AMBASSADE DE FRANCE
AUX PAYS-BAS
La Haye, le 15 septembre 1995
Vous voudrez-bien trouver ci-joint les réponsesde la délégationfrançaise
aux questions poséespar plusieurs juges de la Cour lors de la séancepublique du 12
septembre 1995.
Vous en souhaitant bonne réception,je vous prie d' agréer,Monsieur le
Greffier, l'assurancee ma considérationdistinguée.
Patrick BONNEVILLE
Premier Conseiller
Monsieur Eduardo VALENCIA-OSPINA
Greffier
Cour Internationale deJustice
Palaisde la Paix
LaHaye .._._......__.....,
QUESTION No l POSEE PAR 1\fONSlEUR LE JUGE SHAHABUDDEEN
-:-:-:-
1. Bearing in mind that France has withdrawn her optional clause declaration and
has denounced the 1928 Treaty :
(a) Would a reqllestfor an examination of the situation within the meaning of
paragraph 63 of the 1974 Judgmenl extcnd to inc!ude a requt:st for reliefs in respect of the
current series of nuclear tests, su<:h as declaratas to their legali?y
(b) Or, would the abject of (jUCh a requcst be lirnited ta reopening of any issues
which were bcfore the Court in 1974 and securing their rc-exal1linatioin the light of the
new situation ?
1. A titreliminai ler~ouvernement françaissouhai rtp~;lr que. conformément
à lajurisprudence de 1a Cour. sa fonction "est de dir le dro1t. mais elle ne peut rendre des·
arrêts qu'à l'occasionde cas concrets dans lesquels il existe,au moment du jugement, uri
litige réel irnpliquartt un conflit d'intérêtsjuridientre les parties"(arrêt du 2 décembre
1963, Çameroun septentrional.Rec. 1963. pp. 33-34 soulign.: par la France)v. aussi les
arrêts du 21 mars 1959. Int~rhan Rec:.1.959, p. 26 et du :20 décembre 1974, Essais
nucléaires,Rec. 1974. pp. 271 ct 477).
2. Au bénéfice de ç~tt r\llarque. il aparaîa11Gouvernement français que seule la
seconde hypothèse er~visa p:l~le lllge SHAHABUDDEEN correspondrait aux exigences
posées par la Cat:rm1 raragr;1phe63 de· l'arrêt du 20 d:5cembre 1974.
3.Comme la FranC'ç:<:.~st longuement expliqué lors de la séance dela Cour du 12
septembre 1995, la ''situation"mer:tionnC:e nu paragraphe 63 ne peut être que celle dont
traite l'arrêt de 1974 et qul~Cour n clairement circonscritecomme concernant uniquement
des "essais en atmosphère :-éalisésde façon~~provoquer des retombées radioactives sur le
territoirnéo-zélan dpnl.29."Rcc. 1974. p. 466).
4. Aucune de ce.s deux. conditions,cumulatives n'étant remplie en l'espèce, la
''demande en examen de la situation" de (a Nouve!k-Zél. qui non~crne de.s essais
souterrains qni ne peuvent provoquer de retombées radio;:: srctleiterioire néo
zélandais n'entre manifestement pas dans le cadre clël'hypotht-sG envîsagi:!e au paragraphe
63 de l'arrêldu 20 d1'5cembre 1974.
15-09-1995 09:27 3~;1 43 17 43 59
P.03 ·---_........._. '
QuESTION N° 2 POSEE PAR 1'10NSIEUR LE JUGE SHAHABUDDEEN
-:-:-:·
2. 1 \.mderstand New Zealand's poSitiOn to be that the prccautionary principle
became part of customary international law after the Judgment was givcn on 20 December
1974. Can the Court now act on the hasis of law which was not in existence on that date?
Quelle que soit la portée du principe de précaution dans le droit international positif'
actuel, le Gouvernement franr:;ais rnppelic qu'en tout étal de cause, comme cela a été
exprimé lors de la séance publique du 12 septembre à la Cour. la France est allée très au
delà des obligations que lui imposemit un tel principe.
Tl reste que. quels que soient son conte:nu et sa portée, le principe de précaution
n'était pas un principe èe droit positif lorsque la Cour a rendu son arrêt en 1974 et qu'il
serait ina-pplicable à tout nouvel "ç-xamcn de la situation" auquel procèderait la Cour. Le
Gouvernement français voit <Illdçme.urant m<il commem la Nouvelle-Zélande peut concilier
son affirmation selon bquclle l' c1ffaire devrait 2tre reprise au stade oü elle en était lorsque
l'arrêt a été rendu, en appliquant. notamrne.r:t. le Règlement de la Cour alors en vigueur,
avec l'invocation de règll!s de droit intemational d'appar-ition nettcmenl plus récente. f1
rappelle en tout état d~ c:=wsequ'ü son avis le problème ne se pose pas puisqu'il n'y a pas
lieu à un examen de la situation.
15-09-1995 09=28
33 1 43 17 43 59 ·--· ----------------- P.04 ~...u._..&..L- n 1•'-'-
QUESTIONS POSEES PAR MONSIEUR LE .JUGF. WEERAMANTRY
-:-:-!-
L What are the principal réldioactive w:tstes resulting from a nuclear explosion ? What is
the half-life of each of thern ?
2. Are there internationallacceptee! criteria for the selection of geologica.l repositories for
radioactive wastes ?rrso,please list them briefly.
3. Was there any disturbanceof the ocean surfacealong. M~urdrea in consequence of lhe
nuclear test of S septem\:?elfso. what werc its causes ?
4. 76 of 134 nude:,lr explosionson Mururoa took place. according to New Zealand, in
holes drilled through the coret! crown of the atoll and 50 in <ïhaftsdriiled through the central part of
the atolL Are the radioactive waslt o: l1e nrst group of explosio-nsst\11 containein the holes
drilledinthe coral crown of the atoll ?
1. Le tableau ci-dessous donne les principaux éléments l(ldioactifs résultant d'un essai
nucléaire:
Nuc\éïde Demi-vie
Césium iJ7 '30, ans
StrontiuTl90 28.6 ans
-·
P\utor.iurr, 239 24.100 ans
Plutonium 240 6.570 a11s
1
1
Plmonium 1-+1 14.4 ans
.
Americium 14 1 ..n:ans
1
Source: Radioecology, Hohn od. 1994. Worl Scientifïc PublishinCo.
2. !\ n'existe .:tllel \uctn:tneornt> officieile internationaconcernant les critères
géologiques de stockage des déchets radioactifsL~~ études scientifiques menées quantà la nature
des roches les plus approrri·6aboutiss un ctm~em;us sur la nécessitéd avoïr un environnement
géolog-iquestable. une faible pcrn1&.1bi\ide;; rochesc'un contexte propice à une rétention des
radio-éléments par leroche:<;.
