'. Those words are only capable of meaning that the presentation of a Request for such an examination is to be part of the same case and not of a new one";

and whereas it adds, furthermore, that, in pointing to "the provisions of the Statute", paragraph 63 could only be referring to the provisions concerning the procedure applicable to the examination of the situation once the Request is made;

50. Whereas New Zealand furthermore explicitly States that it is not seeking an interpretation of the 1974 Judgment under Article 60 of the Statute, nor a revision of that Judgment under Article 61 ;

51. Whereas France, for its part, stated as follows:

"As the Court itself has expressly stated, the possible steps to which it alludes are subject to compliance with the 'provisions of the Statute' . . . The French Government incidentally further observes that, even had the Court not so specified, the principle would nevertheless apply: any activity of the Court is governed by the Statute, which circumscribes the powers of the Court and prescribes the conduct that States must observe without it being possible for them to depart there from, even by agreement . . .;as a result and a fortiori, a State cannot act unilaterally before the Court in the absence of any basis in the Statute.

Now New Zealand does not invoke any provision of the Statute and could not invoke any that would be capable of justifying its procedure in law. It is not a request for interpretation or revision . . ., nor a new Application, whose entry in the General List would, for that matter, be quite out of the question . . .";

52. Whereas, in expressly laying down, in paragraph 63 of its Judgment of 20 December 1974, that, in the circumstances set out therein, "the Applicant could request an examination of the situation in accordance with the provisions of the Statute", the Court cannot have intended to limit the Applicant's access to legal procedures such as the filing of a new application (Statute, Art. 40, para. l), a request for interpretation (Statute, Art. 60) or a request for revision (Statute, Art. 61), which would have been open to it in any event;

53. Whereas by inserting the above-mentioned words in paragraph 63 of its Judgment, the Court did not exclude a special procedure, in the event that the circumstances defined in that paragraph were to arise, in [p304] other words, circumstances which "affected" the "basis" of the Judgment;

54. Whereas such a procedure appears to be indissociably linked, under that paragraph, to the existence of those circumstances; and whereas, if the circumstances in question do not arise, that special procedure is not available;

55. Whereas the Court must now consider the second element of the question raised and determine whether the basis of its Judgment of 20 December 1974 has been affected by the facts to which New Zealand refers and whether the Court may consequently proceed to examine the situation as contemplated by paragraph 63 of that Judgment; and whereas, to that end, it must first define the basis of that Judgment by an analysis of its text;

56. Whereas the Court, in 1974, took as the point of departure of its reasoning the Application filed by New Zealand in 1973; whereas it affirmed in its Judgment of 20 December 1974 that it was its duty "to isolate the real issue in the case and to identify the object of the claim"; whereas it subsequently added that "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 being "one of the attributes of its judicial function" (I.C.J. Reports 1974, p. 466, para. 30); and whereas it continued as follows:

"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 . . . 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 ..." (ibid., p. 467, para. 31);

57. Whereas, in the light of this, the Court referred, among other things, to a statement made by the Prime Minister of New Zealand that

"[t]he 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 . . .";

and whereas it found 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" (ibid.,p. 466, para. 29); [p305]

58. Whereas on the same date, 20 December 1974, the Court furthermore delivered a Judgment in the Nuclear Tests (Australia v. France) case, in which Australia had asked, in express terms, that it "adjudge and declare that . . . the carrying out of further atmospheric nuclear weapon tests . . . is not consistent with applicable rules of international law"

(I.C.J. Reports 1974, p. 256, para. 11); whereas, having considered the Application of Australia, the Court employed in paragraph 60 of that Judgment a form of words identical to the one used in paragraph 63 of the Judgment in the Nuclear Tests (New Zealand v. France) case and adopted, in both Judgments, operative parts with the same content; and whereas for the Court the two cases appeared identical as to their subject matter which concerned exclusively atmospheric tests;

59. Whereas the Court, in making these findings in 1974, had dealt with the question whether New Zealand, when filing its Application of 1973 instituting proceedings, might have had broader objectives than the cessation of atmospheric nuclear tests the "primary concern" of the Government of New Zealand, as it now puts it; and whereas, since the current task of the Court is limited to an analysis of the Judgment of 1974, it cannot now reopen this question;

60. Whereas, moreover, the Court, at that time, took note of the communiqué issued by the Office of the President of the French Republic on 8 June 1974, 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" (ibid., p. 469, para. 35);

whereas it likewise referred to other official declarations of the French authorities on the same subject; and whereas it concluded, with reference to all those statements, that

"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" (ibid., p. 474, para. 51) ;

61. Whereas the unilateral declarations of the French authorities were made publicly outside the Court and erga omnes, and expressed the French Government's intention to put an end to its atmospheric tests; whereas the Court, comparing the undertaking entered into by France with the claim asserted by New Zealand, found that it faced "a situation in which the objective of the Applicant [had] in effect been accomplished" (ibid., p. 475, para. 55); and accordingly indicated that "the object of the claim having clearly disappeared, there is nothing on which to give judgment" (ibid., p. 477, para. 62);

62. Whereas the basis of the Judgment delivered by the Court in the Nuclear Tests (New Zealand v. France) case was consequently France's [p306] undertaking not to conduct any further atmospheric nuclear tests; whereas it was only, therefore, in the event of a resumption of nuclear tests in the atmosphere that that basis of the Judgment would have been affected; and whereas that hypothesis has not materialized;

63. Whereas, in analysing its Judgment of 1974, the Court has reached the conclusion that that Judgment dealt exclusively with atmospheric nuclear tests; whereas consequently it is not possible for the Court now to take into consideration questions relating to underground nuclear tests; and whereas the Court cannot, therefore, take account of the arguments derived by New Zealand, on the one hand from the conditions in which France has conducted underground nuclear tests since 1974, and on the other from the development of international law in recent decades -and particularly the conclusion, on 25 November 1986, of the Noumea Convention any more than of the arguments derived by France from the conduct of the New Zealand Government since 1974;

64. Whereas moreover the present Order is without prejudice to the obligations of States to respect and protect the natural environment, obligations to which both New Zealand and France have in the present instance reaffinned their commitment;

65. Whereas the basis of the Judgment delivered on 20 December 1974 in the Nuclear Tests (New Zealand v. France) case has not been affected; whereas the "Request for an Examination of the Situation" submitted by New Zealand on 21 August 1995 does not therefore fall within the provisions of paragraph 63 of that Judgment; and whereas that Request must consequently be dismissed;

66. Whereas, as indicated in paragraph 44 above, the "Request for an Examination of the Situation" submitted by New Zealand in accordance with paragraph 63 of the 1974 Judgment has been entered in the General List for the sole purpose of allowing the Court to determine whether the conditions laid down in that text have been fulfilled in the present case; and whereas, following the present Order, the Court has instructed the Registrar, acting pursuant to Article 26, paragraph 1 (b), of the Rules, to remove that Request from the General List as of 22 September 1995;

67. Whereas it follows from the conclusions reached by the Court in paragraph 65 above that it must likewise dismiss the "Further Request for the Indication of Provisional Measures" submitted by New Zealand, as well as the "Application for Permission to Intervene" submitted by Australia, and the "Applications for Permission to Intervene" and "Declarations of Intervention" submitted by Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia all of which are proceedings incidental to the "Request for an Examination of the [p307] Situation" submitted by New Zealand; and whereas the Court has instructed the Registrar to so inform the States concerned in notifying them of the text of the present Order;

68. Accordingly,

(1) By twelve votes to three,
Finds that the "Request for an Examination of the Situation" in accordance with paragraph 63 of the Judgment of the Court of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case; submitted by New Zealand on 21 August 1995, does not fall within the provisions of the said paragraph 63 and must consequently be dismissed;
IN FAVOUR: Bedjaoui;
President Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;
AGAINST :Judges Weeramantry, Koroma ;Judge ad hoc Sir Geoffrey Palmer;
(2) By twelve votes to three,
Finds that the "Further Request for the Indication of Provisional Measures" submitted by New Zealand on the same date must be dismissed ;
IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;
AGAINST:Judges Weeramantry, Koroma; Judge ad hoc Sir Geoffrey Palmer;
(3) By twelve votes to three,
Finds that the "Application for Permission to Intervene" submitted by Australia on 23 August 1995, and the "Applications for Permission to Intervene" and "Declarations of Intervention" submitted by Samoa and Solomon Islands on 24 August 1995, and by the Marshall Islands and the Federated States of Micronesia on 25 August 1995, must likewise be dismissed.
IN FAVOUR : President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: Judges Weeramantry, Koroma; Judge ad hoc Sir Geoffrey Palmer.
Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this twenty-second day of September, one thousand nine hundred and ninety-five, 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) Mohammed BEDJAOUI,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Vice-President SCHWEBEL, Judges ODA and RANJEVA append declarations to the Order of the Court.

Judge SHAHABUDDEEN appends a separate opinion to the Order of the Court.

Judges WEERAMANTRY, KOROMA and Judge ad hoc Sir Geoffrey PALMER append dissenting opinions to the Order of the Court.

(Initialled) M.B.

(Initialled) E.V.O. [p309]


DECLARATION OF VICE-PRESIDENT SCHWEBEL

While concurring with the Court's disposition of the substance of the Requests of New Zealand, 1have reservations about some of the procedures which have been followed.

In my view, it was obvious from the outset that New Zealand was entitled to move in pursuance of the express authorization provided by the Court in paragraph 63 of its Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case. Claims that there could be no case, that New Zealand could act only to seek the interpretation or revision of the Judgment or to bring a new case, that there was no room for appointment of agents or a judge ad hoc, that the President was not entitled to exercise his authority under the Rules of Court to call upon the Parties to act in such a way as would enable any order the Court might make on the request for provisional measures to have its appropriate effects, and that the Court could not have oral hearings, accordingly were misplaced. The action of New Zealand was singular, in pursuance of a singular provision in the Court's Judgment of 20 December 1974. But France's reaction was in my view tantamount to, an objection to the admissibility of New Zealand's Requests, and should have been so treated.

In the end, and in the essentials, the Court did assimilate France's objections to New Zealand's Requests to an objection to admissibility, in so far as it seated the Judge ad hoc designated by New Zealand, and held oral hearings at which the Parties submitted their arguments on the threshold question put by the Court to them. Whatever the reservations expressed, it is plain that when fifteen judges gathered in their robes in the Great Hall of Justice of the Peace Palace, and when Judge ad hoc Sir Geoffrey Palmer took his oath of office, the Members of the Court did not meet, Pirandello style, in search of a courtroom or a case, but conducted an oral hearing on a phase of a case.

(Signed) Stephen SCHWEBEL. [p310]


DECLARATION OF JUDGE ODA

I fully support the Order which dismisses New Zealand's request to re-open the Nuclear Tests (New Zealand v. Rance) case of 1973-1974, as I share the reasoning with regard to the matters of procedure leading to the refusal of that request. But, as the Member of the Court from the only country which has suffered the devastating effects of nuclear weapons, I feel bound to express my personal hope that no further tests of any kind of nuclear weapons will be carried out under any circumstances in future.

(Signed) Shigeru ODA. [p311]


DECLARATION OF JUDGE RANJEVA

[Translation]

The unique nature of the present decision in my view justified adhering to the structure of the reasoning adopted in paragraph 63 of the 1974 Judgment. Hence it would have been preferable to deal first with what paragraph 48 of the Order terms the second part of the question. Moreover, the conclusions reached by the Court regarding "the question whether the 'basis' of that Judgment has been 'affected' within the meaning of paragraph 63 thereof" rendered the developments devoted to procedural questions without object. The approach adopted in the Order, contrary to the requirements of paragraph 63 of the Judgment of 1974, favours procedural formalism over legal substance.

(Signed) Raymond RANJEVA. [p312]

SEPARATE OPINION OF JUDGE SHAHABUDDEEN

The growing recognition of the need to protect the natural environment is striking. Contemporary international law has been developing responsively. I understand New Zealand's concerns and agree with its case on several points. 1 agree that it was entitled to come to the Court, entitled to a hearing, entitled to a judge ad hoc, and that it was not shut out by the words in paragraph 63 of the 1974 Judgment, "in accordance with the provisions of the Statute". If I do not go the remainder of the way, the reason lies in what appears to me to be substantial legal obstacles, some of which I would like to explain.

I. THE QUESTION OF THE BASIS OF THE JUDGMENT
The central point in New Zealand's case is that the basis of the 1974 Judgment lay in an assumption by the Court that underground tests were safe, that more recent scientific evidence disproves that assumption, and that consequently the basis of the Judgment has been affected within the meaning of paragraph 63 of the Judgment.

A question could arise as to whether the true position was that the Court made an assumption that underground tests were safe, or whether it acted on an understanding that New Zealand was satisfied that such tests were safe, the Court itself being in no position to judge of a complex technical matter not put in issue and not examined. However, whether the distinction between these two possibilities can be made and, if so, with what significance are questions which need not be pursued for the reasons given in Sections II and III below.

II. WHETHER NEW ZEALAND'S REQUEST IS WITHIN THE LIMITS OF THE DISPUTE

Paragraph 64 of New Zealand's present Request States :

"The 1973 Application makes it clear that the dispute was in its origin about nuclear contamination of the environment arising from nuclear testing of whatever nature. The 'atmospheric' feature was merely incidental to the 'contamination' feature, which was of the essence." [p131]

New Zealand's position is that the 1974 Judgment incorrectly assumed that its 1973 Application was limited to the question of the legality of atmospheric testing.

I accept that New Zealand was opposed to nuclear contamination arising from nuclear testing of any kind. Evidence of this is to be seen at various places in the pleadings and other material placed before the Court in 1973-1974 (see I.C.J. Pleadings, Nuclear Tests, Vol. II, pp. 4, 18, 22 and 301). The question is how far was this general opposition to contamination from nuclear testing of any kind made the subject of the dispute presented in the particular case which New Zealand brought against France in 1973. The bringing of the case was no doubt motivated by New Zealand's general opposition to contamination from nuclear testing of any kind; however, the framework of the case would fall to be determined by more specific considerations governing the designing of any concrete piece of litigation.

In determining what the 1973 case was about, it is necessary to start with the concept of a legal dispute. As the Court remarked in its Judgment of 20 December 1974, "the existence of a dispute is the primary condition for the Court to exercise its judicial function" (I.C. J. Reports 1974, p. 476, para. 58).

The case for New Zealand is that its present Request does not introduce a new case, but rather represents a continuation of its,,1973 case. It follows that the Request hinges on the dispute presented by the 1973 case and cannot expand it. So the question is, what was the dispute presented in that case?

After references in New Zealand's 1973 Application to discussions between the two sides, paragraph 8 of the Application stated:

"The French Government . . . made it plain that it did not accept the contention that its programme of atmospheric nuclear testing in the South Pacific involved a violation of international law. There is, accordingly, a dispute between the Government of New Zealand and the French Government as to the legality of atmospheric nuclear tests in the' South Pacific region." (I.C.J. Pleadings, Nuclear Tests, Vol. II, p. 4.)

That passage fell under the heading "The Subject of the Dispute". Paragraph 10 of the Application, falling under the same heading, added:

"Having failed to resolve through diplomatic means the dispute that exists between it and the French Government, the New Zealand Government is compelled to refer the dispute to the International Court of Justice." (Ibid.)

Thus, the dispute which was referred by New Zealand to the Court in 1973 was one "as to the legality of atmospheric nuclear tests". It is not [p314] that the Court assumed that this was the dispute, and even less that it assumed so erroneously: New Zealand said that that was the dispute; it did so in the operative part of its Application by which it formally defined its complaint and referred it to the Court.

The foregoing view of the dispute, as one which concerned the legality of atmospheric nuclear tests, was maintained in paragraph 188 of New Zealand's 1973 Memorial. Under the heading "Nature of the Claim Which 1s the Subject of the Dispute and of the Legal Rights for Which New Zealand Seeks Protection", that paragraph read:

"The dispute between New Zealand and France is of a legal character. New Zealand claims that the atmospheric testing of nuclear weapons by France in the South Pacific is undertaken in violation of legal obligations owed by France to New Zealand. France has denied and continues to deny this claim." (I.C.J. Pleadings, Nuclear Tests, Vol. II, p. 203.)

Against this background it is not surprising that, at the beginning of the oral proceedings relating to jurisdiction and admissibility, President Lachs referred to the Application as having "instituted proceedings against France in respect of a dispute as to the legality of atmospheric nuclear tests in the South Pacific region" (ibid., p. 250). The remark drew no objection from the Bar.

That view of the purpose of the proceedings was maintained by the Court after reviewing all of the material before it, including the arguments of New Zealand. Summing up its conclusion in paragraph 29 of the Judgment, the Court said, in a key passage recalled in today's Order:

"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" (I.C.J, Reports 1974,p. 466; and see, ibid., p. 458, para. 1, and p. 461, para. 16).

New Zealand has not sought to contest the submission of France that nothing in any of the dissenting opinions appended to the Judgment questioned that part of the Court's finding (Aide-mémoire of France, 6 September 1995, para. 15). The limits of the dispute, as both positively and negatively defined by the Court in that finding, still control the debate. The legality of underground tests lies outside of those limits.

III. WHETHER NEW ZEALAND'S REQUEST IS OTHERWISE AUTHORIZED BY PARAGRAPH 63 OF THE JUDGMENT

It is necessary to bear in mind the substantive nature of the reliefs being sought by New Zealand in respect of the underground tests now [p315] being conducted by France. New Zealand is not simply asking the Court to reconsider the matters complained of in its 1973 Application in the light of the new situation; it is asking for substantive reliefs in respect of the new situation in like manner as it would if, instead of its request, it had brought a new case. Its request for an examination of the situation is asking for declarations as to the legality of the underground tests; its request for an indication of provisional measures is seeking measures restraining France from conducting the tests. The acts complained of are new acts. Was a request within the meaning of paragraph 63 of the 1974 Judgment intended to extend to such a case?

The reservation in paragraph 63 of the 1974 Judgment was not intended, in my opinion, to enable the Court to assume and exercise competence over fresh matters not covered by such jurisdictional bond, if any, as existed between the Parties when the Application was brought in 1973. Where the Court has jurisdiction at the time when an Application is brought, the Nottebohm principle entitles it to continue to exercise that jurisdiction in relation to the dispute presented in the Application notwithstanding that the jurisdiction was terminated during the course of the proceedings. The last sentence of paragraph 63 of the 1974 Judgment sought to treat a request made pursuant to that paragraph as falling within the operation of that principle, in the same way that the principle would have applied to the original case had it continued; the sentence could not be construed as an attempt by the Court, by force of its own decision, to vest itself with jurisdiction not otherwise available to it. 1 have not been able to find any principle of law which entitles the Court to exercise a terminated jurisdiction over fresh acts occurring after the termination, in this case some 21 years after the jurisdiction (if it existed) was terminated. A request which leads to that result is not, in my opinion, a request within the meaning of paragraph 63 of the Judgment.

CONCLUSION

As will appear from other opinions appended to the Order, the case raises important questions of principle concerning the role and functions of the Court.

In this respect, it is right to recall that the title of the Court is the "International Court of Justice". However, it is also useful to bear in mind that the "Justice" spoken of is not justice at large; as in the case of courts of justice generally, it is "the primary function of the Court to administer justice based on law" (Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 191, joint dissenting opinion). That is made clear by Article 38, paragraph 1, of the Statute, which provides that the Court's "function is to decide in accordance with international law such disputes as are submitted [p316] to it . . .". It is for this reason that the Court is sometimes referred to in its own jurisprudence as "a court of law" (North Sea Continental Shelf; Judgment, I.C.J. Reports 1969, p. 165, Vice-President Koretsky, dissenting opinion; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I. C. J. Reports 1971, p. 23, para. 29; and Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 192, para. 45); and that, indeed, was how the Court described itself in its 1974 Judgment in this case (Nuclear Tests (New Zealand v. France), I. C. J. Reports 1974, p. 476, para. 58).

It does not follow from the fact that the Court may also be described as a court of law that it administers the law mechanically. Lacking the full measure of the judicial power available to some national courts, it has nevertheless found opportunity for enterprise and even occasional boldness. Especially where there is doubt, its forward course is helpfully illuminated by broad notions of justice. However, where the law is clear, the law prevails.

The law is clear that the Court cannot act unless there is a dispute before it, and then only within the limits of the dispute. The dispute which New Zealand referred to the Court in 1973 arose out of a claim by New Zealand which the Court found applied "only to atmospheric tests, not to any other form of testing" (emphasis added). The Court would have been acting ultra petita in 1974 had it sought to adjudicate on the legality of underground tests (supposing it had been asked to do so), these being another form of testing. It is in respect of the legality of underground tests that New Zealand's present Request seeks relief. The matters sought to be so raised do not fall within the limits of the 1973 dispute by which the Court is still bound.

It is for these reasons that, although agreeing with New Zealand on some points, I have not found it possible to accept its main arguments.

(Signed) Mohamed SHAHABUDDEEN. [p317]



DISSENTING OPINION OF JUDGE WEERAMANTRY [p319]

This is a Request by which New Zealand seeks the continuation of the proceedings it filed in 1973. New Zealand is not entitled to commence fresh proceedings against France in view of the steps taken by France, since the institution of the case in 1973, to withdraw the bases of jurisdiction under which that case was filed. New Zealand's Request for an Examination of the Situation can only be entertained by the Court if it constitutes another phase of those earlier proceedings. The burden lies upon New Zealand to demonstrate this.

The fundamental question before the Court in this Request is whether the "basis of this Judgment" of this Court in 1974 has been "affected", for the Court in that Judgment left open to New Zealand the right to approach this Court again in that event. That question can only be decided by a two-fold process an examination of the meaning of the term "basis of this Judgment" and an examination of such factual material as New Zealand places before the Court to show that that "basis" has been "affected".

I regret that the Court has chosen to determine the entire Request, involving, though it does, matters of profound moment to the entire global community, upon what seems to me to be an unduly limited construction of the phrase "basis of this Judgment", without a determination on the second question essential to its decision, namely, whether New Zealand has made out a prima facie case on the facts that such basis has been affected. It seems to me the two questions are integrally linked. As is so often the case with questions affecting the competence of the Court, a decision in this case can only be arrived at through an interaction of the legal and factual elements involved (see Ibrahim F. 1.Shihata, The Power of the International Court to Determine Its Own Jurisdiction, 1965, p. 299).

The phrase "basis of this Judgment" necessitates an enquiry into the grievance which brought New Zealand to the Court, the object of the proceedings, the remedies contained in the Judgment, the basis of facts and knowledge underlying the Judgment, the reasoning or ratio decidendi of the Judgment and, in short, the overall context in which the operative words are set. My conclusion, having regard to all these matters, is fundamentally different from that of the majority of my colleagues. The difference between the two approaches touches the fundamentals of the judicial process as I understand it, and this opinion contains some necessary observations in this regard.

The ensuing opinion is an attempt to describe what I conceive to be the correct approach to the momentous question which New Zealand's Request brings before the Court. In making these observations, I bear in mind of course that the scope of New Zealand's present Request is circumscribed within the limits of the initial pleadings on which that case commenced and that New Zealand can claim no more now than it claimed then. No grievances, no reliefs, no orders can be pleaded or [p320] sought other than those which are strictly within the limits of that original Application.

INTRODUCTION

Unusual Nature of New Zealand's Request

This Request for an Examination of the Situation is probably without precedent in the annals of the Court. It does not fit within any of the standard applications recognized by the Court's rules for the revision or interpretation of a judgment rendered by the Court. It is an unusual request generated by an unusual provision contained in the Court's Judgment of 1974.

Paragraph 63 of that Judgment reads as follows:

"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." (Nuclear Tests (New Zealand v. France), I.C.J. Reports 1974, p. 477.)

Paragraph 63 was a precautionary provision which the Court included in its Judgment when it decided to act upon a unilateral declaration by France that it would discontinue atmospheric testing of nuclear weapons a declaration which it considered to be legally binding. The Court used its undoubted powers of regulating its own procedure to devise a procedure sui generis.

This procedure went beyond the provision for interpretation of a judgment contained in Article 60 of the Court's Statute and the provision for revision contained in Article 61. The Court no doubt considered that in the circumstances before it, it needed to go beyond either of those provisions. It was seeking to meet a need different from the need for interpretation or for revision of the Judgment. It was also opening the door to New Zealand in a manner which reached beyond the period of limitation attached to applications for revision.

The rationale of the Court's action was totally different from the rationale underlying revision, for revision involves an alteration or modification of the Judgment, whereas the Court's action was aimed at preserving the Judgment in its full integrity, in the event that some event had occurred which undermined the basis of the Judgment. Moreover, had [p321] revision been its intention, there was no necessity for the Court to make any special provision as the Statute would have operated automatically.

I therefore see no merit in the submission that an application under paragraph 63 is an application for revision under another guise. The two procedures are totally different in conception, nature and operation.

In devising a special provision dealing with a situation that could arise in the future and affect the basis of the Judgment, the Court was demonstrating its anxiety to preserve intact the basic assumptions on which the Judgment was constructed. We must conclude that the Court considered the matter too important to be left unprovided for.

The Court, well aware of the provisions in its established procedure relating to interpretation and revision, was not indulging in an exercise in tautology. It was devising an unprecedented procedure to meet an unprecedented situation.

Background to the Court's Judgment in 1974

The Court accepted the French declaration as reducing New Zealand's claim to one which no longer had any object. Indeed, in the Court's view, it had caused the dispute to disappear.

One can be in no doubt that the Court's understanding and indeed New Zealand's at the time was that the damage complained of by New Zealand would come to an end in view of the undertaking by France. Atmospheric tests were the only tests then being conducted by France in the Pacific. An unequivocal indication was given that they would be ended. To all appearances the dispute was therefore at an end.

Yet the Court was dealing with a matter of the utmost importance to the fundamental rights of the people of New Zealand. It did not leave open any possibilities for circumstances yet unseen to undermine the basis of its Judgment, nor did it leave New Zealand defenseless in the protection of the very rights whose protection had brought it before the Court in the first instance. Though fully satisfied that the objective of New Zealand had been attained and the threats to its rights overcome, it still took the precaution of introducing into its Judgment this clause of its own devising.

It is under that clause that New Zealand requests the Court to consider the situation in the light of its assertion that the current underground nuclear tests produce the same kind of radioactive contamination of its environment as it complained of in 1973.

