On 21 August 1995, the New Zealand Government filed in the Registry a document entitled “Request for an Examination of the Situation” in which reference was made to 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”, namely “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”. In that Request, the Court was reminded that, at the end of its 1974 Judgment, it had 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. That Judgment contained a paragraph 63 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 . . .”

New Zealand asserted that this paragraph gave it the “right”, in such circumstances, to request “the resumption of the case begun by application on 9 May 1973”, and observed that the operative part of the Judgment concerned could not be construed as showing any intention on the part of the Court definitively to close the case. On the same day, the New Zealand Government also filed in the Registry a “Further Request for the Indication of Provisional Measures” in which reference was made, inter alia, to the Order for the indication of provisional measures made by the Court on 22 June 1973, which was principally aimed at ensuring that France would refrain from conducting any further nuclear tests at Mururoa and Fangataufa Atolls.

After holding public hearings on 11 and 12 September 1995, the Court made its Order on 22 September 1995. The Court found that, when inserting into paragraph 63 the sentence “the Applicant could request an examination of the situation in accordance with the provisions of the Statute”, it had not excluded a special procedure for access to it (unlike those mentioned in the Court’s Statute, such as the filing of a new application, or a request for interpretation or revision, which would have been open to the Applicant in any event) ; however, it found that that special procedure would only be available to the Applicant if circumstances were to arise which affected the basis of the 1974 Judgment. And that, it found, was not the case, as the decision announced by France in 1995 had related to a series of underground tests, whereas the basis of the Judgment of 1974 was France’s undertaking not to conduct any further atmospheric nuclear tests. Consequently, New Zealand’s Request for provisional measures and the Applications for permission to intervene submitted by Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia as well as the Declarations of Intervention made by the last four States, all of which were proceedings incidental to New Zealand’s main request, likewise had to be dismissed.