Public sitting held on Monday 11 September 1995, at 3.30 p.m., at the Peace Palace, President Bedjaoui presiding

CR 95/19
Cour internationale International Court
de Justice of Justice
LA HAYE THE HAGUE
ANNEE 1995
Séance publique
tenue le lundi 11 septembre 1995, à 15 h 30, au Palais de la Paix,
sous la présidence de M. Bedjaoui, Président
Demande pour un examen de la situation au titre du paragraphe 63
de l'arrêt rendu par la Cour en 1974 dans l'affaire des
Essais nucléaires (Nouvelle-Zélande c. France)
_______________
COMPTE RENDU
________________
YEAR 1995
Public sitting
held on Monday 11 September 1995, at 3.30 p.m., at the Peace Palace,
President Bedjaoui presiding
Request for an Examination of the Situation in accordance with
Paragraph 63 of the Court's 1974 Judgment in the case
concerning Nuclear Tests (New Zealand v. France)
__________________
VERBATIM RECORD
__________________
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Présents : M. Bedjaoui, Président
M. Schwebel, Vice-Président
MM. Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Mme Higgins, juges
Sir Geoffrey Palmer, juge ad hoc
M. Valencia-Ospina, Greffier
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Present: President Bedjaoui
Vice-President Schwebel
Judges Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Higgins
Judge ad hoc Sir Geoffrey Palmer
Registrar Valencia-Ospina
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Le Gouvernement de Nouvelle-Zélande est représenté par :
L'honorable Paul East, QC, député, Attorney-General de la
Nouvelle-Zélande,
comme agent et conseil,
M. Don MacKay, conseiller juridique du ministère des affaires
étrangères et du commerce extérieur de la Nouvelle-Zélande,
comme coagent et conseil,
S. Exc. Mme Hilary A. Willberg, ambassadeur de Nouvelle-Zélande aux
Pays-Bas,
comme coagent,
M. J. McGrath, QC, Solicitor general de la Nouvelle-Zélande,
Sir Kenneth Keith QC, membre du Barreau de la Nouvelle-Zélande,
président de la Commission du droit de la Nouvelle-Zélande,
M. le Professeur Elihu Lauterpacht, CBE, QC, directeur du Centre de
recherche en droit international et professeur honoraire de droit international à l'Université
de Cambridge,
Mme Victoria Hallum, juriste, ministère des affaires étrangères et du commerce extérieur de la Nouvelle
comme conseils.
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The Government of New Zealand is represented by:
The Honourable Mr. Paul East QC, Attorney-General of New Zealand,
as Agent and Counsel,
Mr. Don MacKay, Legal Adviser of the New Zealand Ministry of Foreign
Affairs and Trade,
as Co-Agent and Counsel,
Her Excellency Mrs. Hilary A. Willberg, Ambassador of New Zealand to
the Netherlands
as Co-Agent
Mr. John McGrath QC, Solicitor-General of New Zealand,
Sir Kenneth Keith QC, of the New Zealand Law Bar, President,
New Zealand Law Commission,
Professor Elihu Lauterpacht CBE, QC, Director of the Research Centre
for International Law and Honorary Professor of International Law, University of
Cambridge,
Ms Victoria Hallum, Legal Officer of the New Zealand Ministry of
Foreign Affairs and Trade,
as Counsel.
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Le Gouvernement de la République française est représenté par :
M. Marc Perrin de Brichambaut, conseiller d'Etat, directeur des
affaires juridiques au ministère des affaires étrangères,
Sir Arthur Watts,
M. le professeur Pierre-Marie Dupuy,
M. le professeur Alain Pellet,
Mme Marie-Reine D'Haussy,
M. Christian Bernier,
M. Jean-Michel Favre,
M. Caristan,
M. Chevallier,
M. Corion,
M. Rochereau.
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The Government of the Republic of France is represented by:
Mr. Marc Perrin de Brichambaut, Director of Legal Affairs at the
French Ministry of Foreign Affairs,
Sir Arthur Watts,
Professor Pierre-Marie Dupuy,
Professor Alain Pellet,
Mrs. Marie-Reine D'Haussy,
Mr. Christian Bernier,
Mr. Jean-Michel Favre,
Mr. Caristan,
Mr. Chevallier,
Mr. Corion,
Mr. Rochereau.
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Le PRÉSIDENT : Veuillez vous asseoir. La séance est ouverte. Comme je l'ai indiqué en
ouvrant la séance précédente, la présente séance a pour objet de permettre à la Nouvelle-Zélande et à
la France de faire connaître leurs vues sur certaines questions relatives aux «demandes» présentées
par la Nouvelle-Zélande à la Cour le 21 août dernier.
Ce jour-là, la Nouvelle-Zélande a déposé au Greffe deux documents, l'un intitulé «Demande
d'examen de la situation» et l'autre «Nouvelle demande en indication de mesures conservatoires».
Le premier document se réfère à la déclaration faite par le Président de la République
française aux médias le 13 juin dernier, selon laquelle «la France procéderait à une dernière série de
huit essais d'armes nucléaires dans le Pacifique Sud commençant en septembre 1995». Le document
néo-zélandais précise que, si le projet d'action annoncé par la France se réalise, celui-ci «remettra en
cause le fondement de l'arrêt rendu par la Cour le 20 décembre 1974 dans l'affaire des Essais
nucléaires (Nouvelle-Zélande c. France)». Le document rappelle qu'au terme de cet arrêt de 1974,
la Cour avait décidé qu'il n'y avait pas lieu de statuer sur la demande qui lui avait été soumise par la
Nouvelle-Zélande en 1973. La Cour avait en effet considéré que cette demande était devenue sans
objet du fait des déclarations assorties d'effets juridiques contraignants par lesquelles la France
s'était engagée à ne pas procéder à de nouveaux essais nucléaires dans l'atmosphère. Le document
néo-zélandais rappelle toutefois aussi que la Cour avait inclus dans le même arrêt de 1974 un
paragraphe 63 pour le cas, expose-t-il, où
«la France cesserait éventuellement par la suite de se conformer à ses engagements
relatifs aux essais dans l'atmosphère ou que l'un des fondements de l'arrêt vienne à
cesser d'être applicable».
Le paragraphe 63 de l'arrêt du 20 décembre 1974 se lit comme suit :
«Dès lors que la Cour a constaté qu'un Etat a pris un engagement quant à son
comportement futur, il n'entre pas dans sa fonction d'envisager que cet Etat ne le
respecte pas. La Cour fait observer que, si le fondement du présent arrêt était remis en
cause, le requérant pourrait demander un examen de la situation conformément aux
dispositions du Statut; la dénonciation par la France, dans une lettre du 2 janvier 1974,
de l'Acte général pour le règlement pacifique des différends internationaux, qui est
invoqué comme l'un des fondements de la compétence de la Cour en l'espèce, ne saurait
en soi faire obstacle à la présentation d'une telle demande.»
Le Gouvernement néo-zélandais souligne dans son document que la «demande d'examen de la
situation» qu'il contient est présentée au titre du «droit» que ce paragraphe accorde à la
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Nouvelle-Zélande, dans le cas prévu, de solliciter la «reprise de l'affaire introduite par la requête du
9 mai 1973». Au terme dudit document, il est affirmé que les droits dont la Nouvelle-Zélande
demande la protection «entrent tous dans le cadre des droits invoqués par la Nouvelle-Zélande au
paragraphe 28 de sa requête de 1973» dans l'affaire des Essais nucléaires, mais que, pour le
moment, «la Nouvelle-Zélande demande seulement la reconnaissance des droits qui seraient affectés
de façon préjudiciable par la pénétration dans le milieu marin de substances radioactives en
conséquence des nouveaux essais qui doivent être effectués aux atolls de Mururoa et de Fangataufa,
et de son droit à une protection et à bénéficier d'une évaluation correctement réalisée de l'impact sur
l'environnement». La Nouvelle-Zélande prie la Cour de dire et juger :
«i) que la réalisation des essais nucléaires envisagés constituera une violation des
droits de la Nouvelle-Zélande, ainsi que d'autres Etats, au regard du droit
international;
en outre et subsidiairement;
ii) que la France n'a pas le droit d'effectuer de tels essais nucléaires avant d'avoir
procédé à une évaluation de l'impact sur l'environnement conformément à des
normes internationales reconnues. Les droits de la Nouvelle-Zélande, ainsi que
d'autres Etats, au regard du droit international, seront enfreints si cette évaluation
ne démontre pas que les essais ne provoqueront, directement ou indirectement,
aucune contamination radioactive du milieu marin.»
Ce premier document de la Nouvelle-Zélande était accompagné d'une lettre de l'ambassadeur
de Nouvelle-Zélande aux Pays-Bas informant le Greffier, d'une part, de la désignation par la
Nouvelle-Zélande d'un agent et de deux coagents et, d'autre part, de la démission du très honorable
sir Garfield Barwick, juge ad hoc désigné par la Nouvelle-Zélande en 1973, et de la désignation,
pour le remplacer, du très honorable sir Geoffrey Palmer.
Dans le second document déposé par la Nouvelle-Zélande le 21 août 1995, il est notamment
fait référence à la «Demande d'examen de la situation» dont il vient d'être question, ainsi qu'à
l'ordonnance en indication de mesures conservatoires rendue par la Cour le 22 juin 1973. Les
«nouvelles mesures conservatoires» énoncées ci-après y sont demandées «à titre prioritaire et vu
l'urgence», en application des articles 33 de l'Acte général du 26 septembre 1928 que j'ai cité tout à
l'heure et 41 du Statut de la Cour :
«1) que la France s'abstienne de procéder à de nouveaux essais nucléaires aux atolls
de Mururoa et de Fangataufa;
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2) que la France procède, à l'égard des essais nucléaires auxquels elle se propose de
procéder, à une évaluation de l'impact sur l'environnement conforme aux normes
internationales reconnues et que la France s'abstienne de procéder à ces essais, si
cette évaluation ne démontre pas que ces essais ne provoqueront aucune
contamination radioactive du milieu marin;
3) que la France et la Nouvelle-Zélande veillent à ce qu'aucune mesure ne soit prise
qui soit susceptible d'aggraver ou d'étendre le différend soumis à la Cour, ou de
porter atteinte aux droits de l'autre Partie pour ce qui est de mettre en œuvre les
décisions que la Cour pourra prendre en l'espèce».
Au terme de ce document, la Nouvelle-Zélande «prie par ailleurs le Président de la Cour d'exercer les
pouvoirs qu'il tient du Règlement, en attendant que la Cour exerce ses propres pouvoirs».
Ce second document était accompagné de deux lettres, l'une du ministre des affaires étrangères
de Nouvelle-Zélande, et l'autre de l'ambassadeur de Nouvelle-Zélande aux Pays-Bas, dans lesquelles
l'urgence de la situation était invoquée et la même demande était adressée au Président d'exercer les
pouvoirs prévus au paragraphe 3 de l'article 66 du Règlement de 1972, qui était alors en vigueur à
l'époque de l'introduction de l'instance en 1973.
Le Greffe a fait tenir le jour même une copie de l'ensemble de ces lettres et documents au
Gouvernement français.
Le 23 août 1995, le Gouvernement australien a déposé au Greffe un document intitulé
«Requête à fin d'intervention présentée par le Gouvernement australien au titre de l'article 62 du
Statut». Le 24 août 1995, les Gouvernements du Samoa et des Iles Salomon ont déposé l'un et
l'autre un document intitulé «Requête à fin d'intervention fondée sur l'article 62 du Statut —
Déclaration d'intervention fondée sur l'article 63 du Statut» dont les termes étaient analogues; et, le
25 août 1995, des documents similaires portant le même titre ont été déposés, respectivement, par les
Gouvernements des Iles Marshall et des Etats fédérés de Micronésie. Cinq documents par
conséquent qui se réfèrent tant à la «Demande d'examen de la situation» qu'à la «Nouvelle demande
en indication de mesures conservatoires» présentées par la Nouvelle-Zélande.
Par une lettre en date du 28 août 1995, reçue au Greffe le même jour, l'ambassadeur de
France aux Pays-Bas, se référant aux demandes de la Nouvelle-Zélande, a notamment fait savoir à la
Cour que son gouvernement considérait : qu'aucune base ne pouvait fonder, ne fût-ce que
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prima facie, la compétence de la Cour pour connaître de ces demandes; que la démarche de la
Nouvelle-Zélande ne s'inscrivait pas dans le cadre de l'arrêt du 20 décembre 1974, qui portait
exclusivement sur les essais «atmosphériques»; que la Cour ayant jugé la demande la
Nouvelle-Zélande de 1973 comme étant sans objet, ladite demande n'existait plus et qu'ainsi la
démarche du 21 août 1995 ne pouvait pas s'y rattacher; que, la Cour n'ayant manifestement pas
compétence, ni la question de la désignation d'un juge ad hoc, ni celle de l'indication de mesures
conservatoires ne pouvaient se poser; et qu'enfin la démarche de la Nouvelle-Zélande ne pouvait faire
l'objet d'une quelconque inscription au rôle général de la Cour.
Copie de cette lettre a immédiatement été transmise par le Greffe au Gouvernement
néo-zélandais.
Le 30 août 1995, j'ai reçu les représentants de la Nouvelle-Zélande et de la France, qui, après
avoir exposé leurs positions respectives, ont été invités, s'ils le souhaitaient, à assister la Cour en lui
exposant brièvement, dans un aide-mémoire informel, leur point de vue sur ce qui paraissait les
opposer in limine, à savoir la nature juridique des demandes néo-zélandaises.
Les deux gouvernements ont eu l'obligeance — et je les en remercie au nom de la Cour — de
répondre positivement à l'invitation qui leur avait été faite. La Nouvelle-Zélande a déposé son
«aide-mémoire» le 5 septembre 1995 et la France le 6 septembre 1995. Chacun des deux Etats a
d'emblée souligné le caractère officieux du document qu'il présentait : d'abord la Nouvelle-Zélande
pour préciser qu'il ne constituait pas un nouvel exposé complet de sa position et ne pouvait être
considéré comme épuisant son droit d'exposer officiellement et publiquement ses vues en ce qui
concerne les questions soulevées par le Président et par la lettre de l'ambassadeur de France en date
du 28 août 1995; et ensuite la France pour préciser à son tour que la présentation de son
«aide-mémoire» ne s'inscrivait nullement dans le cadre d'une procédure régie par le Statut et le
Règlement de la Cour, «s'agissant d'une instance qui n'a pas lieu d'être», ne constituait en aucune
manière l'acceptation de la part du Gouvernement français de la juridiction de la Cour, et ne
préjugeait en rien de son attitude ultérieure.
