ORALARGUMENTSONTHEREQUESTFOR
THElNDICATIONOFINTERIMMEASURES
OFPROTECTION
MINUTES OF THE PUBLIC SITTINGS
held a1the Peace Palace, Tl~eH2122, 23 and 25 May 1973, Presideri~
Lachs presidingon22June1973. Vice-PresAmmoun presidiilg FIRST PUBLIC SITTING (21 V 73, 3 p.m.)
Present:PresidenLACHS; Vice-PresideAMMOUNJ;udges FORSTERG , ROS,
BENGZON, PETRÉNO , NYEAMD AI,LLARD,IGNACIO-PINT DO, CASTRO , OROZOV,
JIMÉNEZ DE ARÉCHAGA S,ir HUMPHREY WALDOCKN , AGENDRASINGHR , UDA;
Judge ad hoc Sir Garfield BARWICK;egistraAQUARONE.
Alsopresent:
For theGovernrnentof Australia:
Mr. P. Brazil, of the Australian Bar, Officer of the Australian Attorney-
General's Department,as Agent;
H.E. Mr. L.D. Thomson, M.V.O., Ambassador of Australiaas Co-Agent;
Senator theHonourable Lionel Murphy,Q.C., Attorney-General of Australia,
Mr. R. J.Ellicott, Q.C., Solicitor-General of Australia,
MI. M. H. Byers, Q.C., of the Australian Bar,
Mr. E. Lauterpacht, Q.C., of the English Bar, Lecturer in the University of
Cambridge,
Professor D. P. O'Connell, of the English, Australian and New Zealand Bars,
Chichele Professor of Public International Law in the University of Oxford,
as Counsel;
ProfessorH. Messel, Head of School of Physics, University of Sydney,
Mr. D. J. Stevens, Director, Australian Radiation Laboratory,
MI. H. Burmester, of the Australian Bar, Officer of the Attorney-General's
Department,
MI. F. M. Douglas, of the Australian Bar, Officerof the Attorney-General's
Department,
Mr. K. R. Widdows, of the Australian Bar, Second Secretary, Australian
Embassy, The Hague, as Adrisers.164 NUCLEAR TESTS
OPENING OF THE ORAL PROCEEDINGS
The PRESIDENT: The Court meets today to consider the request for the
indication of interim measures of protection, under Article 41 of the Statute
of the Court and Article 66of the 1972Rules of Court, filed by the Government
of Australia on 9 May 1973, in the Ni~lear Tests case brought by Australia
against France.
The proceedings in this case were begun by an Application' by the Govern-
ment of Australia, filed in the Registry of the Court on 9 May 1973. The
Application founds the jurisdiction of the Court on Article 17 of the General
Act for the Pacific Settlement of International Disputes of 1928, read together
with Articles 36, paragraph 1, and 37 of the Statute of the Court, and alter-
natively on Article 36, paragraph 2, of the Statute and on the declarations of
acceptance of thejurisdictioiiof the Court filed by France and Austrdlia on the
basis of Article36. The Applicant asks the Court to adjudge and declare that
the carr.inr. out of further atmos~heric nuclear weaDon tests in the South
I'dcifi? 0:c;ini.not consistent uith applic~blc rtilcs of internstional law, and
Io orJer ihst the French Go\crnment shall not csrry out an) furiher such tests.
On 9 hlav 1973.the ssme das on \ihi:h the Aonli~~tion \ras 1ilc.J.Auriralis
filed a requést2under Article 4i of the Statute an.d~~rticle66 of the 1972 Rules
of Court, for the indication of interim measures of protection. 1 shall ask the
Registrar to read fromthat request thedetailsof the measureswhich the Govern-
ment of Australia asks the Court to indicate.
The REGISTRAR: The ~rovisional measures should be that the French
Government should desist from any further atmospheric nuclear tests pending
the judgment of the Court in this case.
The PRESIDENT: The French Government was informed forthwith by
telegrlim%olihefilingoftheApplication and of the request for interim measurei
of protection. and of the precisemediures reque<tsJ, and a copy of ihç Applics-
tion and of the request were sent to it by expressair mail on the same day. The
Parties were then informed by communications of 14 May that the President
proposed to convene the Court for a public hearing on 21 May at 3 p.m. to
afford the Parties the opportunity of presenting their observations on the
Australian request for the indication of interim measures of protection. By
communications to the Parties of 17 May5, the date and time for the present
public hearing were confirmed.
On 16 May, the Ambassddor of France to the Netherlands handed to the
Registrar of the Court a letter and annexesetting out the attitude of the French
Government to the proceedings. In that letter the Court was informed that the
French Government considered that the Court was manifestly not competent
in this case and that Fronce could not accept its jurisdiction. This view was
based first on the fact that the French Government's declaration of acceptance
1 Seepp. 3-39.supra.
2 Seepp. 43-146,supra.
3 U, p. 338.
4 n, p. 345.
II, p. 358.
8Il,p. 347. OPENINO OF ORAL PROCEEDINGS 165
of the jurisdiction of the Court under Article 36 of the Statute excluded "dis-
putes concerning activities connected with the national defence", and on the
contention that the French nuclear tests in the Pacific formed part of a pro-
-ramme of nuclear weaoon develonment and therefore constituted one of
thu,c .xti\,iiiec~inne;tcd uith nationcil dciènce rrliizh ihc I.rctizh dcildrati,>n
inten,led to cx~ludc; and 5c~dndly ,>n the ionterition that the prc,eni >i.itu, ,ii
ihe 1028<;enenil ALI atiJ the üitirude ioudr.1, tt~itlie inir.re\teJ p.Irtic\. and in
ihe tirrt plax of trance. rr.ndcrcJ it oui of the question lai~otisidr'r ih.11iliere
r.xiçtcJ on ihai halis. on the part oi iranec. thdt clcdrly expresscdwill to 3~cept
the competence of the court which the Court itself, according to its constant
jurisprudence, deems indispensable for the exercise of itsjurisdiction. Further
reasons were also adduced why the French Government considered that the
Cour~ ~ ~ no iur*sdiction in the case. Accordinrlv. -. the French Government
,raicd ihsi iiJid noi inicnd to appoint an agcnr; and ilrcqiie\ted tlie Court tu
remo\e the from ils List Tnis rcquesi by thc (iotcrnnieni <ii1-rxnce has
hecn July n.,teJ, and the Court uill dedl uith iiin duc course, in dpplicdtion si
Arliclr. 36. paragraph 6. of ihc Stature of Ille Court.
On Ih hl.,$ 1973. ihe Go\ernmeiit ui Fi11tilsJ in the Keri>trs df the C'<iiiri.
an ~pplication', under the terms of ~rticle 62 of the statute of the Court, fo;
permission to intervene in the present case. In accordance with Article 69,
paragraph 3, of the 1972 Rules of Court, 29 May has heen fixed as the time-
limit for the written observations of the Parties on this Application.
Since the Court in the present case includes upon the Bench no judges of
Australian nationality, the Government of Australia notified the Court on
9 May 1973=of its choice of the Right Honourable Sir Garfield Barwick, Chief
Justice of the High Court of Australia, to sit asjudgeadl~oc in the casepursuant
to Article 31, paragraph 2, of the Statute. Within the time-limit fixed by the
President under Article 3 of the Rules of Court for the views of the French
Government on this appointment to be suhmitted to the Court, the French
Amhassador. in the letter of 16 Mav alreadv referred to, stated that in view of
the considerations set out in the letter, the question of the appointment by the
Australian Government of a judge ad hoc did not, in the opinion of the French
Government, arise, any more than the question of the indication OFinterim
measures of protection. Thus the objection on the part of France was not one
within the meaning of Article 3, paragraph 1, of the Rules of Court.
1shall therefore cal1upon Sir Garfield Barwick to rnake the solernn declara-
tion required hy Article 20 of the Statute of the Court.
Sir Garfield BARWICK: 1 solemnly declare that 1 will perform my duties
and exercise my powers as judge, honourahly, faithfully, impartially and
conscientiously.
The PRESIDENT: 1 place on record the declaration made hy Sir Garfield
Barwick and declare him duly installed as Judge ad hoc in the present case.
1 note the presence in Court of the Agent and counsel of Australia and de-
clare the oral proceedingsopen on the request of Australia for the indication of
interim measures of protection.
1 Seepp. 149-159, supra
II, p. 338. ARGUMENT OF SENATOR MURPHY
COUNSEL FOR THE GOVERNMENT OF AUSTRALIA
Senator MURPHY: Mr. President and Meinbers of the Court. On hehalf of
Australia, 1 ask the Court to indicate piovisional measures: an Order of the
Court that France desist from conducting further atmospheric nuclear tests in
the South Pacific Ocean pending the final judgment of the Court upon this
dispute.
This being Australia's first case in the contentious jurisdiction of this Court,
1 wish to express on hehalf of Australia, OUI Government and our people,
Australia's resDectfor this great iudicial tribunal and the work it has done. and
Australia's support of the Fale if the law in regulating international relations.
1 also wish Io express tu the Court the appreciation of Australia for the
expeditious manner in which the Court is deaiing with the present request.
This dispute hetween Australia and France is about the illegality, under
international law and the Charter of the United Nations, of atmospheric
nuclear weapon testing conducted by the French Government in the Pacific
Ocean.
The basis of jurisdiction is twofold: first, Article 17 of the General Act for
the Pacific Settlement of International~ ~ -~wu.es. 1.28. read toeether with
Articles 36 (1) anJ 37 uf the ~tütuic of the Court. ~uitrilia and France hoth
îciedcJ Icithe C;ener~lAct on 21 May 1931.'leither country has denounced ils
accession.Second.Article 36 (2)ofthektaluteof thecourt. ~"stralia and France
have hoth made declarations chereunder.
Forty-three years aga Australia accepted the compulsory jurisdiction of the
Permanent Court of International Justice. It accepted that Court's jurisdiction
under the General Act for the Pacific Settlement of International Disputes 42
years ago. It subsequently accepted the compulsory jurisdiction of this Court.
Throughout these years, there has never been occasion for Australia to become
involved in contentious judicial proceedings. Until now, questions dividing
Australia from other States have been resolved hy negotiations. Today, ta the
disa~~ointment of the Australian Government. it finds itself faced with a oroh-
lemihich has not been solved in that way. Australia has thus been obliged to
turn to the principal judicial organ of the United Nations to seek recognition
and orotection ofherriehts. ~hese riehts include o.rticular rie-ts of Australia
and others shared with the world community.
1 note the absence hefore this Court of any representative of the French
Government. It would appear that the French Government takes the view that
the Court is without jurisdiction in this case and that, because this is ils view,
France is entitled to ignore the present hearings. How does the rejection by
France of its commitme~t ~ ~the Court affect the .resent c~s~ ~There is no
principle of international judicial procedure more fundamentally and universally
accepted than the one which attributes to an international tribunal the com-
oetence to determine its own iurisdiction. The nrincinle is .oecif~~-llv in-
corporsted into the St;itutc of this Court. as itu%~s inti) the Statut~ of its pre-
decensor. Article 36 (6)provides thüt: "in the event of ü dispute as to uhcther
rhc Court has juri,diction. the rnatier shîll be %ritle4hy the decisian of the
Ci~urt " Norhing could k clcarer or more explicit The Court itwli added the
seïl of il\confirmation of this oint in the 90rr~bohnr IPrclinroinr, Oh,<.crion, ARGUMENT OF SENATOR MURPHY 167
"... the Court has not hesitated ta adjudicate on the question of its own
jurisdiction in cases in which the dispute which had arisen in this respect
went beyond the interpretation and application of paragraph 2 of Article
36". (I.C.J. Reports 1953, p. 119.)
The Court has dealt with a similar situation on a previous occasion in the
FisheriesJurisdicrioncase. On the view that there was no manifest absence of
jurisdiction, the Court continued with the hearing of the case regardless of the
absence of the respondent State.The Court indicated interim measures of ~ro-
tection; and the court then decided in separate, subsequent proceedings the
question of jurisdiction. The Court held that it had jurisdiction.
Mr. President, these uroceedings are brouaht to Drotect the territorv of
Ausiralia and its populahon fruni hntinuerl aihiiphc;i; nuclcar tesimg in the
South Pasiiic, pïnding the Cuurt's de~.isionin ihis ;aie. Au,rralia's concern in
this regard extends to the interests and welfare of the neo~les of the external
territones for which Australia is at present responsiblé, iicluding the United
Nations Trust Territory of New Guinea. But Australia is also asserting a more
far-reaching principle beyond its own specific and individual right and-interest,
namely the right of each and every State and its people to be free from at-
mospheric nuclear weapon tests by any country. In other words, Australia's
argumentson theilleeal-.vof nuclear testine ex-end to al1States and inadvancine
theni wcuill be awerting a right whiih we sharc with al1Staics, n righi whic/;
mcrits ihis Court's proicction in the interim.
The rights of ~ustraliathat are entitled to protection in this regard are set
forth in paragraph 3 of the Australian request. They are as follows:
"Australia's rights under international law and the Charter of the
United Nations ta be safeguarded from further atmospheric nuclear
weapon tests and their consequences, including:
(i) the right of Australia and its people ta be free from atmospheric
nuclear weapon tests bv .nv c.untry:
iii) ihe in!i<~lab;lit~of ,\urirali~'s rerrit;,rial sovcrcignty;
(iii) ils independent righi ta deicrmine ahar a;is shall iakc place iriihin ils
territorv. and. in varticular. whether Australia and its veo. . shall be
cxposcd ti~ ioni7ing radiation [rom ariiii .'.I uuries;
iiv) the righi ofAu\tralu and hcr people fully ttienjay the freedum uf the
high seas;
(v) the right of Australia ta the performance by the French Republic of
its undertaking contained in Article 33 (3) of the General Act for the
Pacific Settlement of International Disputes to abstain from al1
measures likely to react prejudicially upon the execution of any
ultimate judicial decision given in these proceedings and to abstain
from any sort of action whatsoever which may aggravate or extend
the present dispute between Australia and the French Republic."
Mr. President, 1 turn now to the circumstances that have brought about the
present urgent situation. The protests within the United Nations that attended
upon the conduct of French testing in Africa are referred ta in paragraph 4 of
the Australian Application. Ever since the French Government announced in
1963 its decision to move it~ ~e~t ~-nt~ ~ ~ ~ Africa to the South P~ci~ic. the~~
Australian Government has expressed, in repeated protests, its apprehension
and concern at the conduct of tests in the South Pacific. The Court's attention.
is directed in this resnect to Annexes 2 to 13 of the Aoolicat..n. What is re-
vealed is the ~ustraiian Government's earnest and repeated endeavours to
dissuade France from her pursuit of atmospheric nuclear testing.168 NUCLEAR TESTS
By a Note of 3 January 1973, the Australian Government indicated Io the
French Government, in the clearest terms, ils view that the continuance of
such tests is illegal and asked for an assurance that no further tests would take
place. Nosuch assurancewas given inthe French replyof7 Februzry.The Court
is invited to look closely at these Notes, set forth in Annexes 9 and 10 to the
Australian Application, for in them appears the shape and dimensions of the
dispute that clearly divides the Parties.
The French reply disputed both the Australian view of the facts and the
Australian understanding of the law. It was subsequently agrced between the
two countries that discussions should take place. France agreed that oending
the conclusion of such discussions it would not carry out any further tests. ~hë
history of the subsequent exchange between the two countries is set out in some
detailin paragraph 18 of the Application.
As indicated in the Application, discussions between the Iwo Governments
took place in Paris on 18, 19 and 20 April this year. These discussions did not
produce a resolution of the dispute.
The Court will note that the French Government was firm in its refusal to
abandon atmospheric nuclear testing. The Australian Government invited the
FrenchGovernment Io ioin itin an a-reed referenceof the disoute to this Court.
'ïhi, in\.itaiiun u.as iendereJ exclu~i\cly in sn ïticmpt ICImainiain bciueen the
iwo :ounirie\ JI c~irJi.iiirclaiionship as isposrible h3ving regard IO the dcgrec
~f f~ ~ing which the issueenee-ders.The invitation did no1reflect anv doubf on
the part i>i<\~stralia reg:irJing the \;iI:dity and etfeciii.c.nc\* of ihejur~sd.ctional
links or>craii\c heiuecn the tiro cuunirics. Thc invitation \ixsnui iic.vp1e.i hy
the ~rrnch Government. Further scientific talks were subseauently held be-
tween Australian and French scientists on 7 to 9 May this yea;. It was clear al
the end of those talks that ilremained the firm intention of the French Govern-
ment to sonduct further atmospheric nuclear tests.
The Australian Government was lherefore brought unavoidably to the point
of having Io institute proceedings in this Court. This was done by the filing of
an Application on 9 May 1973. A Note Io the French President was delivered
on the same day, informing him of the institution of proceedings and that the
Australian Government was also seeking, through the procedures of the
Court. ..otection aea-nst further tests oendine t-e Court's decision.
The Auhirslidn Governnieni has donc 311ihsi iicsn IO explain ils posiiion
10the French Go\erninent Ho~e\er, the Frcn~h<;o\crnmcnt ref~sîs to givc an
undertakine. no1 to czrrv out furiher atmosoheric tests. The riridity of the atti-
tude oi ilie~rench Gi~\.ernmenr ir rhoun by a riaienieni ni&e in the French
I'ltrliltnieni on ? hli1973.Thst siaienieni ni-dc itquite ilesr thdi France did
not envisage any cancellation or modification of ils programme of nuclear
testing at Mururoa Atoll as originally planned. France refuses Io divulge Io
Australia and the rest of the world the date, type and yield of future explosions.
These may be of a size and yield hilherto unequalled. France has refused Io
give any assurance that a major explosion will not be conducted this year.
It refuseseven now to give to the Australian Government reasonable notice of
tests which il proposes Io hold. There is every reason Io believe that the French
Government plans to hold further atmospheric nuclear tests at ils centre in the
Pacific Ocean in the near future.
The third militarv aoorooriation law relatine Io the French nuclear testine
programme covers ihe'1971:1975 period and authorires the continued develo6
ment of a strategic nuclear force. There is reason Io believe that the period of
development could beextended beyond 1975.How soon the tests are scheduled
to begin is impossible for us to tell. As Annex 1 Io the request shows, testshavein the past beenheld asearly as mid-May. Mid-May is past. A test could there-
fore be held at anv moment.
As paragraph 70 of the request points out, the French Government has al-
ready made the preparations necessary to activate Dangerous Zones on the
verv~shortestnotice. and urgent advice of their activation could be eiven at an-,
moment. Hence theurgenc;with which the Government of Australia has heen
compelled to seek from the Court the laying-down of provisional measuresof
protection.
Mr. President, one of our primary legal propositions is that the deposit of
radio-active fall-out from nuclear tests infringes the inviolability of Our terri-
torial soverei~ntv. That orooosition does not reauire Australia to establish the
exact extent of Chedanger Of these radio-active katerials of which we are the
unwilling target. This radio-active debris which French atmospheric nuclear
explosions inevitably deposit on our soi1invades our people's bonesand lungs
and critical body'organs. Every man, woman and child and foetus in Australia
has in his or her body radio-active material from the French as well as other
atmospheric tests.
The processesof fall-out deposit and the resulting up-take of radio-active
material by the Australian people is irreversible; the legal injury involved is
irreparable.
Mr. President, the position in relation to fall-out can be summarized as
follows: firstly, natural conditions tender inevitable the deposition on Aus-
tralian soi1of radio-active debris from atmospheric nuclearexplosions by France
at Mururoa Atoll. Secondly, that debris will enter into the very bodies of, and
externally surround, al1members of the Australian population, thus subjecting
them to additional ioniring radiation. Thirdly, ionizing radiation is inherently .
harmful to human life. Fourthly, there is a serious danger that any addition of
ionizing radiation, however small, is harmful. The prudent scientific approach
is to assume that there is no threshold or safe limit. Fifthly, it is an established
principle that there should be no exposure to ionizing radiation from artificial
sources without a compensating benefit. Sixthly, it is for each country itself to
decide the levelsof artificial ionizi-e r~~ ~ ~onto which its ~eooleare to be sub-
jected and to balance the risks involved against any cokpénsating ben&
As to (1) Full-out on Australia. and (2) GeneralDistribirtionu~irlAbsor~tion
by Persolis,it is certain that radio-activedebris from France's past and future
explosions in the Pacific has beenand will be deposited on Australian soi1and
waters. Above Mururoa in the troposphere and stratosphere there are prevailing
winds. They are predominantly, but not wholly, westerly winds which circle the
globe at high speeds.When nuclear weapons are exploded in the atmosphere
at Mururoa, radio-active debris which every explosion produces is hurled up-
ward and is then carried around the earth towards the east by the prevailing
winds. As it is carried on ils journey it falls on the lands and oceans below.
Radio-active matter is thus distributed throughout the southern hemisphere.
The processes involved leading to fall-out are described in greater detail in
paragraphs 27 to 30 of the Application.
In addition, when radio-active material is injected into the stratosphere a
slow exchange takes place between the stratospheres of the northern and
southern hemispheres. This is set out in paragraph 30 of the Application.
The significance of the tropos~heric and stratospheric winds is that when
Franceexplodes her bombs in iheatmosphere over Mururoa, sheexplodesthem
in a real senseover Australia and other nations and peoples of the southern
hemisphere.
The explosions are, of course, of smaller moment to the nations and peoples170 NUCLEAR TESTS
of the northern hemisphere, for the bulk of the debris from the explosions in the
Pacific is distributed over the Pacific oeooles. It is not. however. confined to
. .
them beiause of the exchange of rarliu-active debris beiuccn the straiospheres
of the IWO hemispheres. 'Theexplosions ihus esseniially affcci the whule earrh
and everv oerson on earth.
The diit;nce scparüting Australia and Mururoa doe> no1 prevent deposition
on Australia. When thc Pacific iite $vaschoien because France could no longer
exolode her bombs in the Sahara. she was aware that the source of danee;to
~"stralia lay in the prevailing upber atmospheric winds moving in an eaiterly
direction carrying with them nuclear debris created by the explosions.
Although the meteorological conditions referred to are normal, one cannot
overlook the possibility that the direction of the wind and the local and more
remote meteorological patterns may change unexpectedly. As well, unforeseen
rain mav occur. Factors such as these mav oroduce a radical deoarture from
the predicted fall-out patterns. This has hapiened before. c ~- ~ ~ ~-~~ ~ ~
1should add, Mr. President, that the probability that unforeseen or excep-
tional conditions will occur and affect the fall-out over Australia is very small.
The dangers in this respect are greatest rather for the developing countries,
some independent, some still non-self-roverning, closer to the test site. For
instance, after the test of 12 September i966, radio-active debris was unenpec-
tedly transported in the reverse direction, i.e., from east to West,giving high
levels of fall-out in Fiji, which has applied to intervene in the present proceed-
ings. This phenomenon is usually described as "blow-back".
In Le Monde on 17August 1971 it was reported that on the night of 12 and
13June 1971 there was, over the Tureia Atoll, an unforeseen conjunction of a
contaminated air layer and rain, a phenomenon described as "rain-out". The
report is referred to in paragraph 44 of the request. Such phenomena as these
add to the unoredictability of fall-out oatterns and hence to the danger.
~hccertainiy of dcposi;nf r~dio-a;ri\.e mdtter on .\u,iralian soi1fr<m French
tesis is iontirmerl by Auriralia's monitoring programnic and hy the Keporis of
the United iiatlons Sctentifi- Commitiee on the tire'cctrof Aiumic Radiïtion
(UNSCEAR). It was not disputed by French Government scientists during
recent talks in Australia. While there were differences between the scientists,
1 quote from that part of the report' on which there was general agreement:
"There was general agreement that the technical methods used by the
Australian authorities for measurine auantities of radiation fall-out are
satisfactory and are in accordancewkh international practice. A large
degree of agreement was reached rerardinr the levels of dose commitment
in ~ustralia due to past French tests."
And in a moment, MI. President, 1willrefer to the meaning of this commitment
in this connection.
"The estimates of those dose commitments in millirads are as follows
(for strontium-90 and caesium-137, the lower figures are preferred by the
French scientists according to their methods of estimation; the Australian
scientists' estimates are the higher figures)."
And 1here may refer to a table. If it meets the convenience of the Court, may
itbe incor~orated in the record as an annex? It is a short table with fieures
which has been mentioned to the Registrar. That shows the totals in respect of
the various elements which indicate fall-out from those tests on Australian soil. AROUMENT OF SENATOR MURPHY 171
TABLE FROM ACREED PART OF REPORT Of TALKS BETWEEN AUSTRALIAN
AN0 FRENCH SCIENTISTS
(for strontium-90 and caesium-137, thelower figures are preferred by the French
scientistsaccordingto their method of estimation; the Australian scientists' estimates
arethe higher figures)
Thyrojd Thyroid Blood Bone Whole
Element (young (older forming eells body
ehildren) ehildren eellr
and adults)
Iodine-131
Short-lived
Strontium-90
Caesium-137
(External)
Caesium-137
(Internai)
Carbon-14
Tord (in
round figures) 102-103 14-15 9-12 10-15 5-6
There is a general scientificacceptance that deposition of fall-out occurs in an
al1 oervading manner. Subiect to fluctuations. the iiuclear fall-out is such that
the-whole environment and every person is s"bjected to it. This has led to the
formulation and general acceptance of the concept of dose commitments, that
is. doseswhich on the averageeach ilerson hasor will receive becauseof various
sources of ionizing radiation to which he is exposed. These are of course
averages.
The conceot of dose commitments from nuclear tests is a recognition that
every personjs surrounded by and ingestsradio-active substancesand, therefore,
is subject to radiation dosesfrom atmospheric nuclear tests. This proposition is
incontrovertible.
Three of the most imporlant radio-active substances produced by nuclear
explosions are strontium-90, caesium-137 and iodine-131. There are also other
"fresh fission oroducts". The Australian monitorine oroeramme consists of
-. -
25 centres in ~ustralia and a further centre at Lae in the Trust Territory of
New Guinea. In addition, daily milk samples from the nine maior milk supplies
situated in various locations inAustralia are assavedto determine the ~resence
in milk of i<~dinc-131.1hc :oniprehensi\e ..\iitralilinionitorin,: progrsmmc
permiis ihr- a\\c>sment of dosc i<imm.tmr.nis ior the Au\iralian population
duc 10 faII-oui of ;il1 frc\h ii+ii>n orodu~t,. inrludinc iodinc-131. ~irainiium-90
and caesium-137. Details of this p;ogramme are given in paragriphs 54 and 55
of the request.
The .rop-amme has detected radio-active material oroduced from the French
lcsis in fdII-o~t ihrouvhsut ,\u\ir;ilThe nicnwrementi of radio-active fsll-out
inonitored iii ;icctirJsnce ivith the progr.imnie, haie been puhlishrd in oficial
reports and in the Ausrralian Journal of Scietice and have~beenformallv sub-
mitted to UNSCEAR as official ~ustralian information. Mention is made in
paragraphs 56 and 57 of the request of the measurements and of their publica- 172 NUCLEAR TESTS
I next mention some nassaeesfrom the 1972 UNSCEAR Renort which also
establishedthe releasein'to the~acificarea, from the French tests;of radio-active
material. Thus UNSCEAR stated: "ln the southern hemisphere in mid-1969,
75 ner cent. of the strontium-90 activitv in surface air is ascribed to the Seo-
tember tests in the Southern Pacific." (ihe reference is Vol. 1,p. 44, para. 180.
of the 1972 UNSCEAR Report.)
Table 29 of the 1972 UNSC~AR ~ ~ Re~ort shows that the concentration of
c~eï.urn-137 iri milk ior Australi.~ rJSCpro&rcisi\cly in rc.'cnt )clrs si>th11 by
the )car 19701Iic.Au*lralian lig-tree\;ecJcJ that .)ithe UtiitcJ Kin:,lgn. Uy the
same vear the values for the two countries relatine to strontium-90 were eaual.
(~he ieference is to Vol. 1, p. 87. tablc 29, of the 1972 UNSCEAR ~eport.)
This prorressive increase renects the effects upon Australia of atmospheric
testing, lncÏuding that conducted by France, upon the Australidn environment,
and further establishes that there has been radio-active contamination of the
environment.
But the matter does not rest there. Paragraph 178 of the 1972 UNSCEAR
Report (Vol. 1, p. 43)States:
"The stratospheric inventory of strontium-90 in both hemispheres
increased temporarily after the tests in 1967, 1968, 1969and 1970. Apart
from those neaks. however. there has not been much chanee in the stra-
tospheric inbentory of stro"tiurn si9ce 1967, the level being maintained
relatively stead. .y the atmospheric nuclear tests carried out during the
last three years."
Paragraph 179 contains the statement that:
"In 1969 strontium-90 deposition was about equally divided between
the hemispheres.This is the first time that theannual fall-out in the southern
hemisphere has been equal to or greater thdn that in the northern hemi-
sphere. However, the southern deposition in 1969-1970wasonly about half
that recorded in the years 1962-1965in spite of recent tests there. It can be
seenfrom tables 23 and 24 that the global cumulative deposit of strontium-
90 has changed little over the last Tewyears, the annual deposition being
just sufficient to compensate for strontium-90 that has decayed on the
ground."
There then follows in paragraph 180the statement 1 have quoted earlier that
in the southern hemisphere in mid-1969 75 percent. of the strontium-90activity
in surface air was ascribed to the September tests by France in the South
Pacific.
1 alsp draw the attention of the Members of the Court to paragraph 14 of
Chapter 1 of the 1972 Report referring to the presenceof iodine-131 in milk
in a number of countries after each of the 1970and 1971 series of tests in the
sauthern hcmisplicrc. iwould but ;!,id thdr the ioncluding \r.<irilsoi par~graph
13of the s3meCh~ptcr strongly ind.:~te rh.11the po,t-1970 lests irill h3ve addcd
~ ~ ~ ~ ~ ~ ~ the ndear debris in our atmosnh&e
The réferences1 have made to the 1972~eport of UNSCEAR bearing upon
the deposition and dispersion in the southern hemisphere and in Australia of
~rancé'sradio-active debris are not exhaustive.
There is another feature of radio-active fall-out that is of particular signifi-
cance. 1 have earlier referred to the radio-active substances strontium-90,
iodine-131 and caesium-137. These substances are produced by nuclear ex-
plosions and do not occur naturally.
Strontium-90, when ingested iri the forrn ofcontaminated food. is transferred ARGUMENTOF SENATORMURPHY 173
to the human bone. It is retained there and irradiates bone marrow and bone
cells. The mechanism of transference from food to bone is referred to in the
1972 UNSCEAR Report, Volume 1, at pages 47 ta 50.
lodine-131 which is ingested mainly through milk is concentrated in the
thyroid and irradiates that gland more than any other tissue.
This statement may be found in paragraph 14,page 4, of the 1972UNSCEAR
Report, which is Annex 8 ta the Request.
Caesium-137 when in~ested in the form of contaminated food is rapidly
distributed in the humanbody, approximately 80 percent. in muscle and 8 per
cent. in the bone.These percentages are again taken from the 1972UNSCEAR
Report, Volume 1, at page 52, paragraph 231.
Thus, in one of their aspects, nuclear explosions implant into the human
body a source of irradiation which resides there for periods of time which de-
end on the radio-active material involved.
1nould nexi nish to point oui one siniple and ob\ious iact. Once illese radio-
aL.1ii.esuhsisnces are rleposiied in the various rornWC have mentioned. the)
contaminate food which is consumed by populations. Once deposited they
cannot be removed and once ingested they inevitably irradiate the human body
and its critical organs in the ways 1have mentioned.
Thus France cannot undo the damage each explosion may cause ta Australia
and its people. Once deposited Australia cannot remove the consequences of
those deposits. Those consequences are therefore irreversible. To the extent
that they infringe legal rights the damage is forever done and the right can never
be restored.
To the extent that they may injure human bodies, the same consequences
ensue. 1 would but add ta what 1 have said, the following statement in para-
graph 45 of the 1958 UNSCEAR Report, which may be found in Annex 3 at
page 40:
"Prevention of the effects of radiation is rendered more dificult, and
complete protection against it impossible, because changes which already
occur during the irradiation lead to later damage."
We therefore submit that there is a certainty that future atmospheric tests
at Mururoa Atoll willresult in edeposit inAustraliaof radio-activesubstances
produced in those nuclear expysi.ns and that as a result everyone in Australia
will be subjected ta additional ionising radiation.