3. Auc\tn effet n'été notéà la'>Lirfade l'océan ou sur un platier océanique (la partie des
récifs qui affleuàelasu~f< d~ 'eau) ~ui cc'e~ séalséle 5 septembre 1995..
....1...
15-09-1995 09=29
33 1 43 17 43 59 P.05 1• Ul-
-2-
4. n n'ya allcune différence entre les deux catégories {!'essai. Pour les essais réaliséssous
lacouronne cora11iennecomme sous le lagon.1~ expérimentations n'ont jamaété menées dans
lescouches calcaires superficielles. ontetoutes 6té menées à grande profondeur dans le socle
basaltique et la qutorc~ dei~tdioélé111enytestdemeurée. comme il a étéexpliqué lors de la
présentation française.
15-09-1995 09=29 33 1 43 17 43 59--------------------
P.06 J...'.O. J.J.C
-· .i:.lt'
QUESTION No 1 POSEE PAR MONSIEUR LE VICE-PRESlUENT
S.l\f. SCHWEBEL
Paragraph 63 of the 1974 Judgment provides that if the basis of the Judgment were to
be affected, the Applicanl could request an examinalion of rhe situation "in accordance with
the provisions of the Stawte". Whar meaning i.<; tobe givcn to thewords "in accordance with
the provisions of the Stature"?
1. Le Gouvernement rrançais c.:on.sidèrc,comme il l'a fait valoir tant dans son aide-
mémoire du 6 septemb·:e que lors des séances publiques du t2 septembre 1995, que
l'express1on "conformérnent aux dispositions du Sl<ltut" esdénuéed'ambiguïté et constitue un
rappel à l'Etat requérant que la compétence de la Cour est établie par son Statut et qu'elle ne
peut, dès lors, conférer .cie ''droits(zjgbJ__)ux Etats qui Sl'présentent devant elle, qui ne
trouveraient pas leur fondement dans une disposition du Statut,auquel e\le ne peut déroger (cf.
C.P.J.I., ordonn<1ncedu 19 août 1929, zones franches d~ la Haute-Savoie et du Pays de Gex,
sérieA, n"'22, p.l2).
2. Dès lors. de l'avis cu Gouvernement frar.Ç(lÎSune demande en examen de la
situation ne pourrdit être formu!Je que ''conformément 3ux dispositions du Statut".En la
présente occurrence, b "demande" de ~a Nouvelle-Zélande ne se fonde sur aucune de ces
dispositions- et la Nouve!le-Zéb.1ée re pr·~t cl'ndl.;;urs pao:l,e contraire : elle ne peut donc
pas êtreprise ef1considér:rïlion.
15-09-1995 09=30 3:::;1 43 17 43 59 P.07 ....~--.J..L..
•• UL
QUESTION N" 3 POSEE PAR MONSIEUR LE VICE-PRESIDENT
S.M. SCH\VEREL
France contcnds thalthe 1974Nue/eor Testscase between New Zealand and France is
"closed", andthat accordingly New Zeal<md may not mainrainfurther proceedings in that case.
Let us suppose, arguendo.,that Francethisyear - almost 21 years aflethe 1974 Judgment -
had resumed not underground test\ngbu\ atmosphenc nuclear test1ng, and that in response
New Zealand invoked paragraph 63 of the 974 Judgment. Would itbe the positionof France
that the 1974 Judgmcm îs "closcd" and that New Zealand may not main tain further
proceedings in the case ? Inot, is lheFrenc\1 pos'.tinot tha\ New Zealand's Requests are
inconsonant with the Statutebutratherthatparagraph 6~ contemplates onlythe resumptionof
nuclear tests in the atmosphc?e
L A titre liminairele Gouvernement françaisouhaite rappeler que, conformément à
la jurisprudencede la Cour, s.a I(Hlctio"e.Sl de dire le clroit, mellene peut rendre des
arrêtsqu'à 1'occasjon c1ecas concredans lesquels il existe, au moment jugement, un litige
réel impliquantun cor:tlit d'intérêts juridiques entrparties." (arrêtdu 2 décembre 1963,
Cameroun seprentriona!. Rec. 196), pp..tF14 (soulignépar la France) voir aussi lèsarrdus
21 mars 1959. JnrC'rhondfl. Rcc19)9. p.26etdu 20 décembre 1974, Essaisn11cléaires. ec.
1974, pp_27l et 477).
2. De !'a•1idu Ciouvc!'nementfranc~ cesic~,-;idérationprésententd'autant plus de
pertinence en la présente<..Jccurrcnct{ll d~n,;c:e mème par7.gr<Jphe63 de l'arrêtdu 20
décembre 1974, laCour a r<1.ppcléque, c,è:lors qu'elle"a conStaté qu'un Etat a pris un
engagement quant à son c.c:i1ponemcnfuhcï,iln'entre p~l dsns sa fonction d'envisager que
cet Etat ne le respecpas" (R('C.!974, p.477). Or, parson arrèt de 1974, la Cour a constaté
que la France s'ér <n~agte à ce~s ede proc:'-der à de'expériences nucléaires en
atmosphère" (par.44, Rec. 1974, p.472 et ;Jé1r.S, nS). que, dè.slors, ''le différend ayant
disparu, la demande présentée par l<1Nouvelle-Zélande ne comporte plus d'objet" et
qu"'aucune autre acrwn judiciairn'esc néct'ssair:;:" (parR<'c. 1974, p--476).La France
n'ayant pas repri'- ses es-aisrttmosphhe. cesconsid~. .emreaentipleisement valables
aujourd'hui.
3. Au h~nét de ~e:'~:~1>-:'. leaGoqveresment de la France tient à préciser qu'en
rappelant que l'affaire introduipar la requête de i<t Nouvelle·Ztlandedu 9 mai 1973 est
close. il se bor:r.·.:-onstRterq1'arrêtdu 20 <1écembrel974 a, comme tous les. arrêts de la
15-09-1995 09=30 3~: 1 43 17 43 59
P.08 ...JJo ..J.Q
n 1.u .....
- 2 -
Cour, l'autorité de la chose jugée (article 59 du Statut). qu'il est "définitif et sans recours•
(article 60) et qu'il ne peut êtreremis. en cau$e que "conformément am: dispositions du Statut",
condition qui n'est pas remplie en l'espèce.
4. Au st1rplus, il ne p~ut faire de doute que la situation dont la Cour réserve la
possibilité d'un examen concerne exclusivement les essais en atmosphère et "réalisés de
manière à provoquer des retombées radio<.ctivcs sur le territoire néo-zélandais" (par. 29, Rec.
1974, p.486).
15-09-1995 09=31 33 1 43 17 43 59
P.09 -·~- I._..~...,_
U.&.-•1u._._,\..1~U.1,•..1..\-
QUESTION POSEE PAR 1\fONSIEUR LE JUGE KOROIVIA
-!-:-:-
New Zealand contends th~ ts Requcst for an Examinatî.on of the Situation in
accordance with paragraph 63 of the Court's 1974 Judgment is not an application for
revision, as the Request is not in relation to new facts within the context of Article 61 of the
Statu te, but relates to new ëvents.