Ces deux «aide-mémoire» se sont avérés fort utiles à la Cour en ce qu'ils ont confirmé que la
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Nouvelle-Zélande et la France avaient des vues radicalement opposées sur la question préliminaire et
fondamentale de savoir si, en l'absence d'un acte formellement reconnu par le Statut comme apte à
introduire une instance, la Cour se trouvait ou non, en l'espèce, saisie d'une telle instance. Selon la
Nouvelle-Zélande, ses demandes du 21 août 1995 ne s'inscrivent nullement dans le cadre d'une
nouvelle affaire, mais dans celui d'une affaire en cours — celle introduite le 9 mai 1973 —, qui n'a
jamais été formellement terminée et au sujet de laquelle la Cour a expressément réservé, au
paragraphe 63 de son arrêt de 1974, le droit pour le Gouvernement néo-zélandais de «reprendre
l'instance»; d'après la Nouvelle-Zélande, ses demandes entrent dans les prévisions dudit
paragraphe 63 : dès lors, l'affaire doit être reprise au stade de la procédure qu'elle avait atteint à la
date de l'arrêt de 1974 et la Cour doit statuer en priorité sur la «nouvelle demande en indication de
mesures conservatoires». Selon la France au contraire, l'affaire introduite par la requête
néo-zélandaise du 9 mai 1973 a été définitivement close par l'arrêt du 20 décembre 1974 et la
«demande d'examen de la situation» de la Nouvelle-Zélande n'entre pas dans les prévisions dudit
paragraphe 63; cette «demande», toujours selon la France, ne peut être rattachée à aucune disposition
du Statut et ne porte sur aucune «affaire» dont la Cour pourrait connaître; et, en conséquence, aucun
acte de procédure ne peut être effectué, ce qui entraîne l'exclusion de toute audience publique, de
toute procédure incidente et de toute désignation d'agent ou de juge ad hoc. Le Gouvernement
français insiste à cet égard sur le fait qu'il ne soulève aucune sorte d'exceptions préliminaires au sens
de l'article 79 du Statut de la Cour, le problème posé en l'espèce à la Cour se situant «en amont» et la
solution à ce problème constituant un «préalable catégorique» qui ne relève d'aucune procédure
incidente.
La Cour se trouve ainsi confrontée à une situation particulièrement complexe qui paraît sans
précédent. Profondément soucieuse de respecter les principes les plus fondamentaux qui
sous-tendent toute bonne administration de la justice, la Cour a convenu des arrangements que je
vais indiquer. Ces arrangements ne doivent en rien préjuger de la décision qu'elle prendra
ultérieurement quant à l'existence ou non d'une affaire devant elle. La Nouvelle-Zélande et la France
en ont été dûment avisées. Les séances publiques qui se tiendront aujourd'hui et demain auront pour
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objet de permettre à chacun des deux Etats de faire connaître ses vues sur la question suivante :
«les demandes présentées à la Cour par le Gouvernement néo-zélandais le 21 août 1995
entrent-elles dans les prévisions du paragraphe 63 de l'arrêt de la Cour du
20 décembre 1974 en l'affaire des Essais nucléaires (Nouvelle-Zélande c. France) ?»
Aux fins de ces séances, et compte tenu de la composition qui était celle de la Cour au moment
du prononcé de l'arrêt de 1974, le très honorable sir Geoffrey Palmer, désigné pour siéger en qualité
de juge ad hoc par la Nouvelle-Zélande, vient compléter la Cour et va prendre l'engagement solennel
requis.
Sir Geoffrey Palmer est actuellement professeur de droit à l'université Victoria de Wellington
et à l'université d'Iowa; il est aussi procureur et avoué auprès de la Haute Cour de Nouvelle-Zélande
et membre du Conseil privé de sa Majesté. Sir Geoffrey a accompli une prestigieuse carrière non
seulement dans le domaine universitaire, mais également politique : il a en effet successivement
exercé, parmi d'autres, les éminentes fonctions de procureur général, de ministre de la justice, de
ministre de l'environnement et de premier ministre de Nouvelle-Zélande. J'invite maintenant sir
Geoffrey Palmer à prendre l'engagement solennel requis et je prierai l'assistance de bien vouloir se
lever.
Sir Geoffrey PALMER: I solemnly declare that I will perform my duties and exercise my
powers as judge honourably, faithfully, impartially and conscientiously.
Le PRÉSIDENT : Je vous remercie. Veuillez vous asseoir. Je prends acte de l'engagement
solennel de sir Geoffrey Palmer.
Je note avec une grande satisfaction la présence dans la salle de représentants de la
Nouvelle-Zélande et de la France. Avant de leur donner la parole, je souhaiterais encore indiquer
que j'ai reçu le 6 septembre dernier une lettre du premier ministre de Nouvelle-Zélande, dans
laquelle, se référant à l'essai nucléaire effectué le même jour par le Gouvernement français, il m'a
réitéré les demandes que m'avaient déjà adressées précédemment le ministre des affaires étrangères et
l'ambassadeur de Nouvelle-Zélande et qui tendaient à ce que j'use des pouvoirs qui sont reconnus au
Président de la Cour par l'article 66, paragraphe 3, du Règlement de 1972. Je voudrais ici assurer le
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premier ministre de Nouvelle-Zélande et son gouvernement que j'ai été extrêmement sensible à ces
demandes et que celles-ci ont retenu toute mon attention. Il convient cependant de rappeler que les
pouvoirs reconnus au Président par la disposition susmentionnée du Règlement de 1972, comme
également par le paragraphe 4 de l'article 74 du Règlement en vigueur, s'inscrivent expressément
dans le cadre d'une procédure incidente en indication de mesures conservatoires. Je suis convaincu
qu'au vu de la situation juridiquement très complexe que j'ai décrite tout à l'heure, le Gouvernement
néo-zélandais comprendra qu'il était difficile de donner suite auxdites demandes sans nécessairement
préjuger des questions à présent devant la Cour.
Je donne maintenant la parole à M. Paul East, Attorney-General de Nouvelle-Zélande, désigné
comme agent par le Gouvernement néo-zélandais.
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Mr. EAST:
Introduction
1. Mr. President and Members of the Court, as the Attorney-General for New Zealand I am
honoured and privileged to appear before you on this occasion to represent New Zealand in a matter
which is of the greatest importance to it.
2. In 1973 one of my predecessors stood here in this highest Court in support of an application
made by New Zealand. The proceedings concerned French nuclear testing in the South Pacific. The
Government of New Zealand is here now, as it was then, in the spirit of the rule of law amongst
nations.
3. Today New Zealand seeks to continue those same proceedings.
4. I recognize that last Friday the Court decided that the purpose of this public sitting is to
enable New Zealand and France to inform the Court of their views on the following question:
"Do the Requests submitted to the Court by the Government of New Zealand on 21
August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20
December 1974 in the case concerning Nuclear Tests (New Zealand v. France)?"
I will confine my speech, as will those who follow me for New Zealand, to that matter. It is
necessary, however, to put that question asked by the Court into its factual and legal context and its
regional context.
5. There are currently two documents before the Court - one is the Request for an
Examination of the Situation (the Main Request), the other is the Further Request for the Indication
of Provisional Measures (the Interim Measures Request).
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6. The Main Request seeks a declaration from the Court that the conduct of the proposed
nuclear tests will constitute a violation of international law, or alternatively a declaration that it is
unlawful for France to conduct the proposed nuclear tests unless an Environmental Impact
Assessment is conducted according to accepted international standards. Unless such an
Environmental Impact Assessment shows that the tests will not give rise to any radioactive
contamination of the marine environment the tests should not proceed.
7. In view of the fact that the French Government has shown no willingness to reconsider its
decision to break the moratorium on nuclear testing which it and other nuclear weapons states agreed
on in 1992 or even to postpone the proposed series of nuclear weapons tests until the Court has had
an opportunity to consider the matter, New Zealand is also requesting interim measures of protection
from the Court. The need for interim measures has been sharply demonstrated by the nuclear
detonation which took place at Mururoa on 5 September 1995.
8. New Zealand seeks an order from the Court to direct France to refrain from carrying out
any further nuclear tests in the South Pacific region.
9. The Court will be aware of both the urgency and the gravity of the case before it. The
nuclear weapons tests which were looming when New Zealand filed its Request for an Examination
of the Situation and its Further Request for Provisional Measures have now, regrettably, become a
reality with the news that France exploded the first of its series of nuclear weapons tests at Mururoa
on 5 September 1995.
10. New Zealand wishes to express its deep sense of regret and frustration at France's decision
to proceed with its first nuclear weapons tests since 1991 despite the clearly expressed views of the
international community that it should not do so. It is particularly regrettable that France should
begin its nuclear tests before the Court has been able to consider the New Zealand Requests, and
New Zealand sincerely hopes that France will not again act in a way that prejudges the outcome of
this case.
11. It should not be thought that the fact that the nuclear tests have commenced in any way
removes the need for the Court to consider the matter. On the contrary, France's actions in carrying
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out a nuclear weapons explosion on 5 September and the continuing determination of France to
proceed with further tests, scheduled to take place between now and May 1996, highlights the
urgency of this case and the need for immediate provisional measures.
12. For New Zealand and other South Pacific countries this is a matter of vital importance.
Members of the Court will be aware of the rioting and destruction which has occurred in Tahiti
following the recent nuclear detonation. The countries of the South Pacific are gravely concerned at
these developments. New Zealand approaches this Court as an appropriate and responsible forum
which can respond to the legal aspects of the concerns of our region. By having such matters heard
in a considered and judicial manner, it is hoped that much of the tension and anger which has led to
the rioting can be dissipated. It is far better that the opposition to nuclear testing is presented in this
way rather than by civil disobedience.
13. In just a few days the leaders of the South Pacific countries will gather in Papua New
Guinea for the annual meeting of the South Pacific Forum. Their attention will be focused on
French nuclear testing, which is of grave concern to the countries and peoples of the region. Their
attention will also focus on these proceedings in the expectation that the due process of international
law can provide early resolution.
14. My Government is therefore grateful to the Court for the steps it has taken to give New
Zealand an early hearing.
15. The New Zealand Government is most gratified by the appearance of France before the
Court today. This enables the serious issues at stake to be dealt with in accordance with
international law and with the procedures envisaged by the founders of the United Nations and this
Court.
16. When France announced the resumption of nuclear testing on 13 June of this year the New
Zealand Prime Minister immediately made a public statement in the New Zealand Parliament
deploring the French decision and urging the French Government to reconsider its decision. The
New Zealand Parliament then considered a resolution condemning the resumption of French nuclear
testing in the South Pacific. The resolution was supported by all seven political parties represented
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in the New Zealand Parliament and was passed unanimously. Bringing the matter to the Court is not
an attempt of the party in Government to seek any political advantage. It is rather a measured and
responsible action taken with the full participation and support of all political parties in the
Parliament including the Government's political opponents.
17. On 15 June, the New Zealand Permanent Representative at the United Nations Conference
on Disarmament made an announcement similar to that of the Prime Minister's, stating in particular
that New Zealand rejected the argument that further tests are necessary to ensure the safety of
France’s nuclear arsenal before the Comprehensive Test Ban Treaty comes into force. He also
observed that there was no justification that France could advance that would be consistent with the
commitment that it had undertaken that, pending the entry into force of the Comprehensive Test Ban
Treaty, "the nuclear weapon States should exercise utmost restraint".
18. On 4 July 1995 the New Zealand Prime Minister addressed a letter to the French
President, referring to the statement made by the Prime Minister in Parliament, calling attention to
the strong public reaction in New Zealand and indicating that the French decision had cast a cloud
over the relationship between New Zealand and France that would last so long as the nuclear tests
continue. A further letter was sent by the New Zealand Prime Minister to President Chirac on
13 July 1995 stating among other things that
"Small island nations dependent for their livelihood on the sea find the risk associated
with testing unacceptable. Aside from the possibility of accidents there are concerns about the
long-term consequences for the marine environment. Countries of the South Pacific are
unanimous in their opposition to nuclear testing in the region."
19. New Zealand hoped greatly that the diplomatic representations and realization by France
of the strength of public opposition in the world including, it may be said, 60 per cent of its own
people, would lead to the abandonment of French plans to resume testing.
20. In this hope New Zealand was encouraged by its recollection of the fact that
President Chirac’s predecessor, President Mitterrand, had on no fewer than three occasions expressly
linked the continuance of French restraint in nuclear testing to the exercise of similar restraint by the
United States and Russia.
21. It was, therefore, a considerable change of position that the clearly stated and firmly held
- 19 -
policy of one President should now be repudiated by his successor. That change in position had to
be carefully considered by the New Zealand Government, the more so given the warm nature of New
Zealand’s relationship with France and the ties which the two countries had in common.
22. Eventually the Prime Minister of New Zealand, on 17 August 1995, had to write to the
President of France in the following terms:
"We have earnestly sought to appraise all the avenues of action that are open to the
New Zealand Government in order to further our view-point and to protect the national and
international interests that we consider important. Needless to say, in this process we seek to
act moderately in a manner consistent with the bilateral relationship between our ... countries
which, I agree with you, is both cordial and permanently based."
The letter then went on to inform the French President that New Zealand had decided to have
urgent recourse to the opportunity afforded by the Judgment of 20 December 1974 in the Nuclear
Tests case.
23. In short, Mr. President and Members of the Court, New Zealand’s response to the French
announcement of 13 June, as it finally emerged in legal form when we lodged our Request for an
Examination of the Situation of 21 August, is one which New Zealand deferred until New Zealand
had thoroughly explored with France the possibility that France would change its mind.
Background
24. Mr. President, as the Court will be aware, New Zealand’s concerns about the legality and
safety of nuclear testing in the South Pacific are long-standing.
25. New Zealand is not returning to this Court on a sudden impulse. There has been
continuous opposition, on New Zealand’s part, to nuclear testing in the region. This was not broken
by France’s decision, in 1974, to stop testing in the atmosphere in the South Pacific.
26. As stated, our opposition is of long standing. Amongst other things, it reflects concern for
the South Pacific environment. It has also reflected the strong attachment of New Zealand, and other
South Pacific countries, and most of the international community, to nuclear non-proliferation and
the goal of nuclear disarmament.
27. Since 1972 New Zealand has taken a lead in tabling a resolution each year at the United
Nations General Assembly calling for a comprehensive test ban treaty to be negotiated. In 1993, for
the first time, and again in 1994, the resolution was adopted by consensus. The negotiations on a
- 20 -
comprehensive test ban treaty underway in the Conference on Disarmament have been very much
welcomed by New Zealand. The potential impact of resumed nuclear testing in the South Pacific, on
the progress towards that ban has of course heightened alarm over the French decision. There is
considerable concern that renewed French nuclear testing may jeopardize these negotiations.