Mr. President 1 have now reached the end of the first two points related ta
the extent of fall-out and its absorption by individuals. I turn ta (3) Harmfulness
of Ionizing Radiation.
Radio-active debris is inherently a source of ionizing radiation. Man has
always been subject to natural sources of ionizing radiation, the levels of which
Varyfrom place to place. It is important ta understand the significance of these
two sources of radiation. and their relationship one to the other. The steps
involved in that understanding are straightforward and fundamental.
The first step is that nucleardebris from French tests adds to background
radiation from~natural sources. It is not something to be compared with back-
ground radi~tion as iiiwere separare fiom it.Il adds hum to uur pupulïtion.
Ii is not rclevïnt ihsi ihç le\~elso~nïturalraJi~iiunm3) be larger than thai of the
artificial ones caused by the tests.
The second step is that al1ionizing radiation is hostile ta life and is harmful.
World scientific opinion regards ionizing radiation as harmful ta life. In my
remarks on this topic 1 shall refer firstly ta a short but lucid and compelling
statement by an eminent scientist, Dr. Karl Z. Morgan, who is the Director,174 NUCLEAR TESTS
Health Physics Division, Oakridge National Laboratory, Oakridge, Tennessee,
the United States of America. This is what Dr. Morgan said:
"If we reflect for a moment on what haooens wben radiation nasses
through our bodies, 1think it is easy to underitand why one would éxpect
some radiation damage even at the lowest doses or dose rates or why there
cannot be a threshoid dose below which there could not be resultine
damage. When ionizing radiation at the level of permissihle environmental
exposure strikes the human body, whether it be from diagnostic X-rays,
an imorooerlv desiened or shielded color television set. radon dauehters
inhaled in a LraniG mine, or from radio-nuclides ingested by drinking
water downstream from a nuclear power olant, there are many millions
of photuni or highznergy ionizmg piriiclt.; ihit pas, ihrough pirrr of the
bod) eich ~csoiid. As 2 rewli, energy exch;ingei tdkd place irhiih came
bundreds of cells to undergo various denrees of damaee (the uhvsicist
wc~iild,a) the entropy ur di\orgmts.irion oi the tdry inrri;are and complex
iniormdl~on.eniçrr of inc cell, ha, ~ncre~sed).Some ~ellsarc rlrtmagedonly
sli.htl. and oerhans can be re~aired com~letelv. Other cells are destroved,
and. u~thiii seriain limitr. thcy represcni seri.>usrlsmage be:dusc ihere
are niillions<ifother iellj immr.diaielya%ail.thleio idkc over ihcir fun:tion.
It is those cells of the bodv which receive ionizinn radiation and underro
physical and chemical changes and yet survive to reproduce their pertir-
bated forms which may be precursors of cancer that are of the most con-
Cernto us. The same ii truein the case of eerm cells in Our gonads which
may survive radiation exposure only to take part in the conception of a
child which, as a consequence, may suffer early death due to leukaemia or
central nervous system cancers or may suffer some serious mental re-
tardation such as mongoloidism or physical deformity."
The reference is to hearings before the subcommittee on Air and Water Pol-
lution of the Committee on Public Works, United States Senate, Ninety-First
Congress, 5 August 1970, page 648.
As Dr. Morgan shows, ionizing radiation damages some cells perhaps only
slightly, destroys other cells, but further and most importantly subjects to a
third type of injury cells which survive to reproduce diseases such as cancer and
leukaemia and to give rise to deleterious effects in future generations.
Dr. Morgan went onto say on page 665:
"Since natural background radiation is a component of man's environ-
ment. he has on this basis been subiected to radiation damage ever since
his existence. 1helieve any addition; to this background radiation merely
increase the probability that man will suffer radiation damage during his
lifetime or oass on to future eenerations aenetic damaae which mav be
- -
e~pressed iiiiernih i~fmindr hiindi;;ips or defci.. or iimiiy rïsuli indcfe<is
su~has mi~ro.'ephdly.m<ingoloidisin.blindncsi. lamenes\ or carly death "
Paragraph 45 of Chapter II of the 1962 UNSCEAR Report to be found in
Annex 4 of the reau.st. S.ates:
"The first effects of radiation on living matter are physical, in that they
affect atoms and molecules irrespective of their arrangement in living
structures. A result is the snlitting of molecules into fragments known as
radicals and ions. These fragments are deprived of the Chernicalstability
characteristic of the original molecule."
Further, paragraph 46 of the 1962 UNSCEAR Report goes on to elaborate
this topic in these terms: ARGUMENT OF SENATOR MURPHY 175
"Radicals mav interact bath between themselves and with unaltered
molecules, thus giving rise to new chemical compounds and upsetting the
chemical balance of cells. Since water constitutes about 70 percent. of the
cell, radicals arising from the splitting of water molecules are important
in the initial chemical changes induced by radiation."
This .arae-~.~~indicat~~ t~at the destructive character ~ ~ ~f radiation is not
exhausted by the statement contained in quoted paragraph 45. For it says that
the radicals into which radiation may reduce a stable molecule of living matter
mdy intera~t with other radicals and <lso with aither m<)le~ules3s ).et unürfe~ted
\o 3, to givç rire to nea. chçmicdl comp,iunrl, and o as to upsei ihc chemicïl
balance that the unaffected cells possessed.
A further consequence is stated in paragraph 47:
"All the essential constituents of cells and in particular complex mole-
cules like oroteins and nucleo~roteins. mav be affectedthrounh th- action
of radiwls. Thcy m.ty lI>i>he injured byr.!ili.iiii>ndirrrtly. hi>uz\cr. \iiilioiii
ihc.intervrnti<in of radi.'ùls. The respe:ti\c ride of the dire:t and indirçct
action of radiation in brineine about cellular lesions is not vet clear: it is
probable that in most effects both modes of action operate.;'
What 1 wish to observe of this last paragraph is its statement that essential
constituents of cells may be injured by radiation directly in addition to the
injury which the intervention of radicals may effect upon them.
Further...arae-.oh 49 of the 1962 UNSCEAR ReDort contains this state-
ment: "Cellular death is an over-al1and ultimate result of irradiation."
Strontium-90. caesium-137 and iodine-131 are, as 1 have mentioned, three
dangerous radio-active end products of nuclear explosions. Produced by
nuclear destruction, they in turn cause molecular destruction; they may split
the molecules that comprise Our flesh, bones and organs into fragments. In
human terms that is exactly what the above-quoted paragraphs are stating.
The paragraphs additionally say that the fragments ta which radiation may
reduce the molecules of living matter are fragments which are deprived of the
molecular stability which the unaffected molecule of living matter possessed.
This fact itselfestablishes the hostile character and destructive nature of ionizing
radiation.
The paragraphs from the 1962 UNSCEAR Report which 1have quoted thus
indicate in greater detail the nature of the damage to which Dr. Morgan
referred in simpler and, it may be, more lucid terms. They describe the de-
structive quality and characteristics of the effectof ionizing radiation on living
matter.
This brings me to the end of what 1 have ta say about the harmfulness of
~~nizine radiation.
As to (4) Effect ofsLow Doses.
1wish now to turn to an allied subject and ta indicate in the same manner,
that is bv reference to recoenized scientific works. the Drobabilitv that radiation
in the smallest doses is dangerous to mankind. Dr. Morgan has said, a1 page
646 of the document to which 1 have already referred:
"1 believe present evidence refers Io the fact that most, if not all, types
and forms of chronic, radiation-induced damage (with the possible ex-
ception of cataractogenesis) relate more or less linearly ta the accumulated
dose, and that there is no justification for one ta assume the existence of a
threshold below which these forms of damage would not result."
Out of the many references set forth in the Australian Request, 1 draw the176 NUCLEAR TESTS
Court's attention ta page 89, supra, paragraph 48, of Annex 4, containing the
following statement by UNSCEAR in 1962:
"It is clearly established that exposure to radiation, even in doses sub-
stantially lower than those producing acute effects, may occasionally give
rise to a wide variety of harmful effects including cancer, leukaemia and
inherited abnormalities which in some cases may not be easily distinguish-
able from naturally occurring conditions or identifiable as due to radiation.
Because of the available evidence that genetic damage occurs at the lowest
levels as yet experimentally tested, it is prudent to assume that some
genetic damage may follow any dose of radiation, however small."
'lhe \idtement thüt 1 ha\e juit qiioted i precedcJ h) a statcmçnt un page
88, sirpro, piiriigraph 34, in the fcillouing tcrms.
"The study of the relationship between, dose and effect at cellular and
subcellular levels does not give any indication of the existence of threshold
doses and leads to the conclusion that certain biological effects can follow
irradiation, however small the dose may be."
In the UNSCEAR Report for the year 1966, referred ta in paragraph 23 of
the request, is the statement that it is clear that with any increase of radiation
levelsonearth, theamount of genetic damage willincrease with theaccumulated
dose.
Australia's reauest in oaranraohs 48 and 49 has set out some statements
coniained in Puhliwtii,n'~ ofthe Interndtionîl C<immiiiion on Kidiologi;al
1'roie;tion (ICRP) ICRIJ i, d rcdgni~cd and rcspsnsible internstisn~l auihor-
itv. Its . .roach to the auestion of radiation orotection reflects the daneers-
th:ite\posure 10 radiation in 3n) quantily m3y cliurc. Thu,, subp~r~grîph (il
of pliragraph 49 oi the rcuucsi rcCcrsti>ICRP's tien thai any eAposureto rad13-
tion may carry some risk for the development of somatic effects, including
leukaemia and other malignancies, and of hereditary effects. ICRP proceeds
to state:
"The assumption is made that, down to the lowest levels of dose, the
risk of inducina disease or disabilitv increases with the dose accumulated
by the individual. 'Thisa~sum~tionimplies that there is no wholly "safe"
dose of radiation. The Commission recognizes that this is a conservative
assumotion. and that some effects mav re. .re a minimum or threshold
dose. ~owiver, in the absence of positive knowledge, the Commission
believesthat the policy of assuming a risk of injury at low doses is the most
reasonable basis~forradiation pr$ection."
Thus, prudent scientific opinion of great weight indicates that in the state of
present knowledge, exposure to radiation, however minute the quantity, may
be attended by human injury. A similar approach is disclosed in the November
1972 Report of the Advisory Cornmittee on the Biological Etïects of lonizing
Radiation, of the Division of Medical Sciences of the United States National
Academy of Sciences. The full titlaof the Report is: The Effececrosn Popiilarions
of Exposure to Low Levels of Ionizing Radiation1. Copies of this Report have
been lodged with the Registrar for reference. Paragraph 46 of Australia's
request refers to the Report. The Report reaffirmed the principles that any
radiation should be regarded as harmful and that no-1 repeat noexposure
1 II,p. 364. ARGUMENT OF SENATOR MURPHY 177
to ionizing radiation should be permitted without the expectation of a com-
pensating benefit.
1 have referred Io the UNSCEAR Reports, the publications of ICRP and the
Reoort of the Committee of the National Academv of Sciencesof the United
States, to al1 of which Australia's Request refers for the purpose of showing
what is the state of informed scientific opinion on the effects of ionizing radia-
tion. 1 would submit. in the words of oa. -.aoh 41 of Australia's eaue e tat.
Reports of UNSCEAR can be accepted as objective statements O; scie"tific
facts in the light ofscientific knowledge at the time of each Report.
The same may be said of the Report of the Committee of the National
Academy of Sciences of the United States and of the publications of ICRP.
There can be no doubt that those eminent scientists ofmany nations, including
France and Austrdlia, who participated in the preparation of the UNSCEAR
Reports regarded, and continue to regard, ionizing radiation as inherently
harmful to mankind.
The General Assembly having considered those reports demanded the cessa-
tion of atmospheric nuclear tests.
Mr. President, the trend of scientific opinion evidenced by the extracts 1
have read is clear enoueh. that there is no threshold below which ionizinz
radiation is not harmful.-~iven its inherent harmfulness, given the fact that
tends to cellular destruction, which the passages 1haveearlier quoted demon-
strate. what other conclusion is oo.n. .s the orudent and ~robable one. but that
it retains its destructive characteristics wha&ver the levei of dose? ~akticularly
is that so when one remembers that every amount ofartificial ionizing radiation
-oes to a[/[to the levels of natural ionLine -adiation in which mankind lives
Science establishes that dangers lie in exposure to ionizing radiation. The full
extent of thesedangers is not known. Scientists Vary in their views and this adds
to the concern of the Australian Government and Ïhe anxiety of the Australian
people.
There are difficulties in stating in numerical terms the numbers of lives
t~ ~ina~ ~ ~ ~ ~now and ~rosoecfivelv and the diseasesinflicted mon human
~ ~ ~7~ .
beings by ionizing radiation One reasun fdr ihls lies in the non-ipec.tic çharac-
ter. atICAS oIn the basisof preient sacniiiïc knouledge, of thc discasesto ivhich
ihesç raJiations gi\e riw. The difli.'uliiei arc ;ipgrJvaicd uhere one is secking a
nunierical statcment oi itie injuries in hiini~n tcrnis thai ioniling radi~tiun in
loa doses nias iniii~t. Thu* ihe Kcport of ilie Coininittee uf the N~iional ka-
demy of Sciences of the United States, which was directed to the effects on
populations ofexposure to low levelsofionizingradiation, points out on page7:
"But if in fact any level of radiation will causesome harm (no threshold),
and in fact entire populations of nations or of the world are exposed to
additional man-made radiation, then for decisions about radiation protec-
tion, it becomes necessary to quantify the risks; that is, to estimate the
probabilities or frequencies of effects. Suchestimates. asdiscussedlater, are
frauaht with uncertaintv. However. they are needed as a basis for logical
dcci$on.making and miy serie IO stimtildte ihr gaining of data for asiess-
meni ofcomparati\.e hïzard, from iechnologii~l optiuns and develi)pment.
at the same time promoting better public understanding of the issues."
Nevertheless, estimates have been attempted and formulations of the ap-
propriate scientific rnethods to be employed in working out the numerical
statements of such estimates appear in the UNSCEAR Reports and have been
otherwise scientifically accepted. Thus, paragraph 59 of the request correctly
states that, using approaches adopted by UNSCEAR in its second to sixth178 NUCLEAR TESTS
Reports, the doses to which the paragraph refers may be expressed as dose
commitments to the Australian population.
Dose commitment is a measure of the amount of radiation alreadv-ahs~----
and 10 be absorbed in the future from the present store of nuclear debris, by
each and every member of the Australian population. The procedures in broad
outline by which assessments oftotal harm may be arrived at are stated in para-
graph 60 of the request. Having referred to the fact that dosecommitments are
capable of evaluation, the paragraph goes on to state that these commitments,
together with estimates of risk for the induction of cancer and for diseases of
genetic origin may be used to compute harm commitments to the Australian
population expressed as the expected number of additional cases of cancer and
of diseases of eenetic oriein.
On I May i973 therc ;a\ txblcd in the Aurtralian Parliameni (sec para. 63
of the rcquesi) a Report of the Ausiralian Adddcmy of Scicncc, the material
conclu\ions of u hizh. insummary furrn and a, finiillyexpresscd by the Aiddcmy,
arc sct oui in that wragraph of the requeri. The Co~rt isiisked to look cloiely,
as 1 am sure it will.at the risks of death and disibility refcrred to by the Aus-
tralian Academy. However, 1feel it would be helpfuito the Court if1 were to
present here, in a different form, assessments of harm to populations-which
scientistscal1"harm commitments"
14armi<immitnients mdy be caliulated on the haris of ihe dose commitments
to the Australiïn popiilation from Fren~h nuclcnr wcapon test, in the Pacific
in the pcriud 1966ro IV72and of the risk r~itors which the Australian Aciidctity
i~fScience used in its report. Thex risk Nztors adupted by the Aciidemy wcre
deri\ed irom the IV72UNSCEAR Repori and from the Report ufthc Sîtiotiiil
Academy of Science of the United States. Because a range of dosecommitments
nrr;\cd a1during the hlxy 1973di\iu,iions kt\i.ee~ ~ustralian and French
rere
scientistç, a range of harm cornmitment, ha? bccn zomputcd by applying uhai
i, calleda "lincar non-ihrr'shold" relatiunshi~ kirccn dose and eNect. BI.this
i, meant cilècis arc propurtional to duse houe\er snilill the dose may be.
As iiresult uf lTrenchnuclciir nespons test$ in ihe Pncific in the seten-yeîr
oeriod 1966 to 1972. the harin commitmcnts Io the Australian iiuoulation nrc
24 tu 26 cases of thbroid cancer, II to 14cdscs ol'lsukaemia ani oiher cancers
(excluding thyroid cancer) and approxim:itely I deiith or seriuus dis;ibility from
aenetic causes during the first generation and 15 to 18 deaths or serious dis-
abilities in al1subseiuent generations.
On those calculations, on that assumption, should France reoeat its 1966to
1972 oattern of nuclear weaoon tests in the Pacific. each seven vears of such
pnsi practicecoulJ he chpcit;d t<igivc risc to ihe saAc additionaliotal number
of ciises of canccr and genïtic cll'ectsiis 1 h3\c a1reiiJy nientioncd.
Harm commitments are derived by the product of dose commitment, risk
factors and the number of population at risk. The harm commitments just
quoted were derived for the Australian population of 13 million. The total
. .ulation of the southern hemisohere is some 30 times ereater than the
population of Australla Aczordingly the totïl harni commitmenis IO the
populiition of the southern hemisphere frum French nuclcar te\t\ alreïdy con-
ducted in the Pacific will he many timcs greater than those for Australia.
The conclusion, therefore, is that Australian citizens and citizens of the
southern hemisphere and future citizens of Australia and the southern hemi-
sphere will pay with their lives for France's decision, in the face of constantly
expressed disapprobation by world public opinion, to commence and to con-
tinue atmospheric nuclear weapon tests.
It is in circumstances such as these, as paragraph 65 of the request makes ARGUMENT OF SENATOR MURPHY 179
clear, that the Australian Government isgravelyconcerned. Theimprecision and
uncertainty of the limits of danger ta populations, in terms of lives lost or
damage- and future aen-rations harmed. serve but ta render the daneer th-
graver.
MI. President, 1wish ta refer the Court specifically ta paragraphs 61 and 62
of the reauest. The Court will note from oaragraoh 61 that the French Govern-
ment has roughi io ni:ike u;e ufpa\i reports of the Ausirsl:~n Naliondl Radia-
lion hdvisory Conimiitee (NRAC') ta support ils \:eu rh~r n$>5ignificani risk
to the Australian oo~ulation is involvedas a result of its test in^Dronramme.
1shall read the Cohments made in those paragraphs of the request. -
"61. ...these [referring ta the Reports] have only a limited, if any,
bearing on the situation. The NRAC has produced a report on each series
of tests but it has not reported on the possible cumulative consequences of
fall-out from al1series of the tests.
62. In formulating its views on each series of tests, the NRAC chose ta
adoot an ao..oach of determining the relative risk for each series rather
than thai of aijeising the iumulsÏiie h3rm Io the Ausiril..in population
from 311the nuclesr teiti carricd out in the Pacilii in the stmi,spherc by
ihe French Republic. I'he apprua~h adopied by the SKAC invi~l\.edin
the main the comp~rison of the e\peiied etTecisfroni ihc tesir iiith those
from naiural bxkground rddiatiun and \iewing the signiticance of the
ex~ected eîïects against the incidence of death and disabilitv in the Aus-
tralian population. Rcaurc of the gruwinl: L.onccrn in the Auiiriilidn
populaiion about the p<,,\ihle ciTcctsof the coniinued .îtm~spheric nu;lear
testinr. bv the French Ren~blii in ihr Paiific. Ausiraliü is obliced Io con-
sider ~heCumulativeeffecf ofthese tests and toassess the risks no; in relative
terms, but in absolute terms."
The late President John Kennedy of the United States of America, in his
address in July 1963, urging the United States adherence to the Partial Test
Ban Treaty, put the matter simply:
"The number of children and grandchildren with cancer in their bones,
with leukaemia in their blood, or with poison in their lungs might seem
statisticallv small ta some. in comoarison with natural health hazards. but
this is noia natural health hazaa;d-and it is not a statistical issue.~he
loss of even one human life, or the malformation of even one haby-who
may be born long after we are gone-should 5e of concern ta us all. Our
children and grandchildren are not merely statistics toward which we can
be indifferent."
1 have indicated that the risks involved in French testing in the southern
hemisphere are considerably greater than one or two deaths.
The Courtarljournedfrom 4.15p.m. fo 4.40 p.m
The recent meeting of Australian and French scientists agreed on assessment
of the dose commitments ta the Australian population from al1 past nuclear
tests. Itis of concern ta the Australian ~overnment that these dose commit-
ments, which include a contribution from past French nuclear tests in the
atmosphere in the Pacific, range up to values measurable in years ofequivalents
of natural back-round radiation exoosure. To the thvroid e-and of infants there
is the equivalent of approximately two years' such exposure. To blood forming
cells and bone cells there is the equivalent of approximately one year's such 180 NUCLEAR TESTS
exposure. To the whole body and to the thyroid gland of older children and
adults, there isthe equivalent of approximately overalf-a-year's such exposure.
And, if 1 may repeat, this is the average in respect of every single one of the
population.
The Australian Government must view these dose commitments to which
French nuclear weapon testing has contributed, and the consequences to the
health ofils population of those doses, in the light of the intention by France
to add to these dose commitments bv further nuclear weaoon testina in -he
atmosphere at its Pacifictest centre. Also, there are, of course, variations in the
levels of fall-out from French tests over a country of such wide expanse and
climate conditions as Australia.
Thus, for infants who feed on fresh cows' milk derived from one major
Australian milk production area, the dose commitments to their thyroids in the
seven-vear oeriod. 1966 to 1972. of French nuclear weanon testine in the at-
mosp6ere in the ~acific ranged'up to the equivalent of approximately three
years' additional exposure to natural background radiation. Can there be any
wonder that this cbncerns the ~ustralian Government and creates anxieG
among the Australian people? This concern and anxiety is the greater as France
prepares to undertake further nuclear weapon testing in the atmosphere in the
Pacific on which it will provide neither information on the dates nor on the
number of the explosions and the yield of these devices.
This brings me to the end of Our submission on the effects of low doses.
As to (5) and (6) No ExposureWifhout CompensafingBenefif, to be decided
by each country itself:
Resolution 1762A of the General Assembly of 6 November 1962viewed with
"the utmost apprehension" the data contained in the Report of UNSCEAR of
that year. That concern bas been continuously reiterated by resolutions of the
General Assembly. The references are set forth in paragraphs 17 to 40 of the
Australian request and in the annexes to the request. The request also sets
forth, in Annex 19, a resolution adopted by the United Nations Conference on
.the Human Environment. No doubt taking the UNSCEAR Reports into ac-
count, the resolution states the beliefof that United Nations Conference that al1
exposures of mankind to ionizing radiation should be kept to the minimum
possible and should bejustified by benefitsthat would not otherwise be obtained.
The Australian Government in common with the governments of other na-
tions has attempted to use artificial ionizing radiation only where there is a
benefit to ils oooulation arisina from its use.
The principle; upon which itand other nations have proceeded are stated in
paragraph 36 of the Application, where it is said that in taking steps Io protect
theirpeoples from the threat posed by controllable sources of ionizing radiation,
Australia and other nations have acted consislently in accordance with two
principles.
The first ~rinciole is that anv ionizina radiation. however sli~ht. is ootentiallv
harmful: and ih; ,r.cond principle isÏhat people rhoulJ no; be s;bjeiterl th
man-made ioniring riidiÿtion unlcii thcre is a runipcns~ting beneiit. This 1s.
of course. the annliriition oi the nrinci~leb \!hich ICRP h3r conrirtentlv ad-
vocated. NO resionsible governient iay do less. Once it is accepted that
ionizing radiation is potentially harmful,then its use must be controlled and
should onlv be iustified bv reference to the benefits that its use mav brin^.
The exerCiseof the choice to promote such exposure is but one aspect of the
right that each sovereign State possesses, has exercised and will continue to
exercise.
As 1have mentioned earlier, the result of atmospheric testing isthe subjection ARGUMENT OF SENATOR MURPHY 181
of innocent populations ta the risk of death and pain and irreversible injury.
Those scientific evaluations which the Government of Australia possesses
indicate that such is the casewith Australia. Tbough the number may be small,
it is certain that death and suffering have been and will be caused by the tests.
Their continuance will certainly aggravate that harm.
The constant reiteration bv the United Nations of its condemnation of
atmosphcric tejt, eitsblishcs. irproof iiere nr;eis.ir)th21thc te5ting of nuclc~r
dciiscj in the ~tmdsphere is an abnormal wiurrence and a idue of unique 2nd
soecial concern to the international communit~
Atmo>phcric nuclr~r ie,ting i.conipîrablc to ni) nther Sidie actii,iry. 1iinu
ordinary acti\ity of the Stxe. the consequcncesof \$hich clin be d~jpi>jeJof hy
payment of pecuniary damages.The very fact that the internationalcommunity
has so consistently called for the cessation of atmospheric tests means that the
community has rejected such an interpretation of them.
One is left therefore onlv with the fact that France. aaainst the exDressed
. -
ca~ndcninationof the 1ntern3tia1113 io1~~tntun~ly,ha$for 1tcrou11benclil initisted
and continueLi atnici,phcric riusle~r meapon te>ts; th31 shc inrenJ~ to sontiriuc
them: that ~ustralia's citizens will Davand have oaid a ric cfor this conduct.
~hould further tests becarried out, thSand futuregeneracions willsuffer further.
Mr. President. 1 have endeavoured to take the Court, in an ordered wey,
through the consequencesfor Australia and its people of continued atmospheric
nuclear testing by France. May 1 now indicate in outline the relation of these
matters ta the legal issues.
What 1 have alreadv said establishes that radio-active substances are in-
evitably deposited on ~ustralian soi1 as a result of French atmospheric tests.
That debris will enter into the very bodies of, and externally surround, al1
members of the Australian oooulation. subiectina them to additional ionizine
radiation that is harmful doin to the skalles<dose. The only responsible
approach is to accept the principle, widely recognized, that there should be no
exposure to ionizing radiation from artificial sources without compensating
-e-. .. ... -.
It is Our submission, Mr. President, that in thesecircumstances thesovereignty
of Australia would be clearly infringed by the deposition upon Australian soi1
of radio-active substancesfrom further French tests in the Pacific. The relevant
aspect of sovereignty is ifs territorial aspect. Territorial sovereignty is the most
fundamental and elementarv conceDt of the law of international relations.
Au,trliiiJ is cntiilcd to msintdin and Io %sert her territori.il intcgrityIt\hnuld
he in no mjy obliged p3sbiicly 10~c.'cpt the littering by France of il\ \ail and
environment with man-made nuclear ~ollution. ~ending the Court's final
decision. It is not to the point that usi ira ilnotable to estimate the exact
degree of harm to every member of its population affected by the activity of
the French Government. This is a scientific impossibility. What is certain is
that this harm exists.
Only the Australian people, through their own elected representatives, are
entitled to decide what shall haooen on Australian soil. Australia is also entitled
to assert this claim becauseof ~ustralia's independent right 10determine what
acrs shall take place within ifs territory and, in particular, whether Australia
and its ~eoole shallbe ex~osedto radiation from artificial sources. It Dossesses
. .
tlii, right ofzholce hec~u,e itis an independent, ss\ercign Siate. One tif. indeed
the tirs! or. thc hÿii; prin~ipler or the IlniteJ $>lions Organi7liti<in set forth in
Arti;lç 2 of the Charter i$"the so\ereign equality of al1 ils Mcnibers". Only
Au~tralta i,sonipeteni IOdeterniinc the degrec of rijk of irra~tiation from man-
made riidid-ücti\c nu;lide.. \\hich itis prcparcd to aisepi. Australid's discretion ARGUMENT OF SENATOR MURPHY 183
States.mav assertin relation 10the DroDosedFrench testsin the Pacific. its riaht
-
to be free ?rom atmospheric nuclear weapon tests by any country.
1cannot, of course, speakfor other countries of the region. 1 think 1should
note at this staee the oresence in the Court of the re~resentatives of New
Zealand. They Gll be advancing their own arguments in ihe Nucleor Tesrrcase
instituted by them. 1 also note that Fiji has applied to intervene in these pro-
ceedingsand that the Court's decision~onils ~pplication will no doubt shortly
be given. Their presencereflects the widespread concern among South Pacific
States over the consequencesof continued atmospheric nuclear testing in the
region.
The Solicitor-General will develop further the legal arguments which 1 have
~resented. to that degree appropriate on this hearing. He will also indicate
àrguments ihat hustrüÏia wili ;ltimately advance, includingsubmissions relaiing
io infringement of the freedom of the high seasand of the superlacent airspace.
His argument will also develop the jurisdictional aspects, again to the extenl
necessaryat this stage of the proceedings.
Mr. President and Members of the Court, the Australian Government has
followed the procedures of this Court. It has put ils submissions and has come
to this Court prepared to deal with any arguments or submissions which might
be put against us in accordance with the procedures of the Court. Il does not
doubt that the Court will observe its procedures.
Australia appreciates that the conSiderations of due process will never be
absent from the mind of the Court. Neither the Court nor Australia should have
to deal with contentions advanced by a partv if not made in Court but irregu-
Idrly or outside the Couri. We submi; ihii st;ict adhercnre should be h3d io ;he
requlremenis lh3t prtoes m~st put thcir ciiw regularly bcfore the Couri and
thai. ifthcy f~il10appur. ihen thc Cuuri should no1rake notice ofïny blair-
ment thcy may makc ouiside the fram-work of the Court's establi\hed process.
This rule h3s been ü fund~menial one throughoui th? agesfur mîiniaining the
intrgriiy of1hejudici.d processai every level. \Ve irusi ihat the Court will make
clear thai il w~llnot txke suih siaiemenis into account.
1 needhïrdly add ihai if the Cuurt should feel. üfter having heïrd Our case.
that there is any point on which it wishes us to develop further argument we
should be very glad to give the Court whatever additional assistance we can.
Mr. President and Members of the Court, Australia has no1 resorted lightly
to the action here brought before you. We have ken moved by high consider-
ations of human welfare. It grieves us that France, a nation so often dis-
tinguished in the past by ils attachment to reason. justice and compassion,
should still contemplate action which subjects present and future generations
to the risk of premature, painful and grotesque forms of death and sickness.
Yet there is more involved here than the action of France. If this Court, the
highestjudicial tribunal yet evolved by man, doesno1interpose itself in the path
of further atmosoheric nuclear tesiin- bv.France. who~ ~ ~doubt that others.
no1yet armed wiih the weapon of holocaust, will conclude that they may follow
the French examde with legal impunity. And eachof them will add its shareto
the invisible but &alignant Cloud ihat overhangs the future of men everyu,here.
There are niany intcrcsted parties waiching theseprocceding%. IIwould heno
mererhetoric to remind you that one interest which cannot berepresentedisthat
of posterity. Yet, if unrepresented and silent, it must not be forgotten. The un-
born generations have a vital interest in theseproceedings. What you do or do
not do will have implications for them. One way or another, the decision you
aremoving towards will be historic, for il will affect thecourse of human history. ARGUMENT OF MR. ELLICOïT
COUNSEL FOR THE GOVERNMEN TF AUSTRALIA
hlr. ELLICOTT: .Mr President and hlembers uf the Court. In this speech
1 propose to deal \\ith thrre mïtters and in the follouing order.
1. 1shall deal further with the nature of Australia's caseaaainst France on
the merits. The basic facts relevant to ils caseand the basic propositions oflaw
in support of il havejust beenpresented by the Attorney-General but it may be
of assistanceto the court. havina thesematters in mind. to develo~ in areater
detail the questions of la\v'u~hich;rise in [hi, cïse This should alsu'be of some
a~ristanceto the Court in apprcciaiing the dire;t and closerelitionship betuecn
the provisional measuressought by ~ustralia and the substantive relief which
it seekson the merits.
2. 1shall put to the Court Australia's submissions in law asto why an order
for provisional measuresshould be made.
3. 1propose to deal with the basis of the Court's jurisdiction to hear this
case.
1 now oass to indicate brieflv the nature of Australia's com~laint in law
againsl France.
