ORALARGUMENTS ONJURISDICTION
ANDADMISSIBILITY
MINUTES OF THE PUBLIC SITTINGS
heldar the PeacePalace, Thon10uandIIJuly a20December1974,
PresidenrLochspresiding FOURTH PUBLIC SITTING (10 VI174, 10.05am.)
Presenr: PresideilenLACHS; Jurlges FORSTER,GROS,BENCZONP , ETRÉN,
ONYEAMAD , ILLARD,IGNACIO-PINTO D,E CASTRO,MOROZOV.JIMÉNEZ DE
ARÉCHACA S,ir Humphrey WALDOCKN , ACENDRA SINCH,RUDA: Jitd~ead hoc
Sir Garfield BAUWI~K :egislrarAQUARONE.
Alsopreseirr:
For the Gover,inie>rtf New Zealand:
Professor R. Q. Queniin-Baxter, of the New Zealand Bar, Professor of Inter-
national Law, Victoria University of Wellington,s AgeirlairdCor~nsel;
H.E. Mr. H. V. Roberts, Ambassador of New Zealand to the Netherlands,
as Co-Ageirl;
Hon. Dr. A. M. Finlay, Q.C., Attorney-General of New Zealand,
Mr.~R~ ~-. -~~a-. .C.. Solicitor-General of New Zealand.
Professor K. J.Keith, of theNew Zealand Bar, Professor of International Law,
Victoria University of Wellington,
Mr. C. D. Beebv. of the New Zealand Bar. Leral-Adviser, New Zealand
Ministry of ~oreign~llàirs,
Mrs. A. B. Quentin-Baxter, of the New Zealand Bar. as Cortirsel. OPENING OF THE ORAL PROCEEDINGS
The PRESIDENT: The Court meels todav to hear the oral arg-ments of the
l>srtir.oiitlie duc,iion.;oi [lie jlr.\dt:iiuol thc Cdurt ind the adn~.irihiliiy
of ilie r\pplic.iti11il4 h) Ur.\\ Ze~ldnJ in\tiiutinlproicr'Jiiig, .i;sinstr.ince
in the A'itclearTesrscase.
The Application of New Zealand was filed on 9 May 1973, and instituted
proceedings against France in respect of a dispute as Io the legdlity of at-
mosnheric nuclear tests in the South Pacific reeion. The Government of New
Zc;,IClnJsAed tlic Court 1.)rhlj~~lgc;fitlJ ,Icil3rc th31the c<lnd~titby Ihe t'rcn~h
Go~eriiincnt ,IFnu~lcar tc,i< in thc South Paiiii: re2i.m thdi gitc rise to r«Ji<i-
ac~ ~ ~ ~ ~-out constitutes a violation of New Zealand's riehts under interna-
tional law, and that these rights will be violated by any further such tests.
The Applicant seeksIo found the jurisdiction of the Court on:
(a) Articles 36, paragraph 1, and 37 of the Statute of the Court and Article 17
of the General Act for the Pacific Settlement of International Disputes of
1928and the accessionsof New Zealandand Franceto the General Act; and
(bj on Article 36, paragraphs 2 and 5, of the Statute of the Court and the
declarations made by New Zealand and France under that Article.
Bv a letter2 from the Ambassador of France to the Netherlands received on
76 May 1973, the Court was informed that the French Government considered
that the Court wds manifestly not competent in this caseand that France could
not accent its iurisdiction.~he ~nnex~to the letter set out the reasons for this
view. hé ~rench Government stated that it did no1intend Io appoint an agent
and requested the Court to remove the casefrom the List.
BvanOrder3dated 22June 1973.thecourtdecided. Mireralia.thdt the written
prokedings should first he addressid to the questions of the jurisdiction of the
Court to entertain the disoute and of the admissibility of the Application. BY
the same Order the couri fixed 21 September 1973 as the lime-limit for the
Memorial of the Governrnent of New Zealand, and 21 December 1973 as the
lime-limit for the Counter-Memorial of the French Government.
By an Order4 made by the President of the Court on 6 September 1973,these
time-limits were extended to 2 November 1973for the Memorial and 22 March
1974 for the Counter-Mernorial.
The Mernorials of the Government of New Zealand was filed within the
time-limit fixed therefor. No Counter-Memorial has ken filed hy the French
Government: the written proceedings being thus closed, the case is ready for
hearing on the issuesof thejurisdiction of the Court toentertain the disputeand
the admissibility of the Application.
1 note the presencein Court of tpe Agent and counsel of New Zealand; the
Court has no1 been notified of the appointment of any agent for the French
Government. No representative of the French Government is present in Court.
The Governments of Argentina and Australia have asked that the pleadings
See pp. 3-45,sripi-o.
* Seep. 347, infra.
I.C.J. Reporrs 1973P. 135.
".C.J. Rrporrs 1973,p. 341
Sec pp. 145-246srtpril. OPENINC OF THE ORAL'PROCEEDINCS 251
and annexed documents in this case should be made available to them in
accordance with Article 48, paragraph 2. of the 1972 Rules of Court 1. No
objection tu this hÿving ken made by the Parties, it was decided to accede tu
these requests.
To the regret of the Court, Vice-President Ammoun is unable to be with us
today. Some weeks ago he unfortunately suflered an accident and was obliged
to spend some time in hospital. He has not yet beenable to take part in the work
of the Court.
1 thus declare the oral proceedings open on the preliminary questions of
jurisdiction of the Court and the admissibility of the Application.
1 Seepp.409,418, infra. ARGUMENT OF DR. FINLAY
COUNSEL FOR THE GOVERNMEN OF NEW ZEALAND
Dr. FINLAY: May 1,Mr. President, take the liberty of prefacing my formal
address with an expression of regret at the indisposition of Vice-President
Ammoun and the hope for his speedy restoration to full health.
Mr. President and Members of the Court. Since 1 last had the privilege of
appearing before this Court, more than a year has elapsed. 1 should like to
exoress to the Court the er-titude of the New Zealand Government for its
pronipincss in dc~ling aiih ni). iouiiir)rsducri of 14hldy 1973for the indica-
tion of inicrini nirasurcs olproie~tionpcnJing ihc Couri', lins1 Jcci,ii>n in the
present proceedings.
The Court's Order of 22 June 1973 enjoined the Governments of New
Zealand and France to avoid actions which might aggravate the dispute or
prejudice the rights of the other Party. It was stipulated in particular that
France should not conduct nuclear tests which deposit radio-active fall-out
on New Zealand territory. In the course of my address, 1shall have to refer in
more detail to the French Government's systematic disregard for the terms of
the Court's Order.
My present task and that of counsel who appear with me, is to comply with
the Court's direction to deal with and. of course I use ~~-n-n~ ~rds: "the~ ~ ~ ~
questions of the jurisdiction of theCO& to entertain the dispute, and of the
admissibility of the Application".It falls to us to make affirmative submissions
in regard to these matters because France still absents herself from the Court.
She does so in the knowledge that Article 53 of the Court's Statute protects an
absent Respondent, resuiring the Court to satisfy itself that the Res~ondent
suffers no injustice in cinseqience of her own unwillingness to assist the course
of justice. The Applicant of course accepts whatever additional burdens flow
from the frustration of the adversary process; but, in this contrived situation,
there may bea need for me to explain in general terms the aims and the outlook
of the New Zealand Government.
Our understanding is that the Court, in making its Order indicating interim
measures of protect'con, has held to the standards of proof applicable in de-
fended proceedings. We, for our part, have naturally accepted the obligation,
which falls upon counsel in Our own courts. to present facts and arguments
fairly and to conceal nothing which may help the Court to arrive at an accurate
assesrment of the matters in issue. More generally, it is our purpose to ensure
that the Respondent suffers no disadvantage except that which she incurs
deliberately-that is, the disadvantage of notbeing heard in her own defence.
Moreover, although the Government of France hasexpressedits firm decision
to stand apart from these proceedings, and to regard them as a nullity, this
decision remains and will continue to remain revocable at the French Govern-
ment's will. Under the Court's procedures and under the dispositions that the
Court has made in the present proceedings, the Respondent receives notice of
each development and the door is never closed to her participation. We, the
Applicant, would not wish the position to be otherwise.
For the time being. however. the only statements made to the Cour1 bv the
Respondent are tho& contained in the ietter, with its Annex, of 16 May i973,
addressed to the Registrar of the Court by the French Ambassador to the ARGUMENT OF DR. F(PILAY 253
Netherlands and referred Io in paragraph 7 of the Court's Order of 22 June
1973.
I should Iike to nilike it \Cr). cleiir. \Ir.I'rcsideni, hoa the Sea Zealand
Goiernmciit \ieu\. 2nd has \iewed. the st;itus and \igniticancc of ihe Fren;h
Gu\crnnient's ci~mniuniaaii~in. \\lien I ;iddre~sc<lthe C<?~rion 24 iii~ 1973.
1emphasized-and the referencemay be so found at pages102and 103; sirpra;
of the verbatim record-the irregularity of thesedocuments. 1went on to point
out that while the French documentscontended that therewasno case to answer,
in the matter of jurisdiction. they in fact entered into a debate on some of the
issues.
11is, of course, necessaryand proper that. in the search for evidence of the
French position. prominence should be given to this one substantial utterance
from a Government which has otherwise bound itself by a.self-imposed ordi-
nanceof silence in relation to the Dresentoroceedines.The Aoolicant recoenizes
that the French Ambassador's leiter, and'the document foriaided to theburt
under cover of that letter, have Io some extent, albeit irregularly, relieved the
dificullies causedbv the Resoondent's unwillineness to Diead.Theconsideranda ~~ ~ ~~
in the ~ourt's order of 22 JLe 1973,and ChePoints oireference in the Appli-
cant's written and oral pleadings, are of necessityrelated Io this "best" evidence
of the French position. And Ishould interpolate to make il clear that 1speak
of the word "best" in inverted commas.
It was no1 in that context that we objected to the irregularity of the French
Jo~uittcrit~. Thc Yeu. Zc;ildnd Go\ernrncnt masni)! prep:nrcd, al a lime when
the Rcjpondeni's stanceiras delaying the puhlicïiion or the Appliant'r request
for the indication of interim measuresof ~rotection, Io consent to the ~ublica-
lion of French documents chatdid no1cokply with the Rules of Court and that
sought to stifle proceedings regularly brought. Article 53 of the Court's Statute
recognizes that a respondent State cannot be obliged Io plead its case. and
provides that there shall not be a default judgment in the Applicant's Pavour.
Article 53 does not. however. give the absent Respondent accessto the Court
on terms denied ro the Applicant; and it does not operate in bar of relief to
which the Court might oiherwise find the Applicant entitled.
This, at least, is how we have interpreted thc spirit and the letter of the
Statute, and the oolicv of the Court. We conceive il to be our duty to avproach
the questions ofjurisdiction. and any possible question of admksibilk;, as if
the positions taken in the French Ambassador's communication Io the Regis-
trar had beenasseried by way of preliminary objection in a rcgularly conducted
defence. We would not at this stage have any objection whatever Io the in-
clusion of the French Ambassador's communication in the public record of
these ~roceedinas.
.
\\'c sh~ll ;iJdrcsi our\elves1,)the issue rai3e.I hy 1h;it cilmmiini2~tl<in,wiihin
thccomp:i~r iitilic~tcJ by the Rule$<liCourt. bnd in xci,rJin;e c%pcciiilly \\iih
the orinci~les underlvina Article 67. Daranraph 7
~r. ~rkident, bef&e?complete th&e i&8ductory remarks. thereareseveral
other matters to which 1 would like to refer in passing. One such matter is the
relationship between the cases brought against France by Australia and by
New Zealand respectively.
Some emphasis has beenplaced upon the Facts.acknowledged by me when 1
first addressed the Court. that New Zealand's casearises out of the same cir-
iiin1sian:ci SISthat of r\ii<tr:ili;t anil h:is iompxahlc ohjcctivei. li is for rhose
re:ir<in\ that the Seu. Zc:il.in<l Ci<i\crnmïni hi.; Jonc meryihing in iiç pouer to
consider the Court's administrative convenience. by ivillinglyagreeing Io
synchronize dates of hearing, and by nominating as a judge ad hoc the same254 NUCLEAR TESTS
eminent jurist who was nominated by the Government of Australia. We have
accepted, in the same spirit, the additiotial delays entailed by Australian time-
limits that were longer than those we asked for and obtained. We have, as this
was the Court's ruling, again followed the Government of Australia in present-
ing oral argument.
1mention thesematters only becauseit seemsthat arrangements made tomeet
practical convenience may be mistaken for indications ofa lesserinterest. The
Governments of Australia and New Zealand do no1 have a joint approach 10
the presentation of their respective casesagainst the Government of France;
nor did thev brine t-esecasesfor the DurDose.f s.~~ortine ea. .ther. Actions
iaken iftthetr region thai nia! \i,)ldte ,>blig.iiioti\ <rL,o u»i,i<,>.or <.iu,c. an ideii-
ii;dl iIirr..ii to the ucll-beitig <rfihc ~iti/eni oi hotli ther ciounirici. .ire ti~iumll!.
of concern to both: but historv and ~eoeraohv condition and differentiate their
individual perceptions of a co~~nmo'th;cai. Ï shall therefore have occasion to
remind the Court of the long diplomatic history of the dispute between New
Zealand and France and of the close community of interest between New Zea-
land and the island countries and territories of the South Pacifc.
There is, however, another kind of argument which may cast an unmerited
doubt uoon the validitv-or even the sinceritv-of New Ze.-~nd's com~la~nts
against the Governmcnt of France. The issues,il has beensaid, are political, not
leaal, and therefore are not suitable for adjudication bv a Court.This contention
~ ~ ~ean no more than an exoression~of sceoticish ahnut the exis~e~ - - ~ ~ ~~ ~
thLlegal norms invoked by the ~pplicant. It may, on another interpretation,
invite the rebuke formulated by Sir Hersch Lauterpacht more than 40 years
ago :
"The doctrine of the inherent limitations of the judicial process among
States, is, first and foremost. the work of international lawyers anxious to
give legal expression Io the State's claim Io be independent of law." (The
Fririctior~of Laiv br Ille Ii!rer~~otiot~a Clo~finiiorit.~, xford, 1933, p. 6.)
Historically. as Lauterpacht points out, this doctrine has many dilferent
manifestations. It is connected with the notion that a State's vital interests are
too important and too sensitive to be justiciable; and it is sustained by the
undoubted rule that no sovereign State submits ils interests to adjudication
except by its own will. In a situation in which there is a prior obligation Io
submit disputes to judicial settlement, the reservation of an asserted vital
inferest may take the form of a refusal in advance Io be bound by the Court's
judgment. Rosalyn Higgins has discussedthe ways in which this situation may
arise, and may be misrepresented as an application of the distinction between
political and legal disputes-"The International Judicial Process". It~terizotio,ral
aiid Coniparalire Low Qrtarterly, Volume 17,at page 72, to which the Court is
respectfully referred.
ln a ootentiallv emotive content such as this. where one Partv seeksIo avoid
adjudication, the-other Party's allegedly political aims may teni to be isolated,
emphasizedand then characterized as petty or insincere. So it may be though to
disclose a flaw in the Applicant's casethat he has impleaded one, but nG all,
of the States conducting nuclear experiments in the atmosphere; or the Appli-
cant may be called to account for ignoring or suppressing evidence rclating to
the daneers from fall-out.
Mr. Pkident, in the New Zealand Government's submission, accusations of
this kind reflect a desire, whether conscious or unconscious. to transfer blame
from a Respondent that rejecls ils legal duty to an Applicant that seeks to
enforce that duty. The supposeddistinction betweenpolitical and legal disputes ARGUMENT OF DR. FINLAY 255
has such varied and imprecise applications, and casts solittle light on the issues
which arise in the present proceedings, that 1 pursue it no further. The New
Zealand Government, after müny ycars of fruitless negotiation. brings these
proceedings against the Government of France because that Government's
actions pollute the air and the water of the part of the world in which we live,
and cause the peoples of that area profound uneaseand discomfort.