I would welcome further clarification on the difference of differences between an
application based on Article 61 of the Statute and the present Request by New Zealand.
La Nc\.tvelle-Zélande ,s'est placée en dehors des dispositions du Statut relatives à la
révjs1on d'un arrêt qui est. en tout état de cause, d~sorma imipossible. EJJe n'allègue pas
"la découverte d'un fait de nature à exercer une inlluence décisive et qui, avant te prononcé
de l'arrêt, était inconnu" (art. 61 du Stôtut). mais 1!11invoquant \'existence d'une "nouvelle
situation'' elle tente d'utiliser. SOltSune forme dégui:;ée et de manière étrange. la notion de
"changement fondJmental de cir;:onsr.ance.s" du droit des traités.Le Gouvernement français
ne peut, dès lors. que se borner à constater : non seulement h::Statut de la Cour ignore toute
disposition s'apparentant à une clause "rehus sic stantibus", mais il précise au contraire
formellement que tout arrêl e~t "définitif et sans recours'' (art. 60).
15-09-1995 09=32 3:::; 1 43 17 43 59
P.10 L'l.O• .l..l.ü h
QUESTION DE l\10NSIEUR PALI\1ER
-:-~-:-
Pourquoi l'atollde Fangataufan'a-t-ilpas été visité par lesmembres des
commissions scientifiquinternati onale~
La structure géologique ~to1'llFangataufa est identique à celle de Mururoa.
Deux essaism~cléaï y onts6té faits en 1975. 0' autres essais y ont eu lieu entre
1988 et 1991! de puissance comparaàlceux m~né sMururoa. Toutes les installations de·
mesure et de prépan1.tiondè.L~chantil nnsinque les infra~truc d'acruis, sont
installéeà Mururoa. C'~s donc pour des raisons pratiques que les travaux des missions
scientifiques ont étéessentiellmenés à Mururoa. L'accès de Fangataufa est cependant
possible dans les mên-:escondirion.'i qu'à MuruLaami~') iozeff s'y est du reste
rendue et un realisateur indépcndanl. M. Pardon, y a tourné ur\ docum..;ntaire au début de
1995. Une mission de la CmFmission èuropéenne s'y rendra en outre dans les prochains
JOUTS.
TOTAL PAGECS) 11
15-09-1995 09=32 33 1 43 17 43 59
P.11 '
''
.
•
NEW ZEALAND EMBASSY
THE HAGUE
TELEPHONE: !0701 34693 2.1 c.:...R~C·.J~0ELAAN
FAX: (070; 363 29 83 :51-'\i~E HAGLE
'"i'<EriERLA~CS
15 September 1995
The Registrar
International Court of Justice
The Peace Palace
THE HAGUE
Your Excellency
I enclose the answers of New Zealand to the questions it was asked on Tuesday,
12 September 1995, in the course of the public sittings relating to the New Zealand
Request for an Examination of the Situation in accordance with Para!.!raph 63 of the
Court's 1974 JudQment in the case concerninll Nuclear Tests (New Zealand v France).
D JMacKay
Co-Agent ofNew Zealand
/Î
'.' !
~ 1
reg REPL Y OF NEW ZEALAND TO
JUDGE SCIDVEBEL'S FIRST QUESTION
The Question:
Paragraph 63 of the 1974 Judgment provides that "if the basis of the
Judgment were to be affected, the Applicant could request an examination
of the situation inaccordance with the provisions of the Statute." What
meaning is to be given to the words "in accordance with the provision of
the Statute"?
The Answer:
1. The terms of the 1974 Judgment are to be interpreted by analogy
with the principles applicable to the interpretation treaties, as set out in
Article 31 of the Vie1maConvention on the Law of Treaties. Thus, the
Judgment must be read in good faith in accordance with the ordinary
meaning to be given to its terms in their context and in the light of its
object and purpose.
2. New Zealand notes that, as used in paraf:,rra63, the expression ··in
accordance with the provisions of the Statute" could qualify or condition
either the word "request" or the words "an examination of'. Thus, in the
fust alternative, the correct reading the whole phrase would be: "... the
Applicant could request, in accordance with the provisions of the Statute, 2
an examination of the situation". If this had been the intention of the
Court, obviously it could easily have said so - in just that way. But it did
not.
3. Instead the Court added the words "in accordance with the
provisions of the Statute" at the on1yplace in which they could be located
if it had been the Court's intention to use them in relation to the second
alternative, the idea of "examination of the situation". The position is the
same inthe French version of the paragraph.
4. An additional important literai and grammatical indicator that the
Court had in mind the second alternative is that the words "in accordance
with the provisions of the Statute" are immediately followed not by a full
stop and a new sentence, possibly containing a different thought, but by a
semi-colon introducing a dependent clause. This clause refers to an aspect
of the jurisdiction of the Court - a matter which is, of course, regulated by
the Statute, Article 36. This emphasises that the words "in accordance
with the provisions of the Statute", involving as they also do questions of
jurisdiction, are related to "an examination of the situation" rather than to
the form of the "request".
Answer2..
3
5. Thus, it is the second alternative - that which must be "in
accordance with the provisions of the Statute" is the "examination of the
situation"- that should be looked at more closely.
6. New Zealand has, from the commencement of its initiative in the
present phase of these proceedings, acted on the basis that the procedure
which both it and the Court must follow is one that adheres as strictly as
possible to the prescriptions of the Statute and the Rules of the Court. It
is, of course, true that there is no express provision in the Statute to
support the course for which the Court provided in paragraph 63.
However, it cannot be concluded that the Court therefore acted illegally or
without purpose. As New Zealand has pointed out on several occasions,
the Court was acting in the exercise of its inherent power, derived from its
very existence under Article 1 of the Statute as "the principal judicial
organ of the United Nations", from the fact that it is its duty, under Article
38(1) of the Statute, "to decide in accordance with international law such
disputes as are submitted to it''and from the power granted to it in Article
48 to make orders for the conduct of the case.
7. But the fact that the Court exercised its inherent or reserve powers
under the Statute to provide for the continuity mentioned in paraL,'Taph63
Answer2 4
does not mean that the Court's procedures thereafter were themselves to
be freed from regulation by the Statute and the Rules. Itis the view of
New Zealand that when the Court in 1974 used the words "an examination
of the situation in accordance with the provisions of the Statute", it meant
that, if the circumstances contemplated in the words "if the basis of the
Judgment were to be a:ffected" should arise, New Zealand should, hanging
its request upon the very terms of paragraph 63 itself, do exact!y what that
paragraph said, namely, "request an examination of the situation". Having
regard to the manifest connection between the request and the terms of the
1974 Judgment of the Court, the Court would then receive that request and
process it in the same manner as it would any other request or application
made to it by a State Party to the Statute. It would not in any way be
influenced by the recollection that it had on occasion dismissed without a
hearing applications which themselves expressly acknowledged that they
had been made in the absence of any jurisdictional Iink·with the named
Respondent State. The Request would then be dealt with in a procedurally
predictable way. If there were no request for interim measures of
protection, the Court would proceed forthwith to make an order for such
written or oral proceedings on the matter as it might deem appropriate. If
France were to think that the Court lacked competence or jurisdiction to
deal with the matter it would either appear and so argue, just as it was to
Answer2 5
do on 11 and 12 September 1995, or it would refrain from attending and,
as a non-participant, could send a letter or memorandum just as it did
when the case was started in 1973.