In ils Application, Australiaasks the Court to declare that the carrying out
bv France of further atmos~heric nuclear testsin the South Pacific Ocean is no1
consistent with the applicable rules of international law. Italso requests the
Court to order that the French Republic shall not carry out any further such
tests.
As the Court will be aware, the literature of international law has reflected a
wide range of arguments supporting the conclusion that atmospheric nuclear
testineisilleeal ininternational law.~t oneend of the swctrum arecontentions
to theeffecÏthat the use of nuclear weapons is unla&ful and that it follows
therefrom that the testing and possessionof such weapons is unlawful. At the
other end of the snectrum is an~aruumentwhich does no1 involve a considera-
lion ofthe legality ofthe useof nuclear weaponsbut restricts itselfto an assertion
that in any event atmospheric testing of nuclear devices is unlawful. It is to
this latter ar-ument that Australiadraws oarticular attention. It involves.
amongst other things, aconsideration of the law-creating effect of the Test Ban
Treaty of 1963read in coniunction with the resolutions of international organi-
zations..~~~en ado~7ed bvmubstantial ma~ ~>~ ~ ~~.alline for an end 10 nklear
testingin the atmosphere.Theseresolutions arenot dependentupon assumptions
regarding the illegality of any useof nuclear weapons but llow from the growing
concernof the international community to riduce or eliminate hazards 10
human health and unnecessary or unjustifiable sources of environmental
pollution.
The Court will readily cal110 mind the many resolutions of the United Na-
tions condemning nuclear testing in the atmosphere. Some of theseare set out
in Annexes 9 to 21 of the Australian request and have been referred to by the
Attornev-General, A verv recent exam~le of world concern with and condem-
nation of nuclear testingln the atmosp'hereis found in the work of the United
Nations Conference on the Human Environment held at Stockholm in June
1972.As the Court will seefrom Annex 19to the request for ~rovisional mea-
sures,resolution 3 (1) of that Conference bearsvery directly on the question of ARGUMENT OF MR. ELLICOTT 185
the legality of nuclear tests. Two very important points are made in the
Preamble: the first is that there is radio-active contamination of the environment
from nuclear weapons tests; the second is that al1 exposures of mankind to
radiation should be kept to the minimum possible and should be justified by
benefits that would otherwise not be obtained. On the basis of theseconsider-
ations. toaether with a referenceto the Partial Test Ban Treaty and others. the
resolution, first, condemned nuclear weapons tests, especially those carried
out in the atmosphere, and, second, called upon Statesto abandon any plans to
carrv out such tests.
~he concern so specifically demonstrated in this resolution is confirmed in
Principles 6,7 and 21 of the Declaration adopted at the same Conference.
Princiole 6 deals with the discharae of toxic substancesinto the environment.
~rincible 7 refers to the po~~utioiof the seas.
While these two principles provide evidence ofcommunity concern to elimi-
nate oollution of lhe environment by substances which are released by at-
mospheric nuclear tests, it is the third,-Principle 21, which is even more diiectly
pertinent-for this goes to the very centre of the problem in the present case.
"States have,in accordance with the Charter of the United Nations and
the principles of international law, the sovereiyrifilto exploit their own
reso"rcesnursuant to their own environmental Üolicies. and the rrsoon-
sibiliiy 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 naiional jurisdiction.(Emphasis added.)
1 shall presently be commenting upon the relevance of this Principle to the
assertion in this caseof those rights which are exclusive to Australia. At this
moment. however. 1 do no more than suaeest the sianificance of pronounce-
ments of this character asevidencing the evolution of arule of customary inter-
national law which prohibits State conduct tending towards pollution and the
creation of hazards to human health and the environment and in oarticular a
rule prohihiiing the conduct uf aimosptieric nuclear lests.
Thespeciiic funciion of ihe Siuckholni rcsolution and de:larations is that ihey
reflect what the community regardsasanacceptablestandard ofconducl in these
matters-and correlatively what the community regards as an unacceptable
standard. In view of the fact that the protection of human health and the
environment is a matter of which the international community has only rela-
tively recently become conscious, it stands to reason that the traditional
standards of State freedom to pursue activities which may aiïect them must
undergo somerestriction. This being so, the Court may well feel that the criteria
which normally govern the determination of the contents of customary inter-
national law are satisfied when the opinio juris of the vast majority of States is
evidenced in this form. Atmospheric nuclear testing is of course an activity
which has never ken acceptrd as tradifional or normal and has received uni-
versal condemnation. The emergenceofa rule of international law against it is
therefore not surorisina and indeed is inevitable.
The developmént of the law relating to the protection of the environment
from atmospheric nuclear testing is, 1 would respectfully suggest,one of those
developments analogous to the emergenceof the law of outer space of which
.ou.,Mr. President. . .ke in vour dissentine -oirion in the Nor111Seo Conii-
neriral Shrlfcase. And in relation to such developments you expressedthe view
(at p. 232) that "thecourt would.. .take cognizance of the birth of a new rule,
once the general practice States have pursued has crossed the threshold from
haphazard and discretionary action into the sphereof law". 186 NUCLEAR TESTS
The fact that these observations were made in a dissenting opinion does not,
1venture to submit, mean that they do not have the support of the Court as a
whole. They are not Io be read as inconsistent with what the Court itself then
said.
As the Court will immediately appreciate, legal considerations of the kind
set out give rise to rights which cati be invoked by any State. They are general
rights corresponding to the obligations ofa State which, in the language of the
Court in the BarceIonaTraction case are owed "towards the international com-
munity as a whole". These: "are the concern of al1States. In viewof the impor-
tance of the rights involved, al1 States can be held to have a legal interest in
their protection; they are obligations erga onrnes."
It is not necessary for present purposes to develop any further Australia's
reliance on a rule of international law ~rohibitina nuclear testina in the at-
mosphefe. Enough has, 1hope, been said;n generalterms to indicac the nature
and substance of the rule and how it has developed. There areother arguments
which the Australian Government invokes. Thev are in a sense more soecific
and would in themselves be sufficiently comprehensive and strong to kir the
whole weight of thecontention that theconduct by France ofatmospheric tests
violates Australia's rights in international law.
With your leave, itis to these argumentsthat 1should now briefly turn. They
are identified in headings(ii) and (iii)of paragraph 49 of the Application. They
involvetwo assertions. The first isthat fall-outfrom the French tests has violated
and will violate Australian sovereignty; the second is that the conduct of the'
tests, and the measures associated with them, involve a violation of the freedom
of the high seas.
As the Attorney-General has pointed out, one solid foundation lies on the
bedrock of Australian territorial sovereignty. The proposition that a State is
sovereian over its territorv is a common~lace of international law. It is re-
flected1 the emphasis which the Charter of the United Nations places upon
such concepts as territorial integrity and political independence. It has further-
more heen recognized in the jurisprudence of this very Court.
For thispurpose, 1doubt whether it is necessary to go beyond a reference to
one particular case.
In theCorfu Channel case, on the Merits, one of the two principal questions
which the Parties submitted to the Court was the legality of the so-called
Operation Retail. This occurred when, some lime after the mining of the Iwo
British destroyers which occasioned the main proceedings in the Court, the
British Navy carried out a minesweeping operation in Albanian territorial
waters. This was done without Albanian consent. In rejecting the various
grounds on which the British Government sought to justify its action the Court
said:
"Between indeoendent States. resDect for territorial sovereian-. is an
esseniial foundiiiion ofintcrn~iinniil'rclxtionsThe Couri recogni~eb thiit
the Albanian Go\ernment's complete failurr ii) carryoui 11sduiies iificr
the explosions, and the dilatory nature of its diplomatie notes, are ex-
tenuating circumstances for the action of the United Kingdom Govern-
ment. But to ensure respect for international law, of which it is the organ,
the Court must declare that the action of the British Navy constituted a
violation ofAlbanian sovereignty." (I.C.J. Reports 1949, p. 35.)
1 pause here to ask rhetorically whether there is any difference between Al-
banian sovereignty and Australian sovereignty; whether there is a difference
between the intrusion of naval vessels into the territory of another State which ARGUMENT OF MR. ELLICOTT 187
causes no damage, on the one hand, and, on the other, the deposit on the terri-
to- -of another State of radio-active fall-out which. for this Duruose alone. 1
shall assume not tu be dangerous. The answer is, of course,'that there is no
difierence: and as the former was a violation of territorial sovereignty so is the
latter. As was pointed out by the Attorney-General, the inevitable consequence
and therefore the extended consequence of French testing in the atmosphere is
the deposit on Australian soi1of radio-active material.
While the Corfu Channel case represents the clearest judicial acknowledge-
ment of the inviolability of territorial sovereignty, 1 should identify a material
respect in which it may be distinguished from the present case. In that case, the
violation of Albanian sovereignty was not associated with the use by the
United Kingdom of its own territory. No question was there raised regarding
the mutual rights and duties of two States in relation to the use of their terri-
tories. In the present context, however, it might be suggested that the tests
carried out on Mururoa Atoll represent nomore than a legitimate use by France
of territory under her sovereignty and that, accordingly, the situation must he
governed by the law governing the mutual conduct of neighbours, if that is a
correct description of the territorial relationship between Mururoa Atoll and
Australia. Of this 1shall have more to sav.
In broaching this aspect of the matter Ïdo not wish to be taken as accepting
the validity of the assumption upon which it rests-namely that Mururoa may
simply betreated like any other part of French territory. This is a matter on
which we reserve our position. One is, however, bound to ask whether there is
any rule of international law which permits a State by virtue of the use of its
territory tu infringe the sovereignty of another State. To answer this question
absolutely in the negative might be to go too far. At the same time, Australia
will contend that in the circumstances of this case, France's conduct infringes
the riehts of Australia. Thoueh it is inaouro~riate tu deveio~ this contention
fully 2 this moment, two eleients may beméntionedas relevant to it:
First, one may say that France simply has no right tu conduct atmospheric
nuclear tests. 1havëalreadv mentioned some of the considerations bearing on
ibis point. 1mdy perhapr béperniiitcd. ihi>ugh.to rs:dll the word\employed by
Jurlgs Jimincr de Arr'zhagdin the ih3pter uhi;li he :ontrtbutcd Io the .\lanual
of I~rrrr~rari~~~I.rloun "'1hs Constituent Elenicnis of Siate Responsibiliiy".
He spoke thus of the efiect of atomic radiation resulting from iuclear tests:
"It should not be included within the principle of risk, but under the
general principle of State responsibility for unlawful acts, since a State is
not entitled to conduct nuclear tests in its territory or on the high seas
wh~ ~ ca~ ~ ~am~ee on or to foreien States. If a nuclear test ~roduces
P~ll-ouibc)on<l th~~tcrrirorial liniiis-of the Sidtc condu;ting ii ~heSiaie
should hi ah.olutely Ii~blcun.ier the normal rulcr of Si~ie responsibiliiy."
The second factor relevant tu the infrinaement of Australia's rights lies in the
nature of the act and of the damage tu which it givesrise. The Court has already
heard some scientific detail about the tests. It is manifest that they constitute
an unusual. abnormal. non-natural and ultra-hazardous activity. Any analogy
draum hetueen ihcm :ind othcr u<c, <ifs St.irc's ierritury uhich niaytroublci
neighbour arc unhclpful hc.iuie the iIcgrccofJiilcren;c I\ srgrcar as Io îmouni
tu a difierence of kind. Nuclear tests are not comparableto the use of waters by
an upper riparian or tu the emission of noxious fumes by factories.They are an
activity sirigeneris by reason of their motivation, their sheer physical sire and
their potential consequences. The trespass to which they giverise is not transient
or short-lived; it is long-enduring. The damage which they cause is not always 188 NUCLEAR TESTS
immediate or ohvious: it issometimeslatent. comolex and difficult todistinguish
from damage from other causes.But the faci thai il instatistical damage-and
it rs statisti;ltl dam3ge-di~s no( make ilany ihe lessreal. Iris %,orth noting
arratn Principle 21 ol the Stuckholm Dechration uhich mlkes no concession
to the sovereign right of States to use their territory to cause damage to the
environment. The obligation of States is expressed absolutely and without
qualification:
"States have ... 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 nationaljurisdiction."
There isanother aspectof Australian sovereignty which is infringed by French
nuclear testinn in the atmosohere and this has also ken outlined bv the
~tturne~-Gen;ral. That is ~uïiralia's indepcndent right to dctermine uhai acts
shall take place u,ithin ils territory and In pariicular u,heiher Australia and ils
woole shall be exoosed to the eKects of ionizinrr radiation from artificial
Sou;ces.The ~ttorniy-General hasstressedthe importance of controlling radia-
tion becauseit is inherently harmful. He has also pointed to the universally
acceoted orinciole that there should be no additional exDosure of oeode or
terriiory fo radiation without a compensating benefit. hé right to decide this
rnust rest with each sovereign country. It alone can decide whether the benefit
to ils population will outweigh the risk of harm. French testsin the atmosphere
inevitahly expose the Australian people and territory to additional radiation.
Since Australia sees no benefit to it or its people from such exposure, the
threatened action of France is clearlv a threatened infrineement and usur~ation
of Australia's sovereign right to determine for its people whether they shall be
subjected to additional radiation and, if so, to what extent.This, in my Govern-
ment's respectful suhmission, would be a grave impairment of ifs sovereignty.
1 will not dwell further upon these points. They will be developed in the
Australian Memorial. In the meantime, the mention of them will serveto show
that the Australian Government is not unmindful of arguments which may be
raised against ifs case, though it places confidence in considerations such as
those just indicated.
Having spoken of the illegality of the French conduct in relation to Aus-
tralianterritorialsovereignty, itremainsfor me to saya word about that conduct
in relation to the freedom of the high seas.Australia is a party to the Geneva
Convention on the Hieh Seas. 1958. but France is not. Nonetheless. havine
regard to the generallyaccepted stat"s of that Convention as a codification O?
the law relating to the high seas, ifwill be convenient to follow its articles in
identifying those aspectsof the French tests which involve a violation of the
law of the sea.
The Court needs no reminding of the terms of Article 2 which names four
freedoms. Three are relevant here: freedom of navigation; freedom of fishing
and freedom to fly over the high seas.May 1 invite the Court's attention to the
map which forrns Annex I to the Application. The Court will observe that
around Hao and Mururoa there are small areaswhich bear the mark NTP I and
NTP 2. These are areas which are permanently prohihited to aircraft. They
extend beyond the territorial waters of Hao and Mururoa. In addition there
isacatee-.vof danrre-ouszo~ ~:a smaller but ~o~ethelesssubstantial one which
is dangerous io shipping and a very large one which is dangerou5 to aircrali.
Both thew dangerous zonescmbracc large areasof the high sesr. Paragrdph 45
of the ~ustralkn Application refers to-an incident in 1972when action was
taken by the French authorities to inhibit and interfere with the presenceof a ARGUMENT OF MR. ELLICGIT 189
foreign verscl on the high \cas, in an are3 designaicd a dangerou* 7one. How-
cwr. ir does not seem thai di ihis itagc c\iden:e of aciual interierende 1scalled
fur, When a Siaie purport, raidcil,ire areds i~fthe high jeas prohibited or dan-
gerou, thai 1%.in the e)es of iniern3iioiial Idw, a rulli;teniintcrfcrencc u,ith the
rights of others.
There is. in mv submission. no basis on which those interfe~en~ ~~ ~ ~ ~ ~ ~ ~ -~
justified.1 am, ofcourse, conscious of the fact that the high seasare free for the
useof all. Indeed this is expressly acknowledred-in the last sentenceof Article 2
of the High Seasconvention:
"These freedoms. and others which are recoznized bv the eeneral orin-
ciplcj oiinierniitional Idw. shdll ix exer2ired b;, al1~taÏes wi;h re<iso"able
regard io ihc interc\r\ (iiother States in their exercise of the freedom of
the high seas."
No doubt in due course the Court will be asked to decide which interest mus1
prevail in the Pacific, the French interest in the atmospheric testing of nuclear
weapons or the more peaceful interests of States in the right to freedom of
navigation and overflight.
Finally, before leaving the law relating to the use of the high seas,mention
may also be made of Article 25 of the High SeasConvention:
"(1) Every State shall take measures to prevent pollution of the seas
from the dumping of radio-active waste, taking in10 account any standards
and regulations which may be formulated by the competent international
organizations.
(2) All States shall co-o~erate with the comoetent international oreani-
zations in taking measures'for the prevention of pollution of the seas or air
space above, resulting from any activities with radio-active materials or
other harmful agents."
hlr. I'rc\idcni and Menibers of the Caiuri. rhis hrings nie IO ihe end of my
outlinc statenient <if the suh\ianii\e 13% applic.ible io the mcriii &I Iustralia'>
claim. In ms subnitssion ihis outline ,h<iuld suilice tn shuu ihe seriou, and ucll-
founded character of the Australian case in support of its contention that
French conduct of nuclear tests in the South Pacific Ocean is not consistent
with applicable rules of international law.
1no\\ propohc in dedl rrith the que\tiun ufpr<i\,iiional medsurer. In doing s<i
l \hall pui subniiirion\ iciihc C:,iuriiiiIO irijuriidiciion to la) doun su;h mca-
sures, and as to the arounds uDon which it should exercise that iurisdiction. 1
shall also indicate t6 the ~ou;t why these grounds are satisfied in this case.
There are three headings under which 1 propose to address my submissions.
First, the matter will be considered by reference to general international law;
second, by reference to the General Act, Article 33; and third, by reference to
Article 41 of the Statute.
1 begin with the position under general international law. When interpreting
the text of the General Act and the Statute dealing specifically with provisional
measures, il is relevant to recall the existence under customary international
law of an inherent power in international tribunals to indicate such measures,
and to bear in mind the purpose for which such an inherent power exists. For,
as will be seen, there is a risk that by overlooking the customary origins of the
expresspower more stringent requirements for the exerciseof the Court's power
may be established than are truly called for. The point was simply and clearly
made by the late Judge Hudson in his survey entitled lnternarionalTribunals
Past ondFuture. 1944. He said:190 NUCLEAR TESTS
"While a proceeding is pending before an international tribunal, good
faith would seem to reauire that neither of the ~arties should attempt to
alter the situation existing in such a way as to add to the difficultiesof the
tribunal." (P. 96.)
He then quoted the passage from the Elecrriciry Company of Sofio and
Bulgaria case in which the Permanent Court laid it down as a "principle uni-
versally acce~ted by international tribunals" that the parties "must abstain
from iny rniasure Eapable of c\ercisinp a prejudiii31 elleci in regard IO the
cxecuiion ai the dccision IO be piben and, in generdl. noi io allow an). step uf
anv kind io be taken which niia-t aa--avate or extend the diipuie". Judge Iiud-
son saw the numerous provisions empowering tribunal~to take interim action
for the protection of one or .more of the parties as a reinforcement of this
principle.
This principle has ken recalled in more recent times by the Third Chamber
of the Arbitral Commission on Property Rights and Interests in Germany. It
said: "We have no doubt ofour inherent power to issue such orders as may be
necessary to conserve the respective rights of the parties" (ILR, 1958-1, Vol.
25, at p. 523).
It is scarcely necessary for me to express specifically the applications of this
general principle in the present case. It is obvious that good faith and the
conservation of the rights of the Parties demand that further atmospheric
testin- should cease orior to the iudament of the Court. For if such tests take
place, it is manifest ihat the ver; thing will have happened to prevent which
Australia has sought the protection of the Court in the present case.
1nass now to the next headina under which 1make mv submissions re~ardina
the.laying-down of provisionaÏmeasures: the Generai Act itself. In the ne;
part of my speech 1shall develop the contention that the General Act constitutes
ihe orin$oal basis for the exercise bv the Court of iurisdiction in this case.
~owever,'the reference to the Generai Act goes furtbër than the establishment
of the Court's jurisdiction. For once the Court is actingunderchapter II of the
General Act, it isalso entitled, and we would submit, bound to apply the rele-
vant parts of Chapter IV. These include Article 33.
The first paragraph of this Article provides:
"1. In al1cases where a dispute forms the object of arbitration or judicial
proceedings, and particularly if the question on which the parties diKer
~ ~ ~ -~ ~ ~~ ~ ~s~alreadv committed or on the noint of beine committed.
the Permanent Court of International Justice, acting in accordance with
Article41 of its Statute, or the ArbitralTribunal. shall lay down within the
shortest possible time the provisional measures to be adopted. The parties
to the dispute shall be bound to accept such measures."
The rzrond p~r.igr.iph relates td pri~ceeding,hefore a Cc?n;iliaiion Commir-
siùn and ii n9t rclc\ani The third pdrsgr~ph pri>vides:
"The parties undertake to abstain from al1 measures likely to react
prejudicially upon the execution of thejudicial or arbitral decision or upon
thearrangements proposed bytheConciliation Commission and, in general,
to abstain from any sort of action whatsoever which may aggravate or
extend the dispute."
With the leave of the Court, 1would now comment upon certain features of
this Article. and in this connection. Mr. President and Members of the Court,
you may pérhapsfind it more convenient to have before you the texts of both
the General Act and the Statute of the Court. ARGUMENT OF MR. ELLICOTI 191
Fir\t. one mu$[ obser\e th31 the prorision$ of Article 33 of the Ceneriil Act
are no1 in e\ery respect identical uiih thuse of Article 41 of thc Statute of the
Court. Ariclc 33 (11 is r>srticulirls directcdIO a situation where the auestion
on which the partiesdiffer arises o;t of acts already committed or on the point
of king committed and provides for what the Court should do in those
circumstances. Article 41 is more een-ral in ils terms and describes a eene-al
power in the Court IO inJicate prorisional mcbsures to prclervc the respccti\,c
rightsofeiiher party ifil iunsidcrs theiiriumstüncesso rcquire. Thedcscri~iion
which Article 41 (1) of the Statute contains of the obiective of the measures
"to preserve the respective rights of the parties" is re~ected in Article 33 (3)
of the General Act which requires the parties to abstain from measures likely
to react ~reiudiciall. u.on the execution of the iudicial decision.
A scconcirrspeit in uhich ,\rticle 33 (1) of the Generel Act is not ideniical
witli Article 41 (1) of the Statute is in the Ianguage cniplo)ed to dcscrihe uhdt
thc Court is tu do. Article 33 (11of the Generül Aci usesmlinrlatorv Ianeuacï
It saysthe Court slrallay downprovisional measuresif it thinks the.cond;ctof
a party is likely to react prejudicially upon the execution of ajudgment. Article
41 (1) of the Statute of the Court, on the other hand, says that the Court may,
if il considers that circumstances so require, indicate appropriate provisional
measures.
It is also appropriate to note the speedof action required of the Court under
Article 33 (1). The Court shall lay down "within the shortest possible time"
the provisional measures to he adopted. No comparable express prescription
a..ars in Article 41 of the Statute.
Il uill he notcd huurtcr thit Article 33(if the General Act contains a speciiic
rcfercn~e IO Arii<le 41 oi the Stdtutï. le. the Statute of the Permanent Court
which was in substance identical with Article 41 of the Statute of this Court.
What is the function of the introduction in Article 33 of the words "acting in
accordance with Article 41 of its Statute"?
It is Our submission that althour- Article 41 in lerms onlv confers a oow.~. .
il ronfcrs on thc CourtJ judiiial Jis~retion u,hich. in appropriate iircumstanies.
ihc C:(iuri is hound tu eiercise ai the request ufan injured Party1115u ha1niight
be called a oower couoled with a duÏv. Le.. a duiv to exercise the oower-in
appropriate~ircumsta~ces. Thus if a pa;iy ha; committedor is about 1; commit
acts which are likely to orejudice the rinhts of another Darty, the Court in the
exerciseof ils power under Article 41 should, assoon aspossible, indicate those
provisional measureswhich the Court thinks appropriate to preserve the latter
party's rights.
So regarded, Article 33 would merely be spelling out in preciseterms the duty
which was upon the Permanent Court and, we suhmit, is upon this Court under
Article 41, when, pending the final hearing, acts have been or are about to be
committed by one party to the detriment ofanother.
Indeed, Article 66, paragraph 2, of the Rules of Court is consistent with
this view of Article 41 of the Statute for, after according a request for interim
measures ~rioritv over al1 other cases. it then exoresslv declares that "the
decision thereonmhall be treated as a matter of ur&ncy'< The practice of the
Court is also consistent with this view for ithas always acted, as it has in this
case. exwditiouslv mon the reauest for orovisional measures.
tinally,I shi,ul-d rccall the ejiress pro;.ision in Artic33 (Il of the General
As1 that "the parties io the dispute \hall be bound IO accîpt wch mïaxures",
that is to sav. the orovisional measureslaid down bv the Court. Article 41 of the
Statute of thé CO& is silent upon this point. ~heréare, however, authorities of
the rank of the late Judge Hudson who have expressed the view that notwith-192 NUCLEAR TESTS
standing this silence, interim measuresindicated under Article 41 of the Statute
are binding upon the parties; and it may well be that the point is no longer one
ooen to doubt. So considered. Article 33 of the General Act is aeain s~elline out
theoblig~tion \,hich is upon:; pari). to uhom pro\isionxI nicasurejareindi~atcd
under Article 41 That is io sa)., ihc pari) is bound io aszept them If ihis is not
the correct view of Article 41. the exoress lan-uae- of Article 33 of the General
Act puts the matter beyond controve>sy in a casein which provisional measures
are laid down under that Article.
If Our submission is accepted that Article 41 of the Statute placed upon the
Court and the parties the sameduties or obligations asare spelled out in Article
33 (1) of 'ie General Act, it is not necessary to rely upon Article 33 (1) as a
seoarate .sis for the Court's iurisdiction to lav down urovisional measures.
1f;on the other hand, it is no1accepted, Article 3j (1) is a s'pecialprovision upon
which the Court is entitled to baseils jurisdiction in thiscase. and under which
France would be bound to accept such measures.
The latter point, mainly that it would be one under which France would be
bound to accept such measures. is one upon which the Australian Government
is obliced tu lav.emoha.is. bearine in mind the circumstances which have
developed in this case. One can on6 conclude from the attitude expressed by
the French Government in recent statements made on ils behalf. from the letter
addressedby il to this Court and from ils failure Io appear here, that it may not
treat an indication of provisional or interim measuresas binding on it. For this
reason, the Australian Government would ask thal the Court will seefit in any
Order which il may make on provisional measuresto recall France's obligation
to accept them in the clear terms of the language of the last sentenceof Article
33 (1) and to remind France of its obligation under Article 33 (3). This my
Government would ask whether the Court decided to found ils jurisdiction to
make such Order on Article 33 of the General Act or Article 41 of the Statute.
1have submitted that Article 33 (1) of the General Act has no wider a~~lica-
tion than Article 41 of this court's Statute. If this is not sa, it is necesiàry to
consider it separately, and this 1now propose to do on the assumption that Our
main submission is not correct
hl) firsi çuhmisçion iithxi theetenis h3t.eoccurrcd \rhicli in pîriicular hring
Ariiile 33 inlu upcr;itiuii, ihdi 1%)riy. the qucçtion on uhich the p~riiei d;rïcr
arises out of acts on the oint of beinc committed
There are three distinci elements inthis submission. First, the act is further
atmospheric nuclear testing. Second, ilis about ta take place. Of this there can
beno doubt. The FrenchGovernment has ken invited to undertake that testing
-
will no! take place. It ha\ rcfubcd io gi\e the undcrixking A$ appe3rs from
parÿgraph IX of Australiî'\ Application. ihe French Go\crnmcnt on 2 hlay this
year indicated that recardless of the orotests made by Australia and other
countrics itdid no1cn\~sîgc an). niodificxtion or canccll~tion of ils programme
of nuclcîr icsting ai originîlly plzinncd. This plan uould extend tcsiing 31 Icast
uniil 1975. In thcse circumsiÿnce\. ii cîn hardls be suo~oscd ihat the French
Government could say that further testing is noiabout iotake place. Third, the
legality of this further testing is the question on which the Parties differ. Again.
this is not a point on which there can any longer exist doubt. The French
Goi,ernnicnt has bccn infornicd of the princ/pal grounils un uhi-li the Gotcrn.
meni of Ausirîlid chillcngcs tlic Icgalii) of ihc cuntinuance of ihc tcsis. The
French Government doesnot accept thevalidityofthosegrounds. It insists uoon
le-.litv of ils conduct. Hence the diiierence. ihe disuu.e b~ ~een the parties.
My se~.iindsuhmiision in \upporl of ihe iieplicaiion of Arti~le 33 is that the
test Io be applied 11,declde whethcr 3n aci uhich is on ihc point of king com- ARGUMENT OF MR. ELLICOTT . 193
mitted should be nrohihited bv orovisional measures is reflected in the third
paragraph of ~rticie 33.This test is whether theact is likely to react prejudicially
upon the execution of thejudicial decision. Strangely enough, the duty estab-
lished by the first paragraph to indicate provisional measuresis not, in the text,
expressly related to the circumstancesdealt with in the third paragraph. But it
would run counter to the senseof the Article, read asa whole, to suggestthat the
identification of the acts to be made the subiect of orovisional measures under
the first paragraphshould be governed by criieria other than those setout in the
third paragraph. Later in my suhmission 1 will deal with the tests applicable
when the Court is acting pursuant to Article 41. It may indeed be thoÜght that
those tests are really no different in substanceto those which 1 have submitted
apply in relation to Article 33.
This. of course. is another reason for adontin. ou- main submission in
relation to ~rticle.33. However at the moment my argument is confined to the
application of Article 33 of the General Act.
MV next contention on the aoolication of this Article is that the conduct of
furtlkx atmospheric tests wouid justify the Court laying down provisional
measures under Article 33. Such tests would clearly be likely to react prejudi-
ciallv unon the execution of the Court's iudnment and thev would certainlv
aggravaie the dispute. At this point 1must rnvife the Court torecal1 the termsin
which the Government of Australia has framed its final conclusions in the
Application. The Government of Australia has asked the Court to do two
things: the first is adjudge and declarethat the conduct of further atmospheric
nuclear testsiscontrary ta internationallaw and to Australia's rights; the second
is to order France to refrain from further atmospheric nuclear tests.
The Court will, 1am sure, bear with me if 1 repeat something which has al-
already been said. The Attorney-General has dealt at some length with the
effectsof atmospheric nuclear testing and there is no needfor nie to repeat what
he said. But one stark and terrible fact is that the efiects of nuclear testing are
irreversible. This is so even in relation to the closure of the high seasand al1
that is associated with it. Once a person has beenprevented from going about
his businesson or over the high seas,that interference cannot be reversed. In
some instances ifmay perhaps be remedied by the payment of damages. But
where the activitv is oursued for other than commercial reasons. damagesare
~, ~. ~ ~~ -
net to the point ai dll. An absoluie righi lias bccn inrringcd \\,hich no pc;unidr?
compensaiion :Ln mend. 1urihcrmors, the laci thai in ihis p31l uf the uorld
relativelv few shios and aircraft mi-ht be afiected is not to the nointIt is with
the ndturc UT clic Frcnch action ürid ifs elte~t on rights th.d uï are ~on~erncd.
Inicrnütionül Iüw does noi refuse ri>cncon1p;issa di>putc mcrcly bccau\r the
rights of a few are involved or becausethe casedoesnot involve matters of great
moment between States. The case of the derelict prau named The CostaRica
Packel (Moore's Internalionul Arbilrations, Vol. V, p. 4948), and the case of
Savarkar (Scott. HaprreCourt Reoorls (1916). o. 276) the Indian who escamd
from detention on a~ritish ship which stoppëdat ~arseilles en route to lndia,
demonstrate the willingness of Statesand international tribunals to uphold the
anolication of the ~rincioles of international law even to eoisodes relativelr
minor when comp&ed w'ith the interests at stake in the preient proceedings.
It is therefore ap~ropriate to assert the point of principle which is involved in
even a temn.rarv~,nterference with two of the main elements of the freedom of
the high seas,namely the right to navigate freely and the right to fly over the
high seas.And if the ooint oforincioleis validly raised,there is equally substance
in the view that the duty to respectthe freedom of the seasis the duty to refrain
from interference, not the right to interfere subject to payment of damages.194 NUCLEAR TESTS
The third element in that freedom is, as already stated, freedom of fishing.