Questions of Jurisdiction and Admissibility

In the case instituted in 1973, the Court did not proceed to a finding on questions of jurisdiction and admissibility. The Order of 22 June 1973 [p322] indicating certain provisional measures against the Parties was made on the basis that :

"it cannot be assumed a priori that such claims fall completely outside the purview of the Court's jurisdiction, or that the Government of New Zealand may not be able to establish a legal interest in respect of these claims entitling the Court to admit the Application" (Nuclear Tests (New Zealand v. France), Interim Protection, I.C.J. Reports 1973, p. 140, para. 24).

There was thus no determination on questions of admissibility or jurisdiction prior to that Order, nor was there a finding on these matters at any subsequent stage.

For the reasons set out above, this opinion does not in any way touch upon the merits of New Zealand's claim. It will confine itself initially to examining whether the basis of the 1974 Judgment has been in any way affected. It will be necessary for a determination of this question to refer to some matters of fact set out in New Zealand's Request and Application. But if these are referred to, they are only for an examination of the question whether there is prima facie a situation which reactivates the 1973 case through the key provided by paragraph 63 of the 1974 Judgment. It is impossible to determine whether the basis of that Judgment has been affected without some reference to such questions of fact.

SOME PRELIMINARY QUESTIONS

Is the 1974 Case Dead?

One of the basic positions of France is that the Judgment of 1974 is res judicata and that the case instituted in 1973 is dead. In the picturesque language of its counsel, this was no legal Lazarus and no one could revive it.

France also calls in aid, in support of this view, the fact that no academic writing and no publication of the Court lists New Zealand's case against France as a case that is pending. Rather, it is listed even in official Court publications among cases that have been disposed of.

In addressing this question, certain incontrovertible propositions must first be noted:

the Court itself has stated in the Judgment that New Zealand may come back to the Court in certain eventualities, however one may define them ;
the Court specially fashioned this procedure to meet the particular needs of this case;
-this right is given without any limitation of time;
-no academic publications, nor indeed any official publications of the Court, can prevail against the express words of the Judgment itself; [p323]
the Court was within its undoubted inherent powers of regulating its own procedure in making this provision in the Judgment ;
the Court was concerned with possible future events which might undermine the basis of the Judgment;
the Court deliberately chose a procedure other than revision or interpretation.

The argument that the case was dead is consequently one which seems to fly in the face of the Court's own words which kept it alive in certain eventualities. Far from being a revisionary procedure in another form, paragraph 63 is an independent procedure standing in its own right. Devised by the Court and carrying the full stamp of the Court's authority, its express words contradict the contention that the case is dead.

Paragraph 63 enables the case to be reopened by New Zealand if, but only if, the conditions it specifies be met -namely, that the basis of the Judgment has been affected. If that paragraph comes into operation, the case is revived, New Zealand's Request must be entertained by the Court and New Zealand's request for provisional measures must be considered. New Zealand would be approaching the Court under the very authority of the Court itself. New Zealand's right to approach the Court and the validity of New Zealand's Request to this effect cannot in these circumstances be in doubt. The Court would then also have to consider the interventions by Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia.

If, on the other hand, New Zealand does not have the key with which to open the door of paragraph 63, its Request must be dismissed and the occasion for taking the other steps specified above does not arise.

Whether New Zealand has that key i.e., whether New Zealand is able to show that the basis of the Judgment is affected is the crux of the matter before the Court.

Is Paragraph 63 Self contradictory ?

It was suggested in the course of the argument that the words "in accordance with the provisions of the Statute" restrict New Zealand to the specific forms of approaching the Court which are provided in the Statute. I do not read these words so narrowly, for such a reading would negate the right which the Court was expressly giving to New Zealand by paragraph 63.

I read these words as meaning rather that the Court was ensuring that New Zealand must follow the usual procedural formalities required of any application made by any party to the Court.

I cannot subscribe to the view that the Court was giving New Zealand a right in the earlier part of that sentence which it was immediately taking [p324] away by restricting New Zealand's application to existing Court procedure which did not indeed provide for any such application. The Court did not contradict itself in this manner, and to suggest as much is to do little credit to the remarkable foresight exhibited by the Court in providing New Zealand with the right which it did.

The Court's first task therefore is to examine whether New Zealand has brought before it circumstances which affect the basis of the 1974 Judgment. If it has, the Court must then proceed, in terms of its own Judgment, to examine those circumstances with the greatest of care in order to determine whether a situation has arisen which requires the Court to grant to New Zealand the relief it seeks.

Can New Zealand's Request Be Disposed of Administratively?

It has been contended by France that this matter should be disposed of administratively. It is said in support of this position that New Zealand is bringing a fresh matter to the Court; that New Zealand is approaching the Court on the basis of a case that is dead; that there is no legally valid application before the Court; and that indeed the matter can be dealt with administratively on the basis of a manifest and patent lack of jurisdiction.

France submitted that the Court should take a decision proprio motu without any need for a public hearing. In support of its contention that the matter should be disposed of by means of an order without hearings, France relied upon the cases of Treatment in Hungary of Aircraft and Crew of United States of America (I.C.J. Reports 1954, pp. 101 and 105); Aerial Incident of 4 September 1954 (1. C. J. Reports 1958, pp. 160161); Aerial Incident of 7 November 1954 (I.C. J. Reports 1959, p. 278)'.

Those were cases of manifest and patent lack of jurisdiction where it was not possible for the Court to take any procedural steps, and are distinguishable from the present case, where New Zealand comes to the Court directly within the terms of an express provision of the Court's own Judgment. The Court needs to consider whether New Zealand is correct in its contention that the basis of the 1974 Judgment is affected by the current nuclear tests. If it is not, New Zealand would have no case, but if it is, there is a matter to be seriously considered. The decision

1In 1973, likewise, the position of France, as stated in a letter to the Court delivered on 16 May 1973, was that the Court was "manifestly not competent" to deal with the dispute, and that the Court should drop the matter from its docket. The grounds included the argument that the dispute concerned an activity connected with national defence and was thus excluded from the jurisdiction of the Court by the third French reservation to its declaration of acceptance of the compulsory jurisdiction of the Court. The Court rejected the French contention that the absence of jurisdiction was manifest (Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 138). [p325]

whether there is or is not such a matter is obviously one which cannot be taken behind the closed doors of purely administrative orders, without a public hearing.

It would be contrary to the entire scheme of the administration of justice, as conceived in it; Statute and practiced by the Court, for the court to dismiss such an application in camera, without a public hearing and even without the benefit of an ad hoc judge from the country in question as France invited the Court to do. Such procedures, available in circumstances where there is a patent, complete and manifest lack of jurisdiction, are inapplicable to the present situation.

If, indeed, New Zealand makes out a prima facie case that the basis of the 1974 Judgment has been affected by supervening events, New Zealand has clearly the right to approach the Court, in terms of the Court's own Judgment, for a judicial determination of the situation arising from the resumption of nuclear testing. The Court will of course deny such relief if, upon a fuller examination of the matter, it is not satisfied that New Zealand's case has been substantiated. But it can only do so judicially.

The matter has, happily, been heard by the Court at a public hearing, at which both Parties have presented their submissions, and both Parties have been afforded the opportunity of a reply. In following this procedure, the Court has given due effect to such principles as audi alteram partem which are integral constituents of the rule of law and justice.

Moreover, under Article 79 (1) (Article 67 (1) at the time of the 1973 case) and Article 79 (7) (Article 67 (7) in 1973) of the Rules of Court, New Zealand was clearly entitled to a judicial determination of these preliminary objections to its application.

CORRESPONDENCE BETWEEN NEW ZEALAND’S COMPLAINTS IN 1973 AND 1995

New Zealand's Complaints in 1973

To understand the basis of the Judgment, which New Zealand claims has been affected, it is necessary, preliminarily, to look at New Zealand's complaint to the Court in 1973.

New Zealand had come to the Court with a complaint that it was suffering damage of five specified descriptions from the radioactive fallout generated by French nuclear explosions in the Pacific. That damage was specified as follows :

"The rights to be protected are:

(i) the rights of all members of the international community, including New Zealand, that no nuclear tests that give rise to radioactive fall-out be conducted; [p326]
(ii) that 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 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;
(iii) 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;
(iv) 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 airspace 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;
(v) the right of New Zealand to freedom of the high seas, including freedom of navigation and over fight and the freedom to explore and exploit the resources of the sea and the sea-bed, without interference or detriment resulting from nuclear testing.

The fact that further nuclear tests at the French Pacific Test Centre will aggravate and extend the dispute between New Zealand and France is one of the grounds on which New Zealand seeks protection of the foregoing rights. In addition and independently, New Zealand has the right to the performance by France of its undertaking contained in Article 33 (3) of the General Act for the Pacific Settlement of International Disputes to abstain from any action whatsoever that may aggravate or extend the present dispute." (I.C.J. Pleadings, Nuclear Tests, Vol. II, Request for the Indication of Interim Measures of Protection, p. 49, para. 2.)

It will be noticed that in the entirety of this paragraph, there is no limitation to atmospheric tests, but that the reference throughout is in general terms to nuclear tests and nuclear testing.

Of particular significance, in the light of the present Request, were the identification of the dispute in paragraph 17 of the 1973 Application as including the effects of fallout on the "natural resources of the sea" (ibid., p. 6), and the reference in paragraph 22 to the freedom to exploit the resources of the sea and the seabed, and the continued pollution of the maritime environment of New Zealand "beyond the limits of national jurisdiction" (ibid., p. 7; emphasis added). [p327]

The prayer of New Zealand was no less clear in its statement of the objectives of the proceedings, for it said that 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 radioactive fallout constitutes a violation of New Zealand's rights under international law, and that these rights will be violated by any further such tests."

(I.C. J. Pleadings, Nuclear Tests, Vol. II, Application, p. 9; emphasis added.)

So, also, paragraph 10 of New Zealand's Application:

"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 radioactive fallout constitutes a violation of New Zealand's rights under international law, and that these rights will be violated by any further such tests." (Ibid., p. 4; emphasis added.)

The Applicant's Memorial in paragraph 5 describes this request for a declaration as "the principal issue before the Court" (ibid., p. 146).

What was the gravamen of New Zealand's complaints? Was it the infringement of the various rights thus specified as resulting from nuclear tests, or was it atmospheric tests and atmospheric tests alone?

It seems reasonable to conclude that New Zealand's complaint to the Court was in relation to the alleged infringement of its rights under international law, which resulted from unjustified artificial radioactive contamination of its terrestrial, maritime and aerial environment. The means used at that stage to bring about this result was atmospheric tests and New Zealand naturally complained against these. The means was subsidiary to the central fact of injury. It was in the injury that the complaint was grounded. The injury was the larger context within which the specific act causing damage was set.

Nowhere in the pleadings, submissions or Judgment is there the slightest suggestion of any acceptance by New Zealand of the principle that the same damage would be tolerated without complaint, if caused by nuclear explosions in another medium. It seems unreasonable to suggest that New Zealand would have been quite content to endure damage by radioactive contamination so long as it did not occur from atmospheric tests.

Nor could the Court have endorsed the view that the dispute had disappeared, or that the claim by New Zealand no longer had any object if there was the suggestion of a possibility of radioactive contamination resulting from the underground tests. Nor could it have viewed France's undertaking as a reservation, even by remotest implication, of the right [p328] to cause nuclear contamination of the environment provided it was not caused by atmospheric testing.

The State of Knowledge in 1974

The state of knowledge at the time is relevant. The belief of the 1960s that underground testing was safe is reflected in the terms of the Partial Test Ban Treaty of 1963 (to which the United States of America, the United Kingdom and the Union of Soviet Socialist Republics were parties), which banned nuclear weapons tests in the atmosphere, in outer space and underwater. Tests in these media were thought to raise the environmental concerns uppermost in the minds of the contracting States, but underground testing was thought to have "the potential for essentially total confinement of the radioactive products formed"

(A. C. McEwan, "Environmental Effects of Underground Nuclear Explosions", in Goldblat and Cox (eds.), Nuclear Weapon Tests: Prohibition or Limitation?, 1988, p. 83).

Even two years after the 1974 Judgment, a major treaty was entered into which displayed an international expectation that underground nuclear explosions were safe. The Peaceful Nuclear Explosions Treaty, signed on 28 May 1976 between the United States and the Soviet Union, provided for underground nuclear explosions for peaceful purposes, as this seemed to meet the need for "safe" nuclear energy for major construction works. Goldblat and Cox, in the study already referred to, observe:

"For many years, peaceful nuclear explosions (PNEs) had been seen as potentially valuable activities for a variety of purposes. In the United States, the so-called. Plowshare Programme set out to explore possible uses of PNEs for digging canals or for other industrial ends, such as gas stimulation or oil recovery from otherwise uneconomic deposits. However, progress was slow, given the necessity of systematic tests using both conventional and nuclear explosives, because the need to minimize the risks required careful experimentation. By the mid-1970s, industrial interest in the use of underground nuclear explosions for non-military purposes had waned in the USA, while public concern over possible environmental hazards had increased. These hazards include in addition to the release of radioactive material shock wave effects which may occur close to the points of detonation. The programme was terminated in 1977, shortly after the signing of the PNET." (Jozef Goldblat and David Cox, "Summary and Conclusions", ibid., p. 13; emphasis added.) [p329]

The expectations of the early 1970s that underground tests provided a safe alternative were obviously ,belied by later experience. As McEwan observes:

"Venting to the atmosphere has, however, occurred for a number of underground tests, other than those associated with Plowshare type projects, and more minor subsurface venting may occur more commonly." (Op. cit., p. 83.)

Here perhaps lies the key to understanding the readiness of the Court and the Parties in 1974 to welcome underground tests as a means of cessation of radioactive harm to New Zealand, and as eliminating its grievances.

Knowledge and experience not available in 1974 are available now, placing upon the Court the duty, in the interests not only of New Zealand but of the world community generally, to use the power it reserved to itself in 1974 to re-examine the situation if the basis of its Judgment has been affected. If what seemed safe in 1974 now reveals its hazards in a manner not known or expected then, there is a responsibility lying upon the Court to take note of this change in the fundamental assumptions underlying its Judgment of 1974.

If the Court had then the knowledge we have now of the possibility of leakage due to fissures, porosity, water seepage, subsidence’s and sheering off of parts of the atoll, it would be strange indeed if the Court committed New Zealand to this danger, and considered that, despite so exposing New Zealand, it was fully removing New Zealand's grievance of radioactive damage. That would be a total non sequitur. It would also lead to the apparent absurdity of the Court endorsing radioactive contamination so long as it was committed by means other than atmospheric testing.

Another strange result would be that, as New Zealand submitted, the Court would have been building into its Judgment a massive escape clause for France a clause to the effect that France reserved the right to conduct unsafe testing. It was quite clear in all the circumstances that the assurance of underground testing which France was offering was understood as an assurance of a safe for an unsafe method of testing. Just as the atmospheric testing was known to be unsafe, the underground testing was thought to be safe. When France gave the assurance that it would stop the atmospheric testing and that it was ready to move to underground testing, it was a statement which in all the circumstances of the case was understood to be a shift to a procedure which obviated the dangers of which New Zealand complained. [p330]

New Zealand's Present Grievances

New Zealand now tells the Court that the self-same type of damage it complained of in 1973, namely, radioactive contamination resulting from nuclear explosions by France in the Pacific, does now occur from underground testing. It says that these proposed underground tests will infringe the rights of New Zealand in the same way as the atmospheric tests did in 1973.

According to the material placed before the Court by New Zealand, underground tests produce all the five species of damage specified in paragraph 2 of its Request for the Indication of Interim Measures of Protection, dated 14 May 1973: namely, (i) violation of the right to be free of radioactive fallout ';(ii) violation of the right to the preservation from unjustified, artificial radioactive contamination of the terrestrial, maritime and aerial environment; (iii) violation of the right that New Zealand air space and territorial waters be free of the entry of radioactive material; (iv) the apprehension, anxiety and concern resulting from such entry ;(v) violation of the right to exploitation of the resources of the sea without interference or detriment resulting from nuclear testing.

The gist of New Zealand's complaint in 1973 was that damage or harm from radioactivity in the five ways it specified was being caused by France. The only way in which it was then being caused was by atmospheric testing of nuclear weapons.

The gist of New Zealand's complaint today is that the same type of damage or harm from radioactivity is being caused by France. It is caused, as alleged before, by the detonation of nuclear weapons in the Pacific, but today the venue is underground, where formerly it was atmospheric. New Zealand's position, however, is that the damage is the same; the infringement of New Zealand's rights is the same; the agency of physical causation is the same, namely, the explosion of nuclear weapons. The only difference is that that agency of causation is detonated not above ground but underground. Hence the Request to the Court for protection against the same damage from which it sought protection in 1973.

Hence, also, appears the wisdom of the Court's precautionary provision in 1974 enabling New Zealand to come before the Court again.

1"Fallout" is not limited to atmospheric debris. The Oxford English Dictionary defines "fallout" as "Radioactive refuse of a nuclear bomb explosion" (2nd ed., Vol. V, 1989, p. 696). [p331]

INTERPRETATION OF PARAGRAPH 63

The Terms of Paragraph 63

How does one ascertain the "basis of a judgment"? The phrase seems to go to the heart of the judgment, the reasoning on which it proceeds, the foundation on which it rests. To search for the basis of a judgment, does one look only at what the judgment expressly decrees, or does one have regard also to such matters as the context in which the judgment was delivered, the harm or mischief complained of, the request of parties to which that judgment was an answer, and the object of the proceedings? It seems quite clear that a proper and legally sustainable approach to this question requires a consideration of the Court's order or decree, not in isolation but in context.

It is necessary now to look at the carefully drawn language used by the Court to confer this right on New Zealand.

How would the expression "basis of the judgment" be understood according to the ordinary significance of language? And what does it mean in the special context of this case?

While the nature of a judgment's commands or prohibitions are important, so also is the basic object which it sought to achieve. It would strain both language and juridical principle to hold that the basis of a judgment can be found in its commands or prohibitions alone, considered apart from its reasons, or in its reasons alone, considered apart from its commands and prohibitions. As in all legal interpretation, it must be an interpretation in context.

Some insights may also be gained from discussions of the meaning of the expression ratio decidendi, which one examines in order to ascertain the basis of a judgment. The volumes written on what constitutes the ratio decidendi of a judgment (see, for example, Cross and Harris, Precedent in English Law, 4th ed., 1991) contain various formulations of its meaning, but all different versions go back to the central question of law or principle from which the eventual orders made in the case proceed. The orders, or in this case the means prohibited, are part of the judgment, but clearly not the basis of the Judgment.

What is this central question of principle in the 1974 Judgment? It must surely be that New Zealand is entitled to protection against harm caused by radioactivity from the explosion of nuclear weapons. It surely cannot be that New Zealand is entitled to protection against harm caused by radioactivity so long as such radioactivity proceeds from atmospheric detonations, and that New Zealand is not entitled to such protection if the harm proceeds from underground explosions.

To make this point clearer still, suppose France had moved not to underground explosions but to underwater explosions alongside of Mururoa. Could anyone have claimed that this was a permissible activity within the terms of the 1974 Judgment? It would strain language and [p332] credibility to argue that such was the intention of the Court. The conclusion appears patently clear that the basis of the Judgment was that harm must not be caused by nuclear tests and that New Zealand was entitled not to be exposed to radioactive contamination from French nuclear tests in the Pacific.

Another way of analysing the phrase is to observe that an order or directive statement contained in a judgment constitutes only a part of a judgment. The term "judgment" goes beyond the merely operative portion of a judgment. The basis of a judgment goes deeper still into the area of the underlying principles on which it rests, rather than the external orders used to implement it.

As I read paragraph 63, it seems clear, in the Court's own language, that it was not contemplating a breach by France of its undertaking, or of the Court's Judgment, but that it still had some concerns that the "substratum" of the Judgment might be affected in some way not then foreseeable. It is a tribute to the wisdom of the Court and to its foresight that it expressly provided for this possibility. The contrary contention, which necessarily implies that the Court was prepared to sanction similar damage so long as it did not occur from atmospheric testing, is clearly untenable and does little credit to the judgment and foresight of the Court of 1974.

The Court's Formulation of the Bases of the 1974 Judgment

These conclusions, based on ordinary rules of interpretation, are reinforced when one has regard to the Court's own observations in the Judgment itself.

The Court's recognition of this principle of contextual interpretation appears quite clearly from paragraph 59 of the Judgment, wherein the Court states: "Thus the Court concludes that, the dispute having disappeared, the claim advanced by New Zealand no longer has any object." These considerations, set out in one of the paragraphs immediately preceding the operative paragraph 63, show the context which the Court considered relevant. In fact, that paragraph posed two very definite and specifically formulated questions :

(a) has the dispute disappeared?
(b) has the claim of New Zealand no longer any object?

One is straight away led into the questions, "What was the dispute?" and "What was its claim?" The dispute comprised the grievances and the claim comprised the reliefs. The grievances appear, inter alia, from New Zealand's Application (para. 28) of 9 May 1973, New Zealand's Memorial (para. 190) of 29 October 1973, and in the Request for the Indication of Interim Measures of Protection (para. 2) of 14 May 1973, which spelt [p333] out quite clearly the rights in respect of which it sought protection. The reliefs, read in the context of the grievances, can only mean the cessation of those grievances. The Court was satisfied according to its knowledge then that with France's undertaking the grievances came to an end and no further reliefs were necessary.

To be more specific, the Court's view therefore was that all the five heads of injury mentioned by New Zealand, which formed the subject of its dispute with France, had disappeared. If such injury had disappeared in all its five aspects, New Zealand's claim would surely no longer have any object. Such was the reasoning or the ratio decidendi which led the Court to its conclusions. Yet it considered the protection of New Zealand's rights to be so fundamental that it reinforced New Zealand's protections by inserting the precautionary provision that if the basis of the Judgment should be affected, New Zealand may approach the Court again.

The Concentration in 1974 upon Atmospheric Tests

Much has been made in the proceedings before us of the concentration of New Zealand's presentation and the Court's Judgment upon atmospheric tests. From this the inference is sought to be drawn that this was New Zealand's only concern.

In the first place, as already pointed out, there is a liberal reference in the pleadings and the oral presentations to radioactive damage caused by France in explosions in the Pacific without limitation to atmospheric explosions.

In the second place, it must be remembered that atmospheric explosions were the only French explosions then taking place in the Pacific. It was not the province of New Zealand to speculate upon the unknown impact upon New Zealand of hypothetical underground explosions yet to take place in the future.

Court presentations take place upon the basis of practicalities and not upon guesses or speculations as to the likely effect of modalities of harm which are as yet hypothetical. The presentation of the matter in Court naturally concentrated on the practical and immediate aspect, and it would have been strange if it had not. The Court's attention likewise focused on this matter and it would have been strange if it had not.

Furthermore, if such speculation were inappropriate for the Parties, it was even more inappropriate for the Court to engage judicially in speculation upon this unknown field. It was not for New Zealand nor for the Court to engage in speculation as to the possible effects of underground testing which had never yet been used in a manner causing danger or damage to New Zealand, on which no material had been placed before the Court, and which was not the cause of the immediate damage of which New Zealand complained. Indeed, had counsel indulged in such a [p334] speculative exercise, they may well have been asked to address the Court on practicalities rather than hypotheses.

Nor did New Zealand argue its case solely on the basis of atmospheric tests. As the Court itself observes in paragraph 29 of its Judgment, New Zealand's case was argued mainly in relation to atmospheric tests -nor could the case have been argued in the light of the information then available, except on the basis of atmospheric tests.

Dr. Finlay, the Attorney-General for New Zealand, in opening New Zealand's case at the oral proceedings for the Request for Interim Measures of Protection on 24 May 1973, stated at the very outset of his submissions:

"The request relates to proceedings recently instituted by New Zealand against France asking the Court to adjudge and declare that the conduct by the French Government in the South Pacific region of tests that give rise to radio-active full-out constitutes a violation of New Zealand's rights under international law, and that those rights will be violated by any further such tests." (I.C.J. Pleadings, Nuclear Tests, Vol. II, p. 100; emphasis added.)

The concentration on tests in the atmosphere, for the obvious reason that only such tests were then being conducted, did not mean a shift away from the central core of the case to the peripheries, or from the subject of the grievance to the particular means by which it was caused.

It is also of interest to note that both immediately before and after the hearings in Court in July 1974, the New Zealand Government officially indicated that its position was wider than the cessation of atmospheric testing.

The first statement, as recounted in paragraph 37 of the Judgment of 1974, was a Note of 17 June 1974 from the New Zealand Embassy in Paris categorically asserting that New Zealand's position was one of fundamental opposition to all nuclear testing:

"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." (I.C.J. Reports 1974, p. 470; emphasis added.)

The second statement was made on the day following the Judgment of the Court, on 21 December 1974, when the Prime Minister of New Zealand [p335] made the observation that, "The Court's finding achieves in large measure the immediate object for which these proceedings were brought" (emphasis added). The cessation of atmospheric tests was thus not the end-all of New Zealand's request.

The Substance of the Grievance and the Means by Which It Is Caused

In an examination of a matter such as this, there could well be a tendency for undue concentration on the means by which a wrong is committed, to the exclusion of the wrong itself. The means is often ancillary, for it is the wrong or injury sustained by a party that is the core of the complaint.

If harm to the person is threatened with a particular kind of weapon such as a sword, it is no justification to the offender if, upon the prohibition of the use of that weapon, he proceeds to cause the same harm by the use of another weapon, such as a club. A homely illustration could be used to test this proposition. If X should complain to the village elder that Y is threatening him with a sword in a manner causing reasonable apprehension of an intention to cause grievous harm, and the village elder orders Y to drop his sword, is that order to be construed as an order to refrain from causing bodily harm with a sword, or as an order to refrain from causing bodily harm, whatever the weapon used? If Y there-after proceeds to harm X with a club, Y would surely not be able to contend that the order issued on him related to the use of a sword and that he did not violate it in any way by using a club. Clearly, a larger reason lies behind the order than the mere prohibition against inflicting harm with a sword. The unexpressed rationale lying behind the order, namely, the desire to protect X from bodily harm, lies at the very heart of the order, if it is to be construed in the light of common sense.

