MEMORIAL ONJURISDICTIOAND
ADMISSIBILITSUBMITTEBY
THEGOVERNMENT OFNEWZEALAND PART 1
INTRODUCTlON
1. This Memorial is submitted to the Court in nursuance of the Orders
made by the Court on 22June 1973and 6 ~eptemb& 1973.Thesc two Orders
requircd the üovcrnment of New Zealand to submit. by 2 November 1973,a
Mernorial addressed IO the aucsiions of the iurisdiction of the Court Io cnter-
tain the dispute, and of the admissibility of CheApplication.
2. In accordance with Article 35 of the Rules of Court, the Government of
New Zealand specified in its Application instituting proceedings of 9 May
1973 the provisions on which it founded the jurisdiction of the Court. These
were:
(O) Articles 36, paragraph 1, and 37 of the Statute of the Court and
Article 17 of the General Act for the Pacific Settlement of Interna-
tional Disputes, done at Geneva on 26 September 1928; and, in the
alternative,
(b) Article 36, paragraphs 2and 5, of the Statute of the Court.
3. In the course of the oral oroceedinss relatinp, to the Reauest for lnterim
Measurer of Protection. and ina written-answer 1;a question.by a Member of
the Court, the Government of New Zcaland presented submi$sions in support
of its claim to found the jurisdiction of the Court on these provisions. These
submissions included consideration of points contesting the Court's jurisdic-
lion made in the letter, together u,ith 11sAnnex. of Ih May 1973 from the
French Ambassador to the Nethcrlands to the Rcgistrar of the Court. In ils
treatment of the question ofjurisdictlun. this Mcmorial restates and devclops
the submis~ions onjurisdiction presented al the intrrim mcasurcs phaseof the
case. Part II deals with the auestion of iurisdiction under Articles 36. oara-
graph 1, and 37 of the statut; of the court and Article 17 of the Cieneial Act
for the Pacific Settlement of Lnternational Disputes 1. Part 111 relates to juris-
diction under Article 36, paragraph 2, of the Statute. Part IV deals with the
question of the relationship between the two sources of the Court's jurisdic-
tion.
4. Part V of the Memorial issubmitted in remonse to the Court's directive
th31 thc Cio~criinient oi Neu Z~dlanil xdJre,s ilself to ihï admisihilit) or ils
Appli.ation. 11is the under>t<inding<ifthe Cio\ernmcnt of Ncu Zea!and ih;it.
in relation 11)ailmi,sihiliivn<iles ihaii iiirclaiioiiIO iurisJirtion.tltc Court i\
now concerned with an issue of a preliminary character, that is to Say,one
which, while it may be related to the merits of the dispute between New
Zealand and France. is distinct from, and anterior Io, the merits. This under-
standing is derived from a consideration of the settled jurisprudence and
practice of the Court, the policy underlying the Rules of Court, notably
Article 67, paragraph 7, of those Rules, and the terms of the Court's Order of
22 June 1973. AI1 of these point plainly to the conclusion that the Court will
wish to maintain the accepted distinction between the meritsand preliminary
phases of casesbefore it and to confine itself in the present phase to matters
that are genuinely susceptible of determination at a preliminary stage.
1 The text oftheGeneralAct is setout in Annex1146 NUCLEAR TESTS
5. The core of the lcgal dispute betueen New Zealand and France is
disagreement as to whether the atmosphcric tcsting of nuclear ueapons under-
takcn by France in the South Pacific reaion involves violation of international~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
law. TG determination of this question will be the principal issue before the
Court at the merits stage. In the light of the understandina referred to in the
orevious varamaoh. the ~overnment of New Zealand has not thoueht it ~ ~ ~ ~~~~-~ -~ ~~~
appropriatc in the prescrit Meniorial Io cxpand and develop the material
already presented Io the Court-in its Application Instituting Proceeding5. in
the Rcsuest for Inierim Measures of Protection of 14 Mav 1973 and in the
~ ~ ~ ~ ~ ~ ~
statements made on its behalf in the oral proceedings at théinterim measures
stage-in support of its assertion that atmospheric nuclear testing necessarily
involves violation of international law. Part V of the Memorial is shaned
~ ~ ~ - -~~~7.-
accordingly. Il restates the nature of ihc daim made by New Zealand which is
the subjcct of its dispute u,ith France: analyses the nature of the leaal riahts
for which New Zealand has sought protection in the present proceed~ngs;and
considers the question of admissibility identified in paragraph 24 of the
Court's Order of 22 June 1973, namely, whether the Government of New
Zealand is able to establish a legal interest sufficient to entitle the Court to
admit its Application.
6. Part VI of the Memorial contains the final submissions of the Govern-
ment of New Zealand. PART II
THE JURlSDICTION OF THE COURT UNDER THE GENERAL
ACT OF 26 SEPTEMBER 1928
A. Introduction
7. The first ground of jurisdiction invoked by the Government of New
Zealand consists of Articles 36 (1) and 37 of the Statute of the Court and
Article 17 of the General Act for the Peaceful Settlement of International
Disputes. done al Geneva on 26 Seplember 1928.
Article 36 (1) of the Statute provides:
"The jurisdiction of the Court comprises al1cases which the partics
refer to it and al1 matters specially provided for in the Charter of the
United Nations or in treaties and conventions in force."
Article 37 of the Statute provides in turn:
"Whenever a treaty or convention in force provides for a reference of
a matter .. to the përmanent Court of International Justice, the matter
shall,as hetween the parties to the present Statute, be referred to the In-
ternational Court of Justice."
Article 17 of the General Act provides in part:
"All disputes with regard to which the parties are in conflict as to their
existing rights shall. subject toany reservaiions which mabe made under
Article 39. be submitted for decision to the Permanent Court of Interna-
tional Justice..."
8. The New Zealand Government accordingly must satisfy the Court of
three propositions:
-New Zealand and France are parties to the Statute within the meaning of
Article 37 of il,
-the matter which it has referred to the Court is a matter provided for in
Article 17 of the General Act. and
-the General Act is a treaty or convention in force between New Zealand and
France within the meaning of Articles 36 (1) and 37 of the Statute.
B. New Zealand and France Are Parties 10the Statute
within the Meaning of Article 37 of It
9. This proposition can be dealt with very shortly for it is clear beyond
dis~ute. The Permanent Court of International Justice was still in existence on
240ctober 1945when New Zealand and France befame bound bv the Statute
by ratifying the Charter of the United Nations Accordingly ihcrekas nothing
to impede Art~cle37 having efiect for New Zealand and France and oblig~ng
them to submit to the com~ulsorv iurisdiction of this Court in lieu of that of
the Permanent Court. As CheCO;; put il in the Barcelona Traclion. Prelimi-
nary Objec~ions,case 1,the various processes provided for by the Statute had
1 I.C.J.Reports1964, p. 30.148 NUCLEAR TESTS
already been completed as regards jurisdictional clauses binding on original
Membersof the United Nations and parties to the Statute before the extinc-
tion of the Permanent Court.-and lhe League. (That case of course goes
further and holds thst a// parties to the Statute, regardless of the date of their
b~~omine bound. are.Dart~ Io it within the meaninn of Article 37.)
10. ~he proposition is simple and uncomplicated: New ~ealand and
France are and have beena1al1relevant limes parties Io the Statute within the
meaning of Article 37.
II. This is a convenient point to consider the other eKectsof Article 37 of
the Statute on the General Act. for one of the arguments made in the Annex
to the letter from the French Ambassador to the Netherlands (referred Io
hereafter as the "French Annex") is that "there was a close link between the
Act and the structures of the League of Nations: with the Permanent Court of
International Justice, evidently . . .",and that the deinise of the League
brought with il the fall of the Act.
12. So far as parties Io the Statute within the iiieaning of Article 37 are
concerned, that provision may have updated at least soine of the references Io
the Permanent Court in the General Act.
13. These references can be grooped. First there are the provisions which
provide for a reference of matters Io the Pernianent Court and accordingly
clearly fall within the scope of Article 37. These include (apart from Art. 17):
(i) Article 19 (reference of matter to the Court if the arbitration process is
impeded), (ii) Article 20 (reference of matter to the Court if conciliation fails),
(iii) Article 33 (interim measures), and (iv) Article 41 (disputes about the inter-
pretation or application of the Act). These, together with Article 17, are
without doubt the rnost iniportant provisions in the Act relating to the
Permanent Court.
14. A second group of provisions makes a descriptive reference to the
Statute of the Permanent Court. Thus Article 17 provides that the disputes
referred to in its first oaraeraoh include in oarticular those mentioned in
Article 36 of the Statute; ~;!ides 18 and 28 énjoin the arbitral tribun& to
applv the sources oflaw specified in Article 38 of the Statute; and the Court in
coisidering requests for-interim measures under Article 33 is to act "in
accordance with Article 41 of its Statute". The Court in the BarceIona Trac-
rion. Preliminary Objecrio~rs,case ',said of a provision in a bilateral treaty of
peaceful settlement which contained a similar reference to Article 41 of the
Statute of the Permanent Court that it should now be read as referring to
Article 41 of the Statute of the present Court. Lt is submitted that the same
attitude should be ado~ted in relation to the other provisions mentioned in
this paragraph. But whether it is or is no1 would seémIo be of little conse-
quence since, first, the provisions in question are in substance identical in the
two Stafutes and. secondlv. thev could still be a~~lied even if thev do refer Io
.. .
provisions in an extinct treaty: parties to a tre& can, if they wish, describe
their obligations by referring ta a treaty which is not otherwise binding on
them.
15. The third group of provisions is a little more heterogeneous. Article 23
(3) empowers the President of the Permanent Court to appoint members of an
arbitral tribunal if three other methods of appointment have failed. 1sthis a
provision "reTcrring" a nialter to "thc ~crniancnt Court of Internation31
Justice"? The view that itdues not niight be thought unduly formali$tic and
artificial:the provisions for devolution u,ithin Article 23 (3) of ihc General
1 I.C.J. Reports 1964,p. 39 Act confirm that the power is conferred on the office and not on the indi-
vidual; and those who drafted the provision had no doubt that it was wide
enough 10 cover this case 1. Moreover the two parties can jointly approach
the President 2.
16. Article 30requires a conciliation commission 10suspend ils proceedings
if~ ~~ matter is alreadv before the Permanent Court or a Tribunal until the
Court or Tribunal has~dctcrmined the confli~t of conipetcnce. This provision
might come within the scope of Article 37 or the Commission ntight interpret
the reference Io theCour1 (Chau. Il) and theTribunal (Chao. IIOas in di catin^
-
that it should defer tolegal bo&es on disputes about c&np~tencé.
17. Finally, Articles 34 (b). 36 and 37 provide for cases where more than
two States are involved.The first makes a aeneral reference to the Statute of
the~ermanent COurt; if such a matter were-to come before the present Court
it would ofcourse comply with its Statute which in any event does no1differ in
this resoect from the orovisions of the Permanent Court's Statute. Articles 36
and 37 deal with inleivention. They (especially Art. 36) might also be read as
coming within the scope of Article 37 of the Statute and in any event they are
in substance identical to Articles 62 and 63 of the Statute.
18. This rather lengthy consideration of the references to the Permanent
Court in the General Act has been included to meet, in part, the French
argument that the tie with the Leaguesystern, including the Permanent Court,
is so close that the dissolution of the League and the Court would also cause
the Act 10 lapse. Il is submitted that the dissolution of the Court had only
minimal effects on oarticular ~rovisions of the Act and none al al1 on ils
continued force, whether belGeen New Zealand and France or in general.
This continuity. resulting from the facl that, as Article92 of the Charter says,
the Statute is based uoon the Statute of the Permanent Court and the further
fact that provision was made for the continuity of the bulk of ils jurisdiction,
is to be seen in the broader context of the continuiiy of the principal judicial
organ of the international community.
C. The Matter whieh New Zealand Has Referred to the
Court 1sa Matter Provided for in Ariicle 17 of
the General Act of 26 September 1928
19. The General Act for the Pacific Settlement of International Disputes
wa~~-oened for accessio~ ~ ~~he Assemblv of the Leaeue -~ o~ Nations in a
resoluiion dated 26 ~eptembér 1928. Lentered into force on 16~ugust 1929,
90 days after the deoosit of the second instrument of accession. Thereafter a
f~ ~ ~~ ~1 States~ ~ce~ ~ ~o il
20. The Act contains four chaptcrr, the Tirs1three of u hich concern respcc-
lii,cly conc~liation. adjudicalion and arbitrdi~on. the fourih shaptcr contatns
the final clauses and- general provisions applicable 10 the three preceding
chapters.
21. The General Act gives a clear priority to procedures of judicial settle-
ment in those cases in which "the parties are in conflict as to their respective
rights". Article 17 of the Act, which contains these provisions, reads as
follows:
"All disputes with regard to which the parties are in conflict as to their
1 UnirrdiVur,onr Conferenrr on InrernarionolO~gunisoriun . ol.13,p.528.
2 E g , Yeo~huok ofthe /n,rrnotiunol Court<>/Jurrrre1948.1949. p.40. Th15approach
wasmadebyHomaniaandSwit7erlandundera 1926treaiyofwcerul seiilcmcnt.150 NUCLEAR TESTS
resnective riehts shali. subiect to anv reservations which mav be made
under Articg 39, be hbmitted for decision to the Permanent Court of
International Justice. unless the parties agree, in the manner hereinafter
orovided. to have resort 10an arbitral tribunal
It is ~"derstood that the disputes referred 10above include in particular
those mentioned in Article 36 of the Statute of the Permanent Court of
International Justice."
The nrior character of this Article to the other vrovisions of the Act. and in
partfcular to the Conciliation Chapter. is made clear beyond question by
Article 20 (1).The provirioiis of Article 20(1), and the reference to arbitration
in Article 17. are paralleleJ by paragrnph (7) of ihe resolution and rccom-
mendation of the League Assembly opening the Act 10 accession (Annex II)
and by Article 29. both of which make refcrence to other procedures for
settlement of the dispute in question.
22. Article 17 establishes that the disputes with which it deals include
those mentioned in Article 36 of the Statute of the Permanent Court-a
provision which mus1 of course now be construed as referring to the Statute
of the~.res~ ~ Court. In-~~e-~ase of the Mavrommatis Polesfine Concessions 1
the Permanent court defined the dispute as "a disagreement on a point of law
or fact. a conflict ofleaal views or interests between two persans".
23. The matter at issue in these proceedings is of a lëgal character, and il
entails a conflict of views or interests: New Zealand asserts, and France
denies, that the atmospheric testing of nuclear weapons in the South Pacific
is in violation of obligations at international law.
24. It remains to be shown that the dispute concerns what Article 17of the
General Act describes as "the respective rights" of the parties. This is the
question of the legal interest of the Applicant, which is considered in Part V
below.
D. The General Act 1s a Treaty or Convention in Force
between New Zealand and France within the Meaninp
of Articles 36 (1) and 37 of the Statute
25. The General Act need no1 be accepted as a whole: a party may in effect
accept only the machinery relating to conciliation, or may exclude the ma-
chiner~ relating to arbitration from an otherwise general accession. An acces-
sion, whether partial or complete, may be subject to reservations which are
"exhaustively enumerated" in the Act.
26. New Zealand and France-together with Australia, India and the
United Kingdom-acceded to the Act as a whole on 21 May 1931; and they
accordingly became bound by the Act on 19August 1931. The New Zealand
and French accessions were both subject to reservations which are set out, in
~-~~~~s~ ~V ~nd VI resnectivelv. to the Anolication Institutine Proceedines.
27. The Act provides (~ri..45) ihat it'iay be denounced.kholly or partial-
ly, and that additional reservationr may be made. at the end of cach fivc-year
veriod from its initial entrv into force. on the aivine of six months' notice.
The current five-year period ends on I~AU~US~ i974.-
28. In February 1939New Zealand and France both exercised the power to
make additional reservations. These reservations, each of which concerned an
exclusion of disputes arising out of events occurring in time of war, are also
set out in Annexes V and VI respectively to the Application. Neither New
1P.C.i.J.,SeriesA,No.2,p. 11. MEMORIAL 151
Zealand nor France has taken any other formal action under the final clauses
of the Act. In particular. neithcr has denounced il. in wholc or in oart,
29. ~urisdiction unde; Article 17is limited by ahy reservations'to which the
accessions of the parties in question are subject. Il is submitted that, with one
exception, none of the reservations made by New Zealand or by France,
either at thelime of accession or in 1939, has any possible application to the
facts of this case. The one exception is Condition (1) (v),which will be con-
sidered later in this Part of the Memorial. Conditions (2) and (3) will also be
discussed later in this Part, in the context of the relationship between the
General Act and the League of Nations. Subject to the foregoing, it is not
proposed to make further reference to the various rescrvations in this
Memorial unless the Court or anv Membei of it asks that this be do-e-~
30.~he French Go~crnment contends that the General Act is no longer in
force for any of the States which acceded toit and that, if il is in force. is not
aooiicable in the relations between France and New Zealand. These broad
&;tentions and the arguments given in support of them will be considered in
six heads.
31. First, the General Act will be looked at in ils context-a context which
the French Government says has so changed asto bring about the lapse of the
Act. This will involve an examination ofthe relationshir, between the Leaaue
o~ Nat~~~-~svstem and th-~Ac~.
32. This &amination will lead to the second subseciion relating to the
ekt of the dissolution of the Lcague on svecific provisions of the Act which
confer powers on League organs, and on the Act as a whole.
33. The third subsection is related, and concerns the efiect of the dissolu-
tion of the League of Nations on the reservations Io the New Zealand acces-
sion referring to the League. In this subsection the only French argument
bearing specifically on the application of the Act between New Zealand and
France-as opposed to those arguments which relate to the continued force
of the Act as a whole-will be considered.
34. The fourth subsection will discuss the significance of the action of the
General Assembly in vreparing the Revised General Act in 1948-1949.
35. State ~ractice beaiine on the continued force of the orieinal General
Act since 1946 will bc brought together in the fifth subsection. ?he final sub-
sectton will review the preceding ones in the light of certain basic principles of
the law of treaties.
36. The French Annex asscrts that:
"The Act ofGeneva wosan inregralpart ofthe Leagueof Nofionssysrem
in so far as the pacific settlement ofinternational disputes had necessarily,
in that system, to accompany collective security and disarmament.
Corres~ondina Io this ideological integration, there was a close link
between the Act and the structures of Ïhe League of Nations: with the
Permanent Court of International Justice. cvidcntly. and also with the
Council of the Leaaue. the Secreiarv-Gencral of the Leaaue. the States
Members of the ~rganization, or, then again, ils secretariaÏ."
This integration isevidenced, it issaid, by the reservations in the New Zealand
and French accessions and by the revision of the Act to substitute new terms
for those referring to the defunct system. Since the demise of that system, the
Act wants in efiectivity and validity and has fallen into desuetude. NUCLEAR TESTS
(a) The Ideological Conrexr
37. It is true, a5 the French Annex says, that the Act was elaborated as part
of the League's efforts concerning disarmament, security and arbitration.
Thus, the initial work which led directly to the Act was carried out in the
Committee on Arbitration and Security, a Committee which was set up late in
1927 bv the Pr~~aratorv Commission for the Disarmament Conference. The
cornmittee wa;io coisider the rneasures capable of giving al1 States the
guarantees of arbitration and security necessary to enable them to fix the level
of their armaments at the lowest oossible fiaures in an international disarma-
ment agreement. The reasoning to which the Assembly had adhered in
proposing the formation of the Committee was that the progressive extension
of arbitration bv means of suecial or collective acreements would extend to al1
countries the mutual confidence essential to the complete success of the
proposed Conference on the Limitation and Reduction of Armaments.
~oreover, the Committee's membership was essentially the same as that of
the Preparatory Commission.
38. The Assembly, at ils 1928 session, considered several texts prepared by
the Committee on Arbitration and Securitv: six model arbitration and con-
ciliationconVentions (three bilateral and three general) and an introductory
resolution; a resolution on the optional clause of Article 36 of the Statute of
the Permanent Court of International Justice: model treaties of non-aa--es-
sion and mutual assistance and related resolutions; a resolution relating to
Articles 10, 1I and 16 of the Covenant; a resolution concerning League com-
munications in case of emergency; a resolution and report on financial
assistance to States victims of aggression; and a model treaty with a view to
strengthening the means of preventing war. together with an introductory
note and a resolution. This cataloeue is sianificant as indicatine the rance of
issues in the field of peace andsecirity which were seen as relacd. This point
was to be repeated in the first paragraph of the first Assembly resolution which
was ado~ted under the headine "~acific Settlement of internationa lisoutes.
on-~ggression and Mutual Assistance" and which opened the ~eneral ci
for accession 1 :
"The Assembly,
Having considered the work of the Committee on Arbitration and
Security:
(1) Firmly convinced that effective machinery for ensuring the peaceful
settlement of international disputes is an essential element in the cause of
security and disarmament;".
39. The relationshipstated in the passage quoted certainly existed but how
precise was the understanding about it and what legal form, if any, did it
take? One or two suotations from the debate on the reuort of the Committee
on Arbiiration and Security will show thai the polltical understanding u,as at
best a vague one: the report itself stated that it ,$,aIircniaiure to attempt 10
establish the connection which ouaht to exist between the treaties of mutual
assistance and the limitation and-reduction of armaments. The Rapporteur
suggested, however, that the reduction of armaments was conditional on the
conclusion of treaties of non-aaaression and of mutual assistance. But the
German delegate would not havethis: the degree of security afforded by the
Covenant itself was sufficient, he said, to allow of the reduction of armaments.
The tex1oftheresolutioniscantained inAnnexII The French deiegate commented that it was probably futile to renew the same
old controversies at each meeting: the delegates' conceptions of the relations
between security and the reduction of armaments varied 1.
40. More importantly, the relationship is not reflected in any way in the
legal instruments. The General Act and the model bilateral conventions make
no ---~-~nce at al1to s~curi~ ~and disarmament issues. Thev do not. for in-
stance, make their entry intLforce dependent on progress ii these fiélds;the
Geneva Protocol hy contrast was to enter into force only after a plan for the
reduction of armaments had been adopted by the proposed ~nternational
Conference (Art. 21). While a connection was seen between the various mat-
ters, and while progress in one was seen as related in a broad sense to the
others, there was no legal dependence. The General Act had a legal existence
quite independent of theefforts in the security and disarmament areas.
(b) The Merhods for the Sertlement of Dispules in rhe
Covenanr and in the General Act Compared
41. Earlv in the debate on the drafts relatine to the orooosed General Act
the ~ritish-delegate in the First Committee crzicized ihe apparent intention
"that this General Act should be an instrument which would become an
inteeral oart of the structure of the Leacrue". Recallincr events of 1923 and
1924,hewarned del&ates of the risks ofireating instruments intended to he
part of the structure of the League which were not accepted by a good many
States 2
42. His reason for this criticism was that he thought the drafts wrongly
emphasized general (i.e., multilateral) instruments at the expense of bilateral
ones. The Committee on Arbitration and Securitv .n or.parina both creneral
and bilateral treaties had not. ituas gcnerally agrced. prcierred one cifcgriry
to the other; for States uere no1 al1in ihc sanie position and u.ould op1 for
difirent policies 3. The view that bilateral and gcncral ircafies should be
equally recommended was accepted within the ~ssembly and was reflected in
amendments proposed by Sir Cecil Hurst and made to its resolution. Thus
M. Politis reporting to the Assembly stated that-
"it was quite understood ... that the two classes of model treaties were
on an equal footing and that the Committee did not intend to indicate
any preference between them 4".
Accordingly, as the Rapporteur said, the resolution was amended so that it
did not, on the one hand, recommend the General Act nor, on the other,
merely draw the attention of governments which might feel unable to accede
to it to the possibility that they could accept the rules in the Act by special
1 Records of the Ninrh Ordinarr Session of the Assembly, Minutes of rhe Third
Co2mRecords of rhe Ninrh Ordinory Session of rhe Assembly, Minules of the Firsi
Commitree, p. 68.
3 See, e.g., a United Kingdom memorandum, League of Narions Oficial Journal
1928, pp. 694-704.
4 Records ofrhe Ninth Ordin~rySession ofrhe Assembly, Miiiurerof Plenary, DD.
169-170. See, inaddition, the viewsexpressed by M. Politisat anofher meeting("iwo
doors to arbitralion"),by M. Limburg(Netherlands)and by M. Cassin (France),and
the arnendmentsproposedbySir CecilHurst, Recordrof theNinth OrdinarySession O/
the Assembly, Minures of rheFirst Commitree, pp. 68, 74,and 129-130.154 NUCLEAR TESTS
agreement or by an erchange of notes 1.Rather, it invited al1States to accept
oblieations either bv becomine ~arties to the annexed General Act or by
conzuding particul& conventi6"s with individual States in accordance with
the model bilateral treaties annexed or in such terms as might be deemed
..
43. 'Not only was Sir Cecil Hurst's viewabout the placing of equal emphasis
on bilateral and general treaties accepted, but, in addition, his broader, critical
comment about the Act becoming. in the mind of the Subcommittee. an
integral part of the League structure was also met directly. M. ~olitis, as
Rapporteur, affirmed in the First Cornmittee:
"As rezards the su~~osition that the General Act was to be considered
as a consïitut~onal dkument, a sort of annex to the Covenani. its authors
had never had any such intention. Its adoption would simply signify that
theLemueof Naiions wouldihink wellof anv States which. beina wi-linp. -
to accept collective engagements, should adhere to the Act 2."
He returned to the theme in reporting to Plenary:
"The General Act is not to be confounded with the instruments
previously drawn up here. It may be well to point out that, while it has a
certain affinity with the Geneva Protocol as regards its legal structure, it
is initself of quite a differentcharacter. 1say this in order to calm certain
apprehensio& which might arise.
In the first place. the Act will not necessitate any amendment to the
League Covenant. It is open to al1 States and needs no more than two
adhesions to become effective. This difference is sufficiently characteristic
to distinguish it from the Geneva Protocol 3."
44. The General Act was not then seen as a constitutional document, as
an amendment to the Covenant or as an integral part of the League system.
But were ifs ~rocedures such as to involve it inextricablv in the Leaeue
system? The parties to the Covenant of the League of Nations agreed to it "in
order to promote international CO-operation and to achieve international
peace and security". The commitment to this purpose was reflected in a
number of the Covenant provisions: in the generolguarantee-against agres-
sion and of territorial integrity and political independence-in Article 10
(the exact scope of which was of course disputed); in the declaration in
Article Il (1) that any war or threat of war was a matter of concern to the
whole League; in the right of any Member to refer to League organs such
matters, or any circumstance whatever affecting international relations, which
threatened to disturb international oeace. or the eood understandine between
nations upon which peace depends.; in the obligation of Members Fo submit
any dispute arising between them, and likely to lead to a rupture, to inquiry
bv the Council-unless thev submitted it to arb~t~ation or adiudication: in the
Council procedures; and, finally, in the sanction provisions. In al1 these
'Comparethedraft propoxd inthe I:ir\i Commiitce.Recordsofthe NinlhOrilinory
SessionofrhrArrtmhly,hfinule-soflhetjrrr Cornm~rl~p c,.122.paras 9and 10.
Rcrords of I~C Nmh Ordtnorv Sesrion of rhe Asrcmhii. Afinurer of rhe Ft'irsr
Commirree. p.69.
2 RecordsofrheNinrh0rdinar.vSession of rheAssembly.MinutesoJPienary,p. 169.
See,similarly.M. Cassin(France) in the First Cornmittee.ibid.. Minuteso/lhe Firsl
Commiilee,D.75. 156 NUCLEAR TESTS
advisory opinions. but, in addition, it was an international organ
appointed to give decisions on disputes between States. States not
Members of the League had been invited to accede to it and they had not
raised any objection of principle, for it would not entail for tbem legal
relations with the League of Nations.