Bath in and around the areas declared hv France in the Dastas dangerous. na-
tionalr oi'all Siaies. Aurtrlilia included, aie entiiled ta rakc fish \vhiÏe a tempo-
rary pre\,ention of aiiudl lijhing nia). be no more-but rqulilly nc less-beriour
t~ ~~~~temoorarv inhibition of frr~doni to sailand 11.. he seriilus cfleci to \\hich
radiuacl~vc fall-OUIniay have upon the m;irincezology cannot be ignorcd. E\en
if the precise exteiii uf this eRéctshould be a matier of contro\crr).. ihen it is
beyond the power of France ta remedy or reverse that effectifjudgment is given
againît it in these proceedings.
However, the infringement of the freedom of the seas isonly one aspect of the
Australian case.
The Court rose af5.55 p.m ARGUMENT OF MR. ELLlCOTI
SECOND PUBLIC SITTING (22 V 73, 10 am.)
Prese~tt:[Seesitting of 21 V 73.1
Mr. ELLICOTT: Mr. President and Members of the Court. When the Court
adjourned last evening 1 was developing my submission that the threatened
conduct of further atmosoheric tests by the French Government would justify
the Court layingdown prbvisional rneaiures, under Article 33. I developed th&
in relation ta the infringement of the freedorn of the high seas. However, the
infringement of the freedom of the seasis only one aspectof the Australian case.
A principal feature of the Australian complaint is that radio-active fall-out,
occasioned by the French tests, has ken deposited upon Australian soi1and
will be deoosited there aeain bv future tests.In the recent talks between French
and ~ustialian scientists-the fact that previous French testshad causedfall-out
over Australian territory and that the Australian population had received
ad~ ~ ~ ~ ~radiation as aresult thereof was conceded bv the French scientists.
There can be no doubt that if France continues ifs teits there will be further
fall-out over Australia and further radiation received by its population. The
hazard which that fall-out will pose ta Our population is not possible to fore-
tell, not only becauseof the inherent uncertainties as to the precise effect of
radiation, but also becauseFrance hasrefused to give any information asto the
~ ~ ~ ~ ~d ~ ,~-~of the ~ ~iceswhich it oro.oses.to exolode and the vears over
which thcir tests will continue. l'hcrc are, in Our submissiun. four a\\umpiions
uhich the Court isentiilçd to and ihould m~kc for the purpi~se~olihisAppli;a- ~ ~
tion for provisional measures:
1. That France's present intention is to continue testing in the atrnosphere and
that this testing may continue beyond 1975;
2. that those tests will lead to radio-active fall-out on and over Australian
territory leading to additional radiation to the Australian population;
3. that the volume of fall-out and radiation could be greater than that resulting
from previous tests;
4. that there is a real risk that serious harm could be suffered by Australia and
its population as a result of further tests.
Now if, as 1 havesubmitted, Australia possesses.asaspectsof its sovereignty,
territorial integrity and the right to determine what acts shall take place within
its territorv fo; which itseeksiudicial recoenition and orotection. one cames to
thequesiion uhciher thecrite;iii for the a&licaiion of~riicle 33ofihe Gcneral
Act are siitisfied. These criteria are. as 1 ha\e alrcady subm~ttedto the Court,
those identified in Article 33 (3) Thus. one ÿsks. is lurther atmosphcric nuclear
testing. uhich eten France accepts will lcad to some radio-actii~e depo5it iin
Austriilian soil. likely to rcaci oreiudiciiilly upon the e~ccuiion ol the Court's
decision? The answe; is self-evfdentlv in the affirmative
Once the testing has taken place, the violation of Australia's territorial inte-
arity is inevitable. And once the violation hasoccurred, itcannot bewithdrawn.
-~~~~~~~~,.~~~ethe ~es~~~e-astaken ola.e.Aus.ralia's rieht -o determine whether
Australia and its people are to be exposed to the effects of artificial ionizing
radiation is frustrated and impaired in an essential respect.Once frustrated and
impaired ifcannot be restored. Consequently, if the rights of the plaintiff State
are adequately to be preserved, the need for a provisional measure prohibiting 196 NUCLEAR TESTS
French atmosuheric testsin the period urior to iudament is inescaoable. Further
testing would anticipate ajudgment of ihe ~ouit in~rance's favo;r and thereby
react prejudicially upon the execution of a judgment in Australia's favour.
~learG enough, to use the words of Article 33 (3), it would also aggravate the
dispute.
And so 1 come to my final submission on the operation of Article 33. Itis
that once it has ken shown that circumstances exist which warrant the laying-
down of provisional measures,then the Court is under a positive duty to pre-
scribe appropriate measures.It does not possessa discretion. The language of
the first sentenceof Article 33 is mandatory. The Court "shall lay down within
the shortest possible time the provisional measuresto be adopted".
Mr. President and Members of the Court: 1now propose to present Austra-
lia's submissions as to the a~~licabilitr of Article 41 of the Court's Statute. In
dealing with Article 33, 1 haGealreadr indicated Our first submission, namely
that although Article 41 is no1 cas1 in mandatory terms, the power which it
reoosesin the Court is one which the Court is bound to exerciseat the reauest
ois party in appropriate circumstances. Thus, if one party 10a dispute pendhg
before the Court is about ta commit an act which could prejudice the rights
in issueof the other party, the Court, in exerciseof ilspower under Article 41,
is bound to consider the matter with a senseof urgency and ta indicate the
provisional measures, if any, which il considers appropriate to preserve the
rights of the party likely 10 be injured.
Of course in this case,so far as the Court's action is concerned, this is not a
point of any significance, for the Court is acting with a real senseof urgency.
The significance of the pointis in determining whether Article 33 of the General
Act adds anything to what may be implicit in Article 41. We have submitted
that it does not but that, if il does, Article 33 provides a sound basis in this
case for the Court's jurisdiction to lay down provisional measures.Neverthe-
less, for some reason-perhaps the soundness of Our submission as to the
effect of Article 41-the Court might prefer to test its power to indicate
provisional measuresupon Article 41. Therefore it may be of assistanceto the
Court to examine Article 41 and ils relevance to this case.
For thispurpose, 1 propose 10refer in a little detail to the two casesin which
the present Court lias made Orders indicating interim measuresof protection.
They are the Angle-IrairianOil Co. caseand the FisheriesJiiris~lic~iocnase.
It may be helpful if 1 divide my examination into two parts. In the first, 1
propose to identify the formal statement by the Court of the pre-conditions
for the indication of interim measures. In the second, 1 shall summarize the
effect of the arguments and evidence which were presented to the Court and
accepted by it as meeting theseconditions.
Turning first ta the standard prescribed in the Atrglo-lrairianOil Co. case,
one finds the followina statement:
.
"Whereas the object of interim measuresof protection provided for in
the Statute is to preserve the respective rights of the Parties pending the
decision of the Court, and whereas.. . it follows that the Court must be
concerned ta preserve by such measures the rights which may be subse-
quently adjudged by the Court to belong either ta the Applicant or ta the
Respondent." fI.C.3. Reports1951, p. 93.)
The test employed in the Fisl~eries Jurisdictiotrcase(1972) was expressedin
the followin- terms:
"21. Whereas the right of the Court ta indicate provisional measuresas
provided for in Article 41 of the Statute has as its object ta preserve the ARGUMENT OF MR. ELLICOTT 197
resoectiveriahts of the oarties oending the decision of the Court. and ore-
su~posesth& irreparable prejidice sLould not be caused to rights wiich
are the subject of dispute in judicial proceedings and that the Court's
iudament should not be anticioated hv reason of anv initiative reeardine
. - - -
the measureswhich are in issue;
22. Whereasthe immediateimplementation by Iceland of its Regulations
would, by anticipating the Court's judgment, prejudice the rights claimed
by the United Kingdom and affect the possibility of their full restoration
in the event of ajudgment in its favour." (I.C.J. Reports 1972, p. 16.)
In short, one finds in the Anglo-IranianOil Co.casethat provisional measures
are intended to preservethe rights which may be suhsequently adjudged by the
Court to helone.-o either oa.tv. .n the FisheriesJurisdictioncasethere is added
the consiilcrlition thüt irrcp~r~blc prejuJtx jhould not bc zaused IO the righis
iihish arc thc subjcci of the dispute. The trord "irrcp~rablc" is not repeated in
the second oa,aera-. of the court's statement. and the imoact of that auali- .~ ~
fiaifion i\ ,igniliz:inil)diminishcd uhcn the court spukr'simply of ceriüin
I~eland!; ;<inrluci th~t uould ".~iTc;t the po\,ihility of their full rcsiorüiion
lrhat is the f~ll rcsioraiion of the Uniicd Kinrd-m's tishinr ri--..1 in thc e\,eni
of a judgment in its favour".
In order to ascertain more exactly the requirements laid down by the Court,
it is now necessaryto turn to the secondpart of thisexamination, aconsideration
of the material and arguments which were actually deployed by the applicants
in these two cases.
In the Anglo-Iranian Oil Co. case the United Kingdom, in effect, requested
the Court to indicate that the Iranian Government should continue to permit
the Anglo-Iranian Oil Company to carry on its operations as in the period
before the enactment of the nationalization law. The Court. in its Order of
5 July 1951,met this requestand added to it a suggestionthat the Parties should
by agreement establish a Board of Supervision which would, amongst other
thines. arranee that the revenue of the Comoanv in excessof its needsfor the
maiit&anceof operations should he paid to a Stakeholder.
It is. oerhaps. important to note that the standard which the British Govern-
ment set itself to meet was that laid down by the Permanent Court in the case
of the Electricity Companyof Sofiaand Bulgaria in thesewords:
"The parties to a casemust abstain from any measure capable of exer-
cising a prejudicial effect in regard to the execution of the decision to be
given and, in general, not allow any step of any kind to be taken which
might aggravate or entend the dispute." (P.C.I.J., Series AIE, No. 79,
p. 199.)
It is also important to note in passing that the text adopted in that case
reflects the language of Article 33 (3) of the General Act to which we have
already referred.
An analysis of the evidenceand argument put forward by the British Govern-
~ ~ ~ ~ ~~~ -~~ it.~s ~ ~ ~~ted. that there was nothine in the Iranian action
which could not be remedied io pecuniary terms. ~onGheless, and here is the
ooint of imoortance. the Court found in the oreiudice relied upon by the British
6-v~r~ ~ ~ ~ ~uff~ ~en~ basisfor an indication-of orovisional measureswhich.
in effect, called upon the Iranian Government to suspend entirely the appli-
cation of its NationalizationLaw until after the Court's judgment.
The Court's Order in the FisheriesJurisdictio~icase is open to the same
analysis. Again the evidenceand argument put forward on behalf of the United 198 NUCLEAR TESTS
Kingdom and the Federal Republic of Germany will show that there was really
noilLingin the iicms of prejudice lisied hy the Cniied Kinedom and ~crman;
u,hi;h coulù no[ hxve been remedicd b) the pasment of diimages Yei. and Iicre
again ir the rigniiicant pi>int. the Court did net conrider thai ihis uliimdie
possibility of remedying the wrong by damages deprived the consequences which
would have been suffered by the applicants of the quality of being "irreparable
prejudice" in the sense attached to that term by the Court.
This analysis, which of course does not cover al1judicial decisions on this
subject rnay be summarized as follows: in the Anglo-IranianOil Co. case the
Court considered that in exercise of itsjurisdiction under Article 41, the Court
must be concerned to preserve the rights which it may suhsequently adjudge
to belong to either Party. In the Fisheries Jurisdictioncase the Court thought
that Article 41 presuvposed two things: first that irreparable preiudice should
not be caused ta righÏs which are thésubject of dispute in legaÏproceedings;
and second that the Court's judgment should not be anticipated by reason of
anv initiative regardina the Tcelandic measures which were an issue there. In
neiiher aise did ~heC'oiri dccline IO Icidoun inicrtni me.isurei e\en rhough it
appcdr thai thc prejudicethre~tened might haie been conipensdied bs daniages.
What the Court wis concerned about was the prejudice to the rights of the
Parties which, because they could not be fully restored in the event of a fa-
vourable judgment for the plaintiff, appears to have been regarded in the
FisheriesJurisdicrioncase as "irreparable".
In the FisheriesJurisdictioncase the immediate implementation of Iceland's
regulations by anticipating the Court's judgment would prejudice the rights
claimed hy the United Kingdom and the Federal Republic of Germany and
affect the possibility of their full restoration in the event of a judgment in their
favour.
In the Electricitv Coni~anvof Sofia and Bulxariacase the Court rexarded
Article 41 of the Statut; of the Permanent court as applying a universally
accepted proposition that parties fo a case musi abstain from any measure
capable of exercising a prejudicial effect in regard to the execution of the de-
cision to be given in the case and should not allow any step which might ag-
gravate or extend this dispute.
Mr. President. in the l-aht of this analvsis it issubmitted that the Court in the
excrcise of iis pciuers undcr ,lrri<lc 41 should indiiùie pro\isional meiisiires
whçnever 11 is saii>fied thxi acis threltened by one pùrty nill anticipate the
C'ouri'siuJamcnt. ~reiudicc ihe rizhis of.in~iiher wris:ind 3iI'e.xthe iiosribilitv
of their-fulirestoration in the event of a favourahle judgment. Tt isiubmitted
that this formulation of the test adequately expresses the intention behind
Article 41 and it is generally consistent with the tests adopted by the Permanent
Court and in Article 33 of the General Act. It is clear that on occasions the
words "irreparable prejudice" have been used by the Court as part of the test.
However. those words do not mean the same as notable to be com~ensated bv
damages.'~n analysis of the two cases 1have referred to shows this: The woris
"irreparable prejudice" are used in relation to rights and so understood are
consistent with the~f~-~ulation of the test 1 have submitted.
It is now appropriate for me to return once more to the prejudice which
Australia would suffer if France were to continue further atmospheric nuclear
testinx oending the iudsment of the Court in this case. 1have alreadv develooed
the p&t at some iength in relation to my submissions regarding~rticle'33.
What 1 said there is noless applicable in the context of Article 41, whether it
bears the construction 1 sought to place upon it or not. Clearly the Court's
judgment would be anticipated. The rights of Australia would be prejudiced ARGUMENT OF MR. ELLICOlT 199
in the manner 1 have already discussed and, because of the nature of radiation,
it would be impossible to restore Australia's rights in the event of a favourable
judgment.
However, there are certain aspects which it is reasonable to recall briefly.
The first is the eiïect of radio-active fall-out on Australian soil. One matter in
issue here is Australia's right to territorial integrity and her right absolutely to
determine t'orherself uhaÏsubstances enicr herÏerritory. It isof course conceiv-
able that a State. when il \iolates the territory of another, may makç suitable
satisfaction by payment of damages. But that cannot be the case where one
State so to speak scatters over the whole surface of another a fine and irre-
movable dust of which the consequences cannot be foretold. Such a situation
falls as fullv within the Court's conce~tion of "irrenarable" or "irremediable"
prejudice ai ilis possible10go. This ubuld hesoetin if the radio-active lall-out
isinnocent. When ilisnonious inany degree whatsuever. the Court isconfronted
bv an a fortioricase
.~his ipprodch to the matter appears even more fullyjustitied when it is borne
in mind th31 the Court is no1 herr fdced wiih an inherently dangerous activity
nursued for the eeneral benefit of mankind. This is not a casewhere a tat te
is experimentingwith potentially dangerous chemicals in order, let us say, to
develop a universally valuable pesticide or fertilizer. It is not even a case of a
State using nuclear devices fo; peaceful purposes. The Court has before it a
situation in which the testing is taking place for selfish and limited purposes.
Itis for this reason that 1have not thought it necessary to examine before the
Court the situations in which a State might under existing law have to accept
some intrusion upon its territorial sovereignty as the corollary of the lawful
exercise by a neighbour of rights arising from the sovereignty of the latter.
1have not pursued this examination because it is totally irrelevant in this case.
This is, no doubt, so apparent to the Court that 1need say no more about it.
To conclude this part of my address 1would sim~lysubmit that, for the rea-
sons I have given. the Court clearly has competence icting under Article 33(1)
ofihe Gcneral Act or Article 41 of the Statute to lay down provisional measures
in this sasr. and that the ground, for Joing so are suRcicntly establishcd. I also
submit that the appropriate pro\,isional measure is that set out ai the end oi
Ausiralid's request. namely thai the French Go\,ernment should deiisi from any
further atmospheric nuclear tests pending the judgment of the Court in this
case.
MI. President and Members of the Court, 1want now to deal with the juris-
diction of the Court to hear and determine this case.
Strictly speakinp. at this stage of the case the qucstion of the Court's juris-
diction isno1really in issue. There ha,, as the Court willrecall, even been a case.
the Attglo-lruniun011Co. case. in which 31 n stage following the indication of
interim measurer. the Court held that itdid no1 possess jurisdiction to procecd
10 3 consideraiion of the meriis. This case illustrates the amplitude of the power
which the Court Dossessesfor the indication of ~rovisional measures without
determining its uitimate jurisdiction on the merits.
An even stronger example is found in the Interhandel case. There the Court
considered a request for interim measures without examininn the question of
jurisdiction, notwithstanding the fact that the defendant tat treiied at that
stage a preliminary objection and sought to make an issue of the Court's
competence. It may be noted that the Court reached this decision even thouah -
there was, on one biew, a manifest absence of jurisdiction on the merits.
In the Fisherieslurisdicrion case the Court for the first time expressly stated
the test which it would apply. It said:200 NUCLEAR TESTS
"Whereas on a request for provisional measures the Court need not,
before indicating them, finally satisfy itself that it has jurisdiction on the
merits of the case,yet it ought not to act under Article 41 of the Statute if
the absenceofjurisdiction on the merits is manifest." (I.C.J. Reports 1972,
p. 15.)
The Court elaborated upon this condition by saying subsequently that the
relevant instrument in that caseappeared "prima facie to afford a possible basis
on whicb the jurisdiction of the Court might be defined", which of course is
another way, with respect, of saying the same thing, Le., the absence of juris-
diction on the merits is not manifest.
The Court thus expressed its views in that case in two ways, and those 1
have just elaborated. Australia has approached this case on the basis that the
standard to be applied is the sameas that employed in the FisheriesJurisdicfion
case. It has done so for two reasons. One is that it is natural that the Court
should adhere to a formula and a standard crystallized, stated and applied less
than 12 months aeo.
Llic ciihcr rea,ui is ihsifthe Codri iierc to appl, a haghçrsiandard. uhich
would of courre ini.ol\c itdistinct çlement oi no\eliy and in erfcit a rc\,iiiont'
the Court's earlier attitude. such a chang- would obscure the line between the
proccss nf indiaiiing pra\iiionlilmcdsuresof prolcction and the more suhstan-
lia1 tîsk (>fdetcrniininr, \iheihcr ihe Cuuri a;tually possehrçsjuriidiciion.Thi>
is a distinction which the Court has hitherto clearly maintained, and it has
repeatedly so afirmed. In the Atrglo-lranianOil Co. casethe Court said that a
decision given under Article 41 of the Statute: "ln no way prejudges the ques-
tion of thejurisdiction of the Court ta deal with the merits of the caseand leaves
unatïected the right of the respondent ta submit argument against such juris-
diction" (I.C.J. Reports 1951,p. 93).
The samepoint wasmadesix yearslater in the Interhandelcase. It wasrepeated
once more in the FislieriesJitrisdicriocase.The jurisprudence of the Court on
this matter is constant; and it is consistent with principle. It is moreover a
reflection of the reauirements of oractice. The orocedure orescribed in the Rules
of the Court does iot contempiate the devel&pment of éxtended and possibly
complex argument on the question of iurisdiction. Thus there is nothing in
parairaph lof ~rticle 66 which require; the applicant State, when formulaÏing
its request, to develop ils. case on jurisdictionin any detail. The applicant is
directed only ta specify the case ta which the request relates, the rights to be
protected and the provisional measures of which the indication is proposed.
The request is the only written pleading involved in provisional measures
oroceedings. The oroceedings are identified in para.rao..2 of Article 66 as
"a matterof urge"cy". It would therefore be inappropriate for the applicant
ta enter into a detailed argument on jurisdiction. Correspondingly, it would be
inappropriate for the respondent State to raise in its oral reply fundamental
issuesof jurisdiction which could affect the whole course of the caseand which
would, were the established rule not what it is, cal1 for imniediate response.
Mr. President, thesepractical considerations whichjustify the rule established
by the Court are particularly relevant when one considers theeffect of the French
Note of 16 May 1973 addressed to the Court and the annex attached ta it.
The appearance in the case of these texts, when the respondent choosesnot to
appear. is entirely beyond the contemplation of the Statute or the Rules of
Court. It ought indeed ta be entirely disregarded.
However, the fact remains that the Court has received from the French
Government a communication which bears upon the Court's jurisdiction and ARGUMENTOF MR. ELLlCOTT 201
whatthecommunication saysmay conceivably have some effectupon the Court.
In those circumstances, what is the right course for Australia to pursue?
Naturally, the Government of Australia recalls at this moment the course
taken in the Fisheries Jurisdicr case. In that case, a letter from the Govern-
ment of Iceland dated 29 May 1972had been received by the Court before the
British Government filed its reouest for the indication of orovisional measures.
1hi, Ictier, ihee>.;enti3licrmsofuhi;h arïset out in p.tragr3ph IOof iheCouri's
JuJcment on ils iurisdisiion Jelined very hr~cllsI;cland's atittude tu ihe C'ouri's
juriidiction. In his speech on provisional meas"res, the Attorney-General of the
United Kingdom did not enter ioto any detailed consideration of the question
of iurisdiction and did not on that occasion attemDt to answer the contentions
of Ïhe Cio%ernmeniot'lseldnd. The que\iion oCjuri\~~i;ti<in uds m3de ihc sub:ect
of3 sep~rïtc stage or the proceedings when. on 18April 1972,the Ci)urt ordereil
the filing of writteolea ad in bv the ~arties on the auestion of iurisdiction and
-.
in duc ckur\r gate Judgmeni on ? tehruary 1973likiied to rhis point.
In ihe prerent case, the French Go\ernmeni hur ihown tiifoll<iwthe prece-
dent set bv lieland in rhat rase. In ihatCJX the United Kincdoni intoked onls
one grouid of jurisdiction, to which the letter from lceland briefly referred.
In this case, the Australian Government iovokes two independent grounds.
One rests on Article 36 (1) of the Statute of the Court. read with the General
Aci, and Artirlc 37 of the tat tu oithe Court; the other rcsis on i\rtislé 36(2)
oi ihe Statuic, redd rogiher uiih the tren;h Je;lardri<~n of 20 \la) 1966.
'1hc leiterCI(the I'renih Ciovcrnment oi I h A13).1973reje<ii hoth theiegrounds
ofjuri~di;iion The reje;iioii OCthe CieiieralAit ibdc\,eli~pcJai si>meIength in
r memor~nJun> anncx. The rejeiiion of ihï Couri', juriviiiiion unJer Article
36 (2)is based, so it would appear, upon the invocation of one of the reserva-
tions appended to the French declaration. This reservation excluded the juris-
diction of the Court in the case of disputes concerning activities relating to
national defence.
Now. having regard to the Court', prxiise and juri\pruJence un this matter
uhich I hai,e aIreaJy rcferred to, I >uhmirthat the Court will nit1expect me iu
deal in the fullest deidil uiih ihc quc\iiun ,if juri,di<ti<~nand theref<irewith al1
ihe poinis niade in ihc French Soie and ihe anne* ihcreto. This is a nidlier for
a later stage in the cdse. Rut. as alrcads inilicatcd, ihe Court's praciice has con-
s~~tentl. &en not to reauire full e~a~inatioo of the Court's iürisdiction at the
provisional measures stage. 1shall, therefore, limit myself at the present time to
a consideration of the Court's jurisdiction aimed at showing that its absence is
not manifest. It is significant that in the French Note itselfmanifest absence of
jurisdiction appears to be the reason suggested by the French Government for
not appearing here today.
Perhaosthe stronee-t and most effective demonstrationthat theabsence of the
Court's,urisdiction is not nianilesi is ihat the French Ciovcrnment has found il
necessary to dcv<~te an annex of no Icïs than IRpage, to the Je\clopmeni of ils
contentions that the Court lacks iurisdiction in iust one of the two grounds
invoked by Australia, namely théGenetal Act. fhis annex contains some 20
separate oints to each of which the Government of Australia is in a position
to~rovide a convincing answer. These will, at the proper stage and in the
proper manner, be given. But wheo a defendaot government finds it necessary
to raise 20 points in respect of one main ground of jurisdiction alone, it is
obviousthat there is much to debate: and in these circumstances it is im~ossible
to say that the Court is manifestly without jurisdiction.
. But fair though such an answer to the French Note and appendix migbt be,
I do not see it as giving to the Court the assistance which at this stage of the202 NUCLEAR TESTS
case it may properly regard itself as entitled to expect from the Australian
Government, and 1shall have to go into some detail.
1 have already referred to the two bases of jurisdiction which are expressly
invoked in paragraph 50 of the Application. For convenience, 1shall cal1them
respectively "the General Act" and "the Optional Clause". They are inde-
pendent of each other and each is self-sustaining.
Before soina further. 1 mieht nerhaos sav a word about the elïect of the co-
existence of t<ese two'separate and indepéndent sources of jurisdiction. The
point is wellestablished-but bears repetition-that when two sources of juris-
diction exist at the same time, each may he employed. Neither weakens the
other.
The Permanent Court in a well-known passage in the Electricity Companyof
Sofia and Bulgaria case stated:
"... the multin.ici.v of aa.eements concluded acceotina .he .om~ulsorv
juriidicrion isc\iJcnce thai ihec<inira~iing P~riic%iniendcd IO open up ne-
-3ys of aiccss to the Court rathcr ihan io close old ~$2)ior io sII<i\i[hem
to cancel each other out with the ultimate result that no iurisdiction would
remain". (P.C.I.J., SeriesAIB, No. 77, at p. 76.)
And if more needed to be said on the question, it would sufficeto refer to the
words of Judge Basdevant in the case of the Norwegian Loans. After quotingthe
passage from the Electricity Companyof Sofia and Bulgaria case which 1 have
just read, Judge Basdevant continued:
"A way of access to the Court was opened up by the accession of the
two Parties to the General Act of 1928. It could not be closed or cancelled
out by the restrictive clause which the French Government, and not the
Norwegian Government, added to its fresh acceptance of compulsory
jurisdiction stated in its Declaration of 1949. This restrictive clause, ema-
nating from only one of them, does not constitute the law as between France
and Norway. The clause is not sufficient to set aside the juridical system
existing between them on this point. It cannot close the way of access to
the Court that was formerly open, or cancel it out with the result that no
jurisdiction would remain." (I.C.J. Reports1957, pp. 75-76.)
Towards theend of its annexthe French Government appears to be suggesting
that the clear terms of the General Act have in some way been over-ridden by
the reservation of the French declaration under the Optional Clause. Reference
is made in support of this view to Article 103 of the Charter of the United
Nations. This provides that: "In the event of a conflict between the obli-
gations of the Members of the United Nations under the present Charter and
their obligations under any other international agreement, their obligations
under the present Charter shall prevail." From this ~rovision the French
annex concludes that the obligations assumed under the'head of Article 36 of
the Statute must therefore prevail over those of the 1928 Agreement. However
no reason whatever is aiven in support of this conclusion
The expldnaiion of u,hy nu re;,oning i, prwided is, 1 n,ould stiggcrt, thai
ihere 3re no rc3sons io bc gii,cn. lhere arc ihrcc principal grouncls<inu,hich iiis
poqsible io nicct ihc contcntii,n that the French De?l~ration i~f1966con\iitutcs
an obligation under the Cliarrcr uhich mu5t ovcrride the Gencrnl .Ac1
The first is thai. propcrly understciod. ihcrc isno conflict si sll. The 1-0
instruments can clearly stand togeth.r: they are comnatible ways of dealing
with similar subject-rnatters.
The second reason is that it is not correct to suggest, as the French annex ARGUMENT OF MR. ELL~COTT 203
does~h~.i~~~~r~tion. that the oblieations assumed bv States which have made
declarations under the optional ciause have the same-status as the statuteofthe
Court itself. lt is, of course, quite true that the Statute is, under Article 92, an
integral part of the Charter. But it does no1follow that the relationships created
between States which make declarations under Article 36 (2) of the Statute are
themselves to be assimilated to obligations under the Charter.
In its Judgment of 26 ~ovemher-1957 on the preliminary objections in the
case concerning Righf of Passage over Indian Territory the Court considered the
nature of the reiationshi~ created by such declarations. From the way in which
the Court dealt with the second preliminary objection it is evident that the
Court regarded the relationship between parties to the Optional Clause as a
contractual relationship arising from the fact that they have both made declara-
tions within the framework of the Optional Clause. Thus, the Court said:
"The Court considers that. hv the denosit of its Declaration of Acceot-
linzc wiih ihc Secrct;iry-Gencr.il. the acicpting S131~bC;<)mcs liI'arty10
the s)siem of ihe Optional Clausr. in relation icithe oihcr Je~.larani Slateç.
with al1the riehts and obli-ations derivine from Article 36.The contractual
relliiion hciuccn the Partie, and it~e~.<impul~ory jurisdi:tii>n of thc Ci~urt
rc\ulting iherelroni are cstabli.heil. '!pro/i,<ri>and u,itlioui spc;ixl qrce-
ment'. h\, thc faci oiihc mhkinco- the Dcclarsii~~n."1l.C.J. Rt,oorrs1957.
p. 146.) '
A few lines later the Court referred to the consensual bond, which is the basis
of the Optional Clause.
Starting, then, from the position thus acknowledged by the Court, that the
filing of a declaration under the Optional Clause estahlishes a contractual re-
lationship, a consensual bond, with the other declarant, one asks how that
relationship can he identical with the relationship existing under the Charter
and the Statute. Clearly, it isnot a Charter relationship. Nor isit the relationship
created bv the Statute. for al1Memberç of the United Nations are bound bv that
relationship, while oniy some are bound by the Optional Clause. To say that the
relationship exists within the framework of the Statute-which is the only
loeical alternative-is not to sav that the oblieation thus established is an
obligation under the Charter. ihe obligation-under the Optional Clause
declaration is not an obligation under the Charter, because al1the obligations
under the Charter and the Statute. as such. are alreadv soelled out and are
equal for al1parties. Obligations under the optional clauseare extra commit-
ments which originate from outside and, it should he noted, are in some cases
even assumed hy States who are not members of the United Nations and are not
bound hy the Charter. This, for example, was the case with Liechtenstein in the
Nottebolrm case.
So much then for the second reason whv the French declaration under the
Optional Clausecannot affect the General Act. The Optional Clause declaratinn
isnot, wesubmit, a Charter obligation. The third reason isthat even if Optional
Clause ohlieations could be reearded as ohlieations under the Charter. Article
103 is concerned with conflicts-of obligations, not of rights-conflicts'of ohli-
gations, not of rights. When the Charter referred tn obligations it had in mind
commitments or burdens. The function of Article 103was to secure the release
of Members from commitments which would require the Member to do some-
thing incompatible with the hurdens or commitments by which it was bound
under the charter.
So the French proposition may he tested in the following way: if Australia
owes France an obligation under one instrument and the Charter prescrihes a204 NUCLEAR TESTS
heavier obligation, then the Charter will prevail. What then is the obligation
which Australia owes France under the General Act? It is the oblieation to sub-
mit to the jurisdiction of the Court under the General Act if raic c invokes it.
What obligation has Australia accepted under the Optional Clause? It is to
acceDtthe 'urisdiction of the Court asa defendant if~rancechooses to invoke~i~ - ~~ ~
It is only heavier ~iAustr3lia's reserv~tiunr under the Optioniil CI:iiiir arc Icçs
rcstrt<ti\e thîn ihdse under the Cieneral Act. To this <luestionthe content of the
French reservations is auite irrelevant
Now, one may ask, does the French reservation become any more relevant
when the matter is approached the other way round? What obligation does
France owe ~ustralia~under the General ~ct?-It is the oblieation submit to
the jurisdiction of the Court under the General Act if ~istralia invokes il.
What obligation has France acceptedunder the Optional Clause?It is to accept
the iurisd'Fctio~ of ~he Court as-defen~an~ if ~ustralia chooses to invoke it.
It is only heavier if France's reservations under the Optional Clause are less
restrictive than those attached by France to its acceDtanceof the General Act.
