ORALARGUMENTS ONTHEREQUEST FOR
THE INDICATION OFINTERIM MEASURES
OFPROTECTION
MINUTES OF THE PUBLICSITTINGS
heldar the PeacePalace,OI24atrd25 May 1973, Lachsht
presiding,and on 22 June1973r nln~presidinxA FIRST PUBLIC SITTING (24V 73, 10.05a.m.)
Pr-mr: President LACHS;Vice-PresidenrAMMOUNJ;udges FORSTERG ,ROS,
BENGZON, PETRÉNO , NYEAMA D,ILLARDI,GNACIO-PINT DE,CASTROM , OROZOV,
JIMENEZ DE ARÉCHAGA N,AGENORA SINGH,Sir Humphrey WALOOCKR , UDA;
Jiidge ad hoc Sir Garfield BAR~ICK;Rrgistrar AQUARONE.
Alsopresenr:
For theCovernmenrofNew Zealanrl:
Professor R. Q. Quentin-Baxter, of the New Zealand Bar, Professor of lnter-
national Law, Victoria University of Wellington, fnd Counsel;
H.E. Mr. H. V. Roberts, Ambassador of New Zealand to the Netherlands,
as Co-Agenr;
Hon.Dr. A. M. Finlay, Q.C., Attorney-General of NewZealand,
Mr. R.C. Savage, Q.C., Solicitor-General of New Zealand,
Mr. K. J. Keith, of the New Zealand Bar, Reader in International Law,
Victoria University of Wellington,
Mr. C. D. Beeby, of the New Zealand Bar, Legal Adviser, New Zealand
Ministry of Foreignairs, os Coiorse/;
Mr. H. J. Yeabsley, Director of the National Radiation Laboratory of New
Zealand,
Mrs. N. C. Mullins, First Secretary, New Zealand Ministry of Foreign
Affairs, osAdvisers. OPENING OF THE ORAL PROCEEDINGS
The PRESIDENT: The Court meets today to consider the request for the
indication of interim measuresof protection, under Article 41 of the Statute of
the Court and Article 66 of the 1972Rules of Court, filed by the Government of
New Zealand on 14 May 1973, in the Nuclear Tests case brought by New
Zealand against France.
The proceedings in this casewere begun by an Application1 by the Go\,ern-
ment of New Zealand. filed in the Registry of the Court on 9 May 1973. The
Application founds the jurisdiction of the Court on Articles 36, paragraph I,
and 37 of the Statute of the Court, and on Article 17of the General Act for the
Pacific Settlement of International Disputes of 1928; and in the alternative on
Article 36. .ara.raohs 2 and 5. of the Statute of the Court. The A~olicant asks
the Court raadjuge and ileclars that the ionduci by ihc French ~o\.ernnieni of
nuclçsr tcri, in ihe Souih Pdcitii rçgion ihai gne rire io rddi,>-ictive fdII-itui
i~in>iituiers \idliiiion of Sew Zedland's rirhts under iniernïiion~l Idu. and ihai
these rights will be violated by any furtheFsuch tests. The French ~obernment
was informed forthwith by telegram2 of the filing of the Application, anda copy
thereof wassent to it hy exmessairmail thesame dav.
On 14May 1973~e& zialand filed a request3under Article 41 of the Statute
and Article 66 of the 1972 Rules of Court, for the indication of interim mea-
sures of protection.1 shall ask theRegistrar to read from that request the details
of the measures which the Government of New Zealand asks the Court to
indicate.
The REGISTRAR: "The measure which New Zealand reauests .~ - ... in t~..
Früncç refrain frum conduiiing an) further nuilex tesis ihiigiie riicIO r~dio-
aiiite idIl-outuhile the Couri i*\cii.cd of rhec<ise."
The PRESIDENT: The French Government was informed forthwith by
telegram of the filing of the request for interim measuresof protection. and of
the orecise measures reauested. and a cooy of the reauest was sent to it bv
express airmai14 the same day. The parties were subiequently informed, by
communications5 of 22 May. that the Court would hold public sittings com-
mencine on 24 Mayat 10a.m. to afford the Partiesthe o~oortunitv of ~resentinr
their observationson the request by New Zealand for the indicaiionof interim
measuresof protection.
On 16 May. the Ambassador of France to the Netherlands handed to the
Registrar of the Court a letter and AnnexQettingout theattitudeof the French
Government to the proceedings. In that letter the Court was informed that the
French Government considered that the Court was manifestlv not comoetent in
this caseand ihat France iould n.>taccept iir jurisdiciion This view uas based.
lirsi on the faii thai the French Governnient's de<laraiion ofaciepiance of the
jurirdiiiion of the Court under Ariicle 3h of the Staiutc excluded "di,riuies
concerning activities connected with the national defence". and on the conten-
See pp.3-45.supra.
See p. 341.infra.
See pp.49-86, supra.
See p.344,infrfl.
" See p.364, infra.
See P.347,infra. OPENlNG OF ORALPROCEEDlNGS 99
lion that the French nuclear tests in the Pacific formed part of a programme
of nuclear weapon development and thereforeconstituted one of those activities
connected with national defence which the French declaration intended to
exclude; and secondly on the contention that the present status of the 1928
General Act and the attitude towards it of the interested ~arties. and in the first
P1aL.of France. rendrred it out of the question10 considérthat lhere existed on
thatbasis. on the part of France, that clearly expresseduill to accept the com-
.~ ~ --o~ the Court which the Court itself. accoidine to ils constant ,~ri~.ru-
dence, dwms indispensable for the exercise of ils jurisdiction.turther reasons
were adduced also by the FrenchGovernment why il considered that the Court
hasno iurisdiction in this case.Accordinelv. the~iench Government siated that
ii~did r& intend to appoint an agent and;; requested the Court to removethe
casefrom its List. This request hy the French Go\ernnient has bcen duly noted.
and the Court will deal u,ith it in duc course, in application of Article 36.para-
graph 6.of the Stature of the Court.
On 18 May 1973.the Government of Fiji filed in the Registry oftheCourt. an
AnnlicatiOni. under the terms of Article 62 of the ta tu te toefCourt. for Ar-
.mission to inlenene in the preseni case. In nccordance uith ~rÏicle 69. para-
crmh 3.of the 1972Kulesof Court, 31 May has beenfixed asthetime-limitp for
fhewritten observations of the Parties on this Application.
Since the Court in the present caseincludes upon the Bench no judge of New
Zealand nationality, the Government of New Zealand notified the Court on 9
May 19733of ils choice of the Right Honourable Sir Garfield Barwick, Chief
Justice of the High Court of Australia, ta si1asjudge ad hoc in the casepursuant
to Article 31. araa ara o2. of the Statute. Within the lime-limit fixed bv the
Praident under Article 3 of the Rules of Court for the vieus of the ~rench
Government on this appointment to be submitted to the Court, the French
AmbassaJor. in the Ictter of 16 May already referred Io. stated thdt in view of
the considerations set out in the letter. thequestion of the appointment by the
Go\ernment of New Zeîland of a judge ad hur did not. in the opinion of the
French Government. arise. any more than the auestion of the indication of
interim rne&suresof proteclion: Thur the 0bjecti;n on the part of France uas
not one u,ithin the meaning of Articlc 3, pardgrûph 1.of the Rules of Court.
Sir Garfield 8arwi~k made a solemn dcr-laration asjudge adhor on 21 May in
the procmdings betueen Australia and France. a declaration required under
Article 20oftheStatuteof1he Court. Ideclarc this dwlaration applicable to the
Dresentcase too and. therefure, declare Sir Garfield Raruick duly installed as
judgeadhoc in the pr&ent case.
1 declare the oral proceedings open on the request of New Zealand for the
indication of interim measuresof protection.
1 Scepp. 89-94.supro.
I.C.J. Reports 1973p.341.
See p.340.infra. ARGUMENT OF DR. FINLAY
COUNSEL FOR THE OOVERNMEN OTFNEWZEALAND
Dr. FINLAY: Mr. President and Members of the Court. In this request the
New Zealand Government is asking that this Court lay down and indicate
interim measuresof protection.
The request relates to proceedings recently instituted by New Zealand against
France asking the Court to adjuge and declare that the conduct by the French
Government in the South Pacific region of tests that give rise to radio-active
fall-out constitutes a violation of New Zealand's rights under international law,
and that thoserights will beviolated by any further such tests.
The reasons for the request are twofold: first, it is the very essenceof the
riehts claimed bv New Zealand that nuclear testine is in breach of international
l&&d shoildiorthwith be discontinued. To holdsuch testswhile this Court is
seised of the matter. and before it has delivered a final iudament, would do
irreparable damage to the rights we seek to protect. ~héreCould be no pos-
sibility that the rights eroded by the holdingof such tests could be fully restored
in the event of a judgment in New Zealand's favour. Further tests would
necessarilyaggravate and might well extend the presentdispute.
The second reason for the request is that the French Government has been
reauested to aive. but has refused to aive, the New Zealand Government an
asSurance th; it's programme of nuclear testing in the atmosphere at the
French Atomic Test Centreat Mururoa Atoll hasended. Moreover, it hasgiven
no assurancethat it will be sus~endeduntil the final i.dz-ent of this Court has
bcengi\en in the prorni pr,>cccdirig\. On the :ontrar),thcrearestrong relisons
fair helic\ing thrt ihc priiern of French iesiitig c\tihlislin prc\ i<,us)cars uill
again be followed this vear. and that a resum~tion of French nuclear testina in
-
t<e Pacific region is theLefore imminent.
The considerations just mentioned underline the gravity and urgency of the
situation which has aiven rise to this. Our Dresentreauest. Mv Government is
grateful to the Court for the steps which have been iaken t~.~ive the request
priority and to treat it asamatter ofurgency and which were noted, if 1may say
so. in aracious lanauaae. at the ouenina of the Australiancase 1.It is a source of
- -.
profound regret to my Government that the French Government, the Respon-
dent in these proceedings, has not appointed an agent, nor entered an appear-
ance before the Court. Mv Government has too much respect for the Govern-
ment of I;r~nce io bclic\c~thai ihït Go\eriiment uill becinient IL>set arideits
legal obligaiisns. Ii iilur hopc. e\ph.irtiiin and kliei that irarice uill attend
and narticinaie in the ldter rihïjcs oi the presenr Drs.'eedinrs. The Ccourt\i.~uld
be assisted'by French arguments at ever; stage of this casé.In her absencewe
must, and will, make every effort to ensure that the New Zealand case is
oresentedwith accuracy. moderation and fairness.
' ln the lari thrce da)'s the Court his hetirrl rzprcsentïti!es of the Austrdlian
Go\ernnieni pre\ent i requcst ior medwres oi protecit<)nsinlildr IO th<~sewhich
New %exland is nom \esking. 1 folloued. ai 1am sure 311hunourable hlembers
of the Court foll~mied. uiih mcticulouc ~tiention the specvh oi my lesrned
friçnd Senaior hlurphy2 on Monda). and the ~lorsly argucd preieniatioii
' 1,p. 164.
1, pp. 166-183 ARGUMENT OF DR.FINLAY 101
developed by his Solicitor-Generall. NewZealand's casearisesout of the same
set of circumstances as that of Australia, and has comparable objectives. The
Court has had the benefit of the submissions made by Australia, and my
colleagues and 1 will endeavour not to trespass upon the Court's time un-
necessarily by enlarging upon issuesalready traversed in those submissions. At
the same time, we think it to beOur duty to placethe facts and circumstances of
the case in a broad perspective; and we shall try to give a balancedaccount of
the leeal issueswhich our reouest mav bethoueht to raise.
~o;the convenience of tLe ~ourt:we have-set out in Our written request the
main features of the New Zealand case.In this opening address 1shall first out-
line thecircumstances in which. Isubmit. the Court mav aran. -nterim measures
aifprutc;iiain. 1shall ihen rciieu ihe long hisior) of thee\chïnges betiieeii Nea
ZealanJ and France in regard io Frçii~h nu~ledrichiirig in the Pacilic.
The reoresentations re~eafedlv made 10 France over a full decade will bear
witness 1; the constancy and deith of the concern felt by the Government and
people of New Zealand, and also to the patient and conciliatory spirit of the
aooroaches we have reoeatedlv mad, to ~ ~nce. The corresoondence between
thétwo Governmerk will show that theseapproÿcheshave pioduced no1even a
scintilla of assurancethat French atmospheric nuclear testing in the Pacific will
end-or even be oostooned. The corre.soondence will show that French oh-
duracy has brought about the present dispute; and that there appears ta be
every prospect of an early. indeed imminent, resumption of testing al Mururoa
~toll in French Poivnesia
I shall then shoi that New Zealand's concern has always extended Io, and
beenshared by. the oeoples of the South Pacific region. 1shall refer to the steps
taken to manitor and measure the effects of ~rench atmospheric testing in New
Zealand itself and in the Pacific islands, and 1 shall comment on the significance
of the information obtained.
Next. 1shall invite the Co~~t to c~~sider the develooments in world ooinion.
and the action, taken h) the I.'niicd Saiioni tgbrinp nu~learueapons tc\ting to
3n end. 1 >liaIl shini. hlr. I'reitileiiihat ihc citent oi ihc ;onL.crn ieli in Yeu
Zealand and in the South Pacific is a true reflection of the standards and values
insistently proclaimed by the United Nations. In New Zealand's suhmission, il
is the right of al1 members of the international community, including New
Zealand-that thesestandards wi~~ he maintained. that is to sav. that everv State
and depende; territory hasthe right to bé unassailedby nuclear.explo-
sions givinn rise to radio-active fall-out, and from unjustifiable radio-active
contamination of the human environment. We submit that New Zealand's
righisare \iolaicd hy ihecnir) -uniniiicd and unuarranted-into Our ierrlti>r)
of the radio-acrite débrisfr~~mFren~h nu:lear rc>iing in ihc ainiusphere. ;inJ hy
the harm done by this debris, and by the interference of French testing with the
freedoms of the seas.
Finally, Mr. President and Members of the Court, 1shall submit to you that
this isa casewhich uree-.lv demands interim relief.
The Si~liciior-General. \Ir S~\iige, uill conider in niore drtail the i\jues
relaiing \pecifi;all) to thc Iaying doiin di mearurcs of proiectiain undcr Ariiclc
33of the Gencrdl .Act for ihc Pa~iti: Seiilcnicni di lnternaiii>n<tl Disriutci. and
to the indication of such measures under the Statute of the Court.'~rof&sor
Quentin-Baxter, my country's Agent, will deal more Sully with the questions
relating to the Court's jurisdiction and will close the presentation of the New
Zealand case.
' 1,pp. 184-224. 102 NUCLEAR TESTS
The law relating to the making of an order for interim measures is to be
found in Article 41 of the Statute. Article 66 of the Rules, the practice and
jurisprudence of the Court and, in Ourcase,Article 33of the General Act for the
Pacific Settlement of Cnternational Disputes.
In this brief overview of the law, 1look first al the qucstion ofjurisdiction to
-rant interim measuresand. secondly. at the nrou-ds uDon which they may be. .
ordered. On both issues, the interim, provisional. preliminary character ol the
power is of predominant importance. The Court is not being invited to make a
final decision on anything; it is not necessaryfor it to consider whether it has
jurisdiction on the merits: it is not deciding what. at the end of the day, the
rights of the Parties may k. lt is only, as Article 41 so clearly and succinctly
States,acting to preserve the rights of the Parties, pending the final disposition
of the case.As the Court stated in its two Orders made last year in the Fislieries
Jtrrisdictio,r cases, United Kingdom and lceland and the Federal Republic of
Germany and Iceland:
"The decision given in the course of the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case or any questions relating to the merits themselves and
leavesunatïected the right of the Respondent to submit arguments against
suchjurisdiction or in respect of such merits." (I.C.J. Reports 1972, pp. 16
and 34.)
Coming now to the question ofjurisdiction, it follows from the very natute of
the proceedings and from the constant jurisprudence of the Court that. as the
Court itself put it in the same two Orders, it "need not, before indicating
[provisional measures] finally satisfy itself that it hasjurisdiction on the merits
of thecase" vet. the Court continued. "il oun-t not Io act under Article41 of the
Statute if the îh<enïeofjurisdiction on the merils ir maniie5t".
It ir Our submisrion that. in this idse. therc is no maniresi lack orjurisdiction.
As the A~oiication indicates. mv Government relies first on the General Act
for the ~aiifii Settlcment of lniernational Dispute\ signed dt Geneva on 26
September 1928.and secondly on the de:lîrations made by the Go\.ernments of
New Zeîland and France in resncct or Article 3hi21an..(51of ..e Siaiure of the
Court.
For the present il is enough for me to recall that France and New Zealand
becamenarties to the General Act on the verv samedav: that it isa treatv which
pro\id& aspecific meîns of termination: th; it hasne& beendenouncéd; and
that ils validity ha<no1in the pas1ben questioncd.
The action of the General A5semblv in 1948and 1949in oteoarina a rcvised
text of the General Act proceeded on the basis that the co"tin"ed eiistence of
the Act was beyond doubt. Since 1946 France has more than once acknow-
ledged that the General Act remains in force. lndeed, France referred to the Act
being in force in her pleadings in the Certain Norwegian Loonscase, France and
Norway; and the French Foreign Minirter. responding to a question in the
National Assernbly, affirmed in 1964 that France remained bound by the
Genera~ ~.~ ~
It can therefore k seenthat there are certain parallels between the situation
in the oresent caseand that obtainina in the FisheriesJurisdictio~rcases.In both
casesihere was and is a lreaty uhichhas not brrn denounced and uhich prima
lacie remdins in force. When the appropriate lime cornes. ituill be my duty Io
estahlish ihat the General Act docs indecd remain in Fullforce and eiTect.