What was partly true of the Permanent Court was entirely true of
arbitration. The intervention of the Council of the League was oot
implied as a matter of necessity in the General Act: the latter had been
regarded as being of use in connection with the general work of the
Leaaue. but it had no administrative or constitutional relation with it.
~bÜbtless. the undenakings covered by Articles 13, 14 and 15 of the
Covenant had been extended. It had been desired to give States the
means of carrying to the extreme point their arbitration obligations, but
it had not been proposed to annex this procedure to the League of
Nations 1."
48. Because the procedures are basically different it by no means follows
that they have no impact on each other. It is possible, on the contrary, that
the~.mieht be aov..cable to one and the same disoute. for.the Act can be read
3s providing a procedure for the peaceful settlemeni of 011 international
disputes. The relationship betueen other prucedures and ihose laid doun in
the Act iiindeed deali with in severïl of its provisions (Arts. 17-19. 29. 30and
31). As the Commiitee on Arbitration and Sccurity stated 2.the Act's provi-
sions are generally subsidiary IO other procedures. The efiect of the Act on
Leaaue procedures is no1 dealt with bv the Act itself. Rather. the Assemblv
resoiution opening the Act for accession 3declares-
"that such undertakinns lrelating to the oeaceful settlement of interna-
tional disputes] are no; 10 be interpreted as restricting the duty of the
League of Nations to take at anY lime whatever action may be deemed
wise and effectua1 to safeauard the oeaceof the world: or as imoedine ils
intervention in virtue o<Articles i5 and 17 of the ~ovenant; where a
dispute cannot be submitted to arbitral or judicial procedure or cannot
be settled by such procedure, or when the conciliation proceedings have
failed".
The competence of the Council to intervene would seem to follow from this
resolution and from the terms of the Covenant (esoeciallv Art. 20). Thus.
there was never any doubt that the Council couldcontinué to deal kith thé
Ethiopian-ltalian question during 1935 when aspects of if were being con-
sidered bv a commission set uo under a bilateral treatv of amitv. conciliation
and arbitiation. On théother hand. the Council mightrefuse tointervene in a
matter submitted to a bilateral procedure unless both parties or the institu-
tion sought ils aid, as indeed it had done not long belore the General Act was
adopted 4.
l Records of rhe Ninrh Ordinary Session of the Arsembly, Minutes of rhe First
Cornmirtee,p. 71.
Leogueof NorionsOfiiol Journal1928.p. 1146.
Paragraph7; tex1 in Annex II. Seealso Model Convention a, Article 36, Model
Conventionb, Articles 24 and 29, Model Conventionc. Article 23.
The caseof the Cruiser Salamis, Records of rhe NinrhOrdniory Session of the
Assembly, Minutesof Plenary. p. 212.See also theCouncil resolution of 28September
1923,quotedby M. Holsli, the Rapporteur within the Committee on Arbitration and
Securitywho preparedan initial draft of the rnodelsincorparated in the GeneralAct,
League of Nationr Ofiiol Journal1928,p. 658. 49. The uncertainties arising in this area have been met in some cases by
reservations made by the parties. This is the case with New Zealand and
France. whose reservations on this point will be discussed below. Here it is
sufficient to note thÿt those prepdring sny type of procedurc or institution
cstdbli\hed to deal with a11international di,putc, in 1928uould ha\e had to
take account of the existence of the League and its procedures. But taking
account of il and taking a tentative step towards reconciling the overlap of
competence does not integrate one procedure with the other.
(c) The Ceneral Act and Non-Mernbers of the Leurue
50. Those responsible for drafting the Act contemplated throughout that
non-members would be abl~~-o~accede. Thev we~~,thirefore carefil~t~ ~~ ~~ ~ ~ -
f"rn~ulitii,ns which might increasc the hesitancy of any non.mcmber which
uas interestcd in accedinc. Thur, the final sentence of Article 17was added in
oreference to that to be-found in the eauivalent orovisions of th~ L~carno
ireatierwhich referred to Article 13of theccivenan; 1;refercnces to ~rticlc 15
of the Covçnant (ivhich deals only with disputes betueen Members) were
supplemented by the addition of references to Article 17 in anticipation of
aicasion by non-mcmbers 2: refercnces to Articles 15and 17of the Covenant
were removed from the text to the resolution 3; and a proposal that the
Actine President of the Council have a residual oower toaoooint members of
arbitral tibunals and conciliation commissions was repliGd, in respect of
tribunals. hy a procedure based on the 1907Hague Convention 4.
51. ~onsistently with this approach, ~rticle43 (1) of the Act provides that
the Act is open to accession by all-
"Heads of States or other competent authorities of the Members of the
League of Nations and the non-Member States to which the Council of
the Leagueof Nations has communicated a copy for this purpose".
On the very day the Act was opened for accession the Council decided to
extend this invitation to nine non-member States 5 Those States had the same
rights 10accede as the then 55 Members and they were no1 asked to commit
themselvc\ in any way to League procedures-for instance. those laid down in
Article 17 of the Covenant. The nine. it uould ïppear. wcrcan almost com-
plete group of non-members 6. Moreover. ascording to the las! list of Signa-
' RecordsofrheNitirhOr</inorySessioit of rheAssembly,Miniires of .%sr Co,nmitree,
p. 61.
Reporrof the Contmirree oitArbirrorionand Securiry,Leogueof Norioiir Oficial
Journol1928, pp. 1145, 1148.
3 Records of rhe Ninrb Ordinarv Session of rhe Arse»iblv. Minures of Plenarv. ~.
pp 486.488.
4 Kzporrof rlte Co,,i,>8ittreon Arhitrotiunand Srrurrr!.t.eogitrof A'uri~nrOfic!ol
Journo11928, pp. 1ll5. 1147 Sec olso the Fimtand Third CommitiecJoint Meeting.
Rerordr of rhr Ninrh Ordmori .ersionolrhe Asrembly,Minurer of Firsr Commiitee.
pp. 82-83;seeArt. 6 (3).
Leagrte ofNorionr Ofiial Joi,rnal1928, pp. 1669-1672F . or theletterof invitation
sce ibid,,1929,p. 352.
8 Compare forexample,the listsof Statesattendingthe conferenceand invited IO
accedeto the International ConventionRelating to EconomicStatistia, of December
1928, Lengueof NorionrOfiial Journol1929, pp. 509-510.Theyincludeinaddition to
thoseinvitedIo accedeto the GeneralAct,Danzig.Icelandand theSudan.Sometimes
the small European States-Andorra. Liechtenstein,Monaco and San Marino-and
the Hedjaz,were alsoincluded,e.g., ibid., 1925,pp. 489,W.158 NUCLEARTESTS
tures, Ratifications and Accessions in respect of Agreements and Conventions
concluded under the auspices of the League of Nations, published in 1944.
the League Secretariat considered that 11States, which weÏe Members of the
League when the Act was concluded but which were no longer Members,
were still entitled to accede1.
(d) The Signifieanceof the Powers Conferred by the General
Act on Orgons of the League of Nations
52. The French Annex states that there was a close link between the Act
and the structures of the Leaaue of Nations svstem. How close was the link
and what was its significance? This question has already bcen dealt with in
relation to the Permanent Court. So far asconcerns League organs. powers
are conferred bv the General Act bv fivearouos of orovisions. Three are con-
cerned with conciliation: the first bith Chea'ppoi"tment of the commission
and ihe second and third with ~idministrative services. The commissions are to
consist of five members, three of whom are appointed by agreement. If the
appointments are not made in the prescribed period, a third Power or the
Acting President of the Council can be asked by the parties to make the
annointment. If those procedures fail. two further methods are ~rovided for.
(~he Rapporteur enviiaged two sanctions as well 2.)The procedure, then, is
but one of five or seven methods of appointment and it is, moreover. depen-
dent on the agreement of the two parties.
53. The second provision states that the commission is to meet at the seat
of the League unless it be otherwise agreed or the commission's President
otherwise decides (Art. 9 ...). A.ain the involvement of the Leaaue-is not
obligatory and an approach for assistance to another organization is no1
forbidden. This is truc also of the third provision: the Commission can re-
ouest the Sccrctarv-Generdl of the Leagu- of Nations to afford il his assis-
tance (Art. 9(2)). -
54. The fourth provision-conferring power on the Council of the League
to invite non-members of the Leaaue to accede-is ~erhaos of nreater sianifi-
cance. This power (Art. 43 (1)) w& exercised on the day ihe AC w as okned
for accession. In fact none of the States invited accedcd.
55. The final group of provisions conferred on the Secretary-General of the
League the regular range of depositary functions: to provide certified copies
of the Act to Members and io those States invitcd to accede and to advise
them of instruments de~osited with him: to receive instruments of accession
and declarations cxtending the scope of accessions or abandoning part or al1
of the reservations; to receive instruments of denunciation; 10 maintain lisis
of the parties: and to regi,ter the Act under Article 18of ihe Covenant on ils
entry into force.
56. The significance of the demise of the League on these provisions and
the resulting impact on the Act as a whole are considered below. For the
moment, it is suficient to notice their unimportance in themselves andin the
l Annexto the Reportonthe Work o/rhe League/or rhe Year 1942-1943.League of
NationsOlfcjal Journal,SpecialSupplemenrNo. 193, C. 25, M. 25, 1943.V. Annex,
p. 48.("2. Opento Accession by:...".)Of thoselisted,onlyfour States(Brazil,Costa
Ricat,he USSR,and the USA) hadbeeninvited. This listingaccordswiththe general
practice:para.97,below.
2 RecordsofrheNinthOrdinarySessionof theAssernblyM , inulesofFirsl Commirree,
p. a. overall context of the Act. Thev do not. esoeciallv when taken with the
material in the prcceding section;put in doubi M. ~blin's conclurion that the
General Act had no administrative or constitutional relationship uith the
work of the League 1
(e) The Signifieance of the New Zealand and French
Reservarions relafing fa fite League of Nations
57. The New Zealand and French accessions are subject to reservations
which oreserve certain of the powers of the Council of the Leaaue. The French
~nnex'argues that the links between the Act and the League wcre emphasized
by thess and one other reservaiion. Were they? Whai was the significance of
the reservations relatine to the Leaeue?
581~~he ~ustralian,-canadian, indian and United Kingdom accessions
contain the same reservations as New Zealand's, and the Italian accession is
similarly qualified. These reservations recognized that some disputes might
fall under the jurisdiction of both the Council and the institutions established
under the Act. But, once again, it does not follow that the reservations
emphasize the links between the two instruments. Rather they attempt fo
keep the procedures separate and to establish in advance a method for
determining which is to be applicable. This point can be made clearer by a
consideration of the background Io the reservations of this kind.
59. The possibility of sich reservations king aitnched IOdeclarations made
under Article 36(2) of the Statute of the Permanent Court uras considered in
the First Cornmittee of the Asscmbly of the League in September 1924 in
xsponse to an Asxmbly resolution which. inter olia. raised the question of
rendering"more precise" the limits of the terms of Article 36(2) of the Statute
so as to facilitatethe more general acceptance of compulsory jurisdiction 2.
60. The First Committee (of which M. Politis (Greece) was Rapporteur)
reported as follows:
"Careful consideration of the article has shown that it is suiïiciently
elastic to allow of al1kinds of reservations . ..
We can imagine possible and therefore legitimate. reservations either
in connection with a certain class of dispute or, generally speaking, in
regard to the precise stage at which the dispute may be laid before the
Court. While we cannot here enumerate al1the conceivable reservations.
itrnay be worth while to mention rnerely as examples those Io which we
referred in the course of our discussions.
................................
It might also be stated that the recognition of the compulsory jurisdic-
tion of the Court does not prevent the parties to the dispute from
aereeine to resort Io a oreliminarv conciliation orocedure before the
~Ouncirof the League ofNations O; anyother bod; selected by them, or
to submit their disputes to arbitrators in preference Io going before the
court.
Para. 47above.
Resolution of 6 September 1924, Resolurionsond Recommendationsof the
Assemblyadopredduringirs FifrhSession, p. 47; seealso the speechesby the two
Prime Ministers,Mr. MacDonaldand M. Herriot, whichled IO the draft resolution
Sessionofthe Assembly,Minutesofplenmy, pp.leg41-45and 51-54.of rheFifrhOrdimy160 NUCLEAR TESTS
A State might also, while accepting compulsory jurisdiction by the
Court, reserve the right of laying disputes before the Council of the
League with a view to conciliation in accordance with paragraphs 1-3 of
Article 15 of the Covenant, with the proviso that neither party might,
during the proceedings before the Council, take proceedings against the
other in the Court.
It will be secn, therefore, thai there is a vrry \+ide rangs ofrescr\ation~
which niay be mdde in conncciion ivith the undcrt~king rcrerrcd tu in
Article 36, paragraph 2 1."
61. The Assembly adopted arecommendation reading asfollows:
"Considerinn that the studv of the said terms shows them to be
sulficiently wide to permit ~iaiii to idhere r<iihc Special Pri)iocol opcned
for signature in viriue of Article 36. pjrt~graph 2. nith the reservations
which thev reaard as indis~ensable:
~onvinced Chaiil !sin the interest of the progrïssolintcrnaiiona1~ustice
and consistent niih rhr ehpectJtiOnS ufthc opinton or the uorld ihat the
greatest numbers of States~should,to the widest possible extent, accept as
compulsory the jurisdiction of the Court,
Recommends
States to accede at the earliest possible date to the Special Protocol
opened for signature in virtue of Article 36, paragraph 2, of the Statute
of the Permanent Court of International Justice 2."
62. This ~articular discussion ~roceeded in the context of a broader con-
siderriion oi Arbitrarion. ~ccurii; and Reduction of Arniatnïnts. a conrider-
ation nhtsh rewlted in the prcp~ration or the I'ri>iocol for the Pdcilic Sctile-
nient of Intcrnaiiunïl Dispures (thé Gctie\a I'rotocolJ. Art~cl.: 3 OCth1
Protocol wou~~ have recorded the "n~e~ ~kine of the Parties Io it to recoenize
~-
the conipulsor) juriidiciion #if the Coiirt "but uithoui prcjudtie to the right
ofany Staie . . to niakç reser\diii>ns coninlitible uith the said clau\eU.
63.~On the verv. .v theProtocol was ooened for signatu-e and the resolu-
tton adopted France made a declaration, subject to ratification, accepting the
compulsory jurisdiction of the Court subject, inter uliu,to the-
". ..observationsmadein the FirstCommitteeofthe Fifth Assembly to the
effect that 'one of the parties to a dispute may summon the other before
the Council of the League of Nations, with a view to an attempt to
efîect a pacific settlement as provided in paragraph 3 of Article 15 of the
Covenant and. during this attempt to settle the dispute by conciliation,
neither party may summon the other hefore the Court of Justice' 3."
64. Reservations concerning the Council of the League subsequently
a~~eared in 20 declarations made under Article 36(2) of the Statute of the
~c,rn~ncnt Ciiurt. They itrc io hefound in ihc deilitraiions made by Austrïli.
Uritain. Canada, Czechoslovskia (no1 r;iiitied), Frdnse. India, Irdn, Iraq (not
Recordsof theFiflh Ordinory Sessionof rhe AssemblyM , inutesofPleiiory,p. 484;
seealso,ibid.,Minutesof ThirdCommirrec, pp. 194,199;and MinuresoJ'FirsiCornmillee,
pp. 15-23for the discussionsin that Cornmitiee.
2 Recommendationof 2 October 1924, Rssolurionsand Reeommendotions op. cil.,
pp. 20-21; for Plenarydiscussion,especiallyM. Politis. at p. 192,see Recordsof the
FifrhOrdinarySessionof the Assembly,Minuresof Plenary, pp. 192-225.
P.C.I.J.,SeriesE,No.I,p.362. ratified), Italy, New Zealand, Peru and South Africa. In making its initial
commitment, the British Government, as in the 1924 Assembly debate, ex-
plained the provision in part by ils concern about the state of the law of naval
warfare and more generally by reference Io its obligations under the Covenant.
65. Thus, the British Foreign Secretary stated al the time of the signature
of the clause that-
"[the provisol is to cover disputes which are really political in character
though iuridical in amearance. DisDutes of this kind can bedealt with
more-sa~tisfact~ril~ bi the ~ouncil.so that the conciliatory potiers of
that body miiy beexerciscd wiih a view to arriving ai afriendly setilenienr
of the dispute. This furmiil2 plxces the Untted Kingdom in much the
same position as a State nhich has agreed to a ireiity of arhitrdtion and
conciliation pro\id,ng for the refçrence of al1 disputes to a conciliation
commission before thev aresubmitted to iudicial seitlement. The formula
is wide in character because the extent Cowhich it operates depends on
the Council itself. It would ceaseto operate from the moment when the
Council decided that it was better that the auestion should be submitted
to the Court, and therefore declined to keepthe dispute under considera-
tion. Within these limits, however, the provisio would apply to any
iusticiable dispute. whatever ils oripin. It would extend. for instance. to
disputes arisin): out of cases irhere;t had bcen necç$sary for the ~ni~cd
Kingdoni Io takç action ai the instance of the Counsil in pursuancc of ils
obligations as a member of the League 1."
66. When the ouestion of accession to the General Act was raised within
the ~ommonwealih, the British Government, with general support, suggested
that reservations similar to those applying to the optional clause should be
included 2.Thus acceotance of the General Act should not imoair ils rieht tu
bring disputes before the Council of the League 3.~~ecificaily, the Ünited
Kingdom Government (asserting that "any State" can accede to the Act)
reasoned that-
"while there is no difficulty,as against other members of the League
concerned, in preserving our right to hring non-justiciable disputes
before the Council in accordance with the provisions of the Covenant.
this is by no means the caseas regards non-members,who are not under
any obligation to have any dispute brought before the Council at all.
These considerations constitute in our view a strong argument for con-
fining our acceptance of the General Act to States members of the
League. Such a restrictionwould not in any way affect our obligation to
1 Quoted in the WhirePaper on rhe signatureby His Mojesry'sCovernmenrin the
UniiedKinadomofthe Ooiio110C 1la~ise/O rhe Sturure.Conimond~. . 3452. vara. 10:
see alsa paras. 15-24.cs&cially 24(3).
2 see, cg., the view expressedat the 1930 Imperia1 Conference. Summory of
Proceedings,Parr VI1 [United Kingdoni] Commnndpoper 3717: Appendices IO rhe
Journolsof rhe[New Zcalond/ House of Represe~rturiv1s931,A6. Seealso theMemo-
randumon rheproposedoccession by His hfojesry'sGovernmenrin the UniredKingdom
rorheCencralAct of 1928for rhePacificSerrlemenrof InfernorionolD~spures C,ommond
poper3803, para 8.Seep.404, i,$ro.
Seetelegranisof8 January 1930,andof4 July 1930,para.2in IinperiolConferei~ce,
1930. ne GeneralAc!for rhePoeificSerrlemenro/Dispures. (Document printed for the
Conference.)E. (30) 22. pp. IO. 11-12.In accordancewith Article 47 of the Rulesof
Court, this documentwill be madeavailable Io the Court.162 NUCLEAR TESTS
have justiciable disputes with any non-member which might sign the
Optional clause decided by the Permanent Court. Moreover, it would, of
course, be no bar to the conclusion of bilateral arbitration treaties with
non-members of the League, such as the United States and Russia. Such
bilateral treaties are in fact the only kind of arbitral engagements which
any State nota member of the League is likely to make. In the circum-
stances we are disposed to think that it would be best to exclude from the
procedure of the General Act disputes with any State which is not a
member of the League 1."
This specific concern was embodied in reservation I (v) to the accessions of
Australia, Canada, India, New Zealand and the United Kingdom: disputes
with any party to the General Act which is not a member of the League of
Nations are excluded.
67. The overall Durrioseof al1three reservations-l(v). 2and 3-was. then.
IO estahlish the general primacy of the Covenanl \yrlem and Io enable a parly
which had agreed Io a different procedureIOappeal Io the League procedure.
if it wasa~~iicabie. in ~reference to the other. There was no suggestion of a
link; rquiteihe contrary.
2.THEEFFECT OF THE DEMISE OF THE LEAGUE OF NATIONS ON THE
PARTICULAP RROVISI~N SF THE GENERAL ACT CONFERRING
Pow~ns ON LEAGUE ORGANS ,ND ON THE ACT AS A WHOLE
68. The French Annex asserts that so closely did the Act appear to be
integrated into the structure of the League of Nations that after themise of
the Geneva organizatipn the necessity was recognized of proceeding to a
revision of the Act with a view to substitutine new terms for those referrine to
a defunct system. The significance of the Geparation of the Revised A; is
considered later. Here the Memorial looks at two questions: what effect did
the demise of the Leanue have on the orovisions of the Act referrine -o it?
What is its significance for the Act as whole?
69. The Governrnent of New Zealand stated at the interim measures stage
that the provisions relating to appointments by the Acting President of the
Council and to the invitation power of the Council "will obviously have
lapsed":
"The considerations on which this view mainly depends [it was
explained2] are the demise of the League itself, the absence of any action-
whether taken in a United~ ~~i~ns context or otherwise-to effect or
reiognize a transfer if the powers reposed in the League ~ouncil &d its
acting President, and the decision of the United Nations General
Assembly in 1949 to establish a revised General Act, which would confer
powers on United Nations organs, but would leave undisturbed the
provisions and operation of the 1928 Act.
In the view of the New Zealand Government. therefore. Article 43 and
Article6 of the General Act, in so far as they purport to'entrust powers
to the League Council and to its acting President, are now without effect.
The same attitude would apply to the provisions for administrative
assistance to conciliation commissions, although as noted above the
The GeneralAc!for thepocific Selfle,ofDispules, op. cp. 12.
The writtenanîwer of I June 197310 the question put bJudge Sir Humphrey
Waldock. See p. 374i,$ra. spirit of their provisions-asof that conferring theappointment power-
could still be complied with."
70. The depositary provisions raise different issues since action has been,
taken with the purpose of transferring functions of a depositary character
from the League to the United Nations. The resolutions adopted by the
Assembly of the League and the General Assembly of the United Nations are
set out in Annexes III and IV.
71. The Secretary-General has reported that pursuant to these resolutions
"al1 multilateral treaties deposited with the League of Nations were trans-
ferred to the custody of the United Nations" and that, since then, "States
have taken various actions (signature, ratification, accession, denunciation,
etc3 in resoect of a number"of them. Further. "in the exercise of deoositarv
functions inder the above-mentioned resolution, the ~ecretar~-Gen~ral hai
informed al1 interested States of new signatures, receipt in deposit of in-
struments of ratification or accession, and notifications of succession, asll
as various other notifications communicated to him in accordance with the
provisions of the treaties concerned 1.''
72. The oractice of States and of the Secretarv-General aooears from the
annual lists-:thus he has received in excess of 260 instrumeh& in respect of
more than 30 treaties which either had not been formally amended or had not
been formallv amended for the States becomine oartv to them. It is. more-
over, apractice which has been explained to ~iited Nations organs and not
challenged. Thus, in 1953 when the 1926 Slavery Convention was being
amended:
"Some delegations expressed the opinion fhat a protocol was desirable
for the ouroose of transferrine to the United Nations the functions and
powersrex;rcised by the ~e&ue of ~ations under the International
Slaverv Convention so that non-member States which were Parties to
the convention mieht nive their assent to such a transfer. The same
delegations also pointedout that there were several precedents.
10. The Secretary-General's representative said that the Secretary-
General consideredhimself bound-bv the terms of oart A of section I of
General Assembly resolution 24 (1) of 12 ~ebruary 1946. In accordance
with the orovisions of that resolution, the Secretary-General had always
confined-himself to the exercise of ourelv administrative functions and
there had never been any objections:~huS, he had accepted, and notified
the States concerned of, the depositing with him of instruments relating
to Conventions which entrusted the ~ecretary-General of the League of
Nations with the functions of depositary and which had never been the
suhject of a protocol of transfer. The adoption of a protocol, which the
General Assemblv had freuuentlv thouaht desirable. would nevertheless
not reflect upon ihe status8î Sites w&h, by depoiiting an instrument
of accession or ratification with the Secretary-General, had become
parties tosuch Conventions 2."
' Multilateral Treafiesin respecfof whichSeerelnry-Generolper Dfoposilr?ry
Functionr.List of Signatures,R?rificotions,Accessio,tc.or or 31 December1971.
introduction,paras.6and 15.Seealso Summaryof thepraeticeof theSeererary-Gmerol
as Deposifaryof MuIlilateral Agreements(Augusr1959) STILECI7, pp. 65, 67which
identifiesthe LeaaueTreaties transferred.v referenceto th1943 Lea-ueList. This
lirt, of course,inzuded the General Act.
1 United Nations, Ofilal Recordsof the Eighfh Sessionof the CenerolAssembly,
Annexes, AgendaItwn 30, doc.A/2517.164 NUCLEAR TESTS
Similarly,in 1955,in connection with thelnternational Conventionconcerning
the Use of Broadcasting in the Cause of Peace of 1936-
"...a question arose in the Third Comrnittee whether conventionscon-
cluded under the auspices of the League of Nations required a General
Assemhly decision in the form of a protocol of transfer in order to
remain in force. The reoresentative of the Secretariat reolied that the
General Assembly had 'decided the issue in resolution 24 (I), which
provided that such conventions should have continuing effect and which
authorized the Secretary-General of the United Nations to carry out the
custodial functions of the Secretary-General of the League. The Sec-
retary-General has acted as the depositary of League of Nations con-
ventions even when there had been no orotocol of transfer. He had
received accessions and ratifications to a number of such instruments.
AI1member States had been notified and in no case had any question of
validity arisen1."
73. The General Assembly in resolution 841 (IX) also noted that, in
accordance with resolution 24 (I), the custodial functions mentioned in the
Convention had already been assumed by the Secretary-General and that the
Convention was still in forcez.
74. The purely administrative and secretarial character of the depositary
function, emphasized in the practice (for instance in General Assembly resolu-
tion 24 (1)referred to ahove), is confirmed by the opinion of the Court in the
case concerning Reservarions 10 the Genocide Convention 3, by the relevant
provisions of the Vienna Convention on the Law of Treaties (Arts. 76 and
77). and by the work of the International Law Commission on which those
provisions are based.
75. The preceding paragraphs show that the impact of the demise of the
League on particular provisions of the Act, as in the case of the demise of the
Permanent Court, was very small indeed, and that the most substantial
potential impact was forestalled by the transfer of the depositary funcfions.
76. The question still remains as to the effect of these minimal impacts on
the Act as a whole. Practice relevant specifically to the continued force of the
General Act is set out in the next two subsections. It isconvenient here tu note
practice bearing on other treaties which have been affected in somewhat
similar ways by the demise of the League, treaties, that is, which conferred
administrative powers on the League, which provided for invitations by the
Council. and which made the Se~r~tarv-General deoosita.~~ .
77. As the Cienerul Assembly and I.c3gue Assembly resoluiions referred io
earlier indiciite. a number of Leïgue trenties in additton to creilting dcpositsry
functions. also conferred oowersof a technical or non-oolitical character on
League Organs. The resdutions themselves demonstrate an understanding
that the treatieswill remain in force but that action may need tu be taken to
activate certain of tbeir administrative provisions. ~his understanding was
made express in a report by the Sixth Committee to the Third Committee on a
' Repertory ofProcficeof UnitedNotions Organs,Vol.5,Art.98,para.40.