28. Mr President, New Zealand’s opposition to nuclear testing, and nuclear weapons, has also
been expressed in domestic legislation, the New Zealand Nuclear Free Zone, Disarmament and Arms
Control Act, which was enacted by the Parliament of New Zealand in 1987. Amongst other things
that Act creates a nuclear free zone within New Zealand and gives effect at the national level to our
related international obligations.
29. The New Zealand Act therefore complements the South Pacific Nuclear Free Zone which
was established in 1986 by the entry into force of the Treaty of Rarotonga. That treaty reflects the
collective will of South Pacific nations.
30. The 1973 case, under which New Zealand now seeks to return to the Court, related not
just to New Zealand itself but also to the Cook Islands, Niue and the Tokelau Islands (now called
"Tokelau"). The same applies to the Requests presently before the Court. This is because New
Zealand’s acceptance of the Statute of the Court embraces these areas of the Pacific.
31. The Cook Islands and Niue are self-governing states in free association with New Zealand
- having carried out acts of self determination under United Nations supervision.
32. Both Governments have given their full support to New Zealand’s action in bringing the
matter before the Court.
33. New Zealand continues to have responsibility for the administration of Tokelau under
Committee of 24 supervision. Tokelau has indicated its support for New Zealand's stance on
France's decision to resume nuclear testing in the South Pacific in a letter from the Council of the
Faipule to the Administrator of Tokelau. The Council of Faipule is made up of one representative
from each of the three atolls that make up Tokelau.
34. And, Mr. President, New Zealand has made available to the Court copies of each of these
letters from these countries.
- 21 -
35. Mr. President, when my predecessor appeared here in 1973 in the early phase of this case,
he told the Court that New Zealand's concern regarding nuclear testing were strongly shared by the
peoples of the South Pacific region. He referred to a regional identity based on ethnic and cultural
ties, and to the emerging collective role reflected in the recently formed South Pacific Forum, which
is the annual meeting of leaders from self governing countries in the region.
36. This regional identity has grown in the intervening period. The South Pacific Forum had
seven members in 1973. In 1995 the membership has grown to 15.
37. The region's leaders, speaking through the South Pacific Forum, and bilaterally, have
consistently opposed nuclear testing in the South Pacific, and the region's use for nuclear purposes
generally. This stance has been expressed in a great number of resolutions adopted in the Forum's
annual meetings.
38. Forum Communiqués and resolutions over the years show not only strong political
opposition to nuclear testing in the region but also serious concern about the risks to the environment
as a result of the tests. This concern for the environment is reflected in numerous requests that have
been made by the region for full and open scientific access to the testing sites. Regrettably, these
requests have never been satisfactorily met by France.
39. It was with great relief, therefore, that the South Pacific Forum welcomed the decision of
France in 1992 to cease nuclear testing in the region. The Forum's strong wish - and, indeed its
expectation, given the public statements by the French President - was that this decision would lead
to a permanent end to nuclear testing in the South Pacific. There is now deep disappointment in the
region that the moratorium on testing has been broken.
40. Traditionally this region has been dependent on the marine environment for sustenance and
survival. Many Pacific peoples live on small islands and atolls where land resources are very
limited. This has lead to a strong dependence on the oceans.
41. The value placed on the marine environment was demonstrated by the conclusion in 1986,
of the Convention for the Protection of Natural Resources and Environment of the South Pacific
regions, known as the Noumea Convention. This Convention, which entered into force on 22 August
- 22 -
1990 reflects the collective wish of all countries in the region to take concrete steps to protect the
environment, and to engage in this process those nuclear powers which are valued partners in the
region. Indeed, it was particular concern about radioactive contamination which triggered the
negotiations on the Convention.
And the region welcomed France's ratification of that Convention on 17 July 1990.
42. Now while there are many environmental conventions around the world, the Noumea
Convention is perhaps unique in that it specifically addresses the issue of radioactive contamination
from nuclear testing. The parties are expressly obliged to "take all appropriate measures to prevent,
reduce and control pollution in the Convention Area which might result from the testing of nuclear
devices". There are also other quite specific requirements, including those relating to Environmental
Impact Assessments.
43. Mr President, this language, the language of the Noumean Convention, was very carefully
chosen. It is not intended to condone testing in the region. But it did impose quite specific
obligations on any Party which has tested in the past, and any which might fly in the face of regional
wishes in testing in the future.
44. It is clear that the only way France could carry out its obligations under the Convention
would be to do an Environmental Impact Assessment. I can also do no better, Mr President, than to
repeat the words used by the French Foreign Minister, in an open letter to the Australian public
published in the Sydney Morning Herald on 28 July 1995: and he stated "openness is the sole
remedy against fear". France has stated many times that it is committed to a policy of transparency
in relation to its nuclear testing. This assurance has been given time and again at both the political
and diplomatic level. But that transparency has never been fully evident, and the concerns of New
Zealand and the other countries of the region have never been fully satisfied.
45. It is important to the region to have an Environmental Impact Assessment, because France
is conducting its underground nuclear tests in a unique environment. Whereas other underground
nuclear tests have taken place in continental land masses, France is conducting its test in the fragile
marine environment of two small atolls. The atoll structure is porous, and water saturated and
- 23 -
interacts directly with the oceans.
46. Indeed, I would suggest that the reason France has chosen Mururoa and Fangataufa for its
current testing sites has nothing to do with their inherent suitability for underground testing. Rather,
it was because the infrastructure for conducting nuclear tests was already in place as a legacy of the
atmospheric tests conducted on the atolls until 1974. And indeed, the French Ambassador to the
United States has said as much.
47. The quest for information about the tests has been a central feature of the region's
approach to France on this issue. In particular the region has pressed for access to the testing sites
by scientific missions.
48. While some access has been allowed on three occasions, in each instance access has been
strictly controlled, and the missions have been narrowly focused and of limited duration. My
Government would like to make clear that none of the scientific investigations permitted by France to
date satisfy New Zealand or indeed the rest of the region about the safety of the tests. Nor do they
meet France's obligations under general international law or under the Noumea Convention to
conduct an Environmental Impact Assessment. There has never been a comprehensive
Environmental Impact Assessment carried out in accordance with contemporary environmental
standards.
49. On the contrary the information which is available regarding the risks of contamination
surrounding underground nuclear testing at Mururoa has further fuelled the fears and legitimate
concerns of the South Pacific States.
Summary of New Zealand case on continuity
50. Mr President, I turn now with your leave, to explain in summary form the nature and legal
objective of the Requests that have been made to this Court. This summary will be developed by my
colleagues present with me now: the Solicitor-General of New Zealand, Mr John McGrath, QC; the
President of the New Zealand Law Commission, Sir Kenneth Keith, QC; the Legal Adviser of the
Ministry of Foreign Affairs and Trade, Mr Don MacKay; and Professor Elihu Lauterpacht, CBE,
QC.
- 24 -
51. The first point which will be made is that this is not a new case. Rather New Zealand is
relying upon the right reserved to it by the Court in the previous phase of this case in 1974.
52. When New Zealand commenced this case, France was conducting atmospheric nuclear
weapons tests in the South Pacific region. After protesting strongly against the nuclear weapons
tests for a period of 10 years, New Zealand took the decision to bring legal proceedings against
France in this Court.
53. One basis of the proceedings commenced in 1973 was that the nuclear tests were in
violation of international law in that they violated the rights of all members of the international
community to the preservation of the terrestrial, marine and aerial environment from unjustified
artificial radioactive contamination. At the same time the New Zealand Government sought from the
Court a determination that the conduct of nuclear tests in the South Pacific region that gave rise to
radioactive fall-out constituted a violation of New Zealand’s rights under international law and that
these rights would be violated by any further such tests.
54. Because of the urgency of the situation New Zealand also sought interim measures of
protection from the Court in the form of an order that France refrain from conducting any further
nuclear test that gave rise to radioactive fall-out until the Court had decided the case.
55. This request for interim measures of protection was granted and the Court indicated that
the Parties should take no action to aggravate the dispute or to prejudice the rights of the other party
and that in particular the French Government should avoid nuclear tests causing the deposit of
radioactive fall-out on the territory of New Zealand, the Cook Islands, Niue or the Tokelau Islands.
At the same time, the Court ordered that the next stage of the proceedings should be addressed to the
questions of the jurisdiction of the Court to entertain the dispute and of the admissibility of the
Application. Notwithstanding the 1973 Order France conducted further atmospheric nuclear tests
later in 1973 and in 1974.
The Court's decision and the right reserved to New Zealand
56. In 1974 the Court heard oral argument on those questions of jurisdiction and admissibility.
- 25 -
However, both before and after that oral hearing, the French Government had made a number of
statements concerning its intentions as to future nuclear testing in the South Pacific region. The
Court at that time interpreted these statements as constituting a binding undertaking on the part of
the French Government to cease atmospheric tests. In paragraph 29 the Court held that the claim of
New Zealand was to be interpreted as applying to atmospheric testing only. The Court concluded
that as a consequence of the undertaking by France that the essential New Zealand concerns had
been met.
57. And accordingly¸ the Court concluded that it was not at that time necessary for it to make
any further pronouncement on the case. However, this conclusion was subject to the qualification
reflecting the fact that the only testing then conducted, the only testing then conducted, in the South
Pacific was atmospheric testing. The Court recognized that case was clearly decided on this basis.
In reaching this conclusion, however, the Court specifically reserved to New Zealand a most
important right, the right to return to the Court in the event that the basis of the Judgment was
affected. In that event, New Zealand could request an examination of the situation in accordance
with the provisions of the Statute. This right was specifically spelled out in paragraph 63 of the
judgment of the Court delivered on 20 December 1974.
58. The Court also added that the denunciation by France in January 1974 of the 1928
General Act on which New Zealand relied as one of the bases of jurisdiction in the case could not
"by itself constitute an obstacle to the presentation of such a request". This addition is highly
significant because, for reasons which will be elaborated later, it shows clearly that the Court in
adopting this unprecedented procedure had in mind that any proceedings which might subsequently
be taken would represent a continuation of the same case, not the commencement of a new case.
59. In 1974 the assumption was made by all involved that the French decision to terminate
nuclear testing in the atmosphere and to shift its tests underground met the immediate concerns of
New Zealand about the contamination of the environment. But New Zealand’s wider concerns
remained, as New Zealand’s application indeed made clear. Those wider concerns related to future
conduct by France. No thought was given at that time to whether underground nuclear testing might
- 26 -
lead to some of the same environmental consequences that were the subject of New Zealand’s
application. And the only testing taking place in the South Pacific at this time was atmospheric
testing.
60. Underground testing at the moment of the Judgment was not in issue, and the Court had
before it no evidence that such testing either could or could not lead to radioactive contamination of
any part of the environment.
61. The essentials of the matter are that in 1974 the Court adopted a novel device for dealing
with the situation before it. In this respect the Court was using its inherent power to regulate its own
procedure and to do as it thinks appropriate for the achievement of justice. The procedure adopted
in 1974 was in the same line of development as the procedure which it was to adopt, the Court has
adopted in its Judgment of 1 July 1994 in the case of Qatar v. Bahrain (I.C.J. Reports 1994,
p. 112). In the operative part of that Judgment the Court did not respond to the submissions of either
party - on the part of Qatar that the Court had jurisdiction in the case and on the part of Bahrain that
it had not. Instead, it took the very unusual course of remitting the matter to the parties in order to
afford them the opportunity to submit to the Court the whole of the dispute. In so acting, in the
absence of any specific authority in the Statute, the Court was doing no more than exercising its
inherent power to regulate its own procedure. In each case of the exercise of such power it is for the
parties to bring themselves within the specific terms of the procedure laid down by the Court. And
this is precisely what New Zealand is seeking to do in its present Request for an Examination of the
Situation.
62. The Court has asked us to address the issue of whether our current Requests fall within
the provisions of paragraph 63 of the 1974 judgement. In order to answer this it is necessary to
consider the circumstances in which the right reserved to New Zealand can be exercised.
63. One possibility certainly is that it might be affected by a resumption by France of
atmospheric nuclear testing. And if that were the sole possibility, if France started atmospheric
testing again, then New Zealand, if that was the only possibility that we could come back to the
Court on, then we would not be able to maintain these present proceedings.
- 27 -
64. But on the other hand, it is more likely that in considering the idea that the basis of the
judgment might be affected in some way the Court was concerned that the resumption by France at
some future time of nuclear testing could give rise to artificial radioactive contamination of the
environment, and give rise to artificial radioactive contamination of the environment in a manner not
foreseen in 1974. That, New Zealand contends, is what the Court must have had in mind. As
New Zealand has pointed out in its main Request and spelled out in fuller detail in its Aide-Mémoire,
is it to be imagined that when France announced its intention to terminate atmospheric testing
(precisely, it may be noted, because such testing could lead to radioactive contamination), it did so
subject to the following reservation?: "But we reserve the right to cause radioactive contamination
of the marine environment by methods other than atmospheric testing, perhaps by underground
testing."
65. That notion is absurd. The truth of the matter must be that when France gave up
atmospheric testing and indicated that in future underground testing would suffice for its needs, it did
so because atmospheric testing was at that time the sole known method of causing the contamination
of which New Zealand complained, while underground testing was thought not to give rise to such
risks.
66. So it was not atmospheric testing that was in issue. It was testing that could cause
radioactive contamination not only of the territory of other States but also of the marine environment
in which other States have an interest. When France resorted to underground testing, it was not
underground testing as such that it chose, but a method of testing that was at that time thought to be
free of the risk of causing radioactive contamination of the environment.
What has triggered New Zealand’s exercise of this right - why do we come
to the Court now?
67. New developments between the Court’s Judgment in 1974 and the present Request have
justifiably reactivated New Zealand’s original fears regarding the risk of contamination of the
environment. These developments are such that the world can no longer be expected to rely upon the
bare assertions that these tests are safe.
- 28 -
68. And, accordingly New Zealand exercises the right reserved to it in the 1974 Judgment to
return to the Court. It returns to the Court with the Request entitled “Request for an Examination of
the Situation” - a title exactly reflecting the wording in which paragraph 63 of the 1974 Judgment
expressed the object of such a return to the Court.
69. Until fairly recently the evidence has been that leakage of radioactive material from
Mururoa has been gradual and limited. However, recently and somewhat belatedly, increasing
evidence has emerged of scientific concern about the possible environmental impacts of underground
testing. This includes the work of a noted French vulcanologist, Professor Pierre Vincent, whose
article on the environmental risks of nuclear testing at Mururoa is included as an annex to the Main
Request. Professor Vincent has written:
“All the factors now known to be conducive to the destabilisation of
volcanoes - major weathering and fracturing of materials, and steep sides -
are present at Mururoa. In view of that fact, the shock wave produced by
one of the planned new explosions, even if it were conducted beneath the
lagoon, could be big enough to cause one or more of the large “preperforated”
blocks to shear away. This situation, which has no parallel
anywhere else, can only be described as high-risk."