There has beensubmitted by the French Go\ernmcnt. in responseto the New
Zealand and Australian Applications, a document which suggestsno1only that ARGUMENT OF DR. FINLAY 103
the Court has no jurisdiction Io entertain Our Application. but also that this
absence of jurisdiction is. and I emphasize the word becauseit is of important
significancé, this absenceof jurisdision is manifest,and that the court's juris-
diction Io indicate interim measures accordingly does no1 arise. 1 recall and
adopt the proposition put forward by Australian counsel that this document
was not submitted in accordance with the Rules of Court. The assertion
made by France, ifjustified, could have beencontained in one sentence,but it is
not. It is contained in a three-page letter supplementedby arguments in another
document of 19 pages. This circumstance is, 1 suhmit. may it please Your
Excellencies, revealing and damning. The fact that it takes 22 pages to assert
that a point is not debatable is itself evidence. indeed proof, of ils very debat-
;ibility.-~hi, Tact.IikethepointrI mddeabout thecontin-ued forceofthe~ener~l
Act a monient or tuo îgo. attrsts al the very least that thereinnot-to return to
the language used in the FisheriesJiirisdictioncases-a manges1absence of
The second legal issuewhich I propose taiexamine, ugain Lery brieily. ir the
set of principles upon which interim measuresare ordered. We kain with the
reference. inthe Siatute. to preserving the rights of the parties. l'hé jurisprud-
enceof this Court also establishesthe testsof prejudice, irreparable damage and
the possibility that the rights could notbe restored in the event of a favourable
judgment. Thus, the Court in the FisifcriesJurisdicrioncasesaffirmed that the
right to indicate provisional measures:
h3s as il5 objcct 10 preierbe the respective rights <ifthe Parties pend.
ing the deiision oi the Court. and presupposes that irrepardblr prejudi:e
should no1 be caused to riahts which are the subiect of dispute in iudicial
proceedings and that the Court's judgment shoild no1 beanticikted by
reason of any initiative regarding the measureswhich are in issue". (I.C.J.
Reports1972,pp. 16and 34.)
The Court has on more than one occasion also acted on the basis that the
parties no! take action which might aggravate oi extend a dispute; This final
test isalso binding on New Zealandand France by virtue of Article 33 (3) of the
General Act, quite independently of Article41 of Ïhe~tatute.
1 turn now, Mr. President and Members of the Court. to thehistory of
French testing and the diplomatic exchanges it has engendered and it is im-
oortant 10 Our casethat I develoo this in some detail. The corresoondence be-
iueen Scw Ze~land and France relating io the \uh,e<t-muter of the prcsent
dispute is reproduced in Annex 111Io the Application iii~tituiing pro~ecdines. Il
shows thal over a period offully ten years the New Zealand Governmeni has
sought through the normal channels of intergovernmental relationships to
persuade France ta refrain from conducting nuclear weapons testsgiving rise ta
radio-active fall-out.
From the earliest days of the development of nuclear weapons, New Zea-
landers, along with the world community, have viewed them with the deepest
aoorehension. As nuclear weaoons testina was intensified in the 1950f. the
dangers of radio-active fall-out'to the healïh of present and future generaiions
were progressively realized. This was accompanied by a growing awarenessthat
the continued development and proliferation of nuclear weapons presented a
grave threat ta the peaceand security of the world and ultimately Io the very
survival of mankind.
In the United Nations. New Zealand was. in 1958.associated with a number
of counirie.; in sponsoring a reiolution in the ~eneral Asrembly designed IO
promote conditions in u hish a comprehensivc test ban could bcrealised Itwas104 NUCLEAR TESTS
hoped thdt subst:iniire measureï uf disarniament u,ould follow. In 1959 we
joined our ioice 10the üppcal si ,\fri:;i;duniries IO France no1Io carry out ils
announced intentionof beginning nuclear weapons tests in the Sahara. In 1961
we deplored the Soviet Union's breach of the moratorium observed since 1958
by three riuclear powers, a breach which led to the resumption of testing soon
after by the United States and the United Kingdom. Once again mankind's
hopes that these weapons of mass destruction could be brought under control,
and eventually eliminated in the context of measures of general and complete
disarmament, had been dashed. In 1962 New Zealand voted along with an
overwhelming majority of governments to condemn al1 nuclear weapons tests
and to demand their cessation. If against al1 hope a comprehensive test ban
could not be achieved. world ooinion was clear and insistent that atmosoheric
testing at least mus1be outlawed in order to remove the immediate threatio the
health and welfare of rnankind which the activities of the then four nuclear
oowers oresented
Ag~inst this h~ckground. il is eï~y to apprn'iate the Jeep Ji~quier of the Nea.
Zcaland Go\crnment and pcoplc at rcpdrts recciieJ in 1903 ihat the French
Government intended to construct a nuclear weaoons testine -ite in the neie--
bouring islands of French Polynesia.
In a Note of 14 March 1963addressedto the French Foreign Ministry, New
Zealand sought clarification of thesereports. The note referréd to the existence
of widespread public apprehension that fall-out from any tests conducted in
French Polynesia would produce hazards to health and contaminate food
suoolies. both land and marine. in the neirhbourine Cook Islands. then a New
~ealand'dependent territory, and indeed in New Zialand itself. ~here was also
marked anxiety in Western Samoa. It was New Zealand's duty, in accordance
with the ~reaty of Friendship of 1962between the two countriës, to convey the
senseof anxiety to theauthorities in France.
There being no response to this communication, the New Zealand Embassy
in Paris addressed a further Note to the Foreien Ministrv on 22 Mav 1963
~ ~ ~ ~ ~ - ,
referring ~gïin io the grouing disqiiiet o~wsionerl h) the French plans and
\ettingout in gredtzr drtail the ba(t$for Ne\# Zealdnd'.: ohjecrions to iests in the
I'aiilic'riiçnote rcfcrrcd to New Zealand'i hopc l'or the c3rly c~~nîluiion of an
intcrnaiional agreement hÿnning atmosphcric terir uhi~h uould bc ;tccepied
and uh~er\ed by nll nstiun\ II pointcd io the P~ctth31the South Pa-itic uas a
rcgion which had hiiherto enj&ed cumpsraiive ininiunit) irum the cunsc-
quencesof atmosphcric iesting and that people uere alarnicd about the damiigc
th31could re\ult if France bcgïn testing ihere. Ii sirungly proicsted ai France's
plan, to e5tahlirh a tçsting .;ils in French I'ol)nc,i3and urged the French
Goiernnient Io rsconsider 11sdecision.
The turelgn \linistry rçpliçd on 25June 1963ihït the French Ciovernmçnt's
position was-well koown. France would associate itself with any effective and
supervised disarmament measures but, as long as others possessedmodern
weapons, it was, it wassaid, France's duty to preserve ils freedom of action in
this area. Others. it went on. had conducted tests in the Pacific and mirht do so
again. IFranceuould. houe\&, p3y,peci.il aticntion to protecting the Goples of
the areî and n,ould ai the ~ppriiprt:ite moment inforni Nca Zedland of the
conditions undcr uhich hcr cxpcriments \\,ould hc conrlu~teil and the sïfcty
prccsutions to be taken. This inforniîtion. it should he noted. has nevçr in-
iol\eJ tclling usof the nature ufthe Jevicei to hcc~plorled and ildoec noi now
extend to &- - advance notice to the New ~ealand Government of the ao-
proximale timing of a particular seriesof tests.
Later that same year, the French Government itself adverted to the evidence ARGUMENT OF DR. FINLAY 105
of mounting concern within New Zealand at the prospect of nuclear weapons
tests in French Polvnesia. In a Note dated 6 Seotember 1963the French Em-
bassy in New ~ealand referred to the systematic campaign developing in New
Zealand, as it said, against thesetests and suggestedthat this attitude. if con-
tinued, would adversely affect the friendly relations between the Iwo countries.
The Note went on to suggestthat New Zealand had not objected in a specific
way to test programmes cdrried out in the Pacific by other nuclear powers and
imolied that there was an element of discrimination in New Zealand's stand
with respectto the French nuclear testing programme.
In itsreply of 12 September 1963,the New Zealand Government refuted the
allegations. On this point the Note stated:
"The French Government cannot but be aware of the extent of public
conc~r~ in New Zealand. no1~.lv about nuclear te~t~ne but about nuclear ~~
ueapon5 grnerally. a conïern 10 u,hich ihc New Zealand Gorernmeni cïn-
noi remsin indikreiii The grouth of ieeling on ihc issueofiesting musi be
considered in ils hisioriçal pçripesiibe: the reactions of the presentday are
noi ihoie ulien )earcearlier. and lear. I~ketheetTcctsolradioactire t~lluut.
iscumulati\.e in the population. [\Ir Pre\ident. I am siill quoiing l'rom the
Neu Zealand rcpl) ai tkit stage.] Ihe Gosernmeni indeed has souphi to
temper opinion on the question of French testsand to discourage extrerne
proposais. A similar attitude has beenadopted towards suggestionswhich
have been made in certain quarterr as to possible measuresof retaliation
which might be taken against France in the economic field. The French
Government may beassuredthat, asa matter of principle, the New Zealand
Government does not look with favour upon direct action by particular
sections of the community in matters connected with New Zealand's ex-
ternal relations. The Government hasalso endeavoured to avoid in ils own
public statements any over-emphasis which could further incite public
opinion.
This is particularly true asregardspossiblehazards to health ..."
~ ~ Note~concluded bv reite,at~ ~ that the New Zealand Government's
concern a:is no1reldied simpl) in porsible h~ard~ IO healih. lthaJ steadily in
mind the obrtdcier uhich further iesis mghi raihc IO ihe implementaiion of the
partial test ban treaty signedonly a monthbefore, on 5 ~ugust 1963,at Moscow,
to the conclusion of an agreement for their complete cessation and indeed to
progressin the field of disarmament generally.
It wasalso the concern of the New Zealand Government to aiïord the greatest
possible protection to the people of New Zealand and of the Pacific territories
for which it was speaking, in the event that, against their express opposition,
France should oroceed with nuclear tests: and on several occasions the New
Zealand (;o\ernmeni rçquerierl the fullesi possihleinformation aboui the safer!.
rirecautions iniended. It also soueht the 20-operation of thc French authoritie\
ln arrangements for monitoringthe proposed explosions. Talks were held in
Paris betweenNew Zealand and French scientistson 29October 1965.However,
the Notes Ihaveso Cdrquoted appeared in 1963.
On 14 April 1966 New Zealand informed the French authorities that if the
testswent ahead New Zediand. in accordancewith its obligations under the 1963
Moscow Treaty, would not grant authority for any visits to New Zealand
territory by French military aircrart or ships, or overflights by French military
aircraft, unless assured that they were in no way associated with the tests.
Following the announcement by the FrenchGovernment on 16May 1966of the
establishment of a danger zone, New Zealand on 27 May solemnly reiterated its 106 NUCLEAR TESTS
protest at the holding of nuclear tests in the atmosphere, particularly in the
South Pacific, and formally reserved the right to hold the French Government
res~onsible for anv damaae or losses incu~red as a result of the tests in~ ~w ~ ~
~ealand or ihe ll<iCificlslands for \ihi~.h iïeu Zeiiland harl special rî,ponsibilii)
or consern. The.e reier\aiions hai,e ken entercd esch )edr \ince, ihar France
hai conducted iests. In rrlaiidn IO the Iaiici point. France replicd on 10 June
1966 that ihç t'ren~h Go~ernmcnt could no1envisage iti hring held responsihlc
fur damdge, e\en parliail). e\cepi aficr <im~ii.'ulous siud, of the circumstances
of any accident, and that in any case it could not accept responsibility if the
victims of an accident had failed to comply with the customary prescriptions
governingtheir proclaimed danger zones.
France beaan testina on 2 Julv 1966 and conducted five tests between that
date and 4 ~ctober. ~Ges of protest wereconveyed on 2July and 20July.
In the following year, New Zealand, in a Note dated 1I A~ril 1967.renewed
its representations to the French Government calling for an end tb nuclear
weapons testing in the South Pacific. The New Zealand communication went
on to make the point that, in the event of an unreceptive response, early advice
of an intention to test would be appreciated sa that the necessary monitoring
arrangements could beset in train. The Note referred to the fact that appreciable
increases in levels of radiation had been recorded in various islands, including
the Cook Islands, Western Samoa and Fiji, following the detonations of
11 September 1966and 4 October 1966that is, of course, in the previous year.
This demonstrated, the Note said, the need for the greatest care in the safe-
guards applied in order to minimize the risk to health. It is noteworthy, in-
cidentally, that these higher readings, commented on in the Note, coincided
with one of the blow-back occurrences detected by Our monitoring system, and
details of such phenomena may befound in Annex VI1 ta Our request.
The Frenchauthorities replied on 25 April that France's position with regard
to the cessation of nuclear testswas well known and had ken setout in previous
communications to the New Zealand Emhassy in Paris. There was therefore no
need to go over this ground. As for the increased radiation levels detected in
1966, the reply said, the New Zealand and French monitoring data were in
accord that the increaseshad been temporary and that they did not represent a
public health hazard.
France conducted three testsbetween 5Juneand 2July 1967.
In August 1967.at the invitationof the French authorities. ~.e D~rec~ ~ ~ ~ ~e~-
Seu ~~;land ~liiion.il Radiation I.aborlitur) iirited 1-renchI>i>lynîsiaIO siudy
safet) precautiuns surrounding the iests and had talks uiih rrcn~h oflicidli in
Paris.
On 5 June 1968, New Zealand reiterated to France its opposition to nuclear
testing and in particular the continued atmospheric testing of nuclear weaDons
in direct o~oosition to the orincioles set out in the ~oscow ~reatv.-~he
Go\ernment'ua~con\incc<l thil suzhasiioncuulrl only hinder thc;iitainmeni of
further dtsarniament nieÿburei. IIwa, aI5i1deeply conxrned about the ~otcniial
risks ofcontamination within theenvironment of the South Pacific asa~resultof
fall-out from proposed French tests. On behalf of al1the peoples for whom it
was responsible, New Zealand deplored the continued useof the South Pacific
area asan ex~erimental site for nuclearexolosions
~ranceconducted five testsbetween 7J;ly and 8September 1968.
No tests took place in 1969.At the time, the absenceof tests raised hopes in
New Zealand that the programme had either been completed or discontinued;
but Ourhopes were to be provedunfounded.
On 6 April 1970,when it was clear that Franceintended to resumetesting at ARGUMENT OF DR. FINLAY 107
Mururoa, New Zealand reiterated ils position in the terms of its communication
~ ~~ ~8.~-~~~ wasn~~re~no~.r - ~ ~ - ~ ~
France conducted eight testsbetween 15May and 6 August 1970.
New Zealand's protest of 14 May 1971similarlv went unheeded. There were
five tests between 5 June and 14~ugust 1971.
On 29 March 1972 New Zealand noted again that continued testing by
France was in direct conîiict with the principles set ou1 in the Moscow partial
test ban treaty, and drew attention to the fact that it was also in direct conîiict
with the wishes of the General Assembly of the United Nations most recently
stated in resolution 2828C (XXVI) of 16 December 1971.The views of member
Governments of the South ~acific Forum contained in an appeal to the French
Government of 5 August 1971were also recalled. On 5 June 1972New Zealand
asked France to vostvone the commencement of a test series until after the
Stockholm ~nvironmental Conference.Once more the responsewassilence.
France conducted three tests between 25 June and 27 July 1972.Contrary ta
its previous practice, the French Government made no announcement thal the
testshad taken place.
In December 1972the Prime Minister of New Zealand sought once again ta
engage the French Government in a dialogue on the issue of nuclear testing,
explaining anew and at some length the grounds for New Zealand's position in
this matter. In a letter of 19 December 1972, Our Prime Minister, Mr. Kirk,
summed up deepening public apprehension in New Zealand asfollows:
"This public mood. so wides~read that it mus1 be heeded bv a demo-
craticallyelected Government, is based, 1 think, on three factois: anxiety
about the possible physical eiïects of radioactive fallout, concern at this
demonstrable evidence of ~roliferatina nuclear weavons, and resentment
that a European power should carry oit such experiments not on ils own
metropolitan territory but in an overseasterritory in what may seemfrom
Paris a remote region, but which is neverthelessthe region in which we and
the Pacificpeoples live."
hlr. Kirk concludcd ihis leiier hy expresiing hi$ eïrncit desiie to sec this one
elemcni or seriilus conteniion remohcd froni ulhai IIIal1 other respects is an
chcellent rdari<inship bcruecn Ncu Zedland iinJ I:r~nce. This. hlr. Prcsidenl,
m3y 1empha,i,e, is my Go\crnnieni'\ continurd hope ioda)
Thr: Irench C;o\ernment re\psnded to this approach by iileiier ;iJdresseJ hy
the Irench ,\mb.issaJ<ir on 19 Fehru.irv 1973 io the Prime Minisicr of Sew
Zealand. After reviewing carefully the historical background to France's deci-
sion to develop nuclear weapons. this letter noted that a nuclear capacity ans-
wered a comvellinr! r-.uirement of France's national securitv. The letter also
laid stress on the safety measures observed by the French a"thorities in con-
ductina the testsand the minimal increasesin radiation levels to which they gave
rise asCompared with radiation (rom natural and other sources, and drew the
conclusion that any hazard ta the ecology and 10 human lire resied on con-
jecture. The Prime Minister stated in response that New Zealand regarded the
continued development of nuclear weaponry as an increasing danger to world
peaceand that :
" ...the existing international agreements on the testing and on the pro-
liferation of nuclear weapons, the resolutions of the General Assembly
of the United Nations and ofother international bodies, attest to an over-
whelming weight of international opinion in support of the contention that
al1nuclear testsare a danger ta mankind andshould cease".108 NUCLEAR TESTS
Mr. Kirk went on to make the point that "an activity that is inherently
harmful is not made acceotable even br the most strineent orecautionarv
measures", and that in matiers of such gravity the need Io èlimikate avoidablé
risks was paramount. He noted that "the principle that any radiation is harm-
ful is acce~ted bv resoonsible scientific o~inion and bv national aeencies in
wtiingsiind.irdsior the pexeful useso~arornic energy" ind thdt furGis reason
any addiiionsl exposurc io radiation withoui ci)rrerp<inding benciit uai rçgar-
ded bv thcse aeencic> asuniustified. The tesis conduiied in Fren~h Pi)lynesia
expasid New Zealanders to radio-active fall-out against their choice and with-
out benefitto them.