Why, then, it has been asked,did New Zealand tolerate the larger and more
dangerous British and American nuclcar explosions of the 1950s?The plain
answer is that an inter-temporal rule applies to fact as well as to law. In the
world of the 1950sshoe shops in my country and in many others had X-ray
machines through which thecustomercould seethe bonesof hisfeet in theshoes
he was trv.nr!"on. In the world of the 1970swe are appalled..y. and forbid,
theseunnecessaryexposures to the daniaging elfects of radiation. This may well
be a caseof acquiring wisdom by hindsight but itis also one of keeping in step
with advances in scientific knowledge.
My Government has sometimes been accusedof making too much of these
risks, because of the moderate, matter-of-fact tone of our own professional
literature. Wedid not invite the Court's attention to a report to theNewZealand
Parlianient about French nuclcar testing, referred Io in a pamphlet written by
Nigel Roberts and published by the New Zealand Institute of lnternational
AKairs. We did not so invite the Court becaiise that report, writlen before the
French tests began, was no more than an estimate of what consequencesmight
be enpected. We did, however, provide the Court, at the lime of hearing of
our request for an indication of interim measures of protection, with the
series of factual reports, published by the New Zealand National Radiation
Laboratory, on environmental radio-activity and the results of the monitoring
of fall-out from French nuclear testsin the Pacific. To complete thisinformation,
we have now furnished the Court with the mort receni report1 in the series,
published in November 1973, though 1 do not foresee that the current phase
of the present proceedings will cal1 for any reference to the substance of that
report.
Mr. President, in these introductory remarks 1 have referred to contentions
which, if allowed to passunchallenged, would militate against a true apprecia-
tion of the New Zealand Governmcnt's position. 1t is of the essenceof that
position that governnients should confront the menace of nuclear testing
producing radio-active fall-out in the same spirit as is adopted by responsible
scientists; that is to Say, we should neither encourüge inflammatory accounts
of the scale and effects of French atmospheric nuclear testing in the Pacific
nor should we allow political expediency to obscure the wrongfulness of
French actions.
Three years ago my Government, in commenting on the role of the Inter-
national Court of Justice, made this observation:
"... we would note that the use of judicial settlement al a particular stage
in a dispute or in regard to a particular aspect of the dispute need not
exclude the use of other methods of peaceful settlement, such as nego-
tLt~on 2nd ~~04~:~~..Iii~a~noa,rrl\onA31 .icnc~r-:~Irlc~c~l~~t1~l1t1h1e d~\pu~c''
(UN Do:. ,\ 6332 A.l.1 4 ~)l'12 \,?tcoil~cr 1971.p 2,
The New Zealand Government initiated the present proceedings in that spirit.
Issues of great legal and political importance were being canvassed at the
See pp.302-333, irifru.256 NUCLEAR TESTS
meciing\ of ihc L'niteJ Usiions politi;,l a,rgdn>anil iii hildieral e\:h.ingcs aiih
I.r~n:c The Se\\, Leal~nd Ci<r\eriinient ~lc\ircJ th:ii lier .li,dgrczmcnr riiih rhç
Fre~c~ ~overnment on a ooint of law. eoine tu the root of theseissues.should
beconsidered and resolvedby the principal ,;dicial organ of the United Nations
in the calm and disciplined atmosphere of a court of law.
We in New Zealand value our ties with France: we have sought and still seek
tu strengthen those ties, and 1 believe that this is also the wiih of the French
Government. Yet, for more than a decade the friendly relations between my
country and France have been disturbed by the sharp difference arising from
the decision of the French Government tu carry out a programme of at-
mospheric testing of nuclear weapons in the South Pacific. Early in 1963
-ironically enough the year of the adoption of the Partial Test Ban Treaty-
the first indications were received that, precluded by intense opposition from
African countries from continuing to test its nuclear weaponry in the Sahara,
trincc inrcnileJ i<iest.il~li;l3 ic,t \tic ;il3lurur<i3 Ncii Zr..il.mil iniinedi.iiely
ni.icic Lnoun it?Iriince ihe gr<,i\irig diriluici h,>iihIn Vcri Zcll:in<l .inJ anoihsr
aiuntrtes .,nd ierrit<>rier tiiihc Stiuih IB.i<ili: ~i<:xsiiineil hl ihe,e French plans.
When, later in the same year, the French intentions had become quiteclear,
New Zealand firmly and unequivocally protested about the establishment of a
test site in the South Pacific =nd urged that the decision be reconsidered.
whole period-the protesls by ihe New Zealand Government h the French
Government stated, restatedand developed the samethernes.The New Zealand
Government and people were concerned al the demonstrable evidence of the
C~o~ ~ ~ ~ion of nu~lear~weanon7, with al1 the risks that the oroliferation en-
tailed: they were alarmed about the possible hazards tu health from radio-active
fall-out: they deeoly resented the fact that a European power should choose to
forge its weapons of war in the far-away, antip6dean~ocean region to which
New Zealand belongs.
France did not accept the casemade out by New Zealand assufficient reason
f~ ~ab~ndonine its testine Dr-.ram~u in the South Pacific. The disoute which
grew out of this impassewas-and still is-a dispute between New Zealand and
France. But it also had wider implications. In prolesting tu France New Zealand
was reflecting the anxiety of al1the countries and territories of the South Pacific
region; and we appealed tu universal standards proclaimed again and again,
and with increasing urgency, by the United Nations and other international
bodies.
The dispute between France and New Zealand is unmistakahly of a legal
character-a dis~ute about leeal riehts and leral oblieations. New Zealand
continues tu deny that claim.
The rights fur which New Zealand seeksprotection have been set out in the
New Zealand Application instituting proceedings. in our request for interim
measures of protection, and in the Mernorial submitted to the Court last
November. Thcy have been stated in these documents in the following terms:
(a) the rights of al1 members of the international communily, including New
Zeliland, that no nuclear tests that give rise to radioactive fall-out be
conducted; ARGUMENT OF DR. FINLAY 257
(b) the rights of al1 members of the international community, including New
Zealand. to the ~reservation from uniustified artificial radio-active con-
tamination of the terrestrial, maritime and aerial environment and, in
particular, of theenvironment of the region in which the testsareconducted
and in which New Zealand, the Cook Islands, Niueand theTokelau Islands
a-. . . .. -.,.. .
(c] the right of New Zealand that no radio-active material enter the territory
of New Zealand. the Cook Islands. Niueor the Tokelau Islands. including
their air spaceand territorial waters, as a result of nuclear testing;
(dl the right, again, of New Zealand that no radio-active material, having
enteredthe territory of New Zealand: the Cook Islands, Niue or the Tokelau
Islands, including their air spaceand territorial waters, asa result of nuclear
testing, cause harm, including apprehension, anxiety and concern, to the
people and the Government of New Zealand and of the Cook Islands,
Niue and the Tokelau Islands; and
(e) the right once more of New Zealand to freedom of the high seas,including
freedom of navigation and overflight and the freedom to explore andexploit
the resources of the sea and the seabed, without interference or detriment
resulting from nuclear testing.
1shall have more to say later in my statement about the nature of these rights.
1 simply note here that they are not al1 of the same character, an argument I
will develoo.
The ~e& Zealand Application beginning these proceedings was filed on
9 May 1973.On 14 May, believing that a further round of atmospheric testing
at ~ururoa was imminent. and that this would do irreoarable damage to the
rights for which it sought protection, New Zealand filed a requesl foi interim
measuresof protection. On 22 June 1973 the Court made an Order indicating
interim measures. To our regret, France did not comply with that Order.
Between 22 July and 29 August last year a further seriesof atmospheric nuclear
tests was held at Mururoa.
Measurements taken by the New Zealand monitoring system proved con-
clusively that these tests, like those in previous years, resulted in the deposit of
radio-active fall-out on New Zealand territory. In short, as pointed out in a
letter of 21 September 1973' from the New Zealand Co-Agent to the Registrar
of the Court, there was a clear and unmistakable breach by France of the
Court's interim measures Order.
The New Zealand monitorine of -he 1973 series also oroduced further evi-
dence of the inherently unpredictable and unavoidably risky nature of the
ex~losion of nuclear weaDonsin the atmosphere. On two occasions, and despite
the orecautions taken b; the French authorities. blow-back occurred. This is
the ihenomenon referred to in the New Zealand documentation already before
the Court, whereby some of the radio-active debris from a nuclear explosion,
instead of beinecarried eastwards from the test site as olanned. is caught up in
an anti-cyclonk eddy and carried westwards. The result is that radio-active
material is deposited on some of the islands relatively close to the test site at
Mururoa much sooner and at a higher level than expected.
When the 1973 series began, the New Zealand Government made an imme-
diate protest Io France. A Note of 22 July 1973, the text of which is set out in
Annex XII1 to the New Zealand Memorial, said that reports of a test at Mu-
ruroa had been received with profound dismay in New Zealand. The Note258 NUCLEAR TESTS
reaffirmed the strong -u~..ition of the New Zealand Government to al1 such
tests: it deplored the latest act by France in defiance of the renewed and most
earnest representdtions of the people of the South Pacific and of many govern-
ments ariund the world. The Note also contained the following passage:
"The New ZealandGovernment views with utmost concern and disquiet
France's disregard for its obligations under the United Nations Charter
in thus spurning a binding order of the International Court of Justice.
The French Government has indicated that it does not consider that the
Court has competence in this matter. The French Government is, however,
well aware that it is a long and firmly established principle of international
law that it is for international tribunals to establish their competence and
not for the parties to the proceedings."
The Note went on to reaffirm that the New Zealand Government regarded the
tests as a violation of international law. It urged France to FuIfiI ils obligations
to the International Court a~d ~o New Zealand and other countries-in the
South P4;ifii: by refrainrig Train ;in)fiiriher nuclc.ir \ie.iponi tc.1,;Ihlururi~d
51y G<~iernnicnl ;ils.) took i~tlier :iiiii~n. S<~nie<if the tcrt> in rlic 1973icr~eh
were-observed at close ouarters bv ~,e oersonnel on board a soeciallv ~rotected
New ~ealand frigate siationed outsidé the territorial watersof ~ucuroahut
inside the areas of high seaswhich the French authorities had pur~orted to
declare to be a securiÏv zone.
The purpose of thisiction was the wholly peacefulone of demonstrating the
extent and depth of New Zealand's opposition to the tests and of focussing
world ~ublic ooinion on the issuein the houe that the French authorities mieht
be periii.i.le1;)hccJ hdih the ('duri's or& dn.1ilie iirgingh,ii!lie peoyle, ;n~
<a>uiiiracrofilic rzgion. Tlcst hope \\a\no! iultilleJ: hiii Ili: lirgs reipun.e by the
news media in almost every country demonstrated once again and very clearly
the extent Io which our concern about atmospheric nuclear testing is shared.
The nature of the New Zealand purpose in sending a frigate to the testing
area was made as clear as possible Io everybody, including the French authori-
lies. As was stated publicly in New Zealand at the time, the entry of a New
Zealand frigate into the Mururoa area was delayed until there was no longer
anv room for doubt that. desoite the Court's Order. France intended to carrv
oowith its programme of atmospheric nuclear testing. If at any time after thé
departure of the friaate from New Zealand there had been an indication that
France would compiy with the Court's Order then il would immediately have
been recalled to New Zealand. It was also made quite clear that there was no
question ofany Government sliip entering the territorial seaaround Mururoa.
My Government took every precaution to avoid anything in the nature of a
confrontation with the French authorities.
There was in fact no confrontation and indeed no incident of any kind in-
volving a New Zealand frigate near Mururoa.
1 should add that there were incidents near Mururoa involving not New
Zealand ships but New Zealand citizens. The New Zealand Government had
continued Io discourageits people from sailing small boats to the vicinity of the
test site. Some New Zealanders, however, still participated in private ventures
of this kind. On 18July and again on 15August 1973New Zealand citizens on
board ships that were not of French nationality and which were on the high
seas, were apprehended by French naval vessels, taken against their will to
French territory and detained there for a period of days before being permitted
to return to New Zealand. My Government protested to the French Govern-
ment about each of theseincidents which, in our view, involved a blatant inter- ARGUMENT OF DR. FINLAY 259
ference with high seas'freedoms. The texts of the New Zealand proiest Notes
are set out in Annex XllI of the Memorial.
Nine New Zealanders were involved in the two incidents. Some of them, on
returning to New Zealand, approached my Government for assistancein pur-
suing a claim against France for damage toor lossof their property and for their
unlawful arrest on the high seas and subsequent false imprisonment. In ac-
cordance with ils responsibilities to ils citizens, my Government decided to take
uo with the FrenchGovernment an aoorooria..cla.mon their behalf. In Januarv
this year ille French Foreign Ministry wasadviscd that a forrnal and cornposik
claimwould be presented to itin due course. At the present time the evidence in
suooort of such a claim is still beinc collected and studied
iinention this particular matter, ~r. President, becauseit obviously has sorne
relationship to the dispute between New Zealand and France about the legality
of the atmospheric testing of nuclear weapons, including the measurestaken by
France to enable those teststo be carried out. Lt also hasa bearing-and Ishall
return to this point later-on the question of New Zealand's legal interest in
the oroceedincs that it kas brought before this Court. 1would stress, however.
ili:itihe c1:iin;1,) hc hr,>ughi h; ni) Cio\ernmeni on heh~li vi ieri;tin i>i il,
Litireni. uh:lc rclaied i,> iI~eJi>puie hcf,>rcilic ('~~uri.1,dI,d q~iic Ji>tiii.iir<iiii
il II ail1 iiii<>l\;I2l;iini f.ir J;iiii.~ge*. lii the pro<ceJinc, iioa bcb~reth,\ C'.>,,ri
the relief that New Zealand seeki is a decljration that nuclear testing in the
atmosphere that gives rise to radio-active fall-out is a violation of international
law. My Governrnent seeksa hall to a hazardous and unlawful activity and not
compensation for ils continuance.
To complete my review, 1 need only refer to the events of recent weeks in
which we have seenthe beginning of yet another round of atrnospheric nuclear
testing in French Polynesia.
On 10June of this year, two days after a public pronouncement by the Office
of the President of France, the French Embassy in Wellington sent a Note1
be held this year. The Note also stated that:
"France. at the ooint which has been reached in the execution of ils
programme of defence by nuclcar means, will be in a position to rnove to
the stage of underground tests as soon as the test series planned for this
summer is comple~ed. Thus the atmospheric tests which are soon to be
carried out will, in the normal course of events, be the last of tliis type."
1 emohasize Iwo ooints: first. the most that France is offerincr is that in her own
tinie'she will ceas; Io disregard an existing Order of the cour:; and second, even
that oNer is qualified by the phrase "in the normül course of events". New
Zealand has not beeng&en anything in the nature of an unqualified assurance
that 1974will seethe end ofatniospheric nuclear testing in the South Pacific.
On II June the Prime Minister of New Zealand. Mr. Kirk, asked the French
Ambassador in Wellington to convey a letler"0 the Presidentof France. Copies
of that letter have beenfiled with the Registry. Ifurged among olher things that
the President should, even at that time, weigh the implications of any further
atmospheric testing in the Pacific and resolve to put an end to an activity which
has beenthe source of grave anxiety to the people of the Pacific region for more
than a decade.
See p. 298, itrfrn.
Sec p.299. itfio.260 NUCLEi\R TESTS
Despite this appeal, the 1974 test series kgan. My Government has good
reason to believe that. in further \,iolation of the Court's Order of 22 June 1973,
France exploded an atmosphcric nuclear dcvice al Mururoa on 16 June and
that there was a further exnlosion iust four davs ,so.-
\lc~\iircnicni. t:iLc~ihy station\ in ihc Neri Ze.il.tiid miriiiioring qstcni in !lie
Sc,uth I'.iciii: cironcl,, iuggcit ih;itIc.~.t the tirrt .x'tlic~ee\plo>ioproJu~cJ
yet anothcr "blow-b~ck"~ncident.
In the light of the public pronouncenient made in France, and of the Note
delivered by the Frcncli Anibnssailor in Wellington, further tests are 10 be
exnected in theconiini! wecks. The lirst test in the 1974serieswas followed bvan
immediate protest onïhe part ofniy Government. Copies of a Note of 17june
1974' from the New Ze~iland Embas~ in Paris to the French Ministry of For-
eign ARairs have been lodged with the Registry.