And those are the words of Professor Vincent "high-risk". He goes on
"The immediate consequence of such a destabilisation would be a
sudden spill-out of part of the radioactive “stockpile” into the sea and the
formation of a tidal wave - or, more accurately speaking, a tsunami - which
would threaten the lives of those living not only in Mururoa but in
neighbouring archipelagoes.”
An example of more extreme scientific concern comes from Dr. Colin Summerhayes, the
Director of the Institute of Oceanographic Sciences in the United Kingdom. Research on underwater
landslides is new and it is only in recent years that the potentially catastrophic results of a landslide
have become known. And Dr. Summerhayes is quoted, just on 9 September 1995, in the
Independent newspaper saying that volcanic islands like Mururoa were:
“inherently unstable and may fail, given an appropriate trigger like an
earthquake or a very large explosion. Failure is likely to cause a giant
submarine landslide which may demolish parts of the island and could
create a tidal wave that may itself damage coastal installations on other
islands nearby.”
Furthermore he stated that the creation of such a tidal wave was “a general threat to coasts as far
- 29 -
away as New Zealand and Australia”.
70. The possibility that the south-western sector of Mururoa in particular may leak as a result
of further testing has become apparent in the last few months and it has become apparent from
documents published by the French Atomic Energy Agency Commission itself. The data they
present shows that the largest tests of the 1970s and 1980s took place in a small area of the western
part of Mururoa, and that some had unanticipated effects. Some tests took place closer to the outer
flanks than was desirable from a safety point of view. There must now be concern that some of
these old detonation chambers could become exposed directly to the ocean if further testing should
generate additional fracturing in that area.
71. And it has been known for many years that accidents have occurred on Mururoa. There
were three submarine landslides on the outer flanks of the atoll in 1977, 1979 and 1980 as a result of
large tests conducted under the rim. The largest of these landslides in which approximately one
million cubic metres of material was dislodged generated a tidal wave that swept over part of the
atoll, seriously injuring two people.
72. In addition to these accidents, which were acknowledged shortly afterwards by France,
there have been at least two accidental releases of radioactivity during post-test sampling operations.
These were acknowledged by France only after their occurrence had been established independently.
Furthermore, it was only in the monograph published recently by the Atomic Energy Commission
that the fact that a device had to be detonated at less than its planned depth in 1979 was finally
admitted.
73. One of the essential complaints of the present proceedings is that there is a reasonably
founded concern that what France has already done to the two atolls may cumulatively have so
weakened their structures that further tests may develop the weaknesses and fracture the structures
in a way that leads to a substantial escape of radioactive material and risk to the marine
environment. There is now reason to fear that these risks are substantially higher than was
previously believed to be the case.
74. As knowledge about the risks of radiation and nuclear testing has increased so too have
- 30 -
the standard applied to these activities by the international community. These increased standards
can be seen as a response to the increased understanding regarding the risks to the environment. A
notable example of these increased standards is the development of the law on Environmental Impact
Assessment.
75. It can now be said that there is a clear legal obligation on France to conduct an
Environmental Impact Assessment before carrying out any further nuclear tests at Mururoa and
Fangataufa both as a consequence of France’s participation in the Noumea Convention and also as a
result of customary international law derived from widespread international practice.
76. Closely linked to this is the emergence of a very widely accepted and operative principle of
international law: the precautionary principle. In the field of environmental protection it has come
to be recognized that insistence that a complainant must carry the burden of proving that the conduct
contemplated by the respondent will lead to damage, could rise to situations where irremediable
damage would occur.
77. The principle provides that where there are risks of serious or irreversible damage lack of
scientific certainty should not be used as a reason for postponing measures to prevent environmental
degradation. The precautionary principle has been applied in a wide number of situations
domestically and internationally and is contained in many international treaties. It is also,
significantly, incorporated in French domestic law regarding protection of the environment. Because
of the potentially devastating and long-lasting effects of radiation the precautionary principle is
particularly applicable to nuclear matters.
78. Mr. President and Members of the Court, again I return to the question before the Court.
How do these matters submitted in 1995 fall within the provisions of the 1974 Judgment. Put
another way - why does New Zealand contend that the basis of the 1974 Judgment has been
affected? It must be kept in mind that in recent years of course France has honoured a moratorium
preventing any nuclear testing, but there are three new developments - three new developments -
providing compelling reasons for New Zealand to make its Requests.
First, there is new evidence regarding the cumulative effect of underground testing which gives
- 31 -
foundation to the fears held by South Pacific nations.
Second, the Noumea Convention requires France to cease testing until at the least an
Environmental Impact Assessment has been completed.
And third, new developments in international law particularly the precautionary principle
place the onus of proof on France to offer satisfactory evidence that this testing is safe.
Mr. President, can I now request that you allow the New Zealand Solicitor-General, Mr.
McGrath, QC, to address the Court.
The PRESIDENT: Thank you very much, Mr. Attorney-General. I give the floor to the
Solicitor-General for New Zealand, Mr. John McGrath.
Would you be kind enough to make your statement in such a manner to be ready to interrupt
it, let's say around 5.30 p.m. in order to have a break of ten minutes - but of course it's up to you.
Mr. McGRATH: Mr. President, Members of the Court, it is an honour for me to appear
before this distinguished Court.
Introduction to Solicitor-General's Submission
1. The Court has asked the Parties to inform it of their views on this question:
Do the Requests submitted to the Court by the Government of New Zealand on 21 August
1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December
1974 in the case concerning Nuclear Tests (New Zealand v. France)?
2. What the Court is asking is whether New Zealand is able to exercise this right reserved
under paragraph 63 to return to the Court so as to pursue the Application that it filed in 1973. Or,
to put the question another way: does the Court have jurisdiction or is it competent to deal with the
case and to take it up at the stage it had reached in December 1974?
3. Before coming directly to the question put by the Court, I wish briefly to address the
standard which the Court should apply in answering that question at this time. Should it for instance
set an absolute standard and decide the matter in a definitive way, or should it rather apply a prima
facie standard as it does in provisional measures cases?
4. New Zealand submits that in the circumstances the appropriate standard is the prima facie
- 32 -
one. I will give reasons for that submission in a moment, but before doing that I emphasize that
New Zealand will contend that the manner in which it responds to the question formulated by the
Court will in any event meet the most demanding standard that the Court may decide it should apply.
New Zealand has two reasons for contending that the correct standard in this particular process is
the prima facie one.
5. The first reason relates to the jurisdictional character of the issue, and the second to the fact
that New Zealand has requested provisional measures in relation to this case.
6. On the jurisdiction aspect, New Zealand submits that the principle, the constant
jurisprudence of the Court, the Statute and the Rules all require that if jurisdictional issues are to be
resolved definitively and finally then that must be done through a careful oral and written process.
That is the case even where as here the Respondent has not filed a formal notice of preliminary
objection in accordance with the Rules.
7. That careful process involves of course the filing of a written Memorandum, documents in
the nature of a Memorial and a Counter-Memorial, and then oral argument. It is usually a process
that takes some months. It is not in any sense a summary process. Indeed the only summary process
contemplated by the Rules is found in Article 38(5) of their 1978 version and is an administrative
one. It applies when the Applicant invokes the forum prorogatum procedure, when the applicant
invokes no jurisdictional title, but proposes that the potential Respondent will consent for the
purposes of the particular case, and if that consent does not eventuate, that is the end of the matter.
The case does not get on the Court's list.
8. Now that, of course, is not the present situation. New Zealand is not proposing to
commence a new case. Rather it claims to exercise its right to resume the 1973-1974 case.
9. The recognition of the principles of natural justice and due process to be found in the
Court's practice, case-law, the Statute and Rules has two purposes:
First it protects the rights of the States party to the litigation, enabling them to present their
cases in a full and a responsive way.
And secondly it protects the Court by ensuring that before it makes a final decision on a
- 33 -
matter of jurisdiction, it is fully informed of the relevant arguments of law and fact.
10. That the Court is not following that regular process provides the first reason,
Mr. President, for New Zealand's submission that at this stage the Court should make a provisional
prima facie determination only. And I will propose the wording for such a test at the end of the
consideration of the second reason for my submission to which I now turn.
11. And that second reason, as the Court will recall, relates to the fact that New Zealand has
filed a Request for Provisional Measures.
12. The power of the Court to grant provisional measures under Article 41 of the Statute is by
its very nature an urgent one. It is designed to conserve the rights of the parties pending a final
decision in the case. The power is exercised to prevent the risk of irreparable damage to those rights
which are in issue or in dispute in the case before it.
13. Now at this stage, I will not burden the Court with references to the many orders in which
the Court uses tentative and provisional language in this context - the language of risk in relation to
fact and of the disputed nature of the rights being claimed. The Court is not finally deciding
anything, about law or fact, in respect of merits or jurisdiction, or anything else. And I say
"anything else", Mr. President, given the nature of the issue in dispute in this case and the references
in the Rules, in particular in Article 67, paragraph 1, of the 1972 Rules and Article 79, paragraph 1,
of the 1978 Rules to procedures for objections to "jurisdiction", "admissibility" and to any other
objection the decision on which is requested before further proceedings are to take place on the
merits.
14. Priority is another critical aspect of the conservatory nature of interim measures - they are
designed to prevent the risk of claimed rights which cannot be repaired. The power is to be exercised
urgently and in priority to all other matters.
15. Now, that priority is clear both in the practice of the Court and in the Rules. And there is
no other case in which the Court with a Request for provisional measures before it has required an
issue to be argued before it considers the Request. As to the Rules, the same position is made clear
by Articles 66, paragraph 2, and 51, paragraph 1, of the 1972 Rules and by Articles 74, paragraph 1
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and 54, paragraph 2, of the 1978 Rules.
16. Again the Court does not have to be given detailed citations in support of the proposition
that interim relief stage issues of jurisdiction, like issues of the merits at that stage are dealt with in a
prima facie way. But that jurisprudence arises for reasons of principle and the very nature of interim
measures which I mentioned earlier. There is another reason for adopting that standard relating to
the rights of New Zealand as a litigant before the Court in this case.
17. New Zealand would have been required to reach that prima facie standard in respect of
jurisdiction had the Further Request for Provisional Measures, that had failed, been given priority.
New Zealand submits that it ought not be required to match a higher standard at this earlier stage of
the case which the Court has introduced into this process.
18. But finally, on this introductory point of the standard that is to be applied, I should state to
the Court more precisely what standard it is that New Zealand submits the Court should apply. For
the reasons I have indicated, the standard is drawn from the jurisprudence of the Court since 1973.
The test is whether the case presented and, in the words of the Court, "appear prima facie to afford a
basis on which the jurisdiction of the Court might be founded" (the words of the Nuclear Tests
(New Zealand v. France) case in 1973).
19. The late Judge of this Court, Judge Jiménez de Aréchega who agreed with that test in that
Judgment and to its positive application in a number of cases provided a valuable elaboration of the
test in some "brief comments" in the provisional measures Judgment of this case. And what he said,
in my submission, is very helpful in the present stage. This is what he said in 1973:
"I do not believe the Court should indicate interim measures without paying due
regard to the basic question of its jurisdiction to entertain the merits of the application.
A request should not be granted if it is clear, even on a prima facie appreciation, that
there is no possible basis on which the Court could be competent as to the merits. The
question of jurisdiction is therefore one, and perhaps the most important, among all
relevant circumstances to be taken into account by a Member of the Court when voting
in favour or against a request for interim measures.
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On the other hand, in view of the urgent character of a decision on provisional
measures, it is obvious that the Court cannot make its answer dependent on a previous
collective determination by means of a judgment on the question of jurisdiction on the
merits.
This situation places upon each Member of the Court the duty to make, at this
stage, an appreciation of whether - in light of the grounds invoked and of the other
materials before him - the Court will possess jurisdiction to entertain the merits of the
dispute. From a subjective point of view, such an appreciation or estimation cannot be
fairly described as a mere preliminary or even cursory examination of the jurisdiction
issue: on the contrary, one must be satisfied that this basic question of the Court's
jurisdiction has received the fullest possible attention which one is able to give to it
within the limits of the time and of materials made available for the purpose."
20. I repeat, Mr. President, that Judge Aréchega was not stating a higher standard. He made
it clear at the outset in that case that he voted in favour of the Order for the reasons spelt out in the
Order. He agrees, that is to say, with the established prima facie test.
21. New Zealand certainly accepts that statement as a valuable explanation of the difficult
assessment which judges must make in interim assessment cases and submits it is equally helpful in
this case.
22. New Zealand will attempt to show that in this case the Court, following such an approach,
should find that the situation which New Zealand faces, as indicated in the Requests that is has filed
in 1995 read in the context of the Application it filed in 1973 and of the 1974 Judgment as a whole,
but in particular paragraph 63, does, to quote that standard again, "appear, prima facie, to afford a
basis on which the jurisdiction of the Court might be founded".
And I turn now, Mr. President and Members of the Court, to the scope and operation of
paragraph 63 and New Zealand's submissions in that respect.
The scope and operation of paragraph 63
23. It is now my purpose to establish that New Zealand brings before the Court a Request of
the kind that falls within the words that the Court included in paragraph 63 of the Judgment that it
pronounced on 20 December 1974. By that paragraph the Court left open the possibility that New
Zealand’s case, initiated on 9 May 1973, might be resumed before the Court. The words are crucial,
so let me remind the Court of them:
"the Court observes that if the basis of this Judgment were to be affected, the Applicant could
request an examination of the situation..."
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24. New Zealand intends to demonstrate to the Court that, with the announcement of
13 June 1995 by the President of the French Republic, a situation arose of the nature that the Court
had in mind in its Judgment in 1974. This change of circumstances warrants New Zealand bringing
the situation in 1995 before the Court for examination.
25. At the outset of my argument I want to emphasize that the Request that New Zealand filed
on 21 August 1995 seeks the continuation of the proceedings New Zealand commenced in 1973.
While those proceedings were the subject of a Judgment delivered on 20 December 1974, that
Judgment did not bring this case to an end. The current Request is another phase of those
proceedings. The right to bring the Request derives from the terms of the 1974 Judgment. It is not a
new case. I emphasize that New Zealand only seeks remedies within the scope of what it originally
claimed. And indeed, the request is further confined to the concerns of New Zealand in relation to
effects of nuclear testing on the marine environment.