He further said that the New Zealand Government reaarded the conduct of
thesetests as violating New Zealand's rights under international law. New Zea-
land continued, however, ta look to a resolution of this issue through discus-
sion. In response Io an invitation from the French Government, the Deputy
Prime Minister of New Zealand had talks in Paris with the French Foreign
Minister, the Administrafor-General of the Atomic Energy Commission, the
Minister of the Armed Services and with the President of France himself on
25, 26 and 27 April 1973.But the French,Government did no1feel able Io give
the Deputy Prim$ Minister the assurance he sought, namely that the French
.iro.ramme of atmosoheric nuclear testin- in the South Pacific had come tuan
end. The Fren;h C;urernment alio made itplain tharii didnot accepi the con-
teniion ihai its programme of aimospheric nuclear te\tinp in ihe Souih Pacific
involved a violation of international law.
Mr. President and Members of the Court, this long history of diplomatic
exchanges between the Government of New Zealand and the Government of
France, which is documented in Annex III Io oui Application, establishes, in
Our view, the following points:
First, the conduct by France of nuclear tests resulting in radio-active fall-out
has given rise ta a dispute-an unfortunate dispute-between the Government
of New Zealand and the Government of France with respect Io the rights of
New Zealand under international law. Des~ite the efforts of bath parties,
protracted diplomatic negotiations, conducted in a spirit of conformity with the
friendly relations between thern and with the comity of nations, have not
resulted in aettlement. The dispute therefore continues.
Secort</.the record of New Zealand di~lomatic Drutest. at everv stage from
the first hint ofnuclear testing in the ~acificranc throughou<the dévelop-
ment of the French programmeand following each seriesof tests that has taken
place. shows beyond doubt that no caseof estoppel hy consent or acquiescence
can be madeout against New Zealand.
Tliir<l, it is a feature of the negotiations between thetwocountrthat there
has beena strone desire on both sides tu orevent the issuefrom disturhing the
long-standing fr&ndship between New ~ealand and France and inhibiting the
steady and cordial development of Our relations. For its part, New Zealand has
not sou-ht to exa"-erate the issue or ma-.ifv the extent of alarm and disauiet
nmong 11.peoplc at the :ontinuatiunof the tesi3. Surcessiie Cuvcrnmenrs h3i.c
cndea\uured ii>kwp ihc quesiion of healih harard in proporiiun by the ob.
iective oresentation of the facts eathered throurh the monitorine network and
ihrough discussions with ~renchscientists and officiai se.w ~ealand Govern-
ments have also discouraged extreme proposais for action against the tests and
initiatives hv orivate individuals and erouDs
Fi,rollyfh correspondence reveais thé steadily deepening senseof outrage
with which the oeople of New Zealand, through successiveGovernments, have
come to view ihe~continuing French programme of nuclear testing in the ARGUMENT OF OR. FINLAY 109
Pacific. It shows that this senseof outrage stems from apprehension about the
oossihle hazards to health from radio-active fall-out, determined oooosition to
~hefuriher de\elopnicni of nusle~r ueap<in\.andan in;rw\ing aua;Acis of the
inipIi.'aiic>n.. 01'Frcn~v nu~lear teiting u,ithin the region to whi;h New Zcdland
In r&ieuing the history ofrepre,entaticin\ mde by Seu, Zsaland ti>France, I
hdie so far ,tres\ed the hilateral reldtii~n\hip bîtueen the 1-0 couniries. Thc
issuesin dispute cannot, however, be accurately protrayed within this limited
frame of reference. From the beginning, New Zealand attitudes took due
account of scientific standards which were internationally accepted and of the
wider consensus in regard to nuclear testina which was develooing within the
orpdns of the Uniieci <aiions .inilin oiher ~nt~rii~tion31bodies: I haie already
noieil ihat Nerr ZcalanJ', lirsi approa~hes IO Crsn~crcflwicd the irr'iid <ifin[er-
national ooinion about the daneers of a nuclear war and the need for disar-
mament. 1 shall later trace the way in which international values became
crystallized during the period of New Zealand's correspondence with France
and 1 shall also mention the significance of the world's growing concern for the
human environment.
Before 1do this, however, 1should Saysomething of the region of the world in
which French nuclear tests are takine olace. It is an area of scattered islands
with small populations and limited ?and resources separated by vast ocean
distances. In 1963there was only oneindependent State amongthe islands north
and east of New ~ealand-western ~amoa. formerlv a trust territorv under
Kea lealand aJniiiii<ir.iiion Othcr Pacitis 1err:toiier uere ai \.irying riade, of
onïi,tutional development. but dlrealy thcre war 3 seme oi regional identiiy
based on ethnic andcultural ties and tioon oarticioation in reeional meetings
concerned with common problems in théec6nomic and social fields. After the
Second World War the countries, including Australia, New Zealand and
France. which were resoonsible for deoendent territories in the Pacific area had
set up the South ~acific Commission io cater for the needsof these territories:
by 1963the initiative in planning the Commission's programmes was passing ta
the representatives of the ~acificterritories themselves.
Ten years later the number of independent countries had grown ta four. The
largest among them, Fiji, which has asked to intervene in these proceedings,
has hecome a Member of the United Nations. The Cook Islands. though
choosing not to be completely independent, had attained full self-governmeit
in free association with New Zealand. These five States, together with Australia
and New Zealand, have formed a regional grouping known as the South Pacific
Forum. Within the framework of the South Pacific Commission they also
retain their association with the territories which have not yet attained self-
government.
1give these details, Mr. President and Members of the Court, becausethey
mark the growth of a regional consciousness. At the beginning of the period
~ ~~~~revie~~ the Metr-~ol~.~n P~ ~ ~~were-the custodians of the interests of
the Pacific peoples. New Zealand's first representations ta France, made on 14
March 1963.stressednot only public concern within New Zealand but concern
for the people of the islands: France was reminded that her proposed test site
is within 1,300miles of the Cook Islands; and at the request of Western Samoa
itsconcern wasalsoconveyed to France.
Still todav there are small deoendent territories in the South Pacific for which
, .~
New Zealand and other countries are responsihle, but there is in addition a
collective voice for peoples who have attained or are approaching independence.
Some of their pronouncements are assembled in Annex IV ta the request. The 110 NUCLEAR TESTS
request cites the successiveexpressionsof unanimous concern at meetings of the
South Pacific Forum; the concern of Pacific countries is also reflected in
pronouncements made at other regional meetings. As an example, 1 might quote
from the full text in Annex IV of a resolution adopted by a meeting of the
Pacific Island Producers Association on 14June 1972:
"The Prime Ministers of Western Samoa, Tonga. and Fiji, the Premier
of the Cook Islands and reoresentatives of the Niuean and Gilbert and
Ellice Islands Governments,'meeting in Rarotonga during the seventh ses-
sion of the Pacific Islands Producers Association, unanimously agreed to
register a strong protest against the French Government's dession to
proceed with further nuclear tests on Mururoa Atoll. These tests are a real
threat not only to the peoples of the South Pacific but also Io their en-
vironment. The conference deplores the French Government's attitude in
persisting with thesetests in spite of repeated requests by the Governments
and oeooles of the South Pacific reaion to stoo them: despite its assurances
abo& the inofïensiveness of these nuclear explosions ta health and safety.
and to marine life which is a vital element in the economy of South Pacific
countries the French Government continues to conduct them at a point of
theearth's surface far removed from the massof its own people."
No-one who listens to this and similar statements can suppose that the con-
Cernexpressed isnot genuine, that it is not deeply felt by the peoples concerned
or that French atmospheric testing does not represent for them a gross invasion
of their rights and liberties.
Some of the rights for which New Zealand seeksprotection are expressed in
terms of leeitima~ ~ ~ ~-interest. The. .oole of New Zealand. the Cook Islands. ~.
Niue and the Tokçlïu Islands actively resent the contamination of the air the).
breatheand of ihe waters from which their food rupplies are drawn. Moreover.
it is worth saying in parentheses that this is one of the few areas of the world
which produces vastly more food than it consumes, most of the surplus king
exported, hitherto pollution-free, to be consumed in the northern hemisphere.
The uncertain physical and genetic eiïects to which contamination exposes the
people of New Zealand, the Cook Islands, Niue and the Tokelau Islands cause
them acute apprehension, anxiety and concern. It is an obvious imposition that
it should be necessary to maintain in New Zealand itself, and in the Pacific
islands. outposts to keep watch on the fluctuating levels of an unnatural and
unsought hazard. France's encroachment upon the freedom of navigation in,
and above, international waters assumes an added dimension and invites
challenge becauseit symbolizes a disregard for the rights of other peoples to go
about their own aiïairs unhinderedand unharmed.
Le-itimate -~lf-~nt~re~t~ ~ not the same thine as selfishness.The former looks
~ -
Io community standards as the measure of individual rights. The South Pacific
suiTersthe disadvantages of isolation: it expects to reao the benefit of clean air
and clean seas. It shares the feeling of various other regions that preparations
for nuclear war are unwelcome and resented in its part of the world and that
they certainlv oiïer no benefit-they certainly confer no benefit-uoon the
peopl eho li\.e in and around ihc ~o"th ~acilic. As the di>iumrnts in Annex IV
to the requesi aiie>t. tliecounirieiuhich border the Pïrific~specially those of
South America and South-East Asia-shïrc the concern and indignaiion of the
countries of the South Pacific region that nuclear testing in that region should
continue.
Without over-emphasizing this aspect of the case, 1 would like to take a
moment to discuss the disparity between the radiation protection standards, ARGUMENT OF DR. FINLAY 111
which we proclaim for ourselves in New Zealand, and the standards that
France would impose on usthrough her testing.
France asserts that, because the increases involved fall short of the dose
limits recommended bv the International Commission for Radioloaical Protec-
tion and used by many national agencies in setting safety standards for in-
dividuals living near a radiation installation, the testsare therefore harmless and
rive no legitimate cause for alarm. France chooses to i~nore the orincioles that
attach toÏhe application of these standards, namely:-(1) that ihey &ply to
controllable sources; (2) that any unnecessary exposure to ionizing radiation
should beeliminated. and es~eciallv if an aooreciable number of the oo~ulation
could be involved; and (3) ihat ail doses.should be kept as low ai i; readily
achievable, economic and social considerations king taken into account.
It has never been sueeestedbv the ICRP or bv anv other resoonsible aeencv
that widespread conta&ation.from an unconirol~ed source ihould beucon-
sidered as acceptable within these limits. Indeed. the recommendations of the
ICRP are auite svecilic on this ooint and emvhasize that dose limits for ex-
porLres frim coniroll.~hle >ourici are iiot intr.ndeJ [or genïral u.rein the ahers-
ment oiihe risks O~C\PO\UIC frfim unir)ntr<illeJ .;uur<r.,.
These principles rest on theassumption that any exposure to radiation may be
harmful and that. until it has ben clearly demonstrated otherwise, a linear
relationship between dose and the risk of damage must be accepted. All inter-
national bodies that have any association with radiation saîety, for example
UNSCEAR. WHO, IAEA and the IL0 have adopted the principles long held
by theICRP.
The same standards are reiîected in New Zealand law and practice, which
require that no person shall intentionally expose any other person to radiation
from radio-active material or an irradiating appafatus, except for medical
reasons or other ou.oo.es authorized bv the terms of a licence. The issue of
licences is carefully controlled and every person in control of a source of radia-
tion is obliged to ensure that. except in the caseof radiation therapy, the dose
receivedby any person isthe minimum practicable.
Legislative action in New Zealand in the field of radiation protection goes
back to 1945. In 1950 the National Radiation Laboratory was established Io
administer and suoervise the leeal reauirements and to orovide the necessarv
advisory and scientific servicesTor th;safe handling of radiating apparatus. 1;
1957 the same body was charged, in response to the alarming expansion of
nuclear teçtinn oroararnma in ihe northern hemisohere. with the resoonsibilitv
for m<initoringen\ iri,nmcntal raJiai-aciiiecontaminaiion in Srw ZcïlanJ.
Nriu Zealsnd h~>;idoptc(l iv~ndar<l\ oisupervision and protecilon the re'ult*
of which sveak for themselves: ithas been determined bv a comorehensive
survey thaithe annual genetically significant dose to the ~eb ~ealaad popula-
tion from al1controlled sources is 14rnillirads, which compares very favourably
with values of about 40 millirads for most other countries with cornoarable
radiological services. Similarly, in respect of uncontrolled sources of radiation,
Our practice is equally rigorous. Before approval is granted for release of any
material. itis determined that few iiersons would be involved. Thecontribution
IO ihr natifinal populaiifin doje ,in thir sci)rc isquite negligible. Ndtiondl control
is ihus excrcised at al1 limes: moreober, any person uho considers he may be
adverselv atlected kasclear andreadilv available lepal rights of recourse
-.
But fall-out from nuclear testing exposes the whole population. Even low112 NUCLEAR TESTS
levels contribute markedly to the population exposure; furthermore, there is no
question of inlernalionally agreed limits or standards for such widespread
exoosure. On the contrary, the norm constantly recommended by the United
~ÿiions and the ~peciali;cd Agcncie, c~>n<crni~and cnshrined IIIthe Pariial
Test Riin Treai) 1.ih~i ihercsliuuld bena suchexposureai a11.
France invites us, by reference to her defence reauirements, to acceDt the
infringement of Our naiional health requirements. Itisa proposition repeatedly
rejected by the New Zealand Government and people and by the world al
large.
Can il, Mi. President, truthfully be said that Our concern is exaggerated?
Can it fairly be urged. in the face of UNSCEAR reports and other cogent
evidence, that scientists are sanguine about the capacity of the world and its
peoples to absorb a little more man-made radiation, and to accommodate a few
more experiments, so that another group of men may learn the secrets of
nuclear armaments? New Zealand and the South Pacific do no1 Dresume Io
inii>t un iheir swn ansuers IOthex queitiuns. 'lhcy invite the Court tu judge hy
the standard< oI the iniernaiional zoniniuniiy reflesieJ in the decisions of the
United Nations.
1 have already alluded to the involvement of my own country in United
Nations efforts to bring about a reduction of armaments and especially to hall
atmosohcric nucleai' testinc in the vears before New Zealand became aware of
~rancé'sintention to establish a iuclear testing site in the South Pacific. The
subsequent growth of world-wide opposition to nuclear weapons development
and especially to nuclear testing in the atmosphere is briefly related in pages
51to 52, supra,ofour request.
The Treaty Banning Nuclear Tests in the Atmosphere, in Outer Space and
Under Water was sinned -n 1963. the ver" vear . .the French decision Io
c.;tahli\h a nuclear tesiinp iiie in the Pacific region. Thcrcafter thç <;encra1
,\sscmbly hasconsisienily cdlled Icir uni\ersal adhercnce io the irçaiy and Tora
cess3tion of nuclcar ivedpons iests In rcsoliiiion 2828 (XXVII or 16 Decenikr
1971.ihc Gener;il Arwrnbl) sumnied up and intcnsified ils deniandc for the sus-
pnsicin (IInurlçar and ihcrnioiiucleïr tesis, plïcing a spccial emphajis on the
harmful effects of atmospheric testing.
Last year the General Assernbly in resolution 2934 A (XXVII) struck an even
more emphatic and urgent note. 1would like especially to bring Io the Court's
attention the elements of this resolution which paid particular attention Io the
situation in the Pacific region, and which was adopted by 105 in favour, 4
against and 9 abstentions.
"The GeiierolAssenlblj~ ...
Noring willi regret that al1 States have not yet adhered Io the Treaty
Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and
Under Water, signed in Moscow on 5 August 1963.
Exprrssi,rx seriarts ro~icer,i that testing of nuclear weapons in the
atmos~here hascontinued in some oarts of the world. includinc the Pacific
area. indisregard of the spirit of thai Treaty and ofworld opinih,
Noriir~ in this connexion the statements made by the Governments of
various countries in and around the Pacific area, expressing strong opposi-
tion to those testsand urging that they behalted,
1. Str~sscso,rewtheurrencv of brineine to a hall al1atniosoheric testina -
of nuclear weapons in the-~acific or an;where elsein the world;
2. Urgcs al1 States that have not yet done so Io adhere without further ARGUMENT OF DR. FINLAY 113
delay to the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in
Outer Spaceand Under Water and, meanwhile, to refrain from testing in
theenvironments covered by that Treaty."
The New Zealand request at pages54 to 56, supro, reviews the efects upon
the environment of atmos~heric nuclear testine. The United Nations Con-
ference on the Human ~niironment held at~~t&kholm in June 1972 was the
culmination of al1previous ellorts in this fieldItprovided compelling evidence
of aheiahtened senseof international resoonsibilitv for environmental oolicies.