Another example of a slightly higher degree of sophistication is as follows. Suppose a person should complain to a court that his neighbor is seeking to burn his property by the act of throwing fire bombs at it. He asks the court for an injunction restraining such conduct. The court orders the respondent to desist from the act of throwing fire bombs and this undertaking is accepted by the complainant. Would there not be an undermining of the basis of this order if the neighbor, having desisted from throwing fire bombs, commences throwing firebrands instead? Would an objective observer, looking for the basis of the Court's order, confine it to fire bombs rather than look at the object of the order, the substance of the complaint, and the interest sought to be protected? In such a context, it would indeed be strange if an argument were set up that the complaint regarding firebrands must be the subject of a new case rather than a continuation of the existing one. [p336]

In general terms, it would not harmonize with ordinary notions of justice that an order to protect the complainant by prohibiting the use of a given means of inflicting harm should be viewed as not comprising the causing of similar harm by the use of another means least of all when that weapon is used to inflict the identical injury. In all matters of interpretation, the central object of any provision must be constantly borne in mind.

Some Principles of Interpretation

A fundamental rule of interpretation of any legal document is that it must not be so construed as to lead to results which are unreasonable or absurd. The interpretation that the Court was banning radioactive contamination by atmospheric tests but giving its tacit endorsement to radioactive contamination by underground tests seems to fall into this category. For reasons already discussed, the Court's order clearly did not contemplate that the shift to underground testing, in the state of knowledge at that time, would lead to these deleterious results. The Court could not, even by remotest implication, have reserved the right to France to cause similar kinds of nuclear contamination provided it was done by non-atmospheric testing.

Another way of looking at this matter is that it was a clear implication of the French declaration that the new procedures it was resorting to were to be free of the harm manifestly resulting from the old procedures.

To draw an analogy from another department of law, it is a well known doctrine, universally recognized in the law, that there can be certain conditions not expressly specified in a document, which nevertheless are so clearly implied by its terms that a reasonable onlooker would Say, "Of course, that is understood." The entire body of learning on the doctrine of the implied term in contract rests upon this rationale.

In regard to the underground tests which were announced by the French Government as replacing the atmospheric tests, it would surely be the view of an objective onlooker that the clear understanding, in regard to those tests, was that they would not affect such rights of New Zealand as it had sought to conserve by asking the Court for relief. The basis of the Judgment issued by the Court in answer to New Zealand's claim to protection was the implication that such protection ensued in consequence of France's declaration.

New Zealand's complaint related to the radioactive contamination of its terrestrial, maritime and aerial environment. That threat was now apparently at an end, for how else could the Court pronounce that New Zealand's claim had no longer any object?

Applying all the three tests formulated by the Court, the basis of the 1974 Judgment has been affected, the dispute has not disappeared, and [p337] New Zealand's claim still has an object if the identical type of harm namely, radioactive contamination results from the new situation that has arisen. On all these three counts, all specifically part of the 1974 Judgment, New Zealand has the right to ask the Court to examine the situation in the light of paragraph 63.

Significance of Opening Sentence of Paragraph 63

There is an important aspect of paragraph 63 which is deeply relevant to an understanding of the words "if the basis of this Judgment were to be affected". This aspect is reflected in the opening sentence of that paragraph, setting the context for the operative words that follow.

In the opening sentence, the Court makes it clear beyond any doubt that what it was contemplating was not any default by France in complying with its commitment. In the Court's own words, that was an aspect which "it is not the Court's function to contemplate".

This is in line with an entrenched body of principle contained both in its governing instruments and its settled practice, that once the Court has delivered Judgment, it is factus officio. It has discharged the duty for which the parties approached it and resolved the dispute so far as a judgment according to law can resolve it. Enforcement is not and never has been the concern of the Court, either in terms of its Statute or in terms of its settled jurisprudence.

In formulating paragraph 63, the Court was making it clear beyond doubt that what it was contemplating was not a non-observance by France of its obligations. That was assumed. In short, the cessation of atmospheric tests was assumed.

But on the basis of compliance by France, there could still be considerations affecting the basis of the Judgment which parties could not contemplate at that time, but which might nevertheless entitle a party in all justice to ask the Court for an examination of the situation. The Court was providing for just such an eventuality as this -that while France complied with its undertaking, the basis of the Judgment could still in some way be affected.

Significance of the Last Sentence of Paragraph 63

The Court provided in the same paragraph that the denunciation by France, by letter dated 2 January 1974, of the General Act for the Pacific Settlement of International Disputes, which was relied on as a basis of jurisdiction in the present case, cannot constitute by itself an obstacle to the presentation of a subsequent request by New Zealand. This sentence is a further indication by the Court that New Zealand was to have its [p338] rights preserved on the basis of the existing Judgment, and that the existing case was not dead. The sentence is a clear anticipation of a possible return by New Zealand to the Court upon the basis of a Judgment which was still alive for this purpose.

It also demonstrates the considered and deliberate projection of the Court's mind into the problems of the future, without being content to close the book, so to speak, in 1974. Future jurisdiction had disappeared and New Zealand's right to impaled France afresh had been destroyed, but this did not deter the Court from expressly empowering New Zealand to return to the Court on the basis of the original case if New Zealand was able to show the Court that the basis of the Judgment was affected.

The Special Need for a Precautionary Clause

In dealing with radioactive contamination, the Court was dealing for the first time with a force whose potential for causing damage to the human condition was as yet imperfectly understood. It was known to be capable of causing multiple deleterious effects to human health and environment. It was a force whose magnitude of destructive power had been awesomely demonstrated. The Court needed to be ultra-cautious.

The clause enabling New Zealand to approach the Court was a procedural innovation, reinforcing in a very special way the integrity of the Judgment which the Court was rendering. It was a provision ensuring that the Judgment would not be undermined by future acts or events which could not then be specified. It exhibited a concern for the realities rather than the forms of justice.

Against this background, it is significant that even in the case of Nuclear Tests (Australia v. France), where the pleadings were more closely geared to atmospheric tests than in the case of Nuclear Tests (New Zealand v. France), the Court still considered it necessary to give Australia the right to come back to the Court if circumstances should occur which affected the basis of the Judgment (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 272, para. 60). Even in the context of atmospheric tests, there could possibly be some unknown lingering after-effects which might affect the basis of the Judgment and need correction.

A fortiori, in the case of New Zealand, where there was a shortfall between the Judgment of the Court and the prayer of New Zealand, there was a greater need for the interests of New Zealand to be protected.

The Court's deep concern with the effects of French testing was indeed demonstrated not merely at this stage of the case, but from the stage of preliminary measures in 1973, when the Court manifested that concern by ordering interim measures of protection before any determination of jurisdiction and admissibility. [p339]

INTERIM MEASURES

The Grant of Interim Measures

New Zealand has also requested interim measures now, as it did in 1973. In view of the Court's Order, this case does not proceed to the stage where such measures can be ordered. It is my view, however, that New Zealand has made out a prima facie case that it is suffering, or likely to suffer, damage of the nature which it complained of in 1973, and has thereby brought itself within the terms of paragraph 63. As a consequence, New Zealand would have reached the stage where it was entitled to a consideration by the Court of its request for interim measures.

New Zealand's Request on this occasion does not go so far as a request for an absolute declaration that nuclear tests violate the various enumerated rights of New Zealand, inasmuch as New Zealand is content, in the alternative, with a declaration that it is unlawful for France to conduct such tests before it has undertaken an Environmental Impact Assessment (EIA) according to accepted international standards. Such a procedure is within the power of France and if, as France has declared, the tests are environmentally safe, an EIA confirming this position would negate New Zealand's claim, and result in its dismissal.

The Approach of the Court to Preliminary Measures in 1973

It is pertinent to this discussion to refer also to the approach of the Court in 1973 to the question of preliminary measures -an approach which reflected deep concern that damage of the sort complained of by New Zealand could cause irreparable prejudice to the rights which were the subject of dispute. The Court's approach displayed a willingness to act even before jurisdiction and admissibility were proved.

The Court of course made it clear that its decision in no way prejudiced the question of the jurisdiction of the Court to deal with the merits of the case (I. C.J. Reports 1973, p. 142, para. 34).

It seems to me that the approach of the Court in the present case, when radioactive contamination by nuclear explosions is again complained of, might well have been on similar lines.

SOME RELEVANT LEGAL PRINCIPLES

The Inter-Temporal Principle

It is a truism that scientific knowledge increases exponentially. The knowledge of 1995 is not the knowledge of 1974. Nor was the knowledge of [p340] 1974 the knowledge of the 1950s. There is perhaps as much of a differential between the knowledge relating to such matters between the 1970s and the 1950s as there is between the knowledge of the 1990s and the 1970s. The nature and effects of nuclear activity and radioactive contamination are matters of popular knowledge, having regard to such episodes as Chernobyl, which have demonstrated even to the layman how much more widespread the damaging effects of radioactive contamination are than was once believed. Elsewhere in this opinion reference has been made to the better understanding of the effects of underground nuclear explosions since 1974, when they were considered safe.

The Court is seized of the present Request at this point of time and must bring to bear upon it the scientific knowledge now available. A court, faced with a science-oriented problem of present and future damage in 1995, cannot resolve it by ignoring the knowledge acquired between 1974 and 1995, and by applying to the problem in hand the knowledge of 1974. That would be an exercise in unreality.

A similar question arose when New Zealand was asked at the time of the 1974 case why it did not protest against the larger and more dangerous nuclear explosions of the 1950s, just as today it is asked why it did not object to France's underground testing in the 1970s. The answer of Dr. Finlay, the New Zealand Attorney-General, offers an interesting perspective on the inter-temporal principle. He observed:

"The plain answer is that an inter-temporal rule applies to fact as well as to law. In the world of the 1950s shoe shops in my country and in many others had X-ray machines through which the customer could see the bones of his feet in the shoes he was trying on. In the world of the 1970s we are appalled by, and forbid, these unnecessary exposures to the damaging effects of radiation." (I.C.J. Pleadings, Nuclear Tests, Vol. II, p. 255.)

So it is with the knowledge of the effects of underground explosions in the 1970s, as compared with the knowledge of the 1990s. That which was assumed then has been contradicted by later knowledge. The basic suppositions of fact on which public conduct was ordered have been undermined. If the basic assumption of the protection of a party's rights in 1974 is undermined by knowledge available in 1995, and if the terms of the protecting judgment make its reconsideration available to a party complaining that its basis has been undermined, this Court, when approached on the footing that the basis of the Judgment has been undermined, must apply to that question the knowledge it has today and not the knowledge of 1974. The question whether the basis of the Judgment has been affected is a question of practical reality and not of legal [p341] abstractions viewed apart from their practical impact upon human life and the environment in the applicant State.

The Concept of Intergenerational Rights

The case before the Court raises, as no case ever before the Court has done, the principle of intergenerational equity -an important and rapidly developing principle of contemporary environmental law.

Professor Lauterpacht, on behalf of New Zealand, adverted to this aspect when he submitted to the Court that if damage of the kind alleged had been inflicted on the environment by the people of the Stone Age, it would be with us today. Having regard to the information before us that the half-life of a radioactive by product of nuclear tests can extend to over 20,000 years, this is an important aspect that an international tribunal cannot fail to notice. In a matter of which it is duly seized, this Court must regard itself as a trustee of those rights in the sense that a domestic court is a trustee of the interests of an infant unable to speak for itself. If this Court is charged with administering international law, and if this principle is building itself into the corpus of international law, or has already done so, this principle is one which must inevitably be a concern of this Court. The consideration involved is too serious to be dismissed as lacking in importance merely because there is no precedent on which it rests.

New Zealand's complaint that its rights are affected does not relate only to the rights of people presently in existence. The rights of the people of New Zealand include the rights of unborn posterity. Those are rights which a nation is entitled, and indeed obliged, to protect. In considering whether New Zealand has made out a prima facie case of damage to its interests sufficient to bring the processes of this Court into operation in terms of paragraph 63, this is therefore an important aspect not to be ignored.

In the words of an important recent work on this question:

"The starting proposition is that each generation is both a custodian and a user of Our common natural and cultural patrimony. As custodians of this planet, we have certain moral obligations to future generations which we can transform into legally enforceable norms." (See E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, 1989, p. 21.)

The Stockholm Declaration on the Human Environment adopted by the United Nations Conference on the Environment at Stockholm, [p342] 16 June 1972, formulated nearly a quarter century ago the principle of "a solemn responsibility to protect and improve the environment for present and future generations" (Principle 1). This guideline sufficiently spells out the approach to this new principle which is relevant to the problem the Court faces of assessing the likely damage to the people of New Zealand. This Court has not thus far had occasion to make any pronouncement on this developing field. The present case presents it with a pre-eminent opportunity to do so, as it raises in pointed form the possibility of damage to generations yet unborn.

The Precautionary Principle

Where a party complains to the Court of possible environmental damage of an irreversible nature which another party is committing or threatening to commit, the proof or disproof of the matter alleged may present difficulty to the claimant as the necessary information may largely be in the hands of the party causing or threatening the damage.

The law cannot function in protection of the environment unless a legal principle is evolved to meet this evidentiary difficulty, and environmental law has responded with what has come to be described as the precautionary principle a principle which is gaining increasing support as part of the international law of the environment (see Philippe Sands, Principles of International Environmental Law, Vol. 1, pp. 208-210).

In 1990, the Ministers from 34 countries in the Economic Commission for Europe and the Commissioner for the Environment of the European Community, meeting at Bergen, Norway, issued the Bergen ECE Ministerial Declaration on Sustainable Development. Article 7 of this Declaration formulated the precautionary principle in these terms:

"In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation." (Bergen ECE Ministerial Declaration on Sustainable Development, 15 May 1990, in Harald Hohmann (ed.), Basic Documents of International Environmental Law, Vol. 1, 1992, pp. 558-559.)

In paragraph 16 (f), the Declaration stressed the importance of optimizing democratic decision-making related to environment and development [p343] issues, and it identified the following need as part of what it called the Bergen process:

"To undertake the prior assessment and public reporting of the environmental impact of projects which are likely to have a significant effect on the human health and the environment and, so far as practicable, of the policies, programmers and plans which underlie such projects and to ensure that East European and developing countries are assisted through bilateral and multilateral channels in evaluating the environmental impact and sustainability of their own development projects. To develop or expand procedures to assess the risks and potential environmental impacts of products." (Op. cit., p. 565.)

The precautionary principle of course went further back in time than 1990. It is a principle of relevance to New Zealand in its application to this Court and one which inevitably calls for consideration in the context of this case.

New Zealand has placed materials before the Court to the best of its ability, but France is in possession of the actual information. The principle then springs into operation to give the Court the basic rationale for considering New Zealand's request and not postponing the application of such means as are available to the Court to prevent, on a provisional basis, the threatened environmental degradation, until such time as the full scientific evidence becomes available in refutation of the New Zealand contention.

Several environmental treaties have already accepted the precautionary principle (see Sands, op. cit., pp. 210 et seq.). Among these are the 1992 Baltic Sea Convention and the 1992 Maastricht Treaty (Treaty on European Union, Title XVI, Art. 130r (2)), which states that Community policy on the environment "shall be based on the precautionary principle" (emphasis added). It is noteworthy that under the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), the parties (France and the United Kingdom), wishing to retain the option of dumping low and intermediate level radioactive wastes at sea, would be required to report to the OSPAR Commission on:

"the results of scientific studies which show that any potential dumping operations would not result in hazards to human health, harm to living resources or marine ecosystems, damage to amenities or interference with other legitimate uses of the sea" (Ann. II, Art. 3 (3) (c), cited from Sands, op. cit., p. 212).

This last application of the precautionary principle, to which France is a Party, has particular relevance to the matter presently before the Court. [p344]

The provision in the Maastricht Treaty, incorporating the precautionary principle as the basis of European Community policy on the environment (Art. 130r (2)), would lead one to expect that the principle thus applicable to Europe would apply also to European activity in other global theatres.

Reference should be made finally to Principle 15 of the Rio Declaration on Environment and Development, 1992, which reads:

"In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." (Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, Vol. 1, Ann. 1, p. 6.)

Environmental Impact Assessment (EIA)

This principle is ancillary to the broader principle just discussed. As with the previous principle, this principle is gathering strength and international acceptance, and has reached the level of general recognition at which this Court should take notice of it.

The United Nations Environment Programme (UNEP) Guidelines of 1987 on "Goals and Principles of Environmental Impact Assessment" states in Principle 1 that :

"States (including their competent authorities) should not undertake or authorize activities without prior consideration, at an early stage, of their environmental effects. Where the extent, nature or location of a proposed activity is such that it is likely to significantly affect the environment, a comprehensive environmental impact assessment should be undertaken in accordance with the following principles." (Hohmann, op. cit., p. 187.)

A proper Environmental Impact Assessment should, according to Principle 4, include :

"(a) A description of the proposed activity ;
(b) A description of the potentially affected environment, including specific information necessary for identifying and assessing the environmental effects of the proposed activity;
(c) A description of practical alternatives, as appropriate;
(d) An assessment of the likely or potential environmental impacts of the proposed activity and alternatives, including the direct, indirect, cumulative, short-term and long-term effects; [p345]
(e) An identification and description of measures available to mitigate adverse environmental impacts of the proposed activity and alternatives, and an assessment of those measures;
(f) An indication of gaps in knowledge and uncertainties which may be encountered in compiling the required information;
(g) An indication of whether the environment of any other State or areas beyond national jurisdiction is likely to be affected by the proposed activity or alternatives;
(h) A brief, non-technical summary of the information provided under the above headings." (Hohmann, op. cit., p. 188.)

It is clear that on an issue of the magnitude of that which brings New Zealand before this Court the principle of Environmental Impact Assessment would prima facie be applicable in terms of the current state of international environmental law.

This Court, situated as it is at the apex of international tribunals, necessarily enjoys a position of special trust and responsibility in relation to the principles of environmental law, especially those relating to what is described in environmental law as the Global Commons. When a matter is brought before it which raises serious environmental issues of global importance, and a prima facie case is made out of the possibility of environmental damage, the Court is entitled to take into account the Environmental Impact Assessment principle in determining its preliminary approach.

Of course the situation may well be proved to be otherwise and fears currently expressed may prove to be groundless. But that stage is reached only after the Environmental Impact Assessment and not before.

The Illegality of Introducing Radioactive Waste into the Marine Environment

This principle is too well established to need discussion. The marine environment belongs to all, and any introduction of radioactive waste into one's territorial waters must necessarily raise the danger of its spread into the wider ocean spaces that belong to all.

If such danger can be shown prima facie to exist or be within the bounds of reasonable possibility, the burden shifts on those who claim such action is safe to establish that this is indeed so. As observed already, the 1992 OSPAR Convention between France and the United Kingdom requires a report that any proposed dumping of low and intermediate level radioactive wastes would not result in hazards to human health and marine resources. Such is the standard observed internationally. Until [p346] such time, a judicial tribunal is entitled to act upon the prima facie case that New Zealand has made out.

The Report of the Rio Conference of 1992 deals in Chapter 22 of Agenda 21 with "Safe and Environmentally Sound Management of Radioactive Wastes". Paragraph 22.5 (c) deals specifically with this problem in terms that States should:

"Not promote or allow the storage or disposal of high-level, intermediate-level and low-level radioactive wastes near the marine environment unless they determine that scientific evidence, consistent with the applicable internationally agreed principles and guidelines, shows that such storage or disposal poses no unacceptable risk to people and the marine environment or does not interfere with other legitimate uses of the sea, making, in the process of consideration, appropriate use of the concept of the precautionary approach."

(Report of the United Nations Conference on Environment and Development (A/CONF.151/26/Rev.l), Vol. 1, Ann. II, pp. 371-372.)

France supported Agenda 21. Indeed, President Mitterrand gave it such strong support as to suggest that the Secretary-General of the United Nations should be entrusted with the task of taking stock of the implementation of Agenda 21 every year (ibid., Vol. III, p. 195).

The President also observed :

"Secondly, it would be useful to determine more clearly the role, or the responsibility, of the countries of the North. I think that they have to preserve and restore their own domain (water, air, towns, countryside), a task which their Governments are tackling unevenly.

That they have to refrain from any action harmful to the environment of the countries of the South. Such is the purpose of France's very strict laws on the export of wastes." (Ibid., p. 194; emphasis added.)

It scarcely needs citation of authority to establish so self-evident a principle.

The Principle that Damage Must Not Be Caused to Other Nations

The conclusions just reached are reinforced by a fundamental principle of modern environmental law which must here be noted. It is well entrenched in international law and goes as far back as the Trail Smelter case (Reports of International Arbitral Awards, 1938, Vol. III, p. 1905) and perhaps beyond (see also Corfu Channel, Merits, Judgment, I. C.J. Reports 1949, p. 4). [p347]

This basic principle, that no nation is entitled by its own activities to cause damage to the environment of any other nation, appears as Principle 2 of the Rio Declaration on the Environment, 1992:

"States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction." (Report of the United Nations Conference on Environment and Development (AICONF. 151/26/Rev. l), Vol. 1, Ann. 1, p. 3.)

Other international instruments that embody this principle are the Stockholm Declaration on the Human Environment (1972, Principle 21) and the 1986 Noumea Convention, Article 4 (6) of which States:

"Nothing in this Convention shall affect the sovereign right of States to exploit, develop and manage their own natural resources pursuant to their own policies, taking into account their duty to protect and preserve the environment. Each Party shall ensure that activities within its jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of its national jurisdiction." (Hohmann, Basic Documents of International Environmental Law, 1992, Vol. 2, p. 1063.)

It is in the context of such a deeply entrenched principle, grounded in common sense, case law, international conventions, and customary international law that the Court must reach a determination as to whether a prima facie case of danger to its rights has been made out by New Zealand.

HAS NEW ZEALAND MODE OUT A PRIMA FACIE CASE?

The Approach to the Question of Proof

As stressed in this opinion, it is essential, in order to activate the procedures of the Court, that New Zealand should make out at least a prima facie case that the dangers which brought it to Court in 1973 are now present again in consequence of the underground nuclear tests that France has commenced in the Pacific. There must therefore be an examination of the facts in order to decide whether the jurisdictional basis exists for New Zealand's present Request.

The ensuing examination is therefore undertaken as an integral part of the preliminary jurisdictional question and is not a part of any examination of the merits. [p348]

There are two ways of approaching this question. The first is to place the burden of proof fairly and squarely upon New Zealand, and to ask whether a prima facie case has been made out of the presence of such dangers as New Zealand complains of.

The second approach is to apply the principle of environmental law under which, where environmental damage of any sort is threatened, the burden of proving that it will not produce the damaging consequences complained of is placed upon the author of that damage. In this view of the matter, the Court would hold that the environmental damage New Zealand complains of is prima facie established in the absence of proof by France that the proposed nuclear tests are environmentally safe.

It will be noted in this connection that all the information bearing upon this matter is in the possession of the Respondent. The Applicant has only indirect or secondary information, but has endeavored to place before the Court such information as it has been able, to the best of its ability, to marshal for the purposes of this application.

The second approach is sufficiently well established in international law for the Court to act upon it. Yet, it is sufficient for present purposes to act upon the first approach, throwing the burden of proof upon New Zealand.

What is the nature of the prima facie case that New Zealand has made out?

The Scientific Fact-Finding Missions

New Zealand has placed before the Court such scientific material as is available to it, and has referred, in particular, to three scientific reports in support of its submissions regarding the unreliability of Mururoa and Fangataufa atolls as repositories of nuclear wastes. It states that the French Government has not permitted a full scientific investigation of Mururoa atoll, but that three limited investigations are all that have been allowed on Mururoa, and none at all at Fangataufa where the larger explosions have occurred.

These are the investigations of Mr. M. H. Tazieff, a noted French volcanologist, in 1982; that of a team of scientists led by Mr. Hugh Atkinson, a former Director of New Zealand's National Radiation Laboratory, in 1983; and that of a scientific and film team, led by Commander Cousteau, in 1987.

Mr. Tazieff commented that a systematic study over a number of years was required of the most mobile radio nuclides in ground water and in the sea, for an assessment of the effectiveness of the containment of radioactivity (Tazieff Report, p. 7, cited in New Zealand's Request, para. 38); while Commander Cousteau concluded that leakage could occur on a time scale of 100-300 years, a significantly shorter period than previous estimates (ibid., para. 40, in reliance upon the Cousteau Mission Report). The conclusions of the Atkinson Report are dealt with later. [p349]

France replies to New Zealand's contentions by asserting that the New Zealand descriptions envisaged "disasters of Hollywoodian proportions", while the tests are, in fact, environmentally safe (CR 95/20, p. 62). Professor de Brichambaut, for France, stated, inter alia, that traces of radioactivity on Mururoa are infinitesimal; that the level of radioactivity is the same as on all the atolls in the South Pacific; that it is considerably lower than the levels found in Paris, Darwin, Chile or Colombia. He submitted that the level of radioactive elements (measured in micrograms per year) is 262 in Mururoa, 463 in Tahiti, 815 in Australia and 900 in New Zealand. He added that in Holland it is 280, just above the level in Mururoa. He also gave the Court various statistics in relation to doses of radioactivity measured in the Polynesian population (ibid., p. 55).

However, the main question on which the Court would need to reach a prima facie conclusion is the question of the safety of Mururoa as a repository of radioactive waste, both over the long term, in consequence of natural impairment of the atoll, and in the short term in consequence of nuclear explosions.

These matters are dealt with in the ensuing paragraphs. The danger of radioactive contamination resulting from France's underground tests could perhaps be considered under the following heads:

(a) the nature of the nuclear tests proposed;
(b) the structure of Mururoa and Fangataufa atolls;
(c) the impact upon the atolls of the previous explosions;
(d) the impact upon Mururoa of the proposed new series of explosions;
(e) the internationally accepted safety standards for the storage of radioactive wastes;
(f) the danger to marine life of the release of radioactive substances into the ocean; and
(g) the possibility of accident.

If, upon a review of these matters, it can reasonably be stated that a prima facie case has been made out of possible danger from radioactive contamination resulting from France's nuclear tests in the Pacific, New Zealand would be entitled to submit that it has discharged the burden lying upon it of showing that it comes within the terms of paragraph 63.