But in this case the reservation "pan which France appears to be relying-the
reservation of national defence-is not lessrestrictive but more restrictive than
its reservation under the General Act. However, once again there is no conflict
of obligations.
In short, the French contention on this point is, we submit with respect,
specious. 1 have only troubled to scrutinize it so closely becauseclose analysis
is required in order to exposeits defects. And, we would submit, Mr. President,
close analysis of each of the other French propositions in the annex as well as
the letter would lead to the same result.
Nonetheless, with your permission, I ought perhaps 10 examine the other
argument used in the French annex for the purpose of suggesting that the
General Act is over-ridden by the French reservation to the Optional Clause.
This is stated simply as follows: if the argument based on Article 103 is not
correct "one is led 10 the ordinary problem ofa later treaty bearing on the same
subject as a previous treaty in the relations between the same countries".
Indeed one is, Mr. President. But the identification of a problem is not the
same thing as solving it. The French annex is somewhat thrifty in the demon-
stration of this ooint. and the auestion which it raises is a large one.
What does it amount to? It i; really this: when two or morë~tates conclude
an agreement which contains provisions for the judicial settlement of disputes
by the International Court of Justice. the terms of that agreement mav be uni-
laterally modilied by one pîriy, in a mannîr tot3lly inci,niisrent u,ith Ïhe terms
of th31 trcaty. simply b) changing the terms uf lis acccptance i~fthe Optional
Clause.
MI. .President, this is a curious notion. Let us look back at an earlier para-
graph in the French annex. The Court's attention is there drawn to the strict
terms of the General Act regarding denunciation and reservation. The Court
will remember ~h~t ~ ~ ~rench Gove~n~e-~ notes with ~ride the ~recision with
which it filed its own additional reservation to the ~enéral Act, &st three days
before the correct deadline in 1939.The Court will recall, too, how the deposit
bv the Austr-l~~n ~ ~ ~~~~~t of~ ~ ~ ~ ~ ~~on ~ ~~-~ide the stated time-limit is
bianded asa breach of the General Act so material as, in eiïect-and here Ihave
paraphrased the language of Article 60 (2) (b) of the Vienna Convention-to
entitle France to invoke it as a ground for suspending the operation of the
General Act between herself and Australia. The characterization of the Aus-
tralian reservation as a breach is clearly wrong; and the assessmentof ils con-
sequencesis manifestly an exaggeration. But the point that really matters in the ARGUMENT OF MR. ELLICOTI 205
present context is the emphasis which at this point in its Annex the French
Government is placing upon the strictness of the provisions in the General
Act regarding termination and reservations.
The relevant provisions are in Part IV of the General Act. Article 38 deals
'with accession to the Act. Article 39 (l), which 1need not read, permits parties
to make their acceptances conditional upon the reservations exhaustively
enumerated in that Article. The paragraph ends with the provision that those
reservations must be indicated at the time of accession. An important distinc-
tion is then made in the Act between the procedures for the increase and the
reduction of obligations under accessions.
Article 40 provides that a party whose accession has been only partial, or was
made subject to reservations, may at any moment, by means of a simple declara-
tion, either extend the scope of his accession or abandon al1or part of his reser-
vations. Under Article 44 (2) such a declaration shall become effective only
from the ninetieth day following the date of their receipt by the Secretary-
General of the League of Nations. Thiis we have a relatively simple procedure
for increasing the scope of jurisdictional obligations at any time.
But when it cornes to reducing the scope of such obligations, the requirements
are much more strict. This matter is dealt with in Article 45, which covers
denunciation. Paragraph 4 of this Article states "a denunciation may be partial
only, or may consist in notification of reservations not previously made".
Denunciation can only become effective at the end of the successive periods of
five years, provided that they have been filed at least six months before the
expiration of the current period.
Here then the Court has a treaty which contains specific, precise and strict
requirements regarding the modification of the obligations of the Parties. Yet
the French Government now sugaests that al1those exmess ~rovisions mav be
cornpletely set aside and rendërëd rneaningless by a unifateral declaraiion
capable of being made at any time under the Optional Clause of the Statute of
the Court. The ~ro~osition iust does not seem reasonable
There is, moreover, anotGer point which is highly relevant. The General Act
was drawn up against the background of the Statute of the Permanent Court.
It was clearlv intended as an additional or su~~lementary instrument for re-
course fo théCourt. In Article 29 (1) and (2) ofthe Gen&al Act there will be
found a clear acknowledgement that where a special procedure is laid down in
other conventions in force, the dispute shall be settled in conformity with the
provisions of theConventions. But the General Act certainly did not contemplate
that the Statute of the Court itself would be regarded as another Convention
capable of ousting the procedure of the General Act. The General Act is replete
with references to the Statute of the Court-Articles 30, 33, 34 (b), 37 (1)and
41. They al1show that the parties to the General Act were awareat the time of
its conclusion of the existence of the Statute of the Court and, accordingly, of
the sco.~ fo~ reservations under the O~ti.nal Clause. But thev did.not for a
m,>mentconccivr. ihai the bptionill C13usesysiem could he uscd to undermine
the ctïcztii,cne>OC tltc obliciitioni contractcd undcr the Gencrdl Act.
Furt~er~ ~ ~irmation of the total indenendence of the two soheres of iuris-
diction 1sitselr providsd by the condust "f transe. The ~rcnch'ann& informl
the Court th31 France made ildrilar3tion undcr the Optional C'lau5eanil ac-
ceded to the General Act at the same time. Why should it have accepted both
instruments if its contention is correct that the General Act is limited by the
Optional Clause? If the answer is that the General Act covers matters other
than judicial settlement, then one asks why was France's accession to the Gen-
eral Act, as it could have been, not limited to Chapters 1and III, dealing with206 NUCLEAR TESTS
conciliation and arbitration. leavine. iudicial settlement aside to the Statute of
the Court. In truth, France, in comhon with the other States which acceded
to the General Act, did so with its eyeswideopen and in full appreciation of the
standing of the General Act as an instrument independentl; conferring juris-
diction upon the Court.
Moreover, asa matter of fact, it is not a correct representation of the position
simply to say, as the FrenchAnnex does (at II,p. 353):
". ..France. in 1931.it was even Iwo articles of thesamelaw whichautho-
rized the ratificationoftheacceptanceofthe General Actand of theoptional
clause of Article 36 (2). The links between the Iwo modes of submittinw -
disputes for pacific settlement were in this way particularly stressed."
Examination of the Jorlrnal offici ellela Répt<bliqi<fera»çaise shows that, as
stated, a law was passed on 8 April 1931 authorizing the President of the
Republic, first. to accede to the General Act and second. to ratifv the decla-
ration under the Optional Clause which had been deposited by lance on 19
September 1929, 16 months previously. Further examination of the Journal,
however, shows that the General Act was separately adhered to in Geneva on
21 May 1931 and was separately promulgated by a Presidential Decree dated
15 July 1931,which appeared in the Joitrnal officieon 26 April 1931.
It is worth observing also that in the eyesof MI. Aristide Briand, the French
Minister for Foreign AFTairs, the accession to the General Act possessedan
independent significance of its own, for this is what he said in his letter of 10
April 1931 to the Secretary-General of the League of Nations:
"1 have the honour to inform you that, after the Chamber of Deputies,
the Senate at its meeting of March 5th unanimously approved the draft
law authorising the President of the French Republic to accede 10 the
General Act.
The French Government is now in a position to deposit ils definitive
accession with the Secretariat of the League of Nations. However, taking
account of the wishes of Parliament, and in order to emohasise the im~ort-
ance French opinion attaches to this Act, 1 intend to dèposit an accession
myself during the nexl session of the Council of the League."
These points do not bedr out the assertion in the annex of the "close links"
between France's accession to the General Act and its declaration under the
Optional Clause. The two texts were separately prepared, separately deposited
and separately promulgated. And when the General Act was deposited it was
seenasofsuch imoortanceas to warrant erso on al actiobnv the ~orei~n Minister.
A further item' of French conduct demonstrating thé independence of the
General Act from the Optional Clause declaration is the following:
The French annex recalls that in July 1939 France deposited a reservation
to the General Act in full compliance with the requirements of Article 45. Why
did if do that? According to the French Government, it would have beensuffi-
cient if it had sim~. .added a reservation to ifs acceptance of the O~tional
Cl;iusc. 1 hc \Cr).id:t ih~i the trcn?h <;i~iernnieni purjiied the :ourse ii diJ in
inJi:;tiireoi iis <>an\.ieu ih~i ille Cienerlil ALI n.is qtiire independeni of the
Uption~l C'l.iu\e ÿnJ ihdt ii icll hi hc ni,idiitcil h) ilifirenipr,>cc<lureî.
\\'hsi 1Iicni;lciiii,uppc>ri illei eu ili:atre\cr\dt .>n3Ctlie Opii<>n.ilCl.iu\c
in 1966 lia, a toiall) d~il'ercnicll'c:i i3 rcrcr\;itiui~n:iJe~ndcr the Opii,~n.il
CI~use iii1939?Onlv. one musi rire\umc. the \tlwciiwn ih'it Article 103oitlie
Charter has some &&cal eFTect:This, Mr. ~reiident, for the reasons which 1
have already given, 1would submit that it has not. ARGUMENT OF MU. ELLICOTI 207
But it isriaht to wohe the French contention somewhatfurther. If it iscorrect
(as France siggest;) to regard de;ldrationj under the Opiional Clauseas capable
of modifying pre-eiisting undertakings regarding judi;tai sertlement, Francc
has in effectdiscovered a device for unilaterallv releasing itself at anv time from
treaty commitments to judicial settlement. &e can silemnly accépt today a
clause for compulsory settlement of disputes in an agreement in which the
parties may regard such a clause as a vit4 element. Tomorrow, she can-with,
so she would claim, full propriety-deposit a new reservation under the
Optional Clause excluding from the Court's jurisdiction the category of dis-
putes covered by that obligation assumed from the previous day. Her invention,
in short, can go a very long way.
Now, the French Government has foreseen the criticism to which its thesis
is thus exoosed. It has soueht to cover the situ~t~ ~ ~ ~ ~is observation (at
II, p. 356,'of the annex) tha;'.ihe IV28Act [is not an agreement including. for
disputes rclaiing IO the application of its tertns]. acl~urcconferringjurisdiction
on the Court .. but a text of which the sole object is the peaceful settlement of
disputes, and in particular judicial settlement". As a statement of thedifierence
between the General Act and other treaties this is an unexceptional statement.
But in truth it savs nothine which is relevant to the oroblem. In oarticular. it
docs not say uhithe dirti~ction which tidraws hetween the tuo caregoriesof
treütie, ,ht>uld mean thar u hat Zan be done to the Gcneral A:r cannot be done
to clauses for judicial settlement in other treaties. After all, the mechanics of
the operation are identical in hoth situations.
When the French doctrine is applied to the full range of treaties which it may
affect, the impact isquite startling. The I.C.J. Yearbook 1971-1972of this Court
lists no less than 11bilateral treaties and 28multilateral treaties to which France
is a Party and which, according to the I.C.J. Yearbook (pp. 86-98), contain
clauses relating to the jurisdiction of the Court in contentious cases.
There is another strange element in the French thesis, which adds to its
fallaciousness. This is that it can operate onlv where the oartv aaainst whom
France sseks to ini,oke iis oprionxi Clause reseri,ation has itwlfdso niade a
declararion under rhe 0ptii)naI Clausc. Thus the Siaie which seeks to demon-
strate iti the fullc\i riuhlic manner its oarti~iw~tionin the iudicial Iife of the
inrcrnxtional c<imm"niiy by accepting both the General AC; and the Optional
<:lliusci, penali~cd But the State which acccpts only ihe Ciencra1Aii is not so
oenalized. It iust does not make sense
Pcrhaps 1Aüy rummarize myargunient on this point by puiiinp irin a slightly
dilTerent \\,a)..Pdragraph I and paragraph 2 of ,\rticle 36 contemplale tu0 en-
tircly distinct s),temi sfestablirhina -.e iurisrliciion of the Court. I'araard~h 2
creates the Ophona1 Clause system. The two systems were never inteided to
affect each other; and in al1 their half-century of operation they never have.
MI. President and Members of the Court, this brings me to the end of the
consideration of but one pair of points raised hy the French annex. 1have heen
ohliged to do so at length because if these arguments are to be tackled at al1
their refutation inescapahly calls for some elaboration. Even so, 1 have dealt
with them superficially and must reserve the right of the Government of Aus-
tralia to deal with them more fully at a later stage in the proceedings.
The Court will recall that my argument so far has been devoted to the
elaborari~~ of ooints connec~ ~ ~ ~ ~on~ h~s~c co.~~.~~on. This is that the
existence of mo;e thanone routeof accessto thecourt does not affect the others.
Each is indeoendent. The fact that Australia and France are linked by both the
General AC; and the Optional Clause means that the Court may look first at
oneand then at the other as separate and distinct bases of jurisdiction. It does208 NUCLEAR TESTS
not mean that the vices of the French acceptance of the Optional Clause can
sully the virtues of the French acceptance of the General Act.
It remains for me now, Mr. President, to examine in more detail each of the
two bases of iurisdiction invoked bv the Australian Government. It will be
convenient firit to make my submisSions regarding the application of Article
36 (2) and then turn to the operation of the General Act.
Bv wav of meface. 1should observe that the French reservation is either one
the content O? whichis capable of objective examination and assessment or it is
not. To take the consequence of the latter case first, if the content is not capable
ofobiectivedetermination. thecourt isinthe oresenceofaso-called"automatic"
or self-judging reservation. In that case 1 ;hall wish tn submit that such a
reservation is invalid because it runs counter to the whole policy of the Statute;
should besevered from the rest of the French Declaration, and cannot therefore
in any circumstances be invoked. To this alternative 1 shall return.
For the moment 1 shall pursue the first, that the French reservation is one
with an obiective content. In that case 1 contend that the French Note of 16
May 1973 iails erectively to invoke it. This is because where the reservation is
one which is dependent upon the objective determination by the Court that
certain conditions are satisfied, some attempt must be made by the Party
relying on the reservation to justify the use of it. In the present case the French
Government says in its Note no more than this:
"Now it cannot be contested that the French Nuclear Tests in the Pacific
which the AustralianGovernment considers to be unlawful form part of a
programme of nuclear weapon development and therefore constitute one of
those activities connected with national defence which the French Decla-
ration of 1966 intended to exclude."
Thc qucsiiun mu\\ hc askcd. Mr. Prcsidrnt. \ihciher illis par~graph provides
the Court tiith 3 sul1i;icnt bïstr on iihich t<idccide iihcthcr nuclcar ue-pon
de\elopnient falls aiihin the concept of "naiionltl defence". Oiie poijibilii).. of
courw 15 thai the soncepi uf .'n~iiunsl cicfr'ncc"I* 5s uidc and \o ilcpcndent
upon \iibiccii\c ashcssnicnt of ihc Si3ie in\.ohing itih.itiii.; be)onil ihc scope
of iudicial review. However if that is the case. one falls once more into the area
of self-judging rescr\31i<in\\\hich 1ha\c resertcd for :sncidcraiisn ina nionicnr.
On the bjsis thdi the ;ondiii.?ni pre\:ribcd in the French rcjcr\aiii)n arc not
to be subjectively decided-to usethe language of the Asylum case, are not to be
"unilaterally qualifiedW-then one must seek some objective content to the
expression "national defence". Today, what can national defence mean?
Presumably it must have a meaning related to Article 41 of the Charter:
"Nothing in the present Charter shall impair the inherent right of indi-
vidual or collective self defence if an armed attack occurs against [a
Member of the United Nations]."
If national defence does not relate to this, to what does it relate? The Court
is not told and the Court should not have to speculate. If, on the other hand,
national defence does relate to Article 51, the Court must be satisfied that this
nuclear weapon development can reasonably and lawfully have someconnection
with national defence. This involves consideration of a number of factors. One
iswhether the nuclear weapons, the kind which France isdeveloping, have a role
to play in defence. Or are they merely aggressive weapons? And some will no
doubt question whether their use even in defence is lawful and whether, there-
fore, the Court can sanction their development in the context of so-called
national defence. Again, some will ask whether it is possible to assess the ARGUMENT OF MR. ELLICOTT 209
relevance of national defence without some identification of the State aaainst-
whom ihe Siaie i,defending irself. Ir France prep~ring ta Jeiend iielfagain\t
S\ieden or tlic Lebanon' Or against the United States or the Soiiei Cnion"
If shedenies the oossibilitv of attack from anv auarter. then how can shesoeak
of defence,and cin shein-this day and agelegithatel; contemplate the breach
by other Members of the UnitedNations of their obligations under Article 2(4)
of the Charter? After all, wasit not France which wasa party to the proceedings
in the Lac Lartor~xcase, in which the Tribunal, under the distinguished presi-
dency of Judge Petrén, observedthat States werenot entitled to rights in con-
temolation of a breach bv other States of their obliaat-ons?
Therc remains yct a furihcr basisLpon uhich the etl'eitiiene$s of the reserr3-
ri<>n10 den) the Ctiurt's juri.dicti<>n to dctcrnilnc ihis rase isopen to challenge.
Australia contends that atmosoheric nuclear testina i- illeaa- under customarr
international law. The reservation would not, we submit, extend to activities
which are illegal under that law. There is further, at least, committed to the
Court the question whether itshould construe the reservation as extending so
far and, further, the question whether, if it does, the reservation is a valid one.
Mr. President, these questions are al1 pertinent to the determination of
whether France hassatisfied the cotiditions of her own reservation. And France
h3~noi pro\idsJ the Court uiih aiiy matcrt.il t<i~s4.t it in a detzrmination oi
ihose questions in hcr Pa\our. Nor. ha\ing regdrd to the highl- pol~ti.aI charac-
ter of these auestions. is it an.. .riate for the Court to answer them in her
absence and \iitliout hcr assistance
This king 5u I chxllenge the assunipti<>n. ,Crwdily nidc In the Frcn~h Noie.
that tltecare for thean..iiation ofih rr.\ervation isdi-ciidciit. Our subniiision
is that in any event the mere existence of the French reservation, upon the
assumption that it has an obiectively definable content. cannot be taken as
creating a situation in which Che is now manifestly without jurisdiction
under Article 36 (2).
And so 1 oass to the other possibility-that the French reservation must he
treated as being totally subjective or, inother words, self-judging or automatic.
In this event, there are two points to make.
The first starts from the fact that a self-judging or automatic reservation is
not self-ooerative. It hasto beinvoked. If it is not invoked. then the mima facie
jurisdiction, which the Court possessesunder the declaration, remains undis-
turbed. The Court is no more entitled to exercisethe option of a State to invoke
a reservation than itis. for examnle. to modifv an ano. .ation bv assuminait to
be bdjed on a gri~iind c>fjur~idiction net .iau.illy a\,errcd. Ihe onl? hue which
needs 10 heJis.u\cd aithi\junciure. thereliore. iu hether tlic rrcncli Kdtc of
16 May amounts to a valid invocation of a relevant reservation.
In this connection, 1would submit that the French Note is not a receivable
act of which the Court can take formal notice. There is no provision in the
Statute, or the Rules, which contemplates recourse to a reservation in this way.
The only way in which a party to the optional clause can invoke a reservation
is hy appearance and specific appeal to the reservation.
Thus. in the Iitrerhaitrlelcase. when the United States souaht to invoke its
-
so-called automatic or self-judging reservation, itappeared in response to the
Court's decision to hold a hearing on interim measures and then formally
invoked its reservation. France hai not done this. She hasnot appeared and
she has denied the jurisdiction of the Court. In terms of general principles of
civil procedure, which must underlie and supplement the Rules of the Court,
her action isa nullity. And, this beingso, the Court cannot treat any reservation,
whatever its content, ashaving beeninvoked. The prima faciejurisdiction under210 NUCLEAR TESTS
Article 36 (2) has not been displaced. For the Court to adopt any other proce-
dure is to accord to a State which hreaches the Court's procedure the same
protection as one which abides by it. The application of the notion of equality
in this way would make a mockery of the Court's system of procedure.
The second suhmission 1 wish to make on the assum~tion that the French
reservation 1san automatic one, and on the further assumption-which 1 do
not concede-that the reservation has been validly invoked, is that the reserva-
tion is void as being contrary to the Statute or as being too uncertain.
Smay dispose of the point of uncertainty first. For therelevanceand operation
oftheconcept of uncertainty, it isunnecessary for me to go beyond the passages
in the annex to the French Note. Did not the French Government there criticize - ~
an Australian reservation ta the General Act on the ground of uncertainty?
Compared with the uncertainty of the expression "national defence", the
Australian reservation is crystal clear. If the content of the French reservation
is not to be exposed to objective assessment, then, in truth, its content is totally
uncertain and can play no part in the determination of legal obligation.
Sreturn to mv contention that the French reservation. as a ,e~f-i~ ~~,~ r- -r- ~.
\,at.on, is \dici a, hein&:untr.iry to ilie i~iidamcnidl polic) of the Siaiutç of the
Court. Il is sutti~ient for me to rcfcr io ilie it>n,idzrdtions >cioui by JuJge Sir
Hcr><hI.auterpaslit in hi.;\icll-kni~un sepdrite opinion in the Nuriic,g;u,iI.uu,ls
case and hii diiscnting d~>inionin the I,irr.rhui~'hcase, as acll as the opinions
of Judges Sir I'ercy Spciider. Klaesic~d.ind .4rindnd-llgon in the Inticr ca,e. In
essence, these con.ider~ii<~nianiount IO sa)ir~gthat nhere itis for ihc Court tu
judgc upon quc5ti6ln\ reixiing Io 11soitn ~uri$~i:tion, ïny clïim b) 3 party in
deprive the Court of this oower after the aoolication in a case h~s been filed
violates the Statute of the court. And, as theyourt willrecall, the Judges whose
opinions 1have mentioned havedivided equally upon the question of severability
of an invalid reservation.
So the question is open, and has never been examined, whether a reservation
of the type now under consideration should be given any scooe whatever. The
reasons which have been given bv those iudeesof.th. court who considered
thai a rubjc;tii.e rewrixiion oi iloiiiertic jurisdi;iic~n ctiuld bc sevcred [rom the
dcîlaration. uniler ihc 0piion;al CIïu,c J<inor apply hcre. becdu,e the French
declaration antedated the national defencereservation hv manv vears. The latter
was only added in 1966.The two texts-of the declaration anithe reservation-
are thus clearly independent of each other and can easily be severed. In these
circumstances. mv contention is that the declaration stands and the reservation
falls. France isthus bound by the jurisdiction of the Court under Article 36 (2)
without any barrier to the Court's jurisdiction heing interposed.
Now. Mr. President, Shave out those submissions to vou in a very terse and
summars Corni. Bui [hi, ii noi a he.irin2 on juri\Jiciion: ihis is 3 haring on
pro\i\i<inal meïsurcs. and m).13A ir merely IO uiiii) the Court ihar iris nor
mïniiesils \iiihi>uiiurisdiction 1Iio~e.in rcIati<~n 10 Ariicle 3612,oiihe Stdiute.
. .
that 1ha;e succeeded in doing that.
The Court adjournedfrom 11.50 a.m. to 11.40 a.m.
With your leave. Mr. President. Ishall now turn to the question ofthe Court's
jurisdiciion undcr ihe General .4;i 1proporc io prsieediir~t on the bdsir thït
thc Gencrdl Acr of 1928is in Lirce in ordcr io show thai the rçle~ant condiiionj
of that Act are satisfied in the present case. A convenient way in which to ap.
proach the matter will be to start from Article 17 of the General Act: ARGUMENT OF MR. ELLICOTT 211
"All disputes with regard to which the parties are in conflict as to their
respective rights shall, subject to any reservations which may be made
under Article 39, be submitted for decision 10 the Permanent Court of
International Justice, unless the parties agree, in the manner hereinafter
provided, to have resort Io an arbitral tribunal."
It is my submission that al1the requirements ofthis Article are satisfied in the
present case. First of ail, there is a 'lisprrte between the Parties. This, I venture
to suggest, is so plain from the diplomatic correspondence and the reports of
the discussions between the Parties that I need not develop the point further.
Second, the dispute is between Parties. Both Australia and France acceded
to the General Act. br coincidencc on the same dav. 21 May 1931. Neither
Australia nor France has taken steps to denounce the-~eneral Act pursuant IO
the terms of Article 45. so both States remain a party Io il.
Third, the Parties are in dispute as to tlreir respectiveriglrts; Australia, in ifs
Note of 3 January 1973 Io the French Government, stated that in ils opinion
the conduct of further atmospheric tests would be unlawîul. For its part, the
French Government look the oosition in ils re~lv of 7 Februarv 1973that "il is
. ,
conkiii-ed th.it its ni~~lexrtestsh:ite not vi<>l;itedan). rulc oiintern:~iional lai\".
ln the suhseq~entJiplirniali;cxiliinge~ neiiher <;i)rernnient altsrcd ils positi<in.
The existencéof a &s~ ~~ as to rivhÏs is. therefore. evident. Australia contends
that further tests will biolate ils rihts in international Iaw, as outlined in para-
araiih 49 of the A~plication; France takes the opposite position.
- Fourth. it is nec~i~arvIo turn Io thereserrnrio,rS~fthe ~artieswhich areîound
in ,\nne\ei I5 ;iii,l IO <>l'the,\u>trdliari Appl~iitio~i. For\! 1110~ LI( Fr;in:e. The
French sxessicin a35 IiniitcJ in the tir\[ pl;x;r' 10 dirputei ari,ind after French
accession with regard to situations or facts subseiuent thereto. Clearly the
present dispute meets that requirement.
Next, the French accessionexcluded disputes "bearing on a question left by
international law IO the exclusive comoetence of the State". Aaain. it-is manifest
ihai LIdispute uhich raisessuch i$suesa\ the v!olLIiion by France of Aujirali3's
territorial soiereianty and the infrincemrnt oi tlic irecdom of the sïds does no1
~a~l within~ ~~ ~ ~ ~t~ ~ ~ ~
The other reservations in the French accession relate to disputes submitled
to the Council of the League oî Nations and to the law 10be applied by arbi~r~l
tribunals. Again, neitheris relevant in this case.
In February 1939 the French Government added a reservation excluding
"disputes relating to an? events that may occur in the course ofa war in which
t~ ~ ~ ~ch~ ~ ~-~n~en~ ~ ~ ~volved". So far as the Australian Government is
aware, the French Government was no1 involved in any war al the date of the
A~plication in this caseand the disputecannot therefore relate toanevent which
may occur in the course of a war. Thus it is apparent that the present dispute
does not fall within any of the French reservations.
It is necessarynext Io examine the Australian reservations. First, Australia
excluded disputes arising prior to ils accessionor relating to situations or facts
prior to that accession. This reservation is obviously irrelevant.
Next, Australia excluded disputes in regard to which the parties agreed Io
some other method of peaceîul settlement. The Parties have no1 agreed 10any
such method.
Thirdlv...ustralia excluded disputes with other members of the British Com-
monaealih ni N,itiirns Fr~ncc is not \ucli a mcmber
Fourihly. Australia e~cluJcJ disputes iiriiccrninl: questions u,hich xiording
IO iniernationsl las are sdlel) within tlie Jomssiic jiirisJl~tiot1 <ifStîtcs. Ihave212 NUCLEAR TESTS
already indicated in relation to a similar French reservation why this isirrelevant.
Fifthl. .Australia excluded disputes with any Party to the General Act who
was not a memher of the ~eaguë of Nations. France was at ail materiai times
prior.to the dissolution of the League a member of that Organization. A com-
oarable reference to membershi~ of the Leaaue was considered hv the Court in
ihe .Soi,rl~IV*>r.4jLuircdlc. l'ar.xerùph 2 of-Arii:le 7 ai ihc hl3n.I.1ic protided
tli.ii "if an) di\puir. shduld >ri% hs!ur.cn the .\ldndiii~ry and arioihcr \leniber
of ihc I.caguc of Nliiions" rcl3tinp 1,)the inicrprei~iiiin ur ap$i.-3tion uf the
hlandalr'. 11 shuuld be subniittcd t<ithe Pcrnianeiii Court of Iniernxii<)nal
Ju,ti;e. S<~uihAiriw <<>niendeil.io uic ihc ii,<ird.;ulthc JuJgmeni. '.thai iincc
al1 Member States of the League necessarily lost their membership and its
accompanying rights when the League itself ceased to exist on April 19. 1946.
there cnuld no longer be 'another Member of the League of Nations' today".
This contention was rejected by the Court. If then Liberiaand Ethiopia were in
1962 Memhers of the League for the purposes of a jurisdictional clause, so
equally is France today.
The Australian accession also contained reservations in connection with
disputes under consideration hy the Council of the League. They are manifestly
not relevant now. There remains only the Australian reservation made at the
outbreak of the Second World War in which it excluded anv disoute "arisinri
, . -
out of events occurring during present crisis". This toois irrelevant in the present
case.It is evident, therefore, that no relevant reservation limits or excludes the
jurisdiction of the Court in these proceedings.
Next, in this examination of the terms of Article 17 of the General Act, it is
appropriate to note that provision is made for the submission of disputes to
"the Permanent Court of International Justice"~ ~ ~ ~ ~~ to be read ~n~the lieht
of Article 37 of thestatute of the present Court, which provides for the sib-
stitution of a reference to the International Court of Justice.
Finally, it may be observed that the terms of Article 17 apply "unless the
parties agree to have resort to an arbitral tribunal". There has been no such
agreement between the Parties. The Court is thus confronted by a situation in
which every condition of Article 17 of the General Act is satisfied. There is,
therefore, no reason why that Article should not serve to vestjurisdiction in this
Court in these proceedings.
It is at this point-having indicated how the conditions of the General Act
are satisfied in this case-that I turn to my submission that the General Actof
1928 is still valid and in force between the parties to it.
Neither France nor Australia has soueht to denounce the treatv. Conse-
quently, the only basison which it can bealÏegedthat the General ~ct hasceased
to bind them isthe operation of somemore general consideration. This consider-
atio~ ~~ ~tated in the annex to the French Note of 1~ ~ ~ 1973 to be that the
treaty is recognized as no longer king in force and that its lack of effectiveness
and the desuetude into which it has fallen prevent it from over-riding the
French reservation added to its optional clause declaration in 1966. 1 have
already mademy submission to the effect that the French reservation of 1966has
nothing to do with the General Act. and I shall not repeat that. I pause only
1.)mcnÏion th31. in thccruc~:~Iintroduct~>ry ~.~rligriiph of the ~ren~h-snncx, the
allegçd liick of ciïc:ii\cne\\ and ihc dcsuetuJe of ihe <;entra1 -ici arc esscni~slly
linkcd niih the Frcnch zonicniion regsrdong ihc ctïcci of ihe 1966resçrvlition
in the iiptioi)al clliusr. Ir ma).. be. thcrefi>rr, th11 ihc Frcnch Government is
noi <i$ieriing th:ii ilic 3llegzd Ixk ctfciïcaitene\\ and dcsuetudc of the General
Act have any relevance by themselves.
However, for present purposes, 1 doubt whether the Court would wish me Io ARGUMENT OF MR. ELLlCOTl 213
dissect so closely the text of the French annex. 1 therefore propose to concen-
trate on two asoects of the discussion which seemto be of oarticular sianificance.
The first is the'correct interpretation of thNorwegian ans case. The second
is the proper assessrnent of the General Assembly discussion of the General Act
at the time of the . .oaration of the Revised General Act.
1shall begin with Anex~min3iion of thc .\'orw~.r.iLui1,ircase hecau,e ir is
iherc th31one tind, the cleïreit expression orjudi;iïI opinion, in the dis,enring
opinion of Judgc R~sdcvïnt, on the ;oiiiinuing \alirlity dnd .ippli:ïbiIity i)f the
General Act. The French ïnnex purporrs io dirmii thirjudi.'.~l opinion Haiing
regdrd to the resw~t and esteem in uhi:h h2r. H.i>.le\ani \\as hcld during his
lifetime of service to international law. as a nrofessor of international law aÏthe
University of Paris, as Legal Adviser to théFrench Government, as agent and
counsel in cases before the Permanent Court,as a Judge of this Court, and in due
course as its Pres-~~~~~.~t wo~ ~ h~ unthinka~ ~ ~~~ ~his views should be so
lightly dismissed.
1shall now read to the Court a little more from Judae Basdevant's ooinion
in the Norwegian Loatrs case than appears in the annei ta the French-~ote.