For a convenientsummaryseeUnitedNations Oficia Records of the20th Session
of theCenerol Asrembly, Annexes, AgendaItem 88, doc. A/5759,paras. 40-46. That
documentshowsthat al1thefivepartiesto the Conventionthat respondedin 1964-1965
to bein force.that the Conventionbe openedto widerparticipationconsidered itstill
3 I.C.J. Reporfs1951,p. 15. proposal for the assumption, by way of an amending protocol, by the United
Nations of powers exercised by the League of Nations under narcotics con-
ventions. The report, which was adopted without opposition on this issue,
read in part as follows:
"The question may be asked whether or not, as parties to the original
instruments, those States which do not become parties to the protocol
will still remain under any obligations, by virtue of the original in-
struments, vis-à-vis those other parties to the original instruments which
do become oarties to the orotocol. The answer aooears to be in the
affirmative. lt is clear that the actual machinery of [niernational control
set up by the original instruments will be altogether dissolved. at any
rate from the date at which the orotocol cornes into force. Certain oarts
tifthe original instrunientb *III thus be adcad letter, so hr a\ concerns
üny State *hich is not a party to the protocol. But il niay be poinied out
that the protocol has plainly been drafted on the assumption that,
despite the dissolution of the League, those parts of the original in-
struments which are not amended by the protocol are still in effective
operation. This assumption appears to be correct. There are important
obligations (e.g., under the Geneva Convention of 19 February 1925)
which do not depend on the continuance of the machinery of interna-
tional control established under the original instrument '."
78. The powers which were conferred on League organs by the narcotics
conventions were, by any possible measure, much more extensive and im-
portant than those conferred in the General Act. Thus the 1925convention to
&hich the report refers set up a permanent central board which had close ties
with the Council and the Secretary-General (e.g., the Council elected the
Board's members and could consider matters arising from its work) and
extensive supervisory functions; the Secretariat, in addition, was to riceive
copies of laws, the League Health Committee had a certain role, and the
regular depositary functions were conferred. Other amending protocols
proceeded on the same basis of continuity.
79. The Council of the League was given the power to invite non-members
of the League to accede to more than 30 treaties. The question of opening
those treaties which had not been formally amended 15 years earlier by the
protocol method to accession by other States was discussed in the Interna-
tional Law Commission in 1962 and 1963 and in the General Assembly in
those years and in 1965, and was the subject of consultations with govern-
ments and a report by the Secretary-General. All this activity clearly pro-
ceeded on the hasis that the treaties had not lapsed simply because of the
ineffectiveness of the invitation provision. On the contrary, the treaties-or
some of them-were seen as being of possible interest to new States.. The
immediate uroblem was accordingly the technical one of reopening them for
accession. so the ~ecretary-GenGal's report, prepared in 1965, records the
understanding of the parties to several of the treaties that they considered
selected treaties still to be in forceand of value; othewere seen of Iess value
and in need of adaptation; while still others were considered to be superseded
orto have otherwise ceased to be of interest. The lapse of the invitation power
was not seen in any case to be a factor in their opinions. The Assembly acted
United Nations, OffreiolRecords ol'rhe SecondPort of rhe Firsr Sersionof the
General Assembly,SixthCommittee,Annex,doc.Ai206(Rapporteur,MI.K. H. Bailey
(Australia)).on this report hy authorizing the issuing of invitations in respect of 11League
treaties1.
80. Finally, there has never been any suggestion that the demise of the
League with its consequences for depositary functions has had any eiïect
whatever on the continued force of the many treaties involved.
WHlCH REFER TO THE LEAGUE OF NATIONS
81. The French Annex discusses the effect of the demise of the Leaeue on
the New Zealand reservations concerning the powers of the ~ouncilof the
Leaguc and cxcluding disputes with parties not members ofthe League.
82. Before the im~act of the dissolution of the Leaeue on these reserva-
lions is considered,'a preliminary issue, raised in the Annex, should be
considered. The French Government contends that-
"if the Act were in force, there would be uncertainty as to the scope of
the reservations by Australia and New Zealand, an uncertainty entirely
to the advantage of the latterwo countries and thus unacceptable".
This contention appears to be based on the proposition that the uncertainty
as to the scope and significance of the rcscrvations, said Io result from ihe
dissolution of the Leaaue. can he resolved and taken advantaze of onlv bv
Australia and New Gland. This proposition is in direct coniict with-two
uncontroverted principles which are, moreover, confirmed hy the specific
terms of the General Act. The first is that it is for the Court. and not for the
parties, to interpret provisions relating to its jurisdiction and to decide
disputes about its jurisdiction. This hroad principle, declared in Article 36
(6) of the Statute. has been a~died to disnutes about the meaninn of reserva-
;ions; and this more specificpower is Aso confirmed hy ~rtiGe 41 of the
General Act, read with Article 37 of the Statute of the Court. The second
orinciole is that. as the iurisdiction of the Courtdenends on the consent of
ihe parties, the extent ojthat jurisdiction mustbe determined by considering
the manifestations of that consent, in this case the IWO accessions and the
conditions to which they are suhject. As the Court out it in the Analo-Ironian
Oil Co. 2 case, if one accepta& is more limited than the other, 7t is to the
more limited one that the Court must look. This principle-that one party
can take advantage of the limits in the other party's acceptance-is some-
times referred to as the principle of reciprocity and, again, is expressly stated
in the Act:
"If one of the parties to a dispute has made a reservation, the other
partiesmay enforce the same reservation in regard to that party." (Art.
39 (3).)
83. It is the Court, it is suhmitted, that mus1 decide any question about the
scope of the reservations. and it must apply that finding equally to the two
parties-to the extent, of course, thata decision on such questions is neces-
sary to its disposition of the present stageof the case.
l General Assernblyresolutio2021 (XX) ;ecalso UnitedNations, OficiolRecords
ofthe20thSession oftheGeneralAssembly, Annexes, AgendaItem88,doc.A/5759.
I.C.J.Reports1952,p.103. 84. The purport of, and background Io, the reservalions-in the French
accession as nll as in the New Zealand one-relating Io the powers of the
Council of the League have already been indicated. Brieflythey werc designed
to cnable an appcal to be made. within defined circumstances, to League
procedures in preference to thosc established in the Act. The reservation
relating to membership in the League had the same purpose and effect.
85. In the letter of 1 June 1973, given in answer to Judge Sir Humphrey
Waldeck's question, the New Zealand Government recognized-
"...that the impairment of the efficacy of the General Act, which stems
from the demise of the League of Nations, extends to the reservations
12and 31 that specifically relate to the Lea...
Among the reasons for maintaining the reservations are the following:
they reflect an unchanging New Zealand policy; their wording is in
keeping with the frame of reference in the text of the General Act
itself; and no change in circumstances can have caused these reservations
to become incompatible with the continued operation of the treaty in-
strument to which they relate.
As the 1948 and 1949 debates in the General Assembly have shown,
parties which had attached the same or similar reservations to their
accessions to the General Act have no1 doubted the continuing force of
these accessions since 1946. This has been true even of parties such as
the United Kingdom and New Zealand which retained political doubts
stemming from the fact that the Act lay outside the Covenant and
Charter systems. The same position has been taken in relation to those
declarations of acceptance of the compulsory jurisdiction of the Per-
manent Court of International Justice which were subject Io a reserva-
tion relating to the Council of the League."
86. The first part of the final paragraph is elaborated later. The final
sentence of the paragraph is evidenced by the invocation of such declarations
in cases before this Court and by the express termination and replacement of
such declarations since 1946.
87. The letter of 1 lune concluded:
"... the New Zealand Government believesthat in thcse proceedinns. it
will neverbe neccssary to resolvc [the question of the exact efiec61 its
resrrvationsl. With this qualificationitmay be helpful to indicatc that
the New Zealand Government inclines to the view that the reservations
relating to the League mus1 now be regarded as withouf legal effect.
The grounds for this view are those already adduced in relation to the
auestion of the nrooer construction of Articles 6 and 43 of the General
~ct. The very faits ihat the League Council no longer exists, and that no
action has been taken-through the United Nations or otherwise-to
eiïect or recosnize a transfer of the Council's functions to a correspond-
ing United ~ations body, would seem IO militate against any attempt to
provide the reservations with a United Nations connotation At the
same lime, the New Zealand Government would not be concerned to
raist such a construction if it were urned in a bilateralcontbvanother
p&ty. because that construction wohd accord with the spirit-in which
the reservations were made and have been maintained."
88. The condition excludina -.soutes with parties not members of the
League of Nations was not specifically discussed in the letter of 1 June. It
might now be viewed in four different ways.:168 NUCLEAR TESTS
(i) it niight be said that because al1parties to the Act are not now Members
of the League, itexcludes al1disputes to wbich New Zealand is a Party;
(ii) it might be said that it excludes disputes with States parties to the Act
which were not members of the League when the League was in existence;
(iii) it might be said that it should now be read as excluding disputes with
parties which are not members of the United Nations, the United
Nations being, either by general law or agreement, a successor of the
League in this context;
(iv) it might be said that, because it refers ta a non-existent organization, it
should be treated as not at present having -.y effect: either of two con-
sequences might follow: (a) the whole accession wo&d fall or (6) only
the reservation would be treated as having no effect.
89. It is the contention of the Government of New Zealand that (ii) and
(iv) (b) are the better views. Support for this contention is to be found in the
wording of the reservation, its purpose, and relevant treaty practice of the
League of Nations and the United Nations.
90. The reservation clearly presupposes, as does reservation 1 (iii), a
positive membership category-that is to say, that there are Members of the
League of Nations. It is only the disputes with those parties whicb did not
came within that category when it existed which are now excluded. As Judge
McNair has said in a related context, the reference to memhership is descrip-
tive, not conditional 1.
91. A similar issue has been before the Court in connection with Article 7
of the Mandate for South West Afrisa. II providcd that disputes between the
Mandatory and "another meniber of the League of Slrtions" relating to the
interpretation or application of the Mandate could he referred to the Per-
manent Court. On two occasions the Court has concluded that the clause
could still be invoked, notwithstanding the dissolution of the League. In its
1950Advisory Opinion on the International Status of South-We Aftica, the
Court stated that:
"Having regard to Article 37 of the Statute of the International Court
of Justice, and Article 80, paragraph 1,of the Charter, the Court is of the
opinion that this clause in the Mandate is still in force and that, there-
fore, the Union of South Africa is under an obligation to accept the
compulsory jurisdiction of the Court according ta those provisions 2."
TheCourt repeated this view in the formal part of ifs opinion in holding, by
twelve votes to two, that the Union of South Africa continued to have the
international obligations stated, inter alia,"in the Mandate. . .,the reference
to the Permanent Court of lnternational Justice to be replaced by a reference
to the International Court of Justice, in accordance with Article 7 of the
Mandate and Articte 37 of the Statute 3."Sir Arnold McNair, one of the two
Judges whodissented from this holding in so far as it recognized an obligation
to accept the administrative supervision of the United Nations, nevertheless
agreed that judicial supervision had been preserved, and went on to make
explicit what had been implied in the Court's opinion:
"The expression 'Member of the League of Nations' is descriptive, in
2I.C.J. Reports1950,p. 138
3 Ibid.p. 143. my opinion, not conditional, and does not mean 'so long as the League
exists and they are Members of if'1."
Judge Read, the other judge who dissented from the majority holding, was
also of the opinion that the judicial but no1 the administrative supervision
continued:
"No problem exists, as regards the compulsory jurisdiction of the
Permanent Court, which was transferred to this Court by Article 37 of
the Statute 2,''
Part of Judge Read's summary of the position after the termination of the
existence of the League reads:
"The legal rights and interests of the Members of the League, in
~e~oect of the Mandate. survived with one im~ortant exceotion-in the
case of Members that di'dnot become parties 1; the Statute of this Court,
their right10 implead the Union before the Permanent Court lapsed."
Finally. Judge Read, in explaining that a mandated territory is no1 left to the
uncontrolled administration of the Mandatory Power, pointed, inter alin,to
the fact that the Union was subject to the compulsory jurisdiction of the
Court under Article 7 of the Mandate and Article 37 of the Statute 3: thus,
the Court was unanimous in holding that the judicial supervision of the
Mandate suwived the dissolution of the League and the Permanent Court.
The inescapable implication is that, as Sir Arnold McNair put il, former
Members of the League were "Members of the League" for the purposes of
the jurisdiction clause.
92. The second occasion for a ruling on this matter was provided by the
South West Africa cases in which South Africa. as Respondent, challenged
the right of Ethiopia and Liberia to bring proceedings under Article 7 on the
ground that they were not "Members of the League of Nations". Again the
Court held that the dissolution of the League did not mean that there were no
"Members of the League of Nations" within the meaning of thejurisdictional
clause, South West Ajrica, Preliminary Objections 4.
The majority judgment declared at the outset of ils discussion of this
objection that:
"This [South Africanl contention is claimed 10 be based upon the
natural and ordinary meaning of the words employed in the provision.
But this rule of interpretation is no1 an absolute one. Where such a
method of interpretation results in a meaning incompatible with the
spirit, purpose and context of the clause or instrument in which the
words are contained, no reliance can be validly placed on it 5."
II then turned 10 a consideration of the spirit, purpose and context of the
clause (including the actions taken at the lime of the dissolution of the
League); and, following that examination. it held that those States which
were Members of the League at the lime of ils dissolution continued to have
the right 10 invoke the compulsory jurisdiction of the Court. It accordingly
rejected the preliminary objection.
1I.C.J. Reports1950,pp. 158-159.
2 Ibid.,p.166.
9 Ibid.,p.169.
4 1.C.3. Reports1%2, p.31 9.
5 Ibid.,p. 336.170 NUCLEAR TESTS
93. What, then, was the spirit, purpose and context of the identical reserva-
tions made bv Australia. Canada. India. New Zealand and the United
Kingdom? It will be recalied that, in discu;sions of the compulsory jurisdic-
tion of the Permanent Court under Article 36 (2) of the Statute and in the
preparation of the General Act, the question of the relationship between the
two sets of procedures-the Court and the Act on the one hand and the
League on the other-had caused some anxiety. The concern that the League
procedures should be available resulted in general understandings-reflected,
for instance, in the 1924 and 1928 Assembly resolutions relating to the com-
pulsory jurisdiction of the Court under Article 36(2), and in paragraph (7) of
the resolution relating to the General Act-that the Covenant procedures
were available in parallel, and that States could make their position clearer by
making a specific declaration or reservation protecting these procedures.
94. Takine account of the snirit. ouroose and context of the reservation.
what attitudeshould now be adoptedto it? How should it be interpreted and
applied. so that the Act's procedures cannot be used arbitrarily to displace
those established in the constitution of the universal orean~zation?-The
concern that non-members might be able to avoid the pr&edures of the
universal organization and to employ the General Act provisions is now met
bv the different conceotions of the Charter and its different orovisions relatine
1; non-members. while Article 17 of the Covenant underiined the rule th:
non-members could not be subjested 10ils procedures for peaceful settlemcnt
unless thev aareed 1.the Charter asserts a world-wide concern. a universal
jurisdiction. fhe ~harter2, the practice of United Nations orgins 3 and an
opinion of the Court 4,affirm that the political organs of the United Nations
can become involved in matters affecting non-members, whether the latter
agree or not.
95. Accordingly, the possibility that the reservation would no longer
orotect the oroceduresof the universal oolitical oreanization. either hecause a
one-time ~ember of the League was not a ~ember of that organization or
because the reservation was no longer effective, disapp~~rs: the Charter itself
provides the protection.
96. Many League treaties were and are open to acceptance hy "Members
of the League". Could States which had been Members when the treaty was
adooted or later. but which were Members no loneer4ither because thev
had'withdrawn O; because the Lcaguc no longer cxis6d-exersise the powerc?
Both principle and practicc (and in particular the purely secretarial functions
under General Asscmblv resolution 24 (1)--funciions which do no1 affect the
opcraiion of the inrtru&nts or relate to.the substantive rights and obligations
of the parties) make iclear. 10 quote the International Law Commission. that
in thecase of closed treaties, including those where the closure has resulted
'See,e.g., SrarusofEasternCarelio,P.C.I.J., Syies B,No. 5, a caseunderArt. 17,
fora statementofthe generalprinciple.
a Charter,Arts. IO(readwithArt. 1).11,14,33,34,36,39,40,41 and42.
a E.g. G,eneralAssemblyresolutions272(Ill), 294(IV)and409(VI).
4 The three non-memberStatesinvolvedwereinvitedto panicipate in the debates
whichfinallyresultedinthe GeneralAssemblyrequestfor theAdvisoryOpinioninthe
Interprerotionof Peoee Trentiercase, I.C.J. Reporrr 1950,p. 65. They al1refused.
Variousobjectionsto the Assembly'scompetencewereput fonvard beforethe Court
(among them the argument that the three States were na1 Membersof the United
Nations and had expressly rejected the Assembly'sprocadings, Pleadings, Oral
Areumenrsand Documents. o. 201).but the Court reiectedthem and wenton to =ive
théopinionrequested.I.c.J. Reports1950,pp. 70-7i. solely from the disappearance of the Council of the League, the Secretary-
General has not considered it within his oowers under the terms of the resolu-
fion to accept signatures, ratifications. 'r accessions from States not covered
by the participation clause1.
97. Thercfore. in some cases. former Members of the Lcaeuc could become
party only as "Members of théLeague of Nations". ~ndrn fact in several
cases they have done so. Annex V lists 11 cases of accessions, and an equal
number of ratifications, by States which had been Members of the League to
treaties which were open, in the relevant case, only to "Members of the
League of Nations". In about a third of the caseslisted the State was no longer
a Member because it had withdrawn from the still existing organization; and
in the remaining cases it was not a Member because the League no longer
existed. The Annex also notes that consistently with this practice the League
Secretariat used toIist former Members of the League as States entitled to
accede to closed treaties.
98. If it be thought that, in the light of the foregoing, the appropriate
interoretation of the reservation is that it shouldbe treated as no lonaer
having any effect, it is the contention of the Government of New Zealand tiat
only the reservation should be treated as having no effect: the accession
would continue to stand. There are three distinct reasons for this position:
(i) the continued forceof theaccession, without the reservation, is consistent
with the purpose which the reservation was designed to achieve;
(ii) as noted above, the declarations under the optional clause, as well as
accessions to the General Act, which were subject to reservations relating
to the League of Nations, have been considered as remaining in force
notwithstanding its dissolution; and
(iii) the reservation is of no effect-iis not invalid-and the question of its
invalidating the accession as a whole does not arise.
99. The New Zealand Governmcnt iherefore submits that the resemation
should not be sccn as excluding the operation of the General Act in respect of
the disoute which has arisen between New Zealand and France. Either
France, a country which was a Member of the League of Nations from its
founding to its dissolution, should be considered to be a "Member of the
Leaaue of Nations" within the meanine of the reservation. interoreted in its
con~cxtand inthe light of ils objecr and-purposc: or thc rcsirvation should be
treated as not at present havingany elfect at al1and. accordingly, as irrelevant
to the present case.
4. THESIGNIFICANC OF THE GENERAL ASSEMBLYR 'EVISION
OF THE GENERAL ACT IN1948 AND 1949
100. The French Annex asserts that the present want of validity of the
General Act is also Io be inferred from the preparation, in 1948and 1949, of
the Revised General Act. This statement isbaied on the proceedings in the
General Assembly and on the wording of resolution 268 A (III) (Annex VI).
' Report of the Commissionon its FifteenthSessioYearbookof theInternational
Lnw Commission, 1963,Vol. n, p. 187, para. 26. See similarly STILEGI7,p. 68:
"Some agreements.. .are closedIo further action of any kind, and incasesthe
Secretary-Generalcannot acceptsignatures,ratificationsor accessions."For a spific
exampleof a refusal,seeUnited Nations, Oficial Recordsof the 20th Sessionof the
GeneralAssembly, Annexes,agendaitem88,doe.A15759,para. 111. 172 NUCLEAR TESTS
This section will accordingly consider in turn the proceedings which led to
the resolution and the resolution itself.
101. The initial proposal was made in February 1948by the Belgian delega-
tion in the Interim Committee of the General Assembly. The proposal was
aimed. accordina to the later Belgian commentarv on itl "at restorine to the
Gener.4 Act . ..-ils original efficacy, impaired hithe fait that the orgais of
the League of Nations and the Permanent Court of International Justice to
which it refers have now disaooeared". It orooosed a resolution of the Gene~~~-~~
Assembly as a means of achieving this iesuit 1.The draft resolution it pro-
posed was finally adopted with two relevant changes which are noted later 2.
102. In introducing the initial proposal in the Interim Committee the
Belgian delegate, M. Joseph Nisot, stated that-
"The Generdl Act was still in force. but ils eKecti\.eness was decroased
ouingto the disappearance of certain essential parts of the machine, ic.,
the Secretary-General. the Council of the Leaaue and the Permanent
Coun of Internati~inal Justicï. The aim of the Ëelgian proposal was the
transfer to the orgnns of the Uniied Naiions, including the International
Court of Justice. of !he function5 whish thc Act accorded to the orcans
of the League of Nations and the Permanent Court. The proposal-was
practical and simple; it could be carried out without delay by a protocol
consisting of a few articles; and it would result in the complete re-
establishment of one of the most important collective treaties which
existed up to the present in the field of the peaceful settlement of interna-
tional disputes 3."
103. The same position was adopted in a preliminary report of a subcom-
mittee of which M. Ordonneau (France) was Chairman and Mr. Jessup
(United States) Rapporteur:
"The [Belgian] proposal does not aim at remoulding the General Act,
which is still in force and to which the Belaian Government is still a
Party. Its sole object is to provide for the effëctive operation of the Act
under present conditions by arranging for the transfer of the ahove-
mentioned functions [of organs of the League of Nations and the Perma-
nent Court of International Justice] 4."
104. A "Note on the proposal of the Belgian Delegation" annexed to this
report States flatly:
"The General Act for the pacific settlement of international disputes
of 26 September 1928 is still in force. A great numt'er of States have
acceded to it. The aim of the Belgian proposal is to secure that certain
adjustments should he made which would restore it to complete effi-
cacy 5."
105. The Interim Committee's report, incorporating the report of the
1 UnitedNations docs.A/AC. 18/18(11February 1948)and Add. 1 (10May 1948).
Paras. 105.1and 105.2 below.
9 UnitedNafions doc.AIAC.18ISR.11,p. 5(2 March1948).
UnitedNotions doc.A/AC.18/48,para. 36(19March 1948).
6 Ibid.,Annex A. The Secretariat in a History and Analysisof the General Act
prepared for the Interim Cornmitteealso stated that the Act was in force. United
Notions doc. A/AC. 18/56,para. 26 (4 May 1948).relevant subcommittee 1,and proposing the draft which became resolution
268A (III), contains several significant points:
1. The Interim Committee didnot proposez that the Assembly approve the
Revised General Act which was to be prepared. This position was
adopted in reaction, at least in part, to the position of the British dele-
gate who, it seems, shared Sir Cecil Hurst's doubts of 20years before:
"While his Government was a party to the General Act, ithad acceded
with reservations and now had doubts concerning the value of some of
its provisions. He did not object ta the draft resolution because it had
heen made clear that no Assembly approval of the Act as public policy
of the Organization was implied."
2. The Committee did not propose that the General Act itself be revised;
rather an entirely independent instrument was to be established:
"lt was noted that, by a resolution of 12 February 1946, the General
Assembly had decided to assume certain non-political functions and
activities of the League of Nations and that in this resolution it had
determined that it would itself examine, or submit to the appropriate
orean of the United Nations. anv reauest from the oarties that the
~nited Nations should assume ihe éxercise of funciions or powers
entrusted to the League of Nations by treaties, international conven-
tions. aereements and~other instruments of a oolitical character.
~he question arase whether, in the light oithis, the General Assembly
should be advised to ado~t the ~rooosed resolution only at the reauest of
a soecific numher of the 6arties:lnihe view of the ~eleian reoresentative.
the consent of the parties was unnecessary, since, in its final form, his
proposal did not suppress or modify the General Act, as established in
1928, but left it intact as also, therefore, whatever rights the parties to
that act might still derive from it 3."
3. The principal Belgian purpose was repeated: the Act would be restored to
its original efficacy for those States acceding to it. This was spelled out as
follows:
"Thanks to a few alterations. the new General Act would. for the
bencfit of tho.e Stdte\ xieding thereio, re5tore the original eNec!iveness
of the mî~hitiery provided in the Act of 1928,an act uhich. though 9ti11
theoretically in existence, has become largely inapplicable.
It was noted, for example, that the provisions of the Act relating to the
Permanent Court of International Justice had lost much of their eNec-
tiveness in respect of parties which are not Members of the United
Nations or parties to the Statute of the International Court of Justice."
106. The comment might be made that the Committee's view that the Act
"has become largelv inaoolicable" overstatesthe case. As was seen earlier. the
conciliation andarbitraiign chapters are scarcely affected by the demise of the
League and the depositary functions had been transferred under General
1 UairedNorions doc.A/AC. 18/73.The relevantpart of the Committee'sreport is
set outin Annex VII.
3 Cf. UnitedNorions doc.A/AC. 18/48,para. 43and theBelgianand otherproposal
referredto there.
The resolution referred to is General Assemblyresolution 24 (1). The question
and the Belgianresponsemight be said to assume that there are still parties to the
Act whocould be asked ta consent.174 NUCLEAR TESTS
Assemblv and Lsaeue Assemhlv resolutions. So far as theCourt is concerned.
the second paragraph does statéthe position correctly except for those parties;
not bortnd by the Statute, which might act under Article 35(2) of it. That
naramaoh also clearlv imnlies. however. that the nrovisions of the Act
;elatrngto the Court iere siill effective forharties to t6e Statute 1.
107. The General Assembly then considered the report at its Third Session
and adopted the draft resoluiion proposed. Most of ihe contributions to the
dehate in the Ad Hoc Political Committee and in the Assembly itself were
concerned with the political value of the Act's procedures and with their
-~~-~--~.l effectiveness. rather~ ~a~ ~ ~h the Act's continued leeal force.
Thus, the New ~ealand represeotative expressed doubrs about thehistorical
effectiveness of the Act while the French representative. in a statement which
mav be thouaht to havesome relevance to the continued forceof the Act. said
th2 it was <valuahle document inherited from the League and it had'only
to be hrought into concordance with the new organization 2.Once again the
Belgian dekgation stated on several occasions that the Act was still inforce 3.
As the initiator of the proposal, its views are ohviously worth considerable
weight.
108. It remains onlv to consider the nrovisions of resolution 268A (III)
itself. The French ~nnex focusses on twiof the preamhular paragraphs. 'Thé
first is that which states that the amendments mentioned "are of a nature to
restore to the General Act its original efficacy". This expression, which is to be
found in the earliest Belgian proposal, clearly proceeds on the basis, stated in
the preceding preamhular paragraph and manifest from the drafting history,
that the effectiveness of the Act is impaired("dirninu6e"); it cannot be read as
suggesting that the Act was totally ineffective.
109. The second paragraph discussed in the French Annex is that which
states that-
"these amendments will only apply as between States having acceded to
the General Act as thus amended and, as a consequence, will not affect
the rights of such States, parties to the Act as established on 26 Septem-
bcr 1928, as should claim to invoke it in so far as it might still he opera-
tive 4."
It is said that the final phrase-"in so far as it might still be operative"-is
"very dubitative". It is suhmitted that it is quite clear. The Act has been im-
paired in various respects; its operation is asected by those irnpairments.
110. 'The French Annex then asserts that "the resolution allows for the
eventuality of the Act's operating if the parties agreed to make use of it".
There is nothine in the resolution which reouires aerewnent to make the
General Act hinding although the resolution does, of &se, provide that the
Revised Act can hind only those States which accede to it.
'The French Anne* ai pp 319-350~cc.m tragres; biitcoinpari p 350
UniicJ Ndtiuns. Of/>cru/Rt.ci>r.>i/rlil'tr~Porr ofrh,.Ihir<lSrr,,ons,/ibr C'rnrrul
~lenory;199thmeeting,p. 193(France).7ih meeting. o. 32-.(Ncu Zcaland) and
Ibid. A,d Hoc Political Cornmirtee,28th meeting, p. 323 ("still valid"); and
intact": "the effectivenessloftheAnl had diminishedsincesomeof ilsrnachineryhad
disappcared": and "il uould remain in forceunchanged").
in the originaldrafi of ihc Belgrandelcetion uhich had noJoubt about ihcconiinucduded 111. This final comment also provides the answer to the third argument
that-
"if the 1928Act were still in force at the moment when the Revised Act
was concluded, it is somewhat difficult to understand the abovesited
passage of the General Assembly resolution to the effect that the amend-
ments 'will only apply as between States having acceded to the General
Act as thus amended'."