26. In paragraph 63 the Court first said that it did not anticipate that France would not comply
with its commitment to discontinue atmospheric testing of nuclear weapons. The Court next said
that a request of the kind New Zealand has presented could be made if the basis of the Judgment
were to be affected. By that, the Court indicated that if a factor underlying the Court’s Judgment of
1974 ceased to be applicable on account of future conduct by France, then New Zealand had the
right to return to the Court to continue the case. And the paragraph concludes with a reference by
the Court to the denunciation by France on 2 January 1974 of the General Act for the Pacific
Settlement of International Disputes of 1928. That Act was and remains one of the bases relied
upon by New Zealand for the jurisdiction of the Court to determine its case. The Court’s point in
paragraph 63 was that as the denunciation could operate prospectively only, and would be ineffective
to divest the Court of a jurisdiction it already possessed, it would not impede further consideration
by the Court of the case New Zealand had begun in 1973 at a time when, on New Zealand’s
arguments, France was bound by the General Act.
27. Thus New Zealand says that paragraph 63 is a mechanism enabling the continuation or
the resumption of the proceedings of 1973 and 1974. They were not fully determined. The Court
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foresaw that the course of future events might in justice require that New Zealand should have that
opportunity to continue its case, the progress of which was stopped in 1974. And to this end in
paragraph 63 the Court authorized these derivative proceedings.
And now I wish to discuss an essential feature of paragraph 63, the element that it includes
that there is a possibility the case will resume.
Paragraph 63: The Possibility the Case will Resume
28. But for the Court the essential purpose of including the paragraph was to leave open that
possibility. And to that end, it exercised inherent powers to preserve its jurisdiction in appropriate
circumstances to make a decision that that might happen.
29. In its Ambassador’s letter to the Registrar of 28 August 1995, France maintains that
New Zealand’s Request does not comply with Article 38, paragraph 5, of the Rules of Court of
1978. That letter indicates that France conceives New Zealand’s request to be a new proceeding
founded on a consent not yet given. But that of course is not the case. However, because France
raises the point it is necessary for me to show that as a matter of interpretation in paragraph 63 the
Court expressed its purpose of ensuring the Judgment did not bring the case to an end.
30. Members of the Court, this is absolutely clear. New Zealand is given a right, in stated
circumstances, "to request an examination of the situation in accordance with the provisions of the
Statute". Those words are only capable of meaning that the presentation of a Request for such an
examination is to be part of the same case and not a new one.
31. If reinforcement of this plain truth were necessary it is provided by the final sentence of
paragraph 63, where the Court refers to the denunciation by France of the General Act on which
New Zealand in part relies for jurisdiction. That denunciation could not of itself preclude the
continuing operation of the acceptance of jurisdiction by France in relation to the 1973 dispute if a
Request under paragraph 63 is presented. The reason why the French denunciation would have been
ineffective is that it took place after jurisdiction had become vested in the Court in respect of that
application and because a Request for examination under paragraph 63 would fall under the rubric
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of that application.
32. The 1974 Judgment did not directly determine any of the issues raised in New Zealand's
1973 Application. Indeed, only two matters were finally decided in that Judgment. The first was
that the French statements of intention in relation to atmospheric testing were binding obligations in
international law. The second was that those commitments met or matched New Zealand's primary
concerns in the case, so that there was no purpose in continuing with the case as matters then stood.
33. Now the reasons for that conclusion can readily be discerned from the Judgment of 1974.
New Zealand's case at that stage had not moved beyond its preliminary phase. New Zealand had not
developed its pleadings on the merits. Nor had the Court addressed the merits of the dispute: indeed,
it reminded itself that it should "avoid all expressions of opinion on matters of substance", in the
words of its 1974 Judgment. At this point in the case the Court concluded that the unilateral
commitment of France matched the essential object of New Zealand's claim and indeed the
declaration that New Zealand might then seek from the Court. It followed that the dispute at that
time had was moot, and without object, and this meant there was no further purpose in the exercise
of the Court's judicial function even at that very early stage in the case.
34. But the Court at the same time recognized that the premises underlying its decision that
the case should not proceed further might, depending on the course of future events, no longer
become applicable. In its application of 1973 New Zealand had expressed wider concerns than
those identified in the 1974 Judgment and future events might so involve those wider issues of the
case that, in the interests of justice, New Zealand should be able to proceed with it. The bar to the
case proceeding could then be lifted by decision of the Court if New Zealand made the appropriate
application, and for those reasons the Court preserved the right of New Zealand to approach the
Court, as New Zealand has now done.
35. The Court realized that if its jurisdiction were not so preserved New Zealand's position
would be imperilled. France had withdrawn from the Court's jurisdiction after the case had begun.
It would have been unjust in those circumstances to require New Zealand to look to a new source of
jurisdiction operating at some undetermined future time before it could ask the Court to examine the
situation as provided by paragraph 63. New Zealand, the Court decided, should rather be able to
rely on the source of jurisdiction that was originally available in 1973. In the next phase of my
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argument I wish to place emphasis on the conditions for the operation of paragraph 63.
The Conditions for the Operation of Paragraph 63
36. The right that it gives New Zealand to present a Request is a conditional right. It is only if
the "basis of the Judgment is affected" that New Zealand becomess entitled to request an
examination of the situation, and that raises the crucial issue: What was "the basis of the
Judgment?"
37. Those words refer to the conditions subject to which the Court would be able, at New
Zealand's request, to resume hearing the case. Obviously they would include a situation in which
France was not complying with the commitment that it made in 1974. But, Members of the Court,
there is nothing to indicate that the Court saw this as the only circumstance in which the basis of the
Judgment might be affected by future conduct on the part of France.
38. Had it been the Court's intention to confine resumption of the case to a situation where
France had reverted to atmospheric testing, the Court would have said so. It did not. Instead it
framed the test in broad words which raised the question of whether the rationale underlying the
Judgment of 1974 continued to apply. It is argued by France that only future atmospheric testing is
covered by the right to go back to the Court. But that, Members of the Court, is contradicted by the
very generality and wide scope of the words "if the basis of the Judgment is affected". Indeed, if you
look at the whole of paragraph 63, it is impossible to treat the French unilateral undertaking to cease
atmospheric testing as the only event that would change the basis of the Judgment. The first
sentence of the paragraph says that the Court is not prepared to contemplate a breach of its
undertaking by France. How, then, can it be argued that the second sentence contemplated solely
that possibility?
39. No less a part of the basis of the Judgment of 1974 was the Court's assumption that
since France had in the South Pacific only conducted atmospheric testing, the concerns of New
Zealand, although spelt out more widely in its application, could at that stage in fact be equated with
such testing alone. France of course had undertaken to discontinue that form of testing. Therefore
and on that basis the claim of New Zealand had no further object at that time.
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The Two Assumptions forming the Basis of the Judgment
40. Thus it can be seen that in reality two assumptions by the Court formed the basis of the
1974 Judgment. One was that France would comply with its commitment to cease atmospheric
testing thereafter confining itself to underground testing. The second assumption was that the
cessation of atmospheric testing met and matched New Zealand's allegations and concerns regarding
nuclear contamination as they stood in 1974. New Zealand will show that it is this second
assumption in particular that in 1995 is no longer applicable. In consequence the basis of the
Judgment is affected. And, given the recent decision by France to end its moratorium on nuclear
testing, New Zealand believes it is now entitled to proceed with its 1973 case.
The Assumptions of the Court
41. As I said, the Court assumed that France would comply with its commitment to give up
atmospheric testing; that is explicit in the opening sentence of paragraph 63.
42. The commitment made by France was identified by the Court from its reading of the
public statements in 1974 by officials of the French Government. It is true that in these statements
France described the nuclear weapons testing it proposed to abandon as "atmospheric" and the
testing which it proposed to pursue as "underground". But to interpret the use of those adjectives
literally would distort the purpose the Court perceived in the commitment given by France. What
France promised, or was understood by the Court to have promised,was that it was ceasing nuclear
testing of a kind that contaminated the environment. The Court must have understood this to be the
effect of France's promise and New Zealand gave its judgment on this basis. And that's what we say
in relation to the first assumption.
43. The second assumption of the Court that I have outlined is, we say, fundamental to the
basis of the Judgment. And this was that the atmospheric testing of France, in 1974, could be seen
as the practical concern of New Zealand in this case. Now to establish what those concerns were
and how they developed during the case it is necessary to go back to the document that initiated the
case in 1973. The Court's pertinent observation in 1974 has equal application to the phase of the
case of 1995. And in the words of the Court: "The Court must ascertain the true nature of the
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dispute, the object and purpose of the claim." (Nuclear Tests (New Zealand v. France), Judgment,
I.C.J. Reports 1974, p. 467.)
44. Now turning to the 1973 Application, New Zealand asked the Court to declare:
"That the conduct by the French Government of nuclear tests in the South Pacific
region that give rise to radio-active fall-out constitutes a violation of New Zealand's
rights under international law and these rights will be violated by any further such
tests." (Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974,
p. 460.)
45. Deliberately, and in contrast to the approach of Australia in its contemporaneous
application, New Zealand did not restrict the term "nuclear tests". It was Australia that constantly
used the adjective "atmospheric". And the reason for New Zealand's broader focus was that its
concern was not just with atmospheric testing but with any testing that gave rise to environmental
contamination. That might be by radioactive fallout on New Zealand - which was one aspect of its
case. But it might also be by radioactive contamination of the marine environment which was
another aspect of the case and is the particular concern leading to the 1995 Request.
46. This broad question was then developed by New Zealand in its pleadings on jurisdiction
and admissibility. The statement of its rights that it made and of the manner they were being
breached by French nuclear testing was not confined to atmospheric testing. The common theme is
rather the protection of the rights of New Zealand and all other countries from unjustified
contamination by radiation. In particular New Zealand invoked non-territorial rights, including the
right to
"the preservation from unjustified artificial radioactive contamination of the ....
maritime .... environment and, in particular, of the environment of the region in which
the tests are conducted and in which New Zealand ..... (is) situated." (1973
Application para. 8 - quoted in Request, para. 13.)
47. As stated in New Zealand's Aide-Mémoire to the President in this case, this broad
expression of New Zealand's concerns was repeated in its further pleadings such as its Request for
Interim Measures made in May 1973 (para. 2) and in particular the measures New Zealand proposed
(para. 51). I refer also to its Memorial on Jurisdiction and Admissibility, paragraph 191.
48. Now, perhaps before the adjournment, Mr. President, I would like to make one other
important point. In its Ambassador's letter sent to the Registrar on 28 August 1995 France refers to
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paragraph 29 of the 1974 Judgment. And the letter argues, in reliance on paragraph 29 that
New Zealand is making an entirely new request by bringing into question underground nuclear
testing in 1995.
49. New Zealand's view, however, of paragraph 63 is one fully consistent with paragraph 29.
In that paragraph the Court refers to statements by two New Zealand Prime Ministers indicating that
an assurance that nuclear testing was "finished for good" would meet the object of New Zealand's
claim. Therefore, the Court concluded the claim was to be interpreted as applying to atmospheric
tests only. That finding, however, was reached on the facts as they then were for that was the basis
of the Judgment on this point.
50. New Zealand did not in 1974 abandon and has never since abandoned its wider concerns.
True, there was an immediate concern over atmospheric testing and New Zealand's officials did
desire that there be an assurance that "atmospheric testing" was "finished for good". The only mode
of testing then used by France in the South Pacific was atmospheric testing. But the wider concerns
remained. And the Court was fully aware of the wider concerns expressed by New Zealand which I
have referred to. The Court's purpose in paragraph 63 was to protect New Zealand if any future
conduct by France should legitimately give rise again to those concerns. The Court in 1974 did not
have before it any allegations about underground testing nor any evidence of contamination by
underground testing. And for the Court in 1974 to have engaged itself in that matter would have
involved a speculation inappropriate to the Court's function. Understandably, the Court was not
prepared to deal with New Zealand's case then on that basis. But what if that basis were to change?
Paragraph 63 is to be read as covering this eventuality, the eventuality that France's change to
underground testing with consequences not anticipated by the Court might require further
examination. It was such unknown developments that the Court had in mind caused by a future
change in the conduct of France as being what might affect the basis of its Judgment.
51. So, New Zealand says the strong likelihood is that the Court deliberately left the phrase in
paragraph 63, "the basis of the Judgment" open and undefined, precisely so that a range of future
possibilities might be covered. It was not prepared to contemplate a breach by France of its
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undertaking not to resume atmospheric testing. But at the same time it accepted that New Zealand
must have a right to resume its Application if, despite the cessation of atmospheric testing, its fears
of radioactive contamination from nuclear testing could later be shown to have become justified.
This apprehension might in future arise from underground testing which contaminated the
environment or it might arise from the method chosen by France to store or otherwise dispose of
radioactive waste generated by nuclear testing. It might even arise from underwater testing. The
Court could not specify.
52. So in short therefore New Zealand says the Court must have left the phrase "the basis of
the Judgment" deliberately undefined because it was not prepared to speculate about future possible
developments concerning which it had no evidence. However it wished to protect New Zealand
generally from future actions of a broad kind. If the assumptions of 1974 were no longer to hold
true, if New Zealand's concerns stated in the 1973 Application were to be reactivated by some future
conduct by France other than atmospheric testing, then New Zealand should be free to resume its
case. Provided always, of course, that in resuming its case New Zealand kept within the framework
of its original Application.
Mr. President that would be a convenient time to break.
The PRESIDENT: Thank you very much, Mr. McGrath. The Court will resume this session
after a break of 15 minutes.
The Court adjourned from 5.30 to 5.45 p.m.
The PRESIDENT: Please be seated. Mr. McGrath, you have the floor.
Mr. McGRATH: Mr. President, Members of the Court, at the adjournment I had put it to you
that New Zealand in 1973 and 1974 brought its case to the Court on the basis that the nuclear testing
by France was creating a risk to the environment through emission of artificial radioactive material.
The Court reached its conclusion on a confined basis in relation to atmospheric testing. It did that,
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New Zealand says, because that was the only form of testing then being conducted and the promise
of France to end that form of testing, the Court held, met New Zealand's object. But in providing in
paragraph 63 for the possibility that New Zealand might bring back this case to the Court, it was
concerned to protect New Zealand and South Pacific countries in case of a change to the situation
which could not be anticipated by the Court on the evidence then before it. And that in essence is
what speakers later to follow me will demonstrate has actually occurred.
An Image of New Zealand’s Concerns
53. But at this stage I wish to depart briefly from the course of my argument to offer the
Court an image of the New Zealand perception of its attitude to nuclear testing in the South Pacific.