~rincipi 21 of the Dcclaration adopted b; the conference, which acknowledges
the sovereign right of States to exploit their own resources. stressesthe con-
sequenceof this.~ltis:
"... the responsibility to ensure that activities within their jurisdiction
or control do not cause damage to the environmeni of other States or of
areasbeyond ihe limits of national jurisdiction".
Mr. President and Members of the Court, mv Government believesthat the
rights for which we are today seeking protectiok include no1only the rights in
respect of our own territory and of iniernational sea and air space, but also
rights of a more generalcharacier belonging to al1membersof the international
community. These are the rights to inhabit a world in which nuclear iesting in
the atmosphere does no1 take place and the rights to the preservation of the
environment from uniustified artificial radio-active contamination. 1 shall be
ready to make furthe; submissions in support of this view at the appropriate
stagein theseproceedings which New Zealand hasinstituted against France.
For the piesent my remainina task is sim~. .to show the Court that there is an
urgeni necd for the jnierini me&ure\ of proteciion soughl in the Sew Zealand
requesi ihat 1.thal France rcfrain from condusting any furthcr nuclear icsts
that give riseto radio-active fall-oui while thecourt isseized01ihecasc.
In opcnins, 1hï\c e\pliiined ihe reasunswhy my Cio\ernment hasconcludcd
ihai ihe right, il clainis can hcprtithicd only hy the exercije ofthis Couri's dir-
cretion to lay down and indicate such measures. In closina. 1should like to
demonstrate~why, in our submission, these measures are Glled for with the
leastpossibledelay.
On 2 May 1973.this verv month, the French Government announced that it
did not intend ta cancel O; modify its programme of nuclear weapons testing.
From official pronouncements it is clear that some further tests are envisaged
with the likelihood of deploying a thermonuclear warhead by 1976.The French
Government has also reserved ils options on the development of yet another
generation of nuclear weapons afler 1976 which would require further tests,
though the compass of any such programme is no1 known. The practice of
notification through the diplomaiic channel of an intention to test appears to
have ban dispensed with and there is reason to believe that the only warning
now contemplated by the French authorities is an urgent messageactivating the
danger zone within a few days of the commencement of this year's series. In
previous years, tests have begun at the earliest on 15 May and at the latest
on 7 July, this period of the year king the least hazardous from the point of
view ofmeteorological conditions-though even then blow-back conditions are
always possible.
At this date of24 Mav we are living -n the knowledae t-at at anv moment a
furthcr seriesof French nucle3r ierts mAy bcgin.
Within Se!, ZealanJ the imminence ofsuch tesis hai asrumcd ihe impairiance
of3 iI<im:n.~iingpuhli; irrue. Peuplc are fru,iratcd b) the ceemng inrlitkrcn~~r114 NUCLEAR TESTS
of France Io standards proclaimed by the United Nationswhich command their
loyalty and reflect the anxieties of the whole region. There is an increasing
tendency for individuals and for trade unions and for other groups to find oth&
avenues of protest in order to demonstrate their feeling that they have a moral
duty to oppose further French nuclear tests. These acts of protest include
voyages by small boats into or near the likely danger zone, the threat of boy-
cotts intended to aiièct French economic interests and even actions aimed at
French institutions and ProDertv which tend to the disru~tion of law and
...
order. Such diiions are no1\uppurtcd b) the Neu Ze~ldnd ~io~ernmcni. but in
3 dcnii):rdiicsacici). thcre dre I.mitsIOthe reirictii~ns uhicli cdn be placcd on
individual activities.
As 1come, Mr. President, to the end of my subrnissions, 1refer again to the
way in which the people of New Zealand view nuclear testing in the Pacific
renion. The question thev are asking can'be simoly stated. Itis this-how much
isénough? ~here can ben0 doubt fhat there isaÏready a consensus that radio-
active fall-out is the source of profound anxiety based on ils possible physical
effects. We shall at a later stage have more to say about the nature of the
judgment which the world community makes on nuclear testing.
It is settled in principle and practice that no artificial radiation should be
~enerated without countervailine and cornoensatine. benefit to mankind. That
Controlled irradiation can prod;ce benefif'goes w;hout saying, and for that
reason we are prepared Io tolerate a certain amount of it, subject Io the strictest
safenuards. The renie musl. however. be keDt in the bottle. Once he escaoeshis
potcntiality for mischief noh and in the fukre is incalculable. To allow him to
roam about Our own housewould be bad enough, but we would have no-one to
blame but ourselves if that were to occur. To let him loose on the world would
be perniciousand inexcusable. In saying that, Ihave used theconditional tense.
Unhappily 1 am entitled. and indeed compelled, to use also the present indic-
ative and say it is ~ernicious and inexcusable io create radio-active fall-out and
fa au sit to c~niaminate ihe uorld 2nd ils atmo.phcrc. The uorld iiself hlis said
\O repcîtedly through the \oiieofihe Uniied Slitionr.
TO the question, then. that 1pose, how much is enough. there can be but one
answer. Any more is too much, unless it is plainly and unequivocally for the
benefit of al1mankind. The admitted objective of French testing is the perfec-
tion of a thermonuclear explosive device. 1s anyone bold enough to describe
that asbenefiling humanity?
How much is enough? No answer other than. any more is too much, will
satisfy theacknowledged requirement that therightsof the Parties Io the dispute
must be preserved. Nothing short, Mr. President, of an Order requiring France
to ceaseand desist will preserve the rights of this Party Io the dispute and meet
the requirements of natural justice.
My Government submits that the concordance of international opinion,
witnessed over and over again in the decisions of the General Assembly and
other United Nations bodies. is also the law. We lace nreat confidence in this
Court, notonly asthe arbiter'of the dispute betw&n two~overnments but also
as an agency to act swiftly and authoritatively in prescribing measures Io
orotect New Zealand's riehts aeainst anv further encroachment. We reswctfullv
;rge the Court to give fiIl we'&ht IO the reality and immediacy of the'concerh
with which the people of New Zealand and of other countries of the region are
awaiting ils answer. ARGUMENT OF MR. SAVAGE
ARGUMENTOF MR. SAVAGE
COUNSEL FOR THE GOVERNMEN TF NEWZEALAND
Mr. SAVAGE: Mr. President and Memters of the Court. 11will te my task
to show, by reference to thejurisprudence of the Court, that the present case is
one in which il is wholly proper for the Court to grant the interim relief re-
questedand. moreover, that therearecompellingreasons for ifta do so.
1 kgin by reviewing. relatively briefly, the criteria which the Court has
applied in theexerciseof ils discretion under Article 41 of the Statute. to indicate
interim measuresof protection.
Article41 of the Statute s.v~that the Court "shall have the Dower Io indicate.
if it considers that the circumstances so require, any provisional measureswhich
ought to k taken to Dreservethe respective rights of either party". In exercising
thédiscretion confeired on it by the very broad languagé of-the Article, the
Court hasdeveloped a number of testsor criteria.
In the first Order made by the President of the Permanent Court in 1927in the
Sino-Belgian Treary case, the purpose of Article 41 was characterized in the
following terms:
.the object of the me<i\urrs of interini protection contemplïted by the
Statute of the Court is10 praerve the respective rights of the I'arties pcnd-
inpthe decisionofIheC~iurt; . "(PClJ .Si,r,er A. No.8. p.6).
Similar observations. oaralleline verv closelv the lanauaee of Article 41. are
to k found in the PO/&; ~graria!F~ef&m caseand thefour casesin which the
present Cour1 has considered requests for interim measures, that is the Anglo-
Iranian Oil Co. case.the 1,rrerlrandelcaseand the FisheriesJurisdicrion cases.
In the ~i,ro-~~l~ia!r Treary case the President of the Court appeared at one
point in his Order to interpret Article 41 in a much narrower sense.The Order
suggeststhat the interim relief should be limited to caseswhere the infraction of
the rights in issue could not te made good simply by the payment of an in-
demnity or by compensation or by restitution in some material form. It is sub-
mitted that it is morethan doubtful whether that narrow test for thecxercise of
thediscretion provided by Article 41 ever carried very much weight. Becausein
the very case in which il was so stated, some at least of the rights which were
protected by the Order could have been made good by compensation. In any
event. that test has been plûinly overtaken by subsequent cases. In both the
Aiiglo-lranioiiOil Co. case, and the Fisheries Jrtrisdiclio~t cases. the rights
protected by the interim measures indicated by the Court could have been
restored by compensation.
A related but broader test derives from the ~ourh-~as;erri Creetrlatid case in
which the Permanent Court stated in ils Order that the object of interim
measureswas ta preserve the respective rights of the parties: "in so Far,that is,
as the damage threatening these rights would be irreparable in fact or in law"
(P.C.I.J., SeriesAIB, No. 48, p. 284).
Subsequent decisians, including in particular, the Elecrriciry Conrpatiy of
Sofia and Bulgaria case,have sometimes been thought to cast doubt on this test
enunciated in the South-EosrerrzGreenla~rdcase. In 1972. however. the oresent
Court in the Firherizs Jorird;criri» çaiei applic3 coniprirrible test uhenitsaid
that the right of the Court ru indicdie measuresof proieciion under Ariicle 41
presupposed that "irreparable prejudice should not be caused Io rights which116 NUCLEAR TESTS
are the subject of dispute in judicial proceedings" (I.C.J. Reporls1972, pp. 16
and 34).
And the joint declaralion made by Vice-President Ammoun, by Judge
Forster and by Judge Jiménezde Aréchaga, stressed the significance of this
element in thecourt's discretion.
In the same case, the Court referred to another matter to be taken into
account when itsaid this:
". ..the immediate implementation by lceland of its Regulations would, by
anticipating the Court's judgment, prejudice the rights claimed by the
United Kingdom and aîïect the possibility of their full restoration in the
event of ajudgment in ils favour" (ibid.).
There are then at least three tests or matters which are relevant to the present
case and which the Court has shown by earlier decisions that it takes into
account when it has had to make a decision under Article 41 of its Statute.
Firsl. it has enqiiired, as indeed it is directly enjoined 10 do by the terms of
Article 41. whether interim measuresare necessarv IO Dreservethe riehts form-
ing the subject of the dispute. Secoi~di,t has cons;dered whether in the absence
of an indication of interim measures there would be irreparable preiudice or
damaee to those riehts. Tlrird.it has taken into account the fact that "articular
~ ~ 7~
actions likely to beïaken by one of the parties would afiect the p~ssibilit~ of the
full restoration of the rights claimed by the other Party i~ the~event ofa iuda- . .
ment in ils îavour.
There may well be scopefor diiierences ofview asto the relative weight which
the Court has in the past. and should in the future. ive to eachof thesematters.
In the oresent case /t is the submission of the~~ew~Zealand G~-ernment that
ibis 15 of no significance. The appliuiion of aII or any of ihem point, plainly tg)
an indication bs ihe Court thai France rhould refrain from coiiduciin,: nucle~r
tests that give-rise to radio-active fall-out while the Court is seize2 of the
matter.
Before 1consider the application of these matters to the facts of the present
case..it i~ necessarvto refer to a een-ral orinrio~ ~w.ich the Court has invoked
when it has come to consider interim relief applications. This is a principle
which is fully established in the Court's juris~rudence relating to Article 41 and
which, in the present case,has in addition a-separateund independent basisor
origin. 1refer to the principle that there should be no aggravation or extension
of the dispute that is before the Court pendina ils determination.
-
l'hi* gcneral princ,iplc uss moi1 clc~rl! hi~tcil b) the Pernianeni Court in the
Lli~1riri1.1C'ot?ipo!~ #)/Solio oiu/ Utrlgoriocdsc In tlie Oder that II nisde in thsi
case,the Permanent Court, after citingArticle41 said this:
"Whereas the above-quoted provision of the Statuteapplies the principle
universally accepted by international tribunals and likewise laid down in
many conventions to which Buigdria has been a party-Io the elfect that
parties to a case must abstain from any measure capable of exercising a
prejudicial eîïect in regard to the execution of the decision to be given and.
in general, not allow any step ofany kind to be taken which might aggra-
vateor extend the dispute." (P.C.I.J., SeriesAIE, No. 79, p. 199.)
And the Court then went on to frame the interim meîsures which it indicated
in terms of the principle.
Il is worthy of note. in my submission, that the passage I have quoted, from
the Order in that case.referred to the principle that there should be no aggrava-
tion or extension of a dispute as being one "universally accepted by inter- ARGUMENT OF UR. SAVAGE 117
national tribunals". It alsoregarded asrelevant the fact that the principle was to
be found in many conventions to which Bulgaria had been a party. In fact by
1939,when the casewas decided, the principle had ken incorporated in acon-
siderahle number of multilateral and bilateral treaties, which included the 1924
Geneva Protocol, the 1925 Locarno Arbitration Convention and the 1928
General Act for the Pacific Settlement of International Disputes, to which 1
shall bereferring at morelength later in thesuhmissions.
The sameprinciple was incorporated in the Orders made by the Court in the
Aftalo-lranian Oil Co. case and the FisheriesJurisdiclio,icases. The last two
casesalso stated the principle in a different way. In its Order in those casesthe
Court linked the principle that disputes should not be aggravated or extended
with another matter to~which 1 have already referred, namely that irreparable
prejudice should not be causedto rights which are the subject of the dispute in
judicial proceedings and it did so in such a way as to make it clear that it
conceived both theseprinciples flowed directly from Article 41. The Court said:
"Whereas the right of the Court to indicate provisional measures as
provided for in Article 41 of the Statute has as its object to preserve the
respective rights of the Parties pending the decision of the Court, and
presupposesthat irreparable prejudiceshould not becausedto rightswhich
are the suhiect of disDute in iudicial oroceedines and that the Court's
judgment should not be anticipated by reason of any initiative regarding
the measureswhich are in issue." (I.C.J. Reports1972,pp. 16and 34.)
Now somecommentators havesua~ested--at in considering whethe. interim
measutes are required in order to prevent the aggravation or extension of a
dispute before it the Court has gone outside the strict terms of Article 41. The
better view, in my submission, and the one which the Court itself appeared to
endorse in the passagethat I havejust quoted from the FisheriesJt,risdiction
cases,is that there is a direct and logical link betweenthe preservation of rights
of which the Articlespeaks and the prevention of actions which might aggravate
or extend the dispute concerning those rights. In the great majority of cases,
action by one party, itis submitted. which aggravatesor extends a dispute will
tend to havea ~reiudicialeffecl on the riehts of theother oartv.
There is, thin,-in my submission, ample authority for the view that, acting
under Article 41, the Court can and should indicate interim measuresof protec-
tion if that is necessaryto prevent the aggravationand extension of a dispute.
Quite apart from that proposition, the possibility of the aggravation of the
dispute between New Zealand and France would still remain a relevant and
important matter in the present case. This is so becausethere exisls a specific
undertaking given by France to abstain from any action whatever that might
aggravate or extend the dispute. That undertaking is contained in Article 33 of
the General Act for the Pacific Settlement of International Dis~utes. which
confers on the Court a power Io grant interim measuresof proteciion which is
complementary to the power with which itis endowed by Article 41 of the
~tatÜte.1read~rticle 33-il isas follows:
"1. In al1caseswhere a dispute forms theobject of arbitration orjudicial
proceedings, and particularly if the question on which the parties dilier
arises out of acts already committed, or on the point of being committed.
the Permanent Court of International Justice, acting in accordance with
Article 41 of ils Statute. or the arbitral tribunal. shall lav down within the
shoriest pi>siible lime the provisional measures 10 be a.Ii>pied The parties
tu the dispute shall be bound io acccpt such msiiure\." 118 NUCLEAR TESTS
Paragraph2 hasno application and 1,therefore, do not read it.
"3. The parties undertake to abstain from al1 measures likely to react
prejudicially upon theexecution of the judicial or arbitral decision or upon
the arrangements proposed by the conciliation commission, and, in
general, to abstain from any sort ofaction whatsoever which may aggravate
or extend the dispute."
Acting under Article 41 of its Stature, the Court has applied the general
principle that the parties to a dispute must refrain from actions which would
extend or aggravate the dispute. Article 33 (3) of the General Act sets out
precisely the sameprinciple in the form ofa specific and unqualified undertaking
bv the ~arties to the General Act. w.ich~ ~c~ ~ ~both France a~ ~ ~ ~Ze~land.
.~ef&e 1leave this part of my submissions, 1 should, for the sake of comple-
teness, direct the Court's attention to one aspect of the Sourh-EosrernGreen-
lo,~dcase.In this case,which involved a dispute between Norway and Denmark
concerning sovereignty over South-Eastern Greenland, Norway sought interim
relief. Counsel for Norway stated that the obiect of the Norweeian reauest was
IO prcveni regrettable r\rnis and unfortunati incidents. Couniel for Denmark
assericd thït this wasnot a proper ground for the indication ofinterim meaïure,
bv the Court. Article 41. in the ~anish submission. was directed onlv to the
preser\ation of rights orone ur othcr pariy Denmdrh alsoconiended that ihere
was no real po*\~b~l~tyor the occurrence of ihc incidents which Norway sought
to prevent.