We have also lodged with the Rcgistry at the beginning of this week copies
of a letter? of I July 1974 from the President of France to the New Zealand
Prime Minister in reply to the latter's letlcr of II Junc. 1 invite the Court's
atieniion, in particular. to paragraph 3 of that Icttcr which contains a statement
of the reasons why France does no1 consider that il is bound by the Court's
Order of 22 June 1973. With refcrence 10 that explanation, 1 need only say
that it is for the Court and no1 for the Parties to decide the question of juris-
diction to enteriain the dispute; that the Tact that the Order of 22 June 1973
was made orior to a definitive findine o- iuri-diction cannot detract from its
force; and that niy Governnient docs not share the view that interim measurcs
indicated under Article 41 of the Court's Statute lack obligatory character.
1turn now. Mr. President. to consider those matters to~which the Court hÿs
ordered that Ne.wZealand should address itself in this phaseof ils caseagainst
France, and which are argued in somc dctail in the Memorial subniittcd by niy
Government in November Inst vear. Part 1 of that Memorial contains an ln-
trc~di~:ti,>n,I'drt; Il. Ill 2nd IV rclat10 juri~~iictto~i,l'ar\' IS<%~n:criicd uith
;iJniic~ihilit~. ;inJ ILrt\'Ic.)iiiains the ~uhniii~ioii\ <rfniy Cioiernniciii
As ta jurisdiction. il is New Zealand's contention that the compctence of this
Court to entertain the dispute derives from two sourceswhich are quite separate
and independent of each other: the declarations made by New Zealand and
France under Article 36. paragraph 2. of the Statute of this Court and of ils
predecessor: and the 1928 Geiieral Act for the Pacific Sctilement of Interna-
tional Disputes.
Mr. Savage,the Solicitor-Gcneral. will consider, in his statement to the Court,
the question, dealt with in Part II of the Memorial, of the Court's jurisdiction
under the General Act. Professor Quentin-Baxter will deal with the questions
discussedin Part III of the Mcmorial, which is designed10show that the dispute
belween New Zealand and France is not excluded from the Court'sjurisdiction
by the reservations in the French declarafion niade under Article 36, paragraph
2, of the Court's Statute. He will also deal with the relationsliip between the
two soiirces ofjurisdiction dealt with in Part IV of the Memorial and close the
New Zealand case.
In anticipation of my colleagucs' statcnients, I shall limit myself to making
Iwo general comnienls, one coiicerning the General Act as a source of the
Court's jurisdiction, and the othcr concerning the relationship betwccn the two
sources of jurisdiction on which New Zealand relies.
1 hardly need 10 remind the Court that in considering whether it hÿs juris-
Sec p.301, iifici.
See p.334, in/,-<i. ARGUMENT OF DR. FINLAY 261
diction under the GeneralAct, ifwill corne faceto face with this central r>rooosi-
tion, the very keystone of thelaw of treaties: pacta srtnfservatida. ~heGeneral
Act contains a provision conferringjurisdiction on the Court. France and New
Zealand became ~arties Io it on the very same day in 1931: it is a treaty which
provides a specific mechanism for its termination. On thedate on which New
Zealand filed its Application instituting proceedings, neither France nor New
Zealand had taken any action to denounce the General Act in accordance with
its provisions, nor, since 1939, to limit the scope of their original accessions.
Until this case, and the comparable ~roceedings initiated by Australia were
beaun. neither France nor other countries had questioned the continued life
oiÏhe General :\ci; <inthe coiitrJry, ilterr. h~d hein speciii: acknouleJgements
hy I'r~n~cthai the ire3iyrr~niaini~din i,)rceaiid thir iiroiiiirmeJ by a subit~niial
uuaniit?.O~P~ACII;~ on ille part oiother Sixle\. Al1<)ithe,r fasI<~rhooini direitly
Cothe onclusion that, in 'pplication of the law of treaties, the General Act is a
"treaty or convention in force" within the terms of Articles 31, paragraph 1, '
and 37 of the Court's Statute.
Now. p.>inting in the iipporiie ilireciion are the various 1-ren:hdrgumcnts ihdt
thr.GencraI ,\;ti,n.>longer in ioric or, ai 3ny raie, ijn<ilonger in f<ircebeiuecn
tr.iii.'e dnJ Neu. Lc;illinJ. 1:s the Net, Zc~ldnJ juhini%sion 11131cn:h of iliew
arguments is of a shadowy kind which is inconsistent with both the facts of the
situation and with legal principle. Alter this hearing it will, of course, be for
the Court to assesstheir strength. 1 venture tn suggest,however, that should the
Court accept any one of those French arguments, a very severeblow will have
been dealt Io the law of treaties and to the stability of relations among States
which that law protects.
So le^ seri<~u< in II\iiiiplic.ii~oiii the remarlahle ruggection put foruarJ
hy rran~e, !ha1 fihe Gciisrdl ,\ci iI<>e-Iia\e i,slidiiy. if is in.tpplic~ble in siiua-
ii,inr crclu.lc,l hy I r;in.x's unil.ttcr;sl .Iecl~r.iii,in under Ar30,l~ragrdph 2.
The.icir'ptn:e by thecouri <ilihi~cs~itenlioii \ri)uld Iia\r ra.lic~l ci>n\çqucnics.
c,n,.cag.i:n Ior Ille Idiv of ire~iies 311d.al,<>,for the sci>pe1Iirluriidiaii~n son-
ferred on the Court and its future role
As i<the Ida oiirr~iicr, ihr. i:<epian.cof the rren;liconienti<>n \iould iniply
rhdr an eki\ting ireCity rel.iiion,hip beiuecn tu^ or more Si.iic< <iiihr. kind
created by adherence to the General Act can be amended by a subsequent and
unilateral act ofone of the parties to a freaty in a way other than rhoseprovided
for in the treaty itself. Of perhaps even larger significance is the fact that ac-
ceptance of the argument advanced by France on this point would entail the
virtual elimination of Article 36, paragraph 1, as a source of the Court's juris-
diction. Treaties conferring jurisdiction on the Court under that Article could
be amended, qualified and negated by a flood of unilateral declarations made
under the optional clause.
The Court will, 1believe, wish to consider very carefully indeed no1only the
judicial precedent which rejecls the French thesis but also the hazards of the
kind 1 have mentioned that would be involved in its acceptance.
Tlie Coilrl ar!joariird froni11.15 o.ni. ro 11.35 o.m
1 come now to the question of admissibility and present Our argument ac-
cordingly. This matter, as1havesaid, is dealt with in Part Vof the New Zealand
Memorial. The Court will have noted from an examination of this oart of the
Mernorial, together with the Introduction in Part 1, that we have lihited our-
selves to a consideration of New Zealand's legal interest in its dispute with262 NUCLEAR TESTS
We have assumed-on the basis of the settledjurisprudence and practice of
the Court, and the policy underlying the Rules of Court, especially Article 67,
paragraph 7, of the Rules-that the Court would wish to retain the well-
established distinction between the merits and preliminary phases of cases
with which it deals; and, accordingly, that it would restrict itself al this stage
to matters which are distinct from, and anterior to, the merits of the dispute,
and which are genuinely susceptible of determination at a preliminary stage.
This assumption was, it seemed to us, reinforced by the terms of the Court's
Order of 22June 1973,and, in particular. by paragraph 24 of that Order, which
identified as a question of admissibility New Zealand's legal interest in its
claims.
1 begin my comments on the question of New Zealand's legal interest by
notine. that an international tribunal must freauently a~~roach any auestion of
legal &terest in a context significantly difirent from that in which a-municipal
tribunal will normally becalled on to consider the samekind of issue.When the
question before the tribunal is whether the claimant-a State in one caseand an
individual or group of individuals in another-has a legal interest or standing in
relation to the protection of rights which are shared witli others and which are
desirned to urotect a communitv interest. the dimerence between the situation
of ihc tiro tril>iirial\ nia). hc \cr)-n1;irkr.d iriJcc.1 'Ilic iniuni:i~i.ili.notun~l
orlciii.i;cJ uith cti<ii:c hciiicen. on thc one ti.inii. ;iil1c.lgiiig the dsnding
of a claimant and henceacce~ting that he hasa Drocedurai rinht to seekto Dro-
tect community interests and, on the other hand, denying him standing with
the result that there are no meansavailable to anyone of protecting the rights in
auestion. If-to take an examule arisinr more and more ofien in manv iuris. .
dictions-a municipal tribunÿi decides?hat a claimant has no standing in a
case designed 10 stop action having an adverse impact on the environment, it
usually does so in the knowledge that there are others who will be able to test
thelegality of the action proposed. It may bepossible for other individualswho
are dinèrently placed to sue; ratepayers' or local taxpayers' associations or
-.OUDsinlerested in the ~rolection of the environment mav have standing. as -.
may local and central gbvernment agencies. There may be other rnachinery
available to protect the community interests which are the subject of dispute,
for example, the relator action of English law; and, in the las1resort, there is
nearly always authority vested in a legislature to deal with the problem if the
courts cannot do so.
As surgested by De Visscher and Abi-Saab. in the uassaresfrom their works
quoted gparagraph 196 of the New Zealand ~emorial,àn international tri-
bunal can take much less comfort from the organirÿtional and institutional
framework within which it makes decisions concerninn the existence or non-
tious casesto international tribunals or, to be more precise, they do not have
accessto the orincioal iiidicial orean of the oreanized international communilv.
. . - -
There is wholly lacking a central I~gislative authority which can lill any gaps in
the enforcemerit of inlernational law by international courts. The iudicial
protection of comm9nity interests is left in very large measure to the initiative
of individual States. International tribunals, including lhis Court, may well
confront the situation where a denial of standing lo one or more States means,
in effect. that substantive internationallaw rules are wholly devoid of any means
ofjudicial protection. This was, I believe, essentially the situation with which
this Court had to grapple in the Soi<tl~West Afiica cases.
There are here, 1would submit, important policy considerations which this ARGUMENT OF DR. FINLAY 263
Court will wish to weigh in any examination of the question of the existenceof a
legal interest in an applicant State. A narrow view of the notion of standing or
lenal interest-and eiiecial~v one which denied an individualrieht of nrotecfion
.~~ *
ofrules reflecting community interests-would inevitably tend~to inhibit the
growth of substantive law.
It would run counter to the whole orocess of develonment. traced bv manv
writers, whereby international law ruies for the proteciion of individual ta&
interests have beenincreasingly supplemented by rules for the protection of the
-eneral welfare and of communitv interests shaied bv all. ut mor ehan that.
ihc ad<~piionola resiri:ti\e hie\i oi'thc procedural rcquireiiieiirtlidt :lairitant
Siaie esi~blisli 11,Icg,il iniereit noulil al30 r~i\e the pu~,iùilitof ten~on. and
evenconflict. betweenan important objective of the Üniled ~ations Charterand
the rulings of the principal judicial organ of the United Nations, which has
often recognized a duty to CO-operatewithin the Organization. One of the
ourooses of the Charter. as stated in Article 1. is "to hrine about ~ ~oea*e.~l
ineins, and in conformiiy with the principles of justice and international law,
adjustment or settlement of international disputes or situations that mizht lead
to a breach of the oeace". Article 2. Daranraoh 3. of the Charter enshrines the
peaceful means in such a manner that international peace and secur~ity,and
justice, are not endangered".
Article 36, paragraph 3, contains a reminder to the Security Council that
lenal disputes should as a ne-eral rule be referred to this Court in accordance
\iitIi111spro\i,i<>n\ .>lilic C'uuri's Si.iiuie. ,\ hrad\.ici%ui the noii~n ,iiIcgaI
interest \\il1 rcnJtt?gi\c ,~h\ixi:e to there pr<i$i,ians in the Cnarier. Suih a
view will make it easier for disoutes to be settled bv iudicial means at an earlv
stage,and before they emerge as a potential threat io-the peace.A narrow vie;
of this procedural requirement mus1 tend to detract from this Charter goal.
If we turn from a consideration of oolicv and orincioie to an examination of
. .
judicial precedent, we find that the Court's most'receni pronouncement on this
matter of legal interest-in the Barcelona Tractio~r case-does not proceed on
the basisof a narrow view. Indeed, the Court's observations in that casestrongly
suggest that it paid full regard Io the wider implications of the decision then
taken on standing. In that casethe Court was required to consider the right of
Belnium to exercisedi~lomatic ~rotection of shareholders of Beleian nationalitv
in Ëarcelona Traction, a company incorporated in Canada. 1; deciding thit
Belgium lacked the necessarystanding the Court made it clear that ithad taken
into account the fact that Barcelona Traction had another avenue of nrotection
open to it. It was not, in other words, a casewhere a denial of standing would
have meant that there were no means available for the judicial protection of
rights alleged to have been infringed by the respondent ~tate. The point was
made even more explicitly by Judge Lachs in a declaration concurring in the
Court's Judgment. The relevant passagesfrom the Court's Judgment and from
the declaration bv Jud~e Lachs are to be found in I.C.J. Re~orrs 1970.oaae 50.
and pages52-53,and they are also set out for convenience in full in par'aGaphs
201 and 202 of the New Zealand memorial.
A statement made by the Court earlier in its Judgment is, 1 suggest,of even
largcr importance. That passage(I.C.J. Rep~rrs 1970, p. 32) is sel out in full in
paragraph 199of the New Zealand Memorial, but itis worth repeating here:
"...an essential distinction should be drawn between the obligations of a
State towards the international community as a whole, and those arising264 NUCLEAR TESTS
vis-à-vis another State in the field of diplomatic protection. By their very
nature the former are the concern of al1States. In view of the importance
of the rights involved, al1Statescan be held to have a legal interesr in thcir
protection; they are obligations erfa orii,res.
Such obligations derive, for example, in contemporary international law,
from the outlawing of acts of aggression, and of genocide, asalso from the
principles and rules concerning the basic rights of the human person, in-
cluding protecrion from slavery and racial discrimination. Some of the
corresnondine rieht- of ~rotection have entered into the body of zene.al -
international law (Resrr~~rrrioirsto rlze Con~~!rtio~ 11 the Preveirtiuir arrrl
Pliirishtirrtrr of rhe Crinie of' Grirori<le, A</I.~XOI-Opil~io~r,I.C.J. Reports
1951, p. 23);~others are conferred by internationalinstruments of a uni-
versal or quasi-universal character.
Obligations the performance of which is the subject of diplomatic pro-
tection are not of the same category. It cannot be held, when one such
obligation in particular is in question, in a specific case,that al1States have
a legal interest in its observance."
There is in the passage I havejus1 quoted nothing Io suggestthat the concept
of le-al interest constitutes a shackle on the liti~at-on of the aene-al ranac of
international disputes. There is, moreover, enplicit recognition of the right of
individual States to bring legal action to protect conimunity intercsts anden-
sure the performanceof obligations owed to the international community as a
whole.
This latter element in the passagequoted is, ofcourse, directly in point in the
present proceedings. It is central Io the New Zealand casethat the atmospheric
testing undertaken by France necessarily involves a violation, i~iter aliu, of
obligations owed to the international community as a whole. I have already
quoted the passagefrom the New Zealand Application institutinp proceedings,
repeated in paragraph 190 of the Memorial, in which we characterire the ille-
gality of French testing by reference Io ils violation of five diflerent calegories
of legal rights. We put at the head of this lis1 two categories of rights which
are central to the question of the legitimacy of France's actions and which
are vested in New Zealand and in every other member of the world com-
munity.