It is represented by three concentric circles. The outer circle represents the most general concerns
and the inner the most specific and particular concerns. The outer circle represents New Zealand’s
concern about all forms of nuclear testing. That concern has never been limited to nuclear testing by
France nor to testing in the atmosphere. It is a political concern so it has a very limited place in this
case and indeed New Zealand, because it is a political concern, does not rely on it.
54. Within that outer circle is a second circle. That represents New Zealand’s particular
opposition to nuclear testing in the South Pacific region that contaminates the environment. That
circle represents New Zealand’s legal position. It was the basis of the 1973 application by which
New Zealand launched its present case and to which New Zealand seeks to return because the basis
of the Judgment delivered has been qffected.
55. And then there is a third circle. Its more restricted area represents a concern specifically
over atmospheric testing of nuclear weapons. That was the factual situation that New Zealand faced
in the South Pacific region until 1974. It is a very particular concern and in my image it is the
innermost of the three circles.
56. Now, as I say, New Zealand has argued in political fora over the issues represented by the
wider circle - that is appropriate for political concerns. In 1973 New Zealand came before this
Court to put its legal claim in terms of the second circle's concerns. That application asserted
illegality in international law of all French testing in the South Pacific that contaminated the
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environment. The Court in its 1974 Judgment appears to have viewed New Zealand’s essential
concerns as being more restricted, indeed as matching those of the third circle - a concern over
atmospheric testing. New Zealand’s point is that the basis of the Court’s view at that time was that
no other testing that contaminated the environment was being undertaken in New Zealand other than
atmospheric testing. The reality was therefore in 1974, for the Court, that the second circle and the
third coincided and that is the basis on which it dealt with the case.
57. Now it is interesting to recall the reaction of the Prime Minister of New Zealand the day
following the Judgment of this Court, 21 December 1974. He said "the Court’s finding achieves in
large measure the immediate object for which these proceedings were brought". Now I stress the
phrase "in large measure", because New Zealand saw immediately that the 1974 Judgment met its
immediate concerns. However, New Zealand equally at that time did not see the Judgment as one
dealing fully with its Application.
58. Applying this image of New Zealand’s position to the present phase of the case before this
Court, New Zealand says that the new facts and the developing law show that New Zealand has a
situation in which it is justified in seeking to resume its Application. What it will seek are orders of
Court that cover the area of the second circle rather than just the third. The assumption that since
France was in 1974 only conducting atmospheric testing, and that therefore the concerns of New
Zealand could be met by the cessation of atmospheric testing in 1995, is no longer valid as a matter
of fact. In other words in 1974 the Court considered that New Zealand’s essential concerns,
represented by the second circle, the prohibition of all testing that could give rise to nuclear
contamination, should be seen as coinciding with concerns about atmospheric testing, the third circle.
But in 1995 the assumption is no longer possible. It has not survived.
59. As is said in paragraph 20 of New Zealand’s Request, if the Court had realized in 1974
that a shift by France to underground testing would give rise to the same concerns as those originally
expressed, the Court could not have "matched" the French undertaking with what it saw as
New Zealand’s primary concern. But given at the stage the case was at, the Court had no evidence
at the time that underground testing would take place or if it did that it might have adverse and
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detrimental effects. As I have said, it had no reason to doubt that the match it made was
appropriate.
60. New Zealand in 1995 says there is such evidence and for that reason the basis of the
Judgment has been affected.
The conditions for resuming the case have been met
61. New Zealand, having outlined the assumptions that formed the basis of the 1974
Judgment, now turns to demonstrate that the situation has changed so much as to materially affect
that basis.
62. I accept that not every change in the situation since 1974 would warrant this Court
agreeing to allow New Zealand to proceed with its 1973-74 case. The change must be one to meet
the test of paragraph 63 that sufficiently strikes at the rationale on which the case was barred from
proceeding in 1974 to warrant its resumption in 1995.
63. I have said that in 1974 the Court assumed that cessation of atmospheric testing would
end contamination of the environment by radioactive material, and I have said that this premise was
part of the basis of the Judgment of 1974. The Court did not anticipate, I have said, that the other
form or forms of testing that France might turn to would have those consequences. It had no
evidence, it could not speculate, but instead it decided to protect New Zealand's position in case a
situation requiring examination arose by expressly recognizing the right of New Zealand to resume
its case.
64. In September 1995, when France has resumed nuclear testing, there is evidence of the
potentially adverse and detrimental effects of underground testing in the South Pacific regions of
Mururoa and Fangataufa Atolls. Contamination of the marine environment is a real risk. As the
counsel to follow me will indicate in the course of their arguments, in 1995 international law requires
that the State which wishes to undertake conduct potentially having detrimental transboundary
consequences for the environment must prove in advance that its activities will not cause
contamination. Since 1974 the law has developed greatly. Whatever the burden of proof might have
been seen in 1974 it is now clear from State practice and conventions that the burden rests on a State
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to show that it will carry out activities with these effects in a manner that will not damage the
environment, and this is particularly so of activities leading to nuclear contamination. My colleagues
will demonstrate to the Court that France is not complying with international obligations in this
respect. Because the scientific knowledge is in the possession or control of France exclusively it is
not possible for New Zealand to prove from its own resources that the detrimental effects will
inevitably follow. What New Zealand, however, is entitled to do under the international
environmental law of 1995 and in particular the precautionary principle is to require that France
demonstrate there will be no detrimental effects.
65. Now, before I conclude I want to touch on one other matter and that is to say it will
already, I trust, Mr. President and Members of the Court, be plain to you that New Zealand does not
seek revision of the Judgment of 1974. The essence of revision is that an essential fact has been
discovered after the Judgment that is of such a kind that, had it been known at the time of the
Judgment, it would have caused a different Judgment to be made, and for that reason the Judgment
requires correction and rectification. But paragraph 63 of the 1974 Judgment is rather to be read as
allowing for further consideration of the subject-matter of the case only in defined circumstances.
66. It would have been strange if the Court in 1974 had thought of the process of returning to
it under paragraph 63 as one of seeking revision, because under Article 61 of the Statute of the
Court revision can only operate within ten years of the Judgment. There was no reason why this
Court would wish to limit the effective duration of the French undertakings to ten years.
Furthermore, there was no reason for the Court to provide at all in its Judgment for New Zealand to
have a right of revision, because Article 61 of the Statute already expressly provides it.
67. Therefore, in summary, when referring in paragraph 63 to a further examination "in
accordance with the provisions of the Statute", the Court was contemplating not the discovery of
some new fact which ought to have been known in 1974, but some future event or conduct which
would reactivate New Zealand's concerns. The Court was accordingly not referring to revision. It
was referring to the possibility of a separate derivative proceeding which in the 1974 Judgment it
expressly authorized.
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68. Mr. President and Members of the Court, I conclude my part in this case by saying that
New Zealand's case in 1974 was suspended at an early stage on a premise linked to the Court's
understanding of the facts at that time. That was because the Court saw a match between the
objective of New Zealand and the unilateral commitments of France. But the Court also recognized
that to terminate the case in those circumstances would be wrong. The course of future events in
justice might require that New Zealand be permitted to resume, and that is why paragraph 63 was
inserted to protect New Zealand in the unusual circumstances of the suspension of the 1974 case.
New Zealand now exercises its right to resume the proceedings and does so, it submits, under the
conditions the Court established. The circumstances showing how the basis of the Judgment has
altered in 1995 will now be developed in our argument by Professor Elihu Lauterpacht, QC.
The PRESIDENT: Thank you very much, Mr. Solicitor-General. I give the floor to
Professor Elihu Lauterpacht.
Professor LAUTERPACHT: Mr. President and Members of the Court.
1. Once again it is my privilege and pleasure to appear before you. I cannot let this
occasion pass without offering a special word of respectful welcome and congratulation to Judge
Higgins upon her election to the Court. It is with special affection that her compatriots see her here.
She will fully maintain the tradition of great learning, true practicality and wise judgment that has
for so long characterized the work of the Court.
2. Mr. President, it falls to me to take up the thread of the argument at the third main point in
its structure, but I must before going any further excuse myself to the Court for both the speed and
the conciseness perhaps of what I shall have to say. I do so in deference to the prescription of the
President earlier in the day that the Parties should truncate their speeches. Mr. President, you will
tell me when you have had enough, but if you do not interrupt me I would propose to try and finish
my contribution by the time the Court rises, and that would involve me going on until I think
virtually seven o'clock, so if that proves to be too much, just say so and I will interrupt at a
convenient spot. Permit me to begin by linking what I have to say to what has already been said and
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for a moment there will inevitably be a bit of overlap.
3. You have already heard my learned friend, the Solicitor-General, address you on the first
two aspects of the answer to the question that the Court has posed. He has dealt, in the first place,
with the concept of continuity itself and has demonstrated that the Court must have intended in
paragraph 63 of the 1974 Judgment to open up for New Zealand a channel of return to the Court
within the framework of the case begun in 1963 and under certain conditions.
4. In the second place, the Solicitor-General has explored what are those conditions for a
resumption of the case by New Zealand. He has examined the meaning of the words in paragraph 63
"if the basis of the Judgment were to be affected". He has shown that "the basis of the Judgment"
could only be a reflection of, to use the Court's own words, the true subject, object and purpose of
New Zealand's original Application. That subject, object and purpose was the termination by France
of conduct leading or capable of leading to nuclear contamination of, amongst other areas, the
marine environment.
5. New Zealand's 1973 Application was framed in terms of the prohibition of the broad
expression "nuclear testing". It was not, in this broad conception, limited to atmospheric testing.
The adjective "atmospheric" was, however, often used in the argument. But this was only because at
that time atmospheric testing was the only form of testing that was taking place and which, therefore,
could give rise to the harm which New Zealand was seeking to avoid. If New Zealand had at that
time been asked: What is your concern - to stop atmospheric testing or to prevent nuclear
contamination, its answer could only have been "to prevent nuclear contamination". It would have
continued: "It is ridiculous to think that we would be content with the abandonment of atmospheric
testing if nuclear pollution were to be allowed to continue by other means. For us it is not the means
or the medium of testing that matters. It is the consequences. The fact that the testing is carried out
in the atmosphere is only incidental to the consequences of the testing".
6. The reason why New Zealand would have given this answer, and why the Court and indeed
France would have given the same answer if asked, is that at that time in 1973-1974, atmospheric
testing, by reason of the evident risk of radioactive fall-out from explosions, had come to be
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recognized as "bad" or "dangerous" means of testing. By contrast with this, it was assumed that
underground testing could be equated with "good" or "safe" testing. The basis of that assumption
was that there had already been some use of underground testing by the United States, the Soviet
Union, the United Kingdom and France (the latter only in the Sahara, but not in the South Pacific).
7. Admittedly, some underground tests had gone wrong and had released radioactivity into the
atmosphere. The United States, for example, had encountered a problem in Nevada, but the cause
had been identified. The depth of the burial of the device had proved to be too shallow for the
strength of the detonation (which itself may have been greater than planned). So, in consequence
radioactivity escaped.
8. This, however, was a specific problem which could be eliminated by appropriate
precautions. By 1970 testing practice had become safer as experience was gained. In scientific
terms it appeared at that time that there was nothing generically or intrinsically wrong with
underground testing. It could be safe. Atmospheric testing, on the other hand, had been proved to be
inherently unsafe. It could not be made safe. The spread of radioactivity through transport by the
winds could not be avoided. Radioactivity from American and Soviet atmospheric tests built up
globally, and in the southern hemisphere radioactivity from French atmospheric tests was detectable
in New Zealand and elsewhere after it had circled the globe. And so it had to be given up.
Atmospheric testing was equated with bad or dangerous testing and underground testing was
equated - erroneously, as we now know - with good or safe testing. The Court will permit me to read
the following passage from the transcript of a television interview given by Mr. Chirac, the President
of France, only last night, Sunday, 10 September 1995. In response to the question as to why
France went so far away from France to conduct its tests, the President said - and I will not attempt
to read it in French but will endevour to present my own English translation:
"Pour une raison très simple: vous vous souviendrez que, avant 1974, nous
faisions des essais dans l'atmosphère et donc des essais polluants. Nous, les
Américains, les Anglais, tous ceux qui faisaient des essais faisaient des essais dans
l'atmosphère, donc des essais poullants. Nous avons donc cherché, en France, l'endroit
le plus dépeuplé possible et nous avons construit notre site de Mururoa. Là-bas, les
effets polluants, indiscutables, polluaient moins que si on les avait faits dans la région
parisienne."
"For a very simple reason: you remember that, before 1974, we did tests in the
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atmosphere and these were polluting tests. We, the Americans, the English, all those
who did tests in the atmosphere, carried out polluting tests. We have thus searched, in
France, for the least populated place possible and we have constructed our site of
Mururoa. There, the polluting effects, beyond question have polluted less than if they
had been done in the region of Paris."
So, we have a certain recognition by even the President of France of the equation between
atmospheric testing being bad and dangerous and underground testing being presumably good and
safe.
9. Now it was on this basis that the Court could in 1974 identify, as said a moment ago, a
match between what New Zealand claimed and what France offered. The New Zealand claim was:
stop dangerous testing. The French offer was in substance: "We will stop dangerous testing. We
will go underground. That will be safe." That is the only good faith interpretation that can be put
upon the French offer. That is how everyone understood the matter - the Court, New Zealand and, I
believe, France.
10. Nevertheless, with the foresight and prudence that is a feature of the Court's
jurisprudence, the Court said: "If the basis of the Judgment is affected, come back to us and we will
examine the situation." What could that have meant except that: "first, we (the Court) will look
closely at the matter, look at what you say has happened. Second, if we find that the danger of
nuclear contamination that we all thought would be brought to an end by going underground is still
there, or has returned, we shall do something about it."
11. There was also another aspect to the reservation thus made by the Court to its Judgment.
The basis of the Judgment could also be affected by the development of the law. In 1974, it must be
recalled, environmental law was at a relatively early stage of its development, both in the national
and international spheres. The then recent Stockholm Conference and Declaration of 1972 would
have served to alert the international community, the Court as much as anyone else, to the prospect
of a significant forward surge in the evolution of standards and procedures in the field. The Court
could not, therefore, have been unaware that the basis of its Judgment might also come to be affected
by legal developments by reference to which emerging facts would have to be judged. Nor is it likely
that the Court would have taken the position that it would refuse to consider any new law that might
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subsequently affect the performance by France of its test activities.
12. So, the basis of the Judgment being that France would be giving up unsafe testing for safe
testing, it falls to me to examine whether that basis has been affected. My task will be to look at the
scientific aspects of the matter - to look at the facts of the situation in order to determine whether the
conditions laid down by the Court have been met. New Zealand's submission will be that the basis
of 1974 Judgment has been affected by underground testing that France has been conducting at
Mururoa. That is to say, the basis of the Judgment has been affected by reference to facts which
have emerged and standards which are to be applied today, standards from which, I respectfully
suggest, the Court cannot be seen to be withholding its full and committed support.