8. The Court would then hear the case "in accordance with the terms
of the Statute". Either it would sustain the French objections, in which
event the proceedings would come to an end, or it would reject them and
the case would proceed in the normal way. The situation thus parallels in
procedural terms a case in which an issue of jurisdiction might be raised,
whether by the Respondent State or, in its absence, by the Court itself.
9. The fact that the imminence of the resumption of testing by France
might oblige New Zealand to request provisional measures of protection
would make no difference to the basic procedural situation. The request
for provisional measures would merely raise more immediately the same
question of competence or jurisdiction. The Court has a well-established
practice for resolving threshold question of jurisdiction or competence at
the provisional measures stage and that practice could be followed.
France could abject to the jurisdiction -as it did in May 1973 - and the
Court could then decide whether or not jurisdiction exists prima facie. The
Statute provides in Article 41 for a Request for Provisional Measures and
Answer2 6
the Rules provide that such a request shaH have priority over ali other
cases and shall be treated as a matter of urgency.
10. There exists, therefore, a clear set of prescriptions enabling the
Court to examine the situation in accordance with the provisions of the
Statute. In the submission of New Zealand it was this kind of predictable ·
procedure, founded in the Statute and its subordinate Rules, to which the
Court in 1974 was referring by the use of the words "in accordance with
the provisions of the Statute" in paragraph 63.
Answer2 REPLY OF NEW ZEALAND
TO JUDGE SCHWEBEL'S SECOND QUESTION
The Question:
After the rendering of the Judgment of the Court in the Nuclear Tests case
in 1974, and before June 1995, did New Zealand indicate, and, if so, how,
that it understood the 1974 Judgment to relate to the possibility of nuclear
contamination deriving from nuclear tests other than atmospheric tests? It
is appreciated that the statement by the Prime Minister of New Zealand of.
21 December 197 4 is relevant to this question.
The Answer:
1. Immediate!y after the Judgment of 20 December 197 4 the Court's
judgment was analysed with great care by the Government lawyers, and
careful note was taken ofparagraph 63. The New Zealand Prime Minister
referred express!y to paragraph 63 in his statement of 21 December 1974.
As he said:
"... New Zealand's concem about nuclear testing had never been
confined to the particular case of the tests conducted by France - or,
indeed, to the question of testing in the atmosphere." 2
2. This wider concem had been clear from New Zealand's Application
and had not been addressed in the Judgment; hence the Prime Minister,
having referred expressly to paragraph 63, commented that the Judgment
achieves "in large measure the immediate object for which these
proceedings were brought" (emphasis added).
3. New Zealand did not expressly state, for the public record, that
paragraph 63 would, or could, be utilised in respect of future non-
atmospheric nuclear testing. Until such time as New Zealand had
evidence that a clear risk of nuclear contamination was created by such
testing, a statement of that kind rnight have been seen as provocative and
irresponsible. Such evidence as New Zealand has is of relatively recent
ongm. The Court in paragraph 63 placed no limit of time on New
Zealand's rights.
4. But New Zealand continuously sought information, or evidence,
from France in bilateral, regional and multilateral contexts. Those requests
include the following:
3 December 1979 Request by New Zealand Minister of Foreign
Affairs during meeting in Paris with French
Foreign Minister
22 April1980 Request to France to allow visit to Mururoa
Answer 3
test site by New Zealand scientists
9 December 1981 Further request for information
24 March 1982 New Zealand request for independent
verificationof French safety-measures
23 August 1982 New Zealand repeated request for access to
site by New Zealand scientists
(Atkinson visit allowed October/
November 1983)
25 November 1986 Noumea Convention signed following negotiations
over sorne years involving New Zealand and France
and other South Pacifie States
There were no tests between July 1991 and September 1995, a period
largely covered by the moratorium on testing. New Zealand has never
regarded the few visits of independent scientists (Tazieff, June 1982;
Atkinson, October/November 1983; Cousteau, June 1987) as reliable
evidence, one way or the other. Vincent's article, renewing fears for a
release of radioactive material was published only in July 1995.
5. From this record it will be clear why New Zealand did not have the
evidence to justify a public threat of renewal of its case against France
under paragraph 63. And it is for this reason that, even today, New
Zealand seeks in the alternative to have the Court require France to carry
out an Environmental Impact Assessment.
Answer 4
6. There can be no question of"acquiescence" by New Zealand during
this period. The record contains repeated protests by New Zealand and, of
course, the 1986 Noumea Convention was also inlarge part based on the
concems of New Zealand and other South Pacifie States over the French
underground testing.
Answer REPLY OF NEW ZEALAND TO JUDGE SHAHABUDDEEN'S
FIRST QUESTION
The Question:
Bearing in mind that France has withdrawn her optional clause declaration
and has denounced the 1928 Treaty:
(a) Would a request for an examination of the situation within the
meaning of paragraph 63 of the 1974 Judgment extend to include a request
for reliefs in respect of the current series of nuclear tests, such as
declarations as to their legality?
(b) Or, would the abject of such a request be limited to a reopening of
any issues which were before the Court in 1974 and securing their re
examination in the light of the new situation')
The Answer:
1. Itshould be recalled that the Court in 1974 did not reach the point
of examining the issue of the illegality of nuclear testing that was raised by
New Zealand in its Application of 9 May 1973. The only issues
considered by the Court were, in 1973, that of interim measures of
protection and, in 1974, those of jurisdiction and admissibility.
2. In the view of New Zealand, when the Court contemplated that the
basis of the Judgment might be affected by sorne subsequent development
Answer3b 2
and that the Applicant cou1dthen request an examination of the situation in
accordance with the provisions of the Statute, it could not have been on
the basis that the Applicant could not ask the Court to provide, in
accordance with the provisions of the Statute and the Rules, sorne relief
responsive to the new sihtation. It is not conceivable that the Court would
have intended to provide New Zea1and with an opportunity to do no more
than request the Court to examine the situation in abstracto.
3. As paragraph Ill of the main Request indicates, New Zealand had
contemplated that once the Court had examined the situation it should
make appropriate procedural orders in respect of the New Zealand
application of May 1973 with a view to according New Zealand the relief
referred to in paragraph 113 of the main Request. As a matter of priority
and urgency, however, New Zealand would first be requesting provisional
measures to protect its rights.