The possible dangers will now be outlined under the heads enumerated, bearing in mind that, in a case of this magnitude, even a prima facie finding of possible dangers is not to be lightly reached. The relevant material must be therefore examined with the greatest care. The ensuing discussion aims at ascertaining whether, upon an objective analysis, New Zealand has made out a prima facie case that the dangers it complained of in 1973 now exist in 1995, thereby activating paragraph 63 of the 1974 Judgment. [p350]

The nature of underground nuclear tests

The information placed before the Court is to the effect that holes of a depth of around 1,000 metres are drilled into the ground surface of the atoll. New Zealand states that the details of location of the test shafts have not been released by France. The structure of the atoll consists of a coral crown over a volcanic base. Many tests have also been conducted in the lagoon area adjacent to the coral rim.

A cylinder containing the explosive device and a large amount of instrumentation is then dropped into the hole. The shaft is packed tight with material, including a special kind of concrete, to stop the escape through the shaft into the atmosphere of radioactive material from the explosion.

Upon detonation, everything at the bottom of the shaft is vaporized and a ball-shaped chamber forms in the structure of the surrounding rock. For the small 10-kiloton blasts, the chamber would be approximately 50 metres in diameter and for explosions of around 100 kilotons the chamber might be around 120 metres in diameter.

The immense heat of the explosion vitrifies the rock around it and much of the radioactive material released by the explosion is contained within this vitrified rock and within the explosion chamber.

New Zealand submits that another effect of the explosion is an earthquake shock which may measure between 4 and 6 on the Richter scale. This may fracture some of the upper limestone layers of the atoll and may generate landslides towards the outer flanks of the atoll.

I refer again to McEwan's technical study on "Environmental effects of underground nuclear explosions" :

"The greatest environmental impacts of underground tests result from seismic and local shock wave effects. The latter include ground movements, subsidence, collapse Crater formation, cliff falls and submarine slides which may occur within a few kilometres of the detonation points." (Op. cit., p. 89.)

The important question also arises of the possibility of venting, i.e., the escape of vapors, liquid and other by-products of the explosion from the confined space in which the explosions occur. The Report of a New Zealand, Australian and Papua New Guinea Scientific Mission to Mururoa Atoll, which was headed by Mr. H. R. Atkinson, Retired Director of the National Radiation Laboratory, Christchurch (one of the three reports deposited along with the New Zealand Request), observes: [p351]

"Venting of gaseous and volatile fission products from the underground test sites does occur at the time of detonation. The radio nuclides vented include ones other than the noble gases (which are admitted by the French) and there is evidence that their magnitude is greater than would be expected simply through the back-packing of the placement bore being 'less than perfect'." (Report of a New Zealand, Australian and Papua New Guinea Scientific Mission to Mururoa Atoll, p. 132.)

The structure of Mururoa and Fangataufa atolls

The structure of the atoll is said to consist of a coral crown upon a volcanic base. Water percolates through the entire rock structure. Whether through prior explosions or otherwise, there is a network of fissures in the structure of the atoll. The Atkinson Report contained the following descriptions of the atoll structure of Mururoa:

"Mururoa in common with other atolls is made up of two sequences; the upper limestone’s of 180-500 m thickness, overlying volcanic of several thousand metres thickness." (Ibid., p. 7.)

"The limestones, comprised of superimposed successions of reefs, are for the most part porous and permeable with many horizons of particularly high porosity and permeability. The flanks of the atoll however are protected by aprons of low permeability." (Ibid.,pp. 7-8.)

"The French claim that any leakage from the volcanic to the limestone’s will be stopped by the impermeable transition zone is not borne out by the data inspected.

The transition zone which occurs between the volcanic and limestone’s is highly variable in thickness and rock type and this casts doubt on its ability to act as an impermeable barrier to potential radioactive leakage. The potential exists for leakage of water from detonation cavities to the biosphere in less than 1000 years." (Ibid., P. 8.) "The claim that the transition zone acts as a barrier to long-term leakage can, on the basis of geological evidence, be discounted. The volcanic in their virgin state offer a poor to moderate geo-chemical barrier and a moderate to good hydrological barrier. The testing programme is reducing the effectiveness of both." (Ibid., p. 9.)

The McEwan study, already referred to, observes that:

"Leakage of radioactive material from an underground testing site may occur if there is ground water present at the emplacement depth [p352] at the time of explosion, or if fracturing of rock subsequently allows ground water access to the cavity." (Op. cit., p. 85.)

Having regard to the saturation of the rock structure with water, this seems to be, prima facie, a factor to be taken into account.

The impact upon the atolls of previous explosions

The Atkinson Report concludes:

"The integrity of the carbonate part of the atoll has been impaired.
Fissures have formed in the limestone’s as a result of testing.
Surface subsidence to the order of 1 m has affected over 1 km 2 of the north-eastern region and 1.5 km 2 of the south-west margin. Such subsidence is the direct result of cumulative compaction in the limestone’s, and propagated by testing. Submarine slides, particularly along the southern margin, have resulted from a number of tests at Mururoa. The effect of these slides is to strip the outer rim of the atoll of its protective impermeable limestone.
Fissuring and removal of the apron limestone through sliding will both serve to increase lateral and vertical water transport in the carbonate body of the atoll." (Op. cit., pp. 105-106.)

All three of these heads seem to be of great importance to the issue before the Court. Fissures can conceivably widen and afford an outlet to the sea. The subsidence to an extent of one metre of a square kilometre of the atoll's surface reflects a structural movement serious enough to cause concern. The stripping of the outer rim of the atoll must also be thought, in the absence of contrary evidence, to weaken the protective structure of the atoll.

The impact upon Mururoa of the proposed new series of explosions

It is of course impossible to state, on the available scientific material, how many more explosions the structure of the atoll can withstand without some major structural damage such as may release the pent-up radioactive debris of over 100 explosions contained within the atoll's structure. It may be that the structure could withstand one thousand more explosions, or it may be that the structure is nearing the end of its endurance of continuing explosions.

There is, according to New Zealand, an ever-present danger that the already fissured structure of the atoll cannot be guaranteed to remain intact and that even one more explosion could well be the force that can [p353] trigger off a major structural collapse. The structure has already been buffeted by explosions equivalent to some 150 times the power of the Hiroshima bomb. There are over 126 shafts drilled into a segment of an atoll which is less than 28 km long. We do not have the benefit of an impact assessment survey of the ability of the atoll's structure to withstand these shocks.

In the words of New Zealand's counsel, Professor Lauterpacht, New Zealand could ask whether the world can be confident that the present series of tests may not place upon the camel of Mururoa the straw that breaks its back.

The internationally accepted safety standards for the storage of radioactive wastes

At the conclusion of the hearings, 1 addressed a question to both Parties as to whether there are internationally accepted criteria for the selection of geological repositories for radioactive wastes, requesting a brief list of such criteria, if there were any.

The French reply was:

"Il n'existe actuellement aucune norme officielle internationale concernant les critères géologiques de stockage des déchets radioactifs. Les études scientifiques menées quant à la nature des roches les plus appropriées aboutissent à un consensus sur la nécessité d'avoir un environnement géologique stable, une faible perméabilité des roches et un contexte propice à une rétention des radioéléments par les roches." '

New Zealand, however, referred to the International Atomic Energy Agency's Safety Standard, "Safety Principles and Technical Criteria for the Underground Disposa1 of High Level Radioactive Wastes" (Safety Series No. 99, 1989)2, a document which New Zealand states has been superseded by more detailed studies. The criteria set out in this document include the following :

"Criterion No. 7: Site geology

The repository shall be located at sufficient depth to protect adequately the emplaced waste from external events and processes in

1Letter from France dated 15 September 1995, replies to the questions put by Judge Weeramantry, No. 2:
"There is currently no official international nom relating to the geological criteria for the storage of radioactive waste. The scientific investigations of the nature of the most appropriate rocks lead to a consensus on the need to have a geologically stable environment, rocks of a low permeability and a context favourable to a retention of radio elements by the rocks." [Translation by the Registry.]
2Letter from New Zealand dated 15 September 1995, replies to the questions put by Judge Weeramantry, No. 2. [p354]

a host rock having properties that adequately restrict the deterioration of physical barriers and the transport of radionuclides from the repository to the environment.

Criterion No. 8: Consideration of natural resources

The repository site shall be selected, to the extent practicable, to avoid proximity to valuable natural resources or materials which are not readily available from other sources."

These criteria, when applied to Mururoa, raise prima facie concerns as to its safety for purposes of storage of radioactive waste.

The International Atomic Energy Agency Safety Guide, "Safety of Geological Disposal Facilities" (Safety Series No. 111-G-4.1, 1994) also gives some useful indications of factors having a bearing on this question. Guidelines 412 and 41 3 are particularly significant :

"412. The hydro geological characteristics and setting of the geological environment should tend to restrict groundwater flow within the repository and should support safe waste isolation for the required times.
413. An evaluation of the mechanisms of groundwater movement, as well as an analysis of the direction and rate of flow will be an important input to the safety assessment of any site because the most likely mode of radionuclide release is by groundwater flow. Irrespective of the nature of the waste or the disposal option, a geological environment capable of restricting flow to, through and from the repository will contribute to preventing unacceptable radionuclide releases. Natural features such as aquifers or fracture zones are potential release pathways for radio nuclides. Such paths should be limited in the repository host rock so that the protective functions of the geological and engineered barrier system remain compatible. The dilution capacity of the hydro geological system may also be important and should be evaluated. Sitting should be optimized in such a way as to favour long and slow moving groundwater pathways from the repository to the environment."

These are of course matters on which the Court in due course would have received fuller information had the matter proceeded to a hearing on the substantive question of New Zealand's request.

Alongside of these criteria and guidelines, it would be useful to look at some of the conclusions of the Atkinson Report. Conclusion 3 of the Atkinson Report States, in regard to underground testing at Mururoa, that: [p355]

"The radioactive residues of underground testing can with some justification be equated to high-level radioactive waste. It is not expected that Mururoa would meet the generally accepted criteria on site selection for a geologic repository for high-level radioactive wastes." (Atkinson Report, p. 133.)

An index to altered world perceptions of the environmentally deleterious effects of radioactive waste, whether resulting from peaceful or military purposes, is the concern shown at the Rio Conference on Environment and Development in 1992. Chapter 22 of the Report of the Conference is devoted to "Safe and Environmentally Sound Management of Radioactive Wastes". Though the wastes there referred to are those generated from peaceful activities, the concerns expressed are relevant in the present context.

Paragraph 22.1 of the Report observed that:

"the activity concentration, especially in sealed radiation sources, might be high, thus justifying very stringent radiological protection measures" (Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992 (A/CONF.151/26/ Rev.l), Vol. 1, Agenda 21, Ann. II, p. 370),

and paragraph 22.8 observed that

"States, in cooperation with international organizations, where appropriate, should :

(a) Promote research and development of methods for the safe and environmentally sound treatment, processing and disposal, including deep geological disposal, of high-level radioactive waste;
(b) Conduct research and assessment programmes concerned with evaluating the health and environmental impact of radioactive waste disposal." (Ibid., p. 372.)

It seems clear therefore that whatever the source of radioactive materials, the care with which they are stored underground is a matter of international concern. The porous nature of Mururoa is one which gives rise to special concern in the absence of an EIA relating to not merely the retentive properties of the soil of Mururoa, but also in regard to its ability to withstand repeated atomic blasts.

The danger to marine Ife of the release of radioactive substances into the ocean

In the light of these circumstances, it can scarcely be said that New Zealand has not made out at least a prima facie case that there is a danger of a rupture of the atoll's structure, with the possibility of release [p356] into the ocean of a vast quantity of pent-up radioactive materials. Such a case can of course be rebutted by appropriate scientific evidence, but till such time affords a sufficient basis for New Zealand to maintain its claim that radioactive contamination from nuclear explosions affects its rights now. as it did in 1973.

A world that has known the effects upon the food chain several hundreds of miles away from Chernobyl may well wonder what the effects may be upon the marine food chain of such a release of radioactivity. Such questions may be raised even more pointedly in the absence of an EIA by France prior to the present series of tests.

Should a radioactive leak affect the food chain in the Pacific, the rights affected would be not only those of New Zealanders, but of all the Pacific peoples, many of whom are dependent on fishing for their livelihood. The danger of radioactive contamination affecting plankton and moving up the food chain to all forms of marine life is a factor to be reckoned with, even if it were in small quantities. Migratory species such as tuna could carry this contamination of the food chain much further afield. Should there be a release of pent-up radioactive waste of over a hundred explosions through a major crack or fissuring of the structure of the atoll, the consequences could well be catastrophic.

The half-life of radioactive by-products varies from 14,000 to 24,000 years. Plutonium 239 has a half-life of 24,000 years, and plutonium 240 a half-life of 6,570 years, according to the responses of both Parties to a question 1 asked at the oral hearings.

The question may well arise whether the French Government can indeed offer any sort of assurance that the by-products released from over 100 nuclear explosions would be safely contained within the fragile structure of Mururoa for several multiples of tens of thousands of years. The possibility of such contamination must therefore be viewed with concern. The atoll has already sustained fissure cracks in consequence of prior explosions totaling the fire power of over 150 Hiroshima-type explosions. A Pacific islander could indeed have serious fears as to whether this brittle and porous island structure could withstand internally the force of even one Hiroshima-type explosion. By and large, the Pacific islanders live in total dependence upon the sea, and it is not to be wondered at that some of them are waiting at the door of this Court in

1See the list of French nuclear tests at Mururoa and Fangataufa in Annex 4 of the New Zealand Request for an Examination of the Situation, reproduced from J. Bouchez and R. Lecomte, Les atolls de Mururoa et de Fangataufa, 1995, Vol. II. [p357]

the hope that they will be heard, by way of intervention, in a matter of fundamental importance to their health, their way of life and their livelihood.

Having regard to the developments of international law embracing the principle of intergenerational rights and responsibilities, this is an environmental risk of which, in the absence of rebutting material from France, New Zealand and the islands covered by its Request are entitled, prima facie, to complain. It may be that France has material with which it can satisfy the Court on that issue, but no such material has been offered. Having regard to the course of geological events, a guarantee of stability of such an island formation for hundreds of thousands of years does not seem within the bounds of likelihood or possibility.

As for New Zealand, New Zealand has from the very commencement of this case couched its claim in terms, "including apprehension, anxiety and concern, to the people and Government of New Zealand and of the Cook Islands, Niue and Tokelau Islands", and on the basis of the violation of its rights to the exploitation of the seas. Those were New Zealand's concerns in 1974 and those particular concerns are redoubled now by the current nuclear tests.

The possibility of accident

The best intentioned and regulated of human activities must always face the possibility of an accident resulting from some unforeseen circumstance. The history of underground testing at Mururoa has not been free of accident.

According to New Zealand, an official publication of the French Atomic Energy Commission acknowledged that a device which had become stuck in the detonation shaft was exploded at a depth of approximately 987 metres, 110 metres less than planned. The test generated a submarine landslide of about one million cubic metres of material off the mass of the atoll which set off a tsunami which washed over part of the atoll, seriously injuring two persons.

Other accidents cited by New Zealand are:

"(a) In June 1987 officials on Mururoa admitted to Cousteau the accidental release of approximately 1.5 tera Becquerels of radioactive iodine plus other volatile material.
(b) In 1992 scientists of the Combined Radiological Safety Service on Mururoa acknowledged that 0.2 tera Becquerels of radioactive iodine had been accidentally released in 1990 in similar [p358] circumstances." (New Zealand's Request for an Examination of the Situation, para. 54.)

Having regard to the information furnished to the Court by New Zealand as summarized above, and in the absence of specific scientific material or impact assessment studies by France, the possibility of accident is another ground which goes to make out the prima facie case that New Zealand would be obliged to present.

Among the important rights of New Zealand that are threatened are its maritime rights. The 1973 Application of New Zealand covered radioactive damage caused to New Zealand's rights by French nuclear explosions in the Pacific. The fear of such radioactive pollution which brought New Zealand to the Court in 1973 is now appearing again.

The reasonableness of that fear has been proved at least prima facie, thereby enabling New Zealand to claim that the basis of the 1974 Judgment which protected New Zealand against such radioactive contamination has been affected.

New Zealand's application should therefore, in my view, be proceeded with by the Court to the next stage, which is the stage of enquiring whether a case has been made out for the issue of interim measures of protection.

All this would be done as another phase of the 1973 application filed by New Zealand.

The Position of the Interveners

It follows from the views expressed earlier that the Court could have proceeded to consider whether the interveners, Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia, should be permitted to intervene in those proceedings. Their contention is that they have an interest of a legal nature in the present proceedings and that they are not seeking to introduce a new dispute before the Court, but are seeking permission to assert their legal interests in an existing dispute in accordance with Article 62 of the Statute. They have very real concerns in regard to their undoubted right to the preservation of their own environment from the danger of radioactive contamination resulting from the conduct of another State. They have quite clearly gone to great lengths to seek legal advice, prepare substantial materials and file carefully prepared pleadings in support of their application for intervention.

It would, in this area as well, have served the substantial interests of justice if, upon a different view of the preliminary question, the matter had proceeded to further enquiry. The interveners would then have been heard on their right to intervene. If they were found, after a hearing, to have had no right to intervene, they would then have left this Court [p359] satisfied that the Court had heard them on their right to intervention and that procedural rules relating to intervention did not permit the Court to grant them redress. As it is they leave the Court without even the benefit of a hearing.

CONCLUDING REMARKS

The altogether unusual nature of this case prompts a few reflections on the nature of the judicial process. These observations have equal relevance to domestic and international judiciaries, for the judge, whether domestic or international, is equally the servant of the concept of justice.

I wish to cite preliminarily a statement by Justice Cardozo, one of the foremost thinkers on the judicial process. Substitute for the word "cases" the words "international conventions, international custom, general principles of law, judicial decisions and teachings of publicists", and the thought expressed by Cardozo holds good also for the international judge.

Cardozo observed that the judge's duty was not simply to match the colors of the case at hand with the colors of the many samples spread out upon the judicial desk:

"If that were all there was to Our calling, there would be little of intellectual interest about it. The man who had the best card index of the cases would also be the wisest judge. It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins." (Benjamin N. Cardozo, The Nature of the Judicial Process, 1921, pp. 20-21.)

This is a case for which there is no matching sample -whether in international conventions, international custom, general principles of law, judicial decisions or teachings of publicists. It presents a challenge to the Court.

This is also a case in which the processes of logical reasoning can well lead to one conclusion or the other. The processes of reasoning set out in this dissenting opinion lead to the conclusion that the Court's 1974 Judgment left open the possibility that, in the event of similar damage occurring by a means other than atmospheric testing, New Zealand should be able to bring this before the Court. The Judgment of the Court upon this Application proceeds, also by a logical chain of reasoning, to arrive at the opposite conclusion, namely, that atmospheric testing and atmospheric testing alone was the subject of the Judgment. The late Professor Julius Stone, who, in addition to his considerable standing in the world of international law, was also one of the deepest researchers into judicial reasoning in Our time, referred to such situations as "leeway’s of judicial [p360] choice" (Legal System and Lawyers' Reasoning’s, 1964; see, especially, Chapter 8 on "Reasons and Reasoning in Judicial and Juristic Argument").

We here enter an area well traversed in legal philosophy for nearly a century. In 1897 the great Justice Holmes gave classic expression to this problem. He observed that the fallacy of:

"the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion and repose is not the destiny of man. Behind the logical form lies a Judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form." ("The Path of the Law", Harvard Law Review, 1897, Vol. X, p. 466.)

Since then a deluge of writing has illuminated this subject. In this Court -perhaps even more so than in any domestic jurisdiction -these reflections regarding the judicial process are more than ever relevant, for the discipline of international law has deeper philosophical roots than most other legal disciplines. Names such as Llewellyn, Cardozo, Perelman, Julius Stone, not to mention numerous others, illurninate the pathway towards an understanding that the forms of logical reasoning do not inevitably lead to a one and only conclusion.

Black-letter law and legal logic do not assist us when we reach a fork in the road. The realist and sociological schools of jurisprudence shed much light on this problem, which is as pertinent to the judicial function before this Court as it is in the domestic courts.

The relevance of this approach to seminal cases like the Nuclear Tests cases has not passed unnoticed. Amidst the vast scholarly literature generated by the decisions of 1973 and 1974 are discussions examining the decisions in the light of the philosophical approaches of the Legal

1See, for example, John Dugard, "The Nuclear Tests Cases and the South West Africa Cases: Some Realism about the International Judicial Decision", Virginia Journal of International Law, 1975-1976, Vol. 15, pp. 463-504; Jerome B. Elkind, "Footnote to the Nuclear Test Cases: Abuse of Right -A Blind Alley for Environmentalists", Vanderbilt Journal of Transnational Law, 1976, Vol. 9, pp. 57-97; Thomas M. Franck, Word Made Law: The Decision of the ICJ in the Nuclear Test Cases", American Journal of International Law, 1975, Vol. 69, pp. 612-620; Dinesh Khosla, "Nuclear Test Cases: Judicial Valour v. Judicial Discretion", Indian Journal of International Law, 1978, Vol. 18, pp. 322-344; Pierre Lellouche, "The Nuclear Tests Cases: Judicial Silence v. Atomic Blasts", Harvard International Law Journal, 1975, Vol. 16, pp. 614-637. [p361]

Realist and Sociological Schools of Jurisprudence, for they have a vital bearing upon the international judicial process. The limits of logic and black-letter legal analysis will no doubt be similarly examined in the light of the Court's determination of this case.

The issues brought before the Court are momentous. They can, according to New Zealand, affect the integrity of marine life in the Pacific for many multiples of 24,000 years, the half-life of one of the by-products of nuclear explosions, should they reach to the sea. A prima facie case has been made out of the possibility of release into the ocean of the pent-up radioactive debris of around 127 nuclear explosions on Mururoa alone. That pent-up debris is currently confined in a medium whose stability gives rise to serious doubts. This is a major matter to be examined and it raises the fears of radioactive contamination that were entertained in 1973. Prima facie a case has been made out for a fuller examination of these matters.

The Court has refused to take this step on the basis that paragraph 63 of the 1974 Judgment relates only to atmospheric tests, although the claim was brought before the Court in general terms relating to nuclear explosions in the Pacific. This is a strict construction which is clearly not the only reasonable construction justifiable in logic. On the basis of this strict and inflexible construction, matters of critical importance to the global environment are passed by without the benefit of a preliminary examination. A less rigid construction, which is also possible, has been rejected. The latter course which, in my view, was not unavailable to the Court, should have been chosen in view of the momentous issues involved.

The views of two eminent judges on this Court may be of assistance in this regard. It was the view of Judge Lauterpacht, a view cited with evident approval by Judge Fitzmaurice, that:

"a tribunal such as the International Court has a duty, both to the parties and in the general interests of the law, that may go considerably beyond a bare decision, and may go beyond the issues the consideration of which will technically suffice to motivate the decision" (Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 1986, Vol. II, p. 653).

Judge Fitzmaurice's own view, expressed in terms of comparing a minor tribunal with one standing at the apex of judicial organization, was as follows:

1See Edward McWhinney, The World Court and the Contemporary International LawMaking Process, 1979, p. 34; see, also, Edward McWhinney, "International Law-Making and the Judicial Process: The World Court and the French Nuclear Tests Case", Syracuse Journal of International Law and Commerce, 1975, Vol. 3, No. 1, p. 9. [p362]

"The sort of bare order or finding that may suit many of the purposes of the magistrate or county court judge will by no means do for the Court of Appeal, the House of Lords or the Judicial Committee of the Privy Council, and their equivalents in other countries. International tribunals at any rate have usually regarded it as an important part of their function, not only to decide, but, in deciding, to expound generally the law having a bearing on the matters decided." (Op. cit., p. 648.)

New Zealand has placed a strong prima facie case before the Court. The Court is still far from the stage of reaching an affirmative finding of fact. All it needs to know at this stage is whether a prima facie case exists for giving the Court the ability to enquire into the grave matter brought before it.

If two views are possible on this matter, the Court should in my view lean towards that which does not shut out enquiry, but leaves the matter open for definitive determination after both Parties have marshaled their arguments and the Court is in a better position to decide. When, at this initial stage, the Court determines that even a prima facie case has not been made out, enabling it to view the matter in greater depth, it is in effect giving a definitive determination prematurely on a matter of the utmost importance, not merely to the Applicant who comes before it but to the entire international community.

I regret that the Court has not availed itself of the opportunity to enquire more fully into this matter and of making a contribution to some of the seminal principles of the evolving corpus of international environmental law. The Court has too long been silent on these issues and, in the words of ancient wisdom, one may well ask "If not now, when?"

(Signed) Christopher Gregory WEERAMANTRY.

1Apart from Certain Phosphate Lands in Nauru (Nauru v. Australia) (I.C.J. Reports 1992), Corfu Channel (I.C.J. Reports 1949) and the Nuclear Tests cases, there is no assistance the Court has given in this most vital area of contemporary international law. The first was only peripherally related to environmental law as it was settied after the Court's judgment on preliminary objections. The Corfu Channel case laid down the environmentally important principle that, if a nation knows that harmful effects may occur to other nations from facts within its knowledge and fails to disclose them, it will be liable to the nation that suffers damage. In the Nuclear Tests cases of 1973, the Court did not decide the principal environmental issue brought before it. [p363]



DISSENTING OPINION OF JUDGE KOROMA

In the present Order the Court, responding to a Request for an Examination of the Situation filed by New Zealand on 21 August 1995, and a Further Request for the Indication of Provisional Measures to direct France not to carry out further nuclear tests in the South Pacific region, also filed on 21 August 1995, found that:

"the 'Request for an Examination of the Situation' in accordance with paragraph 63 of the Judgment of the Court of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case, submitted by New Zealand on 21 August 1995, does not full within the provisions of the said paragraph 63 and must consequently be dismissed" (para. 68 (1); emphasis added).

I respectfully disagree with this finding and wish to dissociate myself from it for the reasons set out hereunder.

At the outset, however, 1 feel bound to observe that this is the second time that New Zealand has brought a case on the issue of nuclear tests in the Pacific region; and that on both occasions the Court has declined to consider the merits of its case.

The Court's function is to decide disputes that are submitted to it (Art. 38, para. 1, of the Statute); accordingly, if the Court has jurisdiction conferred on it and the case is admissible, the Court is duty-bound to hear and determine a case submitted to it.

On neither occasion has the Court found that it was unable to consider the merits of New Zealand's claim on account of a lack of jurisdiction or because the claim was found to be inadmissible.