New Zealand contends, under the tirs1 of these two heads, that customary
international law prohibits atmospheric nuclear testing. The duty to refrain
frorn such tests is, in Our submission, conditional neither on adherence to the
1963Partial Test Ban Treaty, nor on the deposit of radio-active material on the
territory of other States. nor on the occurrence of any other eflects. The pro-
hibition is an absolute one which has its roots in a universal concern for, and
community interest in, the preservation of the security, life and health of the
individual human being. It is of the very essenceof the law relating to at-
mos~heric nuclear testine that.the dutv to refrain from this activity is owed to
The sarne is true of the rirht set Forth in the second of the five catezories of
rights in the New Zealand Application. New Zealand contends under chis head
that the atmospheric testing undertaken by France. which always involves the
releaseof radio-active material, necesrarilv results in an infrinzen~ent of norms
and ,r;!nJarJ, df ~ntcrn.~t~dn.tIIL\\ (\or rlie pr,>rtvti,?n ~tfIIW t~n~ir,~!imt~r~!.1.-
no1,.nipl) tl~ceITc~: l11the cn, ~r,~trnicnt.~irI?i>i,>ttnrry or oilh~t :outitr)ti1itzl1
..LI iswc herï Xu~lesr lcrlinb: df the Lin4 ~drried 0111 by Fr;iiix inïv.i;ibl) ARGUMENT OF DR. FINLAY 265
produces results in areas beyond the limits of national jurisdiction. In that
sense, and in a broader senseas well, the common heritage of mankind is
aflected. If New Zealand is correct in its contention that French actions inevi-
tably conflict with international environmental law-and this is also a matter
for the merits phase-then the obligation imposed by that law is, once again, of
a universal character, an obligation ergo onines.
The Court's observations in the Bai.celoira Tracfimi caseare. 1 submit. ore-
:.,el! ~ppl~~xhlctu thc prutt.:i.~>n,>iil~t r:ghtali\e $113u~~rl~il \\h1.h nt~;le.ir
te\!> in ihc .iim<i\plir.rr.ii<>13Leplii:e .in.l oi tlic rigl~tthe prcx.rritiiin of
the environment from unjustilied radio-active contamination. Those rights are
ofa kind that, in the words of the Court, al1Statescan bc held Io havean interest
in their protection and in the observance of the corresponding obligation.
The Court did. of course. tend to sugeestthat richts which are sharedand in
the protection of which ali members OF the international community have an
interest must be of an important nature. The illustrations mentioned by the
Court of obligations erpa oi,i>res-those deriving from the outlawing of aggres-
sion and genocide and from the principles and rules concerning the basic rights
of the human person. including protection from slavery and racial discrimina-
tion-al1 of thesehave a certain fundamental character. They were illustrations
only and it may be that the Court did no1mean Io soggestthat al1obligations
in respectofwhich every Statehasa legal interesl must have thesamecharacter.
If however. this was the Court's intention then the law with which we are
concirned héremanifestly filfils this condition. Much of the material that New
Zealand has already submitted to the Court has illustrated the overwhelming
importance given ai the national, regional and global levels to the problems of
nuclear weaponry-and nuclear war-and to the protection of the human
environment. Nobodv who is familiar with the debates of the United Nations
on these topics over Ïhe years can doubt that they rank very high indeed in the
Organiration's list of priorities. Each of them is a debate about survival.
In the üarce/oira Trncfioircase. the Court was concerned. when it examined
the question of the Applicant's standing, to draw a sharp distinction between
obligations owed to the international commiinity as a whole and the very dif-
ferent legal duties arising in the field of diplomatic protection. A closer exami-
nation of the nature of obligations erp omizes might perhaps lead to the con-
clusion that within this category of obligati,ons there is a further distinctionto
be drawn. What Iam suggestinrris that certainoblipations. bv their verv nature,
are owed to the whole offhe international commuGty, and iimakes nosense to
conceive of them as setsof obligations owed, on a bilateral basis, to each mem-
ber of that community. In other casesthis is not true.
Thus, to take one of the illustrations usedby the Court in the passagequoted
from the Barcelo~iaTracfioir case, the international obligation that is ignored
when a State. in dealine.with its own citizens, violates fundamental human riehts
standards, is indivisible.It cannot be regarded as the sum of a seriesof disGete
bilateral duties. On the other hand, the obligation to refrain from acts of ag-
eressionwould seemIo beof a ditïerent character. Under the srstem established
by the United Nations Charter, State A's unprovoked atlack on State B
amounts to a violation of a legal dot? owed to all. It is, however, possible to
conceive of a more rudimentary world order than we now have in which State
A'S action is, as a matter of law, of concern to B alone. This was, in fact, es-
sentially the position prior to the Covenant of the League of Nations and the
Pactof Paris. In that era, if an act of aggressioninvolved any violation of a legal
obligation it was a bilateral obligation flowing from either a bilateral treaty or
at any rate, a treaty with a restricted number of parties. As part of the process266 NUCLEAR TESTS
of the development of a more ordered and interdependent world, an obligation
in oriein bilateral and vrivate has become multilateral, universal and ~ublic.
~bligations relating 10-the protection of diplomats may well now be "rider-
going a comparable process of transformation, if indeed that process has not
already beencomoleted with the adootion bv the General Assemblv las1vear of
a contention rel1e:tinp a common intere,t in the pruteztion i~fdiplomltt\
lithi, kind disiinciion. ren~uted iiiArticle 60. paragnph 2.of the \ienna
Convention on the Law of Treaties. is to k drawn within the cateeorv-.f
ohl.gliiiogirivplii>>i,,ri,tlien thc iiiii\eri:oblip~tii>nr\ihich. in Nr'ti Zesl;ind's
subini\,ii>n. Fraiicc \iolstes by ~i>ntinuing 11,progr~ninicof ;ilm<isplicric nuclcar
testing in the Pacific, are plainly in the first, rather than thesecond,sub-category.
They are comparable with a failure to observe fundamental human rights
standards rather than with a violation of the law concerning aggression. The
dutv to refrain from nuclear weaDons tests eivinc rise to radio-active fall-out
- -
and the iluty tu stoid the unjuiiitied :irtiTicilil radio-actitse cuni;imin;itioof the
global eniir<innient are uholly lacking iii an). bilaterltl characier and cannot be
conceived of or stated in bilateral terms.
What consequencesdoes such a distinction have for the judicial enforcement
of universal obligations and for the judicial protection of the rights which
correspond to them? The answer may well be that il has no consequencesal al1
and that in every casewhere an obligation can besaid to be owed IO al1States,
every State hasa legal interest in its observance. That, in fact, is the very thrust
of the comments made by the Court in the Barce/oi~aTracrioncase. Let us
suppose, however, that further refinements in respect of standing are to be
introduced. In that case,are there not compelling reasons for preserving, as a
first priority, a universal legalinterest in the performance of obligations which.
by their very nature, are owed to the international community as a whole and
cannot be conceived of or stated in other terms? A denial of a universal legal
interest in respect of this classof obligations would necessarilyentail acceptance
of the unhappy situation, Io which 1havealready referred, where rules of sub-
stantive law would be wholly devoid of any means ofjudicial protection.
Mr. President, even if the doctrine stated in the BorcelortaTracrior,casewere
to be qualified so that itwas necessary for the Applicant to show an interesl
diîïerent from the international communitv at large. then there would still be
the strongest reasons to recognize a New zealandiegal interest. New Zealand
has been specially aficted by the French disregard of community standards.
We have ken s~ecially alTectedbecausewe are located in a region which sucers
in a way that otherparis oftheworld do not from the unwanted physical product
of French nuclear weapons tests. The South Pacific has been chosen as the
proving ground to establish French capacity for nuclear warfare. As was the
case in Africa in the late 1950s,the South Pacific region has repeatedly made
known a specifically regional concern and anxiety about this activity. In each
case,the Sahara and the South Pacific, the United Nations has taken note of the
co~c~rn of the reeion.
Within the ~&ïh Pacific area, New Zealand has had responsibilities in rela-
tion Io some of French Polynesia's nearest neighbours, the Cook Islands, Niue,
theTokelau Islands and Western Samoa. The New Zealandrecord of protest, on
its own behalf, and on behalf of those other countries and territories, is at least
as lengthy, as consistent, and as vigorous, as that of any country in the area.
There is no other country in which, over the years, French nuclear testing has
assumed quite such importance as a dominating public issue.
1can now deal more brielly with the question of New Zealand's interest in the
three remaining categories ofrighls for which we seekprotection. The third and268 NUCLEAR TESTS
authorities, in Iwo separate instances to which Ihave already referred. forcibly
denied the ri-ht of New Zealand ci~i~ ~s 10 exercise hieh -eas freedoms. 1 do
no1 feel it is necessaryfor me to say more to support the contention that New
Zealand kas a legal interest in this elemenl of its claim against France.
1conclude my statement, Mr. President, by urging on the Court the view that
New Zealand has a legal interest in the protection of each of the rights it
invokes and that in this and every other respect its Application is admissible. ARGUMENT OF MR. SAVAGE
ARGUMENT OF MR. SAVAGE
COUNSEL FOR THE GOVERNMENT OF NEW ZEALAND
hlr. S:\\'.4<;E: 3lr Presiderii ;,nJ hlemhcr, <if the Liuri As ihc .4lti>rnc)-
Gener.tl iiiJi~~te.l.11\\III bc ni? iashtde.i.ihl~>h thxi ih~.("<~i~rts. j.ir~$~i.ciion
unilcr the Cici~crdl.-\ci of?O Sepicoiber I9?d 1,Je;,l uiih the di,p~ir. ~uhniitied
1,)iiIn thc Ncrr %~:il.~!iJ..\ppl.~.iti.>n \Vc arc<II.'i>ur,c. i.illy awre ai ilii;i.'I
thal Ille que\tion\ I nill bc idnriderii~g li:i\e ;!lrc.id) hwn desli nith irilni a
number of points of view and al some length in the French Annex, in the oral
statements made on behalf of New Zealand and Australia at the interim mea-
sures stage of the two cases, and in the written and oral statements already
presented ta the Court at the present stageof the two cases. 1 would not wish to
weary the Court with a repetition of the details of the argument-and indeed,
the Rules enioin me not to do sa.
Thus, Idon01 propose ta present arguments in support of the first two of the
three propositions stated in paragraph 8 of the Memorial which New Zealand
mus1 satisfv to establish that the Court has iurisdiction. Those two are: first.
th31 \CU Le~ldnJ ,inil Fr~n.'e arc parties IO the Siaiiitetirthe ('ilurt niihtn the
inednins CI^ 4ri1:lc 37si ih.11in.truinent; and ir.~,,nd, thai the $ii,itier \rIii1%~
rcierrcJ 10 ihc Couri 1,a rni:jitcr nro\:ded ior in Article 17of the Gcncr,iI AL'!.
Those two propositions are, in'our submission, demonstrated beyond doubt
in paragraphs 9-24 and 88-99 of the Memorial.
What 1 do intend to address mvself to is the third orooosition. namelv that
the General Act is a treaty or convention in force beiween ~ei~ealand and
France within the meaning of Articles 36, paragraph 1, and 37 of the Statute.
ln a framework nrovided bv the law of treaties. I will draw on the main element
and some of the'detail of the General Act and its history.
We begin with thecentral and undisputed fact that New Zealand and France
acceded to, and became bound by the Act, on the same day in 1931. However,
the Act and the general Iaw alike recognize thal that initial commitment mighi
not be perpetual and unchanging. Both provide a variety of ways whereby the
parties might increaseor might reduce or might terminale their rights and obli-
gations under il.
As to the means provided by the Act itself, my reference can be brief. The
Act orovides an elaborate ranee of methods available to a nartv to limii its
obligations in the first instance-and subsequently to limit or exteid those obli-
gations. Bath New Zealand and Franceimposed certain limits on their commit-
ments in the first instance and then further~narrowed them in 1939.Thev had at
the time when these proceedings were commenced taken no further formal ac-
tion under these ~rovisions either to denounce the Act or to limit their obliga-
tions further. It k our submission that the limits imoosed in 1931 and 1939
are no1 relevant to this caseand accordingly the Act, by its own terms, is fully
a~p~icable in relations between New Zealand and France.
As to the general law, however, the position is diiïerent and requires furiher
consideration. Does the general law provide a means whereby France can be
releasedfrom its rights and obligations under the Act which, on its face, is still
in force and fully applicable?
The French Annex does not clearly identify the possible grounds. It is not
obvious what specific issuesdivide the parties. But four possiblegrounds which 270 NUCLEAR TESTS
might be invoked to terminate the obligations and the rights created in the
General Act are perhaps suggested:first, a fundamental changeof circumstances
in that the Act was an intearal Dart of the svstem of the ~eaaueof Nations and
. . -
lkll \rit1it.\txoiiJ. ihc super~tniii~ii~ipo~~ihilii) ofperi,~rni*nce.üg.iin re%uliing
frtiin the ~<ill.ip,e i~ithc Lc~guc; ihird, a ierniin.ition or uirh.irs\\al b) :ori\eni
of al1 the parties, as evidenced by their actions or failure to act; and, fourth,
desuetude, again based on the failure of the parties to act.
1begin this examination of the law relating to thesepossiblegrounds with the
Vienna Convention on the Law of Treaties, and, in particular, with Part V,
which is concerned with the invalidity, termination and suspension of the
operation of treaties. 1 do this, not because the Government of New Zealand,
which is a Party to the Convention. would contend that Part V is in al1resoects
Je;laraIor) uithechi.iing I.irr. bu1raiher il i,put ai ihc iureironi oiriur irgu-
ment bc:du~e\ie<I,>c<>iitcnJ,rir\i. ihdi in Iargc par1ii i. dc.ldrsior).,andseioriJ.
that to the extent that it may not be declaratory, il provides more, rather than
less, extensive powers to the parties to plead that their treaty rights and obli-
gations are at an end.
As to the first point, the Convention's declaratory character can be demon-
strated, quitebriefly, by the references which have already been made to it by
the Court and by mentioning the processeswhich led to its elaboration.
The Court has already made use of three of the provisions of Part V: first,
Article 60, relating to the termination of a treaty asa consequence of its breach,
in its Legal Coiisequeircefs or Statesof tlre Co~rtitrired Presenceof Soi,th Africa
MINanribiaOpinion, I.C.J. Reporls1971,at pages46-47, and also in the Appeal
reluting 10 llre Jurisdiclionof flre ICA0 Coimcil Appeal, I.C.J. Reports 1972,
at page67; second, Article 62, relating to fundamental change of circumstances,
in the FisheriesJurisdicrio,rcasesat the jurisdiction stage, I.C.J. Reports1973,
al pages 18and 63; and third, Article 52, relating to coercion in the same two
cases,reported in the same volume at pages 14, 58 and 59.
These ~rovisions and the others of Part V have been seenas beine in man"
..
re,pcii, 3 ii~~llrii.trion aie\i~tirig .ush>mdr) la* The re:i,oii, i,ir thi; .ir1%)be
fdund iiiihr proierwi uliiih led IO tlieaJaipii<in <~fiheCun\eriiion-the putiinr
ofState practice before the International Law Commission by governments and
by the series of special rapporteurs; the elaboration of draft articles by the
rapporteurs and the Commission which based themselves in large part on that
practice: the comments of States in the Leeal Committee of the General Assem-
hl) and in \iriiien ,iatenienir niade direiil! i<ithe Cuniniission. the rciain>idzra-
rion b) the C\immi\,it~n ofiis ilraits ,iiiJ rhr prepsratiun of:i fincil \et of irtiiles
in the linht of these comments: the deliberations. votes and decisions of the~ ~ ~
-
Jipl<,mati: :,>nierence uhiih adopieil the Cort\eniion: and the subrtqi~nl
dsiidri~ of Sidici in ciiing the Ca>ii\cnii,in in pra~tice:lnJ in beiominr p.iriicb r,i
it. Each aspect of this process could be coisidered at length to detëtmine the
customary force of the Convention. We need' not enter into such a lengthy
consideration for a number of reasons: because the process is well known,
because the Court has already had an opportunity to pass on elements of the
question, and becauseof Our second proposition relating to Part V-that is that
to the extent that it is not declaratory it confers more extensive powers on the
oarties to resile from their treatv riehts and obl~e~tions.
~- ~~~-~
Accordingly, 1will look at just one aspect of the deliberations of the Vienna
Conference. That is theelaboration, latein the Conference when the substantive
provi\ioni oi the C'on\cnti<in hsJ hem se1rlcJ.of /\riiilc 4 non-retro~.yi\ iiy.
'l'hi. ,\rricle Pr.,, iklt\ rh.ii the <;>nrtniii,iuiipply "<ml) t<,ireaiie5 uhich are
cancludeJ hy Sisic\ afier the eiitry iiito ftirie <if the prchcnt Coii\eniion aiih ARGUMENT OF MR. SAVAGE 271
regard to such States". This stipulation is made however "without prejudice Io
the application ofany rules set forth in the present Convention Io which treaties
would he subject under international law independently of the Convention".