The Permanent Court declined the Norwegian request and its Order, which
was an unusually lengthy one, made it plain that there were several factors
which led to its decision. The Court's Order referred to the arguments advanced
by Norway, but it neither accepted nor rejected the argument that it was
possible to indicate interim measures under Article 41 for the sole purpose of
preventing regrettable events and unfortunate incidents. It is, I submit, worth
quoting the relevant passagefrom the Order:
"Whereas. with reference to the Norwe~ian reauest. the Court has ruled
. -~ ~
that 'the obj'ect of the measuresof interimproteciion contemplated by the
Statute of the Court is to preservethe respective rights of the Parties pend-
ine the decision of the Court'. in so Far. that is. asthe ~a~aee threatenine -
-~
th& rightswould beirreparable in factor in lai;
Whereas, however. it has been araued that. under Article 41 of the
Statute, the Court is also compete; to indicate interim measures of
protection for the sole purpose of preventing regrettable events and un-
fortunate incidents;
Whereas, in the present case.there is no occasion for the Court to take a
final stand upon this controversy as ta interpretation. seeing that, from
either point of view, itarrives at the same result;" (P.C.I.J.. Series AIE,
No. 48,p. 284).
Having made this point, the Permanent Court went on to put forward a
number of reasons for its decision to decline the Norwegian request. That
request was no! basedon the plea that the action which the Norwegian Govern-
ment asked the Court to prevent would prejudice some recognized or alleged
Norwegian right. The incidents which Narway sought to prevent could not in
any degree affect the existence or the value of the sovereign rights claimed by
Norway over the particular territory in dispute. Even adopting the broader
interpretation of Article 41 of the Statute, which was urged by Norway, there
seemed to be no occasion to fear that the incidents contemplated by Norway ARGUMENT OF MR. SAVAGE 119
would actually occur, and the fact that both Norway and Denmark had, in
declarations by their Governments, bound themselves to avoid incidents was,
for the Court, "eminently reassuring".
Thus the Court. it is submitted. may accept that it is not easv to draw any
firm conclusions from ihe consideratio" of the Permanent cour; in the ~ourh-
tostern Greenlondcaseof ihe principles relating IO the aggravation of a dkpute.
But the tentativeconclusion which may perhaps bedrawn is that the Permanent
Court believed that the responsibility for the prevention of any regrettable
incidents lay principally with the parties to the dispute. To put it another way:
the Order made bv the Court in that casetended to suooort the view that there
must be some relationship between the incidents sought to be avoided and a
right forming the subject of the dispute between the Parties. Even this conclu-
sion. however. is reconcilable onlv with difficultv with the subseouent and oer-
hap; definitive statement in the Nectricity ~orn,k,~y of Sofi ond~ulgoria case
that the power to indicate interim measuresmay be usedto ensure that disputes
are not aggravated or extended.
That concludes my survey of the criteria which the Court has applied to past
requestsunder Article 41 of the Statute, and 1 now draw the Court's attention
to the basison which it should, it issubmitted.rant the interim relief requested
by New Zealand.
As in every case, Article 41 of the Statute is available, but also as between
France and New Zealand there is Article 33 of the General Act, which 1 have
already quoted. If that provision departed in any substantial degree from the
terms of Article 41, or from the jurisprudence of the Court in relation to that
Article. theremight besomedifficultv in askina the Court to invoke it asa basis
for intérim measutes.But, in Our submission,~hat is not the case.Article 33 of
the General Act is basedon Article 41 of the Statute. It is consistent both with
the terms of the Article and the relevant jurisprudence. and it expressly recog-
nizesthat the Court must act in accordancewith its Statute.
There can, 1 submit, be no doubt that it would be entirely proper for the
Court to baseitself on Article 33. Ttwould also. 1submit. be aoorooriate. for
.. .
the Article is intended plainly to constitute a comprehenshe regime governing
the matter of interim relief in any case that is before the Court involving two
parties to the General Act.
At this point 1refer once again to the South-Eastern Greenlairdcase. Each of
the Parties to the dispute before the Court in that case. that is Norway and
Denmark, were also parties to the General Act. The Court took note of the
fact and of the existence and terms of Article 33 of the General Act. The
penultimate paragraph of the Order that was made by the Court, which refused
the requestfor interim measures.read asfollows:
"Whereas, moreover. both Parties are bound by the 'General Act for
Conciliation, Judicial Settlement and Arbitration' signed at Geneva on
September 26th. 1928; as by the terms of paragraph 3 of Article 33 of the
said Act 'the Parties undertake' in particular 'to abstain from measures
likely to aggravate or extend the dispute'; asthe interpretation andapplica-
tion of that clause are subject to thempulsory jurisdiction of the Court;
and as, in consequence, in the event of any infringement of these alleged
rights, a legal remedy would be available. even independently of the
acceptance by the Parties of the optional clause referred to in Article 36,
paragraph 2. of the Statute."
1 have already pointed out that there were a number of compelling reasons
for the particular decision madeby thecourt in that case.In thesecircumstances120 NUCLEAR TESTS
it is difficult to imagine that much weight was attached by the Court to the
matter referred to in the oa.aara-. 1 have iust auoted. Nevertheless. there are
interesting implications in that paragraph 10-which 1briefly refer the Court.
The Permanent Court plainly could not have meant that because the two
sides to the disoute were oarties to the General Act thev were orecluded from
seeking interim relief. A; had been pointed out by a leading authority on
interim measures, Dr. Dumbduld:
"Where Article 33 of the General Act applies, however, the legal remedy
other than interim measures under Article 41 of the Statute mdy itself
consist precisely in appropriate reliefpetrdenre lire which the Court is em-
powered by Article 33 of the Act to award." (39 Anrerican Jour~tal of
I,rterna/ionalLaw, 1945,pp. 391, 394, note 18.)
Article 33 of the General Act only cornes into play when a case is pending
before either an arbitral tribunal or the World Court. lt is inconceivable that
this provision, which is intended to facilitate the granting of interim relief,
should haveexactly the oppositeetïect.
In ils request for interim protection in the South-Easferii Creenlond case,
Norway had no1 pleaded the General Act, nor had it pleaded the General Act
as~a~ ~sis for the Court to take iurisdiction in the case. It is oossible that the
< ~
I'ernianerir <'o.iri memi IO inipl) h) the pd~c.~gc quotc.i ir.>ni the <)rdcr th.11
Noraay ought id lij>e pleaded thdt pro\i\t.>n iiir ivi*hed io obt~in an) interlm
relief. ~hattoo. il is submitted. aooears to be a verv doubtful or.oo.ition. but
even if it could be sustained it'w&ld have no application to the present case
becauseNew Zealand haspleaded Article 33of the General Act asanalternative
basis for the interim orotection which it seeks. and now soecificallv asks the
cour[ 10grani il 11131rilie1 on the bdrihof ihat p;<i\ision.
,\ more ~txeptdhlc e\pl.iii:itti>n oi this wrt oi the ('ouri's Order in the Soi~rh-
Easrern ~reerlland case is that the ~oirt, while declining to grant interim
measures, was reminding Denmark and Norway, in the context of their re-
assuring declarations that had been made by their Governments, of the obliga-
tions under Article 33 (3) of the General Act to refrain from aggravating or
extending the dispute.
Whatever the force of the Court's observations in the Soi!tlr-Eastern Creen-
lii»<lcdse. iliey cdnnoi. in niy subnii>si,in. dtkci the righi oi hlci\,Zc3liind 10 ank
the Court io grmi it inieriin prote;ii<>n in th,. tase. dndIO do soon the b3sisof
the iuniorehen\i\,e rcr-nie vf interim relier xi forth In Article 33 oi the Cicneral
Act.
I turn now. Mr. President, Io apply the principles of law which 1 have out-
lined and discussed to the circumstances of the present case. It would, in my
submission, be hard to imagine circumstances in which the various tests
proclaimed by the Court for the grant of interim relief are more clearly and
exactly met than thiscase.
New Zealand assert~~ on substantial erounds. that further tests bv France.
~ ~ . -
that give rise to radio-active nuclear fall-out, will involve a violation hy France
of New Zealand's rights and. in some instances,of the riahts of the international
community. The rights in question are listed in paragraih 28 of the Application
and in paragraph 2 of the request. France has given 10New Zealand, as indeed
it has indirectly given 10 this Court, the clearest indication that her present
intention is to continue with the programme of atmospheric nuclear testing. All
the attempts made by New Zealand and by the international community as a
whole, to sway her from that purpose have, as yet, come to nothing. In the
absenceof a grant by the Court of interim relief there is no protection for therights that we claim. Each further French nuclear test will do violence to those
rights; they will beirreparably prejudiced, and there is no possibility of their full
restoration in the event of there ultimately king a judgment in New Zealand's
favour.
1 illustrate this bv reference to the -iahts in the order in which thev are listed
in the Vew Ze~lanJ di>;.Imentlit:,in hcfi~rethe ('tiurt.
1. ïaih iurther Fren2ii nuclejr test rrill iniringe the rjght ofe\er). meniber of
the international communitv. includina New Zealand. that no nuclear tests that
give rise to fall-out be condkted. ~la&ly the damagedone to this right cannot
be made good by a future judgment of the Court. An indelible mark will have
been left on the community standards and norms which are reflected in the
urgent appeals made again and again in the last ten years by the General
Assembly ofthe United Nations.
2. Each French nuclear test will involve some degreeof contamination of the
local, regional and global environment and of ils resources. Many of these
effects cannot be undone or made good. Once again the standards of the inter-
national community, crystallized in the Stockholm Declaration on the Human
Environment, will have beenirretrievably setaside.
3. Each further French nuclear test will almost certainly involve theentry into
the air sDaceof New Zedland. the Cook Islands. Niue and the Tokelau Islands.
and the deposit upon their territory and in theirwaters of radio-active material:
Our territorial sovereignty will have been irreparably violated. Thcre are no
~hvsical or leaal meansof removine. thefail-out
4. The incGase in levelsof radiation in New Zealand. the Cook Islands, Niue
and the Tokelaus resulting from each further French nuclear test will have
undetermined but irreoarable conseauencesfor the health of Dresentand future
gencrati<ini. Tlic fd~rnia further trst tld\ing tden place uill hagc the iertliin
coiisequei~cesoi harming tlirIi$csoii>eoplc in thearea h!. cdu\ing theni rencivçd
a~~rehension. anxiety and concern. ~hat too cannot be undone: as New Zea-
land had occasion t;remind France as long ago as September 1963, fear, like
theelïects of radio-active fall-out,iscumulative in the population.
5. Anv further French test will involve the infrineement of well-established
high seai rights and freedoms. To the extent that marine resources are aîTected
by any French test. the Drejudice to high seasfishing rights, which al1 nations
mavexercise. will be bevond rewair
Fin;~ll)11 isa regrett;~blcout iner~jp~bie faci lhat An) iurthsr nu.'lear testing
by France uill ;iggr.i\.iic.,iimj) e~iend thc Jt~pute hettrccn Sehr Zeliland and
France. We are not dealing here with a regrettable event or an unfortunate
incident of the kind that the Court has on a previous occasion considered. A
further explosion at Mururoa will constitute a blunt denial of ten years of
protest and ofei.,ery legal right for which we seek protection. There is nothing
which could more effectively deepen the rift between New Zealand and France
on this one issue.There is nothing which could make more difficult the earnest
endeavours of the New Zealand Government to ensure that this one area of
discord is contained and does not disturb the otherwise excellent relations be-
tween FranceandNew Zealand.
It is strongly submitted. Mr. President, that the matters which 1 have just
urged ought to satisfy the Court that the circumstances are such that it should
grant interim relief in the terms sought by New Zealand, namely that France
refrain from conducting any further nuclear tests that give rise to radio-active
fall-out while the Court is seizedof the case.It is further submitted that interim
relief in any other form would not give New Zealand the protection it needs
and, to which, it submits, it isentitled. 122 NUCLEAR TESTS
In the ordinarv wav this would have concluded mv submission. but in the
~ ~ . .
regrettable ah,rncr oltrïncc, I have adut) laithe Court to refcr io piiinis uhich
mieht ucll Iiavc ken rai\ed by France hdd she ken prcscni. 1reier tiituoof
~he-.~.oth relatine-tu our sub&ission that the Court can and should erant-New
Zealdnd inierim relief undcr ,\rri;le 33of the Gener;il Act.
The tir\[ pi~inrconLeriij thcIüci ihïr Arii~le 33(1)oitlicGenerdl Act refers to
the permanent Court of International Justice and to Article 41 of ils Statute.
Article 37 of the Statute of the present Court is plainly relevant and will have
theeffect of substituting "the International Court of Justice" for "the Permanent
Court of International Justice" in Article 33. This, it is submitted, is confirmed
by the decision of the Court in the BarcelonaTractioncase. In that case the
jurisdiction of the Court was sought under a bilateral treaty between Belgium
and Spain. That treaty contained a provision-Article 22-which was com-
parable in its general intent tu Article 33 of the General Act. In its Judgment
the Court, in considering the effect of Article 37 on itsjurisdiction under the
treaty ktween Belgium and Spain, said:
"Accordingly, 'International Court of Justice' must now be read for
'Permanent Court of International Justice' in Articles 2 and 17 of the
Treaty. The sameapplies in rexpect of Article 23, under which the Court is
made competent tu determine any disputed question of interpretation or
application arising in regard tu the Treaty; and sirnilar siibsrirutionsin
Articles21 and22 wouldfollow conseqirenfially." (I.C.J. Reports1964,p. 39,
emphasisadded.)
If, on this basis, it is appropriateu read the reference in Article 33 (1) tu the
Permanent Court of International Justice as a reference to the International
Court of Justice, it must necessarilyalso beappropriate tu construe the reference
tu Article 41 of the Statute of the old Court as a reference to Article 41 of the
Statute of the vresent Court. the more su becausethe two ~rovisions are cast
in virtually identical terms. It would make no sensetu leave the provisions in a
forrn which referred to the present Courtbut to the old Statute.
The other point which France, if represented here, might have made may be
postulated as follows. Any decision taken by the Court on a request for interim
measures is without prejudice tu its final decision as to whether or not il has
jurisdiction tu consider the dispute at all. It will only be at a later stage in the
casethat the Court will be called upon tu determine the validity of any conten-
tion that the General Act is no longer in force between New Zealand and
France, and hence it cannot serveas a basisfor the Court tu acceptjurisdiction
in respect of the dispute now referred tu it by New Zealand. It follows, su
France might argue, that the Court cannot, at this stage, grant interim relief on
the basisof Article 33of theGeneral Act.
It certainly cannot k disputed that the rule that no final decision on jurisdic-
tion can be taken now is well established in the doctrine of the Court: but that,
of course, is not the end of the matter. Whatever mav be the apparent loaic of
the kind ofargunient ihai I hateouiline<l. iisannoi hiru\tained;;i 0.*uhm~tted.
upon an examination of the terms and the object and purpose of Article 33 of
the (ieneral Act. If ihat pro\,ision could be set iisiJe as ï hdsir for grïniing
inierim reltcf by a niere a\,ertion-dn asseriion by a Siaie which und<iuhiedly
hccame 3 pdrty the General Act. u,hi<h hai not denounced ii. and which ha\
not auestioned its validitv until after the commencement of vroceedinas-1 .
repeït. if il souldk \et aside by a mere as\crti<in in th<i~ccircumriances thüt the
General Act ïr a whole is not in force ktuwn the Pürtie, tu the dispute. ihen ARGUMENT OF MR. SAVACE 123
Article 33 woiild lose most, if not all, of its point. Its principal purpose, it is
submitted. is to ensure that adeauate and effective interim relief can be aranted
at a preliminary stage of the judicial or arbitral consideration of a dispcte and
before the final decisionson eitherjurisdiction or the merits havebeentaken.
This amounts. of course. to urging that Article 33 and anv cornoarable
provision ancillary ta the main framework of a treaty for the peacefui settle-
ment of disputes has a sufficient degreeof independencefrom the other provi-
sions of the treatv to enable it to be acted uDon despite the fact that the treatv in
question is unde;challenge by one of the parties tOthe dispute, and the validity
of that challenge bas not beendetermined. At the very least, a provision of this
kind must. il is~submitted.beeffectiveas a basisfor theacfion bv the Court in a
case such asthe present one where there is no suggestion that thétreaty was not
initially in force between the two Parties to the dispute, and it has not been
formally denounced; and where there is a safeguard that, asa preliminary to the
granting of interim relief, the Court must satisfy itself that there is no manifest
lack ofjurisdiction to deal with the dispute on the basisof other provisions in
the treatv.
~troni support for the tiew ihai proi,isions of thii kind, whiuh are ancillary to
the main framework of the treaties. have 3 \pe:ial <hsracter isti~hc found in the
Judement of the Court in the case dealina with the A~oeal relatifla ta the
~urGdictionof the /CAO Council. That case concerned'an appeal by India
against decisions of the Council of ICAO. TheCouncil had assumedjurisdiction
in respectof complaints by Pakistan under Article 84of the Chicago Convention
and under Article IIof the related 1944Transit Agreement. Both theseArticles
made provision for appeal to the Court. In the course of ifsJudgment, the
Court had to ~e~l with an~a~e-~ent out forward bv Pakistan to the effect that
ln& .rra.;pre-IuJed from a\ieriing ihat the C~uri Lad ,uri\diciion hczause shç
hcrielf hdd maintained. on the mrrits OCthe dihpute bçf~re ilie ICA0 Couniil,
that the two treaties alle-.d bv lndia to serve as the basisfor the Court's iuris-
diztion uere noi in force beiueen Initia and Pd1istan. Thar.'onicntion. ifcorrect.
so Pakijiiin drgued, uould iniolie a finding ihat the juriidiciion ulau~esuerr
inooerative and that the treaties themselves~didnot come within Article 36 11)
of thc <'<iurt'bStaiuie, with the result that the <'ouri u,<iuldha\e no jurisdicti;"
in respect of the disputes referred to ii undrr those ireaticr. The Court rcjected
this argument advanced by Pakistan on a number of grounds, the second of
which, is relevant to the submission made earlier, and this is what the Court
said:
"Nor in any case could a merely unilateral suspension per se render
iurisdictional clauses inooerative. since one of their purposes might be.
precisely, ta enable the validity of the suspension ta be Ïested. lfa mer;
allegation, asyet unestablished, that a treaty was no longer operative could
be usedto defeat its iurisdictional clauses. al1such clauseswould become
potentially a dead leiter, even in caseslike the present, where one of the
very questions at issueon themerits, and asyet undecided,iswhether or not
the treaty is operative-Le., whether it has beenvalidly terminated or sus-
pended. The result would be that means of defeating jurisdictional clauses
would never bewanting." (I.C.J. Reports1972,pp. 53-54.)