4. As the Court could not, in 1974, have foreseen all the circumstances
rn which New Zea1and might have to request an examination of the
situation, it wou1d have been impossible for the Court to have been
specifie in its statement of the remedies New Zealand might seek without
taking the risk that it might omit a possibly pertinent contingency. In line
Answer3b 3
with the policies of pmdence and of protection of the rights of an applicant
under the Statute to seek appropriate relief, the Court included paragraph
63. To ensure its effectiveness it maintained its generality.
5. New Zealand proceeded on this assumption rn formulating the
request for relief that appears in paragraph 113 of the main Request. At
the same time, New Zealand took care to remain within the scope of the
Application of9 May 1973. The request made in that Application was:
"...New Zealand asks the Court to adjudge and declare: That the
conduct by the French Govemment of nuclear tests in the South
Pacifie region that give rise to radioactive fallout constitutes a
violation of New Zealand's rights under international law, and that
these rights will be violated by any further tests."
6. The difference in wording between this request for relief and the one
which appears in paragraph 113 of the main Request is to be explained as
follows:
(i) The relief requested in paragraph 113 is prospective only from the
date of the Request. That sought in May 1973 was both prospective
and retrospective;
(ii) While the terms of the May 1973 Application referred to
"radioactive fallout", the main Request refers to "radioactive
Answer3b 4
contamination". This is simply a more appropriate expression of the
result of the leakage or spread of radioactive material through water
into the marine environment whether in large or small quantities;
(iii) The expression in the main Request of the rights of other States, in
addition to New Zealand, that would be violated was descriptive of
the likely situation, but did not limit the assertion of New Zealand's
...
own rights~
(iv) The references, in sub-paragraph (ii) of paragraph 113 of the main
Request, to the carrying out by France of an environmental impact
assessment has been seen by New Zealand as a specifie step falling
short of an immediate determination by the Court that the proposed
tests would violate New Zealand's rights under international law. It
was intended to enable the Court to provide France with an
opportunity to carry out a proper Environmental Impact Assessment
in accordance with international standards and, if such an
assessment were to establish that the tests would not give rise,
directly or indirectly,to radioactive contamination of the marine
environment, then France would, in effect, no longer be enjoined
from conducting the proposed tests.
Answer3b 5
7 According to New Zealand's understanding of the process that
would follow the Court's examination of the situation, the Court would
provide relief appropriate to the facts (including the possible physical
consequences of the resumed nuclear tests) and in accordance with the law
(including aspects of intemational environmental law which have
developed since 1974). That is to say, sorne of the matters of fact and law
would be such that they could not have been brought before the Court in
1974 tey would still fall within the scope of the 1973 application. The
answer to Judge Shahabuddeen' s second question is pertinent to the issues
raised in this paragraph.
Answer3b REPLY OF NEW ZEALAND TO JUDGE SHAHABUDDEEN'S
SECOND QUESTION
The Question:
I understand New Zealand's position to be that the precautionary principle
became part of customary international law after the Judgment was given on
20 December 1974. Can the Court now act on the basis of law which was
notin existence on that date?
The Answer:
1. The answer is Yes. The Cou11 can act on the basis of law which was
not in existence on the date of the Judgment, or indeed on 9 May 1973, the
date the Application was filed.
2. The principal reason for that answer is that the conduct which is the
subject of the Application and, accordingly, of the Request for an
Examination of the Situation is continuing and proposed conduct (see
especially the submission at the end of the Application, 1.C.J. Pleadings,
Nuclear Tests Vol II, p9 (parat,rraph 28), and paragraphs 1, 112 and 113 of
the Request). Similarly the Court in its 1974 Judgment emphasized the
concem of New Zealand with further tests (see paragraphs 31, 33, 54
Q4.DOC 2
("there is no occasiOn for a pronouncement m respect of rights and
obligations of the Parties concerning the past"), 57 and 59).
3. The lawfulness or unlawfulness of conduct must be detennined by
reference to the law in force at the time of the conduct, in this case conduct
occurring in 1995 and 1996. If for the sake of argument France had become
party to the Partial Test Ban Treaty after the commencement of the case or
the Judgment of 20 December 1974, can there be any doubt that the Court
would have assessed the legality of its conduct after that accession by
reference to those treaty obligations?
4. The answer of course applies on!y to the issues which are still at large
following the Judg:ment of 20 December 1974. The matters decided by that
Judgment are res judicata. They cannot be questioned. · But the matters
decided by that Judg:ment fall within a very narrow compass. They do not
include the central matters raised by the 1973 application- including the
unlawfulness of French nuclear testing which causes the contamination of
the marine environment, by the addition of artificially created radioactive
material. These matters can be brought back to the Court under the
provisions of paragraph 63.
Q4.DOC 3
5. The applicable law is to be determined by reference to the critical
date, a date which has nothing at ali to do with the date the case was
initiated. Thus the date of the Application or the Special Agreement
initiating the proceedings and the date of the law to be applied by the Court .
are two completely distinct matters. That is clear for instance for many
territorial disputes when the date on which the jurisdiction of the Court is
established or when the Court is seized with a matter may be decades or
even centuries after the date of the law which is to be applied.
6. The principles 1mderlying the developing law relating to the
environment were weil established when the Application was filed on 9 May
1973. Among these principles are those developed in the Stockholm
Declaration on the Human Env1ronment \vhich was annexed to the 1973
Request for the Indication of Interim Measures and those developed by the
International Commission on Radiological Protection, referred to in
paragraph 24 of the 1973 Application, I.C.J. Pleadings, Nuclear Tests, Vol
II, pp79 and 7.
Q4.DOC 4
7. It is inconceivable, New ZeaJand submits, that the Court would
decide a case relating to conduct affecting the environment in 1 995 other
thanbyreference to the law of 199 5.
Q4.DOC 'f.
..
REPLY OF NEW ZEALAND TO
JUDGE KOROMA'S QUESTION
The Question:
New Zealand contends that its Request for an Examination of the Situation
in accordance with paragraph 63 of the Court' s 1974 Judgment is not an
application for revision, as the Request is not in relation to new facts
within the context of Article 61 of the Statute, but relates to new events.
I would welcome further clarification on the difference or differences
between an application based on Article 61 of the Statute and the present
Request by New Zealand.
The Answer:
1. When New Zealand decided that it was necessary to request the
Court to resume its consideration of the case begun in 1973 and suspended
in 1974, it,of course, thought carefully about the proper fonn of such a
request. The only fonns of initiating proceedings in the Court that are
expressly referred to in the Statute are those mentioned in Article 40,
Article 60 and Article 61.
2. New Zealand took the VIew that none of these forms was
appropriate. New Zealand considered that it had not been the intention of
the Court that New Zealand should have to attempt to squeeze a request
for an examination of the new situation into the straight-jacket of an
application instituting new proceedings or of an application for•.