The proviso itself-like Article 3 (b) of the Convention-suggests that the
Convention in Dartat leastdeclarestheexistinr law. And this viewwasex~ressed
with autliorii).lt the (.<inference hy 5tr ~uni~hrey \VaIJo;k, ihe ~hpr.;i Con-
siilIlinICIthe Ci~nierencr. Clcsiaicd tliat :
". ..he had been very comforted to hear many representatives at the Con-
ference speak of the convention asessentially a codifyinr instrument. That
was the right view if the convention was regarded essentially as a consoli-
dating instrument which took account of differences of opinion but found
a common agreement asto the lines to be followed in the law of treaties.
From that point of view the convention had, of course, a very great
significance in international law..."
"He had been verv glad to hear the re~resentative of Switzerland
emphasire the inter-témporal element in international law, because that
element was his particular preoccupation. Conventions such as the one
under consideration had their consolidating force. and even matters which
mighi or mighi n,ii h3\c bccn intcrri~iion.iÏl.isi the lime <ifihecodifying
conicniion. .might hr \o considr.rcd ai a I;itcr Jaic." (O//ichil H<".<>ci/
thi, U»irrrl .\'orilC'onJt~r<~~i,1 [hiLow o/'iicorrL.v. Vol. Ip.337.)
The Swedish reoresentative. Mr. HansBlix. would have beenone of those the
Expert Consultant had in mind, for Mr. BI& in introducing the tex1which be-
came Article 4 had earlier declared that: "lt was generally agreed that most of
the contents of the oresent convention were mer& exo;es&e of rules which
existed under customary international law." (Ibid., P. 3il.) Similar statements,
are recorded al pages 324, 325 and 334, being made by the representatives of
~zechoslovakia,Ir~~ and Cyprus.
The main causeof disagreement with this view of the declaratory force of the
Convention is Part V-that is the part which we are inviting the Court to take
into account. There were and are those who differ from the general opinion, and
who consider that Part V states too broadly and with insufficient precision
exceptions to thepactasis~t servo~idarule.
Two examples of this view are enough. The FrenchGovernment, consistently
with earlier statements on the work of the International Law Commission,
voted against the Convention for that very reason: to the extent that the Con-
ference undertook innovation, rather than declaration, serious difficulties al-
most always arose, and with fatal results. The difficulties were, it said, particu-
larly noticeable in Part V. My reference is to Notes ef6tu<les<locr!mefitairesno
3622 of 25 September 1969; a quotation to similar 'effect from the French
delegation's final speech at the conference is given in paragraph 144 of the
Memorial. My second example is drawn from the book on Tlie Vienrln Corrven-
riorr on tliLow of Trearies by Mr. 1. M. Sinclair, ~ecbnd Legal Adviser to the .
British Foreign and Commonwealth Office, and a member of the British
delegaiion at the Conference. In his first chapter-mainly concerned with the
relationship of the Convention to customary international law-he expresses
the view that in a number of its aspects Part V of the Convention involves the
relaxation of the grounds for termination rather than the codification of
existing law.
It is becauseany criticisms of Part V are almost always criticisms of the fact
that it allows too wide a freedom to parties to release themselves from their
obligations that 1do not consider il necessaryto pursue any further the question272 NUCLEAR TESTS
of the declaratory force of its provisions. For we submit-as we have submitted
in paragraphs 143-151 of the Memorial-that even under the supposedly
relaned rules stated in the Convention none of the four possible grounds which
appear to have been put forward by France about the continued force of the
General Act can possibly be accepted. 1now turn to consider the rules stated in
Part V, and to apply them to the facts ofour case.
Althouxh- Part V is concerned with the wavs in which treatv riehts an. ..
,ihligati.rn, c:iri bc hr<iughiIOan end, ilbegin, iiiih a rciilirmaiion of rliepocri~
rri>i,a~riutr,/iruli. Arii~lc 42. p3r:igraph 2. <if the Con\intioli pro\,ide, thdi ï
treaty may be terminated, denounced, withdrawn from or suspended only as a
result of the provisions of the treaty itself or of the Convention. Thus it was the
intention that the Convention should state the grounds exhaustively and require
a prescribed orderly procedure for their application. The International Law
Commission explained that the provisionwhich becameArticle 42, paragraph 2,
wasincluded in its draft:
". ..as a safeguard for the stability of treaties. to underline in a general
orovision at the beai-ninr o- this oart that the.. .continuance in force of a
irrity I, ihc riurni~l jiaic of ihingr nliiih m.t) hesei .,\ide. only [.ir r<.iult
of the ierms i~i ihe iredi). or] on [hi grouiids i<ii<Iunder ihe -i>ndiii.)n\
nro\ idcd ior in ihc nrcceni sriicles" IOllirkiI Kt~<>,,l. \ifrhi, U~riti,.l.\'~ir~utr>
'Conferenceon rlie L~W o/Treaties, ~&s;anrl Secorrd~e&ioirs, p. 56, Art. 39,
paras. (1) and (3) of the Commentary).
We have already seenthat the continuance in force of the General Act has not
beensetaside under the terms of the Treaty.
1now turn to consider the four possible grounds'I identified a little earlier-
fundamental change of circumstances, su~erveninr im~ossi~.lity. termination
or ir.ihdr:i\iïlb) ioiiheiit of all the ;nd der~iiudc.
Thc Couri hdsri-eriily dddrcçie.l it\çlfto iheqcertiun df in\ol\ing funJxnicn-
ta1change of circumstances as a ground for the termination or suspension of a
treaty. In the Fisheries Jurisdictioir cases,at thejurisdictional stage, it stated as
follows:
"International law admits that a fundamental change in the ciicum-
stanceswhich determined thepartiestoaccept a treaty, if it bas resulted in a
radical transformation of the~extentof the obligations imposed by it, may,
under certain conditions, afford the party affected a ground for invoking
the termination or suspension of the treaty. This principle, and the con-
ditions and exceotions to which it is subiect. have beenembodied in Article
62 of the Vienna Convention on the L~W if Treaties, which may in many
respects be considered as a codification of existing customary law on the
subject of the termination of a treaty relationship on account of change of
circumstances." (I.C.J. Reports 1973, pp. 18and 63.)
Has there been a fundamental change in the circumstances which determined
the uarties Io acceDtthe General Act? Has there been a radical transformation
of the exlent of the obliea..ons still to be oerformed under it? The answers to
ihe,e queriion. <an he diicrniiiied in pdri hy xn i\aniiiisiiiin <if thc pr,n.rioiii
ofthe A:! in the light oithe deniise oiihe Lc~cuc oi Sdti<~nsaii.1 the l'ermsnent
Court. and in oa;t bv considerine the-more-eeneral-relationshi~ between the
Act and the ~e&ue. '
As to the first-the specific references in the Act to the League and the
Permanent Court. The Act consists of four chaoters. Chaoter 1 orovides for
conciliation. It makes but two slight references to the ~ea&e of Nations. The AROUMENT OF MR. SAVAGE 273
first concernsthe Conciliation Commissions that are Io be set up by the actions
of the oarties. If thev are unable Io aereeon the memberswho are ta be iointlv. .
appoiited, then no fewer than four &thods of appointment are provided for-
the first two are that, bv agreement. a third State or the Acting President of the
Council of the ~eaguecoufd berequestedta make the appointment. If there was
no agreement on using those methods, there were two others. The second
reference to the League is similarly residual and of limited significance: in the
iih\enie of agreementto thcsontrary, ihc C.ommis\ion is to mcit a1the League's
headquartcrs or at wme othcr place sclccicd by ils President; the Commission
was emoowered ta reauest the Secrefarv-General of the League Io orovide
assirtan~c.Whilc, asue'say in paragraph 69of thc Memorixl. theie unimportant
provisions h3\e no\\ Idpscd.ihc~rspirit could 5tillhtiomplied with a prcsiding
oRcer of an a~~ro~riate United Nations organ could be asked ta make the
appointmenisand the adrnini\tratii,e a\siiiancë of the Unitcd Narians Se~retary-
Cieneral could be ~ughr. That thcir lapsc hdd no 5ignitiiant impact on the
sontinuerl omration of Chanter I i\ illustrated b, the facr rhat il u.3~hv e.wrcss
referencetoihose i,cry pruv~sionsof the ~encral-ACI rcgulating the constit;tion
and uorking of a conciliation commission thiit the French-Siamcrc Conciliation
Commission wasestablishedin 1947.
Those Governments were not deterred by the facts that the Acting President
of the ieague Council could not help them appoint the three neutral members
of the Commission, that the Commission could not meet at the ieague's head-
a.arte~ ~and that the ~ ~-ue -ecretariat could not be a~ke~ ~o~ ~~vide t.e
Commission with administrative assistance. That instance of the use of the
provisions of Cha~ter 1 by itself provides a com~lete answer Io the allegation in
~heAnncx that rhc C'hdpter fcllniih the 1.eaguc More generally. thélapsc of
much niorc cxtcn~ivc Lontinuing admini\trdtive powcrs sonfcrre<l on I.edgue
organs by other treaties had no effect on their continued force, asparagraphs 77
Io 78 of the Memorial demonstrate.
Chapter 11 of the Act contains a number of references ta the Permanent
Court. We have alreadv shown in Daraar.ohs-.to 18 of the Memorial that as
betncen partiel to the Statute of the preient Court 311the impdrtant rcfcrences.
and \<)meof thc lcss imp~>rtïnt one. as well, arc. by virtue of Article 37 of ihc
Statute, Io be read as riferences to the present Court. This is also true of the
major references,and again some of the minor ones, Io the Permanent Court in
Chapters III and IV.
The Court rose af 1p.m. FIFTH PUBLIC SITTING (11 VI1 74, 10.05am.)
Presenl: [Seesilting of 10VI1 74.1
Mr. SAVAGE: Mr. President and Members of the Court. When the Court
rose at the end of yesterday's session 1was addressing myself to the first of the
four grounds which the French Annex perhaps suggestsmight be invoked to
terminale the obliga-ions and the rinhts-created in the General Act. That first
ground, the Court will recall, was fundamental change of circumstances in that
the Act was an integral part of the League of Nations and fell with it. 1 had
divided my discussion of that possible plea into two parts and had begun the
first part-an examination of those particular provisions of the Act which refer
to the League and to the-Permanent Court. 1 had dealt with the references in
the first three chapters, and 1 now turn to consider the remaining references-
those in Chapter IV.
Two of the references-in Articles 46 and 47-were executed, so far as the
Leae-e was concerned. on the original en-rv into force of the Act. A third
provision-Article 43, paragraph I-empowered the Council to invite non-
members to accede; this power was exercisedon the adoption of the Act but, as
was usual. the oower was not exercised again. As a massive amount of oractice
in thc lh.;t?h )car\ II:,>ah,>*rt.the Iap\c\>f\u:h ;ipu\\rr ~,im\itstion hi,Ii.id nc
cilc~i ai üIIon ille <i>ntiniicJ f.)r:c oithc tredr). f,ir ihc p;iriIO il;or inJecJ on
the rights of subsequent accession of those coveredby the accession clause.
Some of that practice is mentioned in paragraph 79 of, and Annex V to, the
Memorial. A fourth group of provisions in Chapter IV conferred depositary
functions on the Secretarv-General of the Leaeue of Nations. Aeain. oractice
pursuant to the League ~Ssembly and General Assembly resoluti<ns, sétout in
Annexes III and IV to the Mernorial, rnakes itclear that these provisions create
no oroblem
~hat unbroken and undisputed practice, some of which is mentioned in
pararraphs 70 to 75of the Memorial and which was demonstrated in relation ta
the ~eneral Act itself earlier this vear. is Io the effect that the Secretarv-General
. .
of the United Nations is able to exercise the depositary functionsoriginally
conferred on the League of Nations. Thus the circular note from the Legal
Counsel advising of France's action taken in relation to the Act in January
expressly recalls:
". . th~t ~he General Act is one of the international~in~truments concluded
~nder ihc su>pi~c5 01'the Lcdgiie ,>fS~iioni. Cor rrhlsh ihç Ilnited Nation,,
uiiJer rc<oluiion 21 (Il of 12tehr~.iry 1946h;is 3cr.cpiril tlie cu,tody and in
rcspea oi \ihich the Sc~rciariai has hem charge4 with rhc t;tsh of pcrfurni-
ing ihc iunciit~ns periiiinliig i<is Sccreiaiisi. iormerly cntru5icd ii) the
Lrague of Nation.;" (Circular Note 3. 1974.Trealiei-l oi 6 Iehruary 1974).
If then we look al the text of the Act, the rights and obligations under il have
scarcely been afected al al1 by the demise of the League and of the Permanent
Court. The references involving those bodies are, except in Chapter 11, not
extensive: those in Cha~ter Iland some in other chaoters have beenmodified to
refer IO c~isiing insiiiution.; and the fcu 11131remin ifire in~~in~cqucriii.iI.'1he
liick ofimpiici ofihec~cnisof 1946on ihç;i~ni.nucJ fair<cof ilie Ciencril Act 1s
illustrated in a more general way by the fact that similar and more extensive ARGUMENT OF MR. SAVAGE 275
references to the League in other treaties-by way of conferring wide-ranging
administrative powers. of powers to invite accessions, and of depositary func-
tions-have not been held to be fatal to their continued force. On the contrary,
the evidence-some of which is contained in paragraphs 70-80 of the Memorial
-shows thatthesetreaties have remained in force.
It cannot therefore vossiblv be said. to return to the wordine of the Vienna
Conieniii>n. cndi)rsed'by the.~i>urt. thai thcre has been a rïdikl tr~nîforma-
lion oltheeiient of the obligÿtion~still Iok wrfc~rn>ed.IndeeJ. kas therc e\,en
ken a fundamental change-of the circumstances that constituted an essential
basis of the parties' consent to the treaty? The Government of New Zealand
would submit that there has not-principally for the reason already indicated,
that is that the Act makes so little reference. and inconseauential reference at
thai. Io the I.eague. But the French argumen; is alio a brojder one. seeking to
put the Gcneral Act in the ideologiial contcxt ofihe Leÿgue s,stem. and I now
turn to consider this second. widër asoect of the oos5ible~coniention that there
hasbecii a futidamenial changeofcirc~mstanies. '
The paciiic sctilcmcnt of disputes. sayi ihc Anne%. hsd necess~rily, in that
systern. to accomnanv collective securitv and disarmament. The Memorial. in
bragraph, 36-67,.hrines rogether maicr~.aliihiih >howsbeyonddispute ihat ;he
continued exi\tence or the I.cague and the PermanentCourt uas not. becauscof
the general relationshin betweën the Act and the Leaeue svstem. in anv wav an
essential basis of the consent of the Parties to be bouné by the A&. More
specifically, that material shows four things, among others.
1. That while there was some link between piaceful settlement on the one
hand and collective security and disarmament on the other, the nature of the
link was never put in legal form and is not manifested in any way in the Act. 1
would remind the Court in this context of the comparison made ktween the
Act and the ill-fated Geneva Protocol of 1924 by the Agent of New Zealand,
Professor Quentin-Bdxter, at the interim measuresstagelas1year. The Protocol
made explicit the links between disarmament, collective security and the
League's procedures for peaceful settlement; the Act by delikrate contrast
doesnot..
2. The basic avvroaches to disnute settlement in the Covenant and in the Act
were separate and-distinct. hile the Act was private and bilateral, the League
system was public and recognized a more general interest. The Act was not in
its wording or in the oninion of its draftsmen a constitutional document. It was
not, said ~r. Poiitis, the Rapporteur of the First Committee, "a sort of annex
to the Covenant"; it regulated, said Mr. Rolin, procedures older than, con-
current with but not comoetine aeainst. those of the Leaeue: the relevant vas-
. -- - .
\agci app~ar more fully in parilgraphs 43 i~nd47 <ifthe hlemorial.
3. Thi5 \eparÿtech;irscter uascmplia\i7r.d by the faii th.tt non-memheri ircre
invited and. indeed. encouraced bv various actions IO accede. or to conclude
similar bilateral treaties, assime oi them did. The Act could in fact have come
into force ktween Iwo non-membersalone.