Further on in its Judgment, in dealing with the Indian contention that the
treaties were at material times suspendedor not operative and hencecould not
have ken infringed, the Court made some further observations which are
pertinent Io the presentcase:124 NUCLEAR TESTS
"India has not of courseclaimed that, in consequence,such a matter can
never be tested by any form ofjudicial recourse. This contention, if it were
put forward, would be equivalent to saying that questions that prima facie
may involve a given treaty, and if so would be within the scope of its
jurisdictional clause,could be removed therefrom at a stroke by a unilateral
declaration that the treatv was no loneer ooerative. The acceotanceof such
a proposition would be.tantamountto opening the way to a wholesale
nullification of the practical value of jurisdictional clauses by allowing a
party first tourport to terminate, or suspendthe operation ola treaty, and
then to declare that the treaty being now terminated or suspended, its
jurisdictional clauses werein consequencevoid, and could not be invoked
for the ouroose of contestinr! the validitv of the termination or sus~ension.
-wherbas &'course. itnia)-& precisel~one of the objc;ts of su~h'aclause
io enahle that rnltier to he adjudi;aied upon. Such a resuli. de,iru<ii\e ol
the ivholeobi~ui of ;idiudicabili.v. \rould be unacceorable "(1.C.J Rrourrs
1972,pp. 64 and 65.) -
And it is submitted that precisely similar considerations must apply to a provi-
sion such as Article 33 of the General Act which, like the jurisdictional clause
under consideration in the Aooeal relatin~ IO the Jurisdicrionof the ICA0
Councilcase, is ancillary to thé'main framcwork of the treaty. If Article 33 of
the General Act can be setaside by a merealleaation that the General Act is no
longer operative, its whole objeccwill be destroyed and it becomesvirtually a
dead letter.
It is thusOUT submission that there is nothinn to Drevent the Court in this
cd\e lrom granting interim relief under Ariicle 3j of lhe General Act and that.
for ihe reasonsalreadv indicated, there are substantial rrasoni for itdijing si)
The Courtroseat 13.05p.m. 126 NUCLEAR TESTS
Series AIE, No. 54), refused to make an Order, on the ground that since the
Polish Governmcnt, the Respondent in the proceedings, had annulled and
suspended certain actions, the request "had ceased to have any abject". Al-
thoue- the Court had in fact alreadv delivereda Judeme-t on ~reliminarv ob-
jections, il hadjoined ajurisdictional question to the merits and, accordingly, its
jurisdiction was no1yet established. The order referred Io that question in this
way:
". ..the Dresent Order mus1 in no war ~reiudgeeither the auestion of the
tion" (P.C.I.J., SerieAIB, No. 54, p. 153)
The first of the four requests to the present Court-al1 of which preceded
objections Io jurisdiction andjudgments on those objections-was that made in
the Anglo-Ironian Oil Co. case.The Court summarized the grounds on which
the Iranian Government had stated that it rejected the request. It then referred
Io the nature of the complaint made by the Applicant, and recited that the
complaint was:
". .one of an alleged violation of international law...il cannotbe accepted
a oriori thata claim hasedon such a comolaint.. .falls com~letelv outside
rhcscope ufinierniiii<inal pri\d~ition;
Where<i\ the consideraiions \idied in the pre~cding~ ~rdg-sp~ rullice ICI
empower the Court Io entertain the ~equest for interim measures of
protection;".
The Court went on and reaffirmed that:
"...the indication of such measuresin no way prejudgesthe question of the
jurisdiction of the Court to deal with the merits of the caseand leavesun-
affected the right of the Respondent Io submit arguments against such
jurisdiction" (I.C.J. Reports 1951,pp. 92and 93).
The Court rejected the request for interim measuresin the Interhandelcase on
the ground that the need for them had no1 been established. On the question
of jurisdiction, which had ken vigorously disputed by the Respondent, the
Court reiterated that:
"... the decision given under this procedure in no way prejudges the ques-
tion of the jurisdiction of the Courtta deal with the merits of the caseand
leavesunafected the right of the Respondent Io submit arguments against
suchjurisdiction" (I.C.J. Reports1957,p. 111).
The Court had already noted that both the Applicant and the Respondent
had acceptedthecompulsory jurisdiction of the Court on the basisof Article 36,
paragraph 2, of the Statute, and that hy its subject-matter the disputesubmitted
Io the Court fell within the purview of that paragraph. [t also referred Io the
detail of the Respondent's argument on jurisdiction. 1will return to this passage
when 1 am considerinn the auestion whether the declarations made bv New
Zealand and ~rance,accepiing the compulsory jurisdiction of the Court,
provide a basefor the granting of interim measures.
The Iwo basicprinciples acied on in the cases 1havementioned wereendorsed
in the two most recent Ordersdealing with requestsfor interim measures: those
relating Io the Fisheries Jurisdiction cases (United Kingdom v. Iceland and
Federal Republic of Cermany v. Iceland), and 1will quote severalshort passages
from the I.C.J. Reports 1972. The Court repeated that: "on a request for ARGUMENT OF PROFESSORQUENTIN-BAXTER 127
proiisidnal meaura thc Court need no!, helore inilicatiny theni. linally salis@
itrelf that il kasiurisdiction on ihe nierits ol the L.a\e"Tlicn. ai pages15and 33.
the Court went on tornakeexplicit what had to date beenimplicit:~"it ought not
to act under Article 41 of the Statute if the absence of jurisdiction on the
merits is manifest." The Court then went on to apply the principle to the
jurisdictional provisions in the agreements between the Parties on which the
Applicants were depending. It affirmed (dt pp. 16 and 34) that each provision
"in an instrument emandting from both Parties to the dispute appears, prima
facie, to afford a possible basison which thejurisdiction of the Court might be
founded".
And. secondly, thecourt reaffirmed that:
"... the decision given in the course of the present proceedings in no way
prejudges the question of the jurisdiction of the Court Io deal with the
rnerits of the caseor any questions relatinc 10 the merits themselves and
leavesunaffected the right Of the es ponde tnstubmit arguments against
suchjurisdiction or in respectof such merits" (ibiri.).
There are, in short, well-established jurisdictional tests in interim measures
cdses.Nevertheless. individual judges of the Court, in separate opinions. have
sometimes stated the first of the two orincioles. that there ought no1 to be a
manifest absenceof jurisdiction. in a ratherdifferent wdy and,-for the sake of
establishing beyond doubt that in our casethejurisdictional elcment is satisfied,
I propose briefly to mention the most stringently drawn test. Itwas stated by
Judges Winiarski and Badawi in the Aizglo-/rairia,/Oil Co. rase. They stated
their test in various ways,and 1shall read threeshort extracts:
"... the Court has power lo indicate such measuresonly if itholds. should
itbeonly provisionally, that itiscompetent to hearthe caseon itsmerits.
..........................................
...the Court ought not to indicate interim measuresof protection unless its
cornmtence. in the event of this king challenced. aooears Io the Court
nevertheless reasonably probable. 11s-opinion-on this point should be
reachedafter a summary consideration;
...if there exist weighty arguments in favour of the challengedjurisdiction,
the Court may indicate interim measures of protection; if there exist
seriousdoubts or weighty arguments against thisjurisdiction such measures
cannot beindicated." (I.C.J. Reports1951,pp. 96-97.)
The view of these Iwo i~.zes -as end~rsed~-~ Judce.Padil-ü Nervo. the sole ~ ~~
dissentient, in the FislieriexJt,risdiclioiicases-references are in I.c.J.' Reports
1972.at pages22,22,38 and 39.Wewould submit that the view of thesejudges-
which is not stated with complete consistency-cannot be reconciled with the
broad Stream of authority which, as we have already seen. requires a less
stringent e.xamjnation of jurisdiction. IIis, for instance. incompatible with the
statement of the Court in the two FislieriesJltris</icrio~ crases.But ilwill be Our
submission that even this more rigorous standard is satisfied in the present case.
The Court's approach to jurisdictional issueswhen considering requests for
interim measuresis completely consistent with the nature of the power. It is a
power to beexercisedexpeditiously, even urgently; itis a porver to be exercised
provisionally, not definitively; itis a power designedto assis1thecourt and the
Parties bv maintaininn the status ouo until the Court can deal with the case
findlly; and itis a power designed Dot to hamper the Court when itcornes to
reach its decisions on jurisdiction and on the merits. This urgent, provisional,128 NUCLEAR TESTS
conscrvaiory. non pre-judging chliracter rrc~uld be jeopardi~ed by anyihing
ôppro.iiliing a full cxamination of jurisdi.?ii)n-- or oi the meriis-lit ihis stage.
Mr. President. 1 now Dropose to examine. in a ~reliminary way, the two
. ~ . .
hc~dsofjuri>diaion invoked in the Applic<ttii>n insliiuring the pruseedings. It
r iIIt* 'i) sim toe~t;ibli~h that !hii, not Liii,euIierc there isa miinifest I;izk oi
iurisdiction. As the General Act has been so little invoked. 1 intend to s~end
idhcr iiiore imie <initthan niight k usual in ihis type oi proiee,ling. tor-ihat
reas<>n1sliall nui spenil a grçst Jcil of tinte on Our wond grsund of jui :\dic-
tion. the Statute of the Court. It is an issue which is much discussed in the
literature and on which the Court has had the advantage of hearing counsel for
Australia during the present week. 1should like, therefore, to deal with it only
brieflv.
In dealing with thejurisdiction under the Statute, the particular questions we
face are these: should the Court, in determining whether it has the power to
grant interim measures in a case in which its jurisdiction is based~on such
declarations, examine the applicability of any reservations to the case?If the
answer is yes, how extensive should that examination be? We would submit,
Mr. President. that the answer to the first auestion is no: the Court should nor
examine the applicability of the reservatiois. Our principal authority for this
proposition is the It~terhandec lase,but support is also ta be found in the Anglo-
rania ain Co. case.In the Interhanrlelcasethe Court notedthat both Switzer-
IdnJ and the UnitcJ Si.ites hlid. by declnrlitii~ns. .icceptcJ the compul\ory
jurisdiiii~in oi the Couri <inthe b~sdioi.4rti;le 36. paragraph 2. oi the Si.riuts.
It then continued:
"Whereas by ils subject-matter the present dispute falls within the pur-
view of that paragraph;
Whereas the Government of the United States of America has invoked.
against the request for the indication of interim measuresof protection, the
reservation by which it excluded from ils Declaration matters essentially
within ils domestic iurisdiction as determined bv the United States and
whereas the ~overnment accordingly 'respectfull;declines.. .to submit the
matter of the sale or disposition of such shares to the jurisdiction of the
Court';
Whereas al the hearing the Co-Agent of the Swiss Government chal-
lengedthis reservation, on anumber ofgrounds,andstatedthat,initsexami-
nation of a request for the indication of interim measuresof protection, the
Court would not wish tu adjudicate 'upon so complex and delicate a ques-
tion asthe validity of the American reservation';
Whereas the procedure applicable ta requests for the indication of in-
terim measuresof protection is dealt with in the Rules of Court by provi-
sions which are laid down in Article 61 and which appear, along with other
procedures. in the sectionentitled: 'Occasional Rules';
Whereas the examination of the contention of the Government of the
United States requires the application of a dicerent procedure, the proce-
dure laid down in Article 62 of the Rules of Court, and whereas, if this
contention is maintained, it will fall to be dealt with by the Court in due
course in accordance with that procedure;
Whereas the request for the indication of interim measuresof protection
must accordingly beexamined in conformity with the procedure laid down
in Article 61;
Whereas, finally, the decision given under this procedure in no way
prejudges the question of the jurisdiction of the Court to deal with the ARGUMENT OF PROFESSORQUENTIN-BAXTER 129
merits of the case and leaves unaffected the right of the Respondent to
submit arguments against such jurisdiction." (I.C.J. Reporrs 1957, pp.
110-111.)
It follows from this case, wesubmit, that when Article 36, paragraph 2,of the
Court's Statute has been invoked, the Court should only consider, in a pre-
liminary way, whether the claim falls outside the scopeof that paragraph. If, as
the Court savs in the Interhandel case.the casefalls within the nurview of that
paragr~ph or if. a< iSJ~\ in ihe A,~~/i,-lru!!iu~rO,/ Ci>.wsildties nui. opriori.
l'a11~.ompleicly tiut5ide the swpe uf inrern~iianal ,urisJicii<in. ihen ihe Couri is
empowered to entertain therequest.
It follows, in our respectful submission, that in Our case the Court is so
empowered. This case concerns rights under international law of the world
community, including New Zealand, and rights of New Zealand alone, rights
which it is claimed France is violating. These are rights which fall within the
purview of Article 36, paragraph 2, inrespect of which both New Zealand and
France havemadedeclarations.
If, contraryta my first proposition, the answer to the initial question is yes,
that is that the Court should look at the applicability of reservations to deter-
mine Derhans whether thev manifestlv oust the Court's iurisdiction. 1 would
Iikçro mdke Irro points Ihe iihi isihar ihere~er~aii<inprin~ip~lly in ii\uein the
Inrt~rh<r,!icl se-the allegcrlly self-judgiiig reservati,>n aiiJLhed Io the Uni1r.J
States declaration-is prima facie of much wider scope than that in issuehere;
so the French reservation does not, expressly at least, reserve to France the
power to determine its applicability in aparticular case. If the Court did not
consider it appropriate to investigate the significance of the United States
reservation in the Interhandel case, it would have, in Our submission, less
occasion to do so here.
The second point is that the validity, interpretation and effect in the present
situation of the French reservation are issueswhich, as the Court well knows,
can be the subject of debate; it cannot, we submit, be baldly asserted that there
is a manifest absence of jurisdiction under Article 36, paragraph 2, of the
Statute.
1 turn now, Mr. President and Members of the Court, ta the General Act.
Article 17oftheGeneral Act provides that:
"All disputes with regard ta which the parties are in conflict as to their
respectiverights shall, subject ta any reservations which may bemade under
Article 39, be submitted for decision to the Permanent Court of Inter-
national Justice, uoless the parties agree, in the manner hereinafter
provided, to haveresort to an arbitral tribunal."
The General Act provides that it is open ta accession in respect of al1 its
chapters-relating ta conciliation, judicial settlement, arbitrationand general
provisions-as a whole and in respect of combinations of those chapters. On 21
May 1931New Zealand and France, together with three other States, acceded
to the whole of the General Act, subject to certain reservations which 1 will
refer to later and which are set out in Annexes V and VI to the A~olication.
The instruments were deposited by the British Foreign Secretaryand the
French Foreign Minister during a meeting of the Council of the Leapue. In
February 1939,in accordance with the termi of Article 45, paragraph 4, Chetwo
countries each made reservations, and theseare also set out in Annexes V and
VI 10the Ap~lication, ta exclude disputes arising out of events occurring during
any war in which the reserving country might be involved. Neither ran coe
New Zealand has taken any other action under that Articleeither to add ta its130 NUCLEAR TESTS
reservations or to denounce the Act. It will he seen that such action can he
taken only at five-yearly intervalsand by the givingofsix months' notice, that is,
by the giving before 16 February of a notice which would k effective from 16
August in the years 1934, 1939and in each quinquennial year, 1969, 1974.and
so on. Before leavine that reservation and denunciation ~rovision I would
remind the Court of the well-established principle, reflected'for instance in the
Vienna Convention on the Law of Treaties. that if a treaty provides a particular
method of termination that method is to be followed unl&s al1 the parties to
the treaty othenvise agree. In Our respectful suhmission this principle is the
more clearly applicable when the method laid down in a treaty is a restrictive
one, permitting action only every five years and then only by the giving of six
months' notice.
Article 17 of the General Act, which l quoted a moment ago, conferred
.u~ ~ ~ ~ ~ ~~~ ~he Permanent Court of International Justice. This reference to
the Permanent Court is now, asbetween parties to the Statute of the Internatio-
nal Court of Justiceand in particular as between the original parties to the
Statute, to be read asa reference to the International ~0urt.l have, of course, in
mind Article 37of the Statute, which reads:
"Whenever a treaty or convention in force provides for reference of a
matter to a tribunal to have been instituted by the League of Nations, or to
the Permanent Court of International Justice. the matter shall, as between
the parties to the present Statute, be referred to the lnternational Court of
Justice."
The question might nevertheless be rdised, both with reference to the specific
wording of Article 37 and, more generally, whether the Act was, on 24 October
1945 when the Charter of the United Nations and the Statute of this Court
entered into force for New Zealand and France. and subseauently, a treaty or
ionteniion in fcirie1 shall look lirji Io the n.irrouer qucatiun of the positi,yn in
refçrencc io Arti.'lc37.Ii 0,rclei'sni io ni>ic ihat thc I.eaguc of Uati<inr ;iiid the
Permanent Court were still in existence when the Charter and Statute entered
into force and remained so for some months. Accordingly. in so Far as any
doubts about the continued force of the Generdl Act relate to ils king an
intearal part of the League svstem. a ~ro~osition which 1shall examine later.