2
interpretation or revision. It seemed to New Zealand that the Court was
breaking new ground in opening up the right to return to the Court if the
basis of the Judgment were to be affected. Just as the Court had the
inherent right under its Statute to establish the possibility of continuance
that it envisaged in paragraph 63, so equally the Court had the right to
accepta request from New Zealand thus to retwn in a form not specifically
laid down in the Statute.
3. In any case, as is made clear in New Zealand's reply to Judge
Schwebel' s fust question, the reference in paragraph 63 to "in accordance
with the provisions of the Statute" must refer, not to the manner of making
the request, but to the procedure for .examining the situation, to the
situation thereafter, and to the question of the Court's jurisdiction. This
point is also touched on in the answer to the first question by Judge
Shahabuddeen (para. 3).
4. That is not to say that New Zealand could not have framed its
request in terms of an application under Article 40, invoking the same
jurisdictional grounds as it did in the original application of May 1973,
coupled with the extension in time and operation thereof accorded by the
reference in paragraph 63 to the ineffectiveness, in this connection, of the
Answer5..
3
French denunciation of the 1928 Geneva Act. In logic, what the Court
said about the General Act should equally apply to the French Declaration
under the Optional Clause.
5. Nor is it excluded that New Zealand could have framed its request
in terms of an application for interpretation under Article 60 of the Statute.
It is quite evident that the argument that has been conducted before the
Court in recent weeks has centred on the meaning to be accorded to
paragraph 63 of the 1974 Judgment.
6. The question which the Court conveyed to the Parties on 8
September 1995, and within the framework of which the hearings of 11
and 12 September have been conducted, asked whether the Requests
submitted by New Zealand "fall within the provisions of paragraph 63" of
the 1974 Judgment. The precise way in which New Zealand identifies the
manner in which its Requests fall within the provisions of paragraph 63
should not be regarded as of controlling importance. As the Court has
often said, it does not attach dominant importance to matters of fonn.
Sorne may take the view that the correct way to implement paragraph 63 is
the one which New Zealand has actually followed; others may see it as a
matter for an application under Article 40, with jurisdiction resting on the
Answer5•
4
basis mentioned in paragraph 4 above; yet others may see it as a case for
interpretation under Article 60. But the one thing that is clear is that in
paragraph 63 of the 1974 Judgment the Court did something that cannot
now be denied effect solely by reference to a purely fonnal consideration
that does not alter the essential substance of the matter. In paragraph 63
the Court made a certain promise which New Zealand is entitled to invoke.
The form in which the promise is invoked is subsidiary, provided that the
substance of the request falls within the scope of the words "if the basis of
this Judgment were to be affected".
7. Therefore, without in any way resiling from its view that the fonn in
which it bas expressed its request for an examination of the situation is
correct and sufficient, New Zealand must emphasise that the dominant
question before the Court is the substance of the Request and that the
Members of the Court remain free to approach the Request for an
Examination of the Situation from any point of view that they wish,
provided that they ultimately reach agreement upon the main question
which is: "Ras the basis of the 1974 Judgment been affected by the facts
and developments set out in the main Request and elaborated in the oral
proceedings just concluded?" So to approach this matter would not g]ve
rise to a situation of ultra petita.
Answer5..
5
8. Having explained the background in this way, New Zealand can
now turn to the specifie question put by Judge Koroma. There is one
approach to the matter that may not properly be adopted, namely, that the
New Zealand request is really an application for revision - or at any rate a
request for revision within the scope of Article 61 of the Statute. ln 1974
the Court was of course fully aware that Article 61, paragraph 5, of the
Statute excluded any application for revision after a lapse of ten years from
the date of the judgment. There was no reason why the Court would have
wished to limit the eftèctive duration of the French undertakings to ten
years. Indeed, the sarne point can be put positively: there was good
reason why the Court should not wish to limit the effective duration of the
French undertakings to ten years. That reason was that the Court could
not have been certain in 1974 that the situations in respect of which it was
seeking to protect New Zealand in paragraph 63 would necessarily occur
(if at ail) within ten years.Itis also relevant to this matter that the Court
made an express findiag "that the unilateral undertaking resulting from
these statements cannot be interpreted as having been made in implicit
reliance on an arbitrary power ofreconsideration" (paragraph 53).
Answer5•
6
9. This factor - the known existence of the time limit in Article 61 - 1s
itself afull and sufficient reason why the Court must in 197 4 tacitly have
excluded the idea of resumption via the route of revision. In the
circumstances, if the Court had wished to place a time limit upon the
operation ofparagraph 63, it could easily have said so by expressing itself
in different and clearer language. Instead of saying that "the Applicant
could request an examination of the situation" it could have said that "the
Applicant could apply for the revision of the Judgment". The obvious
inference of the Court's not having said so is that it foresaw a different
mode of proceeding.
10. The reply to the second paragraph of Judge Koroma's question is
that revision as prescribed by Article61 is available "only when it is based
upon the discovery of sorne fact.... which fact was when the judgment was
given unknown to the Court..." (emphasis added). These words stipulate
that the fact giving rise to the request for revision was one in existence at
the time of the Judgment, but undiscovered and unknown.
11. Paragraph 63 1s rather concerned with authorising further
consideration of the subject matter of the case if a future event having the
effect described in the paragraph occurs a:fter the Judgment. Such new
Answer5 7
facts would not be within the scope .of an application for revision under
Article 61.
13. The difference can be demonstrated by assuming that subsequent to
delivery of the 1974 Judgment France recommenced atmospheric testing.
Such a new fact would not have fit the requirements of Article 61. News
•
of it would not be a "·discovery" of a matter in 1974 "unk:nown" to the
Court. And it is "only" in that situation that Article 61 applies. Paragraph
63 however is drafted to cover such future conduct, indeed any future
actions by France such as would affect the basis of the judgment.
Answer5....
REPL Y OF NEW ZEALAND TO
JUDGE WEERAMANTRY'S FIRST QUESTION
The Question:
What are the principal radioactive wastes resulting from a nuclear
explosion? What is the halflife of each of them?
The Answer:
The following table lists all of the radionuclides produced by an
underground nuclear explosion that have a half-life of greater than four
hours. The table lists the name of the element, the specifie radionuclide,
the half life of that radionuclide, and the method of formation of the
radionuclide.....