4. The maior concern of the draftsmen and of the varties about the relation-
ship heiueen.thc Ait and the Ledgue systenl uÿs IO5;e IO itthat complications
ucre nui caured hy the possible appli:abiliiy hoih of thcm !O the one dispute
and accordingly rules and methods should k available to prefer one-usually
the Leae-e-to the oiher.
To conclude this consideration of a possible invocation of the fundamental
change ofcircumstances principle Imakethree points:
I. The specific referencesto the Leagueand the Permanent Court in the Act and
the more general relationship between the League and the Permanent Court276 NUCLEAR TESTS
and the Act cannot possibly justify a conclusion that the continued existence
of ihe League and the ~erm<inrnr Couri constituted an essential basis of ihc
ionben1 of the p~rtiesto bebound by the Act.
? The ektent of ihe obligations or the parties io the Act ha\.e no! heenrïdically
transrurnied: indeed the obligaiionï in essenceare unch3ngeJ.
3. There hns been no e\press invocitii>ti of the principle nnd the appr<ipridie
procedures havenot even beeninitiated by France,
In short a plea of fundamental change of circumstances is completely without
foundation.
1now turn. Mr. President. Io the second of the four oossible erounds which
the Annex suggested mightk invoked, namely superbening impossibility of
performance. 1 have included this as a possible ground for two reasons: first,
becauseof the reoeated referencesin the French Annex IO the lack of effective-
nessof the Art r&ulting rrom ihe dcmirc or the League sysieni and, sesondly.
beiause of ihe inieresiing failure oi ihc Anne\ tu refer expliciily io the docirine
of fundamental chanae of circumstances. The exolanation of that failure seems
Io lie in a reluctancelo invoke the broad docirke and a wish Io depend on a
related. narrower rule, lessinimical ro the stabiliry of treaty relationships. That
narrower rule could only be suoervenina -.oossibilitv. The Vienna Convention
in Article 61 pcrntils théini,uc.tion tif inipossibilit) il perlurmrn,,e a\ a ground
for termindiion or u~lhdraual: '.lithe impo\iibtlity rïsults i'roni ihe pcrnianenr
disappearance or destruction of an obiect indisoensable for the execution of the
treal;." The League and the Permanrnt couri have permanently disappeared.
But, Mr. President, for the reasonswhich appear clearly from my consideration
of the fundamental change of circumstances argument. itwouldbe nonsenseIo
suggest either that the Act cannot now be performed or that the League was
indispensable for ils execution.
So rnuch then for this second oossible er-und. 1 now come to the ihird and
fourth whiih. for a reüson u,hiih uill apprar. ian beconienienily con5iJcreJ 10-
gethcr. The grounds. the Couri uill recall. are terniinaiion or uithdraual by
consent of al1 the oarties. as evidenced bv their actions or failure to act. and
desuetude,again bjsed onthe ~dilureorihe~arties toûct.
The firbt or ihcse grounJ\ i.;ekprcsrly recogni?ed by ihe Vienna Coiivention
Article 54 orovides for termination ofa trealv or wiihdrawal from il either in
a.xordance iiith ihe ireaiy's trrnis or by con\ent of al1the parties alter c<in>ulia-
iioit uith the oihcr c(intr~ctiitg Stlte5. The 1nternatii)nsl Lstr Comnilsslon
considered il imnortant to underline that when a treatv is terminated otherwise
ihan under in pro\i\ioii~. the cuiisetii i>fall the piirticr is nexssary. The termi-
nation ofa ireai). itsliid in p~rsgr~ph 3or iii commcniary to ,\riicle SI of the
1966drart (nou Article 54). nîcesiaril) deprives a11the parties or a11ihcir righir
and. in consequîticc, the con,ïnt of al1or them is necessary.The Pdcts.home of
whiih I uill re~ieu in s moment. jre in ii~i coniradiciion or any suih conseni
havina been asked for. let alone riven. The strict standard oforoof of such
consent, if il is tok fohd in the non-explicit praciice of the pariies. is empha-
sized by the refusal of the Vienna Conference to allow even the modification of
treaties by conduct, a matter mentioned in paragraph 147of the Memorial.
The final possible ground-desuetude-is not recognized in the Vienna Con-
vention as a separate ground for the termination of a treaty. Rather, as the
international Law Commission oointed oui in the statement auoted in Para-
graph 148of the Memorial, the légalbasisfor a plea of desuetude isthe consent
of the parties Io abandon the treaty, a matter dealt with in what is now Article
54. The Iwo arguments-terminalion by consent and desuetude-require us
then tosearch for the parties' intention. ARGUMENT OF MR. SAVAGE 277
What do the facts show? Do they show a consent ofall the parties to terminale
the General Act? It is submitted that on no possible construction can they be
said to show that conient. Indeed they cannot be said even to provide evidence
of an opinion on the part ofany of the parties, not involved in litigation. that the
Act is no longer in force. There ismuch evidence 10the contrary.
T~~ ~ ~~ ~ ~nn~x considers the debates in. and the action of. the General
Assemhly in 1948and 1949 in prepari& the R'evisedGeneral ~ct; the Certoin
NorweaianLoanscase;the lack of action under the final clausesof the Act in the
oast 34vears: and the nractice relatine to the ontional clausesvstem
~hesématiers have'all been considered in <heMemorial iaparagraphs 100-
112. 121-123. 115-120 and 181-187 resoectively. Some of them were also dis-
cussedal theinterim measuresstage. ~therefore do no1 propose to cover their
details. Rather, 1 will look more broadly at three matters-the 1948 and 1949
United Nations action. other practice concerning the Act and related bilateral
treïties olpeaceful ,ettlement.~nd third. theoptionîlclause prîctice.
The action takcn in 1948and 1949to establish the tchi ol the RevisedGcncral
Act was. in one respect. unlike that taken in relation to the other League
Ireaties, which were considered with a view to their amendment Io take accoünl
of the demise of the League and the setting-up of the United Nations. In those
other cases. nrotocols were drawn UD bv various United Nations oraans with
the purpose 8f amending, for the parties to them. the League treatyto which
they related. The Revised General Act, on the other hand, is not, despite ils
title, a revised or amended version of the original General Act. This appears
quite clearly from the report of the lnterim Committee set out in Annex VI1 10
the Memorial. The differenl action resulted from a distinction made in the
resolutions. contained in Annexes 111and IV. adopted bv the United Nations
Assembly and the League Assembly in connection'with ihe transfer of certain
functions and powers of the League. The distinction thus drawn was between
functions and-oowers of a technical and non-oolitical character and those
ha\,ing a politicîl chîracter. The resolutions gencrally Pavourcd the transfer Io
the United Nations organs of the former group of pouers, but a neutml position
was adonted on the latter. Under the ~"ited Nations Assemblv resolution, the
~sscmbi~ would examine or would refer to the appropriate ilnited Nation3
organ any request from the partie5 lhît the UniteJ Nation\a\\ume functions of
a political character. As the Report on the Revised Act shows, the contention
was put forward that, accordingly, a request from the parties was neededbefore
a Revised Act could beestablished.
It was met bv the argument that such a reauest was unnecessarvsince in ils
final lorm the ~evised Act did not supplr.mcni or modify ihe 1928~~1uhich il
lcft intact: an entirel, new and independent contractuïl relationship uîs being
created. This contention and ansher assumed. of course. that there were
existing parties to an existing treaty who could be asked. This distinction be-
tween the Revised Act and the other amending protocols is also recognized in
the way they arerecorded in the annual volumes of the United Nations publica-
tion, Multiloterol TreatiesNI Respectof whichthe Secretary-CeneralPerforms
DepositoryFuialions,List of Signatures,Rarijicalions,Accessionse,tc.
This action of establishine -n instrument auite sevarate from the original
trcîty. which was left intact. u,as accompanicd. as the Memoriïl e\,idences in
paragraphs 101-107, hy a completely consistent series of statements. especially
~. the~-7o~~~-~~f the n..nosal. ,he deleeation of tlele-.m. to theetlecl thît the
General Act remained in force. It was impaired in some minor respects, but il
remained in force. On a proper interpretation, such as that proposed in para-
graphs 108-112 of the Memorial, the resolution adopted by the General ARGUMENT OF MR. SAVAGE 279
Thev are mentioned in va.a~ra-hs 121 to 123 and 125 to 126 of the Memorial.
B"t it is not only France whih has indicated in the period since the demiseof
the League that il considered itself bound by the General Act. At least another
six of the oarties haveindicated in their treatv lists and in other formal actions
that they consider the General Act still to hé in force. The relevant practice is
collected in Annex IX to the Memorial, and also in paragraphs 127and 136of
the Memorial. At least another two. that is Belai-m~and the United Kinedom. -
expresred the same view in the pri)cïsJings which led to the prepîratii>n of thç
Re\ised Griieral Ail. Before theseproceedingr ni] p~rty ~ad ercr sugg- -edthat
the Act waç not in force.
So much for the positive practice relating to the Act: ilsupports absolutely
without exception theview that the Act remains in force.
The French Annex also calls attention to the silence of the oarties. to the fact
that theiehad been no formal action taken by the parties under the final clauses
of the Act since 1939. Such action has, of course. subsequently been taken by
two States. But in any event how significant is that silence? First, the ~ct
requires action no1silence to bring il 10an end. Second, similar silence in other
cases,some of which are mentioned in paragraphs 118and 119of the Memorial,
has not been evidence of lapse, and, third, theevidence gathered inthe Memo-
rial and briefly recalled here shows that several of the parties have, especially
since 1946, taken action and made statements indicating that they consider the
Act still to be in force: there hasnot beensilence.
Finally, in thisexamination of State practice, bearing on the question whether
al1 the varties have consented to the Act's termination, 1 would refer to the
pra:tice uncler the optionîl clause. The French iùntention is thai sa long as ihe
Act wÿ, clearly in force the scope of the acieptance of the Court's jurisJicti<in
under the two sources bv individual States was always similar. But. il is said,
after 1940 this paralleliSm is broken. This alleged practice is interpreted as
indicating that the Act isconsidered by the parties to be no longer in force. The
Agent will touch on some lenal aspectsof this argument. 1 would like ta make
jus1 four iactual points u,hichare bîsed on themïÏerial in paragrüphs 182 IO 185
ofthe h1emi)riîl and Anne\ XI.
Li During the 1930s no fewer than five States, bound by the General Act,
were at various points of time not bound by declarations under the optional
clause.
2. All the pairs of instruments were subject to different time-limits and condi-
tions for termination.
3. Becauseof the diferina r-servations attached to them. many of the vairs of
instruments ioniniiited the pari) in qur>tionIO diIli-ring arcar of jurisJiition.
4. A11thedeclar.iii~~n~made undcr iheoptia>nal clause purporied IObe no more
than iust that: thev did no1vurport in any way to relate to the Act which. the
court hardly needsremindjng. sets out specific methods for modifying and
terminating ils provisions.
Thefactual basisfor thecontention jus1doesno1exist.
1 would suhmit in conclusion, Mr. President, that none of the four possible
grounds for arguing that the Act is no1in force can besustained. It doesprovide
this Court withjurisdiction to deal with the dispute referred to the Court in the
Application filed by New Zealand. ARGUMENTOF PROFESSOR QUENTIN-BAXTER
AGENT FOR THE GOVERNMENT OF NEW ZEALAND
Professor QUENTIN-BAXTER: Mr. President. Members of the Court.
When one asks the Court to turn its attention from'the system of the General
Act to that of the optional clause, there is inevitably somesenseof moving from
a major to a minor premise. The General Act, read in conjunction with Article
36, paragraph 1, of the Statute, stands four-square and self-contained as a
source ofjurisdiction: no reservation blurs its bearing upon the present dispute
-~twe~ ~New Zealand and France. In the case of t~e ~ntiona~r~~~~se. on the
other hiind. ihere is.a5 ue al1knoiv. 3 bro~dly worded and 13conicrcservaiion
of undoubied relevance Io the aue4ion ofçstïhlishin~ the Couri's iurisdisiion
-
-nd-r Article 36. . -.era~h 2..of the Statute.
Naturally, the New Zealand Government does rely more heavily on the
source of jurisdiction that is not qualified hy any material reservation and we
could withconfidencetake Our stand on that firm ground alone. We might then
set aside the task of construing and applying the reservation made by France
under the optional clause as to "disputes concerningactivities connected with
national defence". We do not take that course. We plead as a separate and
alternative source of jurisdiction the bond created by the declarations made by
France and by New Zealand respectively under the optional clause; and we do
not make this plea perfunctorily.
Before I begin to discuss the meaning and eiïect of the French reservation, 1
should like to look briefly at the French contention that the two sources of
jurisdiction are intertwined and then to develop some larger considerations
which may provide a frame of reference for more detailed submissions. The
French Ambassador's letter of 16 May 1973 to the Registrar insists, after
referring to the French reservation, that:
"... in the oresence of this formallv . .ressed will to remove disnutes
concerning activities connected with national defence from the purviéw of
the Court, no opposite conclusion asto its consent to thejurisdiction of the
Court for suchdisputes can bedrawn from theGeneral ~ct of 1928"
The last section of the Annex to the French communication develops this con-
tention and the arguments there raised are reviewed in Part IV of the New
Zealand Memorial.
The French argument assumesthat the dispute which is the subject of the
present proceedings falls within the ambit of the reservation contained in its
declaration under the optional clause. We do not admit the assumption, except
for the purpose of testing the propositions built upon it. In so far as the argu-
ment allegesthe neglect and desuetudeof the General Act, it has beenanswered
by the Solicitor-General who s~oke before me. He has also summarized the
p;oofs. set out in paragraphs 181 to 186 of thc Neu Taland Mcmori3l. ihat
there is no foundaiii,n in fa.? for the noilodia paralleli~m bcfore 1916bctueen
commitments under the systemsof the General Act and of the optional clause.
The Solicitor-General has. moreover. shown that durine the-lifetime of the
United Nations and even when itself the subject of discussionat meetings of the
United Nations, the system of the General Act has been reaarded in the same
way that its founders had conceived it-that is, as a separacesource of obliga- ARGUMENT OF PROFESSOR QUENTIN-BAXTER 28 1
tion, distinct from and additional to other methods of peaceful settlement,
including the system of the optional clause. What, then. remains of this argu-
ment. which in one formulation entails an almost metaohysical conceotion that
reservations under the optional clause could silently attach themselbes IO the
General Act at the expiration of the five-yearly periods after which reservations
Io that Act mav bevaried?
In our subhission, Mr. President, al1 that remains of the French legal
argument is a curious and unsolicited testimonial Io the validity of the General
Act. Ilwas a desoerateex~edient to suEeestthat in some wav there could have
been a fusion of'the two jistinct meth& of approaching the Court provided
for in paragraphs 1 and 2 respectively of Article 36 of the Court's Statute. Il
alTronÏs al1le-.l orincide to contend that eneaeements betwcen States. arisinz -
under treaty instruments, may be varied at the will of individual parties, except
under the conditions and in the manner prescribed by the treaty instrument in
question. If it were necessaryto incur those risks to assail the ~eneral Act from
without, that issurely an indication of the Act's inner strength.
Nevertheless, Mr. President, 1 think it right ta recognize that this French
argument may have another motivation. Sometimes there may lie behind the
forms of legal pleading a kind of cride coeur, complaining of a real or imagined
grievance for which the law provides no remedy. Sa. in the Riglrr ofPassage
case,the Government of India may well havefelt it to be unjust that the Govern-
ment of Portugal should take it by surprise by filing in quick succession a
declaration under the optional clause the scope of which could be drastically
reduced ai anv time and an Aoolication Io commence nroceedines aeainst the
- -
Government of India whose déc'larationhad already beénin force for 15years.
Even in this extreme situation, the Court reiected by overwhelming majorities
the lndian Governrnent's first four orelimina;~,obie.hons. One brie?auotation
will suffice. The Court, in dealing with the second preliminary objection said "il
is clear that the notions ofreciprocityand equality are not abstract conceptions.
They must be related to some provision of the Statute or of the Declarations"
(I.C.J. Re-ports 1957,p. 145).In short, no treaty creatinga system ofjurisdiction
can, if it allows each Party to determine unilaterally the extent of its own com-
mitment, achieve conditions of absolute justice: it can work fairly only within
the limits that itsown rules prescribe.