In 1973, New Zealand presented an Application to the Court asking it 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." (Nuclear Tests (New Zealand v. France), I.C.J. Reports 1974, p. 460, para. Il ;emphasis added.)

Its submissions in the Memorial were worded as follows:

"the Government of New Zealand submits to the Court that it is entitled to a declaration and Judgment that [p364]

(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" (Nuclear Tests (New Zealand v. France), I. C.J. Reports 1974, p. 460, para. 11).

In its Judgment of 20 December 1974, the Court stated as follows

"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" (ibid., p. 466, para. 29),

and :

"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." (Ibid., p. 477, para. 63.)

On 21 August 1995 New Zealand presented the Court with a Request to examine the situation arising

"out of a proposed action announced by France which will, if carried out, affect the basis of the Judgment rendered by the Court on 20 December 1974 in the Nuclear Tests (New Zealand v. France) case" (para. 1).

The Court responded by saying that:

"the 'Request for an Examination of the Situation' in accordance with paragraph 63 of the Judgment of the Court of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case, submitted [p365] by New Zealand on 21 August 1995, does not full within the provisions of the said paragraph 63 and must consequently be dismissed"

(Order, para. 68 (1); emphasis added).

As 1 have already stated, 1 cannot support this finding and wish to be dissociated from it.

In substantiating its Request for an examination, New Zealand stated that the basis of its claim was the right conferred on it by paragraph 63 of the 1974 Judgment rendered by the Court in the Nuclear Tests (New Zealand v. France) case (I.C.J. Reports 1974, p. 477, see above).

The French Government, in a letter dated 28 August 1995, expressed the conviction that the Judgment of 20 December 1974 could in no event today serve as a basis for the jurisdiction of the Court; that the present action by New Zealand did not fall within the 1973-1974 case, which related exclusively to atmospheric tests; that the present action by New Zealand could no longer be related to that case as the 1973 claim no longer existed.

The French Government also stated that since France had not given its consent to the action by New Zealand, the Court lacked jurisdiction to entertain the action.

Because of the unprecedented nature of the Request by New Zealand, and in the interest of justice, the Court had invited the two States to inform it of their views on the following question:

"Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. France)?"

Responding to the question, New Zealand had argued that the Requests were a continuation of the proceedings commenced in 1973, when it sought from the Court a determination that the conduct of nuclear tests in the South Pacific region that gave rise to radioactive fallout constituted a violation of New Zealand's rights under international law and that those rights would be violated by any further such tests.

New Zealand drew the attention of the Court to the fact that, at the time the Court heard oral arguments on jurisdiction and admissibility in relation to the case, during and after which several authoritative statements were made by the French authorities relating to atmospheric testing, the Court imputed to the French Government the assurance that those statements were legally binding undertakings and took the view that the claim of New Zealand was to be interpreted as applying to atmospheric tests only. The Court accordingly concluded that, as a consequence of the undertaking by France, the essential concerns of New Zealand had been met.

In further responding to the question put by the Court, New Zealand pointed out that the Court, having reached the above conclusion, reserved [p366] to New Zealand the right as spelt out in paragraph 63 to return to the Court in the event of the basis of the Judgment being affected.

New Zealand stated that underlying the 1974 Judgment was the assumption that the decision by France to cease atmospheric testing and switch to underground testing met New Zealand's immediate concern about contamination of the environment; however, it contended that its wider concerns as stated in its Application remained, and that no thought had at the time been given to whether underground nuclear testing might lead to some of the same environmental consequences that had been the subject of its 1973 Application.

New Zealand also asserted that as only atmospheric testing was taking place in the South Pacific region in 1974, underground testing was not in issue, and that the Court had no evidence that such testing either could or could not lead to radioactive contamination of any part of the environment.

Among several other reasons which New Zealand advanced as having motivated the 1974 Judgment, it stated that the most likely one the Court had in mind in formulating paragraph 63 was the idea that the resumption of nuclear testing by France at some future time could give rise to artificial radioactive contamination of the environment in a manner not foreseen in 1974, and which could affect the basis of the Judgment.

New Zealand says its reading flows from the conclusion that France could not have reserved the right to radioactive contamination of the marine environment by methods other than atmospheric testing -Le., by underground testing -at the time France made its unilateral commitment.

New Zealand suggested that France had abandoned atmospheric testing in favor of underground testing because at the time atmospheric testing was the only known method of causing the contamination of which New Zealand complained, while underground testing was thought not to present such risks. Therefore, said New Zealand, what was in issue in 1973-1974 was testing that could cause radioactive contamination, not only of the territory of other States, but also of the marine environment in which other States had an interest.

New Zealand suggested that France had decided to resort to underground testing because it was at that time thought to be free of the risk of causing radioactive contamination of the environment.

New Zealand stated that it had decided to "Request for an Examination of the Situation" in pursuance of the right reserved to it by the Court in the 1974 Judgment, because of increasing scientific evidence which had emerged of late and because of its concern about the possible environmental impacts of underground testing. [p367]

In attempting to demonstrate that its Request was covered by paragraph 63, New Zealand stated that a noted volcanologist, Professor Pierre Vincent, writing on the environmental risks of nuclear testing at Mururoa, had stated that :

"All the factors now known to be conducive to the destabilization of volcanoes -major weathering and fracturing of materials, and steep sides -are present at Mururoa. In view of that fact, the shock wave produced by one of the planned new explosions, even if it were conducted beneath the lagoon, could be big enough to cause one or more of the large 'pre-perforated' blocks to shear away. This situation, which has no parallel anywhere else, can only be described as high-risk.

The immediate consequence of such a destabilization would be a sudden spill-out of part of the radioactive 'stockpile' into the sea and the formation of a tidal wave or, more accurately speaking, a tsunami -which would threaten the lives of those living not only in Mururoa but in neighboring archipelagoes." (Request, Ann. 5.)

Another scientist, Dr. Colin Surnmerhayes, a Director of Oceanographic Sciences in the United Kingdom, writing in the Independent newspaper of London on 9 September 1995 in relation to volcanic islands like Mururoa stated that they are:

"inherently unstable and may fail, given an appropriate trigger like an earthquake or a very large explosion. Failure is likely to cause a giant submarine landslide which may demolish parts of the island and could create a tidal wave that may itself damage coastal installations on other islands nearby."

Dr. Surnrnerhayes further stated that the creation of such a tidal wave was "a genuine threat to coasts as far away as New Zealand and Australia". New Zealand also pointed out that the French Atomic Agency Commission itself, in data it had itself presented, had shown that the largest tests of the 1970s and 1980s at Mururoa had had unanticipated effects.

New Zealand further asserted that France itself had acknowledged that there had been accidents and accidental releases of radioactivity during post-test sampling operations.

It further stated that it had a reasonably founded concern that what France had already done to the two atolls might cumulatively have so weakened their structures that further tests would develop the weaknesses and fracture the structures in such a way as to cause a substantial escape of radioactive material and risks to the marine environment, and [p368] that there was now good reason to fear that those risks were substantially greater than had previously been believed.

The foregoing matters provide new evidence regarding the cumulative effect of underground testing which has occasioned the serious concerns felt by the South Pacific nations.

According to New Zealand, the Noumea Convention of 1986, to which France is a party, requires France to cease testing at least until an Environmental Impact Assessment has been completed. It also suggested that new developments in international law, particularly the precautionary principle, place the onus of proof on France to offer satisfactory evidence that underground testing is safe.

As to the standard of proof to be applied by the Court in determining whether it has competence or jurisdiction to entertain its Requests, New Zealand submitted that the prima facie rather than definitive standard should apply as in the case of requests for provisional measures of protection.

New Zealand submitted that, applying the prima facie standard to the situation faced by New Zealand in 1995, the Court would find that paragraph 63 would "appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded" (Request, para. 12).

In further considering the scope and operation of paragraph 63, New Zealand reminded the Court of what is stated in that paragraph, namely, "the Court observes that if the basis of this Judgment were to be affected, the Applicant could request an examination of the situation . . ." (ibid., para. 61).

New Zealand pointed out that with the announcement of 13 June 1995 by the French Government, a situation had arisen that the Court had in mind in the Judgment of 1974; that the Request of 21 August 1995 sought the continuation of the proceedings New Zealand had commenced in 1973; that even though those proceedings had been the subject of a Judgment delivered on 20 December 1974, that Judgment did not bring the case to an end; that the current Request was another phase in those proceedings and that the right to bring the Request derived from the 1974 Judgment.

New Zealand further stated that the paragraph not only granted it the right to bring the Request, but also preserved the jurisdictional basis of the case when it stated that the denunciation by France on 2 January 1974 of the General Act for the Pacific Settlement of International Disputes of 1928 did not divest the Court of the jurisdiction it already possessed; that in adopting that form of words, the Court exercised its inherent power to preserve its jurisdiction in the case to be used in appropriate circumstances when the occasion demanded, and in the interest of justice.

As to the meaning of the words "to request an examination of the situation in accordance with the provisions of the Statute", New Zealand [p369] postulated that the Court meant that the presentation of a "Request for an Examination" was to be part of the same case, and not a new one; but acknowledged that even when the Court had used its inherent power, as it had done in this case, in order that a particular method of procedure might be followed, it must recognize that jurisdiction must be conceived of in terms of what had founded the original case. It suggested that the provisions of the Statute referred to in paragraph 63 were those of Article 36 (1) and (2). On the other hand, New Zealand argued that the obligation to proceed in accordance with the Statute might extend beyond any particular statutory provision; and that it might be intended that examination would continue in accordance with the general statutory and regulatory requirements for the procedure of any case.

New Zealand drew attention to the Court's inherent power to accommodate the particular requirements of a case.

It pointed out that its Request should not be regarded as an Application for Revision under Article 61 of the Statute; that its case does not deal with the discovery of an essential fact discovered after the Judgment that would require its correction and rectification, but rather that paragraph 63 of the 1974 Judgment was intended to allow for further consideration of the subject-matter of the case only in defined circumstances; that there was no reason why the Court should have wished to limit the French undertaking to ten years, as Article 61 expressly provides. In New Zealand's view, the Court was not referring to revision under paragraph 63, but to the possibility of a separate derivative proceeding which in the 1974 Judgment it had expressly authorized.

New Zealand also advanced the argument that, as a result of the evolution of the law, there is now no basis for assuming that the law permits underground testing; that, on the contrary, international law in general and the Noumea Convention in particular impose on France an obligation not to contaminate the environment with radioactive material.

The Noumea Convention of 25 November 1986 (to which New Zealand and France together with other States are parties), New Zealand pointed out, is concerned with the protection of the natural resources and environment of the South Pacific region, and that Article 12 of that treaty provides that :

"The Parties shall take all appropriate measures to prevent, reduce and control pollution in the Convention Area which might result from the testing of nuclear devices."

New Zealand takes the position that France is under an obligation to carry out an Environmental Impact Assessment, in accordance with Article 16 of the Treaty, before embarking on nuclear testing, to determine whether such tests are environmentally acceptable to the location and that no radioactive material will be introduced into the environment as a [p370] result of those tests. New Zealand maintains that France has not carried out such an assessment, or that there is no available evidence to show that it has done so.

New Zealand contends that apart from France's obligation under the Noumea Convention to carry out an Environmental Impact Assessment of the proposed underground nuclear tests, it is also obliged under customary international law to carry out such an assessment in relation to any activity which is likely to cause significant damage to the environment, particularly where such effects are likely to be trans boundary in nature. In its view, nuclear tests, because of their significant deposits of radioactive material which could be released into the immediate marine environment, must be preceded by such an assessment. That obligation, according to New Zealand, is founded on concordant State practice, the 1987 UNEP Goals and Principles of Environmental Impact Assessment, Articles 205 and 206 of the 1982 United Nations Law of the Sea Convention, the 1985 ASEAN Agreement, the European Community Environment Assessment Directive, the 1989 World Bank Operational Directive, the 1991 Espoo Convention, the 1991 Protocol on Environmental Protection to the Antarctic Treaty and the 1992 Convention on Biological Diversity, as well as the Euratom Treaty, all of which serve as a legal basis and as an illustration of the international standards accepted by France as applicable in this sphere of activity. New Zealand submits that France's refusal to carry out such a procedure for this class of activity is illegal.

As further evidence of the general obligation on France to conduct an Environmental Impact Assessment, New Zealand refers to Principle 21 of the Stockholm Declaration on the Human Environment and Principle 2 of the Rio Declaration on Environment and Development of 1992, which takes the form of a binding treaty for the South Pacific region in Article 4 (6) of the Noumea Convention, which provides that:

"Each Party shall ensure that activities within its jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of its national jurisdiction."

It is also part of New Zealand's case that the introduction of radioactive material into the oceans is a matter of special concern to the international community, and calls for the most extensive, if not absolute, prohibition. This principle, says New Zealand, is recognized by France both in terms of Agenda 21, paragraph 22.5 (c), of the 1992 United Nations Conference on Environment and Development and in Article 10 [p371]of the Noumea Convention whereby: "The Parties agree to prohibit the dumping of radioactive wastes or other radioactive matter in the Convention area."

In sum, New Zealand maintains that France has accepted stringent requirements -which have now become law -which prohibit it from introducing radioactive material into the marine environment, and even prohibit the storage of radioactive wastes (including the produce of nuclear tests) unless there is compelling evidence to the effect that such storage will not lead to the introduction of radioactive material into the marine environment.

Another of the legal bases cited for its claim that France will be in breach of international law with the resumption of testing derives from the binding Treaty Banning Nuclear Weapon Testing in the Atmosphere, in Outer Space and Under Water, of 5 August 1963, which proclaims in its preamble the objective of States "to achieve the discontinuation of all test explosions of nuclear weapons for all time" and the desire "to put an end to the contamination of man's environment by radioactive substances".

New Zealand is of the conviction that contemporary international law does not countenance the continuance of nuclear testing which causes radioactive contamination of the environment outside the territory of the testing State.

In summing up its response to the question posed by the Court, New Zealand maintained that since 1974 the situation had changed so radically as to have materially affected the basis of the Judgment; that such changes had struck at the rationale on which the case was barred from proceeding in 1974 so as to warrant its resumption in 1995; that the Court's assumption that the cessation of atmospheric testing would protect New Zealand's right had been affected by further evidence in 1995 when France resumed underground testing in the South Pacific region of Mururoa and Fangataufa and that this would have had potentially adverse and detrimental effects on those atolls.

New Zealand submitted that the conditions for resuming the case have accordingly been met; that there is now real evidence that New Zealand's original concerns that there should be no contamination of the marine environment have been reactivated by the underground testing carried out by France, and that the evidence of risk is compelling.

Responding to the question posed by the Court as to whether the Request by New Zealand fell within the provisions of paragraph 63 of the 1974 Judgment, France argued that there was no case in the legal sense in terms of the Statute and Rules of Court. France stated that there was a fundamental difference between the Nuclear Tests (New Zealand v. France) case of 1973 and the Request of 1995. The 1974 Judgment, [p372] according to France, related to nuclear tests producing effects in New Zealand, Niue, the Cook Islands and Tokelau and not to the South Pacific region as a whole, whereas the 1995 Request concerns the marine environment of the South Pacific region.

France further argued that the Request by New Zealand did not meet the provisions of the Statute -especially Article 40 nor did the Request fall under Articles 60 or 61 of the Statute relating respectively to an application for interpretation or a request for a revision of the Judgment. France also contended that the 1974 Judgment could not have contemplated underground testing, since that type of testing was not in issue at the time.

It further argued that since the law invoked by New Zealand was new law, that law would require a new case, but that as New Zealand had submitted that the Request was not a new case, there was no procedural foundation for the Request to stand on; that the Court therefore had no statutory basis on which to pronounce on New Zealand's Request; that New Zealand's Request, therefore, did not fall within the provisions of paragraph 63 of the 1974 Judgment.

France also contended that the Judgment excluded New Zealand's broader concerns as the Court had the right and duty to identify the object of the claim. France suggested that what the Court contemplated in paragraph 63 was a hypothetical future examination of the case, and New Zealand's interpretation of that text as enabling it to reopen the case was a misreading of the paragraph.

France also contested the scientific evidence presented by New Zealand, saying that the level of radioactivity found in the atolls was the same as was to be found in far-away countries and regions, and that New Zealand had not been affected by radioactivity emanating from the nuclear tests; nor had the continuation of the tests had any effects on the environment.

It asserted that fracturing as a result of the tests on the atolls was normal, and that there was no risk of geological disaster; that, after twenty years of testing, radioactivity in the environment of Mururoa was slight.

As far as the relevant Conventions requiring certain actions to be taken, France stated that it had contributed greatly to the development of the law; that hazardous wastes and underground tests are not one and the same thing; that France has complied with the precautionary principle and was complying fully with the international law of the environment.

France rejected the res ipsa loquitur principle which New Zealand had advanced regarding the burden of proof and maintained that such burden rested upon New Zealand.

France submitted that the Request of New Zealand neither fell within the terms of paragraph 63 nor met the conditions set therein. [p373]

The issue was thus joined as France, through its letter, aide-mémoire, and its presentation during the oral hearings, attempted to show in every material particular that the Requests of New Zealand had no legd-basis, and also denied that the Court was competent to entertain the Request.

In my view, the Court took the right decision when it invited the two States to inform it of their views as to whether the Requests submitted by New Zealand fell within the provisions of paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests (New Zealand v-France) case. The burden of establishing the legal basis of the Request rested upon New Zealand, for it was New Zealand that had submitted the Request, and it was for New Zealand to establish that the Request fell within the provisions of paragraph 63.

In my considered opinion, the standard of proof the Court should have applied as to whether New Zealand had established the legal basis of its Request should have been on a prima facie basis.

It seems to me that when it put the question for both States to address, the Court was attempting to determine whether it was competent to consider the main Request and the Further Request submitted by New Zealand in which the Court was asked to indicate interim provisional measures under Article 41 of the Statute to restrain France from resuming underground nuclear testing in the South Pacific region.

New Zealand had advanced the argument that the Court's jurisdiction to entertain both Requests was derived from paragraph 63 of the Judgment. France contested this.

In the Nuclear Tests (New Zealand v. France) case in 1973-1974, New Zealand had founded the jurisdiction of the Court on:

"(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." (Judgment, I.C.J. Reports 1974, p. 509, para. 59, joint dissenting opinion.)

The Court ruled that the provisions invoked by New Zealand appeared, prima facie, to afford a basis on which its jurisdiction might be founded (Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 138).

Thus, when making its Order indicating provisional measures, the Court applied the prima facie test in order to determine a basis on which its jurisdiction might be founded.

In that Order the Court recalled that, by the terms of Article 41 of the Statute, the Court might indicate interim measures of protection only [p364] when it considered that circumstances so required in order to preserve the rights of either Party; that New Zealand had alleged that the series of French nuclear tests had added to radioactive fallout on New Zealand territory, and that it had further contended that there was an immediate possibility of a further atmospheric nuclear test being carried out by France which would cause New Zealand harm. Taking these factors into consideration, the Court ordered both Parties not to take any action which might aggravate or extend the dispute submitted to the Court or prejudice the rights of the other Party (I. C.J. Reports 1973, p. 142).

In recent years a settled case-law has emerged in the Court which allows issues relating to incidental jurisdiction to be decided if title to jurisdiction can be adduced and is not manifestly invalid, and if the circumstances so require (case concerning Anglo-Iranian Oil Co., Interim Protection, I.C.J. Reports 1951, p. 89, cases concerning Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection and Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim Protection, I. C. J. Reports 1972, pp. 12 and 30). The Court has taken the position that the mere fact that a State has challenged the basis of its jurisdiction does not suffice to prevent it from indicating interim measures of protection; nor need it come to the conclusion that where it has jurisdiction to deal with the merits of a case it must decide whether to grant interim provisional measures of protection.

Given the seriousness of the matter New Zealand has raised in its Request, and the weight of the evidence presented both in terms of facts and the law, it is my considered opinion that it has clearly shown both that its Request has a legal basis and that it falls within the provisions of paragraph 63. Had the Court applied the appropriate standard of proof, it would have come to the conclusion that New Zealand had established a prima facie case for the Court not only to have granted its request for the indication of provisional measures of protection, but to have assumed jurisdiction to consider the merits of the Request.

With regard to France's contention that the Court lacked jurisdiction to entertain the Request, New Zealand argued that the Court's jurisdiction was derived from the 1974 Judgment itself, when the Court in that Judgment stated that :

"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" (I. C. J. Reports 1974, p. 477, para. 63).

New Zealand agreed that its Request is not based on any of the provisions of the Statute as such. However, its view of the Court's position [p375] was that, having regard to the manifest connection between the Request and the terms of the 1974 Judgment, the Court would receive and process that Request made to it in the same manner as it would any other request or application made to it by a State party to the Statute.

It anticipated that the Court would then deal with the Request in a procedurally predictable way, and that if France were to consider that the Court lacked competence or jurisdiction to deal with the matter, it would appear and so argue, with the Court either sustaining the objections, in which event the proceedings would come to an end, or rejecting them, whereupon the case would proceed in the normal way. New Zealand argued that it was this kind of predictable procedure, based on the Statute which the Court had contemplated and its subordinate Rules, to which the Court in 1974 was referring by the use of the words "in accordance with the provisions of the Statute" in paragraph 63.

This explanation of the Court's intent in 1974 appears cogent, reasonable and persuasive. The Court had apparently envisaged a situation in which New Zealand or any other State party might want to request an "examination of a situation" affecting the Judgment, although New Zealand or those other States might not be in a position to do so as France had disconnected its jurisdictional link with the Court.

To guard against such a contingency, the Court decided, using its inherent powers, and in the interest of the administration of justice, that the jurisdictional link which it had found to exist when New Zealand filed its Application in 1973 must be preserved and serve as the jurisdictional link for a possible request for an examination of the situation, were the basis of the Judgment to be affected.

As I have stated, this argument seems to me very plausible, for even if, as France contends, the basis of the Court's Judgment related to France's unilateral declarations with reference to atmospheric and underground testing, if New Zealand or any other State had misconstrued the basis and submitted a request, founding the Court's jurisdiction on paragraph 63, France would have been obliged to present a formal objection to the Court, or the Court itself would have had to determine whether a jurisdictional link existed.

Only after such a determination would the Court have been able to decide whether or not any such link existed. The test to be applied by the Court at this stage, in my view, should be the prima facie one, and if met should have entitled the Court to assume jurisdictional title.

New Zealand contended that its Request should not be considered as application for revision in accordance with Article 61 of the Statute. This position seems accurate to me, for it appears unlikely that the Court would have contemplated a revision as the route whereby New Zealand could come to the Court, given the conditions laid down in the Article which provides that such an application must be based on some new fact of a decisive nature which was unknown to the Court and to the [p367] party claiming revision, and since the Article precludes any application for revision after ten years. I agree that there was no reason why the Court would have wished to so restrict New Zealand or any other State for that matter if the basis of the Judgment had been affected. Furthermore, paragraph 63 did not anticipate the discovery of new facts but rather provided for an examination of the subject-matter of the Judgment. It is thus clear that New Zealand's Request cannot be debarred under Article 61 of the Statute.

I, therefore, concur with the Court's finding that a special procedure was envisaged in the event that the circumstances defined in paragraph 63 had arisen, in other words, circumstances which "affected' the "basis" of the Judgment.

The Court, according to its Order, has decided that the basis of the Judgment delivered on 20 December 1974 in the Nuclear Tests (New Zealand v. France) case has not been affected, and hence the "Request for an Examination of the Situation" submitted by New Zealand does not therefore fall within the provisions of paragraph 63 of that Judgment, and cannot therefore give effect to it.

In reaching this conclusion, the Court has found that the basis of the 1974 Judgment in the Nucleur Tests (New Zealand v. France) case was France's undertaking not to conduct further nuclear tests in the atmosphere, and that it was in the event of a resumption of atmospheric nuclear testing that the basis of the Judgment would have been affected, which hypothesis has not materialized.

This reading of the Judgment, which is preferred by the majority of the Members of the Court, while respectable, is not unassailable or free from doubt. Any such doubts in the reading of the Judgment, given the nature and gravity of the Request, should have been resolved in favor of the State alleging that the basis of the Judgment had been affected.

In my view, the issue whether the basis of the 1974 Judgment has been affected is, to a very large extent, a question of fact. New Zealand has stated that though the 1974 Judgment was based on the French Government's undertaking not to conduct any atmospheric nuclear tests, it maintained that, in both its 1973 Application instituting proceedings and in its written submission, it relied upon concerns going beyond just atmospheric testing. Its Application of 9 May 1973 stated as follows:

"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." (I.C.J. Reports 1974, p. 460, para. 11 ;emphasis added.)

In its Application also filed on 9 May 1973, [p377]

"The Government of Australia asks the Court to adjudge and declare that . . . the carrying out of further atmospheric nuclear weapon tests in the South Pacific Ocean is not consistent with applicable rules of international law.

And to Order

that the French Republic shall not carry out any further such tests."

(I.C.J. Reports 1974, p. 256, para. 11 ;second emphasis added.)

It can be seen that despite the similarity of the two Applications, New Zealand's concerns were not limited to nuclear atmospheric testing; they were wider. Evidently, even though the two Applications were similar, the Court decided to deal separately with the two actions, presumably because they were not identical. But as the Court's Order now states:

"having considered the Application of Australia, the Court employed in paragraph 60 of that Judgment a form of words identical to the one used in paragraph 63 of the Judgment in the Nuclear Tests (New Zealand v. France) case and adopted, in both Judgments, operative parts with the same content" (para. 58).

The Court stated that its decision was reached after it had ascertained the true subject of the dispute, and the object and purpose of the claim, taking account not only of the submission, but of the Application as a whole, the arguments of the Applicant before the Court, and other documents referred to.

Responding to this position taken by the Court in reaching its decision, New Zealand had stated that the 1974 Judgment conclusively decided only two things, namely, that the French statements of intention in relation to atmospheric testing were obligations binding in international law and that, since the Court had concluded from official New Zealand statements that those commitments met and matched New Zealand's primary concern, the case no longer had any object.

In my view, New Zealand's contention is correct, namely, that there was no res judicata in respect of the issues raised in its 1973 Application, and that the words "if the basis of this Judgment were to be affected" gave it the right to return to the Court; a right that would be activated if a factor underlying the Court's Judgment of 1974 ceased to be applicable on account of future conduct by France. New Zealand further contends that the basis of the Judgment should not be taken to refer solely to France's undertaking to cease further atmospheric testing.