-.
those doubts do not bea;on the transfir ofjurisdiction conferred by Chapter 11
(Judicial Settlement) of the General Act, under Article 37. from the Permanent
Court to the lnternational Court as at 24 October 1945: that transfer was
effciied kf,>rc ihc Lmgue of Nationi ç)çicm Idp~ed.>lorco\er. a%uc ,h.ill see
Iatçr. ccriaiii uf those gsncrdl provisioni uf the Ait thai relaie to the Judi~ial
Seltlcnicni cha~ier arc also 3~pro~ri.itels updateJ, ciiher by Ariiile 37or. in the
caseof the deiositary functiot&. by ~eneral Assembly resolution 24 (1)and the
parallel Leagueof Nations action.
It is Our suhmission then that the General Act, and in particular Chapter II
dealing with Judicial Settlement was, within the meaning of Article 37 of the
Siatute, a treaty or convention in force. on 24 October 1945when New Zealand
and France became parties to the Statute and that Article 37 accordingly con-
ferred on this Court the jurisdiction provided for in Article 17of the General
Act. and also the powers setout in certainother provisions. including Article 33.
1 now return to the more general question of the continued force of the
General Act. 1 have already recalled that it kcame binding on New Zealand
and on France in 1931 and that neither has taken action to denounce the
General Act in accordance with its provisions. nor, since 1939. to limit the
scopeof their accessionby wider reservations. ARGUMENT OF PROFESSOR QUENTIN-BAXTER 131
As 1mentioned a moment ago, it might be claimed that the General Act was
an inte-.al nart of the Lea-ue of Nations svstem and that it could not survive
ihc ending of thai sybtcni Itir truc,as wis indeed rcci~gnized b) the Generdl
Aisembly in 1919,ihat, hccauscsome pro\ isions of rhc Ait coriferrcd l~iicti<inr
on various Leazue of Nations orean-. the demise of the Leaeue had a certain
effect upon theefficacy of the General Act. But before we co&ider the General
Assembly action, we should, 1 would submit, Mr. President, briefly examine
those functions and consider the effect that the endine of the Leaeue-.vstem
nould h=\c upi>ii ihem They ciin beci>nienicnily grou&d.
The tirsi group- 1x0 praivisions rai\c the possibilit) thai thç Acting President
of the Counol of the I.sdgue and the President of the Permanent Court might
heasked laiappoint members of <<insiliaiion ionirni\\ions and arbitral trihun~ls
rerpn.tively (Art. 6, paras I and 23) Thew procedures are houcvrr reridual
only and becomeeffective only if the parties are unable to choose their members
in the first instance.
The second group-the Council of the League had power to invite non-
members of the League ta accedeIo the Act (Art. 43). This power will obviously
have lapsed. It may, however, be noted that the General Assembly in 1963
decided that itwas the appropriate organ of the United Nations to exercise the
oower of invitation in resoect of technical and non-oolitical Leaeue treaties. I
iefer to General ~ssembf~ resolution 1903 (XVIII): Although this resolution
does not extend to the General Act. it illustratesa point which is relevant to my
argument. The Assembly's action obviously ppoceeded on the basis that
treaties had remained in force notwithstanding the temporary lapse of the
invitation power. This continuity is also confirmed by the fact that States have
accededto severalof thesetreaties since 1946.
The third group of provisions-the Secretary-General of the League was
given two groups of functions of an administrative kind. First, unlessotherwise
a-reed. a conciliation commission was to n!eet at the seat of the Leaeu- or at
some othcr pldie choçen by the PresiJent ;ind itsoulJ rcquc\t the ars15ranccof
ihc Sruretary-Gcneral (Art 9). Sc~ondly. thc Se~retdry-Ciencral uas givcn th?
regular range of depositary functions: he was to receive instruments of acces-
sion and declarations extending the scopeof the accessionand abandoning part
or al1of the reservations; to receive denunciations; to maintain lists of parties;
to inform League Members and States invtted to accede of the instruments
received; to deliver certified copies to the same Members and States and to
register the Act under the Covenant when it entered into force. The first set of
provisions, dealing with administrative assistance, is hardly central to the con-
ciliation system and, in any event, their broad intent could still be complied
with. General Assembly resolution 24 (1). to which 1 havealready referred, and
related Leaeue of Nations decisions. authorized the Secretarv-General of the
United ~atLns ta exercisedepositar; functions in respect of ~éagueof Nations
treaties and it is the consistent, undisputed practiceto act upon the provision
made in this resolution. It is submitted thatthe procedure isapplicable to the
caseof theGeneral Act.
The fourth and last group-this group of provisions al1contain referencesto
the Permanent Court. The important ones, Articles 17, 19and 20 in Chapter 11
and Articles 33, 34 (c),36 and 41 in Chapter IV, are al1 to be read, so far as
parties to the Statute of the Court are concerned, as referring to the Inter-
national Court of Justice. This follows from Article 37 of the Statute. The
remaining references are of minor significance and they might well be inter-
preted as referring to the InternationalCourt of Justice. But even if they are
not so interpreted, the resulting infelicities will be small and in some casescured132 NUCLEAR TESTS
by other treaty provisions. Thus. Article 37 of the Act imposes an obligation
on the Registrar of the Permanent Court to advise States parties to a con-
vention of the fact that the convention is in question in a case before the
Court. That Obligation is laid on the Registrar of this Court by Article 63 of
the present Stntute.
In Our submission. these references to the functions conferred on Leaaue
organs show that theinvolvement of those organs in the General Act was viry
limited and of minor administrative significance. The involvement of the
Permanent Court was, of course, of major significance and in that connection
we havealready seenthat specific provision was made for the continuity of the
bulk of the Court's jurisdiction. This continuity is the more readily com-
prehended because itcan be put against a broader background of the continuity
of the principal judicialorgan of the international community, as reRectedfor
instance in Article92 of the Charter.
The vers limited involvement of the Leaeue- is further emohasized when one
goes kyond the narrow range of the provisions relating to League organs and
looks to the General Act asa whole. Indeed. as the New Zealand representative
said in the General Assembls when the revision of the Act wa5 kinaconsidered
-and here. Mr. President, &y referenceis to the Oficial Recorrlsofihe General
Assembly I11/1,the 27th Meeting of the a<lIiocPolitical Committee, page 320-
the Act kas to be seenas estab~ishin~extra-Covenant procedures; procedures
outside the Covenanr; it was because such procedures and, by implication.
extra-Charter procedures. were doubted, that he suggestedan investigation of
their historical efficacy and proposedthat consideration of the item bedeferred.
The sameconcern had already beenshown in the New Zealand reservations to
its accessionto the Act deposited in 193 1.
1 would like to go on to look briefly at the general character of the Act.
Chapter 1 lays down a procedure for bilateral conciliation. Conciliation com-
missions are to k apuointed either mrmanently or smcially to deal with a
particular dispute. 1fthe parties were'unable to agree on the ~ointly appointed
members of the Commission. the Acting President of the LeagueCouncil could
be requested by the parties to make the appointment, but if that procedure
failed, a further non-League method of appointment was provided for. The
Commission is to act on the application of one or both of the parties, to hear
them, to elucidate the questions in dispute. 10 collect with that object al1
necessarvinformation bv means of enouirv .r ,therwise. and to endeavour 10
hriny the plrrric; to an agr~rmeni. IIic dbleIO wggrrt IO the partie5 rhe terni3 of
settlement uhich 5eemsuitablc tu it Ifthiz "rosesr Joeç no1Iwd toa setilement.
thedispute. if il isnot one which could bedeait with by thecourt under Chapter
Il. can be brought under Chapter III before an arbitral tribunal. Again, as we
have noted, the President of the Permanent Court could be involved in ap-
pointing the non-national members of the tribunal. but only if two other
methods of appointment had failed. The tribunal, in so Far as it is no1 given
difirent directions, is to follow the procedures laid down in the 1907 Hague
Convention for the Pacific Settlement of International Disputesand the sources
oflaw stated in the Statuteof the Permanent Court.
The essenceof these two Chapters is their bilateral, non-universel character.
Disputes are to k re\olved. the),ras. hy procedurcs and insiiiutioni crcated by
the tuo partie\. and the rat of the uorld is seenas hai'ing no interest. excepi to
the extentrhdt a vartiiulnr St~c ma) he inimediately in\,olied in a dispute. By
contrast, the Memkrs of the ~eagué.in undertaking lo submit to the~~ouncil
any dispute likely to lead to a rupture ififwas not submitted to arbitration or
judicial settlement by the Permanent Court. recognized the interest of the ARGUMENT OF PROFESSOR QUENTIN-BAXTER 133
oreanized world communitv in such disoutes. This universal concern was also
scen in ihe sunciioning s)iicm. Rilarer~l prciied~res uerc nui nccc<sar#lyin
\ iolation of the League sssir'm but they could nui be seen as an integral part of
il. Long established: they could operate and did operate independently of the
League's system.
The extra-Covenant nature of the Act also appears from a summary com-
oarison of il with ils ill-starred oredecessor. the Geneva Protocol for the Pacific
~ettlrmeni oi Disputes uf 1924.That na.; in aiicmpi. iirits prelimhlc said. to
fscilirïtc "the ~.ompleieap~li;aiion of the systcni prov,Jed in the Co\cnant of
the League of aii ions fir the pacific settlement of disputes". To use the
language of the lime, it was an attempt to fiIl the gaps in the Covenant. The
parties accordingly would have agreed among themselves on a great number of
amendments to the Covenant which would have strengthened the League's
peaceful settlement powers, limited the right to go to war, tightened the
Covenant's sanction provisions, and foreshadowed a disarmament conference
convened by the Council. But this protocol which would have been inextricably
entwined with the Covenant, never entered in10force and attention was turned
to the very different and rather more modes1 methods of resolving disputes
which were to b~ l~id down ~~ the General Act and in hundreds of sim~ ~ ~~~ ~ ~
bilateral conventions.
1 now turn, Mr. President, to consider the significance of the action of the
G~n~ral Assemb~ ~ ~.~ ~8and -9~9in establishine a revis~- General Act-~Was
this action required by the lapse of the Act,either as a result of theending of the
League or for more general reasons? It is the submission of New Zealand that il
wasnot and 1 will now, again as briefly as 1 am able given the nature of the
present proceedings, indicate why.
We can best begin by referring to the relevant passages of the General
Assembly resolution 268 A (III) of 28 April 1949,which isentitled "Restoration
of the General Act of 26 September 1928to ils Original Efficacy". Some of the
preambles read:
"The GeneralAssembly
..................................... .....
Whereas the efficacy of the General Act of 26 September 1928 for the
pacific settlement of international disputes is impaired by the fact that the
oraans of the Leaaue of Nations and the Permanent Court of International
lustice 10 which icrefers have now disappeared,
Whereas the amendments hereinafter mentioned are of a nature to
restore to the General Act its original efficacy,
Whereas these amendments will only apply as between States having
acceded to the General Act as thus amended and, as a consequence, will
not affect the rights of such States, parties to the Act as established on 26
September 1928,as should claim to invoke it [and here 1stress the words
that might be felt to tell against our case] in sofor as il mighr sri11be
operarive,
Itrstructsthe Secretary-General to prepare a revised tex1of the General
Act including the amendments mentioned hereafter, and to hold il open to
accession by States under the title 'Revised General Act for the Pacific
kttlement of International Disputes'."
The resolution then set out the amendments.
This resolution difers in only two relevant respects from the proposal
originally put to the lnterim Committee of the General Assembly by the Belgian
representatives-the reference to the draft resolution is in document A/ACI8/134 NUCLEAR TESTS
18lAdd.l of 10 May 1948: the two reswcts were these: first. the revised version
does net express a-ny appro\al of the Act and. SeLondl). iiprovides for the
nrahli\hment of an entirel) beparate treaty rather than for ïmendments tcithe
1928initrumenr. The iirrt change tends to emphasile the inechanical nature of
the exercise: deiunct organs are king replxed hy exirtiiig ones. The second
change Iwill rc\er\,e for Iatcr comnient.
The oreambular oaraaraohs miaht. if read selectivelv without regard to
context; suggestdoubt aboui the coitinued force of the ~ieneral Act: they talk
of restoring it to its original efficacy, and of the parties to the original Act
having theright to invoke ilin so far as it might still beoperative.
The resolution itself provides part of the context but before looking at it, the
origins of the proposal may he reviewed. As 1 noted, the Belgian delegation
initiated the orooosal. At the outset it usedthe ohrase "restorin~ Io theGeneral
Act its original efficacy" in the following way, and 1quote herefrom the record
-the document reference isA/AC.I8/18lAdd. 1:
"The Belgian proposal aims al restoring to the General Act .. .its
original efficacy, impaired by the fact that the organs of the League of
Nations and the Permanent Court of International Justice to which it
refers have now disappeared" (emphasis added).
11accordingl) later proposcd a drïfi resolurion whi~h u~, the bï\to $l resolu-
tion ?bdA (III), thc rcfcrenie IIIu,hich I ha\eaIready giten.
'Thai the Belaian deleration >awils r3\k no1a?thül ofre\ivinr the efficasy of
the Act but ratier asthaï of removing the impairments resulting from theending
of the League system was made clear beyond doubt hy many speeches of
Belaian revresentatives in the Interim Committee. the Ad Hoc Political Com-
mitÏee, and the General A,senibly irselT Thus Jo\eph Ni\.>[ in forcshïdowing
the speiifi;proporïl in the Interim Cummittee srated that-and 1 here quote
from thcsumniary Kccord. A AC.18 SR.! 1.pp. 4-5.2 March 1918:
"The General Act was still in force, but its effectiveness was decreased
owinrto the disaooearance of certain essential oarts of the machine. i.e. the
~etreÏary-Generil: the <'ouneil of the Leugue ind the Permanent <'ouri of
Internaiional Ju\tice The aini of tlie ûelgian pri~powl uas the transfer to
the orrdnï of the liniied Salion,. includinr the Internatiansl Court of
~ustice, of the functions which the Act ac&rded to the organs of the
League of Nations and the Permanent Court. The proposal was practical
and simple; ifcould becarried out without delay bya protocol consisting of
a few articles: and it would result in the complete re-establishment of one
of the most important . . treaties which existed up to the present in the
field of thepeacefulsettlement of international disputes."
The sameposition was adopted in a preliminary report of a subcommittee, of
which the French representative was chairman, to the Interim Committee
(AIAC.18148, para. 36, 19March 1948; also Annex A of that document). It was
also shown in a history and analysis of the General Act prepared for the Com-
mittee bv the Secretariat (AIAC.18156. oara. 26. 4 Mav 1948). This view was
also taken hy the Interim ~okmitt& of ihe Geneml ~s&mbl~ asa whole. Thus
its revort Io the General Assemhly included the view of the Belgian representa-
tive that-and 1 auote now from the Reoort of the Committee (~160.., ..ara 46:
CA,OR,I[I,SU~~I.NO. 10,pp.22,28-29):
"...his orooosal did not suvoressor modify theGeneralAct. asestablished
in 1928; but left il intact as-also, therefore, whatever rights theparties to
that act might still derive from il. The Belgian proposal would achieve its ARGUMENT OF PROFESSORQUENTIN-BAXTER 135
object through a revised General Act, binding only on States willing to
accede thereto. There would thereby be creaied an entirely new and in-
d-~.ndent con~~actual relationshio for the imolementation of certain of the
ends conicmplated in Articln II iparsgraph'l). and 13(paragrdph I lu,).
oithe Charter. Thanks Io a few alterstions. the new General Act would. for
the benefit of those Statesaccedingthereto, restorethe original effectiveness
of the machinery provided in the Act of 1928. an Act which, though still
theoreticallv in existence.hasbecome largely inapplicable
It was noted, for example, that the prbvisionsof the Act relating to the
Permanent Court of International Justice had lost rnuch of their effective-
nessin respect of parties which are not Members of the United Nations or
parties to thestatute of the International Court of Justice."
The sarneidea aDwars severaltimes in the speechesof Belaian representatives
in the Ad Hoc ~oliical Cornmitter and in the General ~csenibly. llcre. kir.
Prcsident. Inould like IO make sei,cral very 5hort references,ust toshow ihsi the
tenor is thesame asthe passages1have read. The first of theseshort referencesis
from the Staternen~ of ~he Beleian reoresentativ~ ~ ~the Twentv-eiehth Meetine
, -
uf the Ad Iloc Political ~om~ittee. hir r Sdessionof the General Assenibly. a;
pagc 323: theoriginal ALI "uxs \till \alid": and rhree relcrsnces irom IIiesamc
,oJrie froni the Relgian repreieniatii,~ in the Plenars hlecting oi the Cieneral
Assemhly, ils 198th ,\leeiing. ai pagc 176: 'the rights of the I'arttes 10 th31Act
remained intact": ai DaXe177: "ilv.uuld remain in force unchïngeJ" afier the
second Act was drabn-up. However, the action proposed by-Belgiurn was
necessary because-and page 176-the "effectiveness [of the Act] had dimin-
ished sincesome of iis machinerv had disa~~eared".
Mr. Presidenr, 1 have concebtrated on'the views expressed by the Belgian
delegation because that delegation initiated the proposal and was responsible
for the wordina of the resolution adopted bv the General Assembly and because
few other dele~aiions addres\ed themsel\,c<to the legïl iswe oicontin~iiy. II1.;
truc ihat somec~prei,ed\igoroussriticism. but thiicritici\m-like that of Ketr
Zcalÿnd to uhich I h.i\e ïlready rekrred -u,a.; hawd un p<iliiiiiil and nit1 legal
attitudes to the pro;edures or the Act Thii.; the United Kiiigdoni noted ii\
doubtr about certain of the pr<i\i\ions ol the Act-and accordingly objected IO
anv wordina in a resolution which would irn~ly ap.r.va..of it-but at the same
time itacknbwledgd that itwa.2 party to ihe Act. Th,\ alsu is reportcd in the
Report of ihe lnterim Cornmitter. document .A 605. in paragraph 46.