1
Element Radionuclide Half-life Origin
Tritium 3H 12 years fission. fusion, activation
Sodium 24Na 15 hours activation
36CI
Chlorine 300,000 years activation
Manganese 54Mn 313 days activation
ssFe
Iron 2.7 vears activation
Iron s~e 45 days activation
Cobalt 60Co 5 years activation
85"'Kr
Krypton 4.5 hours fission
Krypton 85Kr 10.8 years fission
S9Sr
Strontium 90 54 days fission
Strontium Sr 29 years fission
Yttrium 91y 59 days fission
Niobium 9sm 35 davs fission
Zirconium 9szr 64 days fission
97zr
Zirconium 17 hours fission
Molybdenum ~0 2.9 days fission
Technetium ~c 210,000 years fission
1oJRu
Ruthenium 39 days fission
Ruthenium ~~u 372 days fission
1osRe
Rhenium 35 hours fission
Antimony 125Sb 2.7years fission
Tellurium ~~e 34 days fission
1291
lodi ne 16 million years fission
lodi ne 1311 8 days fission
1331
lodi ne 21 hours fission
Xenon IJimxe 12 days fission
Xenon IJJmxe 2 davs fission
133
Xenon Xc 5 davs fission
Xenon IJSXe 9 hours fission
135
Caesium Cs 3 million vcars fission
Caesium 137Cs 30 years fission
Barium I40Sa
13 davs fission
Cerium 141Ce 33 davs fission
Cerium t43Ce 33 hours fission
I44Ce
Cerium 285 days fission
Neod_ymium I47Nd Il days fission
tssEu
Europium 4.8 vcars fission
Uranium 235u 700 million years weapon
Uranium mu 7 days
23su activation
Uranium 4.5 billion years wcapon
Neptunium 237NJl 2 million vears activation
Neptunium 23~p 2.4 davs activation
Plutonium 238Pu 86 years activation
23~
Plutonium 24,000 vears weapon
Plutonium 24~ 6540 years weapon, activation
Plutonium 241Pu 15 years weapon. activation
241Am
Americium 433 years wcapon
1
The origins of the radionuclides are as follows:
activation: the element was formcd by neutron irradiation of matcrials in the wcapon
or the surroundings
fission: the element was formed by fission of uranium or plutonium in the primary
(fission) stagef the weapon
fusion: the element was formed by fusion in the sccondary (thcrmonuclear) stage of
the weapon
weapon: the clement was part of the primary material of the weapon REPLY OF NEW ZEALAND TO
JUDGE WEERAMANTRY'S SECOND QUESTION
The Question:
Are there intemationally accepted criteria for the selection of geological
repositories for radioactive wastes? If so, please list them briefly.
The Answer:
Part 1.
1. The International Atomic Energy Agency Safety Standard "Safety
Principles and Technic;alCriteria for the Underground Disposai ofHigh
Level Radioactive Wastes" (Safety Series No. 99, 1989 ) is the
intemationally agreed document which defmes technicat criteria for the
underground disposai of high level wastes. (It is this type of waste that
most closely approximates to the radioactive debris resulting from an
underground nuclear test.)
2. The safety of a waste disposai repository depends not only on the
barrier to movement of radioactive material inherent in the geological
repository site itself but also on barriers determined by:
This document is being superceded by a number of more detailed studies. including the one
cited in Part 2 of this answer. Nevertheless, the criteria it specifies are still relevant to the selection of
a waste disposai system. 2
the physical form of the waste;
the containers in which the waste is placed;
the method used to seal the waste containers; and
the physical and chemical properties of the rock and surrounding
geological formations.
The IAEA document lays down technical criteria for each ofthese.
3. Because high level wastes present a potential hazard for very long
times and because the difficulty of long term predictions may lead to large
uncertainties, it is necessary that the safety of waste disposai does not rest
on one single component or barrier, but rather on the combined
effectiveness of ali of them. It may be that a weakness in one part of the
overall system may be compensated for by the containment capabilities of
other parts. Thus, the component parts of the waste dispos al system must
be considered as a whole; the characteristics of the repository site itself are
not the sole determinant.
4. We nevertheless confme ourselves to answering the question posed
by listing only the technical criteria relevant to the selection of the waste
repository site itself. 3
Criterion No. 1: Overail systems approach
The long term safety of high leve/ radioactive waste disposai shall
be based on the multibarrier concept, and shall be assessed on the
basis of the performance of the disposa/ system as a whole.
Criterion No. 5: Repository design and construction
A high level waste repository shall be designed, constructed,
operated and closed in such a way that the post-sealing safety
functions of the host rock and its relevant surroundings are
preserved.
Criterion 7: Site geology
The repository shall be located at sufficient depth to protect
adequate/y the emplaced wastefrom extemal events and processes,
in a host rock having properties that adequate/y restrict the
deterioration of physical barriers and the transport of
radionuclides from the repository to the environment. 4
New Zealand comment:
The IAEA observes with respect to this criterion that
The location of the waste repository is of great importance to its
long term safefunctioning. The size of the selected host medium
shall be large enough to accommodate the repository and that part
of the surrounding medium which is necessary for safety.
The most likely way radionuclides can migratefrom the repository
to the biosphere is by groundwater transport. For that reason,
special emphasis must be placed on the hydrogeological and
geochemical transport of the host medium to restrict nuclide
transport by groundwater.
It is evident from this observation that Mururoa atoll fails to meet the
standard laid down inthis criterion.
Criterion No. 8: Consideration ofnatural resources
The repository site shall be selected, to the extent practicable, to
avoid proximity to valuable natural resources or materials which
are not readily available from other sources. 5
Part2
5. The International Atomic Energy Agency Safety Guide "Safety of
Geological Disposai Facilities" (Safety Series No. 111-G-4.1, 1994)
specifies more detailed criteria to be used in selecting sites for the disposai
ofhigh level radioactive wastes (known as high-level wastes). Relevant
extracts from this report follow.
General
401. Owing to the predominance offactors and processes which
may be highly site specifie and interactive, only general guidelines
can be identified that will govern the suitability of potential sites to
host a repository..... ft is necessary, therefore, that implementation
ofthese guide/ines and the development of any subsidiary criteria
in a siting process be done in consideration of long term safety,
technicalfeasibility and social, economie and environmental
concems. Critena so developed should translate techmcal and
institutional concerns into practical measures. 6
402. Guide/ines can be helpful in the overall decision making
process but they are not intended to be strict preconditions. To
assess whether a disposa! system meets itsperformance goals, the
system ofnatural and engineered barn·ershas to be considered as
a whole. Flexibility in the disposai system is important and the
possibility to compensate for uncertainties in the performance of
one component byplacing more reliance on another should be
retained.
403. Thefollowing text provides an example of the different siting
factors that will have to be considered in a siting process. They
are not meant to be a complete set of guide/ines and their
application will have to take into account the options availahfe and
the limitations within each country. Further, these guide/ines
should not be applied in isolation but willhave to be used in an
integrated fashion for an overalf optimisation of site selection. 7
GEOLOGICAL SETTING
404. Guideline:
The geological setting of a repository should be amenable to
overall characterisation and have geometrical, physical and
chemical characteristics that combine to inhibit the
movement of radionuclides from the repositorylOthe
environment during the time periods of concern.
405. The depth and dimensions of the host rock should be
sufficient for hosting the repository and provide sufficient distance
from geological discontinuities that could provide a rapid pathway
for radionuclide transport, such as brecciatedfault zones....