The explanation again is straightforward: a treaty is binding only on the
parties to it. Accordingly only those States which accede to the Revised Act
are hound bv it. and. eaually. the rights of those which are oarties to the
original Act iemain una~ected by the rëvised instrument.
II2 The conclusion 1scledr. Those States involved in the prepardtiun of the
Revised General Act proceeded on the basis that the original General Act was
still in force. Theirtask waIO prcpare an independent, rather more eKectivc.
instrument, uhich would be binding on the partics to it and which would-
and could-have no effect on the original instrument.
5. STATEPRACTICE RELATING TO THE CONTINUED FORCE OF
THE GENERAL ACT
113. The French Annex States:
"an examination of the positions adopted by international tribunals and
the conduct of States gives further reasons for concluding that the 1928
Act lacks present validity".
114. This proposition and the arguments supporting it will be considered
under four heads:
(a) non-action under the final clauses of the General Act:
(bj French practice relating to the continucd forceof the Gencral Act:
(c,othcrpractice relating directly to the continucd force of the Gcnerîl Act;
(d, oractice relating to the continued force of bilateral treaties of peaceful
Settlement containing obligations similar to those in the General~ct.
The French contentions relating to the allegcd parallelism in States' accep-
tances under the General Act and the optional clause are considered in Part
IV of this Mcmuridl. The attitude adooted bv the oarties uhen the Revised
General Act was king prewred in 194'8and i949 has already been reviewed
(paras. 100 to 112 above).
(a) Non-action Under the Final Clauses
115. "Since the early Years of the Second World War. i.e.. since the
bankruptcy of the icague of Nations systcm hecanieevident, there has no
longer been anything to note in this domain [of formalities which char-
acterize the 'life' of a treaty: adherences, reservations, amendment of
mervations, withdrawals, etc.]."
116. This silence, the French Annex suggests, cannot be an argument in
favour of continuity. What isthe significance of this silence?How should it be
-
interpreted?
117. In the first place it should be noted that the final clauses of the Act
requirc action, not silence, for termination. In the event of silence, in the176 NUCLEAR TESTS
absence of action, the Act by its very terms "shall remain in force for funher
successiveperiods of five years".
118. Secondly, League of Nations and United Nations treaty records in-
clude a number of multilateral treaties in respect of which no formal action
has been taken for many years andwhich are nevertheless considered still to
be in force. Thus the last formal action relating to the Declaration regarding
the Teaching of History (Revision of School Textbooks), of 1937, appears to
be the eighteenth definitive signature affixed on 24 June 1939. And yet when
the Secretary-General of the United Nations made inquiries about it in
1964-1965two of the three parties which conimented stated that they consid-
ered it still to he in force, one expressing the view that it preserved its value
and meaning and that it appeared desirable to invite additional States to
become parties thereto 1.The third party thought that it had ceased to be of
interest for participation by additional States. The Secretary-General had
similar responses in relation to other treaties in respect of which there had
been no action of a formal kind for 25 or 30 years 2.
119. Further, formal action has been taken in respect of some League
treaties after a lapse of many years. Thus Malawi filed a declaration of succes-
sion to the Conventionand Statute on the International
Régimeof Railwavs
and Protocol of Signature of 1923 in 1969, more than 30 years after the last
formal action relating to the treaty; and Yugoslavia in 1967 accededto three
1935 conventions concerning various agricultural questions, thereby be-
coming the first State to take formal action under the conventions for 25
years 3. A year or two earlier the Secretary-General had reported that the
Statute and Conventions were not of interest for further accession 4.
120. Finally, interpreting silence in terms of intention, especially the inten-
tion of States, is hazardous. Fortunately. in the present casethere are positive
acts as well.
(b) Fre~rchPracrice Relevant Io the Continued
Force of the General Act
121. Three pieces of practice may be recalled. First, France in 1956 and
1957. in the course of the Case of Cerrain Norweaian Loans. referred to the
Generîl Ac1 as a treaiy h~nding,ln France and ~orua) 5.~i;ru,a) did no1 ai
any puint deny the continucd forcc (if the treat) in faci ii had indicaicd
else\ihere thai itionsidcred IIto be in fi>rc6.lnstead ilnoted that ihc ,\ci had
n<it beïn ini.i)kerl until the stage 01' the ohier\aiions on ihe Sorwegian
preliminar) ohjeciions (~nd no1 in the Appliiatiùn tir Memorilrl): that neiiher
the Application nor the Memorial did, as required hy the rules. make any
1 United Nations, Ofiial Recordrof the 20th Session of ihe Geneml Assembly,
Annexes,Agendaitem 88, Al5759, paras. 48-54.
2 International Convention concerningthe use of Broadcastingin the Causeof
Peace, 1936 (alro para. 72 above); Convention and Statute on the Iniernational
Régimeof Railways,and Protocol of Signature,1923;International Agreementsand
Protocolr relating to the Exportation of Bones, and or Hides and Skins. Geneva.
1928,ibid.,A/5759, 34-4ra.s.-95and 119-125and Add. I, paras.3-4, 10and 16.
8 ST/LEG/SER. D/5, pp.453,447-449.
4A/5759,paras.91-95,126-132,136(b) and 137(fl-(hl.
I.C.J. Pleadings,Vol. 1, pp. 172, 173and 180(observationson the Nonvegian
preliminary objections:31August 1956),301(noteof 17Seplember1956to Norwegian
Ambassador);andVol. II, p. 60(FrenchAgent in oral hearings, 14May 1957).
6 Para.133below. reference to the "grounds" related to the Act; that France, in the observa-
tions, had made only a limited reference to the Act; and that its arguments
based on it could constitute only a new dispute distinct from that relating to
the loans 1.France made no reference to the Act in its reply, a fact to which
Norway drew attention 2,but it did at the oral stage, through itsAgent, appeal
to Norway to agree to jurisdiction, recalling Norway's formal obligations
under a bilateral treatv of arbitration and under the General Act 3.
-~~~~~~ - ~ ~ ~ ~
122. The Court's reierence to the Act needs to be repeated toshow that the
Court was not, asthe Annex suggests, holdingthe Act not to be in force:
"The French Government also referred to the Franco-Norwegian
Arbitration Convention of 1904 and to the General Act of Geneva of
Septemher 26th, 1928,to which both France and Norway are parties, as
showing thaf the two Governments have agreed to submit their disputes
to arbitration or judicial settlement in certain circumstances which it is
unnecessary here to relate.
These engagements were referred to in the Observations and Submis- '
sions of the French Government on the Preliminarv Obiections and
. .
suhsequenily and more explicitly in the oral preseniations of the French
Agent. Ncithcr of ihcse rcfercnce~, hou,ever. can be regnrdcd as sufficien:
to)ustify the view that the Application of the ~renchGovernment was,
so far as the question of jurisdiction is concerned, hased upon the Con-
vention or the General Act. If the French Government had intended to
oroceed uoon that hasis it would exoresslv have so stated.
As îlreïdy \hown, the plica catio infihc French Go\,ernmenl is based
clcrirl) and precisely on the Norucgian and trench Declarations under
Article 36. oaraaranh 2. of the statute. In these circumstances the Court
would nu(& juctifkd in xckinga bd.is for 11sjurisdiction diifcrcnt from
that uhich the Frcnch Govcrnmenf itself ret out in 11.Application and by
reference to which the case has been presented by both Parties to the
Court 4."
123. Of the five judges who wrote separate and dissenting opinions, the
only one to refer to the Act was Judge Basdevant. He disagreed with the
Court's view that the Act had not been adequately invoked. He also said-
and there is nothing in the majority judgment to conflict with this-that-
"At no time has any doubt been raised as to the fact that this Act is
binding on hoth France and Norway 5."
124. Secondly, the French Foreign Minister, on II December 1964, in
explaining in the National Assemhly why the French Government did not
then envisage becoming a party to the European Convention for the Peaceful
Settlement of Disoutes. oointed out that France was alreadv bound bv nu-
merous obligations of Peaceful settlement. Among them was ihe ~eneral Act
of 1928 as revised in 1949 (Annex VI11).The reference to the revision is of
courseerroneous and. as the French Livre Blancsur lesExoériencesNucldaires
suggests 6, the reference to the Statute of the Permanent court can have only
an historic significance. But the reference to the Act must be read as it stands
Counter-Mernorialof 20 December 1956. Z.C.J.Pleadi"f~, Vol. 1.m. 220-221.
Ibid.,p.429.
Ibid.Vol.II, p.60.
I.C.J.Reporrs1957,pp. 24-25
5 Ibid .,74.
6 (lm), P. 109,noie0).178 NUCLEAR TESTS
-as a declaration that France considers itself bound. This is the obvious
meaning of the passage; and it gains added force from a comparison of the
very similar contents of the Act and the European Convention. As the Minis-
ter said, there would be a very real risk of duplication.
125. Thirdlv. .rance and Siam in Novemher 1946 made orovision f.r the~~ ~ ~ ~~~.
establishment of a conciliation c~immissionin accordance uith thc provisions
of the General Act. The background to this niatter is thatin 1937 France and
Siam (which has never been aiarty to the Act) concluded a Treaty of Friend-
ship, Commerce and Navigation, Article 21 of which reads-
"In accordance with the principles embodied in the Covenant of the
League of Nations, the High Contracting Parties agree to apply the
provisions of the General Act ... 1."
The November 1946 agreement provides in its Article 3 that immediately
after itssigning-
"France and Siam shall set up, by application of Article 21 of the
[1937 Treatyl .. .,a Commission of Conciliation composed of two
reoresentatives of the parties and three neutrals. in conforrnitv with the
~;neral Act of ~eneviof seplember 26th. 1928.for the pacilic~ettlement
of international disputrs, uhich regulates the constitution and working
of the Commission . ..2"
126. The Parties proceeded to set up the Commission. The Government of
Siam then requested it, in the words of its Agent, to take al1 necessary mea-
sures with a view to arriving at a satisfactory solution of the matters in
auestion followinr! the orovisions of the General Act 3.The reouest was made
and communicated. according to bath Governments, in conformit; with
Article 7 of the Act 4. The report of the Commission also refers to the Act-
ils powers were determined by the 1946 agreement and Chapter 1 of the Act
and in accordance with Article 10, it decided that its work would not be
public-and the general procedure followed was basically that established in
the Act 5. There appears to be nothing in the conduct of either party to
suggest that they believed themselves to be reviving the procedures of a
lapsed treaty.
(c) Olher Praclice Relafing Direcfly Io rhe Continued
Force of the Genernl ACI
127. Evidencc that the General Act has conlinued in force alter the deniiw
of the League and the adoption of the Re\,iscd Genernl Act in 1949 is also to
be found in the treatv lists. aiTicialand unoflicial. of States nhich adhered 10
the General Act.
128. In some cases, publications listing treaties of these countries do not
ouroort to record treaties in force for the countrv in ouestion but simolv
ihoie to which it has adhered in the past. ~ublicakons of this sort are 8C-
viously of little, ifany, evidentiary value. Other treaty lists, however, do pur-
port to record treaties in force for the country in question as at the date of
Leagite of NationsTreatySeries,Vol.201, p.113.
I.C.J.Pleodings,TempleofPreah Viheheo Vrol.1pp. 20,141.
8Ibid.,p.37.
Ibid,pp. 37and44.
5 Ibid.pp. 21-94. publication of the lis1or as al some point in lime shortly before publication.
129. The available evidence from this source is summarized in Annu IX.
All of it is positive. No publication has been located which purports to list al1
international treaties in force for a countrv which adhered to the General
Act and failsto include the General Act; eight such publications (relating to
wven countries) which list the General Act have been found. This is wholly
inconsistent with the view which France now advances that the General Act
has lost its force.
130. So, too, is the practice of four of the States-Denmark. the Nether-
lands, Norway and Sweden-which have adhered to both the 1928 General
Act and the 1949 Revised General Act:
(a) Denmark
131. Denmark became party Io the Revised General Act on 22 March
1952.An officiallenal announcement VLovtidende") of 22 A~ril1952 1which
gave public notice of the fact ofenm ma rkherence to the Reviscd Gencral
Act concluded uith the following (translation from the Danish):
"The General Act of 26 September 1928 which was made public
through the announcement of 19 June 1930 by the Ministry of Foreign
Affairs is still applicable for those States which have adhered to this
instrument only."
(b) The Netherlands
132. The Netherlands became party to the Revised General Act on 9 June
1971. On 3 March 1971. the Revise~-~en~ral-~~~ was submitted for narlia-
menta&appro&i undcrcover of a letter from the Minister of ~oreign Asairs
to the President of the Second Chamber of the States General. An exdana-
tory note annexed to this letter discussed the nature and the history of the
Revised General Act 2.The explanatory note begins as follows (translation
from the Dutch):
"The text of this Agreement was drawn up by resolution of the Third
General Assemblv of the United Nations al New York (resolution 268
(III) A. dated 28~pril 1949). This resolution contains sime alterations
in the Gencral Act for thc PacificScttlcment of International Dis~utes of
1928-as adooted bv the Assemblv of the Leaeue of Nations on-26 Seo-
tember 1928al Genéva, to whichaireement the-~ingdo isporty asfar <is
Chopters 1, 2 and4 are concerned 3."
A further passage in the explanatory note, which summarizes the nature of the
changes made in 1949 to the 1928 General Act and the reasons for them,
concludes with the following (translation from the Dutch):
"For the rest, the substance of the Agreement has remained the same
as that of the General Act of 1928, whichis still in force fo22 States,
includingthe Kingdom 3."
'Publishedin Lovfidende For KongerigeDi anmark (1952),AfdelingC, Danmarks
Traktaier.
1 Thismaterialisfo befoundinBIJL.HAN. 111970-71-11202 (R780 No. 1).
Emphasisadded.180 NUCLEAR TESTS
(c) Norway
133. In 1949 the Minister of Foreign Affairsof Norway tabled hefore the
Norwegian Parliament a paper recording, for Parliament's information,
Norway's participation in the United Nations Second Special General As-
sembly and in the first part of the Third Ordinary General Assembly ses-
sion '.The paper contained, inter alia,a discussion of the Assembly's revision
of the 1928 General Act, including the following passage (translation from
Norwegian):
"The changes from the 1928 General Act consist in changes in the
references in the General Act ta the different organs of the League Io
corresponding references to the organs of the United Nations. 11 is
accepted that the General Act in its new form will be binding only for
those States which become party to it. The Ge~reralAct itsel/will remain
valid in the oldform-in sofur as it is still applicable-betweethe original
parties not acceding ro the GeneralAcr as revised2."
134. Further light is thrown on the attitude of the Government of Norway
in the note of 26 Octoher 1973. attached at Annex X. from the Permanent
Mission of Norway to the ~nited Nations to the permanent Mission of New
Zealand to the United Nations. It will be seen that the note contains further
material bearing on the Norwegian attitude to the General Act and states
explicitly that "~orway considërs the 1928 General Act binding vis-à-vis
those States having acceded ta the Act but not explicitly acceded ta the
Revised General Act of 1949, provided that the State concerned has not
denounced the original General Act".
(d) Sweden
135. Sweden became party to the Revised General Act on 22 June 1950.
The question of Sweden's accession to the Revised General Act was put Io
Parliament by a proposal ("proposition") by the King-in-Council, No. 105
of 10 March 1950. The proposal which described the nature of the Revised
General Act and its history included the following passages (translated from
Swedish) :
"Owing to the dissolution of the League of Nations and the Permanent
Court of International Justice. which bv virtue of the General Act of
1928hai,e been giben ccrlîin fu~ctions, tl;is Gencral Act, alihi>ugh rtill In
forsr w,th respect io thosc States whish bccamc parties to il, hds toiiliirgc
extent lost itseffectiveness.
... It is for the King-in-Council to consider whether, andat what time,
Sweden should terminale the General Act of 1928 after accession to the
Revised General Act 3."
136. Finallv the reliance of Cambodia on the General Act. as a successor
to France under the Act and a treaty hetween France and Siam, in the Temple
of Preah Vihear case, can he recalled. Neither party asserted that the Act had
lost its force: rather Thailand stressed that it had never acceded to it and that
Cambodia was not bound hy succession 4.The Court did not reach the issues
1Thepaperisto befaundinSr MeldNr. 32(1949).
Emphasisadded.
8Thismaterialisto befoundin Svenrk Farfallningssarnli(1950).
4 E.g.,I.C.J.Pleodings, TempIeofPreahVihear,Vol.1,pp. 140-145,Vol.II, pp.22-25
and 103.involved in the reference to the General Act, as it held that an alternative
source of jurisdiction existed.
(d) Pracrice relafi,jg IO the Coizfinued Force of Bilateral Treaiies
of Peaceful Sefrlemenf conraining Obligarions
~i,nilar IO Those in the Geniral Act
137. More than 200 bilateral treaties for the peaceful settlement of interna-
tional disnutes were concluded in the 1920s and 1930s'. Manv of these
bilateral tieaties contain obligations similar to those in the Act and are based
on the mode1 bilateral treaties which were brought to the attention of govern-
ments alonrr with the General Act. The similaritv of obliaations aDoears from
a cornparisin of the contents of particular tkaties and from ihe analysis
pre~ared by the Secretariats of the League of Nations and the United Nations
in 1927 and 1949.
138. The fact that the treaties came from the same ideological context,
that they set up the same procedures. that they contain similar or identical
obligations, that they often confer jurisdiction on the Permanent Court, and
that, in some cases, they contain the same limited provisions relating to
League organs, suggest that their continued force is relevant to the continued
force of the General Act. Such evidence as has been discovered of the bilateral
invocation of these treaties does suggest that the particular parties have no
doubt that they have remained in force unaffected by the dissolution of the
League and by thechange in ideological context :
1. Romonia-Swilrerland: The 1926 Treaty of Conciliation, Compulsory
Arbitration and Judicial Settlement was invoked in 1948-1949 in respect of a
dispute about diplomatic status 2.
2. Belgium-Denmark: The 1927Treaty of Conciliation, Judicial Settlement
and Arbitration was invoked in 1952 in respect of a dispute about Danish
ships 3.
3 and 4. France-Swifzerland: The 1925 treaty of peaceful settlement was
invoked in 1954-1955 in respect of Iwo matters: customs irregularities and
internment fees 4.
5. Iralv-Swirzer/and: The 1924 Treaty of Conciliation and Judicial Setlle-
ment wa; invoked in 1950to consider a dispute about the application to Swiss
nationals of an ltalian tax. According to the Conciliation Commission's
Secretary, its competence was not questioned 5
i See,cg., the League of Nations collection,Arbitrarion and Securily-Sysremaric
Surveyof theArbirrotionConvenrionrondTreofiesof Miitool Securirydeposiredwirhrhe
Lrogueof Narions (1927)andthe UnitedNations SysremaricSurveyof Treariesfor Ihe
Poeific Sefrlerneiirof Inrernarionol Dispures 1928-1948 (1949); compare the much
smaller number of such treaties included in the United Nations Survey of Treory
Provisionsfor thePacifi SerrlemenroflnrernorionolDispules1949.1962 (1966).
2 Se Re Vilianu, 16 InrernarionalLaw Reports 281; Col, La concilialioninrer-
norionole (1960, p. 97: International Law Association. Report of the Fgty-Third
Conference 1968,p. 37, n. 15;1.C.J. Yearbook 1948-1949, p .0 (appointment by the
President of the International Court in lieu of President of Permanent Court of
Membersof the Commission).
3 SeeRolin, 1953R.G.D.I.P.,p.353;Cot,op.eir.,pp.97-98.
Bastid, 1956Annuoirefron~uisde droir iniernorionul, p. 436; Cot,op. cil.,p. 98.
5 Breton-Jokl,1957 Annuairefrançais de droit inrernutional,p210at 211;seealso
25 Internaiion01Low Reporr~,p. 313.182 NUCLEAR TESTS
6. Greece-ltaly: The 1928 Treaty of Friendship, Conciliation and Judicial
Settlement was invoked in 1955in respect of the Roula case 1.
7. France-Suain: The two States aareed in 1956. in aoolication of the Con-
vention of ~rbitration of 1929,to submit theLac ~anouxcase to arbitration 2.
8. Belgium-Spain: The Barcelona Traction case was brought More this
Court nürsuant to a 1927 treatv of conciliation. iudicial settlement and a~b~-~~~-~
tration: Although Spain argued that the provision conferring jurirdiction on
the Court mas not effective (because Article 37 of the Statute did not ar>r..y.. .t
said, to States which became bound by the Statute after the demise of the
Permanent Court), the parties were in agreement thal the treaty as a whole
had not fallen.
139. The above would appear to be a complete list of cases brought since
1945 under bilateral treaties for peaceful settlement of a general character
concluded since 1919. It accordingly does not include conciliations under
more limited treaties (such as the France-Siam conciliation of 1947), arbitra-
tions under older treaties (such as the Argentina-Chile boundary dispute), or
peaceful settlement procedures agreed to ad hoc 3.
140. The only cases of formal invocation of such treaties before 1945seem
to be the Wol-Wal Incident (Ethiopia-ltaly) under a 1935 treaty, the EIec-
triciry Company of Sofia and Bulgaria case 4 under a Belgium-Bulgaria bila-
teral treaty (and the optional clause), and the Socidte Commerciale de Bel-
gique case 5 under a Belgium-Greece bilateral treaty.
141. Other limited bilateral practice suggests unquestioned continuity:
thus Finland and Denmark and Finland and Sweden in 1953 amended their
1926 bilateral treaties of pcacclul settlement (both integrally linked with
conciliation conventions) to take account of the fact thar thcir articles con-
ferrina iurisdiction on the Permanent Court were no lonaer aoolicable because
that Court was not in existence and because Finland ;as net a party to the
Statute. The articles were amended to confer jurisdiction on this Court. The
amendments proceeded on the basis that the treaties were in force and were in
other respects applicable 6.
142. The above pieces of bilateral practice may appear very sparse, given
the lame numbers of treaties concluded in the 1920s and 1930s. But the
numbe; of cïscs under there trcaties or any othcr at any rime since the 1920s
is small in any cvent. The important point in this context is that the continucd
force of bilateral treaties similar to the General Act was no1anoa-.ntlv ever in
doubt.
143. The five foregoing subsections have been concerned to set out the
French arguments that the General Act is no longer in force-or, at any rate,
1 InternationalLaw Association.op. cil.p. 37,n. 1I;Cot,op.cit.,pp. 99-100.
2 United Nations Reportruf InternalionalArbirraIAndrdr, Vol. 12,p. 281; 24Inrer-
narionallaw Reporls, p. 101.
The list is based an the Index volumesof the InteriiationalLaw Reporrs; Cot,
op.cil.;and the 1968reportof Internorionallaw AssoeiotionCornmilteeonInternational
Conciliation,op.cil.,p.33.
P.C.I.J.,SeriesAIB, Nos. 77and 79.
P.C.I.J.,Series Ali?,No. 78.
UnitedNorioilsTreotySeries, Vol.118, p. 283andvol. 198, p.61.184 NUCLEAR TESTS
or modification or Io a party withdrawing 1.There has of course been no such
consent given by any formal or express means in respect of the General Act.
But, it might be said, the consent could be implied from the conduct .of
States. It is submitted that the history of this Act, asreviewed in the preceding
parts of this section, shows that no such consent can be implied: indeed the
conduct of the parties is consistent only with the continued force of the Act
unmodified. Moreover, the proposition that treaties can be modified by
conduct is one which is by no means unquestioned. Thus, of the 75 draft
~rti~ ~ - - the-l-w of treaties o.eo.red bv the International Law Commission. ~ ~~
the onl) one which ulis no1included in the Vienna C~nvention (in ii\ original
or amended form) uiis ihat uhich pro\,idcd that "a treaty may bc ntodificd by
subsequcnt practice in ihe appl~cïtion of the treaiy esiablishing the îçrremeni
of ihe pariies inmodiiy ils provisii)ns" 2.One of ihose uho opposed thic pro-
vision was the French delegate. Among his objections, shared by other
delegations, were that-
"many international agreements contained specific provisions on the
conditions oftheir revision: Io admit that the parties could deviate from
those clauses merely by their conduct in the application of the treaty
would deorive those orovisions of al1meaninz. . . .
~ore&er, il usas'doubtful whether the pGcise and strict conditions
laid down in Article 6 and the following articles of the draft 3,on consent
ta be bound by a treaty, would retain any meaning if the treaty could be
subsequently modified in the manner provided for in Article 38 4."
He was nevertheless prepared Io give the rule a limited validity for technical
treaties-but not. inreralia. if the treaty itselfsoecified the manner in which it
could be rcvised '.The Conference voie^ io de~eiethe Ariicle by 53 (Neu
Zealînd) IO 15uith 26 (France) absteniions 5.
148. The French Annex usesthe nord "dcs~iiudc". Is there a doctrine of
desuetude which, in recognition of the changes in international society,
permits treaties to lapse independently of the operation of their provisions for
termination, of the consent of the parties and of the rule relating Io funda-
mental changes ofcircumstances? It is submitted that there is not. Although,
as Lord McNair raid in 1961. "No1 a great deal of authority on the matter
existsv, such authority as there is suggests that there is no independent
doctrine of desu~ ~~e. The International Law Commission. in .reo~,ine.ils -
articlesconcerning the invalidity, termination and suspension of the operation
of treaties stioulated first-in a provision which is. in substance. now Article
42 (2) of the ~ienna convention--tha the terminition of a treaty, its denun-
ciation or the withdrawal of a party, can take place only as a result of the
provisions of the treaty or of the Convention. This provision was included-
1 See,e.g.,Art. 54 of the ViennaConvention on the Law of Treaties;secalsoArts.
40and 41.
1 Draft Art. 38.
4 Unired NotiotrsfConferencetion.rheLow ofTreorier. OfficialRecordf. FirsfSession
196~,-~p . 08-20 9a,ras:63-M. The FrenchAnnexai one'boint adoptsmuch thesame
position: "There is no needto emphasizethe essentialnature, in the systernof the
G~ner~ ~ct. of the ~rovirion excludinemodification of reservationswithin each five-
yearperiod'''(p. 9; comparepp. 10-Il).-
Vbid., p.215,para.60.
McNair, TlieLawof Treoties(1961). p. 516. "as a safeguard for the stability of treaties, to underline.. .at the begin-
ning of this part that the continuance in force of a treaty is the normal
state of things which may be set aside only [as a result of the terms of the
treaty or] on the grounds and under the conditions provided for in the
present articles1".
It follows from the provision, as well as from this explanation, that the
grounds of termination, denunciation and withdrawal provided for in the
Convention are, along with any grounds in the treaty itself, exhaustive>. The
Commission continued:
"In this connexion, the Commission considered whether 'obsolescence'
or 'desuetude' should be recognized as a distinct ground of termination
of treaties. But it concluded that, while 'obsolescence' or 'desuetude' may
be a factual cause of the termination of a treaty, the lcgal basis of such
termination, when it occurs, is the consent of the parties to abandon the
treaty, which is to be implied from their conduct in relationto the treaty.
In the Commission's view. therefore, cases of 'obsolescence' or 'desue-
tude' may be considered as covered by Article 51, paragraph (b), under
which a treaty may be terminated 'at any time by consent of al1 the
parties' 3."
As noted above, there is no evidence that the parties have consented to the
termination of the General Act and a substantial quantity of evidence to the
contrary.