Judge Basdevant's discussion of the General Act begins with a passage which,
significantly, is omitted from the French annex. He said, at page 74:
"In the matter of compulsory jurisdiction, France and Norway are not
bound only by the Declarations to which they subscribed on the basis of
Article 36, paragraph 2, of the Statute of the Court. They are bound also
hy the General Act of September 26, 1928, to which they have bath ac-
ceded. This Act is, so far as they are concerned, one of those 'treaties and
conventions in force' which establish the jurisdiction of the Court and
which are referred ta in Article 36, paragraph 1, of the Statute. For the
ourooses of the aoolication of this Act. Article 37 of the Statute has sub-
stitited the internation Caourt of ~uitice for the Permanent Court of
International Justice. This act was mentioned in the Observations of the
French Government and was subsequently invoked explicitly at the hearing
of May 14th by the Agent of that Government. It was mentioned at the
hearing of May 21st, by Counsel for the Norwegian Government. At no
time has any douht been raised as to the fact that this Act is binding as
between France and Norway.
There is no reason to think that this General Act should not receive the
attention of the Court."
And he then continued with the paragraph quoted in the French annex.
Nothing could he clearer than those observations of Judge Basdevant. He
said three things. each of which is directlv contrarv to the contentions now ad-
vanced by theFrench Government. He said (1) the Generai Act was in force;
(2) the present Court was substituted for the Permanent Court by Article 37
of the Statute: and (3) the General Act had been invoked bv France.
Noii let us sccu.h;t;hc~ourisiid on ihesubje;t-this is beiter than indulging
in thcspccul~riunab,~~t whai Judgc Dasdciani did and how iheCourt mus1ha\e
reasoned, which is the main ingredient of this part of the French annex.
The Court said (I.C.J. Reports 1957, pp. 24 and 25):
"The French Government also referred to the Franco-Norweaian
Arbitration convention of 1904 and to the General Act of Geneva of
September 26, 1928, to which hoth France and Norway are parties, as
showingthat the two Governments have agreed to submit their disputes to
arbitration or judicial settlement in certain circumstances which it is
unnecessary here to relate.214 NUCLEAR TESTS
Theseengagements werereferred to in the Observations and Submissions
of the French Government on the Preliminary Objections and sub-
sequently and more explicitly in the oral presentations of the French Agent.
Neither of these references, however, can be regarded as sufficient to
,ustif. the view that the Ao~. .ation of the French Government was. so far
;ijthe que,tii,n ul jurirdi.ri<in i. cun.xrneJ. h~,e~iLpJn tnc C.oii\ciitii>n ur
the General ,%ci.li tht rrenili C;<>\ernniciit Ii3J intenJeJ 10 proiceJ upin
chat basis it would exoresslv have so stated
As already shown, ihe ~b~lication of the French Government is based
clearly and precisely on the Norwegian and French Declarations under
Article 36. naraaraoh 2. of the Statute. In those circumstanceç the Court
. -, .
uuuld riut ht,Juiiilied in ,eekio,: a for il\iuri,.li.'iisldiii'erent fr<m
that nhiih the trcn-li G.)\eriinient itseli >etoui in itjr\ppli;3tion and b)
referenceto which thecasehas beenpresentedby both parties to the Court."
From this quotation it becomes apparent that the Court neither expressed
nor implied any disagreement with Judge Basdevant regarding the first two
points made by him, namely that the General Act was in force and that Article
37 of the Statute applied to it. The only point of disagreement was the third-
namely the nature and effect of the French reliance upon the General Act.
Judge Basdevant's observations on the General Act thus stand in a very dif-
ferent Dorition from those of Judae Ar-and-Uzon - in the Barcelona Traction
ciie. The latter are 31~ rcferrtd to iiithc trcn:h .inne\ a\ an auihurit) dn the
intcrprctati~in of :\rii:le37 <if tlic St.itute in relstidn to tlic Geiieral A.'t Thsic
views, however, related to a pointon which the majority of the Court specifically
reached an opposite conclusion. The Court rejected the reasoning of Judge
Armand-Ugon. It did not reject the reasoning of Judge Basdevant, at any rate,
upon the first two points-which for present purposes are the ones that really
matter.
It is necessary, however, to examine more closely the way in which France
invoked the General Act in the Norwe~ianLoaiis case-and how the difference
uf opiniun hetrresn ilic C:ourt and Judge Dasdc\ant ma) hi\e .'cime huiil
In 11.Appliat~.>n oi 6 Jul) 1955. Franie in\.)keJ dnly Article 36 121of the
St.ituie. On ?O ,%oril 1956 Soruav liled 2crtïin nrclirnin.irs ohicctiun~ to the
Court's jurisdiction. One of those-asserted that ihe dispute-relaied to interna1
and not international law; a second assertedthat thedispute related tosituations
of fact arising before the French acceptanceof the Court's jurisdiction.
Tn theseobjections the French Government replied on 31 August 1956with
its "Observations and Conclusions". This contains no less than three separate
references to the General Act.
First, at page 172 of the I.C.J. Pleadings, Norwegian Loans, the French
Government said:
"The eeneral refusa~~ ~ arhitration bv Norwav is a violation of inter-
-
nationsl cngngeinïnt, bei\iecn I:raii:e 2nd Sur\<a) on uliich ihe C.)uri 1,
n~rurally c,>mperentio rlc~ide.since itin\(ilve, a hrcacli oitlie arbitration
convention between Fr~nc~ ~ ~ ~orwav of 9 Julv 1904. of the Haeue
Cunicniiun Ni> ? oi 18O;t<iher IYi17,ol [lie <ic:e,~i(in niili.>ut reserixti.,n
Iiy I rance (21 \Ils 1931 1 and Noraay (1I Junc 1930) Io the Gsncrril ,\.'t
of 26 Seotember 1928 or of the acceotance.f the comoulsorv iurisdicti..
of the ~Ourt by the two States."
The second reference, al page 173-the French Government refers to the
1904Arbitration Convention and to Article 36of the Statute and to the General ARGUMENT OF MR. ELLICOTT 215
"Chapter II of the General Act of Geneva of 26 September 1928 on
judicial settlement contemplates 'al1 disputes with regard to which the
parties are in conflict as to their respectiverights'. Whatever may be the
terms of the obligations assumed by France and Norway in those various
instruments, they cover in any event the present case.The Government of
the French Republic hasa difference of views with the Norwegian Govern-
ment which, in procecding from a claim of its nationals, constitutes an
international dispute. By its nature this dispute falls within the scope of
compulsory arbitration and may be brought directly before an international
judge in application of treaty rules NIforce between France and Norway."
(Emphasis added.)
The continuing in force in 1956of the General Act is emphasized again in the
paragraph at the bottom of the same page (p. 173):
"Despite its patient efforts[Iquote] at settlement by diplomatic means,
the Government of the Republic notes today that Norway. in its 'Pre-
liminary Objections' absolutely refuses to accept arbitration. This refusal
is unlawful because it is contrary to a series of treaty obligations binding
upon Norway according to which the present dispute between France
and Norway is a case for compulsory arbitration."
The third express reference is to be found at page 180 and is in these
terms:
"lfthe Norwegian thesisisto beunderstood in thesensethat it is only the
International Courtof Justice which is without jurisdiction, the Permanent
Court of Arbitration king competent in its place, the French Government
would observe that its offer of arbitration has been met by an absolute
refusal by Norway of any form of arbitration. The Government of the
Republic is thus hound to ask the Court to find that by reason of this
refusal of an offer of arbitration there has been a violation of the Con-
vention of 9 July 1904, the Convention of 18 October 1907 and of the
General Act of 26 September 1928."
So here, MI. President, within the pagesof one French pleading alone, the
Court isconfronted by no less than three specific and unqualified assertions that
the General Act was in force and capable of being invoked. Thus, nine years
after the event-namely the demise of the League-which is now said by the
Government of France to have killed the GeneralAct, it is being invoked by the
Government of France. Yet the Court is now asked to accept that it is manifest
that the General Act is no longer in force. What happened, one might ask, be-
tween 1956and 1973to make ifnow manifest? Indeed, what happened between
those dates that has any bearing on the validity of the General Act in these
proceedings? The answer. we submit, is nothing has happened.
Now, there was nothing casual or intermittent about the invocation of the
General Act in the French Observations of 31 August 1956, submitted by the
Agent of the French Government. In less than three weeks what had ken said
to the Court in the Observations was formallv reveated to the Norwenian
Gorernment in ii Sotc from the French hliniiryof Foreign Atld,rs ditcd
17Sepiemher 1956.The text of the Noie can be found ni page 301 of Voliime
1 of ihc 1C J Pli,udi~ig~. hc French Ciovernmeni apparently dccided to rcnew
iisappeal icithe N<irr\,egiiin Go\ernmcni tongrce ioarbirraiion c\en ifihe Iiiircr
uould not acscpt the juri<di;tion of ihr. Court. And so. in the courre or the
Note. the ~ren~h Government said:216 NLICLEAR TESTS
"The Government of the Republic has the honour to notethat a formal
refusal of al1arbitration in a disoute al the oresent time submitted to the
Court would assume great impoktance. By &e Arbitration Convention of
9 July 1904,the Second Hague Convention of 18October 1907,the General
Act of 26 Se~temkr 1928.~orwav has acceoted.in r.lati.n to France. the
hrniiil ohligLii~in> ofiirhitrditi>n ~he Gd\ertinieiii c,ithe ~epuhli; uo1.1~
bs wrry if ii uere ohligcrl icinoie tlixt ihc underiûkirig~ re\uliing frmn tliejc
agreementswere not ;O be fulfilled."
Clearly, the words of the French Note convey no other impression than that
of the existence in force of the General Act at the date of that Note, 17 Sep-
tember 1956.
The Norwegian Government replied to the French Note on 9 October 1956,
-.entlv remindine.-the French Government that the matter was alreadv under
;niiiidcraiion b) thc Courr aiid \IioulJ hr.Je.ili uiih aiihin the Iranieuorh uTihe
Ctnurt'> prcxsJure. Soir uii, ni>[ uniiliiihleniurisl. d.iicd 20 L>e<cmher1956,
that the Norwerian Government dealt with the references Io the General Act.
There are two significant features of the way in which the Norwegian Govern-
ment approached this task, which can be seen at pages 220-221 of Volume I
of the I.C.J. Pleadings.First, at no moment did it suggestthat the General Act
was no longer in force. To put it at its lowest, here is a point which either did
not occur to, or was rejected by, Norwegian counsel, who included Professor
Bourau.n. g.-erally acknowledged as one of the most skilled and distinguished
advocates ever to have appeare-dbefore this Court. 1sil then a point ;O clear
that it manijestlydeprives the Courtofjurisdiction in the present case?So there,
then, is one point of significance in the NorwegianCounter-Memorial: the fact
that it did not itself suggest that the General Act was no longer in force.
The second point of significance is that the Norwegian Government speci-
ficallv stated that the three conventions mentioned bv France. of which one was
thc Generdl Act. haJ neicr pret iouils kcn in\.okcd in tlic ciire. The Sorucgi~n
Cii>\crnnicni sonzluded tI~;l"if ilie krench C;i>vcrnmr.ntcnn<ider, itixt II ::in
establishthe comolaint that Norwav has not conformed to its obligations under
theic :onrcniisnr, oiie wc~ulrlput ~ine~elfin the prssensc oi 3 neu :laiiii".
The Fren:ti Repl) oi20 lebrusr). 1937msile n.>relcrc!i:c uIi<iir~nc\ertu tlie
Gencr.11A:!. The N\',,rueai~- f<ci,,inder OC 25 Aoril 1957rclirreJ 10 ttii, iii:r.
and its consequences, in its opening paragraphs:
"lt [that is the Norwegian Government] observes in the first place that
the French Government olacesno further reliance in its Reolv uoon either
the French-Norwegian Ârbitration Convention of 9 Juiy~l904 or the
General Act of Geneva of 26 Seotember 1928,to which it accorded a major
imoortance ~ ~~fs obse~ ~ ~on~ ~ ~ ~ ~clusions on the oreliminarv obiec-. .
tions. The arguments which it drew from themand to which the Norwegian
Government had reolied in its Counter-Memorial thus seemto have been
abandoned."
TheNorwegian Rejoinder also notedthat no further mentionhad ken made by
the French Government of ils Note of 17 September 1956 in which, as the
Court will remember, the FrenchGovernment had again referred to the General
Act.
Now, MI. President, we come to the oral hearings in the case.You will, 1 am
sure, forgive me for dealing with the case in such detail, but it is necessaryfor
three reasons. First, it demonstrates how, in the view of France, the General
Act was in force and applicable in 1956; and, second, itshows how careful
analysis will reveal the fallacious nature of the French annex; and, third, this is ARGUMENT OF MR. ELLICOTT 217
the only opportunity which is available to me, in the course of provisional
measuresproceedings, to assist the Court in appreciating the error of the con-
tentions advanced in the French annex.
During the oral hearings, the distinguished French Agent reintroduced the
subject of the General Act. He did this on 14 May 1957 when discussing the
question of whether the non-payment of contract debts was in the domain of
questions governed by international law. The relevant passagesof his speech
are Io be found al Daaes59 and 60 of Volume II of the I.C.J. Pleadiirrs.The
Agent \aiJ ihat ilic'?i;raegian reCu*alol arhitrsiidii hsJ a karin~ on the pay-
nient oi Noraa)'~ iniernatii)n~l i~hlig.iiidn> Ilc ~oniinucJ as Ioll~uj.
"The Norwegian Government directs its eiTorts to the idea that, if there
is a refusal of arbitration contrary to the international engagements of
Norway, this is a difïerent problem, a new claim. To this purelyprocedural
argument the Government of the Republic replies in Iwo ways."
First, the Agent said that the French reference to the treaties was a reply to
a Norwegian objection Io the Court's competence. Second, the Agent observed
that France had repeatedly sought arbitration. He continued:
"Once more, this lime before the Court-on which Norway, like France,
has conferred sovereignty over every legal issue-the Government of the
Reoublic a~~ealsIo the Norweaian Government to acceDtthe iurisdiction
of ihe COU;;. As my eminent cilleague, the Norwegian Agent,-knows, the
agreement of the parties is possible al any stageof the procedure. So once
more, 1 must, in the name of the Government of the Republic, remind him
of the formal undertakings of Norway, first under the French-Norwegian
arbitration treaty of 9 July 1904.. ., then of Article 17 of the General Act
of 26 Se~tember 1928: 'All disDuteswith regard Io which the ~arties are in
conilict asto theirrespective rights.. .shall besubmitted for decision Io the
Permanent Court of International Justice.' This provision is applicable
unless the parties choose an arbitrator, something which Norway has
continually refused.
The Court thus hadjurisdiction in Our case, on the Application which
the Government of the Republic had made toit on the basisof Article 36,
paragraph 2, of the Statute. becausethere is a point of international law
raised in a dispute of international law between Iwo States."
Here one finds the French Agent invoking the General Act as ifit were a
valid and efïective treaty. Nol only does he do that; he refers also specifically
Io Article 17,to which the Government of Australia also refers. And then, most
important of all, in understanding why the Court did no1 agree with Judge
Basdevant, the French Agent limited his statement of the basis of the Court's
jurisdiction to Article 36 (2)-the optional clause. For some reason, he did
no1 invoke the General Act as itself being a basis of the Court's jurisdiction.
But that reason. whatever it mav have been. coul. ~ ~ ~ave~been. in the liaht -
i~fthe~ay in \iIiiiliilic Azt n.~~citeJelre\r ticrc.:iny icclingc>nthe pirt of Fr~nce
thai [tic Act\\,LIno longer itiorx liit\\,LI~uI1i:~cnilyin rorceId form the bas,%
for the assertion of an obligation-and 1emphasize "'obligation"-to arbitrale,
il was sufficiently in force to serve as a foundation for the Court's own juris-
diction.
The passagewhich 1 have just quoted from the speechof the French Agent
is the explicit invocation of the General Act to which Judge Basdevant referred
in the aassageof his opinion which 1 quoted earlier in my speech.That Io some
persons at the lime il appeared something lessthan explicit, is indicated by the218 NUCLEAR TESTS
speechofcounsel for Norwayon 21 May 1957 (I.C.J. Pleadi~~gs V,ol.II, p. 125).
He felt obliged-as understandably he might-to comment:
"On this last ooint las 1 understand il. the reference to the General Act
2nd ~tlicr trc,iticr rcqu;riiig ,irbitratidn1:i>nic,\ th~t I dm net .<riln th,it
I Iiin <.>rre:tl> interprctin-, hi, (the French !\gent'.] icx\ihich rer.in\t<~nie.
to tell the truth, a trifle ambiguous. As it isan important question, on which
it is necessarythat we should beclear, he will,1 am sure wish to provide the
necessaryclarification."
No clarification was ~rovided. So. il is understandable that on this point
the Court ~nd Judgc tk,i~Je\mt slioulJ hd\e pariai .-snip-in'.. Ju<lgel3.isdci~nt
look the \feu thdi Frailx hdil in\oLc,l tltc Cienenil Act a;,3 I.-i,i< fur the Court's
,iiridc;tion The <'oiirt to~k the \ici\, th.it I.r.in:e hx<lnot. Tliu*. the <:ouri JiJ
ii,11diil'er Ironi Jiidgc B~wle\aiii on therlur.*ti,>ii oiwliether tiie Cicncr;iI Amus
still in f.~r:e.It5impl) \lc~ideJ th.11thc Gr.ii<r,il Ait :oiil.l 1\41he idken ints
LZ<JUIlI.
\Ir. PrcbiJeiit, I hd\c qent a great Jîsl <ifthe Court', tiine in cuniining the
.V,.T~<C~W /,',,,<A.C .A fe~ nt~mieot, dg,), 1 nic!tti~ncJ sdnie CI(tlie re.twii>
why. Now 1 can add two more: first, it contains, as 1 originally suggesled, an
expression of judicial opinion of the highest authority-that of Judge Basde-
vant-clearly to the efect that the General Act was in force in 1956.The Court
did not dissent from this view. The absence of discussion of the point in the
Court's own Judgment does not-contrary to the suggestion in the French
annex-imply any disagreement between the Court and Judge Basdevant on the
status or the General Act. It is only that the Court did not consider that France
had invoked the Act and therefore it was not open to the Court to take it into
consideration.
The second reason whv the caseis so im~ortant is totallv inde~endent of the
Judgment of the Court Ur the opinion of Judge ~asdevait. It stems from the
declared attitude of France itself. This attitude was that the General Act was an
international instrument still in force. That oosition js auite conlrarv to the one
which France now adopts. Why should the attitude of France be so-important?
It is becausethe French Government in the very Note of 16 May 1973in which
il rejected the jurisdiction of the Court relied,~in relation to the status of the
General Act, upon the attitude of the interestedparties, and, to quote the Note,
"en premier lieu de la France". While 1do not concede that this is necessarily
the right reason for attributing significance to the French attitude towards the
General Act, it is at any rate in the present casea reason which France cannot
reject as unsound.
One further point is established beyond controversy by this examination of
the French pleadings in the Norwcfiair Laailscase. It is the total falsity of the
suggestion, which appears at II,page 354of the French Annex, to the erect that
"the French position with regard to the 1928Act is only explicable by the con-
viction that in 1955 ithad fallen into desuetude". In that case, why was the
French Government repeatedly relying on it?Why did the FrenchGovernment
formally, in the raceof this Court, invite the Norwegian Government to accept
the jurisdiction of the Court in implementation of an obligation dependent
upon an instrument now said to have been obsolste and, so it would appear,
even then have been belicved to be obsolete? The question, Mr. President, is
a rhetorical one.
The French reliance upon the General Act in the Norwegiar~Loans case
-especially the firmness and lack of qualification with which il was constantly
reasserted-creates something ofa predicament in the present case.The content ARGUMENT OF MR. ELLICOTT 219
of the Frenchcontentions is clear. Either thecontentions were right or they were
wrong. If they were right-as the Government of Aujtralia believes-what
assurance is there bsfori the Court to show that the le:al pnsition as it was in
1956baschanged in any material respezt?And if, on the othzr hand, th%French
contentions w;rt wrona in 1955.one is bmnd Io ask wh:th:r, after the mlture
refliztion whiih clearl; preceded the argum-nts in th= Norw?zirr,r Loairr case,
the Government which made the statements then made is n3.a mnr; likely 10be
correct when advancin: the opposite views in a manner which excludes any
opportunity for forensic debîte.
On this aspectof the case,therefore, Mr. President, my submission is that the
ooinion of Judge Bïsdevant in the Norwexiaii Loafrscase,read together with the
oosition so ~recise>vado~.ed in that ~a~ ~~.the French Government. nr.v.des
irrefutable support for the proposition that the General Act is still in force.
That is a submission which aoesverv much further than the contentionthat the
jurisdiction of the Court isiot manifestly defective.
1 nowturn to a consideration of the relevance to the continuing validity of
the General Act of the conclusion of the Revised General Act under the
auspices of the General Assembly of the United Nations. The Court will, 1
venture to believe, receive with some relief the news that 1shall not deal with
this point so fully as1 did with the point regarding the Norwegiarr Loarrscase.
Even if the French Government had no1 introduced the annex into this case,
it would have been our intention to have referred to the General Assembly
resolution 268 (111)of 28 A~rii 1949 as nrovidina further evidence that the
General Act is in force or ai any rate is kt manifestly lacking in force. The
terms of the French annex only serve to emphasize the need to refer to this re-
solution.
There are three recitals in the preamble to this resolution which must be read:
"Whereas the efficacv of the General Act...is imoaired bv the fact that
the organs of the League of Nations and the Permanent Court of Inter-
national Justice to which it refers have now disanneared,. ..
Whereas the amendmentshereinafter mentionedareofa nature to restore
to the General Act ils original efficacy,
Whereas these amendments will only apply as between States having
acceded to the General Act asthus amended and, asa consequence,will not
affect the rights of such parties Io the Act as established on 26 September
1928who shor,ldclait~rto iiivoke if iir sofurasit mighf still be operative."
(Emphasis added.)
These recitals are then followed by the operative part of the resolution which
consists of seven paragraphs. One of these. paragraph (a), is concerned with
the substitution of the words "International Court of Justice" for "Permanent
Court of International Justice" wherever the latter words appear in the General
Act. The remaining six paragraphs al1contain amendments to other parts of the
General Act which wëre affeited bv the disaonearance of the ~eaeue. For
example. the reference to the ~ctin~.~resident 8i te Council of the League is
replaced by a reference to the President of the General Assembly of the United
Nationsand the references to the Secretarv-General of the Leaeue are reolaced
by references to the Secretary-General ofthe United ~ations.-~lto~ethér, the
replacement of the Permanent Court by the International Court affects 12
articles of the General Act; the other amendments affect 10articles.
It will be readily apparent, therefore, that reliance upon Article 37 of the
Statute of the Court to effect the replacement of the old Court by the present
Court would only have been a partial solution to the problems affecting the220 NUCLEAR TESTS
Genersl Act 3%3 re,uItUI the demi.e oî th< I.eaguc. To \uggcsi. ;is the French
diinex d<ics.that the Cienerdl ,\cc ~d, the jubjczt oi a weiial re\.isioii bc;au~e
itwas deadand had to be revised distorts the function of the General Assemblv
resolutionby pretAding that the resolution was concerned only with the sub-
stitution of the present Court for the oldCourt. This wasnot thecase. To restore
the General AC; to its full effectivenessit was necessary,as the first preambular
paragraph which 1 have quoted makes clear, to replace also the organs of the
League which had disappeared and upon whose existence such vital matters
as accessionand denunciation appear to depend.
The samepoint can be put in another way: the General Assembly, though it
had the opportunity to say that the General Act was defunct, didnot do so. Il
merely said that the efficacy ofthe Act wasimpaired and wasconcerned to restore
ils original efficacy. In the English language, if thesewords mean anything, they
mean that the text involved was still in part effective. And it is by that partial
effectivenessthat the Court is endowed with iurisdiction in this case.The efiect
oi paragrdph '<, of the oper;iiirc. pdrt oi the re,oluii<in is .i:liieied by Arti:le
37oiihs Sisiute -1 empha,i?e the a\irJs '.iheerk~i <ifthis p.iragraph", nïniel)
the substitution of the nresent Court for the old Court bv Article 37. ButArticle
37ofthe Statute could not do more than that In particular, it couldnot actually
revise the text of the old General Act and replace the very words of that Act by
others. Hence it is natural and understandable that when the Act was revised
-as it had to be-to replace, for example, the references to the Secretary-
General of the League, it should also have been changed to make ils actual
words reflect the alteration in ils effect collaterally secured by Article 37 of the
Statute.
This analysis of the General Assembly resolution serves,1submit, to explain
also the last phrase of the third preambular paragraph-"in so far as it might
stillbe operative".
The Court will remember that the French annex seizesupon those words as
conveying some suggestion of doubt regarding the continuing validity of the
General Act. That, however, with respect, is a misinterpretation. lt overlooks
the fact that. as 1have iust indicated, some parts of the General Act were ren-
clere.linspçr.iblr. by !lie rlt~sppe;irariceof ihe I caguetirg.ins. Otticr pdrts ahere
referen:~ \r:i.m;iileid the I3<rnidncrii Ct>urt irere hept goin%b) the \n>pici oi
,\rit~lc 37 oi the Si~ic~ieoi the nre;cni Court. Sst ille uord. ''ln sd Isr si," are
not to be equated with "if". ~hey are no1 to be read as reflecting a doubt
regarding the continued validity of the whole General Act. They are, more
correctly, to be read as a quantitative reîerence to the scope of the General
Act still operativeafter the demiseof the League-that is, asa reîerence to those
parts of the General Act still capable of working as a result of Article 37 of the
Statute. The qualification is, in other words, a reflection of the substantive ex-
tent of the inoperability of this old General Act. It is not the expression of a
doubt about the whole existence of it.
But even if the resolution leading to the revision of the General Act can be
read as suggesting a doubt as to the efficacy of the whole Act, which 1 do no1
accept as the case, it is still only a doubt. It is not a certainty. Even the French
annex does not ao -a Carin this connection as to suggest th- -the resolution
reiieci; niore thdn ,Idoithi. IiI\irue. sityhthç~nneu. thxi the \oie oiihc <;encra1
Asseiiibl) oi the L'niieil Satioii. and ihc opeiiing îor scgn.iture i1I3 rchi,eJ ,\ci
were no1accompanied by any clear affirmation that the original Act had lapsed.
This is a significant if no1 critical admission. Even the French contention re-
cognizes that the situation created by the existence of the revised General Act
is no more than one of doubt. As 1havesubmitted, it is no1evena caseof doubt. ARGUMENTOF MR. ELLlCOTT 221
But if it is, it certainly does not satisfy the law as hitherto stated by this Court,
that in nrovisional measures nro.eedi~ ~ ~ ~ ~ll nroceed unless it is manifestlv
withoutjurisdiction. The introduction G~adoubt'of the characterjust indicated
does not create a manifest lack of iurisdiction. At most. it isa doubt-a douht
which will have to be discussed and det-rm-ned at thestaee of the-case when
questions of jurisdiction should normally be considered.
This should. Mr. President. be sufficient to dispose of the passages in the
French annex referring to the General ~ssembly~resolution and the revised
General Act. There is, however, one passage in the comment on this resolution
which appears in the French text and which, in Our respective submission, is
inaccurate and misleading.
The French annex suggests that the General Act is interesting on several
counts. The first relates to the so-called dubitative quality of its expression.
Of this 1have already spoken.
The second comment made in the French annex is in these terms:
"The resolution allows for the eventuality of the Act's operating if the
parties agreed to make useof it. The condition istherefore that there should
be agreement between the parties for the Act to be able to operate. This
condition is not fulfilled in the present case."
This comment, Mr. President, appears to be without foundation. There is
nothing whatsoever in the resolution ta support the suggestion that it allows
for the eventuality of the Act'soperating if the parties agreed to make use of it.
1 can say no more upon the point than that.
The third comment on the General Assembly resolution in the French annex
is this:
"On the other hand. ifthe 1928Act werestillin forceat the moment when
the Revised Act was concluded, it is somewhat difficult to understand the
above-cited passage of the General Assembly resolution to the effect that
the amendments '&illonly apply as between States having acceded to the
General Act'."
1have read thissentencefrompage3' of the revised text of the Registry's trans-
lation of the French annex. This does not fullyreflectthe original French in that
it omits the word "revisé" after the last mention of the Geniral Act. The result
is that an already weak argument is made to look even worse. In truth, it isjust
because the 1928General Act is still in force that the amendments introduced
in 1949 would operate only between those States which signed the Revised
Act.
Mr. President and Members of the Court, if 1 terminate at this point the
development of my submission that the General Act of 1928 isstill in force,
you will have some appreciation that it is out of consideration for the Court,
and not otherwise, rhat I do not press my arguments further at this stage. The
-~tuat~ ~ i~ which 1should have. ina soeech on interim measures. been oblieed
7 ~
10 con5ider question5 oi jurisdiciion in depth is boih unprccedenied and in s
sense unsaiisfactory. Iiariscs onlv kwure of the P~ilureof the Fren~.hGo\,ern-
ment to appear and its resort to ihe "extra-procedural" device of an argumen-
tative annex attached to its letter to the Court. 1could not ignore a text which,
however non-receivable it may be, has been received and has no doubt been
seen by the Court; and 1 have ken bound to demonstrate that its principal
contention, that the General Act of 1928is no longer in force, is notably false.
' II, p.350.222 NUCLEAR TESTS
Before finallv leavine this ooint. there is one reference which it mav interest
the Court to have. So iar 1 have been dealing with the position of théGeneral
Act in1949in the light of the General Assembly resolution of that year. Earlier
1 had shown in detail how in 1957 the ~rench Government had asserted the
continuing validity of the General Act before this very Court. As 1 suggested
earlier, there is no reason in law why an instrument which was valid in 1957
should have ceasedto be valid in 1973.the more so as 1have answered. 1 hooe
under Article 36 (1) of the Statute. Still. 1 oueht oerhaos to sav iust a word
about the general'&ggestion made in the ~reich annex to the éfect that the
General Act has fallen in10 desuetude.
The fact that a 1rea:v is old is acknowledeed bv the French annex no110be a
reason by itself for reiarding the treaty as ferminated. Nor does the fact that a
treaty has not been actively invoked for a considerable time mean that it has
come to an end. One looksin vain in the articles of the Vienna Convention on
the Law of Treaties to find any acknowledgement of the operation of desuetude
as an independent causeof the termination of a treaty. The explanat~on is to be
round in a .aw-~~-~n~the Commentarv to draft Article 39of thc Lriw of Treaties. ~,
now Article 42, presented by the Intirnational Law Commission in 1966. It is
there stated:
" ...the Commission considered whether 'obsolescence' or 'desuetude'
should be recognised as a distinct ground of termination of treaties. But
it concluded that, while 'obsolescence' or 'desuetude' may be a factual
cause of the termination of a treaty, the legal basis of such termination.
when it occurs, is the consent of the parties to abandon the treaty, which is
to be implied from their conduct in relation to the treaty."
Do 1 need to sav more than that there is no evidence of any consent bv Aus-
ir.ilij io;ibünili>n thr.Ciencr;,\.Y'Nur :an dn) \ii.Ii <on.;r.iii hr.irnp11r.Jironiits
cundil:!. In dny cdhe. 17r.lnic in\i>kr.J the Ciciicrr\:t.ml!. IO yr..trs.,go hciur~
tlii, C<>url.AiiJ on II Dcicnihcr IOh4 llic IFrr.ii:li \Iini\icIOr rurc'ipii Aitir.
referred in the National Assembly to the continued existenceof the General Act
as a reason why France would no1 then ratify the European Convention on
Pacific Settlement of Disputes. It is, therefore, difficult to see in this situation
any mutual agreement between Australia and France to regard the General Act
as having expired.
To put the matter in another way, ifthe Court were to hold that the General
Act had fallen into desuetude, a standard of loosenessin treaty commitments
would have beenacknowledged which would have, to say the least, devastating
effect upon the established pattern of treaty relations between States. 1 believe
that 1have said enough on this topic.
Mr. President and Members of the Court, any attempt at recapitulation of
mv.argu-ent mus1be either so detailed as to be rer>etitious. or so superficial
as to obscure the effective substance of the grounds on which the Governrnent
of Australia makes its own caseand meets the points raised in the French note
and annex of 16 May.