For this reason, even if the French Government should feel that, at some
level ofjustice or morality,ilought ta beexcusedthe performance of the duties
that ils treaty obligations create, that is nota feeling which can weigh with the
Court. Moreover. the situation of the French Government is. from a strictly
eauitable .oint of view. hard~, as~omoelline ..that of the Indian Government
in the RI,& <,/Pa«apr case.Thst will emerge3sae re\.,eu the changing French
position, paytng rpcciiil attention to conternpor~ry 1-renih Iiccounts. PartIIIaf
the New %eliland hlemorial. dealing with the que$tion of thc Court's jurisdic-
tion under the optionlil clause. as far a\ po\\ible rclies on unimpc~chable
trench \ources tochronislc thcchangingattitudesof France, si) that there is the
lessrisk ofOUF misunderstanding theabsent Respondent.
Paragraphs 170 and 171 of the Memorial recall that, after the failure of the
French Application against Norway in the Certaiii Norwegiart Loa~rscase,
France-and a number of other countries-soon abandoned their so-called
"self-judging" reservations. In the new Frenchdeclaration of 1959,reservations,
including one relating to national security in time of crisis, were objectively
formulated. In 1966 the reservation as to activities connected with national
defence was added, prompting Feydy's remark, referred to in the Memorial at
the references1havegiven, that France was tending ta take away little by little282 NUCLEARTESTS
with one hand what shehad given ta international justice with the other hand
hy renouncing her "self-judging" reservation.
Mt. President and Members of the Court, 1do not suggest that this French
behaviour was in any way abnormal. States come to the International Court of
Justice through their own consent, given specially for the occasion, or more
generally by prior acceptance of an obligation ta submit a certain range of
disputes to judicial settlement. The point 1 am concerned ta make is that
sovereign States, by the exercise of their own free will, create the situations in
whicb there may sometimes seem ta be a discrepancy between law and justice.
Any system of prior acceptance of the Court's jurisdiction ta an extent deter-
mined hy unilateral declaration bears most heavily on the States which are most
generous in the obligations they accept. It is a natural consequence that the
svstem makes no a~~eal to manv States, and that most others pepper their
aiceptances with anassortmen'l ofreservations. It is also only a smallitep from
the policy that accepts, for its own sake, an obligation ta adjudicate, ta that
which seeks ta ensure that other declarants are caught hy the bond of jurisdic-
tion, while the first State maintains its avenues of escape in areas of special
vulnerahility. It was in this sort of manŒuvre-the gladiatorial art of the net-
thrower with the trident-that France appears ta have ken engaged in al1the
changes in her declarations under the optional clause from 1947 until 1974. In
this there was nothing unusual, nothing that fellbelow contemporarystandards.
The Australian and New Zealand Applications in the present proceedings
have, unfortunately, been met by France with a response that has a new and
more disturbing quality. It is, of course, the French Government's right,
recoanized hy Article 53 of the Statute. not to apcear in these proceedings: but
that'dovernment has an undoubted légalobligafion ta comdy with thédeci-
sions that the Court reaches in the Respnndent's self-impnsed absence. She has
not done sa in the case of interim measures, and it is her future willingness ta
meet that obligation that France now places in douht. The Government and
people of New Zealand have too high a regard for France ta believe that she
will ever allow matters to reach that pass. Mv Government will wrsist, through -
thesc procccding\ and in other pe!~cful and unemotiunal uays. io resol\e thé
prewnt disputc Il musr. houc\'er. k noied ihat ihe whole prinsiplé uf inter-
national adiud..xiion ir ieop!rdizcd if the dc\ire to escane the bond oi iuri;dii-
tion becomësa determination to break that bond.
Mr. President, when States consent to the jurisdiction of this Court they in
effect accept an obligation ta look into a mirror, to know the truth about the
legality of their own actions and ta share that knowledge with the world. Few
indeed are the States that are prepared ta accept that obligation generally. So it
is that France and New Zealand. and the others big and small. operate at
fluctuating levels. sonietimcs agreeing ro submii iheir-ltctions 13 iniependcnt
scriiiiny, mure ~~fisseking refuge in ihçir sovcreign right not to k judged.
Thé Cdurt iisclicannot h re\pon\ible for !hi>situation. Ii un only offer iti
services to those who acceot them and. in daine so-,mirror the truth as clearlv
as the truth can be revealed by a large and representative hench of eminent
jurists. More often than not in its contentious iurisdiction the first question the
court must answer is whether the ~es~ondent is bound. That enquiry may
engender resentments, and a tortuous passage through a thicket of reservations,
sa that it seems quite out of key with the solemn issues of substance that the
case entails. Even so. the Court's co~ ~ ~o~ action cannot be deRected bv the
petiine~ses and diwuuragémcnts ii mliy cnzounier. II ha( 10 hold the b~llince
exazily. irnple~dingno Siaie uithoui 11sconscni, and ~lli~wineno Siaie thai hlts
consented to resilefrom its commitment. ARGUMENT OF PROFESSORQUENTIN-BAXTER 283
1am now in a position to make more extensive useof the material gathered in
Part III of the New Zealand Memorial. The enauirv into the meaninn of the
French reser\,diiun can tlirou no lighi upon the ;tat"r of rhe juriirli~ri~>ndl rie
betucen the Applicant and the Rerpondrnt undcr ihc ,),rem oi thc Gencral
Act: it can. if mv suhmissions are sustained. onlv add a second and auite
. .
separate so"rce of jurisdiction. Yet this study has, as 1 have already tried to
indicate, a good deal to do with Our general appreciation of the nature of this
disoute and the oositions of the resoective ~arties. Moreover. the effort to inter-
pret the reservah will lead me into paths-which havenot hien travelled by the
Court in any previous case though it may well be necessary for the Court to
travelthese oaths if it becomesthe fashion for Statesto make their acceotance
of the optional clause dependent on reservations couched in such condensed
language that there may appear to be a wide margin of appreciation as to their
true meaninr!,
We may 6ke as our starting-point the clues which the French Ambassador's
letter offers us. The phrase, "disputes concerning activities connected with
national defence". added to the French declaration of acceoranceon 20 Mav
1906.ccriainly ;unstituiei the e.;çentiaIJiITerenccbciwen tt;c present ie~t an2
the irxt,iithe Ilc~lar~rii~nliled on IOJuly IYSY. Ir inust inilrvrl he as.;urnedthdt
the additional words were intended to extend the area of the French reserva-
tion; the Applicant also seesno reason to contest the French Ambassador's
contention that the French nuclear testsin the Pacific form part of a programme
of nuclear weapons development. There the helpfulness of the French com-
munication ends. The Ambassador says that, becausethe French nuclear tests
in the Pacific form oart of a programme of nuclear weapons development, they
must: "constitute oie of th&e activities connected withnational defencewhich
the French declaration of 1966intended to exclude." Wecannot make that leap.
The Court odjourtred /rom 11.20o.m. to 11.45o.m
As one begins to look at the commentaries on the French reservation, one is
immediately struck hy two things. First, the writers are concerned about the
lack of precision, and in this paragraph, 1 am citing material from paragraphs
167and 172 of the New Zealand Memorial. Even before the 1966reservation
was added, Vignes speaksdisapprovingly of the vagueand imprecise domain of
the 1959 reservation. Feydy records that the 1966amendment could leave the
bystander perplexed: the meaning of the reservation is not at first sight ab-
solutely clear. Rousseau also refers to the far-reaching and imprecise terms in
which the reservation is formulated. Secondly, the writers record that in 1966,
as in 1959, the reservations were launched in an atmosphere of tight-lipped
official silence.
If one adopts a textual approach to the reservation, one reaches the same
impasse as the French commentators. No rules of construction can determine
for a wide range of situations the meaning of such terms as "national security"
and "national defence". If the Court concludes, as we conclude and as the
French commentators haveconcluded. that itis not possibleto fix the meaning
of the 1966reservation simply by reference to the words it uses,the Court will,
in accordance with the ordinary rules of treaty interpretation, look to the con-
text. includin- the surroundine -ircumstances. ~~reover. asthe text in auestion
is a iinilxir.r~l dc:l.ir3tion an,! iliere i.: n<ielcnient of rnutualitv in the choice of
the mords ituisi. ir 1.r<ii,intcniporary evi.lenie i~fIYrïnih intention thar the
Couri'ccnquiry will principïlly he dirccied. Yei herealso thcrr is a road-blosk. ARGUMENT OF PROFESSORQUENTIN-BAXTER 285
concerning its responsibility, France had in good time changed its declaration
under theootional clause.
We are léft with the gap in the logic-and with that peculiar and persistent
notion that the case has to be argued backwards. The French commentators
tend to find. asthe Anolicant finds. that there is no wav to make this reservation
yield an ascertaine; heaning without resort to exirinsic evidence; and the
choice of an extrinsic measuring-rod is difficult. As 1 shall go on to show, the
most obvious choice leadsto subiectivitv and conseauent invaliditv: and there is
..
notlling in ihc rccord of sontenipi>rary puhli; riaicnienis or Ji~<umenis ictix ihe
meaning ol"n~iiondl defcnx" uitliiria more niiiJesi cornDar, I\e\erthelesç, a\
is pointid out in paragraph 172of the New Zealand ~emokial:
"Itwould ...be wrong to discount the strength of the French Govern-
ment's intention to achieve, by replacing the 'self-judging' reservation, a
more secure bond between Franceand other States oarties to the ontional
clause. In general, the commentators acknowledge and applaud this inten-
tion, while expressing an undertone of anxiety about the countervailing
intention to maintainéxtensive and ill-defined aieas of reservation."
Already in 1959, Vignes, and here 1 am quoting again from paragraphs 167
and 173 of the Memorial. was expressing a fear that the reservation as to
national security in time ofcrisis might be Cowide asto encompass invalidity-
though he reaches in the end a more reassuring conclusion. Feydy-1 refer to
.araa.aph 172of the Memorial-characterizes the 1966reservation asa further
retreat behind the protective shield of sovereignty: neither he nor Rousseau
find a method of defining the extent of the encroachment upon the Court's
competence. The conclusion is weak: it must besupposedthat the reservation is
broad enough to cover nuclear tests in the Pacific, because that is what the
Frenchauthorities must havewanted.
In Part IIIof the Memorial, the Applicant has considered ways in which the
gap in logic could be bridged. tf one looks at the policies of the Fifth Republic,
there is certainly a concept of "national defence" that is clearly delineated, and
that features the develooment of nuclear weapons. It a..ears to be well des-
~,r#hcdin a rpeevhmade bs PrerJent dr. ~dullc;quoied ai somc lengih in vira-
gr3ph 169of ihe Neu Zealand blemori~l. As desiribed ihcn. and on nian) other
occasions before and after the makinr . of the 1966 reservation. "national
Jefenic" \ras usedin 3 senje <,immen,uraic uiih the rrillxnd dcsiin) 01'rrancc
In ihdi scnsç.the term "n,iii<in;rl Jcicnse" musi ha\c procurzd the inv~lidiiy of
the reservation in which it was used
hlr. I'reiident, hlenihcr~ oi the C.,urt. h>a pro.,cr\ of eltmin;liio1 relurn to
the one a\cnue of cnquiry u hicli h~i not heencuh~usicd-ihai ir.the wggcsiion
ihat thc 1960reiervaiion ua, rr'laicd io Fran<e'.i chmgcd aiiiiudc towardr the
Niirth Atlantic Treaty Org3nii.ation. as \\el1 as io ilic pl~n for Pa;~jlc nuclrar
tesiing Betuecn 8 and 10 March 1966,FrdnscgA\r lorm31 no1i.Y Io her NATO
allies that Shehad. in effect. decided to ~reci~itate a revision of the orranization
created pursuant 'to the North ~tlantic ~reaty; and, in this conn&tion, the
French aide-mémoire addressed to other States members of the North Atlantic
Treatv Orranization referred to "al1 the agreements, arrangements, and deci-
sionsrnadé after the signature of the treatyl whether multilaterdl or bilateral in
form". The aide-mémoire went on to say:
"Undoubtedly, the possibility of undertaking negotiations to modify by
common accord the arrangements in force could have been entertained.
The French Government would have ken happy to propose this if it had ARGUMENT OF PROFESSORQUENTIN-BAXTER 287
that indeterminate area to which Briggs referred when, speaking in reference to
a former British reservation, he said that: "no rules of international law can
determine whether a question affects the national security of a State" (Memo-
rial, para. 166).
Vignes, quoted in the samesection of the New Zealand Memorial and writing
in reference to the French declaration of 1959,makes the same point when he
says that the application of the reservation on national security will be well-
founded. only if the attack on the securitv of the nation is unmistakeable.
Otherwise, there is a danger that the reserGation will be extended excessively
and in a manner difficult to control. In short, weare onceagain trembling on the
brink of subiectivitv: the auestion whether the reservation js ao~licable entails a
factual appraisal which isbeculiarly within the province of thé tat coencerned,
but the Court must be in a position to judge that the State's appraisal meets
some test of ohiectivitv
I1erh.ip\ the 1959 rc.,er\;ition .I\ie, ek3;tlynicet ilicie requirementi: ili\
pe.uli~rl) uithin ilie pr,i\in;eoi the Si~ic.<,>nccrneJ 10iuJge uhïiher a \iiua-
tion affecting nationalsecurity is one of crisis; but it is probably possible for the
Court to make an objective appraisal of the State's judgment that the crisis
requirement has been fulfilled. The 1966 reservation offers the Court no cor-
resnondine means of reeulating the wav in which the reservation is aoolied. .. ,
uniess theterm "nationaï defence" has, jn the particular context, a meaning so
ordinary and undebatable that the necessaryelement of objectivity is inherent
in the definition itself.
If one applies this dimerential analysis to the casesof the NATO treaties and
of nuclear testing, the following conclusions sèemjustified. The 1966 reserva-
tion aooears to be exactlv a~olicable to the case of the NATO treaties. first.
becau;; the notion of nat.ionai defence has in this context such a conventional
and ordinary meaning that it satisfies the test of objectivity; and, secondly,
becausethe activity in question is wholly and exclusively a matter of national
defence. The case of nuclear testing, on the other hand, scarcely satisfies either
criterion: whether or not it is regarded as a maiter of national defence will
deoend lareelv on the attitude of the State concerned: and it certainlv is not
only a matkr of national defence.Indeed, aswe havealready seen,in the.policies
of the Fifth Republic nuclear weapons development has a significance tran-
scendine-.v normal or ordinarv meanine of -ational defence
Oihcr conrideraii<~n\ reiniorie rheie Ji*iin~iioris lirsi.the 1h;k oi sny ion-
temriorane.>u\ oifi;i.i;oninleni ui)uii rlir' iiiednm<iiihc 1906recr'rt.irion doec
notmatter in the case of the NATO treaties; and the reason for the official
silence is readily comprehended. In the case of nuclear testing, however, the
lack of contemporaneous oiiicial explanation deprives the reservation of an
extra dimension. which mieht-. ~ossiblv have vindicated ils a~~iicabiiitv.
Secondly, while the questions of substaniive law which arise in the-case of the
NATO treatiesconcern only obligations betweenStateand State, nuclear testina
raises additional and morefar-rëaching questionsconcerning the observance of
universal obligations.
Before 1 resume the argument up Io this point 1 should take notice of another
range of questions, which 1shall have to deal with later on. For example, it
weighed heavily with Rousseau, who may not have beenconscious of the NATO
treaty context, that the reservation had been lodged only six weeks before
France's first nuclear exolosion in the Pacific. What im~lications are to be
drdtvn Troiii rliis .vrijun;ti~nof cvcnt\? Siniil~rly ir bdihçrs the French com-
ment3iors thdi the rc\er\,diion appeiir, to be ,u:h a sh3pele(s thing. hiiing in10
ihc Couri's juriirliiiionIO 3n unforcsn.iihle cxieni, 2nd )et h~lanicd rcckle~sly288 NUCLEAR TESTS
on the edge of subjectivity. Why, if the French Government intended this
reservation to aoolv 10its Pacific testine oroeramme. did it execute its intention
.. . -. - ~ ~ ~
so inefficienlly? It was, after all, enlirely within French cornpetence to lodge a
special reservation saying in terms that the Court should have no jurisdiction in
relation to the nuclear testing programmewhich France intended to carry out in
the Pacific for years ahead.