13. As I have just said, there are two respects in which the basis of the 1974 Judgment could
be affected. One is by a change in the pertinent facts. The other is by a change in the pertinent law.
Either kind of change would be sufficient to trigger the process of examination by the Court under
paragraph 63. Either can do so independently of the other. In fact changes of both kinds have taken
place. I will now deal with the question of changes in the pertinent facts and my colleagues,
Sir Kenneth Keith and Mr. MacKay, will deal with the changes in the law.
14. The most convenient starting point of our enquiry is the contention of France that in 1974
it said only that it would discontinue atmospheric testing and henceforth test only underground. That
was the basis, says France, of the 1974 Judgment. France now says that it has done what it said it
would do. It gave up atmospheric testing and moved to underground testing. Superficially, that is
true. Substantively, it is not.
15. New Zealand does not contend that France has resumed atmospheric testing as such.
Obviously, if France had done so it would have been in manifest violation of the undertakings on
which the Court relied in 1974, and it would have been beyond question that New Zealand would
have been entitled to return to the Court and that the Court would have been justified in examining
the situation.
16. What New Zealand does say is that the present conduct of France affects the situation
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because that expression properly interpreted by reference to the presumed intention of the Court,
must refer to the real undertaking given by France. That real undertaking was the one which
everybody at the time thought that France was giving, namely that it would stop testing in a manner
that could give rise to environmental contamination and would thenceforth test only in an
environmentally safe manner. It is quite unreal, as the Solicitor-General has already cogently
observed, to treat France's unconditional undertakings of 1974 as being subject to a massive escape
clause - a clause to the effect that it reserved the right to conduct unsafe testing, unsafe in the sense
of giving rise to the kind of contamination which New Zealand was seeking to prevent, provided that
it did so underground.
17. I shall now set out the facts which support the proposition that France has not substituted
a safe for an unsafe method of testing. It has merely substituted what turns out to be one unsafe
system for another. But I must emphasize it is not for New Zealand to prove this proposition to the
hilt. It is for France, which is in possession of the facts, to show that the propositions are invalid and
that the feared environmental consequences cannot ensue.
18. Now, what is the precise contention that New Zealand advances in support of its view that
the basis of the 1974 Judgment has been affected? I begin by saying what the contention is not. It is
not a contention that the underground testing hitherto carried out by France has already in any
degree affected by nuclear contamination the territory of New Zealand or of its associated territories.
Nor is New Zealand making an issue now of radioactive contamination that may already have taken
place in the non-territorial environment.
19. We are concerned only with the prospect, possibly immediate, of contamination of the
marine environment as a result of the present series of tests being carried out by France. It is clear
that the protection of the marine environment came within the scope of the 1973 New Zealand
Application. The relevant paragraphs of page 8 of that 1973 Application are set out in paragraph 13
of the New Zealand main Request filed with the Court on 21 August this year. Most particularly in
these words: that the French tests "violate the right ... of New Zealand to the preservation from
unjustified artificial radioactive contamination of ... the marine ... environment", as well as "the
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freedom to ... exploit the resources of the sea and the seabed, without interference or detriment
resulting from nuclear testing".
20. New Zealand says that the continuance of testing on Mururoa Atoll has created a situation
which a number of experts believe has seriously weakened the physical structure of the island. There
is, therefore, a distinct risk that if a whole series of further tests - or, indeed, any one further test - is
carried out - the atoll may either split open or disintegrate in such a way as to discharge into the
ocean some part of the quantity of radioactive waste that has accumulated there. Exactly how much
that quantity may be we cannot tell. However, there cannot be any doubt that substantial amounts of
radioactive material are present in the atoll from the 126 underground nuclear tests that France
carried out there between 1975 and 1991. And, as Sir Kenneth Keith will show, the international
community has taken a clear stand against the introduction of all and any radioactive waste into the
marine environment.
21. Now, to sum up the scientific facts that support this apprehension on what may happen to
Mururoa. I recite these facts, I may remind you, because they are pertinent to showing that current
French conduct is affecting the basis of the 1974 Judgment by doing underground what it promised
not to do in the atmosphere, namely to pollute the atmosphere.
22. Mururoa is an atoll within the general area of French Polynesia. 23. An atoll is a
marine structure consisting of a volcanic base and a limestone and coral crown. Millions of years
ago the volcanic cones of Mururoa were above the sea's surface. But volcanic activity ceased and
the volcanic mountain was slowly eroded and sank beneath the surface of the sea. As it sank, coral
growths accumulated over its summit and over time they have developed into a limestone layer that
is now several hundred metres thick. A narrow band of coral continues to grow, forming the fragile
rim of the atoll. Before testing began the average height of this rim above the sea was only 2 metres
and no point was higher than 3 metres.
24. Technically, the atoll is an island - an island within the definition contained in Article 121
of the 1982 Law of the Sea Convention. Although it has no indigenous residents it sustains human
habitation in the form of up to 2,000 French scientists, armed forces personnel and staff associated
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with the testing activity. But, notwithstanding this legal status, the island is physically a maritime
feature in that its structure is porous and the ocean waters move slowly through it. Moreover, as has
been pointed out by Professor Van Dyke of the University of Hawaii in a 1991 article on "Protected
Marine Areas and Low-Lying Atolls" (Ocean and Shoreline Management, pp. 87-160 (1991))
"a low-lying atoll cannot be distinguished from its surrounding marine environment and
must be thought of as an inherent part of the ocean ecosystem. An atoll is inevitably
subject to typhoons and tsunamies", that is to say tidal waves, "and any hazardous
substance on its narrow land area can be swept into the surrounding ocean system.
Particularly when one is dealing with long-lived radioactive nuclides ... it is unrealistic
to imagine that these materials can be separated from the ocean environment during the
entire period that they present dangers."
25. France undertook in 1974 to conduct only underground nuclear testing. In the period,
therefore, from the beginning of 1975 to the end of 1991, after which its moratorium became
effective, it has, according to one of its own statements, conducted 126 underground tests at
Mururoa and according to another official French publication, it has carried out only 124. But
whichever is right, last week it added one more to the total.
26. Now, it will come as no surprise to the Court to be reminded that I am not a scientist.
27. From the point of view of the Court, my lack of scientific qualification is both a
disadvantage and an advantage.
28. The disadvantage is that what I say does not have the authority that would accompany a
statement by an expert witness of high scientific standing.
29. On the other hand, the advantage of my not being a scientist is that I shall not say
anything that I do not understand. And it follows that if I can understand it, you, Mr. President and
Members of the Court, can also understand it. Though the subject as a whole is of course complex,
the parts with which New Zealand is inviting the Court to concern itself are not too difficult. The
Court will at the present time be concerned only with the questions of the effect of the tests upon the
physical integrity of the atoll. Of course what I say, particularly now that I'm saying it so shortly,
will leave certain important questions unanswered. That is inescapable - not because of my
undoubted limitations but because without the production of necessary evidence by France no
satisfactory answer to the questions can be given. One of the major aspects of what I would like to
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have said and what I shall be saying very briefly will be the identification of relevant questions that
need to be answered, of why they need to be answered and of the fact that France, on whom rests the
responsibility for answering them, has not done so.
30. In order that the Court may be the better able to appreciate why New Zealand is worried
about the physical integrity of Mururoa, I should give some description of the manner in which
underground tests are carried out. The process begins with the drilling of a hole or shaft. This is
done in much the same way as an oil well is drilled, but with one major difference. The hole is much
wider than that normally drilled by the oil industry - about one and a half metres wide in fact. This
is necessary in order to be able to receive the cylindrical container in which the explosive device is
placed. A nuclear bomb is about 60 centimetres in diameter.
31. The depth of the shaft that is drilled will vary according to the expected yield or strength
of the planned explosion. Obviously the stronger the explosion is expected to be, the deeper the shaft
must penetrate into the underlying rock if the effects of the explosion - in particular the radioactive
material that it creates - are to be safely contained. France has never revealed specific information
on the depth of the shafts it has drilled. Nor has it revealed specific figures for the yields of each of
its tests. The furthest that it has gone in this respect is to indicate in its own table, which is
reproduced as Annex 4 to the Main New Zealand Request of 21 August, into which of three
categories, A, B or C, the strength of the detonation falls. A is less than 5 kilotons, B less than
20 kilotons and C less than 150 kilotons. While that indication is interesting in general terms, it is
not sufficiently precise to enable independent and objective scientists to make accurate appraisals of
the situation. To some extent, external observers can make some assessment of the situation on the
basis of seismic readings in distant seismic stations, such as the one at Rarotonga in the Cook
Islands, but again these seismic readings can only be approximate in their identification of the size of
the detonation.
32. So much for the depth of the shafts. Turning to the location of the shafts, a controlling
factor is the limited size of Mururoa. This can be seen from the sketch map of Mururoa which
would have been included in the dossier of documents, documents of a public nature, that would
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have been conveyed to you in good time and it will come to you in due course. The acceleration of
the hearings has, I fear, meant that the preparation of this material has fallen behind. The atoll is
only 28 kilometres long. At its eastern end are located the scientific facilities and the residences for
personnel. The French Atomic Energy Commission says that the tests must be kept far enough away
from these facilities to limit the detrimental effects of the seismic shock waves on them. This means
that the testing has been concentrated toward the western end of this short 28 kilometre atoll. This
limits the available area of coral rim beneath which the early testing took place. It also limits the
available lagoon area. The western end of the lagoon, where the most powerful tests took place until
1988 is only a few kilometres wide.
33. Three specific matters affect the location of the shafts and limit how close together they
can be concentrated.
The first is the location of previous shafts. Obviously it is not desirable to place new shafts
too near old ones, otherwise the structure of the atoll would be further weakened.
The second factor is the location of the shafts for other planned tests - for the same reason as
that relevant to the location of the earlier shafts.
The third matter is the relationship between the shafts and the outer flanks of the atoll. If the
explosions take place too near to the side of the atoll, the side or part of it can be blown away or
accumulated sediments can be dislodged, possibly generating a tsunami, a tidal wave. This has
happened on a number of occasions - in 1977, 1979 and 1980. In 1979 a particularly powerful test
in the narrow south-western part of Mururoa dislodged a substantial chunk of the limestone flank of
the atoll. As we shall presently see, that accident may increase the likelihood that further testing may
cause radioactivity to begin leaking into the ocean.
34. France has not released the details of the location of test shafts. The result is that it is
again impossible for an outside observer to make an accurate independent assessment of the effects
of testing and of the extent of damage to the structure of the atoll. In consequence, it is impossible to
estimate the extent to which internal fractures of the atoll caused in any one test are likely to connect
with fracturing caused by earlier tests. Furthermore, one cannot assess the likelihood of further
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breakdown of the flanks of the atoll.
35. Nevertheless sufficient general information on the location of tests has been published
within the past two months by France to permit some general conclusions to be drawn. These are
not reassuring. Up until 1981 the most powerful tests took place under the rim in a small area of the
south-west of the atoll. Given the small area available, it is probable that fracturing from different
tests overlapped and came comparatively close to the atoll's outer flank. France has admitted as I
said that three of these tests caused submarine landslides damaging the atoll structure in this critical
area. Eventually between 1981 and 1988 the most powerful tests were actually conducted under the
lagoon area, or the lagoon adjacent to the coral rim. These tests can only have increased the
likelihood of a structural failure connecting one or more of the old detonation chambers to the open
ocean through the existing network of fractures.
36. I return now to the procedures connected with testing. After the shaft has been
drilled, the test device is lowered into it. The test device consists of the nuclear weapon in its
canister. The canister is very much taller than the weapon itself. The weapon will occupy the
bottom metre or so of the canister. The rest of this canister or container, as much as 14 metres more,
is taken up by racks of electronic equipment which measure the development of the explosion. In the
microsecond before they are destroyed by the blast they relay information back to the monitoring
station on the surface. This, to the layman a quite miraculous result, is achieved within that
infinitesimal amount of moment before everything at the bottom of the shaft is vaporized by the
immense heat of the thermonuclear reaction. And because there are so many measurements to be
taken in so short a time, many instruments have to be used and that is why the container is so large.
37. The lowering of this container into the shaft is necessarily slow so as to avoid, if possible,
the container becoming stuck in the shaft before it has reached its full depth, and this possibility
arises because technically it is very difficult to drill a 900-metre or a 1,000-metre shaft in an
absolutely straight line, and becoming stuck in it means that the canister cannot be either lowered or
raised. And this has happened on at least one occasion in 1979 when the device reached the depth of
approximately 987 metres instead of the desired depth of 1,100 metres. None the less, the device
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was detonated. The effect was that the actual safety margin around the prospective detonation
chamber was 110 metres less than had been planned. The French authorities considered that
remaining margin to be adequate. None the less, this was the test that unexpectedly generated the
tsunami of which I spoke a moment ago.
38. Once the device is at the bottom of the shaft, the shaft is then plugged. It is packed tight
from bottom to top with material of various kinds, including a special kind of concrete, and this is to
stop radioactive material from the explosion travelling back up the shaft and escaping into the
atmosphere. There have, however, been occasions when there has been an unintended escape of such
radioactive material.
39. Once the canister is at the bottom of the shaft the test can take place. The effect of the
explosion at the bottom of the shaft is to blast or melt a ball-shaped chamber into the structure of the
granitic rock. For a 10-kilotonne explosion, which is typical of the smaller blasts on Mururoa, the
chamber thus created will be approximately 50 metres in diameter. For an explosion of 100
kilotonnes, typical of the larger blasts, it will be about 120 metres in diameter. Much of the
radioactive material produced by the explosion is contained within this vitrified rock that eventually
solidifies within the chamber. That is to say, the immense heat will melt the rock into glass and that
glass will retain the bulk of the radioactive material.
40. The explosion will, however, have additional effects. Cracks in the rock base of the atoll
will radiate outwards from the detonation cavity, to a distance of about five times the radius of the
cavity. So, for a 100-kilotonne blast, the rock for about 300 metres in all directions will be
fractured. The roof of the cavity collapses, and this collapse extends upwards, forming a so-called
chimney - a space loosely filled with large and small blocks of rock. The final height of this chimney
is also about five times the radius of the cavity.
41. Because the entire rock structure of Mururoa is saturated with water, the cavity and
chimney created by an explosion rapidly fill with water. Some of the radioactivity created by the
explosion dissolves into this water, which then carries it away from the cavity towards the surface
through the surrounding network of fissures.