149. The final rule of the law of treaties which might conceivably be
relevant is that of fundamental change of circumstances. As the Court stated
in the FisheriesJurisdicrioncasesat the jurisdictional stage:
''Intern~t~ ~al law admits that a fundamental change in the circum-
-
stances which determined the parties to accept a treaty, if it has resulted
in a radical transformation of the extent of the obligations imposed by it,
mav. under certain conditions. afford the oartv affected a round for
inv;king the terminaiion or suspension aithe rrcaty Thii priciple. and
the condiiionr and cicepiions IO ahich itis suhjeci. have heen cnihodicd
in Article 62 of the Vienna Cain\enti<~n on the Lsii of Treliiies. \rhtch
may in man) rerpects be ons si der cad a codificlirionol'r.xiiiingcuiio-
nidry la- on the suhjeci oi the terniinaiion of a treaty relaiionihip on
account of change of circumstances 4."
150. Amone t-e relevant elements of the rule. asstated bv the Court and in
the Vienna Convention, are: the change of circumstances must be fundamen-
tal: there must be a radical transformation of the extent of the obligations
still to be oerformed: and certain orocedures are to be followed. It ;s sub-
mitted ihat none uf ihese rcquirenients i, nict in the prescnt cilse. First. the
demisc iirthe Lcag~e of Nlitions anJ of the Permanent Cuurt did not amount
to a fundamental change of circumstances with regard to those existing when
the Act was concluded. Their existence was not an essential basis of the
consent of the parties; for, as the preceding suhsections show, the Act's
provisions, systern and operation had little to do with the League, and the
Paras.(1) and(3) of commentaryIo draft Art. 39.
Ibid .,ra.(5).
Ibid.A.rt. 51(b) becameArt. 54(b) of theConvention;seepara. 147above.
I.C.J.Report1 s973,pp1 .8and63.186 NUCLEAR TESTS
Permanent Court's jurisdiction is now exercisable hy this Court. Swondly,
the ohlieations under the Act remain in substance unchanned: Io submit Io
the various procedures for peaceful settlement. And, thirdly, France has not
formally invoked the doctrine or suggested tbat ils applicability be subjected
to a oeaceful settlement nrocedure fsuch as that orovided bv Article 41 of the
~ct).~. Moreover, princibles of preclusion and iaiver wouid, il is submitted,
rule out an appeal to this doctrine by a State which has ken aware of the
alleged changes for a long period, which has affirmed in a number of different
contexts that the treaty is still in force, and which has taken no steps, until
the institution of the present proceedings, to question the treaty's continued
force 2.
151. The Government of New Zealand therefore submits that basic prin-
ciples of the law of treaties and the history of the General Act are in accord in
showing that the Act is in forceas hetween New Zealand and France.
1Cf. FisheriesJurisdiclioncases,I.C.J. Reporls 1973,pp. 21and 65-66.
2 Seealsa Article45of the ViennaConvention on the Law ofTreatier. PART III
JURISDICTION UNDER ARTICLE36,
PARAGRAPH 2, OF THE STATUTE OF THE COURT
152. New Zealand and France have each declared that they recognize the
compulsory jurisdiction of the InternationalCourtof Justice under Article 36
(2) of its Statute. The New Zealand declaration was made under Article 36
of the Statute of the Permanent Court of International Justice on 1 April
1940. and deposited with the Secretary-General of the League of Nations on
8 April 1940. Under Article 36(5) of the Statute of the International Court of
Justice, it is deemed be an acceptance of the compulsory jurisdiction of the
International Court of Justice in accordance with its terms. The French
declaration was made on 16 May 1966. and denosited with the Secretarv-
General of the United Nations on20 ~ay 1966.it has ken shown in Part il
that the issues raised in these proceedings also constitute a dispute within the
meaninn of the Statutel: and the auestion of lee-l interest is considered in
Part V below.
153. It would appear that none of the reservations or conditions attached
to the New Zealand declaration is in issue in the present case, and that, of
those attached to the French declaration, only the following calls for con-
sideration:
"(3) disputes arising out of a war or international hostilities, disputes
arising out of a crisis affecting nationalsecurity or out of aoy
measure or action relating thereto, and disputes concerning ac-
tivities connected with national defence;".
In paragraph 16 of its Order of 22 June 1973, the Court refers to a letter of
16 May 1973 handed to the Registrar by the French Ambassador to the
Netherlands which draws attention to the "formally expressed will" of the
Government of France "to remove disputes concerning activities connected
with national defence from the purview of the Court". The relevant portion
of the Ambassador's letter reads as follows:
"... in its declaration of 20 Mav 1966.the Governmeot of the Reoublic
excluded from ils acceptance of Ïhe compulsory jurisdiction of the 'Court
'dtspute~concerntng activities connected with national defcnce' (dalara-
tion, paragraph 3).
The Court will certainly have obsewed that this phrase constitutes the
essential difference between this text and the preceding French declara-
tion, dated 10 July 1959.
Now it cannot be contested that the French nuclear tests in the
Pacific, which the Government of New Zealand considers to be unlawful,
formpart of a programme of nuclear weapon development and therefore
constkute one of those activities connected with national defence which
the French declaration of 1966intended to exclude."
This Part of the Memorial will be concerned with the mcaning and effect tbe
given the French reservùtion in the light of the Court's jurisprudence.
Paras.21-23188 NUCLEAR TESTS
154. In its judgment in the case concerning Right of Possage over Indian
Territory, Preliminary Objections, the Court drew attention to the nature of
the relationships estahlished by declarant States under Article 36 (2) of the
Statute:
"... hy the deposit of its Declaration of Acceptance with the Secretary-
General, the accepting State becomes a Party to the system of the
optional clause in relation to the other declarant States, with al1 the
riahts and obliaations derivina from Article 36. The contractual relation
betneen ihc parties and the conipulsory j~rirdiciion of ihe Court reiult-
ing therefrom are esiablished, '!pso/acro and uithout special agreement',
by the fast of the making of the Declaration 1."
There are IWO important corollaries. First, as the Court indicaied in the same
judgment. the validity of the conditioiis of acccpiance niade by declarant
Stares de~endr uDon iheir conii,iencv uith the Statuie 2.Secondlv. althoueh
declarations of aiceptance are unila<erally drafted, they are, in tëé wordsof
Judge Sir Hersch Lauterpacht, "a manifestation of intention to create
reciprocal rights and obligations" 3,and in general they share the character
of other kinds of iurisdictional clause.
155. In the ~hoiphares in Morocco case, the Permanent Court observed that
ajurisdictional clause "must on no account he interpreted in such a way as ta
exceed the intention of the States that suhscribed to it"4. This funda~e~ ~~- ~ ~ ~ ~ ~ ~ ~
rule requires that consent to jurisdiction shall,~ifdisputed, always he strictly
proved. In its judgment in the Chorzow Factory, lurisdicrion, case the Perma-
nent Court stated that it should "only affirm itsjurisdiction provided that the
force of the arguments militating in favour of it is preponderant" 5. This
dictum was applied in reference to a declaration made under the optional
clause hy President Sir Arnold McNair in his individual opinion in the
Anglo-Iranian Oil Co. 6, case.
156. The last-mentioned case has niven rise to learned discussion as to
uhether the Court's cùncern tu ïvoidan ercrs de poiooir nlay in sonte cases
entail a presuniptii)n againsr jurisdiciion '.Ceriainly the Court. in adniiiiing
extrinsic evidence of rhc inleniion of the Re,~ondeni State. had eni~hssized
the fact that declarations under the optionalçlause are, unlike treaty texts,
the result of unilateral drafting 8. There is, however, no indication in this
Judgment that the Court helieved itself to he acting upon a rule of restrictive
interpretation; and, in his dissenting opinion, Judge Read remarked:
I.C.J. Reporrs1957, p. 146.
Ibid, p. 144.
Certain Norwegian Loons: separate opinion of Judge Sir Hersch Lauterpacht,
I.C.J. Reports1957, p.49.
P.C.I.J., SerieAIE, No. 74,p.24.
P.C.I.J., SerieA, No. 9,~. 32.
a I.C. J. Re~olls1952.n. 117~
' Se.fur ewmplc, ~Sir Iicrjch I.auicrparh1. Ik De,eb,p,>iztzr/lnur,iurronal /.an
6) rhe InrernoriunoCl ourt(1958).pp. 338-341 :SirGrrald Fiirmsuricc, "The Lau and
Prwedurc of ihc International Court of Juslire. 1951.4:Ouertioni of Jurisdiciion.
Cornpetence and Procedure"in 34 B. ~.1.~.~(1958) ,p.86-97;.Briggs, "Reservations ti
the Acceptanccof Compulsorylurisdiction of the International Court of Justice",
Académie de Droii Inlernationol:Recueildescours (1958-1, p. 288).
a Ibid.,p. 105. "1 have been unable to find any casein which either Court relied upon
a restrictive interpretation to a jurisdictional clause as a basis for its
judgment 1.''
157. It seemsclear that the Court. beina auided bv the orinciole of eaualitv
between the parties, will not allow a"y pr&;mptionor ruie of cbnstruciion tb
dominate its assessment of the parties' intentions. In the River Oder Com-
missioncase 2.the Permanent Court indicated that the Court would resort to
the rulc of restrict\\e interprcition only if the application of other rules had
fiiilerl io e<tahlihh ihc intentionof the parties. This dictum gave added delini-
tion to the test propounded by the Court several ycars earlier in the Chorzdw
Focrory, Jurisdicriorr, case: an incomplete proof would not eliminate "the
doubt nullifying its jurisdiction" 3, but completeness of proof would not
entail the rebuttal of a presumption against competence. The rnatter has been
summed up by Charles De Visscher in these words:
"Le iuee international resvecte une volonté aui se restreint: ilest sans
complais~nce pour une souveraineté qui sedérobe.
Moins justifiée encore est l'idée d'une présomption d'incompétence
aui conduirait aisémentà éteindrecher le iuae.t-ut esvrit de recherche de
la véritable intention des Parties 4."
158. The other aspect of the interpretation of declarations of acceptance
under the ootional clause is that of their consistency with the Statute. In a
cclebrate<l pa,\age frum his indi\iJual opinion .n the .Vorh'r~ion Lootzscase.
Judge Ldutcrpxhi dcs~r~hedthis rel~tionship in the li>llouing uay:
"ln accepting the jurisdiction of the Court Governments are free to
limit itsjurisdiction in a drastic manner. As a result there may be little
left in the Acceptance which is subject to the jurisdiction-of the Court.
This the Governments, as trustees of the interests entrusted to them, are
fully entitled to do. Their right to append reservations which are not in-
consistent with the Statute is no longer in auestion. But the auestion
uhether ihai Iitile that 1sleft is ùr is n;t subje;i to thejurisdictio'nof the
Couri niuii be deterniined hy iheCuurt iiseli. An) ci)nditions or rcscrva-
tioiis which purport to deprive the Court of that power are contrary to an
express provision of the Statute and to the very notion, embodied in
Article 36 (6), of conferrnent of obligatory jurisdiction upon the Court.
As such they are invalid. It has been said that asGovernments are free to
accept or not to accept the optional clause, they are free to accept the
very minimum of it. Obviously. But that very minimum must not be in
violation of the Statute 5."
159. Neither the present Court nor the Permanent Court has pronounced
upon a question of inconsistency ralione marerine between its Statute and the
terms of a declaration of acceptance made under Article 36 (2). In the
Norwegion Loons case 6, and agaio in the Inferhandel case7, declarations
Ibid.,p.143.
P.C.I.J., SeriesA, No. 23p. 26.
P.C.I.J.,SeriesA,No.9,p.32.
<. De Visscher,Problè,>!es d'inrerprérorionudiciaire 'public
(1963),pp. 201-202.
"I.C.J. Reporrs1957,p. 46.
I.C.J. Repovts1957,p.9.
I.C.J.Reporrs 1959, p.6. 190 NUCLEAR TESTS
which the Court was asked to consider contained conditions which expressly
reserved to the declarant State the right to determine whether any matter in
dispute fell within a category excluded from the acceptance of compulsory
jurisdiction. Although the Court did not find it necessary, in either of these
cases, to reach a decision about the validity of the "self-judging" reservation,
five members of the Court expressed the opinion that such reservations are
not compatible with Article 36 of the Statute 1.
160. The outcome of the Norweaian Loans case. and the thrust of the
judicial observations to which referënce has just been made, have had a far
reaching influence. The Secretary-General of the United Nations, in his
annual report to the General Assemblv for the vear 1956-1957 noted the
tendency io make reservations that "ma; render théwhole system of compul-
sory jurisdiction virtually illusory"2. At its 1959 meeting, the Institute of
International Law adopted by a unanimous vote resolutions which, inter
alia, referred to the judgments given and the opinions expressed in the
Norwegian Loans and Interhandel cases and urged the withdrawal of reserva-
tions of the kind there in question 3. Several countries, including France and
the United Kingdom, later withdrew overtly "self-judging" reservations
which they had for some years maintained.
161. In the Riahr of Passwe, Preliminary Objecfions. case'. the Court had
had occasion to ionsider other facets of the qkstion of consisiency bctween
the Statute and declarations of acceptance. As Rosînne has noted 5. the test
which the Court then applied did not appear to dilfer in substance from the
compatibility test. applied by the Court in the Reservarions ro the Genocide
Convention 6 case to determinc the validity of rescrvations to a multilateral
treaty. The same analogy is em~hasized in Judae Lauter~acht-s individual
opinion in the ~orwegian~oans case:
"It is irrelevant for the purpose of the view here outlined whether the
instrument of acceptance of the obligation of the optional clause is a
treaty or some other mode of creatina obligations. In the Anglo-Iranian
Oil Comoan. .ase the Court observed~~a~~- ~ ~ ~ ~ ~ ~he text o~ the ~ ~nian d~ ~-~~~~~
ration is not a treaty text resulting from negotiations between two or
more States' but that 'it is the result of unilateral draftinn by the Govern-
ment of Iran' (I.C.J. Reoorrs 1952. o. 105). The statëmënt means ~o ~ ~
more than thai'the declaration is th;resull not of negotiations but of
unilateral drafiing. Whether it is a treaiy or a unilateral declaralion. it
is-if it is to be treated as a leeul tex~ orr~~dine a -asis for the iuris,ict~ ~ ~ ~ ~ ~ ~ ~ ~
of thecourt-a marirfestation ofintention to create reciprocal rights and
obligations. Itwill be noted that Article 36 (2) refen to the acccptance of
1 See, in the NorwegianLoans case, the separate opinion of Judge Sir Hersch
Lauterpacht and the dissentingopinion of Judge Guerrero, and, in the Inrerhondel
fast, the separateopinionof JudgeSir PercySpenderand the dissenting opinionsof
PresidentKlaestad.Judge Armand-Ugonand Judge Sir HerschLauterpacht.
IntroductionIo the Annual Report of the Secretary-Generalon theWork of the
Organization 16 Jurre1956-15lune 1957.United Nations, OfficiolRecordo *f Ihe
TweIfthSessionofthe GeneraA l ssembly,SupplementNo. IA (A/3594/Add.1).p. 5.
3 ResolutionsadoptedbytheInstitutdeDroit Internationalat itsNeuchjtel Session,
September3-12, 1959(Englishtranslation by C. W. Jenks published in 54 A.J.I.L.
(1960).p. 135).
I.C.J.Reports1957,p. 125.
TheLawandPracriceofrheInternationoICour(t1965),Vol. 1,p. 391.
a I.C.J.Reporrs1951,p.24. thejurisdiction of the Court in relation 'to any other State accepting the
sameobli~ation'. In fact there isno difficultyin visualizing the Declaration
.. .~--~=an~ ~ ~ ~~~ ~ ~ ~ion to a multilateral treatv inihe same wav as. . .
in thecaseof various conventions concludcd under iheau,pices of the
United Nations. Governments ascede to a texi established by the General
Assembly. However that may be, the acceptance of the optional clause
is an instrument purporting to bring about, as between the accepting
State and any other Stafe which has accepted or may accept that text,
~.-~e~~cal r~é-ts and obligations. If the acce~tancedoes not. in law.
amount to an assumption%f an obligation effèctivelybinding "pon thé
Government concerned, it is not a valid instrument upon which the
accepting State can rely and of which the Court can take cognizance 1.''
162. The opinions of the judges in the Norwegian Loans and Interhandel
cases do not attach decisive importance to the overtly "self-judging" form of
the reservations there under consideration. The essential question is whether
it is the declarant's intention-to be derived from the wording of its reserva-
tion and from any legitimate recourse to extrinsic evidence-to allow the
Court to discharee itsstatutory duty of determinina the extent of its own
jurisdiction. ~hu; in ihc follo~ing passage from his disenting opinion in the
Interhondpl case, Judge Lauterpacht takes into ascount, not only the express
reservation of the declarant's riaht unilaterallv to decide whether a matter
falls witbin its "domestic jurisdiction", but alio the all-embracing nature of
the latter concept. In rejecting the notion that the Court could in thesecircum-
stances exerciséan effeitive control by applying the test of good faith, Judge
Lauterpacht leaves open the possibility that a reservation, though formulated
as "self-judging", might yet comply with the requirements of the Statute:
"There is no question here of ruling out altogether the abiding duty of
every State to act in good faith. The decisive difficulty is that in view of
the comprehensi\enens of the notion of doniestic j~risdiction~oupled
in thc sdse of the Uniied Statec with a uniform insistence on the right of
unilatcral deterniination-that right acsuniec in etïect the coniplcxion
of an absolute rieht not subiect to review bv the Court. This miaht not -
necessarily be the case if. for instance. o government uere io make a
rescr\lti<in of m.itt?r\ .irlsinsin ihr.c,iurse ,ifh,>stililie3, ile~r.riiiineJby
that government and if subsëquently it were to proceed to determine as
such an event which arose in time of peace undisturbed by any armed
contest, whether amounting to war or not 2."
163. On the other hand, a reservation which does not purport to he "self-
judging", may yet, because of vagueness, be found inconsistent with the
requirements of the Statute. In such a case, the defect will tend to present
itself, not as a challenge to the Court's authority. but as a failure to establish
a basis of obligation. 'ihe rooi cause and its coniequences are the sanie. "If
the acceptancc". said Judgc Sir Hersch Lauierpacht, in a passage from the
NorwegianLoanscase already quoted, "does not, in law, amount to an assump-
tion of an obligation effectivelybinding upon the Government concerned, it is
not a valid instrument upon which the accepting State can rely and of which
the Court can take cognizance" 3. The 1959 resolutions of the Institute of
I.C.J.Reports 1957, pp. 48-49.
I.C.J.Reports 1959, pp. 113-114.
I.C.J.Reports 1957, D.49.192 NUCLEAR TESTS
International Law, referred to above, emphasize that imprecision may in
itself give rise to the risk of invalidity:
"IIisof the highest importance that engagements to accept the jurisdic-
tionof the International Court of Justice undertaken by States should be
effective in character and should not he illusorv. In ~articular. States
which a'cept the compulrory jiiriçdiction of the Court 1;vlrtue of Article
36. p~ragrdph 2. of the Stdtute should do 50 in prr..ise terms which
resoect the rinht of the Court to settle anv disDute concerninp. its own
jur/sdiction inaccordance kilh the ~i~tute-anddo no1 permit-Statei 10
eludc their submissii)n Io international jurisdiition 1."
164. 11ha.; beensuggestedthat the<'oiiri. thnugh iinrr.ivering in itjconcern
to ensure theequ3lity of the pdrties. h~sshoun itselfto be les nrm in ajserting
its control ove; declarations which mav bear directlv or indirectlv on ifs
judicial competence 2. There can, however, be no doubt of the Court's com-
mitment to the principle of the effective interpretation of treaties, or of the
aoolicabilitv of that orinci~le in interoretinx declarations of acceotance under
the optionai clause. ~oreover, as théCourt observed in the ~ighc of Passage,
Preliminary Objections, case:
"lt is a rule ofinterpretation that a text emanating from a Government
must, in principle. he interpreted as producing and as intended to pro-
duce effects in accordance with existing law and not in violation of it 3."
ln the same Judgment the Court said, in reference Io a condition of accep-
tance of the optional clause, that it regarded itself as bound to "determine
the meaniiig and effect of the Third Condition hy reference to its actual
wording and applicable principles of law" 3.
165. In ils Advisory Opinion, Admissioii to the United Nations, the Court
described itsapproach to questions of interpretation:
"The Court considers it necessdryto say that the first duty of a tribunal
which is called upon to interpret and ~DDIY the ~rovisions of a treaty. is Io
endeavour to ei"e eAect to them in th& natuial and ordinarv méanine
in the context in which they occur. If the relevant words in thAr naturaÏ
and ordinary meaning make sensein their context, that is an end of the
matter. If. on the other hand. the words in their natural and ordinarv
meaning are ambiguous or lead Io an unreasonable result, then, and the;
only. must the Court, by resort 10other methods of interpretation, seek
to ascertain what the parties really did mean when they used these
words 4."
Althouah the intention of the declarant State is to be derived orimarilv from
the words used, the Court and individual judges, when addressing therkselves
to the meaning of reservations or conditions, have not infrequently found it
necessary to consider other evidence bearing on the intention of the declarant
--
1 Resolutions adopted by the Institut de Droit International at its Neuchâtel
Session,Seprember3-12, 1959(English translation by C. W. Jenkspublished in54
A.J.l.L.(1960), p. 136).
2C. De Visrcher. Problèmesd'inrerprérotionjudiciaire en droit inremarionalpublic
119hf). o. 2W. State at the time its declaration was made 1.In the present case, it is proposed
to consider. in turn. the words used in the French reservation and the circum-
stances which mayhave influenced their use.
166. A purely textual approach to the third French reservation must raise
doubts which it cannot wholly resolve. Briggs has said, in reference to the
"self-judging" reservation made by the United Kingdom in its declaration of
18 April 1957, that "no rules of international law can determine whether a
question affects the national security of a State"'. It has also heen pointed
out that the answer ta such a question entails a factual appraisal which is
peculiarly within the province of the State concerned:
"Pour juger du bien-fondé de la mise en jeu de la réserverelative à la
skcurité,la Cour ne pourra guère que se rapporter aux élémentsqui lui
auront étéfournis par I'Etat si elle ne veut pas s'immiscer dans des pro-
blèmesde politique interne; .. .'"
The same remarks mieht b- made in reeard to-the term "national defence"
which is of comparable generality, except that it would seem ta relate only to
external threats. There is. however, one other noteworthv difference between
these terms: "national security" describes a ~ituati~n, while "national
defence" denotes action taken in response to a situation.
167. If one examines these terms in their respective contexts, a further
distinction emerges. In reference to the phrase "disputes arising out of a
crisis affecting national security or out of any measure or action relating
thereto", Vignes has pointed out:
"Le domaine vague et imprécis d'une telle réserve ne peut manquer
d'êtresouligné. II est à noter toutefois que l'exigence d'une 'crise' laisse
supposer qu'une atteinte à la sécuritéde la nation ne sera prise en con-
sidération que lorsqu'elle seracaractérisée;ce qui malgrétout restreint le
danger d'une extension démesurée et difficilement contrôlable de la
réserve 4."
In the phrase "disputes concerning activitiesconnected with national defence"
there is no limitation corresponding to the words "arising out of a crisis".
Moreover, as the French Ambassador has stressed in his letter of 16 May
1973 to the Registrar. the inclusion of the ohrase "disoutes concernine
activities connecïed with national defence" conititutes an eisential difference
between this text and that of the preceding French declaration. It must follow
that the new reservation is desinned Io exclude the Court's iurisdiction in a
class of cases not covered by theearlier reservation, because these cases are in
no way related to a crisis of national security. It is, no doubt, in that sense
that a commentator on the 1966 declaration has spoken of a progressive
1 Cf., especially,thAnglo-Iranian Oil Co. case,I.C.J. Reports 1952,p.93 and the
dissentingopinion of Judge Lauterpachtin the Inrerhondelcase,I.C.J. Reports 1959,
pp. 107 R.
2 Briggs, "Reservaiions to the Acceptance of Compulsory Jurisdiction of the
lntemational Court of Justice", Académiede Droit Internarional:Recueil des cours
(1958-0, p. 229 at p.302.
3 Vignes,"Observations sur la nouvelledéclaration françaised'acceptationde la
juridiction obligatoirede la Cour internationale de Justice",vuegénérald ee </mir
inrernntiowlpublic,uoisièmeskie-tome =Xi; tome LXIV-1960, p. 52 at p.70.
Ibid.at pp.69-70.194 NUCLEAR TESTS
accumulation of specific reservations in areas more and more difficult for the
Court tocontroll.
168. As has been noted, the test of consistency with the requirements of
the Statute is one of substance, not of form. The fact that a declarant State
has avoided a parently subjective formulation of jts reservations may, indeed,
provide an indication of intention; but this interpretation must yield if the
Court should find that the scope of the reservation cannot objectively be
determined. It is not uncommon in certain kinds of international aereem-nt ~ ~
to make provision for a right of derogation in time of emergency. Similarly, it
mav be that the governing words "arising out of a crisis" offer an acceptable
-u&a~tee of the obiectivitv of the French reservation relatinn to n-tional
security. In the case of the newer reservation. on the other hand, the means of
control must, if they exist at all, be inherent in the meaning of "national
defence". It therefore becomes necessarv to consider the extrinsic evidence
which may help to fix the meaning of thai term, and to test the strength of the
declarant State's commitment to compliance with the requirements of the
Statute.
169. As to the meaning of "national defence", and its place among the
policies of the French Government in the period up to and including the
making of the declaration of 20 May 1966,there can be no voice of authority
comparable with that of President de Gaulle. The following passage from a
celebrated address, made to the French Military School on 3 November
1959. is quoted because if appears to bring together, in one statement of
moderate length, elements of policy which remained constant during the
period in question:
"II faut que la défensede la France soit française. C'est une nécessité
qui n'a pas toujours été très familière au cours de ces dernières années.
Je le sais. II est indispensable qu'elle le redevienne. Un pays comme la
France, s'il lui arrive de faire la guerre, il faut que ce soit sa guerre.II
faut que son effort soit son effort. S'il en était autrement, notre pays
serait en contradiction avec tout ce ou'il est deouis ses or-eines. av~ --on
&le, avec l'estime qu'ila de lui-mêrhe,avec sin âme. Naturellement, la
défensefrançaise serait, lecaséchéant, conjuguée aveccelled'autres pays.
Cela est dans la nature des choses. Mais il est indisoensable Qu'ellenous
soit propre, que la France se défendepar elle-même,pour elle-mêmeet à
sa façon.
S'il devait en êtreautrement. si on admettait oour lonetemos oue la
défense de la France cessât d'êtredans le cadre nationar et &t'eiie se
confondît, ou fondît. avec autre chose, il ne serait pas possible de main-
tenir chez nous un Etat. Le Gouvernement a oour raison d'être. à toute
époque, la défensede I'indépendince et de l'i"t6grité du territoire. C'est
de là qu'il procéde.En France, en particulier. tous nos reglmes sont benus
de là.
Si vous considérez notre histoire - qu'il se soit agi des Mérovingiens,
des Carolingiens, des Capétiens, du Premier ou du Second Empire, des
Première, Deuxième, Troisième, Quatrième, Cinquième Républiques -
vous discernez, qu'à l'origine de I'Etat et à celle des régimesqui l'ont,
tour à tour, assumé, il y eut toujours des préoccupations ou des néces-
' Feydy, "La nouvelle déclaration française d'acceptation de la juridiction
obIigatoiri!.dela CourinternationaledeJustice"(1966). 12Anmire fiwfois de droit
inferwtionol, p. 155a1p. 159. sitts de dtfense. Inversement, toute invasion, tout desastre national, ont
a~~.& infailliblement. la chute du reaime du moment. Si donc un ~ ~ ~
gouvernement perdait ;a responsabilite ~ssentielle, il perdrait, du meme
coup. sajustification. Dèsle temps de paix. il serait bientôt admis au'il ne
~e~vlit vas son obiet.
~uani au commandement militaire. qui doit avoir la responsabilitt
incomparable de commander sur les champs de bataille, c'est-à-dire d'y
rkpondre du destin du pays, s'il cessait de porter cet honneur et cette
charge, s'il n'&taitplus qu'un element dans une hierarchie qui ne serait
pas la nbtre, c'en serait fait rapidement de son autorite, de sa dignite, de
son prestige devant la nation et, par conséquent, devantles armees.