If1 may say so, Mr. President, there has probably been no previous occasion
inthe Court's history when a party al such a stage in the proccedings has de-
veio~ed an answer to an attack uoon the Court's iurisdiction. The initial as-
sumption properly made, having regard to the ~tatite and Rules of the Court,
by theGovernment of Australia when it prepared for these oral hearings, was ARGUMENT OF MR. ELLICOTT 223
that its task would be to establish a casethat the absenceof the Court's juris-
diction is not manifest.
The Government of Australia did not believe what had in international
aiïairs oreviouslv been unthinkable. that the Government of France would not
appear'before this Court in these proceedings. However, surprised though the
Government of Australia has been, it has endeavoured to satisfy its own con-
ceotion of what is rie-t for an ao..icant State before this Court to do: to orovide
the Court with as much assistanceas time and circumstances permit.
The reliance olaced by Australia on the General Act may have been unex-
pected, that is no fault of ~ustralia's. Sheis doing no more than relying upon an
instrument which could itself have been invoked against her. Equally, there is
no reason for refusing to apply a treaty which in al1 respects malerial to this
case shows every feature of validity. Nor is there any need to be apprehensive
about giving proper eKect to the General Act as invoked by Australia today,
bearing in mind the Court's jurisdiction.
The Government of Australia. in invokine the General Act. does not seek
to expand it beyond its proper limits. The Government of ~"stralia is fully
conscious of the reauirement that iurisdiction is dependent upon consent. At
the same time it is abare that the modes of giving consent are classified and
regulated byArticle 36 of the Statute. So Far as the General Act is concerned,
il is a caseunder Article 36 (1).
Recognition of the validity of the General Act doesnot mean, of course, that
the Court thereby acknowledges a means of recourse in every case which may
arise between the varties to the General Act. Where, in a treaty bearing upon a
plirtl~ul~r whjc~r, pr,>\i$i~n ir niade f,ir ihe\ctilcnicioidisp~ics b) rhi\Court.
\ciilcnieiiiiJri i;ihc pl:i:c ml! iiiiilcr ihst pr<i\i\ion. Ai the $*nie timctt must
bc ,cm Ih.11. ar.l hxic ~1rc.i.J~~uhiiiiitcd. dcil~rati~>n\mdc unJcr ilic Ooiion.11
Clause cann'o~ ~~ ~o~.~ed~w~ih treaties containinrr -.ecial~ ~~tlement orobisions.~ ~ ~
Furthermore, Optional Clause declarations cannot in law exhaust the juris-
diction-creatine will of the varties which make them. Such declarations onlv
i~tTcc.;iiiiters i~f<u\i<inisr) inieritsti,>ii.il Iau. or conicnii<~n~lmarier Icnr\ihi,.li
111,nthcr \pc.iti< ~~t~lcnicntpr\cc,iurc II.<<ken prexrihc,I
hlr. Prc~iilcnt. the C'<>iirtutIl .,lso no tlouhi ui\ht,i rctle~i on ihc faci th~t
while France is bound by the General Act today, there is no reason why she
should remain bound for the indefinite future, if she wishes to take the ap-
propriate steps to release herself. As consent created the General Act, so con-
sent can terminate it. True, the precise procedures of denunciation set out in
Article 45 of the General Act cannot now be followed because of the disap-
pearance of the Secretary-General of the League of Nations. However, he was
really no more than the agent of the parties to receivenotice of the denunciation.
With his disappearance there is no reason why his principals, the parties to the
General Act, should not regain their original powers. Consequently, there is
nothing to prevent a party to the General Act from communicating at the
appropriate time, that is, six months before the expiry of the five-year period,
with al1 the other parties to inform them of that party's wish to denounce the
treaty.
May 1 conclude by saying that few Orders of the Court would be more
closelyscrutinized than the one which the Court will makeupon this application.
Governmentsand people al1over the world will look behind thecontents of that
Order to detect what they may presume to be the Court's attitude towards the
fundamental question of the legality of further testing of nuclear weapons in
the atmosphere. Those ouiside observers are also bound to take note of the
somewhat technical character of the French contentions.224 NUCLEAR TESTS
Mr. President, you will 1am sure forgive me if my anxiety to place before the
Court as many as possible of the considerations which appear to us to be ma-
terial, has led me to assume, 1 hope wrongly, that my task is harder than it is.
In presenting this case to the Court, Australia is acting in the interests of many
beside herself. And my colleagues and 1have come to regard the responsibilities
resting upon us as ones which have to be discliarged with an unusual degree of
commitment to the cause which we serve. Accordingly, 1 conclude with the
formal submission that the Court, acting under Article 33 of the General Act
and Article 41 of the Statute of the Court, should lay down provisional measures
which require the French Government to refrain from carrying out any further
atmospheric nuclear tests in thePacific Ocean pending thejudgment in this case.
Mr. President and Members of the Court, I thank you very much.
Mr. BRAZIL: Mr. President, the Registrat asked me late yesterday for the
report relating to the recent discussions between Australian and French
scientists referred to in the speech yesterday' by the Australian Attorney-
General. We have been happy to provide the document in question. It has been
deposited with the Registrar in the course of the morning, as 1 thirik you are
probably aware2.
With the indulgence of the Court, the Attorney-General would wish on be-
half of the Government of Australia to make a short statement tomorrow
morning in relation to one or two matters relerred to in that document. With
the completion of that statement that would complete the oral submissions that
the Australian Government would wish to put to this Court at this stage.
The PRESIDENT: The Registrar will draw your attention to Article 52,
paragraph 4, of the Rules of Court. Since the Attorney-General made reference
to the document yesterday. the document should be produced to the Court.
But the Court will be glad to hear his introduction.
The Coitrtrose at 12.45 p.m.
Seep. 170, supro.
Sec p. 540,infrand II, p.364. ARGUMENT OF SENATOR MURPRY
THIRD PUBLICSITTING (23 V 73, 11.05 a.m.1
Presenr: [See sitting of 21 V 73.1
ARGUMENT OF SENATOR MURPHY
COUNSEL FOR THEOOVERNMEN TF AUSTRALlA
Senator MURPHY: Mr. President and Members of the Court. In compliance
with the request made by the Court, copies of the documents issued by the
Australian Academv of Science relatine 10 the recent talks between Australian
and French scientists on 7 to 9 ~a~llast were deposited with the Registrar
yesterday morning.
Mr. President. as was indicated bv the Australian Agent at the close of
yesterday's public hearing, 1 wish to make a few short comhents on the report
of the meeting between Australian and French scientists. As page 170, supra,
shows. .1 a.oted onlv the aereed oor.ion of their reoort. 1 did so solelv for the
purpox oieiilihli\hing tliiiihc French Cis\crnnient s.'iciiiiris <Ilil n<it di,p~te
ille ierid.rii)tifciep~,it ,if rsJi<i.ucriie niaitcr <inAusrralilis<)ifrorn t.ren:h
tests. The ouoted ~ortion clearlv establishes this
,\<the Cour! uiII \ce froni the Ji~cument \rli..'li h.~,hcendcpc~riir<l,the agreed
Pdrt .Aof the report ~<iiii3iiir ihc iahle ~~ido~eiommiimcnt~. Io \ihi.h rckrciice
was made on 21 Mav. Th~,French and Aus~ ~li~n scientists were unable to
agree on the exact extent of the biological consequences.The French officials
have in their Part B sought 10 demonstrate that French atrnospheric nuclear
weapon tests in the ~acific are without hazard by invoking dose-limits recom-
rnended by the International Commission on Radiological Protection (ICRP),
by arguing that the radiation doses from those tests are small compared with
those from other man-made sources of ioniring radiation and by comparing
those doses with those inevitably received by populations from natural back-
ground radiation. Let me examine those propositions.
It is necessarv to bear in mind that the ICRP draws a distinction between
controllable soirces of radiation, such as planned releasesof radio-active sub-
stancesfrom nuclear power reactors, and uncontrollable sources,such asradio-
active debris from nuclear exolosions. This is referred to in o.ragr-.h 50 of the
request. The ICRP identified nuclear weapon explosions as an uncontrollable
source of radiation.
French officials compare the radiation dosesfrom Frenchatmospheric nuclear
tests in the Pacific with the dose-limits recommended by the ICRP, which the
French wrongly suggestedwere for the total population. This is an unjustified
and erroneous use of these dose-limits which the ICRP has recommended for
controllable sources of ionizing radiation. Ionizing radiation from French
atmospheric nuclear tests in the Pacific is an uncontrolled source.
Then. .oo. .hese dose-limits recommended bv the ICRP are not intended for
appli:liii<in uith rc\pe<i to th\ihole ,iiiI~e ps~pul.iiionofc:ouniry. Spcciiicdl)
the) arc re:oninicnded for :ippli:.~iion in thc pl:iiininp of rddidtion pr,>tection
and of ooerational oroceduresso as to ensure that the radiation dosesreceived
by smlill popul.iti<iti groupç. li\iniiithe nciglih<iurhood olli r~d'stii>ii i~ciliiy,
or eïpo~eJ to ioni,inr: radiation 3s ilrciuII of3 pnrticuiar pr.I~'iice aiillin th21
country, are kept tolow levels. It is explicit in the recommendations of the226 NUCLEAR TESTS
ICRP, ivith respect to dose-limits, that national authorities in the country
whose population is exposed to controllable man-made sources of ionizing
radiation should make a conscious decision between the radiation risk of the
practice and the benefits, social or economic, which accrue from the practice.
Austrsiia acknowledges that it is the richt of the French Government to
determine thc Ici.r.1~<irr~<li8[ioné\p<iiure to~ hich Ille popul~tiain of the ïretich
Kepuhltc 1sehposed.tqually, Austr~lia cl3inis for itself the right of deterniining
thi controls uoon levels of radiation exposure to its ~.~u.ation
'l'o pur the poini ;in<>thcrusy, the French Go\ernment h31no right IO impose
upon thc t\ustr.ilixn Cio\ernment tlie 1;renL.hGo\ernment's \.ieus of nhat arc
acceptable levels of radiation doses for the Australian people.
The Australian National Health and Medical ResearchCouncil has adopted,
for application in Australia, the dose-limits recommended by the ICRP for
members of the public. In making this decision the National Health and
Medical Research Council explicitly accepted those dose-limits for application
with respect to practices within Australia involving the use of controllable
sourcesof man-made ionizine. radiation and with resoectto critical croups ofits
population exposed to ionizing radiation from a particular practice. lt is the
contention of the Australian Government that it alone has the right of regu-
latine sources of man-made ionizinn radiation within its territories. havinc
rega;d to ils assessmentof a balance bétweenthe benefitsand risks to its people.
By seeking to apply for the total Australian population, with respect to ifs
atmos~heric nuclear tests.the dose-lirnits recommended bv the ICRP for critical
groupl of the public, France usurps the absolute right of the Australian
Government.
The action of France. bv increasina the eeneral level of radiation to which
the Australian population ;s subjectéi, th& unnecessarily impairs the oppor-
tunity of Australia to exerciseits sovereign right of choosing to allow its people,
o~ -~~~~~f them. i.~~~selectedarea. ~~.uoati.n o~ ~ther Cateeorv.-to .. be sub-
jected to artificial radiation for purposes with compensating benefits.
It is incongruous for the French Government to seek to apply dose-limits
rcconimrndciÏ by the ICRPsnd set IOiail to rccognize and apply the principlei
and issumpiions on \\hich thdi Ci~mmirsion basesils dose-limiis. Thcic are thil
"any exposure to radiation may cdrry some risk for the development of somatic
effects, including leukaemia and other malignancies and of hereditary eiïects,
and that down to the lowest levels of dose the risk of inducing diseaseor dis-
ability increaseswith the dose accumulated by the individual".
The~Fr~nch Government. in seekine - 10find a reassurancefor its radio-active
contamination of man and hisenvironment in the dose-limits for critical groups
of the public recommended by the ICRP, might also have noted the following
comment in the sameoublicaÏion. The ~ommission observesthat "when whole
populations or large sections of populations are exposed, it becornesnecessary
to consider not only the magnitude of individual risks but also the number of
personsexposed". ~he commission points out in this context that "even when
individual exposures are suficiently low, so that the risk to the individual is
acceptably small, the sum of these risks, as represented by the total burden
arising from somatic and genetic dosesin any population under consideration,
may justify the effort required to achieve further limitations of exposure".
The Australian Government subscribes to these observations and believes
that ils efforts to seek provisional medsuresof protection through this Court,
when al1other approaches have failed, arc justified.
1now refer to natural background radiation to which populations from the
beginning of life on earth have been inevitably exposed. The French Govern- AROUMENT OF SENATOR MURPHY 227
ment has argued that the radiation dosesto the Australian population, and to
other populations, from ils nuclear weapon testing in the atmosphere, are but
small fractions of the annual natural backeround doses.and..inde.d. that the
radiation dosesfrom the radio-active fall-oit from thesetests are embraced by
the variations which occur in natural background dosesevenwithin a large city.
However. il is imolicit in this casebefore this Court that the Australian ~overn-
ment must, with respect ta ils people, look at the total radiation scene. 1would
liketo quote what 1regard asan important paragraph from the recommendations
of the International Commission on Radiological Protection.
"On the assumption that the risk of radiation injury is directly propor-
tional to accumulated dose, it follows that exposure from natural back-
ground carries a probability of causing some somatic or hereditary injury
which would be present even without the addition of man-made exposure.
Furthermore, other environmental factors and innate causes quite un-
connected with radiation may add to the risk of developing those same
injuries that might be caused by radiation exposure. Thus, provided there
is no synergistic eiïect between irradiation and other factors, the total risk
of injury will he the sum of the risk from irradiation from either natural
or man-made sourcesplus the risks resulting from environmental and other
causes.''
The total radiation scene for the Australian population involves natural
background radiation; it involves man-made sources of radiation which have
direct benefit to the Australian population; it furtherinvolves al1pas1nuclear
weapon tests, including those carried out hy Frünce in the atmosphere in the
Pacific Ocean and, in particular, furlher nuclear weapon tests which Australia
has.reason ta helieve France proposes to carry out in the atmosphere at its
Pacific Test Centre.
As set out in oaraera~h 51 of the reauest. Australia. throuah reculations and
. -.
through codes of practice, can, and 'does, exercisecontro'i ov& man-made
sources of ionizing radiation from which its population derives benefit. These
controls are under constant review 10 take account not onlv of increases in
scientific knowledge and technical developments, but also 0.f the balance of
benefits and risks to the Australian population. STATEMENT BY MR. BRAZIL
AGENT FOR ME GOVERNMENT OF AUSTRALIA
The PRESIDENT: Some of my colleagueswish to put some questions to the
Agent of Australia, but before doing so will you kindly make your subrnissions
to the Court.
Of course there will be no needfor you to answer the questions immediately.
The Court and I will give you every opportunity to reflect upon the answers;
you can submit them in writing or nt a later sitting of the Court.
Mr. BRAZIL: The Statement just made by theAttorney-General of Australia
cornpletes the stalemenls Australia wishesto put atthis stageof the proceedings,
and 1 would now like to conclude ihis part of Our casewith the formal submis-
sion that the Court, acting under Article 33 of the General Act and Art41le
of the Statute of the Court, should lay down provisional measures which
require the FrenchGovernment to desist from carrying out further atmospheric
nuclear tests in the SouthPacific Ocean, pending the judgment in this case. QUESTIONS su MEMBERSOF THE COURT 229
QUESTIONS BY JUDGES DILLARD, JIMÉNEZ DE ARÉCHAGA
AND SIR HUMPHREY WALDOCK
Judge DILLARD: My question is as follows:
Bearing in mind that the Revised General Act of 1949provided a method for
making effective the provisions of the General Act of 1928, and thereby re-
movinr anv doubt as to thecontinued eiïectiveness of most of its orovisions. can
you as& Ls by oflering any explanation for the seeming lack oi willingness of
those States parties to the 1928 General Act, including France and Australia,
to accede to the RevisedAct?That auestion issubmitted bv mealone: the second
question is submitted on behalf of ~ud~eJiménezde ~;échaga and myself. It
follows:
In his statement of 22 May, at page 202, supra,the Solicitor-General of Aus-
tralia referred to the Permanent Court's Judgment in the Electricity Company
of Sofia andBulxariu case.
'i2kiilg inIo a.'cilunt the special cir.'unl~tdn.'e~oithe prc>enl proieedlngs. u'e
u<iuldappresiîte ii i:,iunscl for ilteAppl!ant.'oulJ a,rist us byalso e.v~miriing,
inrelation to the present case, the views enpressed in the dissenting opinions
of Jude-s Anzilotti and Hudson. o,.ticularlv on the relationshi~ between~treatv
provisions on peaceful settlement and declarations containing reservations or
limitations to the acceptance of the Court's iurisdiction under the Optional
Clause.
Judge Sir Humphrey WALDOCK: 1should be grateful if the Agent of the
Government of Australia would assist me on two points relating to the sub-
stanti\,c. as Ji,tinct froni the juri~diction~l. aspoftits rcque,t for the inJii3-
ticln oi interini niedsures ui prote;tion.
First: Does the C;<~iernmcniforniulate II\reque,t on altcrn;itiic bases, thir,
either on Article 33of the Gcnerdl A;[ aii1928.or on Arti.'le.II oitheSistutc 01'
rhe Court, or Jùei iliorntul~te ils rcquest on ihuse tu<]Articles in ci1mhin31ion'
Secondlv. does the Government contend that the Court iscomvetent to indicate
interim measures of protection on the basis of Article 33 of'the General Act
of 1928,without having first decided whether or not the General Act is still in
force between Australia and France?
The PRESIDENT: These are the questions put to you and, as 1 indicated
earlier, there is no need for you toeply immediately if you are not prepared to.
You can submit the replies in writing or notify us as to the date at which these
replies will be given. In any case, the Court will expect the Agent of Australia
to hold himself at the disposa1 of the Court, should any other questions arise
for the need of the further procedures of the Court.
Mr. BRAZIL: Mr. President, Members of the Court, the Government of
Australia is grateful to have this opportunity of answering these questions, of
assisting the Court further in this importantmatter. Naturally, we would like to
take a bit of time to prepare Ouranswers, and of course we willanswer along the
lines indicated by you, MI. President, i.e., we will answer in writing at a later
stage, or orally if that is desired, and I think you indicated earlier that this
would bepossible.
The Court rosear 11.25 a.m. FOURTH PUBLIC SITTING (25 V 73, 12.05 p.m.)
Presesr: [Seesitting of 21 V 73, Judge Dillard absent.]
ARGUMENT OF MR. BYERS
COUNSEL FOR THE GOVERNMEN OTF AUSTRALIA
The PRESIDENT: The Court meets in order to give the Arent of Australia
lin i>pporiunit)1,)reply Io ihe queriions p.11tu him b? ~~dges-~illaril. Jini2ne~
de ,\rc;hag;i and Sir Iluniphrey M'lildock. Judge Utllard is unfortun~tel~ pre-
vented from being on the Bench today in view of health, but we hope that hekill
be back soon.
Mr. BYERS: Mr. President, Members of the Court. Mav 1 exmess to the
Cuurt niy >enseoi privilcgc in appciiring hcfore II iii (hi\ iaie. In so sii).ing. I
am conscious of that luniinour e.\pression of the principlei of inierniitionaIaa,
that characterize the iudgments of the Court. 1have the honour now to oresent
on behalf of the ~ust;alian Government the answer to Sir Humphrey waidock's
questions.
The Government of Australia interprets Sir Humphrey Waldeck's questions
as beingconcerned with the identification of the instruments to which the Court
must turn as laying down the conditions under which the Court may grant
interim measuresof protection.
In approaching both of Sir Humphrey's questions, the Government of
Australia is conscious that a difliculty might arise if further reliance is placed
by iton Article 33 of the General Act in addition to Article 41 of the Court's
Statute. The Government of Australia seesthis difficulty asbeing that the Court
might feel called upon to determine asa necessarycondition for the application
of Article 33 of the General Act the question of whether the General Act is still
definitely in force. As the indication of interim measures is now a matter of
pressing urgency, the Government of Australia does no1 consider that, at the
Dresenttime, ilshould Dressfurther for any definite decision on the validitv and
etlèrt if the (ienerïlAct r\i mubt, II i<onlg ne~.essaryior thc Governn~éntof
Au\trsli:~IO in\oke thc General ,\CIas a biiris ior the Court'%,urisdiction under
Arti.le 3h II 1of the St.~tuieor the Court. and nroviiled tliat the Gorcrnnienl of
Australia ca" show that the Court is not manifestly without jurisdiction by
reference to the General Act, the requirements previously laid down by the
Court for the indication of interim measures under Article 41 of the Statute
would be satisfied.
1turnnow Io the answersto the twospecificquestions posed by Sir Humphrey.
The first question was: "Does the Government formulate its request on alter-
native bases,that iseither on Article 33 of the General Act of 1928or on Article
41 of the Statute of the Court, or does it formulate its request on those two
Articles in combination?'The answer Io this auestion is that the Government
of ,\u\trxlilbaer ils rcquesi Corinterim nieasurrs tirst and Iorem<iston ;\riicle
41 111ilic Siatute of the Court-lin instrument the fur.'ç and elleci of whish is
no1 in ildubi. Suh\iJiarily,2nd onlv if the <'ouri shduld find that il is. on the
material now before if,able to reach a conclusion that the General Act is still
in force, the Government of Australia hasalso rested its request for provisional
measures on Article 33 of the General Act of 1928. ARGUMENT OF MR. BYERS 231
Sir Hum~hrev.s se.ond auestion was: "Does the Government contend that
the Court is competent to ihdicate interim measures of protection on the basis
of Article 33 of the General Act of 1928without having first decided whether or
not the General Act is still in force as between Australia and France?"
The answer tu this question is that the Australian Government contends that
the Court is competent, as already stated, tu indicate interim measures of
.ro~ ~ ~ ~ ~n t~e basis ~f ~ ~icle 41 of the Statute of the Court ~rovided that
the Couri is shuwn io be not maniie,ily witlioiii )urisiiieii,>n. TIiç Au,lrslian
Go\ernmeni also coniends. in ihe altcrnatii~e. lh31 the Couri wuuld be eniitled
tu-indi~ ~e interim measures of orotection on the basis of Article 33 of the
Cieneral Aci if ihe Couri ucre satiitied ihat ii wa.i ncit maniie<ily uithoiii juris-
diciion under ihxt Act. lioue%cr. in vica. ui the dire urgency of the rnatier, the
Go\ernment of Au,tr<ilia uould iisi wish thcre IO he an). delxy on the pari ui
ihc Court in granting inierini mc;isuresby rr'assnof the iact ihat the <'ouri Itiund
11 nece\\ïry ...rs beyond uhat uas needed tu ~usrify the indication> or interirn
rneasuresunde~ ~ ~~ ~~ ~1 ~ ~~
The Government of Australia takes the present opportunity of recalling and
em~hasizina the basic distinction which it seesbetween the Court's jurisdiction
under ~rticÏe 36 (1) and 36 (2) of the Statute. It recalls the clear terms in which
the Solicitor-General, on 22 May 1973, submitted that unilateral reservations
made by the French Government under Article 36 (2) were incapable of re-
stricting the jurisdiction possessedby the Court under Article 36 (1) of the
Statute. This said, the Government of Australia ventures the observation that,
whatever the precise source to which it points as a basis for the Court's juris-
diction, ultimately that jurisdiction must derive only from the Statute, which
has opened up two difirent routes ofaccess to the Court under Article 36 (1)
and 36(2) respectively. And further, that there is nothing in the words of Article
36 (2) to subtract from or contradict the jurisdiction conferred by Article 36
(1). Each of the paragraphs is an independent source of jurisdiction. But the
fact that al1 jurisdiction derives from the Statute makes it sufficient for the
Government of Australia, as already stated, to rely at the present lime ex-
clusively upon the competence of the Court to indicate interim measures of
orotection under Article 41 of the Statute.
7
\Vc iiould, 1~211~. rec.ill the submissions of the Solisiiùr-Gencral il111 the
csnteni of Arricle 41 i,I the Cciurl's Si.~iute is ideniical uiih thai uf Article 33
of the General Act of 1928. ARGUMENT OF PROFESSOR O'CONNELL
COUNSEL FOR THE GOVERNMENT OF AUSTRALIA
Professor O'CONNELL: Mr. President and Members of the Court. 1 ap-
preciate the honour of replying on behalf of the Government of Australia to the
question put by Judge Dillard, which is as follows:
"Bearina in mind that the Revised General Act of 1949 ~rovided a
method fo; making effective the provisions of the General Act of 1928,and
thereby removing -ny ~oubt as to the continued effectiveness of most of
its provisions, can you assist us by offering any explanation for the
seeming lack of willingness of the States parties to the 1928General Act,
including France and Australia, to accede to the Revised Act?"
Of course itmust be a matter ofs~eculation whv the ~arties to the General
Act did flot accede to the Revised Ge-neralAct, and the réasonscould be mani-
fold, not excluding inertia. The Australian Government can mainly assist the
Court in answerina this ouestion bv reference tu its own oartici~ation in the
history of the subject, for'it has no knowledge of the interna1 practice of other
governments. Our enquiries reveal that no conscious decision was taken in the
Australian Government either to accede or not to accede to the Revised General
Act. All that Our enquiries do reveal is that there was no suggestion when the
Revised General Act was referred to the Australian Government that Australia
was not still bound by the General Act. In this respect the official Australian
Treaty List, which was revised shortly after the Revised General Act was in-
troduced, included the General Act of 1928,and each subsequent edition down
to thélatest in 1970 has continued to include it.
It is ta be noted that the New ZealandTreaty List, which wasalsoissued in the
late 1940s,likewise listed the General Act and has continued to do so. Although
there is no official French Treatv List. a list of multilateral treaties to which
France is a Party, prepared by ~r. enr r iollet, and published in 1971, lists
the General Act.
If one is to speculate why some governments, parties to the General Act,
either consciously decided not to accede to the Revised General Act or, as is
more probably the case, were indillerent ta it, several reasons can be suggested.
But first it may be useful to give some details of the state of the parties.
There were 21 countries which were parties tu al1 parts of the General Act
before 1946.Of these, three have kcome parties to al1of the provisions of the
Revised General Act. Two other countries which were parties to the General
Act with the exception of Part III have become parties to the corresponding
provisions of the Revised General Act. This merely shows that not al1 of the
original parties to the General Act have ken indifferent to the question of
restoring its fullfficacy.
It also reveals that the process of restoration could be slow, and that it cannot
be assumed that the rest of the parties to the General Act have permanently
excluded consideration of the Revised General Act. The parties 10the Revised
General Act and thedates of their adherence to it are as follows: Belgium, 1949;
Sweden, 1950; Norway, 1951; Denmark, 1952; Luxembourg, 1961; Upper
Volta, 1962; and the Netherlands, 1971. It is now just two years since the
Netherlands, which was silent on the subject for 22 years, look steps to adhere to the Revised General Act, having beena party to the General Act since 1930.
Stuyt's Reperrory of Nelherlands Treaties listed the General Act as among the
treaties of the Netherlands in 1953.
The import~ni ciriumitince thüt may ha\e hiil ionieintluenccon thcquesti<in
of Iiccepiïn.'r. of the Kciiscd <icncr<il ,\ci i,thst the Gcncral Act bciÿnis. in
effect, a closed convention with the demise of the League of Nations in 1946,
whereas the Revised General Act is open to the adherenceof al1Members of the
United Nations and to non-member States which are parties to the Statute of
this Court, as well as to others to whom a copy had heen transmitted by the
General Assembly.
It would be understandable if governments preferred the security of known
relationships under the General Act to the open commitment which they would
be obliged to make under the Revised General Act if they adhered to it, es-
pecially since, in the post-war period, the political relationships of the parties
to the General Act were largely homogeneous, which would not necessarily be
the caseunder the Revised General Act.
It would likewise be understandable if governments waited to see what
countries becameparties to the RevisedGeneral Act who were not parties to the
General Act. In fact, it took 13 years for any non-party to the General Act to
become a party to the Revised General Act. namelv Uooer Volta. and that
State's adhesion remains unique. Not surprisingly, a"y reticence which parties
to the General Act may have felt about an uncertain commitment would. in
these circumstances, be perpetuated.
Whereas the General Act was the oroduct of an eooch of devotion to~ ~-~ .~..~. ..
ideal of peaceful settlement, by means of formal machinery of conciliation,
arbitration and judicial decision, it remains a fact that the period since 1949has
not been characterized by any comparable devotion to such general modes of
settlement of disputes. Instead, there has been a development of ad hoc instru-
ments of settlement related to special categories of dispute, for example the
machinery of GATT, IMF, or EEC; and the United Nations Charter and the
organs which have developed under it have afforded modes of recourse to the
solution of international oroblems which are broader and more diversified than
in the pre-war period. 1t'is significant of this trend that the number of States
which have deposited Declarations under the Optional Clause is today almost
the sameasit was in the late 1930s.In thesecircumstances it would besÜrprising
if the Revised General Act had attracted much adherence. ~ ~ ~ ~ ~ ~ ~ ~
The six countries which ha"; adhered ti~the Revised General Act who wzre
also parties to the General Act include Belgium, whose initiative in the matter
of the Revised General Act in 1949was prompted by an interest in making the
Revised General Act once more efficacious, especially since it was desirable to
provide for the substitution of the mesent Court for ils predecessor in case of
non-members of the United ~ationi ~n~ ~on-oartie~~~. the Statute of the Cour~ ~ ~ - -
to whom Article 37 of the Statute was not available.
That this was a primary consideration in the minds of the promotors of the
Revised General Act is clear from the Report of the Interim Committee on the
Belgian Proposal to restore the original efficacy of the General Act. In that
Report the Committee said:
"Tt was noted, for example, that the provisions of the Act relating to the
Permanent Court of International Justice had lost much of their effective-
nessin respect of parties which are not Members of the United Nations or
parties to the Statute of the InternationalCourt of Justice."
Obviously what the Committee had in mind when it adopted this statement234 NUCLEAR TESTS
was the problem which would arise where parties to the General Act of 1928
might seek accessto the Court through Article 35 of its Statute, and, not being
parties thereto, would not becovered by Article 37.
In drawine attention ta the fact that the ranks of the oarties ta the General
Act were cl&ed in 1946and that Article 17thereof was aGailableonly to parties
of the Court's Statute, one may suppose that some governments prelerred il
~ ~ ~ ~v.
perhips the answer to Judge Dillard's question is reducible ta this thought:
that. althouah activity res~ectina both the General Act and the Revised General
~ - ~ ~ ~ ~ ~-~~-~~-t.~ouid~ ~ &rue ta sav that the oarties to the former have
al1finally excluded the possibility of access;onta the iatter, or that those States
which have become ~arties ta the RevisedGeneral Act regard as dissolved the
viitcr~ljrrrisbetween them and other parties to the Generd Act who have not
become parties ta the RevisedGeneral Act. ARGUMENT OF MR. LAUTERPACHT
ARGUMENT OF MR. LAUTERPACHT
COUNSEL FOR THE GOVERNMENT OF AUSTRALlA
Mr. LAUTERPACHT: Mr. President and Members of the Court. It falls
Io me to reolv on behalf of the Government of Australia Io the question put
jointly by ~;&e Dillard and Judge Jiménezde Aréchaga.May Isay-howsoriy 1
am that Judge Dillard has fallen il1and express the wishes of al1those repre-
senting Australia for his speedy recovery.
Icannot help but recall, on rising before you for the first lime sincethe Barce-
loim Traction case, the recent death of one who led me in that case, Maître
Henri Rolin. His ore-eminence in the field of international advocacv was zen-
erally recognized.'~~ was a great and beloved leader whose passcngwili be
mourned by al1who shared his dedication to the standards of law in the inter-
Turning to the Gestion which was put Io the Government of Australia, the
Court will recall that after mentioning the reference in the Solicitor-General's
soeech to the Judement of the Permanent Court in the Eleclricitv Conroa~iv
of Sofi and Belgaria case, the question continued as follows:
"Taking into account the special circumstances of the present pro-
ceedings, we would appreciate il if counsel for the Applicant could assis1
US by also examining; in relation to the present case, the views expressed
in the dissenting opinions tu JudgesAnzilotti and Hudson, particularly on
the relationship between treaty provisions on peaceful settlement and
declarations containing reservations or limitations to the acceptanceof the
Court's jurisdiction under the Optional Clause."