MI, President, I believe this analysis has already shown that the French
reservation of 20 May 1966 does not apply in relation to the present dispute
between New Zealand and France. It simply does not fit the case of French
atmospheric nuclear testing in the Pacific. It is a reservation with a com-
oarativelv shallow focus that works well enoueh in relation to such a matter as
ihe NA~O treaties. Any attempt to extend therange of the reservation blurs its
edgesand its focus. ln particular, if the expression "national defence" is given
an extended meaning, it passesout of the Court's power to exercise a proper
jurisdictional control and the reservation fails for want of objectivity. This
result is made more certain by the absence of contemporaneous official com-
ment, which might have helped to fix the meaning of the reservation and to
provide the meansfor itscontrol.
It was not the content of the reservation but the surrounding circumstances
that led to a belief in ils effectiveness in the sphere of nuclear testing. If the
reservation was not intended to exclude the Court's jurisdiction in the matter of
nuclear testing, why hdd it been made at all? The answer surely is that it had
been designed to meet the case of the NATO treaties and this would also
provide one reason why the making of the reservation had been given so little
publicity. Was there, then, no special significance, as Rousseau had supposed,
in the timine of the reservation which had been lodeed -b~ut six weeks before
the scheduled date of the first nuclear explosion in the atmosphere above
the French Polynesian atoll of Mururoa? This relationship in time is no longer
compelling when it is realized that the making of the reservationcoincided with
the continuing debateabout there-organiration of NATO.
Finally, what about Rousseau's belief that a policy of atmospheric nuclear
testing inevitably entails avoidance of international adjudication? "France", he
says,at the end of his chronicle, "is acting today inthesame off-hand manner as
other Powers with regard to the settlement of international matters. It is, alas,
not onlv the atmosohere that atomic weaoons ~.e ooiiutine.todav.".. ~ . (.evue
p~;~i~~rri/~'ili~,o!~i~r»oii,>,inlpirhlVoluine 1.XX. 1966: C'hlirler Rouiscati.
'X'hronique iles idil..iniern3tiondu\", OD. cil..p. 1010.) The trench Cicxern-
ment, hobever, was not free to enunciaie that iiew. It then held, and it still
holds, that its actions entail no illegality. On that point Iquote from the English
translation of a letter of 1 Julv of this year from the President of France. Mr.
Girard <I'Ejt:iing. Io ihe ~riiiir hliiiister <if Seii. Zealand, Slr Kirk. A ceriiried
cdp) ofthcorigin31 trench iexl ha, heentiled in the Regirtry i>iihe<:ourt:
"1 wish to underline the fact that, in acting as they have done, the
French authorities are not contravening international law any more than
they threaten theenvironment and the health of thepeoples of the region."
The last piece of the puzzle now fits into place. The pages of Rousseau's
chronicle record foreign and domestic reaction to the prospect of French
atmospheric nuclear testing in the Pacific:
"International reaction to the French explosions in the Pacific was very
different to what it had been at the time of the tests in the Sahara, which
began on 13 February 1960. At that time only the Algerian Government ARGUMENT OF PROFESSORQUENTIN-BAXTER 289
was directly afîected, as the explosions look place on its territory and
radio-activity emissions were almost non-existent. There seemedat the time
to exist a modusvivendiwhereby the Algerian Government refrained from
protesting as long as theexplosions were not publicized. The Pacific explo-
sions. on the other hand. affected a large number of borderina countries
and d rclativel? largenumber of protcstsu,ere m3Jz 3t quite an eirly Jate-
ai leli>t before the tirsi eqpluiion o2 July 19th.(" 16it1.pp 1033.1034 )
There follow in Rousseau's chronicle the details of the protests made at that
time by Australia, Brazil, Chile, Colombia, Japan, New Zealand, Peru and
Uruguay. Rousseauadds:
"Even in France orotests were made. notablv on 1 June bv the Move-
ment for Nuclear DiSarmament, led by Jean ~ostand, and on 7June by the
Council of the French Protestant Federation, etc." (Ibid., pp. 1034-1036.)
Mr. President, Members of the Court, should it still surprise us that the
French Government. which orofessed a sereneconfidence in the legality of-.ts
programme to promote nuclear weapons development by atmospheric nuclear
testing in the Pacific, did not, in the teeth of this gale of international and
domestic orotest. make a brand-new reservation. statina uneauivocallv ifs
re,e;tion of the ,uriJi:ti<in of this Ci~uri in matteri pcrtaininp t<iits nu~le~r
rredponr Je\el<ipment or nu~ledr tciting progr,inimesT ShoulJ IIesen rirpri\e
u\ th:it no oniciùl \idtement uar m.ide 33 IJ the reldti~inship ktrrccn the 1960
reier\ati<~n 2nd the nii;lear testing progr.inimc or that the rerer\ition it\eli *,a,
n<ii rc-modellcJ to niake itappli:ahle to the nuclcùr testing pri~granime?II ma).
\tell ha\c seemedtu thore \\,ho haJ ihe <lut\ of idLine into s<c,?unt a11of iheir
Government's conflicting sensitivities, that-the best course was to do nothing
which rnight excite public and international interest but instead to use as
camouflage the enigmatic reservation of 20 May 1966.
1 have been concerned to show that, in the context of the dispute between
New Zealand and France, this reservation is only camouflage, a form of words
that people tend to take on trust, becausethe words resist analysis, and because
the people are expecting to find an applicable reservation. 1have tried both Io
provide the analysis and to dispel the illusion. The out-of-focus reservation.
which blurs and obscures the rights and obligations of the Parties, is easy to
manufacture or to plead, and difficult to combat. If it were to meet with any
successin international adjudication, it could rather easily become a new dis-
couragement to the acceptanceof theCourt's jurisdiction.
Mr. President, at the beginning of my address it was necessary for me to
examine one of the less attractive aspects of the behaviour of States-what 1
might cal1 their Jekyll-and-Hyde approach to international adjudication. So
often thev,ad~~. in orinciole an at~itud~ ~ ~boundless resoect for the law: but. .
ùt the tir4 sien thal the Iaw mdy iau:li thcir own 3tTiiri. the) op! Ior :inùrihy.
T<I hal,in;e ih;it imores>ion. I rhoul.1 dlri> note thai. %lien tlie immeiliùtc rtre\s
has oassed.Dr. ~ekvll reassertshimself. and the uelvcountenance of Mr. Hvde
is sein no more. Thédemand of men and nations-for the law is insatiable. ~he
bond of adjudication. which is resisted and scorned by the Party to which it is
unwelcome~leads to expressions ofjudicial opinion which can exert a vast and
beneficial influence on human aRairs.
One last word. The Charter of the United Nations, to which, in their several
caoacities. the Court and the States Parties to these oroceedinas al1 belone.
ekphasizes that States are composed of people, and th& governments exist f&
the benefit of people. More and more, in the contemporary world, the readiness290 NUCLEAR TESTS
of States to assume international obligations is conditioned by an enlightened
public opinion, in their own country and in other countries. There isanecessary
tension between the prudence of governments, sometimes descending to un-
.~~~~ve~ ~e~fishness ~~ their zeal to Drotect the narrow interests of their own
peoples, and the inherent generosity of those peoples themselves.Sometimes the
spirit of altruism bubbles over, causing Governments to act in a wider interest
than their own.
So, too, in the affairs of the Court. If France now finds herself bound by the
Court's iurisdiction. and by the Court's nealected Order indicatina interim .
iiiasurcs oi proie<iion. ii i\ naii hezduic oi an! irish or <leriaal o\er>ighi or
i~thermi5:h~nie. II i,hc.'ausc. 31 J crilli~l lime in ihc Iii\tory oi ihis dispute. a
regard Tor puhlis opinion ~~n.iitisiiçd Jnd inhihiied ihc itiurse oïii~ri~~nu.lii;h
the tren~h Go\crnmcni niight ha\c \ri>heJ tu iùkc upona narr.)acr iippra~s~loi
immcJiare <cli-irircrc\i Itii dlso he<-u.c ilrc :du* oï the la% 12univers~l: dnJ
hecause French scholarshio. French intellectual inte~ritv. have-.rovided the
.Applicani rriili the honesof 11s.irgumeni
It is ihc ruhmi~sion oiihc Ci~~\ernilieriiof Nev Zcxlsnd ih:ir .\rii;lc 36. pard.
nraoh 2. no lessthan Article 36. .araa-aoh 1. confers iurisdiction on the Court
i< ieal wiih the dispute hciur.cn Ncu ~e;ldn.i 3n.i t'rdficc.
\Ir I'reiiJent. \leniber> ,if the Court. ihrrr iiIiitle more I nccd SA)'in ~l6hing
ihc New Ze31andc35c.The 4pplisani hdsi>il.reJ pri>i)ii oi ihc <',~uri's iurisdic-
tion under the systems bothof the General AC; and of the optionai clause.
Recalling the long history of its dispute with France, the Applicant has shown
that the dispute concerns a point of law, and has not been resolved. The Appli-
cant has asserted its legal interest in relation to each of the five categories of
rights which itclaims to be violated by French actions. It has discussed the
nature of each category of theserights, to the extent that that seemsappropriate
in the present phaseof the proceedings. consistently with the Court's procedures
andwithout touching upon the merits of the case.
1 should like to remind the Court of the importance that the New Zealand
Government attaches to rights that are of a universal characier, closely related
to the mainsprings of the United Nations Charter, and that cannot bevindicated
in any court unless this Court recognizes them at the suit of a meinber of the
international community. The Attorney-General, who discussed that matter
when he opened the New Zealand Government's case, spoke also of the
A~. .cant's suecial interest in matters that affect most closelv the well-beina of
ii,own rïgion of rhc uorlJ and ii.uun people
hlr. Prsridcni. if 11 1,ille ui4i O!'ihc Canuri. I CJ~ nou prc,cni the iinal sub-
in:rri<in\ .~fihc Ci<>\crnmcni oi \en Zcalarid. 'l'hi>seiubmi,,it~ns irc ihsi the
Government of New Zealand isentitled to a declaration andjudgment:
/al that the Court has iurisdiction to entertain the A~~lication filed bv New
Zcîl~nd and ii>ilcdl~itli the iiierii\ofihcdirpuie::;n'd
Ibi ihai the Appliation is .Idniis\ihle QUESTI~NS BY A MEMBER OF THE COURT 291
QUESTIONS Bi' JUDGE SIR HUhlPHREY WALDOCK
Sir Humphrey WALDOCK: 1have two questions connected with the issueof
admissibility on which 1would ask the Agent and Counsel for New Zealand to
assis1the Court.
The first concerns the right claimed by New Zealand in paragraph 190.sub-
paragraph (c), of the ~emorial that "no racio-active material enterthe territory
of New Zealand. the Cook lslands, Niue or the Tokelau Islands, including their
air spaceand territorial waters, asa result of nuclear testing".
Inoted the presencein Court of representatives of New Zealand al the public
sitting held on9July in the casebrought by Australia agdinst France, at the end
of which I addresseda question to the Agent of Australia. The tex[ of the ques-
tion is s~t ~~t -~~naee 524 m. and 1 should be glad ifthe Aaent of New
~ealand would kinily'regard question asaddressedalso to ~ew Zealand.
My second question, which is of a similar kind, concerns the right claimed by
NewZealand in oaraeraoh 190.sub~a. -.a~h/el. of the Memorial to "freedom
of the high seas,includin'g freedom of navigation and overflight and the freedom
to ex~lore and ex~loit the resources of the sea and the seabed, without inter-
ferenceor detriment resultine from nuclear tesline"
1should be glad if the representativeî of ~ew~ealand would state whether
they draw an? line between lawful and unlawful interferences with the freedom
of Ïhe seasfor military purposes in time of peace,and if so what line. Do they,
for example; draw a legal distinction between a declaration of a temporary
submarine exercisearea or temDorarv missile testina-area and a declaration of a
temporary nuclear testing zone?If so, what are the elernentswhich they consider
make an interference with the freedom of the seas of such a temporüry kind
unlawful?
The PRESIDENT: Well. the Agent of New Zealand mayanswerimmediately,
but if he is not ready the Court will aflord him the necessarytime to do so. He
may answer orally al a special sitting of the Court on Monday morning or in
writingL.
Professor QUENTIN-BAXTER: May it please Mr. President, and may it
pleasetheCouri. 1think we would prefer toansa,erin writingifwemay.
The PRESIDENT: In writing. You would be ready then to give usa reply by
Monday. I thank the Agent, the Attorney-General and the Solicitor-General of
New Zealand for their presentation of their case and the sitting in the case
Nciv Zeolaird v.Frariceis closed.
TlreCof~rrrose 01 12.34p.ni
' Seepp. 429-431, infra.292 NUCLEAR TESTS
SIXTH PUBLIC SITTING (20 XI1 74, 4.15 p.m.)
Present: [See sitting of 10VI174, Vice-President Ammoun, Judges Petrén,
de Castro, Morozov, Nagendra Singh, Ruda, and Judge ad hoc Sir Garfield
Barwick absent.]
READING OF THE JUDGMENT
The PRESIDENT: The Court resumes its sitting for the reading in open
Court, pursuant ta Article 58of the Statute, of its Judgment in the present phase
of the NuclearTestscasebrought by New Zealand against the French Republic.
That phasewas opened by the Court's Order of 22 June 1973, by which it was
decided that the written proceedings should firstbe addressed ta the questions
of the jurisdiction of the Court ta entertain the dispute and the admissibility
of the Application.
1have already mentioned, at the earlier sitting' of this afternoon, the absence
from todav's sittine of Vice-Pres~ ~ ~~ ~ ~ ~~ ~ ~ Judees Petrén. de Castro.
. -
Morozov, ~agendra Singh and Ruda, and Judge odhocSir Ciarfiild ~arwick:
lshall now read the Judgment of the Court. Theopening recitals of the Judge-
ment which. in accordance with the ~ ~a~-~~actice. Ï Shannot read. set out the
procedural history of the case and the subAissiGs, and then refer to a letter
addressed to the Court by the French Amhassador Io the Netherlands, dated
16 May 1973.
The Judgrnent then continues:
[The President reads paragraphs 14 to 62 of the Judgment2.1
1 shall now ask the Registrar to read the operative clause of the Judgment
in French.
[Le Greffier lit le dispositif en français=.]
Judges Forster, Gros. Petrén and Ignacio-Pinto append separate opinions
to the Judsrnent.
JudgesOnyeama, Dillard, Jiménezde Aréchagaand Sir Humphrey Waldock
append a joint dissenting opinion, and Judge de Castro and Judge ad hoc Sir
Garfield Barwick append dissentina o~inions to the Judament.
It will be recalledthat, by ~p~lication dated 18 May i973, the Government
of Fiji applied for permission ta intervene in the present proceedings. and by
Order of 12 Julv 1973. the Court decided to defer its consideration of that
Appli..ation until11 h;sJ proni)uncc<l on the qucrti<ins ,)f jursJcctidn J~J .id-
mi*~ibility in rc>pe:t of New Zç1i13nd'sApplicniion In \,euof the dcii\ii~n sf
the Court containcd in thc Judcment Ihs\c iust read. thc C<~urtJcctiics.by .in
Order dated today, which wili not be read out, th& the Application of the
Government of Fiji for permission Io intervene lapsesand that no further action
thereon is called for on the part of the Court.
Owing Io exceptional technical difficulties, only the official sealed copies of
the Judgment for the Parties. have been prepared for today's sitting and it will
' 1.p.528.
I.C.J.Repens 1974,pp.460-477.
Ihid.,pp 477-478. READING OF THEJUDGMENT 293
not be possible to carry out the usual distribution of the stencilled text of the
Judgment and of the appended declarations,parate opinions and dissenting
opinions. The usual printededition will however become available some time
in January1975.
(Signed)Manfred LACHS,
President.
(Signed S. AQUARONE,
Registrar.
Plaidoiries sur la compétence et la recevabilité - Procès-verbaux des séances publiques tenues au Palais de la Paix, La Haye, les 10 et 11 Juillet et le 20 décembre 1974, sous la présidence de M. Lachs, président