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42. To prevent this water and its radioactivity from reaching the surface quickly and
contaminating the marine environment, there must be some barrier through which the water can pass
only very slowly, if at all. France relies on the volcanic rock itself to act as this barrier. Volcanic
rock that is not fractured by an explosion allows water to percolate through it at a rate of only a few
centimetres a year. Thus, the practice that France should have adopted is that of conducting each
test at a sufficient depth in the volcanic core to ensure that a certain amount of undamaged volcanic
rock remains unaffected by the explosion above the zones affected by fissuring and the formation of
the chimney. But we do not know how large this safety margin will be, and this is another vital piece
of information that France has not officially released.
43. In addition, the explosion will create a significant seismic or earthquake shock registering
between 4 and 6 on the Richter scale - and that is not an inconsiderable earthquake. This shock has
immediate local effects: it fractures some of the upper limestone layer of the atoll and, as we have
seen, may generate submarine landslides down the outer flanks of the atoll, and these landslides in
their turn may cause tsunamis. Perhaps some of the Members of the Court may have seen some of
the television shots of the moment after the explosion and will have observed that the whole surface
of lagoon rises with the effect of the blast. So there must have been an immense seismic wave
underneath that to promote that consequence.
44. And just to complete the picture, after the test the scientists drill back down through the
shaft - through a much narrower hole this time - to take samples of the debris created by the blast.
These samples help them to determine the exact performance of the weapon they are developing, and
in particular to measure the yield more precisely. Normally, this process of drilling is safe because
the new hole contains mechanical barriers intended to prevent the escape of radioactive material.
But sometimes these precautions fail. In 1988, when Commander Cousteau visited the site, he found
short-lived radioactive debris in the lagoon, the presence of which could be explained only in terms
of a very recent escape of radioactive material. The French authorities eventually acknowledged,
though not without reluctance, that this material had been released during a post-test sampling
operation a month earlier.
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45. There then, Mr. President and Members of the Court, is a very simple account of what
happens in an underground nuclear test, but it should suffice to demonstrate that when underground
testing is carried out on an atoll over a prolonged period there will be an increasing danger of escape
of radioactive material. Initially, it may have seemed safe enough, and so it was assumed to be when
the Court reached its 1974 Judgment. Though politically opposed to all nuclear tests, even safe
ones, New Zealand has chosen not to raise in legal terms any question about the French underground
tests in so far as they have already directly affected the people and marine resources of the region in
which New Zealand has an interest. Those matters of the past are not in issue in the present case.
46. The present case is exclusively about the future and, on the basis that France will honour
its promises, it should be a relatively short-term problem. The prospect that France may within
eight months complete the series of tests that it has, most regrettably, just initiated, can make no
difference to the resumption now of the case that was brought before you in 1973. Nor can the fact
that the world will see an end to nuclear testing, at any rate for States who become parties to the
Comprehensive Test Ban Treaty (and France has promised to become one of these) make any
difference to the present request. The purpose of the first phase of the case in 1973 was to stop tests
that could damage the environment. The purpose of the present phase of the case is to stop a series
of tests that could, if the worst were to happen, do serious damage to the environment over the next
few months. The situation with which New Zealand is now concerned is that of the cumulative
effect upon Mururoa of the 126 underground or now indeed 127 tests. On the basis of the table
prepared by France which forms Annex 4 of the Main Request, the total yield of all the underground
tests carried out by France at Mururoa since 1975 could be as high as 6,805 kilotons. And, it is
probably something less than this: New Zealand's own estimates of yield suggest that the total is
perhaps 2,300 kilotons. France will no doubt inform the Court of the correct figure and will, in so
doing, give the Court the precise yield of each test so that it may be checked against the estimates
derived from other sources such as seismic recordings. But even 2,300 kilotons of high explosive is
some 150 times the yield of the atomic bomb which devastated Hiroshima just 50 years ago. And
this enormous yield has gradually been generated within 126 shafts drilled into a segment of
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Mururoa Atoll that is much less than 28 kms long. So, the question that New Zealand asks is, can
the world be confident that France will not, in the course of the present series of tests, place upon the
camel of Mururoa the straw that breaks its back?
47. Now, Mr. President, I still have some time to go, shall I continue?
The PRESIDENT: Yes.
Professor LAUTERPACHT: This is not a fanciful question. It reflects the fact that the
policy of transparency that France has asserted it is following in relation to testing at Mururoa, has
not extended sufficiently far. It has not extended in a meaningful or sufficient way to the concern
which has been expressed at various times and with increasing justification as time goes by, at the
impact of the testing upon the geological structure of the atoll and the consequent possibility of the
dissemination of radioactive materials into the ocean.
48. Now, why should we care about this possibility. I will be obliged to be extremely
summary about this. Not because it is not important, but because I am conscious of the hour and of
the restrictions of length imposed upon New Zealand in its presentation. But radioactive material
that enters the marine environment will in due course pass into plankton and other living resources of
the ocean. It will be taken up in the food chain. Fish, such as tuna, will consume it. These fish
when caught and processed will be distributed all over the world. We shall all suffer. Most
probably those who diet, most. It will no doubt be said, on behalf of France, that this is an
exaggerated narrative, and that there is no sufficient evidence to support it. But that is not the right
way to respond to the concern which the narrative reflects, as my learned friends will explain.
49. The burden is now on France to show that hazardous conduct of the kind involved in these
tests will not cause the harm that is feared. And the way France must show is this is not by simple
assertion or even by monitoring after the event, or monitoring with the assistance of international
bodies but by a public investigation before the event; in short, by an environmental impact
assessment.
50. France has never carried out such a test and has never met its obligations in this respect.
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This fact is material, not simply because it involves a breach by France of its international
obligations to hold such tests before the explosions. The fact is material in the present context
because it means that other States and concerned people do not have the facts on which they can
base a conclusive statement of the exact nature and extent of the potential contamination. But this
inability on the part of the complainants to show the exact quality of the risk does not mean that
there is no risk or that the Court may disregard the possibility of such contamination and its
consequences.
51. Over the years, three scientific investigations of testing at Mururoa have been wrung out
of the French authorities. One was in 1982 by a group of French scientists, led by Professor Tazieff.
The second, in 1983, was by a group consisting of scientists from New Zealand, Australia and
Papua New Guinea. The third was in 1987 by Commander Cousteau, the distinguished French
oceanographer. Each visit was limited to a few days. Each mission was heavily dependent upon
material provided by the French authorities. In the time available none of the missions was able to
undertake any significant sampling or research of its own. A brief summary of the work of these
missions is given in the Main Request at paragraphs 28 to 31. Each mission expressed some
concern at the possible cumulative effects of the tests. Each proposed that certain further
information should be made available. But the information was never provided by the French
authorities. I could read you substantial extracts from each report which reflect the concern that
these scientists felt in respect of the geological state of the atoll and the possibility of the escape of
radioactivity from fissures. But neither time nor human fortitude so permit, and I must ask you,
Mr. President and Members of the Court, to take the opportunity of perusing the texts of these
reports which have been placed in your library.
52. There are more recent expressions of concern. Two items are unequivocal in this respect.
One is the article by Professor Pierre Vincent, which has already been read to you by the
Attorney-General. It has been submitted to the Court as Annex 5 of the Main Request. As the
Attorney has read parts of it, I am sure that the Court will want to look at it for itself. I will not try
the Court's patience by reading it again. And so I will pass over a number of important passages in
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that report that I would otherwise have intended to read to you. Professor Vincent concluded his
article by observing that what now needs to be established is whether or not the energy generated by
further blasts would be capable of destabilizing a segment of the coral reef or even a whole flank of
the volcano as already occurred when the volcano was still alive.
53. In thus pointing out what needs to be established now, Professor Vincent was doing no
more than appealing to the French authorities to provide information by which a large and anxious
segment of world public opinion might be reassured that the continuance of testing at Mururoa Atoll
would not be risky.
54. No such information of the specific kind called for by Professor Vincent has been
forthcoming. There has been evidence on a number of other aspects of the testing in the atoll about
radiation and the effect on health of the nearby populations and so on. But that information is not
material to our problem, which is a problem of the physical integrity of the atoll and the risk of the
percolation through and from the atoll of radioactive waste.
55. Even more important is the position taken by the Directorate-General of the European
Commission. In a report dated 4 September 1995 the Commission reports on a meeting held on
25 August 1995 between the French authorities and the Commission concerning radiation protection
aspects of nuclear tests in French Polynesia. That report, which will be placed before the Court, lists
the material which France had made available to the Commission. Towards the end of the report
there are two important substantive passages which I should read to you.
56. First, towards the bottom page 7 there is a paragraph introduced by the letters N.B. - Nota
Bene:
"One must consider the assertion reported by the authors of the scientific evaluations
about the possible long term leakage of radioelements. This is considered as the most
significant task. A reliable risk assessment would require access to detailed data about
movements in the rocks and geological structure. Up to now [and this is August] these data
are classified as confidential by the French authorities. While the French authorities consider
that a major and sudden rupturing of the atoll structure is unlikely, this cannot be confirmed
without having access to the data withheld by them".
Mr. President, I don't really need to cite other authorities when a statement of that kind is
made by a body of central importance of the European Commission.
Then on the following page there appears the following passage:
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"The Commission has noted the content of the three volumes of 'les atolls de Mururoa et
Fangataufa' (a monograph published by [a body called] CEA/DAM-DIRCEN) [which are
French Government authorities in the field of nuclear activity].
The monograph concludes that the stability of the volcanic base would not be
endangered [this is the French monograph I must emphasize] by further tests but in fact
produces no evidence to support this claim. However, the monograph reports only about
slipping of unstable sedimental material accumulated on the volcano's flanks. Such a
phenomenon occurred three times between 1977 and 1979. Performing tests under the lagoon
was the remedial action."
57. And these passages are significant. They show that the Directorate-General of the
European Commission for Environment, Nuclear Safety and Civil Protection is itself uneasy about
the problem of long term leakage of radioelements, which it speaks of as the "most significant risk".
It is clearly not satisfied with the information that the French authorities have made available. It
points out, after having examined the three substantial volumes that represent the most recent
provision of information by France, that although the French monograph concludes that the stability
of the volcanic base would not be endangered by further tests, it "in fact produces no evidence to
support this claim".
58. So here again the Court is confronted by evidence coming from an important and expert
source that there is a risk of potential nuclear contamination coming from Mururoa. Underground
testing at this location is no longer to be equated with safe testing. Rather it approximates to
atmospheric testing. The basis of the Court's 1974 Judgment is affected. The present proceedings
fall within the scope of paragraph 63.
59. In short, Mr. President, you have before you material emanating from distinguished
authorities and even from the Directorate-General of the European Commission that demonstrates
growing awareness of the possible consequences of the continuance of testing at Mururoa. France
has produced no evidence to counter this growing apprehension. If what is feared were to happen, it
hardly needs saying that the consequences are likely to be serious and they would certainly be
irreversible. There would be an escape of radioactive material into the ocean. New Zealand cannot
say how much material would escape. Much would depend upon the speed with which the atoll
disintegrated. No one except France has the information on which to found an accurate estimate and
France is not providing this information. Perhaps some of the difficulty might have been avoided if,
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as I have already suggested, France had acted in accordance with prevailing international standards
governing the carrying out of hazardous activities by carrying out an environmental impact
assessment. Such a process would have led France to provide the information about the number of
its tests, the estimated yield of each test, the location and depth of the shaft, especially in relation to
the location of the earlier tests, the nature and extent of the radioactivity likely to be released, the
evidence of the movement of radioactivity-bearing water within the body of the atoll, and so on. But
France does not appear to be prepared to conform to these standards. Instead, it provides limited
information about what has happened in the past - information which does not meet the needs of the
situation. It offers the possibility of visits to Mururoa after the event so that the extent of any
radioactive leakage may then be determined. But the conduct of investigations after the event is not
the way in which modern society approaches the problem of regulating environmental risk.
60. There are two elements in the situation. One is the existence of a basis for international
concern and, therefore, for the concern of New Zealand as a State within the region whose interests
in the presentation of the marine environment may be adversely affected. That concern relates to a
risk the possible occurrence of which is objectively established - established, that is, to the extent
that it needs to be, by a party that does not have full access to information and that is denied such
access by the State that possesses the information. There is, however, sufficient information
available to expose the error of the assumption made in 1974 that the abandonment of atmospheric
testing would put an end to these risks which it was the object of the New Zealand litigation to
terminate. Thus, the basis of the 1974 Judgment has been affected by the conduct of France, and the
situation must, therefore, be re-examined.
61. As I draw towards the close of this necessarily brief exposition of the factual grounds
which demonstrate that the formal substitution of underground for atmospheric testing does not
represent the substantive alternative in French testing methods that the Court must have had in mind
in 1974, there are undoubtedly a number of questions in the mind of the Court which will
unavoidably still be unanswered. To the extent that they are not resolved in the ensuing exchanges
of arguments between ourselves and our friends, the Court will perhaps specifically put such
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questions to the Parties. But there is one question which warrants anticipation. Why, it may be
asked, is underground testing at Mururoa sufficiently different from underground testing elsewhere,
for example, in the United States, the Soviet Union, Russia or China, to justify New Zealand in
mounting this legal challenge to the French tests but not to the others? There are at least three
answers.
62. The first is that those other tests are not taking place in a region where, if they go wrong,
they can give rise to consequences detrimental to the marine environment. They will not pollute the
seas of the South Pacific.
63. The second, and more important, answer is that underground tests conducted within the
very body of a continent or of a substantial island are quite different from tests carried out on a
relatively insubstantial atoll. The desert in Nevada cannot crumble as a result of repeated
underground tests. There is no seawater which moves through the desert sub-stratum and is capable
of carrying radioactive material into the oceans. If when France declared in 1974 that it would
conduct future tests underground it had proceeded to carry them out in a location comparable to the
Nevada desert; if France had then proceeded to prepare and publish the massive environmental
impact statement and EIA relating to its proposed testing in the same thorough and open manner as
the United States did in relation to the underground tests at the Nevada site; if France had thus acted
in compliance with international standards, it might well have been that its conduct would not have
affected the basis of the 1974 Judgment. But that is not the way in which France has chosen to
proceed.
64. Mr. President and Members of the Court, that brings me to the end of the submissions that
I need to make at the present stage of the hearings, and I would respectfully invite you, when the
Court resumes its sitting, to call upon Sir Kenneth Heath to continue the presentation of the New
Zealand text. Thank you very much.
The PRESIDENT: Thank you very much, Professor Lauterpacht. The Court shall resume its
session tomorrow morning at 10. The session is over. Thank you.
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The Court rose at 7.15 p.m.
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