The Government of Australia particularly appreciates the opportunity pro-
vided by this question to amplify the brief referencetu the Electricity Coi~rpairy
of Sofia and Br,lgaria casemade in the main pleading of the Solicitor-General.
As the Court will no doubt appreciate, it was simply the pressureof attempting
tu provide some answer to the annex to the French Note of 16 May 1973in a
very short spaceof lime which prevented fuller examination then of this highly
relevant case.
With vour leave. Mr. President, may 1 first recall the context in which refer-
cncc iu the ilse a35 inside.I hc Guhcriiiiietii oi .,\iirir.tli:i .ih.81ihc jurw
iliii~un of ihr' Couri in il;,SC rcjis on t\vd sroiinils: ihr' Gcncr~,\CIaiid the
O~tional Clause.
In hij Iiryunicni <i22 51.i).the Soli;it<ir-Gener;>aii~\~\ir~lid dc\.elùpcj the
suhmiasi<iii lli.ii ttu<> ,i>ur:c. aiijuri.>Ji.'idiithe Cuurl ucrc inJepcn~lcnl
ofeach other and that neither weakened the other. The same point was made
by my learned friend, Mr. Byers, a few moments ago. In this connection
the Solicitor-General quoted one passage from the Electricity Compatly of
Sofio and Biilgaria caseand another from Judge Basdevant'sdissenting opinion
in the Norweyiari Loons case.
The question posed by Judge Dillard and Judge Jiménezde Aréchagainvites
the Government of Australia to look more closely al the Elecrricity Company
of Sofrnar~dB~<lgariacaseand this 1shall now do. In sodoing, 1 apol&ize for the
fact that there will be some slight measure of repetition of what the learned 236 NUCLEAR TESTS
Agent for New Zealand saidearlier this morning. It will not bea large repetition
but 1 ask for the Court's indulgence.
The case. it will be recalled. was broueht bv B.leium-aeainst Bulearia. The
substantiv~cause of action arose out of Ihe treatment by &lgaria ora Belgian
Company operating in Bulgaria and that substantive cause of action does not
matter for present purposes. In that case,as in this, two grounds ofjurisdiction
were invoked. The first consisted of the declarations made by Bulgaria in 1921
and Belgium in 1926 under the Optional Clause. The second around of iuris-
d~~~ion bas the treatv of conciliation. arbitration and iudic.~l~ ~ ~ -~~tc~n-~ ~ ~~-~~
cluded ktween the cwo countries in.1931. This treaty may, for convenience,
bedescribedasa sort of bilateral general act of a kind promoted by the Leaaue
of Nations at the sametime as the General Act itselfwas drawn ub and in ma-
terial content very similar tu the General Act.
The auestion of the etTect of the Belaian invocation of two arounds of
jurisdict~on was not raised by the ~ulgarian Government. It arosë, it would
seem,almost by accident in the course of argument by counsel for the plaintif
Stdte, Belgium. One morning he observed that relations between the two coun-
tries were-for a period governed by the 1931Treaty alone. That afternoon he
retracted this view-see P.C.I.J., Series AIE, No. 77, at page 75.
However. the oint was pursued within the Court. Althouah the-Judament i-
ii\c.If rel~ii\ely bricl iil\trciiiment i>fihc queriioii. iti, c\idciit from thr u,ay
in which ihe niatier \\,a\ dealt iiiih in the disrenting opinions ihai the point iia5
thorduchlv ciin>idcrerl by ihc Court. II is therefure scnifi~ani tliatthe Couri's
conclu~on on the mattër was quite clear. On 22 ~ay the Solicitor-General
quoted one sentence from the Judgment. 1 ought tu repeat that sentence be-
cause it bath follows and leads into others which were not auoted but are.
nevertheless, very material when the case is receiving this fuller consideration.
Thus the whole relevant passageof the Judgment reads as follows (ibill.,
"The Court holds that the suggestions first made by Counsel for the
Beleian Government cannot be reearded as havine the efect of modifvine
thaï Party's attitude in regard to this question. ~he Belgian Governme;
in fact has always ken in agreement with the Bulgarian Government in
holding that, when the Application was filed, their declarations accepting
the Court's jurisdiction as cornpulsory were slill in force."
1 pause here. Mr. President, merely to recall that the declarations referred
Io wereearlier in time than the 1931Treaty. The Court thencontinued:
"The Court sharesthe view of the Parties. In its opinion, the multiplicity
ofaar-ements concluded acceDtinet.e co.~ulsorv iurisdic. .n is evidence
thai the coniraiiing 1'3rties inicndcd idopen up neu us)\ ul;ic:c\s 1s thc
Couri railier ilian to ilore oIJ ways or IO ïllou iheni i,>can~eleach oihcr
out with the ultimate result that no jurisdiction would remain."
Once more. Mr. President, 1 pause tu observe that the Court was here ex-
pressing its independentjudgment. It did not regard itself as bound to echo the
views of the Parties. 1 resume the quotation:
"ln concluding the Treaty of conciliation, arbitration and judicial
settlement, the object of Belgium and Bulgaria was to institute a very
complete systemof mutual obligations with a view to the pacific settlement
of any disputes which might arise between them. There is, however, no
justification for holding that in su doing they intended Io weaken the ARGUMENT OF MR. LAUTERPACHT 237
obligations which they had previously entered into with a similar purpose,
and especially where such obligations were more extensive than those
ensuing from the Treaty.
Itfollows that if, in a particular case,a dispute could not be referred to
the Court under the Treaty [the later instrument], whereas it might be
submitted to it under the declarations of Belgium and Bulgaria accepting
as compulsory the jurisdiction of the Court [the earlier instruments], in
accordance with Article 36 of the Statute, the Treaty [the later instrument]
cannot be adduced to prevent those declarations from exercising their ef-
fects and disputes from being thus submitted to the Court."
This is as far as it was necessaryfor the Court to take its discussion of the
suhject. The Court manifestly refused to acceDt a later instrument conferrina
j.irisdi:tion<in irA\ .IU~~~~I~JI~Lo ~tIrridinr: :in earlicr in,trum:ni. 'l'hi C'iturr
cniptid,i7e.l the <aiiitinuiiig ioix of the c~rlicr inilrunient e~pc~ially, a, it ,.tid.
"where such obligations were more extensive than those ensuing from the
Treaty".
This decision was reached by a vote of nine judges to five. The minority
included Judges Anzilotti and Hudson to whose opinions 1 shall refer in a
moment. But it is worth recalling that the majority included judges of com-
parable calibre and experience in the persons of, amongst others, the President,
Mr. Guerrero, the Vice-President Sir Cecil Hurst, as well as Messrs. Fromageot
and De Visscher.
Now the decision of the Court, read by itself, provides powerful support for
the submissions of the Government of Australia. There. as here. were two
iour.'c, ofjuris.liLtidn: ihcrc, .i\hrrc. tlis edrlicr SoLrceof jurijJi.'iion n.i\mdre
c\tcn,irs, ttiai ijIcii rc<tri<tcJ hs rc,cr!ation, than the later ,i>ur<c. I h:i\c n~it
mentioned this oint oreviously, but the sirnificant difference in the Electricilv
Co~npairyof ~ojfn und ~itljiaria casebetween the optional clause declarations
and the 1931Treaty wasthat the lattercontained a provision makingexhaustion
of local remedies a condition precedent to the oroceedings. ~his~m-de more
precise the rule of customary international law that would otherwise have
applied, and significantly reduced the benefit of the 1931Treaty to the claimant
State. Belgium
So, as f have said, there, as here, the later source of jurisdiction was more
restrictive than theearlier one. Further, there is a respect in which the Electricity
Compafiy of Sofia a~idBulgaria case was even stronger than the present case.
Although, as was indicated in the Solicitor-Ceneral's speech, the effect of
declarations made under the optional clause is to establish a consensual or
contractual bond between the declarant States, there is no s~ecificallv acreed . -
~111ning cogci11:r<\finicnci~vxb.G;dh de:lxrdnt cnjc~y, ,IJih~rction ntcl~in \\t.ie,
but not unliniiteJ rdnge. 10 .Izrerniine the >:ope ai lits.xvn intcntiiin 1.)ac;ept
iurir,li~ii~n. The intciitioii\ .ire only eikaiic crc.ite iurisdi~tii~n in\i>id is
ihey are coincident. But when thereis a bilateral treaty,;nder which the parties
accept the jurisdiction of the Court, as there was in 1931,there is a much more
specific meeting of wills. In the Electricity Co~npa~~ ovfSofia and Bul~ario case
.. .
tliir meeting of niIl., hy reiqon oi the pr<i\i,i.>n rcg.ir.linx the 1.1:~lrcm-Jie.
rule, e~pre\sly jqiicc/cd itic rdnge ofm.iticr> iii:luJe.i in the Court', jiirirdi<ti.>n
smaller than it had been under the optional clause declarations. And yet, even
in that situation, where it was a treaty, so to speak, trying to override, or
possibly override, earlier declarations, evcn in that casethe Courtdid not regard
this expressrestriction in the Treaty as effective to limit the effect of the earlier
coincident individual acceptancesof the optional clause.238 NUCLEAR TESTS
In terms of citing a clear precedent to this Court from its previous practice,
it would be difficult Io find one which is more in point than the Elecrricity
Conrpuiiy of Sofia alrd Blrlgariu case.And itwould be sufficient to end this refer-
enceto that caseat this point, but in the question put to the Australian Govern-
ment specific reference was made Io the dissenting opinions of Judges Hudson
and Anzilotti. 1 must, therefore, say something about those opinions.
First, 1shall examine the opinion of Judge Anzilotti. Needlessto Say, 1 shall
restrict myself to that part of itwhich dealswith the eiïect of concurrent sources
of jurisdiction.
The slarting point of Judge Anzilotti's approach was that the diclaralions
under the optional clause and the Treaty "constitute two conventions.. .which
lay down different rules for the same thing, namely recourse to the Court"
(ibi~l.p. 89).
The next stage was the proposition that "in the same legal system, there
cÿnnot at the same tirne exist two rules relating to the same Tactand attaching
~. these facts contradictorv conseauences" (ibid,. o. .. 90).
Now, this categorical statement of this proposition by Judge Anzilotti, as
auolicable to the situation before him, can be challeneed. However, there is no
néédfor~-e to do so he~e~ For oresent ourooses alone. 1 acceot his startine
point. What matters is how he akroached lie~rreolution of theConflict whic;
he detected betweenthe Iwo sources of the Court's jurisdiction.
Thus we come to the third element in his approach, the determination of the
intention of the Parties to the 1931Treaty. He put his point as follows: "The
Treaty being of later date than the Declaration, itis in the tex1of the former
[that is to say the Treaty] that we mus1seekthe intention of the Parties in regard
to rules previously in force'' (ibid., p. 91).
Here then is a point of major importance.When seekingto resolvethe conflict
between the two sources of jurisdiction, Judge Anzilotti looked to the later
instrument. Why? Not simply becauseit is later in lime, but becauseonly by
looking at the later instrument "can we [and again 1 use his wordsl seek the
intention of the Parties in regard to rules presently in force".
Now obviously it is simply a matter of common-sense to acknowledge that
the "orties to a treaty are free to Vary their joint intention by means of a sub-
sc4"ent trclty li~neir I.xiking iorjaint intcntioii aiagiten ni;mciit. m:inirc~tly
one c.inni>t ignore the tcrm, oi the Istest te\! prior t<ithdl moiiicnt. Thdt i,iihy
Judge Anzilotti was concerned with time, not for its own sake but in relation
to the identification of intention. He reverts to this element several tirnes in the
course of the crucial section of his opinion: "This interpretation [and 1 shall
revert oresently to what his inleruretation wasl seemsto me Io be in perfect
accord'with the intention of the Parties when they concluded their Treaty ..."
The sameconcern with intention is reflected a few paragraphs later when he
contrasts with the purpose of the Treaty an interpretation which he believes
to be wrong. He then describes his conclusion as only "a logical consequence
of the purpose and plan of this Treaty".
Now, one does not speak of the logical consequence of the purpose and plan
of the treaty unless, of course, one has in mind the dominating influence of the
intention of the parties.
Having thus identified Judse Anzilotti's overriding concern to implement ihe
intention of the Parties. and for that reason to look at the later instrument. 1
nesd 52).only thi, on the suhstanti\e aspect üi the interprctatioii.hc coniluJed
that the Trc2ty covrrs dll Ji\pulcs c.~nlernplatcdin the Je<laraiions and suh~ccti
them to its specific rules. That was his interpretation of the intention of the
Parties. 1 am not so much concerned with his conclusion as 1 am with his ARGUMENT OF MR. LAUTERPACHT 239
method. Now to defer for a moment the consideration of the rest of the relevant
part of Judge Anzilotti's opinion, may 1 attempt to apply his doctrine of in-
tention ta the uresent case.
I neeclharJly rd)ihit ihc <ru.'i>l elenient in Judge hn7ili,i"pproti~h isthe
comnion inicniian of the I'drriis 1-lcrcperitcJly ipedki <if the inrcntrjn of the
Parties-in the ulural. He is. after all. t-vina to interoret a hilateral treatv which
must represent a meeting of two intentions. He is manifestly not concerned with
the eiTectof unilateral intention.
Now, in the present case what material does one have in hand for deter-
mining the intentions of the Parties? We have, first, their accession to the
General Act in 1931. Now about the scope of the relationship established at
that moment. 1 ho~e 1 mav assume that there is no controversv. The auestion
then is, whatevidence is there of a later common intention to 2epart fcom the
earlier position? The answer is, none. The point is that the Court is here con-
cerned with one suecific feature of the French declaration. the 1966reservation
relating to national defence, and the question whether that narrows the juris-
diction created hy the 1928 General Act.
On Judae Anzilotti's auoroach. the conceut of national defence could limit
thejurisdiction created b; ihe edrlier text if itiepresented the commonintention
of the Parties to change what had previously heen agreed upon. If, therefore,
the element of national defence had heen included within~a treatv hetween
Australia and France, Judge Anzilotti's condition might have heenmet. The
same might perhaps have been true if the Australian Government had made a
similar reservation at about the sametime. In that event there would have been
some hasis for the suggestion of a common intention sufficient to override the
earlier common grant of jurisdiction created hy the 1928Act. But the facts in
this case do notwarrant~that assertion. All that the Court has hefore it is a
unilateral assertion of intention, that of France. There is no evidence of any
explicit common intent of the Parties to subtract from their previously agreed
relationship the whole sector of disputes covered hy the concept ofnational
defence.
The idea that a unilateral assertion of intention can override a common
intention is so contrary to the most fundamental notions of the law of treaties
that 1 would be wasting the time of the Court if 1 were to pursue that point
further.
So much, then, for the application to this caseof Judge Anzilotti's main idea,
that of the overriding force of a common intention properly identified.
But that is not the end of what Judge Anzilotti had to say. There follows a
section in which he deals with the consequencesof the overriding intention of
the Parties to the later instrument. But for one circumstance, his view would
have heen that the later instrument ahrogated the earlier instrument, that is,
out an end toit como.etel. and irreversiblv.The circumstances which led him to
a different conclusion were that the periids of validity of the declaration and
of the Treaty were different, with the life of the declaration continuing beyond
that of the Treaty.
The Bulgarian Declaration, it may be recalled, contained no limitation of
time. The Belgian Declaration was stated to be for a period of 15 years. The
1931 Treatv. like the General Act. was concluded for a oeriod of five vears.
subject to &tomatic renewal for periods of five years unlessdenounced. Ït wai
actually denounced by Bulgaria in August 1937 and thus expired in Fehruary
1938. 1 mention these ooints hecause thev show that there was no inherent
reason why the declaraiions under the opcional clause made hy Belgium and
Bulgaria should have continued heyond the life of the Treaty. If Bulgaria had 240 NUCLEAR TESTS
not denounced the Treaty, the Treaty could have gone on until 1943or longer,
while the Beleian Declaration would have ex~ired in 1941. So. reallv. when
Jurlgc ~nlil~tïi spoks of the ditlering liiriof'ihe iuo \i>ur.'c.; of juri;di<iion,
ihe critical point for him \va.. the non-idcniiiof the11II\?$.and thc pujsibiliiy
that the earlier instrument might survive the later. Not the fact that it did. After
al1 the Parties would have been uncertain about this fact at the time of the
conclusion of the lafer Treaty.
May 1 translate this approach of Judge Anzilotti into terms of the present
case? The earlier instrument, the General Act, was concluded for periods of
five years. It has not been denounced by either Party. The later instruments.
the declarations of Australia and ranc eh;ile not specifically limited in time,
both contain reservations of the right of either Party to end or change them at
anv moment. Thus. it is in law auite ~ossible for the General Act to survive
*
either or both of the declarationi of ihe Parties. Of course, this assumes the
continuing validity of the General Act after 1945. but the whole discussion of
the ElecrricitvCorn.arr..fSof.a a~zfIBulparia casePresuDposesthat assumption.
~ssuming-further an assumption, whkh, of co"rse, Ido not share-that the
French 1966 Declaration somehow overrode the common intention of the
parties in the 1928 General Act, making that assumption, it would still only
havethe eKectof suspendingthe General Act. Consequently, if the alleged effect
of the French reservation of 1966 on the contractual relations of France and
Australia were brought to an end by Australia's termination of its own decla-
ration, the suspense in which the General Act was resting would give way to
resurrection. This possibility was clearly foreshadowed in the last sentence of
Judre Anrilotti's o~inion. and he said: "1 need scarcelv add that the Belrian
~oternrnent could have sbbmitted a fresh application bàsed this time upon-the
Belgian and Bulgarian Declarations that became again applicable in relations
between the two States from February 4th 1938onwards." 4 February 1938was
as 1 stated a few moments ago, the date on which the denunciation by Bulgaria
of the 1931Treaty brought that second and later source of jurisdiction to an
end.
There is,1believe, nothing more which is material to this caseto be extracted
from Judge Anzilotti's opinion. Without admitting the correctness of his
approach,when contrasted with that of the Court itself, the important point is
that that approach. when applied to the facts of this case, leads to the con-
clusion that the unilateral French reservation of 1966 does not override the
common intention of the Partiesreflected in their accessionto the General Act.
And even if ifdid, to continue with the application of Judge Anrilotti's rea-
soning, it would only do so on a suspensory basiswhich could be brought to an
end at any time by the withdrawal of Australia's declaration under the optional
clause. I only mention this last point because if throws into such strong light
the strange and anomalous character of the whole of the argument regarding
the overridinr effect of the 1966 French reservation.
Mr. ~resident and Members of the Court, 1 must ask you now to bear with
me while 1look at Judge Hudson's opinion, though 1 hope that 1 can deal with
it more briefly.
Judge Hudson, like Judge Anzilotti, was troubled by the existence of two
sources of jurisdiction for the Court. Like Judge Anzilotti, Judge Hudson con-
cluded that the 1931Treaty overrode the earlier optional clause declarations.
Judge Hudson's solution to the problem was dictated by two considerations.
The principal one, which was not discussed at al1by Judge Anzilotti, was that
the terms of the optional clause would give way to other agreed methods of
settlement. Judge Hudson's alternative approach closely paralleled Judge ARGUMENT OF MR. LAUTERPACHT 24 1
Anzilotti's reliance upon the intention of the parties. 1 shall deal with each of
theseapproaches in turn.
Judge Hudson began by identifying the conflict between the optional clause
declarations and the 1931Treaty. In su doing, he drew particular attention to
the condition which appeared in the Belgian optional clause declaration of
1925. namely that the iurisdiction of the Court was not recognized in cases
\%herc ihr. pdrtie\ li~$e;igrer.J or ihdll 2grr.c16)Ii.,\c rccuiirw hi snoilisr iiisihod
i>fp3ciiie scttlenieni. llr. regdrde~lthih <~riJ~iadn:is agrcr.4 hciucen ilic Pdr11r.i.
presumably becauseof the rule of reciprocity governing declarations under the
optional clause.
After a close scrutiny of the points of difference between the two sourcesof
jurisdiction, he said:
"The two systems being diferent, it would seem that this is a case in
which the Parties have aareed. in the terms of the Belnian declaration.
a~olied asa source of iurisdiction in this case.and the Court's iurisdi-tion
&y be sought only in the Treaty of 1931." (lbid., p. 124.)
Judge Hudson's idea can be pursued in the context of the present case.
Examination of both the French and the Australian declarations under the
optional clause shows that each contains the exclusion of disputes for which
the Parties haveagreedto haverecourse tu another method of pacific settlement.
Thus one is led ta ask, have the Parties agreed tu have recourse tu any other
mode of pacific settlement? What, for this purpose, is another mode of pacific
settlement? We have the authority of Judge Hudson for holding that the 1931
Treaty between Belgium and Bulgaria was "another method of pacific settle-
ment" in relation to the optional clause relationship of those two countries.
1have already indicated that that 1931Belgian-Bulgarian Treaty was a sort of
bilateral General Act. That beina - su. one mav reasonablv su.est-t..t the Gen-
cr;il ,411ii<r.lIS ülsu 'ln,iiher niode of p.i.:iic reiilenicni" in the i,,iiieui~fihe
..\uririli:iii-Frcnch rr.l.iiioii\l,e511hai4ir.Jhy ihcir 3csepi3ncc\ di ilie opiii~nal
il3uic. The faci th31the General ,\LI pre<c.lcil the opii.~nsl clause declar~ritins
niakcr n.) diikreiiie. iinx ihr. u.,irJiiig oi the r.uclu~i<ii, siiilicir.nily hrod io
coter prior ;i>ticIl;ij~.ih,r.queiitly e,i.tbli,hr.iilrcrnltiis n1u.lr.i of >eiilenicni
I hc \eion<l :iilic:iof JuJgc Hii.li<in'.: r.\:imin.irisn of the relütionship ,>fthe
iui> s~iur,,rr uf.iiri~ili<i.~>1.Ji\tin~tl) siihi~rJinsie icithe i'rri. nui ii rercnible5
iri iis niïjor rcspc:i ihe dpprmich of JuJgr. ,\iililotii büsedupon the inienli~rn of
the parties. Judge Hudson said: \
"Called upon tu choose which of the two texts is to govern in this case,
the Court must anolv a eeneral orinciole of law. and it must sav that the
expression of th2 'Parties' inteniion &hich is the iater in poiit of time
should prevail over that which is the earlier." (Ibid., p. 125.)
But Judge-Hudson did not introduce this reference tu the efect of later
instruments as an absolute proposition. Some lines later he introduced other
subrules of interpretation. namely that the special prevails over the general
and that the more extensive orevails over the l&s extensive. But al1thesedevices
would appear to be, in ludie Hudson's thinking, merely instruments tu assist
in the determination of intention.
It is not. 1think. necessarvfor me once aaain to analyse the role of intention
in !hi> prohlcm I ha\e alreidy donc ii 31 l&th uhenéxamining Judge Ami-
loiii'sopinion. II sïn be vald ihuugli, uhen Ii>i>kingai Judge Clud.;on'sbubrules.242 NUCLEAR TESTS
that only one can really be applied in this case-that the more extensiveis to be
preferred to the lessextensive; and that therefore the more ample jurisdiction
under the General Act is to be preferred Io the lessample competence deriving
from the French 1966reservation.
Mr. President and Members of the Court, there are other passagesin the
dissenting opinions in the Eleclriciiy Coni~airyof Sofiaand Biil~ariacasewhich
. .. .
merit some mention as supportingthe Auslralian position in the present case.
But 1 think that having already dealt at length with the opinions of Judges
Anzilotti and Hudson, 1ought now to forego furlher examination of that case.
Nonetheless, it is just worth noting in passing Judge Urrutia's remark towards
the end of his own opinion, in which he said:
"The question raised in the case.. . involves a legal problem of great
importance to the proper understanding of the relations existing between
the optional clause and the said conventions, and the Court's decision will
certainly be very carefully examined by al1 the signatory Slales." (Ibid.,
pp. 105-106,)
If we may assumethat the parties to the General Act heededJudge Urrutia's
warning, their failure to withdraw from the General Act and their retention of
their Optional Clause declaration suggestsstrongly that they were prepared to
accept as a correct statement of the law the statement bv the Court itself with
whiih 1began this long answer-the statement that a muitiplicity of agreements
is intended to open up new ways of accessto the Court rather than to close old
wavs; and that the lack of reaction of the sirn-torv States also shows that thev
ucrc [ircp:trcd to II\C $$.th!lie c,~n~cq~~cn:ct~hus ~,icnt~ticcl
In .'un:lusiun !lien. \lrI'rci~Jcni. ni.&).I üticnipi lu ,umni:iri;.c in four points
thc prin:~p~I fcdt.~rc, >I(the tu,^, ('ot,,po,t,(01.So/,'on~lBt~Icurit~ ~,.i,e.
tirjt. \ie Ii.i\c the J~~Jgnicnt<>ithe<'<>urtii~clfc\prc\sly uph<ilJing ~h~tcarlier
in.trum<nts. th<,Opti61n~.C.I.,II\~ ~Ie~l~r.ition>in t11.i\it.l:i~it~n, LOIII~ anJ JiJ
co-exist with the later instruments-the 1931Treatv. The Court's aooro..h mav
be compared with the principle of the ratchet-a cog wheel which can move in
one direction only, the forward direction. Instruments creating jurisdiction are
like ratchets; they move only forward, unless, as is possible, the holding mech-
anism is released by a specific agreement. That is not the casehere.
Point two: this point relates to Judge Anzilotti's opinion. 1 do not question
whether he was right or wrong to dissent from the Court, but starting from the
position which he actually took, 1 would submit that in the present case he too
would have found that the General Act was not over-ridden by the unilateral
French declaration. For Judee Anzilotti the crucial auestion was the common
intention of the parties. Hekould have been unablé to find such a common
intention in the unilateral French reservation of 1966; this concern with inten-
tion was also. 1 should add. shown bv Judee Hudson.
The third point also cornes from ~idge Anzi~otti's opinion; it is the idea of
suspension. It is not directly to beapplied in the present casebut servesto show,
to Üut it at the lowest. the-verv oddsituation that could arise from the French
contcntion li one applies Judgc ,\nciloiii's rc.i<oning tu ihir c35c. the French
Jc.'lliraiion auuld nicrcly suspend the Gcncral .Act. Yet the I-rench J~~laraiion
depends, for its contractual force-or for any contractual force that it may
have-upon its co-existence with the Australian declaration. If, therefore,
Australia were to withdraw its declaration today and start proceedings afresh
tomorrow, this obstacle, even if it existed now, would be then removed. In-
sistence on such formalism would surely not be part of the tradition of this
Court. ARGUMENT OF MR. LAUTERPACHT 243
The fourth and final point cornes fromJudge Hudson's opinion. It is the idea
of recoursetu "other methodsof settlement". He pointed out that the provision
in the Optional Clause declaration gave the 1931 treaty over-riding force. 1
merely observe that a similar clause appears in the French and Australian
declaration, and that if Judge Hudson's reasoning is accepted, these clauses
would give priority tu the General Act.
Mr. President and Members of the Court, that brings me tu the end of the
answer tu the question put by Judge Dillard and Judge Jiménez de Aréchaga.
Once again, may I express the gratitude of the Government of Australia at
having been thus enabled tu probe more deeply an authority which, upon a
proper reading, so weightily supports the Australian case. QUESTIONS BY JUDCE GROS
Judge GROS: Je voudrais dire à M. l'agent du Gouvernement de I'Australie
que les réponsescomplètes d'aujourd'hui rendent nécessaireune rédaction
nouvelled'une question quej'avais l'intention de poser. Je penseque pour leur
faciliter la tacheje pourrais transmettre cette questionpar élràtM. l'agent du
Gouvernement de I'Australie. J'ai unedeuxièmequestion que je vais maintenant
poser:
Le conseil du Gouvernement de I'Australie a indiqué à la Cour le lundi 21
mai (p. 187, supra), qu'il y avait «une question sur laquelle nous réservons
notre position ».
M. l'agent du Gouvernement de I'Australie peut-il indiquer quelle position
est ainsi réservée;et s'il s'agit d'une réservede positionjuridiqqui serait un
élémentdu diKérendsoumis à la Cour par le Gouvernement de I'Australie, le
point a-t-il ètésoulevéet traité comme tel dans les entretiensà Paris, en avril
1973,entre les représentantsdes deux gouvernements?
The PRESIDENT: As indicated by JudgeGros, hewill haveanotherqueîtion
Io submit to the Agent of Australia in addition Io this question. Having heard
the replies2 of the Agent for Australia, 1 have Io recall that the Agent will
remain al the disposal of the Court should any further additional questions
arise on which the Court may require some clarification.
TlrrCourt rose al 13.15p.m.
(Signed) Manfred LACHS,
President.
(Sigt~ed)S. AQUARONE,
Registrar.
1 n, pp. 370-371.
2 II, pp. 372-313. READING OF THE ORDER
FIFTH PUBLIC SITTING (22 VI 73, 10.30 am.)
Present: [See sitting of 21 V 73, President Lachs and Judge Dillard absent.]
PRONONCI? DE L'ORDONNANCE
Le VICE-PRÉSIDENT faisant fonction de Président: La Cour se réunit ce
matin pour prononcer sa décision sur la demande en indication de mesures
conservatoires dont elle a étésaisie par l'Australie1 au cours de l'instance que
celle-ci a introduite le 9 mai 1973 contre la France dans l'affaire des Essais
nucl4aires.
La Cour a également étésaisie d'une demande en indication de mesures
conservatoires par la Nouvelle-Zélande dans l'instance que celle-ci a introduite
contre la France en l'affaire des Esrais i1i,cl4air~s.Les deux affaires ont été
traitéesséparément,la Cour ayant décidé, à ce stade, de ne pasen prononcer la
jonction. La décision rendue sur la demande néo-zélandaise feradonc l'objet
d'une décisiondistincte qui sera lue en audience publique cet après-niidi.
J'siIc regret Jc \,i.iiiiiorincr que 31. L;i<tiiI'rerident dc IlCour. qui a pris
pdrt au\ aiidiciiccs iciiucr en I'jiFdir;,612cni.iiic ciiipé~hr'.pour tic, raisons dc
\antC, ~l'awjicr i 11 nartw finde LIA~IClihCri.Je regrette en outre d':i\c~ir a
annon~e~ ~u~ M. ~iliard. aui a assisté à une oartiëdes audiences tenues en
I'atTire. ,jétécnipC<hi:.pdur de. rdi,,in> Je \:intc:. de prcnJri. pdI<L JL'lihCrC.
Ln con\Caiiencc. 11.Ic I1r~.>iJctiiL*;h\ et51.Icj~i-i Uill,jrd n'<)rit participi
à l'ordonnance.'
Je donne lecture de I'ordonnance rendue par la Cour dans l'instance intro-
duile par l'Australie contre la France.
[Le Vice-Président lit le texte de I'ordonnance à partir du paragraphe 1 2.1
Je donne la parole au Greffier pour lire le texte anglais du dispositif de I'or-
donnance.
[Le Greffier lit le dispositif en anglais3.]
M. Jiménez de Aréchaga, sir Humphrey Waldock, M. Nagendra Singh,
juges, et sir Garfield Barwick, juge ad Iioc, joignent des déclarations à I'or-
donnance de la Cour; MM. Forster, Gros, Petrén et Ignacio-Pinto, juges,
joignent à I'ordonnance les exposés de leurs opinions dissidentes respectives.
Une demande en indication de mesures conservatoires avant un caractère
d'urgence, I'ordonnance d'aujourd'hui a étélue d'après un texte ronéotypé.
Le texte imprimé présentéde la manière habituelle sortira de presse d'ici une
dizaine de jours environ
/Signé) Le Vice-Président,
F. AMMOUN.
(Signé) Le Greffier,
S. AQUARONE
Voir p. 43-146ci-dessus.
C.I.J. Recr~ei1l973,p. 100
Ibid ..,106.
Plaidoiries sur la demande en indication de mesures conservatoires - Procès-verbaux des séances publiques tenues au Palais de la Paix, à La Haye, les 21, 22, 23 et le 25 mai 1973, sous la présidence de M. Lachs, Président, et le 22 juin 1973, sous la présidence de M. Ammoun, vice-président