C'est pourquoi, laconception d'une guerreet même celled'une bataille
dans lesquelles la France ne serait plus elle-mêmeet n'agirait plus ROUI
. .
son compte avec sa part bien à elleet suivant ce qu'elleteut, cette con-
ception ne peut êtreadmise. Le système qu'on a appel6 'integration' et
qui a et6 inauguré et même,dans une certaine mesure, pratique après
Ics grandes Cpreuves que nous avions traversees. alors qu'on pouvait
croire que le monde libre etait place devant une menaceimminenteet
illimitee et que nous n'avions pas encore recouvr6 notre personnalite
nationale. ce systèmede I'integration a vécu.
II va de soi. évidemment, que notre defense, la mise sur pied de nos
moyens. la conception de la conduite de la auerre. doivent être~our nous
combinees avec ce qui est dans d'autres pays. Notre strategie doit étre
conjuguk avec la stratdgie des autm. Sur I« champs de bataille. il est
infiniment probable Que nous nous trouverions côte à côte avec des
allies. ais; que chacun ait sa part à lui!
Voilî un point capital que je re~ommandci \os rr'flc~ions.La coriscp-
lion d'une dtfense de la Franceet de la Communaute qui soit une défense
française, cette conception-là doit être B la base de la Philosophie de vos
centres et de vos dcoles.
La condquence, c'est qu'il faut, evidemment, que nous sachions nous
pourvoir, au cours des prochaines annees, d'une force capable d'agir
pour notre compte, de ce qu'on est convenu d'appeler 'une force de
frappe' susceptible de se ddployer à tout moment et n'importe où. II va
de soi qu'à la base de cette force sera un armement atomique - que
nous le fabriquions ou que nous l'achetions - mais qui doit nous
a~~artenir. Et. ..isau'-n mut dttruire la France. eventuellement. à
Gtir de n'importe quel point du monde, il faut que notre force soit faite
pour agir où que ce soit sur la terre 1."
170. National defence, therefore, had an enlarged meaning. It could no1be
e-~a~.~ with the o~d~ ~ ~ role and activities of the French armed services:
nor could it be said that its goals were in any strict sense military or delensive.
It included and gave special prominence to a programme for the development
of nuclear weapons. ~he possession of a nuclëar deterrent was thought of,no!
only as an insurance against nuclear attack, but also as a pre-requisite of
great power status. National defence was no less than an integral and indivis-
ible aspect of French vital interests, honour and independence. Clearly ilis
not in this unlimited sense that the expression "national defence" can oser the
Allocution prononcée à 1'EcoleMilitaire,3 novembre 1959,publishedin Charles
de Goulle:Discours el Messages: Avec leRenouveau - "rai1958-jttiller 1962 (1970),
pp. 126-127. 196 NUCLEAR TESTS
Court a means, which is effective and not illusory, of controlling the reserva-
lion in which the words occur. Vignes, writing in reference to the 1959 decla-
ration, had already observed:
"Le Gouvernement français ne donne pas campetence a laCour pour
connaître desdifférends ayant une incidence sur la vie de la Nation. aussi
biensur le planinternational que sur le plan interne. C'est ainsi que sont
réservesnon seulement les différends nés d'une guerre ou d'hostilités
internationales, mais aussi ceux mettant enjeu lasécuritédela Nation 1.''
Feydy, in reference to the 1966 declaration, notes:
"une certaine tendance à retirer petit a petit d'une main ce qu'elle avait
donnée de l'autre a la justice internationale en renonçant a apprécier
unilateralement I'ktendue de sacompétencenationale 2."
171. The commentaries in the Revue généralede droir inlernarionalpublic
and in the Annuaire francais de droir inrernarional place the declarations
against their political background. The declaration of 1947. containing a
"self-judging" resewation similar Io that of the United States. had been
drawn up and ratified at a lime when the French Parliament was acutely
sensitive to the notion of any encroachment unon national indebendence and
sovereignty 3. A neu situath uas cre3ted hy the Court's dicision in the
.Vorwrgion Loa»s zase4, and by ths gencral di5favour into whiih the "self-
.udc.-g" reservation had fallen. The French dccidrîllon of 1959 nbandoned
the "self-i.de--e" reservation. and re~iaced it with soecific reservations
which were objectively formulated S. ~he reservation as (O national security,
though general in ifs terms, was well known to be designed specifically to
exclude disoutes arisine urom events in Aleeria 6. The French declaration of
1966, importing the new re\ervdtion as to national delence. uas ais0 coucheil
in general terms. but uas klie\ed to k reldted Io France's chdnged policie5
towards the North Atlantic Treaty Organization, and Io opposition to the
projected programme of French nuclear tests in the Pacific. Rousseau has
commented:
"En prbvision de ces expérienceset dans le dessein manifeste de se
dérober par avance à tout débat juridictionnel concernant la mise en
cause éventuelle de sa resbonsabilité internationale au reaard-d'un Etat
lie plr lesIric, clause fil~ultati\c Je juridiition~?bligatuire.Ic g,iu\ernr-
ment francais avait 011s~oin Jç modifier en temos utile le 20 mai 1966 --
soit six semainesa\;int la preinir're expérience - sa declaration d'accep-
talion de la juridiction obligatoire de la Cour internationale de Iustice,
1 Vignes,"Observations sur la nouvelle déclarationfrançaised'acceptation de la
juridiction obligatoire de la Cour internationalede Justice",evue générold ee droit
internorionalpublic,troisième serie-tome XXXI, tome LXIV-1960. p.52 al p. 68.
* Feydy, "La nouvelle déclaration française d'acceptation de la juridiction
obligatoirede laCour internationale deJustin" (1966).12 Annuairel.onr~isde droit
inte'wrionol, p.155at p. 159.
Dreyfus, "Les declarationssouscritespar la France aux termesde l'article 36
du Statut de la Cour internationale de La Haye" (1959). Annuairefmnfois de droit
inrernotionalp. 258at pp. 264-269;Vignes, foc. ciralpp. 56-57.
I.C.J.Reporrr1957.p. 9.
Dreyfus, /oc.cir.atpp.269-270;Vignes, /oc.cil.al pp. 57ff,
Feydy, loe.cir.,at p. 159;Vignesloe.cir.atp.69. en excluant pour l'avenir de la compétence de la Cour les 'différends
concernant desactivités serapportant à la défensenationale' 1."
172. There has in recent years been little in the way of official explanation
of the French Government's stance in relation ta the compulsory jurisdiction
of the International Court of Justice. Thus, Feydy writes:
"Les modifications de 1966 pourraient laisser les observateurs plus
perplexes. Ni l'effet immédiat qu'en espère le gouvernement français, ni
le sens qu'il faut donner à la nouvelle déclaration ne sont absolument
évidents à première vue. Et ceci d'autant plus, faut-il le rappeler, que la
jurisprudence inaugurée en 1959 n'a pas subi de changement: il s'agit la
d'un acte unilatéral du gouvernement français et non pas d'un traité au
sens de l'article 53 de la Constitution du 4 octobre 1958. Ni débats, ni
travaux parlementaires ne peuvent donc en éclairer la signification, con-
trairement aux textes antérieurs à 1959 2."
It would, however, be wrong to discount the strength of the French Govern-
ment's intention to achieve, by replacing the "self-judging" reservation, a
more secure bond between France and other States parties to the optional
-~~~~~. In -enera~. the commentators acknowledee and -nnlaud t.ir~inten-
lion, whileexpressing an undertone of anxiety about the countervailing inten-
tion tomaintain extensive andill-defined areasof reservation. In his article on
Nuclear Tests in the Pacific, Rousseau says, in reference to the national
defence reservation:
"La limitation est de taille et, dans les termes imprécis où elle est for-
mulée,elle risque de réduire dans des proportions imprévisibles le maigre
domaine encore assirné - la Cour. Mais il n'est pas douteux au'au
premier rang des différends unilatéralement déclarés non justiciables
figurent désormais les différends nks des réclamations pour dommages
causéspar desexpériencesnucléaires 3."
Referring more generally ta the features of the 1966 declaration. Feydy con-
cludes:
"Sans vouloir donner à tout prix de l'unité à l'ensemble des modifica-
tions de 1966.on peut donc voir dans ces réservessupplémentaires, dans
l'esquive de plus en plus perfectionnée desproblémes~osésparla récipro-
cité, dans cette affirmation des droits du gouvernement français sur le
contenu comme sur la durée de ses engagements, un progrès assezco-
hérent vers le glacis protecteur que les Etats adhérents à la clause facul-
talive ne cessent de construire entre eux et la juridiction de la Cour
internationale de Justice4."
173. In summarv. an examination of the surroundine circumstances
iippears to reinforcc the evidence of a coniiict of intention the tert of the
third French rescrvation. uith the danger ofencompassing its invalidity. This
situation is, of course, the product of the tensionsexperienced, in great or less
' Rousseau,"Chronique des faits internationaux: expérience sucltaires dans le
Pacifique (2 juillet-5 octobre 1966)". Revue gé!ilrule <le<hoil i,zrerizalionolpublie,
troisiemesérie-tome XXXVII, tome LXX-1966. p. 1032al p. 1040.
2 Fe&, /oc.rital pp. 155-156.
2 Rousseau,/oc. or. al p. 1040.
4 Feydy.loc.cil. al p. I6û.198 NUCLEAR TESTS
degree, by every State which desires to assume, and yet to limit, the reciprocal
play of rights and obligations under the optional clause. In the case of
France, this tension may well have been extreme, because it involved the
.al~ ~ ~ - ~ ~ ~ ~ -record of lo. .tv to the Court's comnulsow .u.isdiction
with a marked disinclination to accept restrictions upon its national freedom
of action. In the official silence which surrounds the making of the French
declaration of 1966,there may also be an elcment of a viewpoTntcxpressed by
Vignes in his commcnts on the national securily resewation contained in the
declaration of 1959:
"Ne peut-on dtlarer, de plus, comme pour l'ancienne réservefran-
çaise de compétence nationale, qu'elle est incompatible avec la Statut de
la Cour et notamment i'article 36, paragraphe 6? 11ne semble pas pos-
sible de conclureà cette incompatibilité. Si en fait la dttermination de la
sécuriténationale semble anoartenir au pouvernement francais. si elle
permet le cas échtant de retkér compétenie àla Cour pour Lrta'ins dif-
férends. il n'en demeure pas moins que celle-ci peut exercer un contrôle
et que par là mêmeelledemeure juridiquement maitresse desacompb-
tence 1.''
174. The New Zealand Government does no1 contend that the French
resewation of "disputes concerning activities connected with national
defence" mus1 be regarded as incompatible with Article 36 of the Statute. It
must bc construed in accordance with its actual wording and with applicable
rules of law. The latter include the presumption that texts emanating from a
government must, in principle, be interpreted as producing and as intended
to produce effects in accordance with existing law. It is no doubt possible to
interpret the term "national defence" in ways which do no violence to its
ordinary meaning, and which enable the Court to assert its right to settle any
dispute concerning its own jurisdiction. It may be, for example, that some
euidance can be drawn from the extent of the riaht of self-defence. to which
a11measures of national defence must ultimately Lerelated.
175. On the other hand. the New Zealand Governmenr does no1 accept
that an activityfalls within the rubric of "national defence" simply becauw it
relates to the dcvelopment of an instrument of mass dcstruction-or that the
concept of "activities connected with national defence" can in its ordinary
mean& extend to a programme of nuclear weapons testing in the atmo-
sphere, carried out in a region of the world far removed from metropolitan
France, contrary to the wishes of the Governments and peoples of that region
and to the will of the world community consistently expressed in the resolu-
tions of United Nations bodies. Finally, even if the phrase were thought
capable of such a meaning, it could only procure ils own invalidity; for the
Court cannot administer a resewation which in effect leaves it to the declarant
State to assert itsownconception of its vital interests.
176. The New Zealand Government submits that the matters to which
these oroceedinas relate do not fall within the third or anv reservation to the
~rench declaracon of acceptancc, and that the Court ha;jurisdiction pursu-
ant to Article 36(2) and (5).of the Statute of the Court.
' Vignes /,c.cirat p70. PART IV
RELATlONSHlP BETWEEN THE TWO SOURCES OF
JURISDICTION
-~7..T-e Frenc~ A~nex ~~~-~~s t~at~ "on ~.e ~voothesi..that ~ ~ ~en~ ~l ~ ~
Act is not wholly without validity". it is inapplicable in situations excluded
bv France's unilateral declaration of acceotance of the iurisdiction of the
6ourt under Article 36 (2) of the Statute. ~his assertion iÏself rests upon the
hypothesis, which the New Zealand Government does not admit, that the
issuesraised in these proceedings fall within the scope of reservations made in
the French declaration.
178. Even if the position were otherwise and France had effectively ex-
cluded the subiect of the oresent disoute with New Zealand from the ambit
of its accepiancc of the ~o'urt's jurird;ction under Article 36(2)of the Siaiuie.
the proposition advanced by France that itsdeslaration under the optional
clause has limited the obligations assumed by it under a prior treaty is un-
tenable. It is contrary to principle, to judicial authority and to the clear
purpose and provisions of the General Act.
179. Paraar-.hs I and 2 of Article 36 are oro...lv to be construed as
providing two separate means of accessto the Court. two independent and
cumulative sources of obligation. This is the natural and ordinary construc-
tion of the Iwo orovisions. neither of which contains anv reference to the
other. It is also'rhe construction which has gained the mtamp of judicial
aooroval. In the case concerning the Elecrricity Company of Safiri and Bul-
- the Ao.l.cant. Bele-um. based its aool. .tion on a bilateral treatv of
conciliation. arbitration and judicial sertlement --a treaty similar in many
respects to the General Act-and also on earlier declarations made by it and
the Resoondent. B.laari-. iinder Article 36i2i of the Statulc. The Court held
that boih the treaty and the Iwo declarations were in force at the lime of the
filing of the Belgian Application and that the treaty did not restrict the extent
of the more extensive jurisdiction conferred by the two declarations. The
central passagein the Court's Judgment on this point read asfollows:
. , themult~plicity of agreements concluded accepting the compulsorv
~urisdiction is evidence that the contracting Parties intended IO open up
new ways of accessto the Court rather than to close old wavs or to allow
thein to-cancel each other out uith the ultimate result that nbjurisdiciion
would remain. In concluding the Treaty of conciliation. arbitralion and
judicial seitlement. the object of Belgium and Bulgaria was to institute a
very complete rystem of mutual obligations with a vicw to the pacific
settlcmeni of any disputes vhich might arise betwccn ihem. There is,
however. no justification for holding thai in so doing they intendcd io
weaken the obligations which they had previously entered into with a
similar purpose, and especially where such obligations were more
extensive than those ensuing from theTreaty.
It follows that if, in a particular case,a dispute couldnot be referred to
the Court under the Treaty, whereas it might be submitted to it under the
declarations of Belgium and Bulgaria accepting as compulsory the
jurisdiction of the Court .. . the Treaty cannot be adduced to prevent200 NUCLEAR TESTS
those declarations from exercising their effects and disputes from being
thus submitted to the Court 1."
180. These observations are directly in point in the present case. The issue
now before the Court is, admittedly, a diiïerent one in the sense that the
sequence of acceptance of obligations to submit to the jurisdiction of the
Court, through the two avenues of paragraph I and paragraph 2 of Article 36,
is reversed. The Court is not here concerned Io inauire whether New Zealand
and France may have intended, hy entering into treaty relations, to cut hack
the scope of their declarations-or the declaration of one of them-under the
optional clause. Rather, the issue now is the relationship between jurisdiction
conferred on the Court by an earlier treaty and by a later declaration under
the optional clause. But in this situation, the reasons for treating the two
sources of jurisdiction as separate and independent of each other are even
more compelling than they were in the Elecrricity Compartycase. The argu-
mentation on this point in the French Annex amounts, in essence, to the
assertion that a subsisting treaty relationship between two States-or at any
rate the treaty relationship established by the General Act-may be amended
by a subsequent and unacknowledged unilateral act of one of the parties to
the treatv. To state the contention in this form is to reveal its radical nature.
Its endorsement in the present case-or in any comparable case-would be in
flat contradictionof the law of treaties. It would. moreover, conflict with the
specific provision in the General Act pern~itting, within certain limits, uni-
lateral reservations to the Act. It would also open the way to the virtual
destruction of paragraph 1 of Article 36 as a source of the Court's jurisdic-
tion; for treaties conferring jurisdiction under this head could be amended,
rewritten and contradiated by a host of unilateral declarations under the
optional clause 2.
181. The French Annex also argues that:
"the practice of States in regard to declarations on the basis of Article 36
is eq;ally important for deÏermining the validity of the Act. More pre-
cisely, it is necessary to take into account the position adopted by States
as regards their reservations on the one hand to their optional declara-
tions, and on the other hand to their acceptance of the GeneralAct.
For so long as the General Act was manifestly in force, the reserva-
tionsto the Court's competence on either basiswere always similar."
It is the contention of New Zealand that it is erroneous in law to link
or in any way relate the two sources of jurisdiction. But, independently of
that proposition, do the facts support the French position? Were the commit-
ments under the two sources of jurisdiction "similar", were they "closely
interdependent", was there "a necessary coherence" in the 1930sand did the
commitments diverge-did the parallelism cease-from 1940onwards?
182. The facts, it is believed. do not square with the French position. The
limits of the commitments under the two instruments-the General Act and
Article 36(2) of the Statute-can be considered in two groups. The first com-
prises those conditions which determine the temporal validity of the com-
1 P.C.I.J.,Series AIB, No. 77p.76.
The French Annex seeksto avoid this result by drawing a distinction between
compromissoryclausesand treatiesfor the pacificsettlementof disputes. Ilis dificult,
however,to seethebasisof this distinction which, in anyevent,is in no wayreflectedin
theCourt's treatmentof thesituation befare if ithe Elecfricity Companycase,lac. cir. mitment: the period for which the undertaking is accepted and the power, if
any, to terminate it. The second concerns the limits to the area of the com-
rniiment while it is in force: the exclusion of prior disputes, of matters within
domestic jurisdiction, of matters hefore the Council of the League, etc.
183. Annex XI sets out the conditions of the first kind in declarations
accepting the compulsory jurisdiction of the Court made by the parties to the
General Act. Some of the relevant conclusions which can be drawn from that
Annex are as follows. First, inno case at all, either during the 1930sor sub-
sequently, have these conditions in the declarations of,any one party coin-
cided with the five-yearly periods of the General Act. Secondly, on only one
occasion was the General Act's scheme of automatic renewal for five years
u~ ~ ~ ~ ~ ~ ~ ~s' notice has been ~iven. adooted in a declaration made bv a
party to the Act duringthe 1930s.and even that declaration is out of phase-by
one vear with the Act's oeriods. BYcontrast. that scheme hasbeen adovted in
five de:lardtionr rinie 1947.ïhirklly. ,i\teen of ihe deilarlitisns depos;teJ hy
parties to the Genrrlll Ai! 2nd valiJ in ihc 1930srtcrs for 3 fixecl teriii only3i
the end of ihdt tiiiie ihe, e~pircd; onl) six c~iitinucrl in force after ihht iniiial
period (al1 were subjecito ~ermination on notice). The trend since the 1930s
has been to allow the declarations to continue, although not, it should of
course be added, subject in al1cases to the restrictive system of the General
Act. Fourthly, the period of commitment in the 1930s was no1 in most cases
the five years of the General Act: a large majority of the declarations were
made for ten years. It is true that sonie of these declarations were made before
the Act was drafted but about half were made in its life-time, including some
renewals. Tndeed there have been more declarations for five-yearly periods
made by parties to the Act since 1940. Finally, in a few cases, in the 1930%
parties to the Act were not bound by a declaration for a period and, in one
case, not at all.
184. An examination of the limits of the area of the commitment, while it
is in force-that is, of the reservations to the declarations and the accessions-
also shows that it cannot be said that the reservations were always similar in
the 1930s. Again a few facts can be mentioned. Thus (considering only the
oosition in relation to Chaoter II of the Act). eleven varties acceded to the
Act without any reservation;; of those only sixduring the 1930shad affixed no
reservation to theirdeclarations; and of those six, four in the 1940sstill had no
reservation to their declarations. One reservation which was quite commonly
made by parties to the General Act excluded disputes arising prior to, or
relating to situations or facts prior to, accession. Eleven parties have made
this reservation. At the end of the 1930seinht had a similar reservation in their
declaration (although with diferent effective dates), and two did not (the
remainingparty hadnot made a declaration). On the other hand, four parties
which did not attach that reservation to their accessions did subject their
declarations to it. Finally, while it is true that in some caseswhere there was a
general correlation between the two sources of jurisdiction, divergencies
occurred after 1940, in other cases these did not occur. Thus the declarations
and accessions of Australia (until 1954), of Canada (until 1970), of India
(until 1956). of New Zealand (until the present), of Switzerland (until the
present), remained generally similar, as did the declarations and accessionsof
those States parties to the General Act which between 1950and 1971 became
party to the Revised General Act.
185. An explanation has already been given 1of the significance of certain
' Paras.59to 67,above.202 NUCLEAR TESTS
of the reservations to the Act bv reference to the similar reservations to the
dcclarations.This is a reflection of the fact that the nature of the commitment
to the Court to bcgiven in a gcneral instrument for peaceful settlcment would
often bedetermined bv those resoonsible for makina that commitment after
somcconsideration of ihe existin~commitments to th; Court.
186. But although thcrc niight be in some cases this kind of general rela-
tionshio between the two sources of iurisdiction, the relationshio. it is sub-
mitted,'is completely without legal sjgnificance.~nd, as appeak from the
preceding discussion, it has never in any event existed in any precise factual
form whrch mieht be aiven some leaal recognition.
187. The fact thatcommitmen~ given-under the two instruments have
always differed in some degree for every party to the Act is consistent with the
purpose of those who prepared the General Act, a purpose which is manifest
from its provisions. As the New Zealand Agent said in the oral hearing at the
interim measures stage:
"the General Act was the result of an attempt to make more extensive,
for the parties to it. the obligations of oeaceful settlement of disputes.
~oncilia.tion and arbitration u-erî niade compulsory in certain situaiions;
the Court's jurisdiction was made compulsory; the pourer to terminatc
that ohliaation was for most States considerablv restricted: the oower to
make reservations was limited; and inother wayitheregime of the~eneral
Act was made more onerous than that of the Statute. If, then, more
extensive obligations were going to be accepted vis-A-visother States,
which were also willing to accept them, might not the parties also be
expected to append less restrictive reservations? And, in fact, some did,
and continue, as a result, to be subject, in their relations with the other
parties, to more extensive obligations than those arising under the
optional clause." PART V
ADMISSIBILITY
A. Nature of the Claim Which 1s the Subject of the Dispute and of the
Legal Rights for Which New Zealand Seeks Protection
188. The disoute between New Zealand and France is of a Iegal character.
New Zealand claims thai the atmosphcric testing of nuclear-weapons by
trancc in the South Pacifi~ is undertakcn in violation of leg~l obligations
owcd by France io New Zealand France has denicd and continues to deny
this claim.
189. New Zealand asserts that opposition to atmospheric nuclear tests-
onnosition derived from an awareness of the dangers which they Dreseot to
the life, health and security of peoples and nations everywhere an-d of their
irreversible contribution to the pollution of the human environment-has
crystallized to the point of the formation of a rule of customarv international
la; prohibiting nuÏlear tests that give rise to radioactive falloGt. Evidence of
the necessary opinio juris is tobe found, inter alia, in the Treaty Banning
Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water
of 5 Aueust 1963. in the Treatv for the Prohibition of Nuclear Weanons in
Latin ~ienca of 14 Fcbrudry (967. in theTreaty on the on-~roliferat oon
Nucledr Weanons of I July 1968.in the constantly rcitcrated decisions of the
General ~ssemhlv and other United Nations bodies. in the standards oro-
claimed by responsible international scientific agenciés,such as the ~iited
Nations Scientific Committee on the Effects of Atomic Radiat!on and the
International Commission on Radioloeical Protection. in resolution3 (1) on
~uclear ~eapons ~ests~adopted b; the stockholm conference on'the
Environment and in the Declaration on the Environment adopted by the
same Conference, in protests at the continuance of atmospheric nuclear
testing, whether made bilaterally or through regional meetings, and in the
views expressed by learned writers 1.
190. In the Application instituting proceedings (para. 28) and again in the
Request by New Zealand for Interim Measures of Protection (para. 2) New
Zealand characterized the illegality of the nuclear testing undertaken by
France by reference, inter alia, to its violation of five different categories of
legal rights. These were enumerated in both documents as follows:
(a) the rights of al1members of the international community, including New
Zealand, that no nuclear tests that give rise to radioactive falloutbe
conducted;
.6, the riehts of al1members of the international communitv. includina New
Zealand, to the preservation from unjustified artificial-iadioactivë con-
tamination of the terrestrial, maritime and aerial environment and, in
particular, of the environment of the region in which the tests are con-
ducted and in which New Zealand, the Cook Islands, Niue and the
Tokelau Islands aresituated;
1Much of the relevantmaterialexcep bilateral protests made by countriesother
than NewZealandiscollectedin Annexes 1to VI of the Requestby NewZealandfor
InterimMeasuresofProtection. 204 NUCLEAR TESTS
(c) the right of New Zealand that no radioactive material enter the territory
of New Zealand, the Cook Islands, Niue or the Tokelau Islands, in-
cluding their air space and territorial waters, as aresult of nuclear testing;
(di the right of New Zealand that no radioactive material, having entered
the territory of New Zealand, the Cook Islands, Niue or the Tokelau
Islands, including their air space and territorial waters, as a result of
nuclear testing, cause harm, including apprehension, anxiety and
concern, to the people and Government of New Zealand and of the
Cook Islands, Niue and the Tokelau Islands;
(el the riaht of New Zealand to freedom of the high seas. including freedom
of naGigation and overflight and the freedomfo explore and exploit the
resources of the sea and the seabed, without interference or detriment
resulting from nuclear testing
191. The rights asserted under heads (a) and (b) fall into a different
category from those under heads (c), (d)and (el.The rights listed under (a)
and (b) are shared in the sense that their violation in relation to any one
nation will necessarily involve a violation of the same rights vested in other
members of the international communitv. The degree of attention which
individual countries arc prepared to give tbthe prote;tion of ihe\e rights and
the degree of dnxiety displîyed in the event of their violation may, and ob-
viouslv does. varv. Yet the rights are the same for all. Thev reflect a com-
munit; interrst in.thc of the >ecurity, Iifeand healih of al1peoples
and in the preservatioii of the global environment. The righis are held in
common and the corresvonding obligation irnvosed on France (and on anv
other nuclear power) is owed iiequaÏrneasure-to New Zealand and to ever;
other member of the international community. It is an obligation erga
omnes.
192. The rights in (c), (d) and (e) are not shared in that sense. New
Zealand is not, of course, the sole possessor of the right, which derives from
its sovereignty, to control the level of radioactivity in its territory, territorial
waters and air space or of the right not to have harm caused to it and its
people as a result of the entry into those areas of radioactive dehris from
nuclear testinn. Nor. obviously. is New Zealand the onlv nation whose
citizens are entitled to exercise bell-established freedoms of the high seas.
Yet it cannot be said that the nuclear testing which France has undertaken in
the past, and may undertake in the future, will necessarily involve the viola-
tion of the same rights possessed by al1other countries. So far as the heads
(c) and (d) are concerned, whether French nuclear testing inthe atmosphere
will involve a violation of the rights of any particular country, is largely a
function of ils geographical location. If radioactive debris from French testing
does not enter the territory, territorial waters or air space of a particular
country (or at any rate cannot be detected) its rirhts under heads (ci and (dl
will no-tbe affectid hy what has occurred at ~uriroa. The geographical situa-
tion of New Zealand (and of the Cook Islands, Niue and the Tokelau Islands),
like that of a numher of other countries and territories in the South Pacific
region, is such that the atmospheric explosion of a nuclear device of more
than the minimum size is certain to involve a violation of its sovereign rights
and the explosion of virtually any nuclear device in the atmosphere is very
likely indeed to have the same result.