My own reading of paragraph 63 is that, the Court in its 1974 Judgment having taken into consideration the circumstances then prevailing, namely, atmospheric tests in the Pacific, Australia's concerns about atmospheric tests, as well as the New Zealand Application, France's commitment to cease atmospheric testing led the Court to believe that [p378] cessation of atmospheric testing would end contamination of the environment by radioactive material.

The Court thus believed itself to meet New Zealand's primary concerns as far as it related to atmospheric testing, but its wider concerns relating to radioactive fallout from nuclear testing remained. New Zealand's reading of an implied understanding that underground testing would not result in radioactive contamination is not therefore without considerable merit.

It thus seems to me that New Zealand was not contesting that atmospheric testing constituted the object of the 1974 Judgment; what it now contends is that the object has been affected by radioactive fallout resulting from underground testing. The Court, in my view, should have given more careful consideration to this construction of the Judgment, while taking into account New Zealand's original Application and the evidence presented with the Request.

New Zealand had informed the Court that there is now a growing body of scientific evidence pointing to the potentially adverse and detrimental effects of underground testing in the South Pacific region of the Mururoa and Fangataufa atolls, and showing that contamination of the marine environment is a real risk. It seems to me that this would serve as evidence relating to the basis of the 1974 Judgment. What New Zealand complained about in 1973 was the radioactive effects of testing, and if the assumption then made that underground testing produces no radioactive effects no longer holds true, then, in my opinion, the basis of the 1974 Judgment must have been affected. There is merit in the contention that the 1974 Judgment met the concerns -including New Zealand's -in relation to atmospheric testings. However, as radioactive contamination is now said to be caused by underground testing, this, if proved, would seem to affect the basis of the Judgment, and would entitle a party to make use of the channel provided by paragraph 63 as New Zealand has done.

With reference to the law, New Zealand alleged that France is in breach of international law, both conventional and customary, by failing to comply with its obligation not to introduce radioactive material into the environment.

Under contemporary international law, there is probably a duty not to cause gross or serious damage which can reasonably be avoided, together with a duty not to permit the escape of dangerous substances. This trend is reflected in treaties such as the Moscow Treaty of 1963 Banning Nuclear Weapon Testing in the Atmosphere, in Outer Space and Under Water (about 130 States are now parties to this Treaty, according to which they undertake to prohibit, prevent and not to carry out any nuclear weapon test explosions at any place under their jurisdiction or control in the atmosphere, including outer space, or under water, including [p379] territorial waters or the high seas), the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and the 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, which have as their object the prevention of radioactive contamination of the environmental areas to which they are related. It is reflected in the United Nations Convention on the Law of the Sea, Part XII of which is on the protection and preservation of the marine environment.

Given this trend, it can be argued that nuclear testing as such is not only prohibited, but would be considered illegal if it would cause radioactive fallout.

It is New Zealand's case that resumed French testing could produce contamination of the Pacific marine environment by artificial radioactive material.

In my view the evidence, though not conclusive, is sufficient to show that a risk of radioactive contamination of the marine environment may be brought about as a result of the resumed tests. The Court should have taken cognizance of the legal trend prohibiting nuclear testing with radioactive effect, and it should have proceeded to an examination of the situation within the framework of the 1973 Nuclear Tests case. The Court should also have indicated the interim measures of protection as requested.

In the light of the above considerations; the Court should have decided that New Zealand's Request for an Examination of the Situation falls within the provisions of the 1974 Judgment and should have taken action on it.

In pursuance of the New Zealand Request, the Australian Government and the Governments of Samoa, Solomon Islands, the Marshall Islands and the Federated State of Micronesia filed Applications for permission to intervene.

The Australian Government applied under Article 62 of the Statute, while Solomon Islands and Samoa each filed a document entitled "Application for Permission to Intervene under Article 62 Declaration of Intervention under Article 63", and the Governments of the Marshall Islands and the Federated States of Micronesia submitted similar documents.

In the Order, the majority of the Members of the Court stated that since the "Request for an Examination of the Situation" submitted by New Zealand did not fall within the provisions of paragraph 63 of the Judgment of 1974, the applications for permission to intervene also had no object and could not be the subject of any action.

Since the States concerned, as well as New Zealand, face the risk of radioactive fallout in the South Pacific region, and in view of the fact [p380] that they are parties to the relevant multilateral and regional conventions, it is regrettable that they were not granted the opportunity to present their views on the Request to the Court.

In view of the foregoing considerations, 1 am unable to associate myself either with the Order of the Court or with most of its findings.

(Signed) Abdul G. KOROMA [p381]



DISSENTING OPINION OF JUDGE SIR GEOFFREY PALMER


1. The application before the Court appears to be unique. No precedent has been referred to that resembles it in fact or law. It is not easy to grapple with a case which is both so novel in legal terms and of such moment in substantive terms. In the end the result depends upon the approach to be adopted to the legal interpretation of the Judgment rendered by the Court in the same case in 1974. Absent the usual legal navigation lights which guide this Court in its judicial work, we are thrown back to the basic elements of legal reasoning that should be applied to the task. I differ from the approach to legal analysis adopted by the majority of the Court, so 1 respectfully dissent from the Judgment of the Court.

THE NATURE OF THE PROCEEDINGS

2. On 21 August 1995 the Government of New Zealand filed in the Registry of this Court two documents:

(a) Request for an Examination of the Situation in accordance with paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests (New Zealand v. France) case;
(b) Further Request for the Indication of Provisional Measures.

3. The full text of paragraph 63 of the 1974 Judgment is as follows:

"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." (I. C.J. Reports 1974, p. 477.)

4. On 9 May 1973 the New Zealand Government instituted proceedings against France with the purpose of obtaining a determination that the conduct by the French Government of nuclear tests in the South Pacific region that gave rise to radioactive fallout constituted a violation of New Zealand's rights under international law and that those rights would be violated by any further such tests (I.C.J. Pleadings, Nuclear Tests, Vol. I I , p. 3).[p383]

5. In 1973 the Court's jurisdiction was invoked under two heads:

(a) Articles 36 (1) and 37 of the Statute of the International Court of Justice and Article 17 of the General Act for the Pacific Settlement of International Disputes to which New Zealand and France both had acceded ; and
(b) Article 36 (2) and (5) of the Statute of the Court.

France ceased atmospheric testing in the South Pacific while this case was before the Court in 1974 in circumstances that will be analyzed later in this opinion.

6. In 1995 this Court scheduled a public sitting in order to enable New Zealand and France to inform it of their views on an issue framed by the Court :

"Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. France) ?"

It is a procedural issue far removed from the merits of the case. Is there a sufficient link between the case as it was pleaded and decided in 1974 and the effects of the French nuclear tests that are continuing underground
in the South Pacific to allow further consideration to be given to the New Zealand Request? It was described in the oral argument by France as a prior question to a later preliminary one. New Zealand said it was to determine whether New Zealand could in the circumstances exercise the right reserved to it in 1974 to return and pursue its 1973 case. Cases in this Court, because of the peculiar nature of its jurisdiction, may go through three phases with distinct proceedings in each preliminary objections to jurisdiction, preliminary objections to admissibility and the merits of the case. But this 1995 proceeding was not any of those. It was of a procedural species not seen before and its novelty may have given rise to misunderstandings. It led among other things to the Court sidestepping New Zealand's Further Request for the Indication of Provisional Measures and dealing with the Request itself in a somewhat summary manner. Both the procedural posture of the case and the substantive issues are novel; but novelty is no reason to dismiss the case or not consider it fully.

7. It should be noted that France filed no pleadings in the case in 1974, was not represented at the oral proceedings and at all times maintained the attitude as expressed in a letter of 16 May 1973 from the Ambassador of France to the Netherlands which was placed before the Court. That letter expressed France's view that the Court was manifestly not competent in the case; that it could not accept the Court's jurisdiction and that [p384]b accordingly the French Government did not intend to appoint an agent and requested the Court to remove the case from the list (I. C.J. Reports 1974, p. 458).

8. A slightly different approach to the present application has been taken by the Government of France in 1995. The same position taken in 1973 was expressed by France in the letter dated 28 August 1995 to the Registrar at the Court by the Ambassador of the French Republic to the Netherlands in which it is argued that "no basis exists which might found, even if only prima facie, the jurisdiction of the Court to entertain the New Zealand Requests". In 1995, however, the French Government was represented by its Director of Legal Affairs at the Ministry of Foreign Affairs at the meeting scheduled by the President of the Court on 30 August 1995. As a result of that meeting France filed with the Court an aide-mémoire containing 14 pages of closely reasoned legal argument as to why New Zealand's application could not be entertained by the Court. In 1995 France was represented by counsel before the Court. It fully participated in oral hearings on 11 and 12 September 1995.

9. In dealing with the present application it is necessary to ascertain exactly what was decided and what was not decided by the Court in 1974. The President of France issued a communiqué on 8 June 1974 and other officia1 statements were made to the effect that atmospheric tests would cease, giving way to underground testing. The Court in its 1974 decision decided that the case before the Court had been rendered moot since New Zealand had secured what it sought. The Court went on to state that the statements by France that atmospheric tests would cease were statements upon which other nations were bound to rely. The Court held the statements "constitute an undertaking possessing legal effect" (I. C.J. Reports 1974, p. 474, para. 53). Thus the Court reasoned that the Dispute having disappeared, the claim advanced by New Zealand no longer has any object" (I. C.J. Reports 1974, p. 476, para. 59).

10. In its Request of 14 May 1973 New Zealand did not restrict itself to concern with atmospheric nuclear testing. In its submission the rights to be protected by the Court were:

"(i) the rights of all members of the international community, including New Zealand, that no nuclear tests that give rise to radioactive fall-out be conducted;
(ii) that 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 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 ; [p385]
(iii) 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;
(iv) 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 airspace 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 ;
(v) the right of New Zealand to freedom of the high seas, including freedom of navigation and over flight and the freedom to explore and exploit the resources of the sea and the sea-bed, without interference or detriment resulting from nuclear testing." (I.C.J. Pleadings, Nuclear Tests, Vol. II, Request for the Indication of Interim Measures of Protection, p. 49, compare with Application, ibid., p. 8.)


11. The elements of the request relevant to the present application are:

the maritime environment,
the terrestrial environment,
unjustified artificial radioactive contamination,
the effects on the environment of the region,
freedom to explore and exploit the resources of the sea-bed without detriment from nuclear testing,
the dangers to territorial waters.

12. It is against that background that paragraph 63 of the Court's Judgment falls to be considered. In the written proceedings and oral hearings before this Court the paragraph has been subjected to a remarkable range of interpretations and it is a passage with some Delphic qualities. It hangs in a tantalizing fashion over the whole case.

13. The paragraph appears alone in the Judgment plainly separated from the passages which both precede it and follow it. What was its purpose? What is its proper interpretation? These are the questions upon which the result of the case depends. But before discussing those issues some context needs to be set out to allow a more ample appreciation of them.

SOME BACKGROUND ISSUES

A History of Consistent Opposition

14. This case concerning French nuclear testing in the South Pacific has a long history. It began in this Court in 1973. Diplomatic correspondence between New Zealand and France revealed serious concern about [p386] the subject for a decade earlier (I.C.J. Reports 1974, p. 464, para. 26). Before that France had tested nuclear devices in Algeria. Two factors which favored a change of venue for testing were the fact that Algeria secured its independence from France in 1963 and there was concern that the Saharan winds carried radioactive debris into Europe. (See generally "Note, French Testing and International 'Law", 24 Rutgers Law Review 144 (1969).) While the Pacific may have been more expansive in spatial terms, the reception to the tests there, first atmospheric and later underground, reinforced the old adage of environmental law: not-in-my-backyard.

15. But it would be wrong to attribute New Zealand’s opposition to nuclear testing to the French movement of testing to the Pacific. France conducted 19 tests in Algeria between February 1960 and February 1966. At the time the official order to proceed with testing was given in 1958 there was a General Assembly resolution expressly condemning French testing, not only for the threat that it posed to the then moratorium but also for "causing anxiety among all peoples, and more particularly those of Africa". New Zealand voted for that resolution in the General Assembly (resolution 1379 (XIV), 20 November 1959).

16. This history of New Zealand opposition to nuclear testing is meticulously examined in a scholarly article by J. Stephen Kos ("Interim Relief in the international Court of Justice :New Zealand and the Nuclear Test Cases', 14 Victoria University of Wellington Law Review 357 (1984)). He finds that New Zealand, unlike Australia, had "had a consistent and outspoken record to all atmospheric testing since 1958" (p. 370). One of the counsel in the 1973 New Zealand case, who was again counsel before the Court on this occasion, Sir Kenneth Keith, Q.C., wrote in a learned article,

"The diplomatic record, assembled in the documentation submitted to the Court, shows a consistent and developing New Zealand position dating from 1958 when it supported a resolution about testing in the Sahara." (K. J. Keith, "The Nuclear Tests Cases after Ten Years", 14 Victoria University of Wellington Law Review 350 (1984).)

17. In truth, the New Zealand opposition to nuclear tests has three strands -concern for disarmament and an opposition to the spread of nuclear weapons and their testing; the effects of nuclear testing on the environment; and a regional concern. There is in fact a strong element of consistency about New Zealand's attitude to nuclear testing in all categories [p387] and in this history is to be found the explanation for why New Zealand's pleadings in the 1974 case are substantially wider than Australia's in the companion case. The New Zealand pleadings as set out earlier in this opinion manifestly do not restrict themselves to issues of atmospheric nuclear testing. The environmental issues are prominent.

18. It is also significant that the New Zealand official reaction to France's assurances, made while the case was before the Court, that atmospheric testing would cease and give way to underground testing was not accepted by New Zealand. France had issued a communiqué on 8 June 1974 indicating it would cease atmospheric tests. New Zealand in a diplomatic note that was also before the 1974 Court said it had "fundamental opposition to all nuclear testing" (I.C.J. Reports 1974, p. 470, para. 37).

19. Then there was the official New Zealand Government response to the Judgment of the Court. The official statement of the New Zealand Prime Minister, the Rt. Hon. W. E. Rowling, was made on 21 December 1974 and put before this Court on 11 September 1995. It concluded as follows:

"Mr. Rowling concluded by recalling that New Zealand's concern about nuclear testing had never been confined to the particular case of the tests conducted by France or indeed, to the question of testing in the atmosphere. It would continue to be the New Zealand Government's aim to bring about the ending of all forms of nuclear weapons testing, by any country."

20. Indeed it is a matter of public record that New Zealand had a serious diplomatic dispute with the United States of America over the ability of ships from that country to bring nuclear weapons into New Zealand harbours, a dispute which resulted in a rupturing of the Anzus Alliance established between the United States, Australia and New Zealand pursuant to the 1951 Anzus Treaty (131 United Nations, Treaty Series (UNTS) 83). The dispute caused the United States to suspend its treaty obligation towards New Zealand because New Zealand would not admit to its ports nuclear armed or powered ships. New Zealand passed a statute that remains the law enshrining that policy: New Zealand Nuclear Free Zone, Disarmament and Arms Control Act 1987.

21. From 1983 onwards there was a consistent pattern of official public statements expressed by New Zealand to France's underground nuclear testing in the Pacific. The 1995 New Zealand Request shows that New Zealand publicly objected on no fewer than 50 occasions. [p388]

22. Further, New Zealand continuously sought information, or evidence, from France in bilateral, regional and multilateral contexts. Those requests include the following:

3 December 1979: request by New Zealand Minister of Foreign Affairs during meeting in Paris with French Foreign Minister;
22 April 1980: request to France to allow visit to Mururoa test site by New Zealand scientists;
9 December 1981: further request for information;
24 March 1982: New Zealand request for independent verification of French safety measures;
23 August 1982: New Zealand repeated request for access to site by New Zealand scientists (Atkinson visit allowed October-November 1983);
25 November 1986: Noumea Convention signed following negotiations over some years involving New Zealand and France and other South Pacific States.

There were no tests between July 1991 and September 1995. (Reply to question by Judge Schwebel.)

23. In responding to the 1995 Request before it the Court needed to examine here the context of this particular dispute closely. In 1973 the burden of the complaint by New Zealand was that it was entitled to be free from the hazards of increased nuclear radiation due to French nuclear testing in the South Pacific. As indicated elsewhere in this opinion the Court found it unnecessary in 1974 to address the central issue attributing "legal effect" to France's public undertaking to halt atmospheric testing. Unhappily, this disposition of the case manifestly did not have the effect of solving the dispute between the Parties. The state of international law on the central issues was not decided. The reality is that in one form or another French nuclear testing in the South Pacific has been at the root of a series of international law issues which have arisen between the two nations since 1974 (United Nations Secretary General : Ruling on the Rainbow Warrior affair between France and New Zealand, reprinted in 26 International Legal Materials (ILM) 1346 (1987), 74 International Law Reports (ILR) 241; Rainbow Warrior (New Zealand v. France), International Arbitration Award, 30 April 1990 (Eduardo Jiménez de Aréchaga, Professor Bredin and Sir Kenneth Keith), 82 ILR 499).)

Interveners

24. That there is widespread concern about the environmental issues raised by the French tests is obvious enough, not only from the high [p389] media profile the issues enjoyed at the very time of the oral hearings but also from the fact that a number of countries sought to intervene in these proceedings under Article 62 of the Statute and have filed the necessary documents to do so. Those countries are:

Australia,
Samoa,
Solomon Islands,
Marshall Islands,
Federated States of Micronesia.

The Court has taken no action on the Applications made by these countries; an omission considered by this Judge to be unfortunate. It is a big step for the smaller of these democratic countries to attempt to come before this Court combining as they do the interests of Polynesian, Melanesian and Micronesian peoples and they are entitled to a response. They were not permitted to be heard in the oral argument and they well may have been able to add valuable assistance to the Court's consideration. The issue before the Court was one that deserved to be considered in its regional context as well as its factual and legal context. As Paul East, Q.C., the Attorney-General of New Zealand told the Court the 15 countries of the South Pacific Forum regard French nuclear testing "of grave concern to the countries and peoples of the region" (CR 95/19, p. 20, para. 13). This regional concern is exemplified by the provisions of the South Pacific Nuclear Free Zone Treaty concluded at Rarotonga 6 August 1985, entered into force 11 December 1986 (24 ILM 1442 (1985)).

THE CENTRAL LEGAL ISSUES

Paragraph 63

25. The central legal issue in the case is how to interpret paragraph 63 of the Court's 1974 Judgment, which for ease of reference is repeated again :

"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 [p390] jurisdiction in the present case, cannot constitute by itself an obstacle to the presentation of such a request." (I.C.J. Reports 1974, p. 477.)

The New Zealand Argument

26. The New Zealand interpretation of the paragraph is based on its 1973 Application which was not limited to atmospheric testing and was at its base a dispute about nuclear contamination. The prime concern was contamination, its source was incidental or secondary (1995 New Zealand Request, para. 64). New Zealand says its interpretation draws strength from its prayer that the Court adjudge and declare the conduct of nuclear tests in the South Pacific constituted a violation of New Zealand rights under international law. New Zealand further draws comfort from the fact that the operative part of the Court's Order of 22 June 1973 talks of the need to avoid "nuclear tests" and is not restricted to atmospheric tests (1995 New Zealand Request, para. 65). New Zealand further points to the scope of the 1973 Application in its concern with the living resources of the sea.

27. New Zealand then puts its argument in this way:


"It is true that the French declarations had said that, in giving up atmospheric testing, France would be in a position to pass to the stage of underground testing. Thus even though the prospect of underground testing was in the mind of the Court, it did not specifically rule that underground testing would end the dispute absolutely. The crucial point to recall is that no one had any idea at that time that the underground testing subsequently to be carried out at Mururoa or at Fangataufa could, or would in due course, lead to some of the results that it was thought the termination of atmospheric testing would avoid, namely, pollution of the marine environment by radioactive material. If it had been so contemplated, the Court could hardly have taken the view that the French renunciation of atmospheric testing could by itself have brought the 'dispute' to an end -for evidently it would not have." (Ibid., para. 67.)

28. Thus, New Zealand argues that the scope of the Court's 1974 Judgment must be measured not by reference to atmospheric testing as such, but rather by reference to the stated objective of the Application, which was to secure a prohibition of testing likely to produce contamination in the Pacific marine environment by any artificial radioactive material. It was triggered by the announcement of 13 June 1995 by the President of the French Republic announcing a series of tests after France had previously ceased testing in July 1991. On the basis of scientific [p391] evidence, the case New Zealand now presents is that underground nuclear testing at Mururoa and Fangataufa has already led to some contamination of the marine environment and there appears a real risk of its leading to further potentially significant contamination. Thus, concludes the argument on this point by New Zealand, the matching made by the Court in 1974 between atmospheric testing and the width of the dispute between New Zealand and France is based on a presumption that is no longer valid. By the time of the oral hearing there had occurred a total of 135 underground nuclear explosions in the South Pacific making up the relevant background against which the provisions in paragraph 63 of the Judgment must be examined. So, New Zealand now seeks a resumption of the 1973 proceedings before this Court because the basis of the 1974 Judgment has been affected by new developments and by the accumulation of concentrations of hazardous radioactive materials which will be a danger if they escape.

29. On the critical element upon which the view of the majority turns the New Zealand Solicitor-General, J. J. McGrath, Q.C., made the following oral submission :

"Had it been the Court's intention to confine resumption of the case to a situation where France had reverted to atmospheric testing, the Court would have said so. It did not. Instead it framed the test in broad words which raised the question of whether the rationale underlying the Judgment of 1974 continued to apply. It is argued by France that only future atmospheric testing is covered by the right to go back to the Court. But that, Members of the Court, is contradicted by the very generality and wide scope of the words 'if the basis of the Judgment is affected'. Indeed, if you look at the whole of paragraph 63, it is impossible to treat the French unilateral undertaking to cease atmospheric testing as the only event that would change the basis of the Judgment. The first sentence of the paragraph says that the Court is not prepared to contemplate a breach of its undertaking by France. How, then, can it be argued that the second sentence contemplated solely that possibility?" (CR 95/19,
p. 50, para. 38.)

30. There were in the New Zealand view two assumptions forming the basis of the Judgment in 1974. The first was that France would comply with its commitment to cease atmospheric testing and confine itself to underground testing. The second assumption was that the cessation of atmospheric testing met and matched New Zealand's allegations and concerns regarding nuclear contamination as they stood in 1974. Then New Zealand went on to develop an extensive argument as to why the second assumption was no longer valid. Thus, if the wider concerns that [p392] it expressed in its pleading came again into issue in the future it was at liberty to reopen the case under paragraph 63. The words "basis of the Judgment" were deliberately left undefined, New Zealand contends. New Zealand went on to develop lengthy arguments as to what had changed. In short what had changed were both the facts and the law.

31. Professor Elihu Lauterpacht put the argument for New Zealand in this way. He suggested to the Court that if New Zealand had been asked in 1974 the question: What is your concern to stop atmospheric testing or prevention of nuclear contamination, it would have provided the following answer :

"It is ridiculous to think that we would be content with the abandonment of atmospheric testing if nuclear pollution were to be allowed to continue by other means. For us it is not the means or the medium of testing that matters. It is the consequences. The fact that the testing is carried out in the atmosphere is only incidental to the consequences of the testing." (CR 95/19, p. 64, para. 5.)

The Argument of France

32. The arguments adduced by France stoutly resist all of the New Zealand claims. One of the counsel for France, Sir Arthur Watts, described the New Zealand Request as "curious and unprecedented" (CR 95/21, p. 47). This submission was based on the notion that the case no longer existed. In fact that there was no provision for such a Request in either the Statute governing the Court or its Rules. Thus in essence the French argument was that the Nuclear Tests (New Zealand v. France) case no longer exists. It came to "an end in 1974, and is dead" (ibid., p. 52). Since it was dead it could not rise again.

33. In the aide-mémoire submitted to the Court on 6 September 1995 France submits that the Request of New Zealand does not relate to any case and consequently no procedural steps can be taken. France submits the case was closed by the Judgment of this Court on 20 December 1974. France reasons that since the Court found that the claim then by New Zealand no longer had any object, as a result of the statements made by France, the Court was not called upon to give a decision. This, says France, was the decision, it is res judicata and the matter is at an end. The whole case was about atmospheric tests and only atmospheric tests. The structure of the Court's Judgment demonstrates it. Furthermore, the Court and New Zealand knew that tests were going to continue underground. The statements made by France and relied upon by the Court said so. France points to passages in the Judgment saying that the New Zealand Application should be interpreted as applying only to atmospheric tests. And, France argues, none of the six dissenting Judges disputed [p393] the fundamental conclusion that the object of the New Zealand Application related to atmospheric tests. France goes on to quote statements in the New Zealand pleadings that the "core of the legal dispute" is whether atmospheric testing involves the violation of international law. (Aide-mémoire submitted on behalf of France, para. 16.) Thus, in the view of France paragraph 63 is to be read against a background that the whole case was and is restricted to atmospheric tests. France concludes on the basis of this reasoning that the New Zealand 1995 Request is of a "wholly artificial and unacceptable nature" (ibid., para. 19)'.


34. Taken as a whole the Judgment of the Court established the following three propositions in the view of France. First it expressly considered New Zealand's application to relate solely to atmospheric tests and not other types of tests. Second, the Court found France committed by various unilateral declarations not to conduct further atmospheric tests. Third, it held that New Zealand's claim no longer had any object.

35. The French argument went on to contend that the public announcement of France in 1974 to undertake no further atmospheric tests could not be dissociated from its similarly announced intention to carry out underground tests. Furthermore, says France, New Zealand understood the decision the same way France did. It refrained from complaining about underground tests in the South Pacific for some years and when it did denounce the underground tests New Zealand never advanced the decision of the International Court of Justice as a basis for doing so.

36. France went on to argue that a further objection to the New Zealand Request is the point that there is no provision within the Statute of the International Court of Justice within which the Request falls. Paragraph 63 of the Judgment, France emphasizes, said that any application New Zealand might make pursuant to the paragraph had to be "in accordance with the provisions of the Statute". The present Request could not be brought within the terms of the Statute -it was neither an application for interpretation under Article 60 nor a request for a revision of Judgment under Article 61. The conditions under which those articles apply were absent in this case. Thus, the Request was nothing and nothing could be done with it.