FUTURE NATURAL CHANGES
408. Guideline:
The host rock should not be fiable to be affected byfuture
geodynamic phenomena (climatic changes, neotectonics, 8
seismicity, volcanism, diapirism) to such an extent thal these
could unacceptably impair the isolation capability of the
overall disposa/ system.
409. Future climatic evolution (extemai geodynamic) represented
by interglacial and glacial cycles may result infundamental
changes in the Earth 'shydrosphere, such as sea leve/ fluctuations,
changes in erosion/sedimentation processes, transitions in glacial
or periglacial conditions, and variations in the surface and
subsurface hydroiogical balance. Interna/ geodynamic activities
such as ground motion associated with earthquakes, land
subsidence and uplift, volcanism and diapirism may aiso induce
changes in the Earth 'scrust conditions and processes. Bath types
of events, which can be in sorne cases interrelated, may affect the
overall disposa! system through disturbances in the site integrity or
modifications of groundwater fluxes and pathways. A preliminary
assessment of the predictability and effects ofthese phenomena
should be madefor the required periods of time at an early :.;tage
of the siting process. The site should be focated in a geological
and geographicaf setting where these geodynamic processes or 9
events will not be likely to lead to unacceptable radionuclide
release.
HYDROGEOLOGY
412. Guideline:
The hydrogeological characteristics and setting of the
geological environment should tend to restrict groundwater
flow within the repository and should support safe waste
isolationfor the required times.
413. An evaluation of the mechanisms of groundwater movement,
as weil as an anafysis of the direction and rate o_fflowwill be an
important input to the safety assessment of any site because the
most likefy mode of radionuclide refease is by groundwater flow.
Irrespective of the nature of the waste or the disposai option, a
geological environment capable ofrestrictingflow to, through and
from the repository will contribute to preventing unacceptable
radionuclide releases. Natural features such as aquifers or
fracture zones are potential release pathways for radionuclides. 10
Such paths should be limited in the repository host rock so that the
protective functionsof the geological and engineered barrier
system remain compatible. The dilution capacity of the
•
hydrogeological system may also be important and should be
eva/uated. Siting should be optimised in such a way as tofavour
long and slow moving groundwater pathways from the repository
to the environment.
414. Possible consequences for the hydrogeology resultingfrom
processes caused by the disposai of radioactive waste (e.g. thermal
and radiation effects, increased hydraulic conductivity due to
mining, etc.) should be taken into account.
GEOCHEMISTRY
416. Guide/ines:
Thephysicochemical and geochemical characteristics of the
geological and hydrogeological environment should tend to
limit the release of radionuclides from the disposalfacility to
the accessible environment. 11
417. The choice of a host rock and of a surrounding geological
environment that has suitable geochemical characteristics and
good retardation properties for long lived radionuclides is
particularly important in the disposai of long lived waste. In a
formation where groundwater movement through fissures and
pores occurs, retardation by minerais bath within the rock matrix
and on the rock surfaces could be important ta ensure satisfactory
long term performance of the repository system. The retention or
retardation processes which govem the consequent rate and
quantity of radionuclide migration include processes such as
dispersion. diffusion, precipitation, sorption. ion exchange and
chemical interaction. The ability of groundwater ta transport
radioactive colloids may be important and should also be taken
into account. 12
EVENTS RESULTING FROM HUMAN ACT/VIT/ES
420. Guideline:
The siting of a disposai facility should be made with
consideration of actual and potential human activities at or
near the site. The likelihood that such activities could affect
the isolation capability of the disposai system and cause
unacceptable consequences should be minimised.
CONSTRUCTION AND ENGINEERING CONDITIONS
425. Guideline:
The surface and underground characleristics of the site
should permit application of an optimised plan of surface
facilitiesnd underground workings and the construction of
ali excavations in compliance with appropriate mining rules. 13
TRANSPORTATION OF WASTE
429. Guideline:
The site should be located such that radiation exposures of
the public and the environmental impacts of transporting the
waste ta the site are within acceptable limits.
PROTECTION OF THE ENVIRONMENT
432. Guideline:
The site should be located such that the qualityf the
environment will be adequate/y protected and the potentially
adverse impacts can be mitigated ta an acceptable degree.
taking into account technical, economie. social and
environmental factors. 14
LAND USE
435. Guideline:
ln the selection of suitable sites, land use and ownership of
land should be considered in connection with possible future
development and regional planning in the area of interest.
SOCIAL IMPACTS
438. Guideline:
The site should be located sa that the averai/ societal impact
of implementing a repository system at the site is acceptable.
Beneficia! effectsf the siting of a repository in a region or
area should be enhanced wheneverfeasible and any negative
societal impacts should be minimized. REPL Y OF NEW ZEALAND TO
JUDGE WEERAMANTRY'S THIRD QUESTION
The Question:
Was there any disturbance of the ocean surface alongside Mururoa in
consequence of the nuclear test of 5 September? If so, what were its
causes?
The Answer:
1. New Zealand has no information on whether there was any
disturbance of the ocean outside Mururoa.
2. The surface waters of the lagoon are always disturbed by the
seismic shock wave created by a test taking place under the lagoon. The
strong shock wave causes surface water over a considerable area of the
lagoon to rise sorne metres into the air ando fonn isolated geysers as it
collapses. These effec:tswere visible on the French video of the test.
3. When testing took place under the rim of the atoll, the shock wave
used to cause subsidence of the land surface of the atoll around the testing
point, and on severa! occasions caused slumping of sediments and
limestone blocks down the outer flanks of the atoll. These effects were
described in the New Zealand main request and in its oral presentation. REPLY OF NEW ZEALAND TO
JUDGE WEERAMANTRY'S FOURTH QUESTION
The Question:
76 of the 134 nuclear explosions on Mururoa took place, according to
New Zealand, inhales drilled through the coral crown of the atoll and 50
insha:ftsdrilled through the central part of the atoll. Are the radioactive
wastes of the fust group of explosions still contained in the hales drilled in
the coral crown of the atoll?
The Answer:
The 76 tests that took place under the rim (or coral crown) of the atoll, like
the50 tests that took place under the lagoon, were conducted within the
volcanic rock (basait) that forms the core of Mururoa. Radioactivity
created by an explosion is initially located within the vicinity of the
explosion, but it saon begins to be transported by water circulating through
the atoll away from the site and up towards the swface. Ali three
independent scientific missions that have visited Mururoa (led by Tazieff,
Atkinson and Cousteau) have agreed that water carrying the radioactivity
will reach the atoll's lagoon or the open ocean. But France has not
released sufficient information to enable an accurate assessment to be
made of the probable time-scale of this leakage. Commander Cousteau
was given sorne general information, on the basis of which he estimatedr
2
that leakage would occur on a time-scale of 100 to 300 years. New
Zealand bas no independent means of confirming this estimate.
Réponses écrites de la France aux questions posées par les juges