193. So far as concerns the rights set forth under head(el,theactions taken
by France to enable it to carry out atmospheric nuclear tests at Mururoa
involve threats to the rights of al1to exercise the freedorns of the high seas. Whether or not the French action will involve a violation of the high seas
rights of any particular country will depend on whether or not its citizens
have occasion to attempt to exercise high seas freedoms in the vicinity of
Mururoa. As noted in oarairraoh 205 below. New Zealand citizens have
attempted to exercise these frëedoms in that area and th& right to do so has
been forcibly denied to them by the French authorities.
B. International Lawand the Concept of Legal lnterest
194. It is generally accepted ' that it is a requirement of iniernational
adjudication that a claimant State must establish not only the existence of a
dispute but also that it has alegal interest in that dispute. As the International
Court has recoenized. however. the notion of leeal interest or locu~ ~fundi
does not have a-fixed Content. 1" the Northern ~ukeroons case, having made
the point that at certain times the arguments of the parties had been at cross
purgoses because of the absence ofa common meaning attributed to such
terms as "interest" and "admissibility", the Court went on to Say:
"The Court recognizes that these words in differing contexts may have
varying connotations but it does not find it necessary in the present case
to explore the meaning of these terms. For the purposes of the present
case, a factual analysis undertaken in the light of certain guiding prin-
ciples may suffice to conduce to the resolution of the issues to which the
Court directs its attention 2."
195. If the content of the notion of "Ieaal interest" varies from case to
case, it has also been enlarged with the devilopment of substantive rules of
international law. International law has never been concerned exclusivelywith
the orotection of the material interests. narrowlv defined. of individual States.
II has long beîn a~.knowledgcdthat tat t meay have a iegitimate-and legal-
intere3tin matters which cannot readily be related io their financial. economic
or other tangible interests 3. And, inan increasingly interdependent world,
there has been an accelerating shift in the emphasis of substantive rules of
international law away from the protection of rights of individual States
towards the protection of the general welfare, of community interests shared
by all.
196. The development of substantive rules of law for the protection of the
eeneral welfare has been accomoanied bv a recoirnition of the interests of
individual St~s in thejudicidl e"forccmént of those rules. Had this parallel
deielopnient not <n.~.urred.ihere uould have been an increasingly large body
of international law rules iackina anv means of judicial orotection. In this
respect, the protection of internaÏional communii; intercsk dinèrs markedly
lrom the proiection of the public inierest in many municipal Iaw systems. The
point has been made forcefully by De Visscher:
"L'exigence d'un interêtpersonnel est assurement la regle dans le droit
iudiciaire interne de laolu~art des oavs en dkait d'orientations contraires
qui se font de plus en plus'nombre;s~s. action en justice y a pour objet
d'assurer la sanction de droits dont une personne se prktend titulaire;
But not universally:seeJudge Morelli'sobservationsin the Northern Comcroons
case,I.C.J. Reports 1963. p.132.
2 I.C.J. Reports 1963p.28.
J For an early illustrationof this in thejurisprudenceof the PermanentCourt. see
S.S. "Wimbledon",P.C.I.J., Series A, No. 1, pp. 20and 33.206 NUCLEAR TESTS
en principe, son fondement est subjectif et non objectif. Au sein de l'Etat,
c'est aux autorités constituées qu'est réservéeen principe l'action dite
publique dans l'intérêd tu respect de la lbgalité.
Dans les rapports internationaux où cette fonction est encore large-
ment déficienteon ne peut àpriori refuser aux Etats individuellement tout
titre quelconque à défendreen justice certains intérêtsgénbrauxqui, par
définition, dépassentleurs intérêts directset personnels 1."
The same point has been made by Abi-Saab:
"Dans certains systémesjuridiques de structures simples, tels le droit
romain archaïque et le droit musulman, et en l'absence d'organes cen-
traux pouvant reprbsenter en justice les intérêtsde la sociétb, c'estaux
membres mêmesde cette sociétéqu'est dévoluecette tache (actio popu-
Iaris, da'awa 01 Hisba). Le droit international se trouve à ce mêmestade
d'évolution de son organisation. Et aussi longtemps que les organes
collectifs internationaux n'ont pas accés, en matibre contentieuse. à la
justice internationale, la
de reprksenter en justice les inter& de
la sociétéinternationale, demeure reservke aux Etats agissant individuel-
lement 2."
197. Otber writers 3 have referred to an imoortant oublic oolicv element in
the recognition by international law of an individuil right of protection of
rulcs protecting community intercsts. A ndrrow construction of the notion of
leaal interest in these cases will tend to run counter to the obiective of the
~nited Nations Charter of securing the settlement of disputes by pacific
means; a generous interpretation of the requirement of legal interest will help
to permit the settlement of disputes before they deteriorate and serious&
disturb friendly relations among States.
198. The landmarks in the development of the recognition of the right of
States to bring issues before international tribunals in the general interest and
without the need to establish direct injury to interests vested in them alone,
have been located with authority in the separate and dissenting opinions of
Judge Jessup in the South West Africa cases 4.These two opinions reveal that
there is an imposing body of precedent which establishes a legal interest in
the general welfare in fields as diverse as slavery, minorities, dependent
peoples, labour, genocide, racial discrimination and human rights in general 5.
1 C. De Visscher, Aspects récentsdu droit procéduralde la Cour internotionolede
Justice (1966)pp. 70 and 71.
2 G. Abi-Saab, Les exceprionspréliminairesdans laprocédurede la Courinternatin-
nole(1967).pp. 142and 143.
3 For exampleC. W. Jenks, Theprospectsof InlernationalAdjudieario(1964),p. 524.
South West Africa, Preliminnry Objections,I.C.J. Reports 1962,pp. 425-433and
South West Africa, SecondPhore, I.C.J. Reports 1966,pp. 373-388.
5A more recent illustration of treaty law recognizingthat individual States not
dimtly affectedhave an interestin the enforcementof rulesfor the protectionof the
internationalcommunityasawhole-and indeeda dutytoassis1intheirenforcement-
is tobefound in the Hague Conventionfor the Suppressionof UnlawfulScizureof
Aircraft and the Montreal Conventionfor the Suppressionof Unlawful Actsagainst
the Safetyof CivilAviation.Seealsointhe samesensethe draft articleson the preven-
tion and punishment of crimesagainst diplomaticagents and other internationally
protected penons prepared by the International Law Commissionand contained in
Chapter IIIof the Commission'sReport on the work of its twenty-fourth session:
United Nations, Cenerol AssernblyOfiial Records, 27th Session, SupplementNo. 10
(A187101Rev 1). Following his survey of these precedents in the second of these two opinions
Judge Jessup stated his general conclusion in the following terms:
"1agree that there is no generally establishedactiopopularis in interna-
tional law. But international law has accepted arid established situations
in which States are given a right of action without any showing of
individual prejudice or individual substantive interest as distinguished
from the general interest 1."
199. Guidance as to what these situations are is to be found in the most
recent pronouncement by the Court on the subject of legal interest in ils
judgment in the case concerning the Borcelona Traction, Light and Power
Company, Limited2. ln ihat case theCourt was required to consider the right
of Belaium to exercise diolomalic orotection of shareholders of Beleian
nationàlity in a Company incorporatéd in Canada. In the course of ils con-
sideration of this question, the Court characterized the different kinds of
international law obligation which may be incumbent on Statesas follows:
"... anessentialdistinctionshould be drawn between the obligations of a
State towards the international community as a whole, and those arising
vis-à-vis another State in the field of diplomatic protection. By their very
nature the formerare the concern of al1States. In view of the importance
of the rights involved, al1 States can be held to have a legal interest in
their protection; they are obligations erga omnes.
Such obliaations derive. for exam~le, in contemoorary international
law, from the outlauing of act? of aggress~on. and of genocide, a? also
from the principles and rules concerning the basic rights of the human
Denon. including orotection from slavery and racial discrimination.
~ome of the coriesponding rights of proÏeclion haie entered into the
body of general international law (Xereriotions to the Conventionon the
Preventionund Punirhmentof the Crime of Genocide.Advirory O~inion.
I.C.J. Reports 1951. p. 23); others are conferred by international instru-
ments of a universal or quasi-universal character.
Obligations the oerformance of which is the subject of di~lomatic
protection are not O-fthe same category. It cannot be held, when one such
obligation in particular is in question, in a specific case, that al1States
have a legal interest in ils observance3."
200. A number of features of this oassane invite attention. First. it clearlv
does not purport to state exhaustively alifhose areas of international la&
which give rise to obligations owed to the international community as a
whole and in resocct of which al1States have a leaal interest in the orotection
of the rights iniolved. The areas of law mentiincd-aggression,~genocide,
fundamental human rights, including freedom (rom slabery and racial discri-
mination, are illustrative only. Secondly, it is acknowledged. with specific
rcference to genocide 4that customary law as well as treaty law may give rise
1 I.C.J. Reports1966,pp.387 and 388
I.C.J. Reports1970,P.3.
3 Ibid.p. 32.
4The referenceto the Court'sAdvisoryOpinionon RerervarionIrothe Convention
on ihrPrnrmiionMdPunuhmentoftheCrimeofGenocide ispresumablytothefollowing
pas%ge onthe pageOrcd: "ln suîh aconvcnttonthecontractingStatesdonot haveany
inttratr of thcir om; theymly have,one and all, a commonintcrcst.namclythe
aowmplishnml of those hi& purposes whicharc the rotsond'ttrrof theconvention.208 NUCLEAR TESTS
to obligations erga omnes and to the corresponding rights of protection.
Thirdly, it may be significant that theexamples given of fields of law involving
ohlieations owed tothe whole of the international communitv have a certain
fundamental character. The elaboration of these ohligation~has been given
substantial attention by the organized international community: their viola-
tion can fairly be said <Obe an affront to the conscience of mankind.
201. In the course of ils Judgment, in which il decided that the Belgian
Government lacked standing to exercise a right of protection on behalf of ils
nationals who were shareholders in Barcelona Traction, the Court drew
attention to the fact that the Company had another avenue of protection open
toit:
"ln the present case, it is clear from what has heen said ahove that
Barcelona Traction was never reduced Io a position of im~otence such
that it could not have approached ifs national State, canada, to ask for
ils diplomatic protection, and that, as br as appeared to the Court, there
was nothing to prevent Canada from continuing to grant its diplomatic
protection to Barcelona Traction if it had considered that it should do
SO l."
202 Judge Lachs, in a declaralion dgreeing uith the reawning dnd conclu-
\ion, of the Court's Judgnient. added the following statement on thc urne
point:
"The Court has round. in the liaht of the relevant elements of law and
of fact, that the Applicant, the ~ëlgian Government, has no capacity in
the present case. At the same lime it has stated that the Canadian
Government's riaht-of ~rotection in resDect of the Barcelona Traction
company has rcniained undTc;tcrl by thc proieedings nou closed.
I ion\ider thlit the chlstence of thi, right is an e,,ential premisc uf the
Court's reasoning, and that ils importance is emphasized by the serious-
ness of the claim and the particular nature of the unlawful acts with
which ilchargescertain authorities of the respondent Statez."
C. New Zealand's Legal lnterest
203. Paragraphs 188 10 193 above drew attention to the two diiierent
categories of rights for which New Zealand seeks protection. With regard to
the second category of rights under heads (c), (dl and (e), New Zealand's
Consequently.in a convention of this tyDeone cannot sr>eakof individualadvantages
or disadvaniagesto States, or of the maintenanceof a perfect contractual balance
betueen rights and dulies. The high idealswhichinspired the Conventionprovide, by
virtue of the comma" will of the parties, the foundation and measure of al1ils pro-
visions.''
Seealso thefollowingpassageinthejoint dissentofJidges Guerrero, McNair, Read
and Hsu Mo: "lt is an undeniable factthat the tendencyof al1international activities
in recent times has been towards the promotion of the common welfareof the inter-
national community witha corresponding restrictionof the sovereignpower of indi-
vidual States. So, when a common effort is made Io pramote a great humanitarian
object, as in the case of the Genocide Convention, every interested State naturally
expects every other interested State no1 Io seek any individualadvantage or conve-
nience. but Io carry out the measures resolved upon by common accord." (I.C.J.
Reports 1951, p.46.)
1 I.C.J.Reports 1970,p. 50.
2Ibid.,pp. 52-53.210 NUCLEAR TESTS
national community is directly applicable to the protection of the right to
inherit a world in which nuclear testing in the atmosphere does not take place
and of the right to the preservation of the environment from unjustified
artificial radioactivecontamination. As already noted, these rights for which
New Zealand seeks protection reflect community interests and they are
shared. The obligation not to undertake nuclear testing which aives rise to
radioactive ~alloÜt-like the obligatioiis stemminp froni the o~tlîuing of
îggression and genocide snd from the la\\, rclsttnp t<ithe pr<>tcctionof humm
rights-is owed to the international community as a whole. In the words used
by the Court, "al1 States have a legal interest in its observance".
208. The point has already been made that jhe examples of obligations
erga omnes given by the Court in this passage al1have a certain fundamental
character. To the extent that it may be thought that it is a condition of the
existence of a legal interest in the protection of rights corresponding ta an
obligation erpa omnes. that condition is am~ly fulfilled in the oresent case.
2O9. ~eca;se the first goal of the cnited u ai ion charter-is the prererva-
lion of international peîce and security. dinarnianient and arms contrul ha\e
been debated at length at every working session of the General Assembly
since the inception of the United Nations Organization. Over the last 15
years a major portion of that annual debatehas been devoted to the question
of nuclear weauons testina with s~ecial emohasis vlaced on the testinr in the
üiniosphere thit gives rire-to rîdioacti\e r~llout. ~he ternis of ihe res~lution~
on th~stopic adopted by the General Asiembly each year leave no rooni for
doubt about the vital imuortance attached Io it bv the membershi~ of the
United Nations 1. These ;esolutions are also eloqient testimony ai ta the
reasons underlying the deepening concern about atmospheric nuclear testing.
Over the vears the av~eals and demands for an end to this activitv have
become more urgent.but the attitudes revealed have been remarkabiy con-
sistent: testing in the atmosphere is a hazard ta the health of present and
future generations: testing in any environment is a danger to mankind-a
threat 6 peace and securi6 every&here and, ultimately, to-man's survival.
210. The concern of the organized international community with the
preservation of the global environment has more recent origins. Yet here too
it is plain enough that the problems which are being tackled by a variety of
means, including the proclamation of norms and standards. are both of
concern Io the whole of the international community and of fundamental
importance. The Declaration on the Environment adopted by the Stockholm
Conference 2 states this explicitly. Paragraph 6 of the Declaration states at the
end:
"To defend and improve the human environment for present and
future generations has become an im~erative goal for mankind-a goal
to be pursued together with, and in harmonywith, the establishedand
fundamental goals of peace and of world-wide economic and social
development."
Paragraph 7 of the Declaration, which immediately precedes the principles set
forth in Part II, concludes with the following words:
1 . ... . ... .-;are collected in Annex II to the Request by New Zealand for
lnterim Measuresof Protection.
The full text of the Declaration on the Environment is contained in Annex VI
to the Request by New Zealand for Interim Measuresof Protection. "A growing class of environmental problems, becausethey are regional
or global in extent or becausethey affect the cornmon international realm,
will require extensive co-operation among nations and action by interna-
tional ornanizations in the common interest. The Conference calls uoon
ûovern&nts and pcoples to exert common efforts for the preservaiion
and imorovement of the human environment. for the benefii of al1 the
people and for their posterity."
211. On the basis of the doctrine stated by the Court in the Barcelona
Traction case every member of the international community must have a
legal interest in the community rights which New Zealand haî invoked and
which the present proceedings seek to protect. That alone would be sufficient
to give New Zealand standing to take legal action to protect those rights.
Additionally, however. New Zealand is specially affected by the violation of
those rights and ils legal interest in their protection is correspondingly
strengthened.
212. The atmosoheric testine of nuclear weaoons inevitablv arouses the
keenest senseof aiarm and antzponism among the peoples and govcrnments
of the region in uhich the tests are carricd out. It is the couniries of the region
which are subjected to uninvited increases in levels of radioactivity which are
no1 to their benefit; and they are the most direct witnesses of the fact that
preparations for nuclear war are being undertaken. A specifically regional
concern was manifested in the late 1950s and earlv 1960s when France was
planning and ihen conducting ntmospheric nuciear tests in the Sahara.
Exsctly ihe same kind of regionnl disquict hns becn occasioned by French
testing inthc South Pacific. The Governnients of the countries and territories
of the South Pacific. in bilaieral protests and at regional meetings. have
renestedly remindcd France of the dangers to u,hich ihcy are exposed by the
nuclear testin- al Mururoa and of the anxieties which this activitv eeneratesin
their peoples 1. In both cases. the Sahara and the South ~acifiC,the United
Nations has recognized that a portion of its membership hasspecial reasonsto
be concerned about atmospheric nuclear testing and a special interest in
having it halted 2.
213. The countries and territories of the South Pacific region have been at
one in oooosina the nuclear testina undertaken at Mururoa. Within the reaion
New zeaiand cas been one of themain spokesmen on this issue. Its prominent
role has resulfed in part from New Zealand's geograpliical location. In part,
too. it has stemmed from the resoonsibilities which New Zealand has in
relation to the non-self-governini territoriesof Niue and the Tokelau
Islands, to the associafed State of the Cook Islands-French Polynesia's
nearest neighbour-and. by treaty, to the independent State of Western
Samoa. From the inception of its diplomatic correspondence with France on
the French progranime of testing in the South Pacific, the Government of
New Zealand has stressed that its concern is not confined tu considerations
' Thc dcvclopnlcnt of the regionalcon'em with Frenchtestingin the South Pactfic
istracedin paragraphs15-27of the Req~esth) h'ew7raland for Interim Measurcsof
hoiection and in the Altome,-Ccneral's staiemeni on 24 hlay 1973In tne courre of
theoral orocoedins on that RequestSee alsothe textsof regionalstatementswllected
in~nnex IV lu theRequest.
a SeeGeneral Assemblyresolutions 1379(XIV) of 20 November 1959and 2934A
(XXVln of 29 Novernber 1972.Both resolutions are containcd in Annex II ta the
Rcquut by New Zealandfor Inlerim Measuresof Protection.212 NUCLEAR TESTS
directly aKecting the inhabitants of New Zealand ilself. That correspondence 1
constitutes an unbroken record of protest-made on behalf of New Zealand
itself and on behalf of the other countries and territories for which it has
res~onsibilities-which dates back more than a decade Io the lime when
~rench intentions firsl became known. No country has more consistently and
clearly expressed opposition to French nuclear testing in the South Pacific.
No country has a %onger claim to a le~al interest in the Drotection of the
righi to inhabit a uorldfree from nucle; te3ting in the atmosphers and the
riphi to the preservation of the environnient from ~njustificd artiiicial radio-
active contamination. A decision that the Government of New Zealand lacked
a sufficien1 legal anteres1to make its Application 3dmissible would amount to
a finding that the law rclating to atmospheric nuclear testing is devoid of any
means of judicial protection.
1 The corrcspondenceis setout in Annex II to the Application lnstituting Pro-
ceedings. PART VI
SUBMISSIONS OF THE GOVERNMENT OF NEW ZEALAND
A. Summary of Contentions Put Forward in this Memorial
214. The Government of New Zealand contends that the considerations
of fact and law set out in the foregoing sections of this Mernorial establish
that-
(a) the General Act for the Pacific Settlement of International Disputes of
26 September 1928 is a treaty or convention in force between New Zea-
land and France. for the purposes of Articles 36 (1) and 37 of the
Statute of the Court, and the dispute referred to the Court in the Applica-
tion filed by New Zealand falls within the scope of Article 17of the Act;
(6) the dispute referred to the Court falls within the scope of Article 36 (2)
and (5) of the Statute of the Court;
(c) these two sources ofjurisdiction are independent of each other;and
(d) New Zealand has a legal interest in respect of the dispute entitling the
Court to admit the Application, and in al1other respects the Application
is admissible.
B. Submissionsof the Governmentof NewZealand
215. Accordingly. the Government of New Zealand submits to the Court
that itisentitled to a declaration and judgment that-
(a) the Court has jurisdiction to entertain the Application filed by New
Zealand and to deal with the rneritsofthe dispute; and
(b) the Application is admissible.
29 October 1973,
(Signed) R. Q. QUENTIN-BAXTER,
Agenr of rhe Governmentof New Zealand. NUCLEAR TESTS
ANNEXES TO THE MEMORlAL
Annex1
GENERAL ACT FOR THE PACIFICSETTLEMEN OF ~NTERNAT~ONAL DISPUTES
(GENEVAS ,EPTEMBE2R 6 1928)
CHAPTER 1
CONCILIATION
Article 1
Disputes of every kind between two or more Parties to the present General
Act which it has not been possible to settle by diplomacy shall,subject to
such reservations as may be made under Article 39, be submitted, under the
conditions laid down in the present Chapter. to the procedure of conciliation.
Article2
The disputes referred to in the preceding article shall be submitted ta
permanent or special Conciliation Commission constituted by the parties to
the dispute.
Article 3
On a request to that effect being made by one of the Contracting Parttos
another Party, a permanent Conciliation Commission shall be constituted
within a period of six months.
Article 4
Unless the parties concerned agree otherwise, the Conciliation Commission
shall be constituted as follows:
(1) The Commission shall be composed of five members. The parties
shall each nominate one commissioner, who may be chosen from among
their respective nationals. The three otber commissioners shall bep-
pointed by agreement from among the nationals of third Powers. These
three commissioners must be of different nationalitiand must not be
habitually resident in the territory nor be in the service of the parties.
The parties shall appoint the President of the Commission from among
them.
(2) The commissioners shall be appointed for three years. They shall
be re-eligible. The commissioners appointed jointly may be replaced
during the course of their mandate by agreement between the parties.
EitberParty may, however, at any time replace a commissioner whom it
has appointed. Even if revlaced. the commissioners shall continue to
exercire thcir luncrions until the termination ulthe work in hand.
(3) Vacanc~es.rihich may occur as a result of death. rcsignation or 3n)
othcr cause shall be fillcd within the shortest ~ossible time in the manner
fixed for the nominations. Article 5
If, when a dispute arises. no permanent Conciliation Commission appoint-
ed by the parties is in existence, a special commission shall be constitutcd for
the examination of the di~pute u,ithin a period ofthrce months from the date
at which a reauest to that effect is made bv one of the oarties 10 the other
pdrty. The necksrary appointiiients \hall be niade in the manner laid duun in
the prccedingarticle. unless the parties decide i>thçr.rrise.
Article 6
1. If the appointment of the commissioners to be designated jointly is no1
made within the periods provided for in Articles 3and 5, the making of the
necessary appointments shall be entrusted to a third Power, chosen by agree-
ment between the parties. or on request of the parties. to the Acting President
of the Council of the League of Nations.
2. If no agreement is reached on either of these procedures, each party
shall designate a different Power, and the appointment shall be made in
concert by the Powers thus chosen.
3. If,within a period of three months, the two Powers have been unable to
reach an agreement, each of them shall submit a number of candidatesequal
to the number of members 10 be appointed. It shall then be decided by lot
which of the candidates thus designated shall be appointed.
Article 7
1. Disputes shall be brought before the Conciliation Commission by
means of an application addressed to the President by the two parties acting
in agreement. or in default thereof by one or other of the oarties.
2.-~he application, after giving summary account o.€the subject of the
dispute, shall contain the invitation 10 the Commission to take al1 necessary
measures with a view to arrivina at an amicable solution.
3 If the application en~anat~sfrom only one of the parties. the other party
shall. uithout delay. be notified b) 11
Article 8
1. Within fifteen days from the date on which a disoute has been brought
b) one of the partiesbefore a permanent Conciliation Commi\sion, cither
part) niay replace itsoirn commissioner. for the examination of the pdrticular
dispute, by a person possessingspecial competence in the matter.
2. The party making use of this right shall immediately notify the other
party; the latter shall, in such case, be entitled to take similar action within
fifteen days from the date on which it received the notification.
Article 9
1. In the absence of agreement to the contrary between the parties, the
Conciliation Commission shall meet at the seat of the League of Nations, or
at some other place selected by its President.
2. The Cornininsion may in a11circumytances request the Secretary-General
of the League of Nations to aford it his assistance
. - Article 10
The work of the Conciliation Commission shall no1 be conducted in public
unless a dicision to that effect is taken by the Commission with the consent of
the parties. 216 NUCLEAR TESTS
Article II
1. In the absence of agreement to the contrary between the parties, the Con-
ciliation Commission shall lay down its own procedure, which in any case
must provide for both parties being heard. In regard to enquiries, the Com-
mission, unless itdecides unanimously to the contrary, shall act in accordance
with the provisions of Part III of the Hague Convention of Octoher 18, 1907,
for thePacific Settlement of International Disputes.
2. The parties shall he represented hefore the Conciliation Commission by
agents, whose duty shall he to act as intermediaries between them and the
Commission; they may, moreover, he assisted by counsel and experts ap-
pointed hy them for that purpose and may request that al1 persons whose
evidence appears to them desirable shall he heard.
3. The Commission, for ils part, shall be entitled to request oral explana-
tions from the agents. counsel and experts of both parties, as well as from al1
persons it may think desirahle to summon with the consent of their Govern-
ments.
Article 12
In the absence of agreement to the contrary hetween the parties. the deci-
sions of the Conciliation Commission shall be taken by a majorityvote, and
the Commission may only take decisions on the substance of the dispute if al1
its members are present.
.. Article 13
The parties undertake to facilitate the work of the Conciliation Commis-
sion, and particularly to supply it to the greatest possible extent with al1
relevant documents and information, as well as to use the means at their
disposal to allow it to proceed in their territory, and in accordance with their
law, to the summoning and hearing of witnesses or experts and to visit the
localities in question.
Article 14
1. During the proceedings of the Commission, each of the commissioners
shall receive emoluments the amount of which shall be fixed hy agreement
between the parties,each of which shall contributean equal share.
2. The general expenses arising out of the wnrking of the Commission
shall be divided in thesame manner.
Article 15
1. The task of the Conciliation Commission shall be to elucidate the
questions in dispute, to collect with that ohject al1necessary information by
means of enquiry or otherwise, and to endeavour to bring the parties to an
agreement. It may, after the case has been examined, inform the parties of the
terms of settlement which seem suitahle to if, and lay down the period within
which they are to make their decision.
2. At the close of proceedings the Commission shall draw up a procks-
verbal stating, as the case may be, either that the parties have come to, an
agreement and, if need arises, the terms of the agreement, or that it has been
impossible to effect a settlement. No mention shall be made in the procès-
verbal of whether the Commission's decisions were taken unanimously or by a
majority vote. 3. The proceedings of the Commission must, unless the parties otherwise
agree, be terminated within six months from the date on which the Commis-
sion shall have been given cognisance of the dispute.
Article 16
The Commission's procès-verbal shall be communicated uithout delay to
the parties.The parties shall decide nhether it shall be published.
CHAPTER II
JUDlClAL SETTLEMENT
Article 17
All disputes with regard to which the parties are in conflict as to their
respective rights shall. subject to any reservations which may be made under
Article 39, be submitted for decision to the Permanent Court of International
Justice, unless the parties agree, in the manner hereinafter provided, to have
resort to an arbitral tribunal.
It is understood that the disputes referred to above include in particular
those mentioned in Article 36 of the Statute of the Permanent Court of
International Justice.