The intention of the General Assemhly to leave unaiT~ted the original
Gçneral Act is also show itianothçr way. Resolution 24 (11provided ihat the
General Assemhly nould eKaniine any rçqucrt from the parties that the United
Nations should assume the exercise of funciions or powers entrusled Io the
League by instruments of a political character. The question therefore arose
whether the General Assernbly should be advised to adopt the proposed
resolution on the revised General Act only at the reauest of a specified number
of parties to the A;t of 1928.The u.3.;anïuired in the negati\e hy the
reprereniati\e ol Belgium. Thc c,>nieni of the parties io the i>riginal Ait sas. he
said, unnecessary, because that Act was left unaffected and the parties' rights
intact. 1 refer again to the same paragraph of the Report of the lnterim Com-
mittee.
I return to the text of the resolution which can now be exarnined in context.
The references in the preambular paragraphs to the Act king impaired,
"diminuée" in the French text, and to the restoration to the Act of its original
efficacy clearly proceed on the basis that the Act remains in force but that the 136 NUCLEAR TESTS
detailed impairment needsto berepaired. The background also provides a clear
interpretation of the preambular paragraph, which states that the amendments
"will no1 affect the rights of such States, parties to the Act as established on
26 September 1928, as should claim Io invoke it in so far as itmight still be
operative".
The first part of the quotation is ofcoursea straightforwnrdapplication of the
pacra lerriis rule. Ils last clause, "in so far as it might still be operative",
reconnizes that as between oarties to the original Act sorne orovisions will be
inoperative because of the'disappearance oT the League and the Permanent
Court. lt doesnot suggestthat thewhole Act might beinoperative.
A final point remains Io be made about Ïhis resolulion which expressly
revises the provisions of the General Act relating to the Permanent Court. This
might be said to suggest that the General Assembly was uncertain whether the
General Act was. in terms of Article 37 of the Statute. still "a treatv or conven-
tion in iùrie". 2nd ihat iheA\senibl) u;,~ iltcrçf<>renot able to rel) "poil i\rticle
37 iceiti~i the trlin,Cer oflurisdictii~n. Sumc support i1,)be foutid Corihir \.ir'o
in the dissentin-.ooinion of ~ude-adlioc ~rmand-~eon. i-,the Barcelo~raTrac-
lioli case.
There are, however, other and sufficient reasons for the course which the
Assemblv followed. First. Article 37 could not have anv effect on States which
were notparties to the fa tu te- aatst four and possii>ly five States parties to
the 1928 Act fell into this category-a fact which was clearly stated in a passage
of the report of theInterim Committee which Iquotedearlier.
Secondly, as we have seen, Article 37 might not be apt to modify, even for
parties to the Statute, some of the references to the Permanent Court in the
General Act, for example the references in Article 34 (b) and Article 37. para-
graph 1. Finally, it would have looked odd to replace the references to League
organs while retaining the referencesto the Permanent Court.
Mr. President, someevidence of the continuity of theGeneral Act isalso to be
found in State practice. It is true that this evidence is limited; but the same
might be said of earlier pcriods in the lire of the General Act. when no-one
entertained thesmallest doubt that the Act was in force. Such evidence as there
is of State practice in more recenl years is, in Our submission. wholly consistent
with the Act'scontinuity.
First, France referred to the General Act in the observations on the Nor-
wegian preliminary objections to jurisdiction in the Cerrairi Norw~rpiorr Lonrrs
case.Norway's refusal to arbitrate was, said France, a violation of international
obligations between France and Norway on which the Court was naturally
competent to rule. The violations were of four instruments one of which was the
General Act-1 refer to the I.C.J. PIea<liirgs,Volume 1,at page 172.At the oral
stage the French Agent, in appealing to the Norwegian Agent to agree to
jurisdiction, said that he once again recalled, in the name of his Government.
Norway's formal obligations under a bilateral treaty of arbiiration and under
the General Act,.Article 17of which he quoted in part. The Act was not. how-
ever, cited in the Application which basedjurisdiction only on the declarations
made under Article 36, paragraph 2. or in any other statement. ln the view of
the Court neither of the referencescould:
".. bcrcpnrrlc<l3s suflicient Io justif) the \iew thxi the Applii:ition of the
French G<iicrnnieni u;is. so Car3s ihe quc>il~>nofjurlsdict~l~n isiùnicrncd.
baseduoon the Convention or the General Act. lf the French Government
had inténded to proceed upon that basis it would eiipressly ham so stated.
As already shown, the Application of the French Government is based ARGUMENT OF PROFESSOR QUENTIN-BAXTER 137
clearly and precisely on the Norwegian and French Declarations under
Article 36. Daraeraoh 2. of the Statute. In these circumstances the Court
would no; beju;tiied inseeking a basis for ils jurisdiction diiïerent from
that which the French Government itself set out in ils Application and bv
reference to which the case has been presented by boih Parties 10 thé
Court." (I.C.J. Rrports1957,p. 25.)
Of the five .ud-es who wrote separateor dissentine o-.nions in this case.on.v ,
Judge I3.1rile\ant rçferred to thir ibrue. Ile stated ihai ",\t no tome hds ans
doubt ken rdi\ed a\ IO ihe fdct that thir Act i. bindinga% ixiu,een France and
Norwak" tib10. P 741 As I h2i.e .hown. ihc Ju.I-ment of thc Court is in no wo\,
inconsGtent wiih thatview.
Secondly, on II December 1964. in a statement 10 which my colleague, the
Attorney-General. has alrcadv referred. in exolainine in the French National
Assembiy why the'French Gkernment did noi then envisagebecoming party 10
the European Convention on Pacific Settlement. the Foreign Minister pointed
out that France was alreadv bound bv nurnerous macefui settlement obliea- -
tien%-the Hague Con\enti<in\ of 1899and 1907.ihe Siaiutes of the Permanent
Couri and International Cdurt. the Cieneral :\ci of 1928as rei,ised in 1949-ihis
reference to the revision is of course an error-as well asmany bilateral arbitra-
lion treaties. 1 am referring 10 the Joi,riio(oficiel de la Ripubli~~lliera,ir~aise,
National Assembly, 1I December 1964,at page6064.
Thirdly, the Act has figured in relations between France and Cambodia, on
the one hand. and Thailand, on the other. Thailand was never a party to the
Act, in either ils original or revised form, but in 1937 it concluded a Treaty of
Friendship, Commerce and Navigation with France. Article 21 of this Treaty
reads: "ln accordance with the principle embodied in the Covenant of the
League of Nations the High Contracting Parties agreeto apply the provisions of
theGeneral Act."
Pursuant to this provision. Franceand Thailand undertook. in an agreement
signed on 17 November 1946. to set up a Commission of Conciliation "com-
posed of two representatives of the parties and three neutrals in conformity with
the General Act.. . which regulates theconstitution and workingof thecommis-
sion". The agreement wenl on to specify the functions of the Commission-and
mv reference is to the I.C.J. Pleadi~t~s in the Tenm.eof .reak Vilrcarcase at
&es 140 and 141-the funclions orthe Commission. which was later estab-
lished and convened. There appears 10be nothing in the conduct ofeither Party
to suggestthat they believed thimselves to berevhing the procedures ofa lapsed
treaty.
Fourthly and Iinally in this category, Cambodia in bringing proceedings in
1959 aaainst Thailand in the Te~iinl.of P>eall Vilreorcase. de~ended on the
ceneraï Act, and later. on the provision in the 1937 treaty from which 1have
iust auoted. lt claimed to have succeededmon independence to France's rights
and obligations under the treaty and the Géneral Act. The Court did not reach
the questions involved in the reference to the General Act. as itheld thÿt an
alternative source of iurisdiction existed.
hlr. PresiJent and hlcnikrs of thc Court. 11ir pcrhap, linolly of interest. in
referring 10 the oltiiiide of Siire.; ii>usrJ\ ths General ActIO note ihai bilateral
treaties of peacefulsettlement of the sameera, and with much the samecontent,
have been invoked in al Ieast five casessince 1946. including the Barcelo,ia
Trarlioll case. Itwas apparently not thought that they were obsolescent relics,
which fell with the League.
ln the face of al1 the evidence which points to the continued validity of the138 NUCLEAR TESTS
General Act, it may be asked why the Act has been so little used. In my sub-
mission, this question invites a straightforward answer. The General Act was
born of a desire to increasethe useoforderly processesand institutions to settle
differcnces between States. Unfortunatelv...he willineness of States to res~ ~ ~~-
suchprocessesand institutions when the practical needarises hasnever matched
their enthusiasm for the ~rinciple of third-party settlement. Moreover. many
multilateral treaties-including most notably the Statutes of the permanent
Court and of this Court-have provided means of commitment to judicial
settlement for Stateswilling to usethem.
As we have seen, some States, including New Zealand, have at times enter-
tained doubts about one aspect of the Generai Act: that is, the fact that it
constitutes a system of obligation outside the framework of the League of
Nations and of the United Nations. These doubts haveexisted as long as t-er~ ~ ~ ~ ~
has been a Gcner;il Act. They are net an indication that the Gcneral Act has
Idpxcd. lhough they mdy bç 8 rea5onfor ils inrrçquent use.Other reasonsare the
arowth of skcialized multilateral institutions and orocedures to deal with
&fierences bétweenStates in a vast number of technical fields and the inclina-
tion of States in their bilateral relationship to rely on relatively simnle ma-
chincry fdr resulting disputes. lt is notcworthy that althuugh two IO thrce
hundred bilaterdl 3grecments fullow the ,amç pattern ïs the General Act. there
are only a few reported occasions on which such an agreement has been in-
voked. As with these bilateral agreements, so with the General Act itself, in-
frequent useis no1 a sign that a treaty has ceasedto be in force.
1was speaking a minute ago about State practice which, in our submission, is
wholly consistent with the continued force of the General Act. 1 must now
advert to an argument which draws upon another facet of State practice in an
attemnt to show that the General Act haslost its force. It issaid that until about
1940there was a marked parallelism between the scope of each State's accept-
ances under the optional clause of the Statute and under the General Act. The
argument proceeds that alter this time Statesceasedto modify their acceptances
of the General Act when they took such action under the optional clause. It is
said that this indicates a view that the General Act has ceasedto be in force. 1
would like to make threecommentsonthat proposition.
The first is that an examination of the declarations and accessionsshows that
in no case did the two instruments deposited by a country exactly coincide.
They al1 differed in their reservations, in the time-limits to which they were
subject, or in both. Even those pairs of instruments which were not subject to
any reservations had diiTerent periods of validity. different terminal dates, or
both. While it is true that some of the declarations made in the last 25 or 30
years have diverged further from the accessions to the General Act, in many
casesthey have not. Indeed, in some cases.for instance that of New Zealand,
the position hasremained unchanaed for over 30Years.
~he sïcond point is that the Ciencra1Act wïs the resuli of an attempt to make
more exiensi\e. for ihe parties ti) it. the obligdiions of peaceful \etilcment of
disputes. Conciliation and arbitration were made comoulsorv in certain situa-
tions; the Court's jurisdiction was made compulsory;'the power to terminate
that obligation was for most States considerably restricted; the power to make
reservations was limited; and in other ways the régimeof the General Act was
made more onerous than that of the Statute. If, then. more extensive obliga-
tions were going to beacceptedvis-à-vis other States. which were also willing to
acceDt them. miaht not the oarties also be exoected to a~oend less restrictive
reseGvations?~nd, in fdct. sime did, and continue, as a ris;lt. to be subject, in
their relations with the other parties, to more extensive obligations than those 140 NUCLEARTESTS
u~~ the words of these two Jud~es. the-Court's jurisdiction on the merits is
reasonably probable; thrreetisi iicighty argument5 in f~\our ofii.
1should Iike 10 ci,nçlude wiih a moregencral remark. 111siruç. as ha, becomc
ahundantlv clear todav. that iurisdictional issuescan be very technical and com-
. .
plicated. But they also have a broader significance, resulting in large part from
the fact that States, as a political act, determine in the first iristance whether the
Court has iurisdiction and the extent of that jurisdiction; they also determine.
again by r;lerence to consi\lerations %,hicharc no1 solçly juridical, whether to
invoke the jurisdiciion they ha\e conferred, and 10 use this p3riicular method
for the peaceful settlement of disputes.
But once those actions have been taken-once jurisdiction has been con-
ferred and invoked-then it is, of course, the Court which decides, according Io
the law. whether it has iurisdiction and whether the A~~licant should be award-
ed the relief, both inter& and final,which it seeks. lnthatrespect, Mr. President,
we took particular note of your reference at the outset of these proceedings to
Article 36, paragraph 6, of the Statute, the provisions of which are central to
any ordered systernof adjudication.
That, Sir, completes the presentation of our case. We are, of course, willing
to answer any questions the Court may have and, if it isthe Court's wish, 1 shall
make Ourfinalsuhmission.
Mr. President and Members of the Court, New Zealand's final suhmission is
t....~~ ~ ~~~t~~~.tine~-nder Article 33 of the General Act of the Pacific Settle-
ment of International Disputes or, alternatively, under Article 41 of ifs Statute,
should lay down or indicate that France, while the Court is seized of the case,
refrain from conducting any further nuclear tests that give rise to radio-active
fall-out. QUESTION BY A MEMBER OF THE COURT
141
QUESTION BY JUDCE SIR HUMPHREY WALDOCK
Sir Humphrey WALDOCK: The Revised General Act, as 1understand it, is
a new and indeoendent Act havinc ils own réaimeand its own oarties. 11does
not ci,niain cla".e\ Jesigned IO bring the IYZ#Act it\clf inis rei;ition uith the
iystem ol'the Ch;~rier. Iappreiidte thai ihe Scw Zcaland Gotcrnmcni maintains
that this hasbeendone. sofar asconcerns the Court. bv Article 37of -he ~ ~t~ ~
. .
and, so far asconcernsthe depositary, by General Assembly resolution 24 ofits
First Session. 1 should, however. be grateful if the Agent would assist me by
explaining the position of his Government regarding-the status today of the
provisions of the 1928 Act and of New Zealand's instruments of accession to
that Act, which relate to the Council of the Leügue.
The PRESIDENT: There is no need for the Agent to reply to the question
today. You müy wish ta reflect upon the reply to be given and you may present
il in writingor at a special Sitting of the Court'.
This part of the hearins is then concluded and 1ho~e the Acent will stand at
the disposal or the cour; should some Further questions or Qther issuesarise
which the Court will wish to beclarified or expect some replies from the Agent.
TlreCourtrose or 11.35 o.ni.
1 Seepp. 371,374-376, infra. 142 NUCLEAR TESTS
THIRD PUBLIC SITTING (22 VI 73.4 p.m.1
Preseirl: [Seesitting of 24 V 73, President Lachs and Judge Dillard absent.]
Le VICE-PRÉSIDENT faisant fonction de Président: La Cour se réunit cet
a~rès-midi Dour Drononcer sa décisionsur la demande en indication de mesures
cnniervaloires dont elle a etc süisic par la Nou\ellc-Zelande' au cuuri de l'in,-
txnce que celle-ci3 introdu~te le 4 mxi 1973contre Id France düni I'alT~ire de.
Essaisirr~cléaires.
La Cour a également été saisie d'une demande en indication de mesurescon-
servatoires par l'Australie, dans l'instance quecelle-ci a introduite le 9 mai 1973
contre la France en l'affaire des Essais nucléaires.Les deux affaires ont été
traitéesséparément,la Cour ayant décidé. à cestade, de ne pasen prononcer la
jonction. L'ordonnance prise par la Cour sur la demande australienne a étélue
ce matin en audience 7u.;lioue:
J'ai le regret de vous informer queM. Lachs, Présidentde la Cour, qui a pris
part aux audiences tenuesen l'affaire a étéensuite em~êchép.our desraisons de
santé.d'assister à la oartie finale du délibéré.e reerette enoutre d'avoir à an-
noncer que M. Dillaid, qui a assistéà une partie des audiences tenues en l'al-
faire, a étéempêche,pour raisons de santé, de prendre part au délibéré. En
conséquence M. le Président Lachs et M. le juge Dillard n'ont pas participé à
I'ordonnance.
Jedonnelecture de I'ordonnance de la Cour.
[Le Vice-Présidentlit le textedeI'ordonnance àpartir 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 ledispositifen angla3.]
M. Jiméne;.de Arcchaga. sir Humphrey \Valdi~rk. M. Sagendrs Singh. juges.
et sir Garfield Ilariiick, juml hoc.joignent dei J6clar~tions ii I'ordi>nnance Je
la Cour: M hl. Forster. Gros. Pelren et Ignacio-Pinio. juges. joignent à I'urdon-
nance lesex~osésde leurs ooinions dissidentesres~ectives
Une demande en indication de mesures conservatoires ayant 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 dejours environ.
Le Vice-Président.
(Sigtté) F. AMMOUN.
Le Greffier,
(Signé) S. AQUARONE.
'Voir p. 340,ci-dessus.
C.I.J. Recueil1973, p. 136
Ibid.,p. 142.
Plaidoiries sur la demande en indication de mesures conservatoires - Procès-verbaux des séances publiques tenues au Palais de la Paix, La Haye, les 24 et 25 mai 1973, sous la présidence de M. Lachs, président, et le 22 juin 1973, sous la présidence de M. Ammoun, vice-président