Weighing the Arguments

37. Weighing these arguments it appears to me that they demonstrate widely divergent legal approaches. The French approach is a strict, technical legal approach. It was described by more than one of the French [p394] counsel as "rigorous". I should have thought "unrealistic" may have been a better characterization of it. Such a strict construction approach avoids the need for the Court to address the substance of the issues. The approach allows the Court to avoid encountering the highly controversial issues of nuclear testing in the South Pacific by France by reading down the language of the Court in paragraph 63 of its 1974 Judgment and restricting its application to the matters that France no longer argues in favor of, namely atmospheric nuclear testing. The second approach requires the Court to grapple with the real issues that exist between France and New Zealand about the obligations under international law in respect to testing of the character that is currently continuing in the South Pacific as this case proceeds.

38. The difference between the two approaches will result in important practical consequences. The first approach produces a decision that there is no case before the Court, nothing further to be gone into and the whole matter will be at an end. If the second approach is adopted it causes the Court to embark upon a consideration of further jurisdictional matters and perhaps eventually an examination of the obligations at international law that exist in the circumstances. It must be stressed, however, that even if the second approach to the issue as framed by the Court prevails there is no necessary implication to be drawn from it that France has acted in contravention of international law. It is simply that the issue will fall to be argued and decided before this Court. To decide the present issue against France will simply allow further stages of the case to continue before this Court, in particular New Zealand's Further Request for the Indication of Provisional Measures will then come to be dealt with.

39. In the event, a majority of the Court has decided in 1995 that while the French argument that there is nothing here fails, there is nevertheless nothing here that the Court is prepared to take up. Since I differ from the Judgment of the Court, 1set out my own reasoning in some detail in the following paragraphs.

40. Confining the analysis for the moment to what the 1974 Court actually said in paragraph 63, it must be accepted on any interpretation that the Court meant that there were circumstances in which New Zealand could request an examination of the situation. That is what the Court said and it must be understood to have meant it. In order to underline the jurisdictional significance of this utterance the Court pointed out that the denunciation by France of the General Act for the Pacific Settlement of International Disputes which was relied on as a basis for jurisdiction cannot constitute an obstacle to such a request. Why did it Say that? Presumably because having decided there were circumstances in which New Zealand could request an examination of the situation by the Court at a later date it did not want that Request then to be met by jurisdictional arguments that the provisions by which the Court was allegedly seized of the dispute in the first place were now spent. For the Court to [p395]
go to such pains to ensure that the power for New Zealand to return to the Court should be kept open must indicate that the Court felt that right was an important safeguard.

41. The reasons for the 1974 Court developing its view are perhaps not far to seek. The Court must have known New Zealand may fail to accept the view that there was nothing left to decide after the statements made by the French Government about a cessation of atmospheric testing. Indeed, official statements concerning the New Zealand position on France's assurances were before the Court in 1974 and these were that it rejected all forms of testing, not merely atmospheric. These are clearly set out in the Judgment (I.C.J. Reports 1974, p. 470, para. 37). The Court could not foresee what may happen in the future. Out of caution, therefore, it left the opportunity open for an examination of the situation in the future. That was both a comfort for New Zealand and a protection for the Court in ensuring that its authority in the matter was recognized and continued.

42. The basis for paragraph 63 may indeed stem from the strong dissenting opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock. Those Judges said:

"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 seizing the Court again by reason of France's denunciation of the instruments on which it is sought to base the Court's jurisdiction in the present dispute." (Ibid., p. 499, para. 12.)

43. The internal textual evidence to be derived from that passage matches up closely with what was said by the Court in paragraph 63. The Court in that paragraph included a reference to a denounced instrument, specifically saving the request for examination from the fate predicted by [p396] the dissenters. In my opinion a possible explanation of paragraph 63 is that it was adopted by the Court, after having seen the dissent circulated in draft, in order to blunt power of the central point made by the dissenters and to ensure it did not come to pass. In that way the majority may have attempted to secure more support within the Court for the Judgment and may in fact have done so.

44. If the above reasoning is correct, it would suggest the Court had in mind in framing paragraph 63 that New Zealand was entitled to make a Request in terms of its original pleading. And as has been adverted to earlier those pleadings were framed rather widely. The majority of the Court was tacitly admitting future difficulties could arise because of the line it was taking; assurances from France may not be enough to satisfy all the applicant's objectives. The Court did not therefore decide the substantive issue before the Court but left open to itself the opportunity to do so later. New Zealand, as the dissenting Judges observed in 1974, never filed any discontinuance of its proceedings in light of French assurances. While the case was found to be moot in 1974 its status could change if the facts that rendered it moot changed.

45. What were the circumstances in which such a Request as contemplated by the 1974 Court could be made? The first sentence of paragraph 63 indicates that it is not the Court's function to contemplate that a State would not comply with a commitment once the Court bas found the State has made the commitment. The Court should be taken at its word; if it is taken at its word the Court's concerns were not restricted to non-compliance by France of its undertakings. The concerns were wider than that. The next sentence is critical: "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 operative words are "if the basis of this Judgment were to be affected". A large number of things could affect the basis of the Judgment. Not the least of these were future developments which the Court could not foresee in 1974 but which it knew may produce circumstances which could require its Judgment to be examined again. If the basic factors underlying the Judgment changed because of France's future conduct then the issues could be revisited by the Court.

46. There is nothing in the language of paragraph 63 to restrict such an examination to France's compliance with its undertaking not to resume atmospheric nuclear testing. France relies upon paragraph 29 of the Judgment particularly the passage where the Court says that it considers

"for purposes of the Application, the New Zealand claim is to be interpreted as applying only to atmospheric tests, not to any other [p397] 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" (I.C.J. Reports 1974, p. 466).

It is true that this was the basis upon which the Court framed its Judgment. But it was not a position agreed to by New Zealand and the plain language of New Zealand's Application was broader. Understood in that way there is nothing inconsistent between paragraphs 29 and 63. Paragraph 63 was a recognition by the Court of the realities of the situation produced by its Judgment. So, if the "basis of this Judgment were to be affected" the Applicant could request an examination of the situation.

Resolution of the Issue

47. The resolution of the first issue to be determined arising out of paragraph 63 turns upon how the 1974 Judgment is characterized what are its essential elements.

The competing rationes decidendi of the case from each country's point of view might be stated as follows:

France: When New Zealand brought proceedings in the International Court of Justice in 1973 in respect of nuclear tests France was then conducting in the Pacific the Court decided
(1) that the New Zealand Application related solely to atmospheric testing notwithstanding wider claims made in the New Zealand pleadings;
(2) when France committed itself by unilateral declaration not to conduct [p398] any further atmospheric nuclear tests the Court held that undertaking was legally binding upon France thereby rendering the claim without object and the Court was not called to give a decision upon it ;
(3) the Court reserved leave to New Zealand to request the Court in the future to examine the situation if the basis of its Judgment were to be affected, but this right is limited to a breach by France of the undertaking in Proposition 2 because the Court decided Proposition 1.

New Zealand: When New Zealand brought proceedings in the International Court of Justice in 1973 in respect of nuclear tests France was then conducting in the Pacific the Court decided
(1) that the New Zealand Application related solely to atmospheric testing notwithstanding wider claims made in the New Zealand pleadings;
(2) when France committed itself by unilateral declaration not to conduct any further atmospheric nuclear tests the Court held that undertaking was legally binding upon France thereby rendering the claim by New Zealand without object and the Court is not called upon to give a decision on it;
(3) the Court reserved leave to New Zealand to request the Court to examine the situation if the basis of its Judgment were to be affected, and this proposition is not limited by the other two.

48. Stated in that way it is apparent that the third proposition is the pivot. It can be accepted that some version of the proposition is an essential part of the Judgment in both accounts. But is Proposition 3 a dependent or independent variable? There is nothing in the proposition developed by the Court itself to suggest that it is a factor which is limited by Proposition 1. There is nothing to indicate that Proposition 3 was to be considered a subordinate and subsidiary part of the Judgment. It seems to me that it was of equal standing with the other two elements of the Judgment. In fact potentially it was more potent than they. It had the power within it to eviscerate Proposition 1. Should subsequent events undermine that portion of the Judgment dealt with in Proposition 1 that proposition could no longer stand. Indeed Proposition 3 could be seen as an important element of the ratio decidendi. It is an important qualification to paragraph 65 (the disposes) where the Court found by nine votes to six 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" (I.C.J. Reports 1974, p. 478).

49. The reason for the pertinence of Proposition 3 is that the Court did not decide the case that was put in front of it in 1973-1974. It avoided the issue, using the French announcements as the basis for doing so. In order to allow itself the freedom to decide the case should subsequent developments make that appropriate, it formulated Proposition 3. It was thereby deliberately introducing an element which made the Judgment less than final. This was an unusual Judgment of which it might be said proceedings were not definitely ended. If "the basis of the Judgment were to be affected" it could be reopened if the true subject, object and purpose of New Zealand's Application was brought into issue.

Zn Accordance with the Provisions of the Statute

50. I turn now to the phrase used by the Court in paragraph 63 that the Applicant could request an examination of the situation "in accordance with the provisions of the Statute". France argues strongly that there are no express provisions within the Statute within which the Request falls. It is neither an application for revision nor a request for interpretation of the 1974 Judgment in terms of the provisions of Articles [p399] 60 and 61 of the Court's Statute. France argued this point in paragraphs 24 to 26 of its aide-mémoire of 6 September 1995 and its oral submission. With respect I find those arguments well made but they do not in my opinion dispose of the issue.


51. In my opinion the jurisdictional foundation for the New Zealand Request rests upon the Judgment itself, particularly paragraph 63. The Judgment was rendered in accordance with the Statute. Indeed, France now admits the validity of the Judgment, even though it chose to make no appearance before this Court in 1973-1974 and did not comply with provisional measures ordered by the Court. The Court solemnly and clearly left it open in paragraph 63 for New Zealand to request an examination of the situation. The Court in reaching its Judgment knew what the Statute provided. In these circumstances the reference to the Statute must be understood as meaning in accordance with the Statute, the Rules of the Court and the Judgment of the Court. It was not to be understood as a reference to a particular procedure provided for by the Statute. What the Court meant in my opinion was that if paragraph 63 was activated the Court would use the procedures it usually uses to deal with it. It was a commitment to procedural due process in relation to any application for an examination of the situation. To give the phrase the meaning contended for by France is to render the paragraph devoid of practical effect. It could not have been intended by the Court to prevent a New Zealand return to the Court if, for example, France had resumed atmospheric testing 12 years after the Judgment.

52. In making provision in paragraph 63 in the way that it did, the Court was acting in exercise of the inherent power it enjoys as the result of its existence, including the Statute of the International Court of Justice itself and the reference in Article 1 to the Court as "the principal judicial organ of the United Nations" and the power in Article 48 to make orders for the conduct of the case. The Court in my opinion has the power to regulate its own procedure and to devise a procedure sui generis. It is, after all, a court.

53. The French argument also relies upon the long period of time that has elapsed since the Judgment of the Court coupled with the fact that New Zealand refrained from protesting against the underground tests which France carried out on occasions. But against that it should be said that it is common in domestic jurisdictions for matters to be left open for the parties to litigation to return to the Court consequent upon later developments. Such a feature in international law can hardly be regarded as unacceptable in terms of the sources of international law articulated in Article 38 (1) of the Statute of the International Court of Justice. In such circumstances the formal fact of the status of the case on the Court's formal list is irrelevant. [p400]

54. In my opinion the Court had the power to keep open the possibility of an examination of the situation in this case and it exercised that power. The reason the case is not dead is because the 1974 Judgment kept it alive. Given the subsequent development of matters in the South Pacific it might be regarded as providential that the Court had the foresight to act in the way that it did.

THE FACTUAL ENVIRONMENTAL ARGUMENT

55. Having concluded that the Court is not precluded by the terms of its 1974 Judgment from entering into an examination of it, 1 now come to a discussion of the arguments of whether it should in the circumstances exercise in 1995 the possibility left open in 1974. Such an analysis necessarily requires some reference to the facts.


The Prima Facie Standard

56. New Zealand submitted that the appropriate standard was for the Court to apply a prima facie standard as it does in provisional measures cases and not set an absolute standard. New Zealand contended that it could meet the more demanding standard on the facts but that it was not the appropriate test. That was because of the jurisdictional character of the issue and the fact that New Zealand had requested provisional measures in relation to the case.

57. The contention of France, by way of contrast, was that New Zealand had the burden of proof and the standard was the normal standard of proof that applies to any State that has the burden of making good its arguments. France denied there were jurisdictional issues in the sense argued by New Zealand on the grounds that the issue was whether or not the case still existed.

58. I have dealt with the issue of the whether the case still existed in the previous segment of this opinion. Having decided that it does remain open to make application under paragraph 63 of the Judgment of 1974 1 conclude that the test proposed by New Zealand is the appropriate one, and to be fair to France it does not appear to me that the contrary view was strongly argued. It appears to me that what New Zealand has to show is that there is a prima facie case to examine the Judgment. It sought to do that by two arguments:

(a) the pertinent facts have changed increasing the risk of nuclear contamination;
(b) the state of international law had rapidly developed and progressed from the point it was at in 1974 so clarifying the standards to be applied to the dispute. [p401]

Either change, it was submitted, would be sufficient to trigger the process of examination by the Court under paragraph 63. To these factual and legal issues this opinion will now turn.

New Zealand's Argument on the Facts

59. Corning to the environmental issues raised in the Request by New Zealand, New Zealand asks the Court in paragraph 113

"to adjudge and declare:
(i) that the conduct of the proposed nuclear tests will constitute a violation of the rights under international law of New Zealand, as well as of other States;
further or in the alternative;
(ii) that it is unlawful for France to conduct such nuclear tests before it has undertaken an Environmental Impact Assessment according to accepted international standards. Unless such an assessment establishes that the tests will not give rise, directly or indirectly, to radioactive contamination of the marine environment the rights under international law of New Zealand, as well as the rights of other States, will be violated."

60. As New Zealand puts the argument the situation developed gradually, but has now reached the stage where it affects the basis of the 1974 Judgment. That is to Say evidence has accumulated concerning the number of underground tests now numbering 135 since the Court's Judgment of 1974. Arnong the issues are the nature of the geomorphology of the atolls where the tests are conducted, concern that there will be leakages of radiation in the long run, the facts that there are now some 126 nuclear waste "stockpiles" located within the structure of Mururoa atoll at depths of between 500 and 1,000 metres, and eight large stockpiles at Fangataufa. These piles consist of the longer lived isotopes of strontium, cesium and plutonium. The half-life of some types of cesium can be as high as 3 million years. Plutonium produced by a plutonium weapon can have a half-life of 24,000 years.

61. If this nuclear waste or substantial parts of it was released into the marine environment the New Zealand contention is the effect upon marine natural living resources, especially fish and plankton, could be significant. Radionuclide’s released into the water are concentrated as they pass through the food chain to higher organisms. The effects would be distributed through the marine ecosystem, affecting highly migratory species including tuna. Similar concerns were stated by New Zealand in the 1973 Application. [p402]

62. The 1995 New Zealand Request points to increasing and recent scientific concern about the possible environmental impacts of underground nuclear testing. The article by Professor Pierre Vincent, the French volcanologist that appeared in Le Monde on 12 July 1995 raises serious environmental concerns about the future of the atolls concerned. He says increased fracturing may open up the system to gradual migration of radioactive elements into the sea. He states this to be "a very real risk" (New Zealand Request, Ann. 5). The French scientist goes on to suggest that the factors that are conducive to the destabilization of volcanoes combined with a nuclear explosion could be big enough for large parts of the atoll to sheer away. This is described as high risk. In such circumstances there could be a spill-out of dangerous radioactive materials. New Zealand further referred orally to the views of Dr. Colin Summer ayes, Director of the Institute of Oceanographic Sciences in the United Kingdom, to the effect that volcanic islands like Mururoa were inherently unstable and may fail given an appropriate trigger like an earthquake or very large explosion.

63. New Zealand concludes its Request on this point in the following way :

"There is, therefore, now reason to fear that the risks of a significant release of radioactive material from either or both of the atolls as a result of or consequent upon renewed testing activity are substantially higher than was previously believed to have been the case. These risks include the possibility of a serious collapse or fissuring of the atolls such as to release significant quantities of the radioactive material stored therein with potentially serious consequences for the marine environment." (Para. 25.)

64. The Request then proceeds to evaluate what information is available about the safety of testing on the atolls and examines the three limited investigations that have been conducted of Mururoa atoll. No independent scientific mission has so far visited Fangataufa, the place where the biggest explosions have occurred. The studies that have been made of Mururoa show that radioactive material has been released into the aerial and marine environments during even routine activities associated with testing programmes. Long-term leakage of radioactive material into the marine environment appears to be a significant risk in the long tem. Spectacular effects on the atoll structure from the tests have been documented in the Cousteau study:

"Underwater filming down to 230 metres by the Cousteau team revealed spectacular fissures and collapses of rock in the atoll that [p403] could only have been caused by the underground explosions." (1995 New Zealand Request, para. 43.)

These test sites, it is argued by New Zealand, are quite unsuitable for the purpose for which they have been used and are quite unlike continental land masses or other oceanic islands that have been used for underground testing. In an atoll the boundary between land and sea is indistinct. "Water passes from the ocean into the atoll, including its central core, and from the atoll into the ocean." (Ibid.,para. 51.)

65. There is also analysis in the Request of what New Zealand considers to be inadequate assurances of safety by the French and details of documented accidents are given. France, it is said, has repeatedly claimed that the tests are safe but has limited or denied access to test sites. In my opinion the nature of the argument put forward by New Zealand suggests that if the legal issues permitted the case to proceed there would be significant evidence available to support the view that real environmental dangers flow from the testing done and planned by France in the South Pacific. In arriving at that conclusion 1 am not making any judgment about what the scientific evidence may ultimately show were it to be put before this Court and adjudicated upon.

66. France who is in the best position to know of the risks has provided some evidence to the Court. France says it has followed a policy of openness in making information available. There was little said by France about the potential risks long term being built up by cumulating of nuclear waste in the two atolls where testing is carried out. These wastes, France said, were trapped in vitrified rock. Furthermore the problems of shearing off of parts of the atoll and the development of fissures were attractive "Hollywood scenarios" but nothing more. The French presentation at the oral hearings went to some pains to make assurances about the safety of the tests. Large graphic presentations of the geomorphologic structure of Mururoa were made. There was reference to a number of scientific studies that were before the Court. Counsel for France, Mr. de Brichambaut, said there was ample monitoring of the situation on a continuing basis. Precautions had been taken. France had observed its international legal obligations, he said.

The Calculus of Environmental Risk

67. The Court is not in a position to make definitive conclusions on the scientific evidence on the basis of the material put before it. Listening to the submissions at the oral hearings did, however, convince me that there were real issues at large here. The true question related to the assessment of the level of risk. The two nations appeared to have very different approaches to that subject. It is, however, an issue which could be determined were the Court to give it a full hearing. [p404]

68. There are a number of factors to be weighed in deciding whether New Zealand satisfied the prima facie standard outlined above which would warrant a decision that the basis of the 1974 Judgment had altered and should be examined. These factors are:

the ultra hazardous nature of nuclear explosions and the dangerous nature of the waste they produce;
the length of time that some of the nuclear materials remain hazardous which is measured in tens of thousands of years or longer;
the fragile nature of the atoll structure and the cumulative effect of a large number of nuclear explosions upon the structure;
the fact that atolls cannot be distinguished from the marine environment and must be thought of as an inherent part of the ocean ecosystem;
the high number of tests which have been concentrated within a small area ;
the proximity of the testing to the marine environment;
the high quantities of dangerous nuclear wastes now accumulated on the test sites;
the risks of radiation entering the food chain through plankton, tuna and other fish;
the risks of further fissures and shearing off of part of the atoll structure occurring as the result of further testing.

69. It cannot be doubted that France has engaged in activities that have substantially altered the natural environment of the test sites in the Pacific. These actions have been intentional and they have been under scientific scrutiny, especially by French scientists. But the unintended repercussions of intentional human action are often the most important. The nature of the risks inherent in the activity itself would suggest caution to be appropriate. Some means of calculating those risks is necessary to arrive at a determination of whether New Zealand has satisfied the test. This calculus I suggest should contain a number of elements:

the magnitude of the recognizable risk of harm by nuclear contamination in the circumstances;
the probability of the risk coming to pass;
the utility and benefits of the conduct being assessed -viz. nuclear testing by France;
the cost of the measures needed to avert the risk.

70. In my opinion what is required under the test the Court should apply is a risk-benefit analysis. There must be a balancing of the [p405] risks of the activity, the probability of harm, the utility of the activity and the measures needed to eliminate the risk. This is similar to a calculus of the risk analysis in the law of torts in some common law jurisdictions (see Prosser and Keeton on the Law of Torts, 5th ed., 1984, pp. 169-173; Richard A. Epstein, Cases and Materials on Torts, 5th ed., 1990, pp. 150168; Blyth v. Birmingham Water Works, 11 Exchequer 781, 156 English Reports 1047 (1856); United States v. Carroll Towing Co., 159 Federal Reports 2d 169 (2d Cir. 1947)). But it is submitted that it is an appropriate analytical construct with some modifications for measuring the issue here.

71. The gravity of the radiation harm if it occurs is likely to be serious for the marine environment. The magnitude of the risk that the harm will occur must be regarded as significant given the destructive force of nuclear explosions and the possibility of other disturbances or abnormal situations occurring in the course of the long life of the dangerous substances. The costs of averting the risk in this instance are low -they consist of France providing a fully scientifically verifiable environment impact assessment in accordance with modern environmental practice which demonstrates that the proposed tests will not result in nuclear contamination. No doubt France and New Zealand would differ greatly on the utility of nuclear testing but it can reasonably be said that the extra tests proposed cannot have great value given the number that have preceded them. They are of diminishing marginal value, if they have any value at all. If the calculus of the risk analysis were applied in this way, then on these facts a prima facie case is made out by New Zealand in my opinion.

72. The test put forward here derives from support from the recent work of the International Law Commission where it laid down that for the purposes of draft Articles under its consideration "risk of causing significant trans boundary harm" an expression which refers "to the combined effect of the probability of occurrence of an accident and the magnitude of its injurious impact" (Report of the International Law Commission on the work of its forty-sixth session, 2 May-22 July 1994, Official Records of the General Assernbly, Forty-ninth Session, Supplement No. 10 (Al49/10), p. 400).

73. The conclusion of this segment of the opinion is as follows: judged on the prima facie standard a case on the environmental facts has been made out to examine the Judgment.

THE LEGAL ENVIRONMENTAL ISSUES

74. The second argument advanced by New Zealand as to why the Court should examine the 1974 Judgment revolved around the changes in the state of international law relating to the environment in general and nuclear testing in particular in the period between 1974 and the 1995 [p406] hearings. In order to evaluate that submission it is necessary to briefly traverse those developments in the broad before becoming specific.

The Development of International Environmental Law

75. When this case began in 1973 it was shortly after the international meeting at Stockholm which produced the Stockholm Declaration of the United Nations Conference on the Human Environment (adopted by the United Nations Conference on the Human Environment at Stockholm, 16 June 1972, 11 ILM 1416 (1972) (Stockholm Declaration). It was that Conference that started the march of the new field of international environmental law toward international legal maturity. At that time only 25 countries possessed national environmental ministries. The Declaration advanced the development of the principles of international environmental law. It can confidently be stated that some of those principles stated in the Declaration have received such widespread support in State practice coupled with a sense on the part of States that they are legally binding that they have by now entered into the framework of customary international law. The impact of human activities on the environment in a comprehensive way was brought to the attention of the international community, in effect for the first time by Stockholm. Preamble paragraph 6 of the Stockholm Declaration said: "A point has been reached in history when we must shape Our actions throughout the world with a more prudent care for their environmental consequences." It is important to recall that explicit reference was made by New Zealand in its 1973 Request (I.C.J. Pleadings, Nuclear Tests, Vol. II, pp. 55-56, paras. 33, 34 and 35 with explicit reliance being placed on Principles 6, 7, 21 and 26).

76. Principle 1 of the Stockholm Declaration established that the people bear "a solemn responsibility to protect and improve the environment for present and future generations". Principle 2 talks of the need to safeguard natural resources including air, land and water. Principle 6 laid down that the discharge of toxic substances must be halted where they were in such quantities or concentrations "to exceed the capacity of the environment to render them harmless . . .". Principle 7 requires States to take all possible steps to prevent pollution to the seas by substances liable to create hazards for human health and marine life. Principle 18 asked for "the identification, avoidance and control of environmental risks . . .". Principle 21 required States to

"ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction". [p407]

Principle 26 dealt with the need to spare the environment and people "the effects of nuclear weapons and all other means of mass destruction".

77. In recent years the proliferation of international conventions and treaties on the global environment has been considerable. There are more than a hundred multilateral environmental instruments in force many of which have been negotiated since the 1972 Stockholm Declaration. The United Nations Environment Programme register listed 152 in 1991 before the significant outburst of activity at the Rio de Janeiro United Nations Conference on Environment and Development in 1992. For present purposes the important point about the development of international environmental law is that its most important flowering and expansion spans the period of this case -it started in earnest about the time this case began and reached a crescendo at Rio in 1992.

78. Indeed the consensus flowing from Rio is itself significant in the context of the arguments being advanced in the present case. The Rio Declaration refined, advanced, sharpened and developed some of the principles adopted at Stockholm (Rio Declaration on Environment and Development, adopted by the United Nations Conference on Environment and Development at Rio de Janeiro, 13 June 1992, 31 ILM 874 (1992) (Rio Declaration)). Many of the principles were repeated but some new ones make an appearance:

Principle 15 :

"In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."

Principle 17 :

"Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority."

79. Maurice Strong who was Secretary-General of both the Stockholm and the Rio Conferences has summed up his view of the need to develop the mechanisms of international environmental law still further. He said:

"To manage Our common future on this planet, we will need a new global legal regime based essentially on the extension into international life of the rule of law, together with reliable mechanisms for accountability and enforcement that provide the basis for the effective [p408] functioning of national societies." (Foreword by Maurice F. Strong to L. D. Guruswamy et al., International Environmental Law and World Order, 1994, p. vii.)

80. This Court in this very case in 1974 made a contribution to the growing field of international environmental law. The Nuclear Tests cases have come to be cited as one of a quartet of cases that offer some protection for the environment through the medium of customary international law. Others include the Corfu Channel (United Kingdom v. Albania) (I.C.J. Reports 1949, p. 4) establishing the principle of every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. The Trail Smelter (United States v. Canada) (III Reports of International Arbitral Awards (RIAA) 1905 (1938 and 1941)) established that no State has the right to use or permit the use of its territory in such a way as to cause injury by fumes in the territory of another State. The Lake Lanoux Arbitration (XII RIAA 281 (1957)) turned on the interpretation of a particular treaty but it may establish the principle that a State has the duty to give notice when its actions may impair the environmental enjoyment of another State. To these should now be added the contribution of this Court if only because of the environmental degradation with which the case dealt (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I. C.J. Reports 1992, p. 240). Significantly, by the Court deciding to hear the case, a result was produced by way of settlement. The principles established by these cases have been included in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration.

81. But authoritative decisions in the area of international environment law are scarce enough. They certainly lag behind the plethora of conventional law that has sprung into existence in the more than 20 years spanning the Iife of this case. The nature of some of the issues is helpfully discussed in the Report of the International Law Commission on the work of its forty-sixth session, 2 May-22 July 1994, on "International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law" (Official Records of the General Assembly, Fortyninth Session, Supplement No. 10 (A/49/10), pp. 367 ff.), a subject with which the Commission has been grappling since 1978 without definitive result. The Commission is giving priority in its work to prevention of activities having a risk of causing trans boundary harm.

82. Indeed, following Rio and perhaps because of it, this Court on 6 August 1993 exercising its powers under Article 26 of the Statute of the [p409] International Court of Justice set up a Chamber of seven Judges to deal with environmental matters. The Court in an I.C.J. communiqué (93120, 19 July 1993) announced :

"In view of the developments in the field of environmental law and protection which have taken place in the last few years, and considering that it should be prepared to the fullest possible extent to deal with any environmental case falling within its jurisdiction, the Court has now deemed it appropriate to establish a seven-member Chamber for Environmental Matters . . ."

83. The forces that led the Court to establish a Chamber for consideration of environmental cases is reflected in the quantity of work being done by highly qualified publicists of the various nations upon the subject of international environmental law. Such works include A. Kiss and D. Shelton, International Environmental Law, 1991; P. Birnie and A. Boyle, International Law and the Environment, 1992; P. Sands et al., Principles of International Environmental Law -Documents in International Environmental Law, 2 volumes, 1995; L. Guruswamy et al., International Environmental Law and World Order, 1994; J. Carroll (ed.), International Environmental Diplomacy, 1988; E. B. Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity, 1989; E. B. Weiss (ed.), Environmental Change and International Law, 1992; C. Stone, The Gnat is Older than Man: Global Environment and Human Agenda, 1993; P. Sand, Lessons Learned in Global Environmental Governance, 1990; G. Handl (ed.), Yearbook of International Environmental Law, 1990, and annually. The periodical literature is so vast on the subject that it cannot be cited.

84. The obvious and overwhelming trend of these developments from Stockholm to Rio has been to establish a comprehensive set of norms to protect the global environment. There is a widespread recognition now that there are risks that threaten Our common survival. We cannot permit the onward march of technology and development without giving attention to the environmental limits that must govern these issues. Otherwise the paradigm of sustainable development embraced by the world at the Rio Conference cannot be achieved (World Commission on Environment and Development, Our Common Future, 1987, p. 5; see also D. H. Meadows, D. L. Meadows and J. Randers, Beyond the Limits, 1992).

International Law on Radioactive Hazards

85. It was against the background outlined above that Sir Kenneth Keith, Q.C., for New Zealand sought to establish four legal propositions: [p410]

(i) States must ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of their jurisdiction.
(ii) Any addition of radioactive material to the environment or exposure of individuals to radiation must be justified. Such addition or exposure must be for good reason.
(iii) Any disposal or introduction of artificially created radioactive material into the marine environment is heavily circumscribed. It is in general forbidden.
(iv) Any introduction of radioactive material into the marine environment as a result of nuclear tests is forbidden. The world community no longer accepts that the testing of nuclear weapons can be used to justify marine contamination.

The law now sets higher standards in an "increasingly interdependent world", Sir Kenneth told the Court (CR 95/20, p. 10).

86. New Zealand in support of its propositions relied upon the Stockholm and Rio Declarations and in particular on the 1986 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region concluded at Noumea, 25 November 1986, entered into force 22 August 1990 (26 ILM 38 (1987)). New Zealand and France both are parties to the Convention. These legal materials and others cited to the Court established in the view of New Zealand an increasingly strict attitude to the addition of radioactive material to the general environment and the exposure of individuals to radiation. In relation to the marine environment it was even more exacting. Among the materials cited in support of these propositions were: Article 14 of the Draft Articles considered in the 1994 Annual Report of the International Law Commission mentioned above; the International Atomic Energy Agency, Safety Series No. 77, Principles for Limiting Releases of Radioactive Effluents into the Environment, 1986; Agenda 21, Chapter 22, of the Rio Declaration, "Safe and Environmentally Sound Management of Radioactive Wastes", paragraph 5 (para. 100 of the New Zealand Request); Convention on the High Seas concluded at Geneva 29 April 1958, entered into force 30 September 1962 (450 UNTS 82, Art. 25); United Nations Convention on the Law of the Sea concluded at Montego Bay, 10 December 1982, entered into force 16 November 1994 (21 ILM 1261 (1982), Part XII, Art. 194); Convention on Biological Diversity, concluded at Rio de Janeiro 5 June 1992, entered into force 29 December 1993 (31 ILM 818 (1992), Arts. 3 and 14); Statute of the International Atomic Energy Agency, 26 October 1956 (276 UNTS 3, Art. 34); Convention for the Protection of the Marine Environment of the North-East Atlantic, concluded at Paris, September 1992 (32 ILM 1069 (1993), Ann. II, Art. 3 (3) (a) and (b)); Convention [p411] on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, concluded at London, 19 December 1972 (11 ILM 1291 (1972)), Annex 1; Resolution of Consultative Meeting LDC 21 (9) on Dumping Radioactive Wastes at Sea, 1985.

Environmental Impact Assessment

87. At this point, Mr. D. J. MacKay for New Zealand went on to develop this segment of the argument by pointing to the application of the emerging international law on environmental impact assessment (EIA) and the precautionary principle in their application to the facts of this case. In both respects the law had changed dramatically, thus supporting the view that the basis of the Court's Judgment was affected. It was submitted that other parties likely to be affected by the risks have a right to know what the investigations for the EIA are, have a right to propose additional investigations and a right to verify for themselves the result of such investigations. As the law now stands it is a matter of legal duty to first establish before undertaking an activity that the activity does not involve any unacceptable risk to the environment. An EIA is simply a means of establishing a process to comply with that international legal duty. New Zealand pointed to a number of international instruments, including Article 205 of the United Nations Law of the Sea Convention that make explicit reference to EIA.

88. Under Article 12 that has been adopted by the International Law Commission in the course of its deliberations, the Commission has decided that before a State carries out activities which involve a risk of causing significant trans boundary harm through their physical consequences

"a State shall ensure that an assessment is undertaken of the risk of such activity. Such an assessment shall include an evaluation of the possible impact of that activity on persons or property as well as in the environment of other States."

The Noumea Convention referred to earlier also contains an explicit obligation in Article 16 to conduct environmental impact assessments before embarking upon any major project which might affect the marine environment. A more explicit measure appears in Article 12 of that Convention producing a duty to prevent, reduce and control pollution in the Convention area which might result from the testing of nuclear devices. [p412]

Precautionary Principle

89. So far as the precautionary principle is concerned New Zealand submitted that in the circumstances it required two things. First, that the assessment must be carried out before and not after the activities are undertaken. Second, that it is for the State contemplating these activities to carry out the assessment and to demonstrate that there is no real risk. It is not for potentially affected States to demonstrate that there will be a risk.

90. I have set out these arguments in some detail because they exhibit the issues that would have been traversed had the case gone to the next stage. France did not address arguments on these points since it at all times regarded the issues before the Court as threshold issues that did not require it to meet the arguments put above. It would be wrong in these circumstances to reach substantive conclusions on the application of the arguments to the facts of the case. It is, however, appropriate to reach a conclusion on what the principles of law discussed establish from the point of view of meeting the test required to examine again the 1974 case.

Conclusion

91. What those principles of international law establish in my view are the following propositions :

(a) international environmental law has developed rapidly and is tending to develop in a way that provides comprehensive protection for the natural environment ;
(b) international law has taken an increasingly restrictive approach to the regulation of nuclear radiation;
(c) customary international law may have developed a norm of requiring environmental impact assessment where activities may have a significant effect on the environment;
(d) the norm involved in the precautionary principle has developed rapidly and may now be a principle of customary international law relating to the environment;
(e) there are obligations based on Conventions that may be applicable here requiring environmental impact assessment and the precautionary principle to be observed.

Taken together, in application to the present dispute, the legal developments are sufficient to meet a prima facie test that the legal circumstances have altered sufficiently to favor an examination of the 1974 case. Let me emphasize again, however, this is not to Say what principles of law may apply here in the particular circumstances or indeed what their content might be. That is for the next stage.

92. It is necessary to Say something about the application of principles of law at the stage they have reached in 1995 to a case that was pleaded [p413] and first dealt with in the mid 1970s. The harm complained of -nuclear contamination is a continuing one. It seems apparent to me that the applicable law must be determined, in a circumstance like the present one, at the date the Court is called on to apply it. The converse proposition cannot stand in my opinion.

93. In my view it would exert a salutary and needed influence on international environmental law for this Court to enter upon full hearings and a serious consideration of the issues of this case, whatever ultimate result was eventually reached. There is a pressing need to develop the law in the area. Given the possibility left open expressly in 1974 that in appropriate circumstances the Court could return to these issues, it would be possible to examine the 1974 decision in light of massive changes in the legal principles that have been developed in the period between the Court's two considerations of the issues. In the event, however, because a majority of the Court has taken another view New Zealand's effort to hold France accountable under the principles of international environmental law will fail.

THE NATURE OF THE JUDICIAL CHOICE

The Ovdev of the Court

94. The formalistic approach adopted by the majority of the Court in framing its Order makes it necessary to isolate the steps in its reasoning. It is reasoning 1 cannot accept. The reasoning the Court advances for making the Order that it can take no action on New Zealand's request for an examination has a number of elements:

(a) the broader designs beyond atmospheric testing that New Zealand might have had when filing its 1973 Application cannot be the subject of the Court's investigations now;
(b) the Court in 1974 was entitled to isolate the real issue and limit it to atmospheric testing and did so;
(c) the language used by the Court in the companion case brought by Australia means that the Court treated the New Zealand case as identical with the Australian one;
(d) thus the 1974 Court was entitled to treat the matter at an end relying on France's unilateral declaration;
(e) it was in the event of a resumption of nuclear tests in the atmosphere that the basis of the Judgment would have been affected;
(f) in consequence of its view in 1995 of the Judgment of 1974 it was not open for the Court to enter into a consideration of underground testing or the arguments on either side relating to those events and take them into account; [p414]
(g) for the same reasons as in (fl the Court cannot take into account the developments in international environmental law that have taken place since the 1974 Judgment.



95. The conclusion reached by the majority taking into account all of the above is that the 1974 Judgment has not been affected.

96. The essence of the approach taken represents a triumph of fonnalism over substance. The law appears as some disembodied construct that is far removed from the concerns of the real world. The law is frozen in time, nothing beyond 1974 has any relevance or importance in interpreting paragraph 63, except a resumption of atmospheric testing. It is an approach that depends upon reading down the plain language of paragraph 63, and sapping it of vitality. I find such an approach to legal reasoning arid and intellectually unsatisfying. When dealing with substantive issues of such overwhelming importance, decisions not to address those issues need to be convincing and carry legal conviction. In this instance, however, the reasoning is laconic.

97. The whole approach by the Court depends upon drawing a distinction between atmospheric nuclear testing and underground nuclear testing and refusing to accept that they are linked by the underlying common factor of nuclear contamination. The distinction is fundamentally unsound in common-sense terms and that ought to be reflected in legal terms. It is legal reasoning of a highly mechanical quality. The significance of the basic distinction drawn by the Court is not easy to defend except by an approach well described as the austerity of tabulated legalism (Minister of Home Affairs v. Fisher [1980] Appeal Case, p. 328). I cannot defend the distinction relied upon by the Court and therefore respectfully dissent from it.

98. The Court also relies in its Order on the fact that the Court in the companion case brought by Australia in 1973 employed in the Judgment in that case a form of words identical to the one used in paragraph 63 of the New Zealand case. The 1995 Court concludes for that reason the 1974 Court regarded the two cases as identical. With respect, the conclusion does not follow. Worse, it does injustice to New Zealand.

99. One learned author has found no fewer than seven important distinctions between the Australian and New Zealand cases (J. Stephen Kos, "Interim Relief in the International Court: New Zealand and the Nuclear Test Cases", 14 Victoria University of Wellington Law Review 357 (1984)). The first observation to be made in this respect is that the cases were not joined in 1973 and the reasons for not joining them are plain enough. As the New Zealand Attorney-General, Dr. A. M. Finlay, Q.C., told the Court :

"The Governments of Australia and New Zealand do not have a [p415] joint approach to the presentation of their respective cases against the Government of France; nor did they bring these cases for the purpose of supporting each other. Actions taken in their region that may violate obligations erga omnes, or cause an identical threat to the well-being of the citizens of both their countries, are naturally of concern to both; but history and geography condition and differentiate their individual perceptions of a common threat." (I.C.J. Pleadings, Nuclear Tests, Vol. II, p. 254.)

100. The New Zealand case had a broader objective than Australia; there were substantial differences in the submissions and in the remedies sought. New Zealand's case had a stronger ground in law and in fact than Australia's. Mr. Kos, in the article cited above, summarizes the reason for that conclusion :

(a) The equities favored New Zealand in terms of its past diplomatic and political record. New Zealand's association with United Kingdom nuclear testing was very limited. New Zealand had a consistent and outspoken record of opposition to testing since 1958. The territory of New Zealand and that for which New Zealand was responsible was closer to the test site than Australia's. Its case at the merits stage would have been stronger. New Zealand had legally a stronger position on the legal issues of the application of Article 17 of the General Act for the Pacific Settlement of International Disputes, which Australia had allegedly violated. New Zealand, unlike Australia, had not declared that its considered General Assembly resolutions were not legally binding. New Zealand had a record in the General Assembly of support for the Partial Test Ban Treaty.
(b) New Zealand asserted different rights that it claimed were owed erga omnes in equal measure to all States -indicating freedom from "unjustified artificial radioactive contamination of the terrestrial, maritime and aerial environment". New Zealand pleaded wide considerations of freedom from harm.
(c) New Zealand asked for different remedies from Australia. New Zealand sought only a declaration that French conduct constituted a violation of New Zealand's rights in international law -it included conduct past and future.
(d) New Zealand alleged different injury from that argued by Australia.
(e) New Zealand took a different approach to the conduct of its legal argument. [p416]
(f) Each country took different approaches to the French reservation to compulsory jurisdiction of 20 May 1966.
(g) Australian concessions on the reliance on the General Act were not shared by New Zealand.

101. The Order of the Court also relies upon the argument that France conducted 134 underground nuclear tests without New Zealand ever having claimed that the basis of the Judgment had been affected. New Zealand's record of consistent opposition to French testing in that regard is set out at paragraphs 14-23 of this opinion. Further, it is submitted that the argument made by New Zealand that the situation developed gradually is persuasive in this respect. It is the cumulative effect of events that is determinative. Paragraph 63 itself is not limited as to time. It comes into effect only when matters which affect the basis of the Judgment have crystallized.

102. For the above reasons it is suggested that the decision to treat the New Zealand and Australian cases as identical in legal terms is unsound. It was unsound in 1974 and it does not follow that the Court intended then to limit paragraph 63 of its Judgment to circumstances that would be identical to Australia's despite the use of similar language. The context is important.

Wider Issues

103. The nature of the judicial choice between the opposing legal positions in this case is stark partly because of the way the case was argued and partly because of the unprecedented nature of the proceeding. The answer reached depends as much upon implicit judgments concerning the proper scope of the judicial role as upon the detailed reasoning by which the result is reached. Law is a human contrivance designed to advance human purposes. Public international law has traditionally been concerned with the relations between States and States were often regarded in the past as its only subjects. But things change and there are signs that the doctrine of State sovereignty upon which so much of the edifice of public international law rests is eroding. The opportunity offered in a case like the present one is to take a wider perspective. It should be remembered that as long ago as 1958 Dr. C. W. Jenks wrote in The Common Law of Mankind:

"International law can no longer be adequately or reasonably defined or described as the law governing the mutual relations of States, even if such a basic definition is accompanied by qualifications or exceptions designed to allow for modern developments; it represents the common law of mankind in an early stage of development, of which the law governing the relations between States is one, but only one, major division." (P. 58.) [p417]

104. One of the signal weaknesses of international law is the fact that the jurisdiction of this Court rests at bottom on the consent of the States. Only about one-third of nations accept the compulsory jurisdiction of this Court under Article 36 (2) of the Statute of the International Court of Justice. In general, the most powerful nations are not among the strongest adherents of compulsory jurisdiction for the Court. The Court is reminded of this fact in the letter dated 28 August 1995 addressed to the Registrar of the Court by the Ambassador of the French Republic to the Netherlands in which the following paragraph appears:

"The jurisdiction of the International Court of Justice rests on the consent of States. In the absence of the prior consent of France, the requests of New Zealand both as regards the principal request and as regards the indication of provisional measures are thus manifestly inadmissible."

Yet as Professor E. Lauterpacht remarks "some cracks in the edifice are developing" (Aspects of the Administration of International Justice, 1991, p. 23).

105. Arguments about consent and the logic of the situation in which the Court finds itself have in my opinion caused the Court to be cautious in the past, sometimes unnecessarily. The decision of the majority in this case in 1995 follows the cautious approach. Against that approach it needs to be borne in mind that notwithstanding the fundamental differences between international law and municipal law international law is widely obeyed on the whole. So concern that the basis of the system may be consensual is not a reason for failing to decide principles of international law when they are presented and properly fall to be decided. As Professor Louis Henkin wrote in How Nations Behave -Law and Foreign Policy (2nd ed., 1979, p. 47): "It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time."

106. But it must be accepted at once that the Court cannot go off on frolics of its own. It must maintain its credibility in the eyes of States who do not on the whole relish the prospect of third party adjudication which they cannot control. The Court has an obligation in my opinion to maintain itself in the tension between principle and practicality. In this it occupies a role not unfamiliar to domestic tribunals imbued with wide constitutional powers, such as the Supreme Court of the United States. (See generally Alexander M. Bickel, The Least Dangerous Branch, 1962.) Yet courts like that one choose their cases, this Court cannot. States set the Court's agenda, not the Court. And this Court does not have available to it the filtering devices available to the Supreme Court of the United States.

107. The Court has a responsibility to declare, develop and uphold international law. But it must be mindful of the limits of law. In disputes [p418] that involve large political elements it will need to be particularly vigilant to avoid over-reaching itself, while at the same time facing up to the fact that disputes between States almost always involve a high political element. It needs to be borne in mind, however, that the fact that the testing of nuclear weapons gives rise to big political disputes does not mean that aspects of the dispute cannot be dealt with by the international legal process.

108. In such circumstances as the present resort to techniques for not deciding cases by other means may be found; to scrutinize jurisdictional arguments and technical arguments with a favorable eye in order to avoid making pronouncements in an area where it is suspected nations may not observe the terms of Judgments of the Court or acceptance of the Court's position will be imperiled. These are hard Judgments to make. But the consequences of never taking them on such matters as the present one will be to retard progress in the development of international law.

109. For this Judge, the range of judicial choice for this Court is well summed up by Sir Gerald Fitzmaurice in The Law and Procedure of the International Court of Justice:

"There are broadly two main possible approaches to the task of a judge, whether in the international field or elsewhere. There is the approach which conceives it to be the primary, if not the sole duty of the judge to decide the case in hand, with the minimum of verbiage necessary for this purpose, and to confine himself to that. The other approach conceives it to be the proper function of the judge, while duly deciding the case in hand, with the necessary supporting reasoning, and while not unduly straying outside the four corners of the case, to utilize those aspects of it which have a wider interest or connotation, in order to make general pronouncements of law and principle that may enrich and develop the law.

If it be asked which of these two attitudes is the better, the answer may well be 'both', or at any rate that each is defensible; but clearly much depends on the circumstances. The sort of bare order or finding that may suit many of the purposes of the magistrate or county court judge will by no means do for the Court of Appeal, the House of Lords or the Judicial Committee of the Privy Council, and their equivalents in other countries. International tribunals at any rate have usually regarded it as an important part of their function, not only to decide, but, in deciding, to expound generally the law having a bearing on the matters decided." (Pp. 647-648.)

110. My own approach falls clearly in the category that it is necessary for the International Court of Justice to develop the law and expound it. The Court should deal with all the legal issues and given the nature of international law and the absence of a legislature, clarification and advancement of the law is peculiarly within this Court's responsibility. [p419]

CONCLUDING OBSERVATION

111. The nature of the dispute between France and New Zealand has been apparent for the whole period spanned by this case in this Court, except between 1991 and 1995 when France observed a moratorium on testing. The dispute is palpably about nuclear testing in the Pacific in all its forms. The official citation for this case was and remains Nuclear Tests (New Zealand v. France) case. Despite that fact, the Court in its 1995 judgment has chosen to draw a fundamental distinction between atmospheric testing and underground testing.

112. It might have been thought by some that the present application was an appropriate occasion upon which to push out the boat from the shore a little towards the incoming tide of international environmental jurisprudence. The Court failed to decide the issue in 1974 and it has failed again in 1995.

113. The 1974 Judgment created widespread controversy in the international legal literature, some learned commentators regarding it as imaginative and innovative, others called it a landmark of political caution, weak in law and logic. A third group thought the decision a lost opportunity for dealing with international environmental law. (D. P. Verma, "The Nuclear Tests Cases: An Inquiry into the Judicial Response of the International Court of Justice", 8 South African Yearbook of International Law 20 (1982); Edward McWhinney, The World Court and the Contemporary International Law-Making Process, 1979; R. St. J. Macdonald and Barbara Hough, "The Nuclear Tests Case Revisited", 20 German Yearbook of International Law 337 (1977); Jerome B. Elkind, "Footnote to the Nuclear Tests Cases: Abuse of Right -A Blind Alley for Environmentalists", 9 Vanderbilt Journal of Transnational Law 57 (1976); Thomas M. Franck, "Word Made Law: The Decision of the I.C.J. in the Nuclear Test Cases", 69 American Journal of International Law 612 (1975).) A similar range of reaction to the Court's treatment of the present phase of the case is predictable.

114. In its essence this case has to be understood as an environmental case. New technology has given humankind massive ability to alter the natural environment. The consequences of these activities need to be carefully analysed and examined unless we are to imperil those who come after us. It is a concern well known to international law (see generally E. B. Weiss, In Fairness to Future Generations, 1989). As Professor Edith Brown Weiss points out:

"We, as a species, hold the natural and cultural environment of Our planet in common, both with other members of the present generation and with other generations, past and future. At any given [p420] time, each generation is both a custodian or trustee of the planet for future generations and a beneficiary of its fruits. This imposes obligations upon us to care for the planet and gives us certain rights to use it." (P. 17.)

Further, the special problems created for the law by nuclear energy and tests flow from the ultra hazardous nature of nuclear energy and nuclear explosions (A. Boyle, "Nuclear Energy and International Law: An Environmental Perspective", 60 British Year Book of International Law 257 (1989); G. Handl, "Tran boundary Nuclear Accidents: The Post-Chernobyl Multilateral Legislative Agenda", 15 Ecology Law Quarterly 203 (1988))

115. The issues generated for the environment by nuclear testing and nuclear accidents demonstrate that States have been unwilling to act as good stewards for or guardians of the environment. The experience suggests that environmental rights ought to be established at the international level and be enforceable there.

116. If in 1995 this Court had been prepared to enter into the next phase of the case, the dispute may at last have been put to rest. For far too long this issue has given rise to substantial, even painful difficulties in the relations between France and New Zealand. The two functions of this Court as 1 understand it are to act as an institution to settle disputes and to clarify and develop the law. Regrettably the dispute has not been put to rest and the law has not been developed.

117. In this case the Court had an opportunity to make a contribution to one of the most critical environmental issues of Our time. It has rejected the opportunity for technical legal reasons which could in my opinion have been decided the other way, fully consonant with proper legal reasoning. It is true that much of the jurisdiction of this Court rests upon the consent of States. It is true that France has withdrawn the consent that allowed the 1974 case to be heard. That is not an adequate reason to refrain from re-opening the case, a possibility that the Judgment in 1974 expressly contemplated. The case issue the Court had the power to decide then; it has the power to decide it now. But the Court refuses to decide it.

118. The position of an ad hoc judge on this Court is an unusual one and the nature of the obligations imposed on such a judge have been a source of consideration for me. The Statute provides, in Article 31 (6), that such judges "shall take part in the decision on terms of complete equality with their colleagues". In this case 1 feel the institution served a useful purpose of bringing to the Court a perspective of one who lives in the region of the world with which the application deals. But I have not felt that my position on the Court is a representative one. Its utility was in providing another perspective and some more detailed familiarity with the background. With respect, 1 adopt the formulation of an ad hoc judge's office put forward by Judge ad hoc Lauterpacht in Application [p421] of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993:

"He has, I believe, the special obligation to endeavor to ensure that, so far as is reasonable, every relevant argument in favor of the party that has appointed him has been fully appreciated in the course of collegial consideration and, ultimately, is reflected -though not necessarily accepted in any separate or dissenting opinion that he may write." (I.C.J. Reports 1993, p. 409, para. 6.)

119. Finally, let me add that I have had the opportunity of reading the elegant and persuasive dissenting opinion of my colleague Judge Weeramantry. I agree with it.

(Signed) Sir Geoffrey PALMER.



 

 
     

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