Article 18
If the parties agree Io submit the disputes mentioned in the preceding
artic~ ~~o~an arbitral tribunal. thev shall draw uo a soecial agreement in which
they shall specify the subjeci of the dispute, thé arbitratorrselected, and the
~rocedure to be followed. In the absenceof sufficient particulars in the s~ecial
agreement, the provisions of the Hague convention of October 18th,-1907,
for the Pacific Settlement of lnternational Disputes shall apply so far as is
necessary. If nothing is laid down in the special agreement as to the rules
r~-ar-~~~ the substance of the disoute to be followed bv the arbitrators. the
tribunal;hall apply the substantive rules enumerated-in Article 380f the
Statute of the Permanent Court of International Justice.
Article 19
If the parties fail 10 agree concerning the special agreement referred to in
the preceding article, or fail to appoint arbitrators, either party shall be at
liberty, after giving three months' notice, to bring the dispute by an applica-
tion direct before the Permanent Court of International Justice.
Arricle 20
1. Notwithstanding the provisions of Article 1,disputes of the kind referred
to in Article 17 arising between parties who have acceded to the obligations
contained in the present chapter shall only be subject to the procedure of
conciliation if the parties so agree.
2. The obligation to resort to the procedure of conciliation remains appli-
cable to disputes which are excluded from judicial settlement only by the
operation of reservations under the provisions of Article 39.218 NUCLEAR TESTS
3. In the event of recourse to and failure of conciliation, neither party may
brine the disoute before the Permanent Court of International Justice or cal1
for the constiiution of the arbitral tribunal referred to in Article 18before the
expiration of one month from the termination of the proceedings of the Con-
ciliation Commission
CHAPTERIII
ARBITRATION
Article 21
Any dispute not of the kind referred to in Article 17which does not, within
the month following the termination of the work of the Conciliation Com-
mission orovided for in Cha~ter 1.form the obiect of an anreement between
the shall. subject to such ieservations ai may be made under Article
39. be brought before an arbitral tribunal which, unless the parties otherwise
agree, shall be constituted in the manner set out below
Article 22
The Arbitral Tribunal shall consist of five members. The parties shall each
nominate one member, who may be chosen from among their respective
nationals. The two other arbitrators and the Chairman shall be chosen by
common agreement from among the nationals of third Powers. They must be
of different nationalities and must not be habitually resident in the territory
nor be in the service of the parties.
Article 23
1. Ifthe appointment of the members of the Arbitral Tribunal is not made
within a period of three months from the date on which one of the parties
requested the other party to constitute an arbitral tribunal. a third Power,
chosen by agreement between the parties, shall be requested to make the
~ ~ ~ ~ ~ ~ ~ointments.
~d~ ~ - 7
2. If no agreement is reached on this point, each party shall designate a
different Power. and the a~pointments shall be made in concert by the Powen
~ ~~~~~
3. If, within a period of three months, the two Powers so chosen have been
unable to reach an agreement, the necessary appointments shall be made by
the President of the Permanent Court of International Justice. If the latter is
prevented from acting or is a subject of one of the parties, the nominations
shall be made by the Vice-President. If the latter is prevented from acting or is
a subject of one of the parties, the appointments shall be made by the oldest
member of the Court who is nota subject of either party.
Article 24
Vacancies which may occur as a result of death, resignation or any other
cause shall be filled within the shortest possible time in the manner fixed for
the nominations.
Article 25
The parties shall drau up a special agreement determining the subject of the
dxsputesand the deiails of procedure. Arricle 26
In the absence of sufficient particulars in the special agreement regarding
the matters referred to in the preceding article, the provisions of the Hague
Convention of October Igth, 1907,for the Pacific Settlement of International
Disputes shall apply so far as is necessary.
Article 27
Failing the conclusion of a special agreement within a period of three
months from the date on which the Tribunal was constituted,the dispute may
be brought hefore the Tribunal by an application by one or other party.
Article 28
If nothing ir laid downin the rpeci31agreement or no special agreenient ha5
been ma&, the Tribunal >hallïpply the rulej in regard to the bubstanie of the
disoute entirneratcd in Article 38 of the Statute of the Prrnianent Court of
niern natio Jnstice. In so far as there exists no such rule applicable to the
dispute, the Tribunal shall decideex aequoet bono.
CHAPTER IV
GENERAL PROVISIONS
Article 29
1. Disputes for the settlement of which a special procedure is laid down in
other conventions in force between the oarties ta the dispute shall be settled in
conformity with the provisions of thoséconventions.
2. The present General Act shall not affectanyagreements in force hy which
conciliation orocedure is established between the Parties or they are bound by
obligations io resort to arbitration or judicial settlement which ensure the
settlement of the dispute. If, however, these agreements provide only for a
procedure of conciliation, after such procedure has been followed without
result, the provisions of the present General Act concerning judicial settle-
ment or arbitration shall be applied in so far as the parties have acceded
tbereto.
Article 30
If a party brings before a Conciliation Commission a dispute which the
other pany, relying on conventions in force hetween the parties, has sub-
mitted to the Permanent Court of International Justice or an Arbitral Tribu-
nal, the Commission shall defer consideration of the dispute until the Court
or the Arbitral Tribunal has prounounced upon the conflict of competence.
The same rule shall apply if the Court or the Tribunal is seized of the case by
one of the parties during the conciliation proceedings.
Article 31
1. In the case of a dispute the occasion of which, according ta the munici-
oal law of one of the barties. falls within the comoetence of its judicial or
administrative authorices, the party in question miy object ta thématter in
dispute being submitted for settlement hy the different methods laid down in
the oresent General Act until a decision with final effect has been uronounced.
within areasonable time, by the competent authority.220 NUCLEAR TESTS
2. In such a case, the party which desires to resort to the orocedures laid
down in the present General Act must notify the other party of its intention
within a period of one year from the date of the aforementioned decision.
Article 32
If, in ajudicial sentence or arbitral award, it is declared that a judgment, or
a measure enjoined by a court of law or other authority of one of the parties
to the dispu&, 1suholly or in part contrary to international Iau, and if the
conrtitutional law of that party does not permit or only partially permitr the
conseauences of the iudament or measure in auestion to be annulled. the
partie;agrce that thejudicial sentence or arbitral'au,ard shall yrant the injured
party cquitable satisfaction.
Article 33
1. In îIIcases where a dispute forms the object of arbitrntionor judicial
proceedings, and particularly if the question on which the parties diiïer arises
out of acts already committed or on the noint of beinn committed, the
Permanent Court of Intcrnationdl Justice, afttng in accord3nce wtth Article
41 of itsStatute. or the Arbitral Tribunal, \hall lay doun within the shortesi
uossible lime the ~rovisional measures to be adooted.-The parties to the
dispute shall be hound to accept such measures.
2. If the dispute is hrought before a Conciliation Commission, the latter
may recommend to the parties the adoption of such provisional measures as
it considers suitable.
3. The parties undertake to abstain from al1 measures likely to react
ureiudicially upon the execution of the iudicial or arbitral decision or mon
lhc-arrangenients proposed by the ~onc~ltation Commission and, in gener.~l,
to ahstain froni any sort of action whatsoever which may aggravate or extend
the dispute,
Article 34
Should a dispute arise between more than two Parties to the present
General Act, the following rules shall be obsemed for the application of the
forms of procedure descrihedin the foregoing provisions:
lu In the case of conciliation procedurc. d special commission shall
invdridbiy be constituied. The composition of such commission shdii
differ according as the parties al1 have separate interests or as two or
more of their numher act together.
In the former case, the parties shall each appoint one commissioner
and shall iointlv appoint commissioners nationals of third Powers not
parties to-the disse, whose oumber shall always exceed by one the
number of commissioners appointed separately by the parties.
In the second case, the oarties who act together shall appoint their
commissioner jointly by agreement between rhemselves and shall com-
bine with the other party or parties in appoioting third commissioners.
In either event. the parties. unless thev amee otherwise. shall ~DDIY
Article 5 and the~follo&ingarlicles of ihLpre<ent Act. so far as the; a&
compatible ~iih the provisions of the present article.
Ib, In the case of judicial procedure. the Statute of the Permanent
Court of ~nternationa~~ustice shall apply.
(c) In the case of arbitral procedure. if agreement is not secured as Io
the composition of the tribunal. in the case of the disputes mentioned in Article 17.each party shall have the right,by means of an application, to
submit the dispute to the Permanent Court of International Justice; in
the case of the disputes mentioned in Article 21, the above Article 22 and
following articles shall apply, but each party having separate interests
shall appoint one arbitrator and the number of arhitrators separately
appointed by the parties to the dispute shall always be one less than that
of the other arbitrators.
Article 35
1. The present General Act shall be applicable as between the Parties
thereto, even though a third Power, whether a party to the Act or not, has an
interest in the dispute.
2. In conciliation procedure, the parties may agree to invite such third
Power to intervene.
Article 36
1. In judicial or arbitral procedure, if a third Power should consider that
it has an interest of a leeal nature which mav beaiiected bv the decision in the
case, it may submit to &e Permanent couri of ~nternational Justice or to the
arbitral tribunal a request to intervene as a third Party.
2. It will be for the Court or the tribunal to decide upon this request.
Article 37
1. Whenever the construction of a convention to which States other than
those concerned in the case are parties is in question, the Registrar of the
Permanent Court of International Justice or the arbitral tribunal shall notify
al1such Statesforthwith.
2. Every State so notified has the right to intervene in the proceedings; but.
if it uses this right, the construction given by the decision will bebinding upon
it.
Article 38
Accessions to the present General Act may extend:
A. Either to al1the provisions of the Act (Chapters 1,II,IIIand IV);
B. Or to those provisions only which relate to conciliationand judicial
settlement (Chapters 1 and II), together with the general provisions
dealing with these procedures (Chapter IV):
C. Or to those provisions only which relate to conciliation(Chapter 1).
together with the general provisions concerning that procedure (Chapter
IV).
The Contracting Parties may benefit by the accessions of other Parties
only in so far as they have themselves assumed the same obligations.
Article 39
1. In addition to the power given in the preceding article, a Party, in
acceding to the present General Act, may make his acceptance conditional
upon the reservations exhaustively enumerated in the following paragraph.
These reservations must be indicated at the time of accession.
2. These reservations may be such as to exclude from the procedure de-
scribed in the present Act:222 NUCLEAR TESTS
(a)Disputes arising out of facts prior to the accession either of the
Party making the reservation or of any other Party with whom the said
Party may have a dispute;
(b) Disputes concerning questions which by international law are
solely within the domestic jurisdiction of States;
(c) Disputes concerning particular cases or clearly specified suhject-
matters, such as territorial status, or disputes falling within clearly
defined categories.
3. If one of the parties to a dispute has made a reservation, the other parties
may enforce the same reservation in regard to that party.
4. In the case of Parties, who have acceded to the p~ovisions of the present
General Act relating to judicial settlement or to arhitration, such reservations
as thev may have made shall, unless otherwise exuressly stated, be deemed not
to apply to the procedure of conciliation.
,-
Article 40
A Partv whose accession has been onlv oar..al. or was made subiect to
reservations, may at any moment, hy means of a simple declaration, either
extend the scopeof his accession or abandon al1or part of his reservations.
Article 41
Disputes relating to the interpretation or application of the present
General Act, including those concerning the classification of disputes and the
scope of reservations, shall he suhmitted to the Permanent Court of Interna-
tional Justice
Article 42
The present General Act, of which the French and English texts shall hoth
be authentic, shall bear thedate of the 26th of Septemher, 1928.
Arlicle 43
1. The present General Act shall he open to accession hy al1the Heads of
States or other competent authorities of the Memhers of the League of
Nations and the non-Memher States to which the Council of the League of
Nations has communicated a coov for this ouroose.
2. ~he instruments of accession and the'adhitional declarations provided
for by Article 40 shall be transmitted to the Secretary-General of the League
of ~ations. who shall notifv their receiot to al1 theMembers of the League .
and to the "on-~ember ~ta&sreferred to in the preceding paragraph.
3. The Secretary-General of the League of Nations shall draw up three
lists, denominated respectively by the letters A, B and C, corresponding to
the three forms of accession to the present Act provided for in Article 38, in
which shall he shown the accessions and additional declarations of the Con-
tractinrr Parties. These lists. which shall he continuallv keot uo to date. shall
bepubTishedin the annual report presented to the ~ss&nbly of the ~eague of
Nations hy the Secretary-General.
Arlicle 44
1. The present General Act shall come into force on the ninetieth day
following the receipt hy the Secretary-General of the League of Nations of
the accession of not less than two Contracting Parties.
2. Accessions received after the entry into force of the Act, in accordance
with the previous paragraph, shall become effective as from the ninetieth dayfollowing the date of receipt by the Secretary-General of the League of
Nations. The same rule shall apply to the additional declaration provided for
by Article 40.
Article 45
1. nie present General Act shall be concluded for a period of five years,
dating from ils entry into force.
2. It shall remain in force for further successive periods of five years in the
case of Contracting Parties which do not denounce it at least six months
beforethe expiration of the current period.
3. Denunciation shall be eiTectedby a written notification addressed to the
Saretarv-General of the Leaaue of Nations. who shall inform al1the Mem-
bers of the League and the non-~ember States referred to in Article 43.
4. A denunciation may be partial only, or rnay consist in notification of
reservations not ~reviouslv made.
S. ~otwichstanding deiunciation by one of the Contracring Parties con-
cerned in a dispute, al1 proceedings pending at the expiration of the current
period of the General Act shall be~dulycompleted
Article 46
A copy of the present General Act, signed by the President of the Assembly
and by the Secretary-Generalof the League of Nations. shall be deposited in
the archives of the Secretariat; a certified true copy shall be delivered by the
Secretary-General to al1 the Menibers of the League of Nations and to the
non-Member States indicated by the Council of the League of Nations.
Article 47
The present General Act shall be registered by the Secretary-General of the
League of Nations on the dateof its entry into force. AnnexII
RESOLUTIO NF 26SEPTEMBE 1R928OF THE ASSEMBLY OFTHE LEAO~-- OF
NATIONS ON "THE SUBM~SS~O ANND RECOMMENOAnO NF AGENERAL
ACT AND OF THREEMOOELBILATERAC LONVENTION IS REGARD
The Assembly,
Having considered the work of the Committee on Arhitration and Security:
(1) Firmly convinced that effective machinery for ensuring the peaceful
settlement of international disputes is an essential element in the cause of
security and disarmament;
(2) Considering that the faithful observance, under the auspices of the
League of Nations, of methods of pacific settlement renden possible the
settlement ofal1disputes;
(3) Notine that resnect for riehts established bv treatv or resultine from
in(èinationaïlaw is ~bli~atory upon international tiibunais; -
(4) Recognising that the rights of the several States cannotbe modified
excebt withtheir consent:
(5j Taking note of the fact that a great numher of particular international
conventions provide for oblig.tory~conciliation, arbitration or iudicial
settlement;
(6) Being desirous of facilitati10 the greatest possible degree the devel-
opment of undertakings in regard to the said methods of procedure;
(7) Declaring that such undertakings are no1to be interpreted as restricting
the duty of the League of Nations to take al any lime whatever action may be
deemed wise and eiiectual to safeguard the peace of the world; or as im-
~edine ils intervention in virtue of Articles 1517dof the Covenant. where
a dispute cannot be submitted to arbitral or judicial procedure or can'nol be
settledby such procedure, or where the conciliation proceedings have failed;
(81 Invites al1States whether Members of the Leaaue or not. and in so far
as iheir existing agreements do not already achieve tbis e10accept obliga-
tions in pursuance of the above purpose either by becoming parties to the
annexed General Act (Annex 11or bv concludine oarticular conventions with
individual States in ac'cordance withihe model biiatera~conventions annexed
hereto (Annex 2)or in such terms as may be deemed appropriatel:
(9)Resolves to communicate the annexed General Act and the annexed
model bilateriil conientions tdIIhlembers of the League of Nations and 10
such States not hlcnibers of the League as niay he indicûted by the Council.
(10) Rcauesis the Council to -ivc the Sesrctariat of the .earue of Nations
insirusiionsti>kcep a Iisi of the engagements contracied in accordance with
the terms of the present resoluiionither by iicceplance of the provisions of
the General Act or bv the conclusion of oarticular conventions with the same
object, so as to enable Members of the ~eague and States non-Members of
the League to obtain information as soon as possible.
1 Annex 1(i.c.,the text of the GeneralAct)isset out in 1Io this Memorial;
Annex2(i.e.,thetextsofthe mode1bilateralconventions)isnot reproduccd. AnnexIII
RESOLUTION ASOOPTEO BY THE LEAGUE ASSEMBLY
AT ITS FINAL SESSION ON 18 APRIL 1946
The Assemblvof the Leaeueof Notions.
Having considered the resoluiion on the assumption by the United Nations
of functions and powen hitherto exercised by the League of Nations under
international agreements. which was adooted br the General Assemblv of the
United ~ation; on ~ebr;ary 16th. 1946;
Adopts the following resolutions:
(1) Custody of the Original Texts of lnternational Agreements.
The Assembly directs that the Secretary-General of the League of Nations
shall. on a date to be fixed in agreement with the Secretarv-General of the
unitid Nations, transfer to the 5ecretariat of the United Nations, for safe
custody and performance of the functions hitherto performeby the Secreta-
riat ofthe ~eaaue. ail the original sianed texts of treaties and international
conventions.agreements and Gher instruments, which are deposited with the
Secretariat of the League of Nations, with the exception of the Conventions
of the International Labour Organisation, the originals of which and other
related documents shallbeplaced at the disposal of that Organisation.
(2) Functions and Powers arising out of lnternational Agreements of a
Technical and Non-political Character.
The Assembly recommends the Governments of the Members of the League
to facilitate in everv wav the assumotion withoutterruotion bv the United
Nations. or by specialisédagencies brought into relation;hip wifii that Orga-
nization, of functionsand powers which have been entrusted to the League of
Nations, under international agreements of a technical and non-political
character, and which the United Nations islling to maintain. Annex IV
GENERAL ASSEMBLR YESOLUTIO2 4 (1)OF 12 FEBRUARY 1946
ON THE "TRANSFER OF CERTAIN FUNCTIONSA ,CTIVITIES
AND ASSETS OF THE LEAGUE OF NATIONS"
IFLSC'IIOSS AXD I'C)\\EKS Ilt.l.OSC;ING TO 1 llt ItAGLF. OF
N.\TIOSS IJN1)t.K INTt:KN..\TIO\,\I. r\tiRFI-hITiXTS
Under various treaties and international conventions, agreements and
other instruments. the Leaeue of Nations and ils Ornans exercise. or mabe
requejted Io cxercise, numérous function, or pouers for the continuancc of
uhich. alter thedir\olution of the LeagueII1,.or may be, desirable thdt the
United Nations should orovide.
Certain Mcmbers of the United Nation\. uhich dre particIO someof thepe
Instruments and are Memhcr5 of the League of Nations. hake informed the
General Assemblv that. at the forthcomine session of the Assemblv of the
League, they infénd t6 move a resolutioi whereby the ~embers of the
League would, so far as this is necessary, assent and give efect to the steps
contemplated below.
Therefore:
1. TheGeneralAssemblv reserves the riaht to decide. after due eramination.
no1 tu assume an) partiiular function or powcr. and to deterrnine uhich
organ of the United Natiains or uhich specialised agency brought inIo rela-
iionshio uith the United Nations should exercise each oarticular function or
-.we~ ~rsumed.
2. TheGeneralAssembly records that those Members of the United Nations
which are parties to the instruments referred to above assent by this resolu-
tion to the steps contemplated helow and express their resolve to use their
good officestosecure theco-operation of the other parties to the instruments
so far as this mav be necessary
3. The Generai Assembly déclares that the United Nations is willing in
principle, and subject to the provisions of this resolution and of the Charter of
the United Nations. to assume the exercise of certain functions andoowers
previously entrusted to the League of Nations, and adopts the foilowing
decisions, setorth in A, B, and C below.
A. Firncfionsperfaining fo a Secrefariar
Under certain of the instruments referred toat the beainnine of this resolu-
tion, the League of Nations has, for the general conveiienceof the parties,
undertaken to act as custodian of the original signed texts of the instruments,
and to oerform certain functions. oertaininn to a secretariat. which do not
affect the operation of the instruments anddo not relate to ihe substantive
rights and obligationsof the parties. These functions include: The receipt of
additional s-enatures andof instruments of ratification. accession andun-
ciation; receipt of notice of extension of the instruments to colonies or posses-sions of a party or to protectorates or territories for which it holds a mandate;
notification of such acts to other parties and other interested States; the
issue of certifiedconies: and the circulation of information or documents
which the parties haie indertaken to communicate to each other. Any inter-
ruption in the performance of these functions would be contrary to the in-
teiests of al1 the narties. It would be convenient for the United Nations to
habr the ~.ustodyOf those instruments which are connected with activitics of
the Leagucof Nations and uhich the United Nations is I~kelyto continue.
Therefore:
TheGenerolAssembly declares that the United Nations is willing to accept
the custodv of the instruments and to charge the Secretariat of the United
~ations wfth the task of performing for theparties the functions, pertaining
to a secretariat, formerly entrusted to the League of Nations.
B. FuncrionsandPowersof a Technical and
Non-Polifical Characrer
Among the instruments referred to at the beginning of this resolution are
some of a technical and non-political character which contain provisions,
relatineto the substance of the instruments. whose dueexecutionis denendent
on theexercise, by the League of Nations or particular organs of the ieague,
of functions or powers conferred by the instruments. Certain of these in-
struments are iniirnatelv connected with activities which the United Nations
will or may continue.
It is necessary, however, to examine carefully which of the organs of the
United Nations or which of the specialised agencies hrought into relationship
with the United Nations should, in the future, exercise the functions and
powers in question, in so far as they are maintained.
Therefore:
The General Assembly is willing, subject to these reservations, to take the
necessary measures to ensure the continued exercise of these functions and
powers, and refers the matter to the Economicand SocialCouncil.
C. Functionsand Powersunder Treafies. Infernafional
Conventions,Agreementsand Ofher 1nstr"mentsHoving a
Polifical Characfer
The GeneralAssembly wjll itself examine, or will submit to the appropriate
organ of the United Nations, any request from the parties that the United
Nations should assume the exercise of functions or powers entrusted to the
League of Nations by treaties, international conventions, agreements and
other instruments having a political character. Annex V
This Annex lists occasions on which a State which had been a Member of
the League of Nationsbut which was no longer such a Member either because
it had withdrawn or because the League was no longer in existence, took
action in relation to a treaty, participation in which was limited. The limited
participation provisions take three forms:
(a) treaties open Io Members of the League of Nations, and to non-
Members (il which were invited to. or (ii) which werere~resented at.
the conference which prepared thétreàti'es,or which w're invited b;
the Council of the League;
(b) treaties open to States (i) which were invited to, or (ii) which were
represented at, the Conference, to Members, and to non-Members
invited by the Council; and
(c) treaties open to Members, and to non-Members invited by the
Council.
The list does not include actions taken in response to the accession invita-
tions issued by the Secretary-General of the United Nations, under General
Assembly resolutions 1903 (XVIII) and 2021 (XX), in respect of the eleven
treaties mentioned in the latter resolution. The accepted interpretation of
those resolutions seerns 10 be that the participation clauses of the relevant
treaties have been widened by the action of the parties and of the General
iAssemblv. This list is limited to situations where the orieinal treatv has not
been aménded or has not been amended so far as the ~tate-taking the-action in
question isconcerned. That is, the treaty provides-so far as is relevant to the
situations mentioned-that onlv "~embers~ ~~the Le~e-e of Nations" mav
become parties.
The list is based on Mulrilaterol Trearies in respect of which the Secretory-
Cenerai oerforms Deoositorv Functions. List of Sienatures. Ratifications.
~ccessions, érc.,as 01.31 ~ecember ~~~~'(sT/LEG/sËR.D/~) and &nartrres
and Ratifications and Accessions in resuect of Aareements aiid Conventions
conclirded under the Auspices of the ~eague. of ~ations. Twenty-Firsf Lisr
(C.25.M.25. 1943.V. Annex; League of Nations Oficial Journal, Special Supp.
193). (The Supplemenr IO the Twenty-First List (C.87.M.87. 1946. V.; League
of Nations Oficial Journal, Special Supp. 195) contains no relevant informa-
tion.)
(Thetwo lists are referred to below as LN List, UN List.)
Ooium Convention. Geneva. 19 Februarv 1925 (Cateaorv fbl (i-): neither ..
~iate mentioned was Gpresented at the conferenci).
Costa Rica acceded 1935 (withdrew from League as from 1927); it also
acceded to the Protocol to the Convention at the same time
Paraguay acceded 1941 (withdrew from League as from 1937) (LN List,
pp. 122, 123; UN List, pp. 123, 124, 125).
Convention for Limifing the Manufacture and regulating the Distribirtion of
Narcotic Drugs, Geneva, 13July 1931(Category (a) (ii)). Japan ratified 3 June 1935 (withdrew from League as from March 1935;
signed before 31 December 1931; see the decision relating to Japan's
position on the governing body, League of Nations Oficial Journal, 1935,
pp. 599, 615); Japan also ratified the Protocol of Signature at the same
time.
Paraguay ratified 1941 (withdrew from League as from 1937; signed
before 31December 1931)(LN List, pp. 126, 128; UN List. pp. 129,131).
Conienriunfor the Suppression O/ the lllicir Trafic in UanxerousDrues and
Protocolo/S~~na~ure, Geneva. 26June 1936(Catcgory iaj (8)).
Guatemala acceded Aunust 1938iwithdrew from Leaaue-as from Mav 19381
(LN List. p. 130; UN^, pp. i37, 138).
Converrtionfor the Suppression O/ Trafic in Women and Children, Geneva.
30 September 1921(Category (c)).
Brazil ratified 1933 (withdrew from League as from 1928; signed by
31 March 1922)
USSR acceded 18 December 1947 (a Member of the League from Sep-
tember 1934 to December 1939; no record of an invitation has been dis-
covered).
(On the sîme day il also,2s a party to the Convention. dcfinitively signed
and became party to the Protocol amending the Convention and thereby
became Dartv to the Convention as amended) (LN List. D.132: UN List.
Conventionfor the Suppression of the Trafic in Womenof Full Age, Geneva,
Il October 1933(Category (a) (ii)).
France ratified 8 January 1947 (a Member of the League, it signed before
1 April 1934)
(It did not become party to the Protocol of 12 November 1947 amending
the Convention)
USSR acceded 18 December 1947 (a Member of the League from Sep-
tember 1934 to December 1939) (see note under the 1921 convention)
(UN List, pp. 161, 156, 160).
International Convenrionreluringto EconomicS~otistics and Profocol,Geneva.
14December 1928(Category (a) (ii)).
Belgiurnratified 1950 (a Member of the League, it signed before 30 Sep-
tember 1929)
(Belgium subsequently ratified the Convention as amended by the Protocol
of 1948)
Japan ratified 1952(a Member of the League, isigned before 30September
1929)
(Japan subsequently accepted the Protocol amending the Convention and
thereby became party to the Convention as amended) (UN List, pp. 314,
315,311,312).
Conventionconcerningthe Useof Broadcastingin the Causeof Peace, Geneva,
23 September 1936(Category (a)(ii)).
Guatemala acceded November 1938 (withdrew from the teague as from
May 1938)(LN List p. 52; UN List, p. 407).
Protocal relating to a Certain Caseof Sratelessness,he Hague, 12April 1930
(Category (5) (0).
Ywoslavia acceded 1959(Member of League) (UN List, p. 410).230 NUCLEAR TESTS
Prarocol relating Io Military Obligarions in Certain Coses of Double Narion-
ality,The Hague, 12 April 1930(Category (a) (il).
Austria ratified in 1958(a Member of the League, it signed the Protocol hy
31 December 1930)(UN List, p. 413).
Convention for the Suppression of Counterfeiting Currency and Protocol,
Geneva, 20 April 1929(Category (a) (ii))
France ratified 1958 (a Member of the League, it signed by 31 December
1929)
Switrerland ratified 1958 (a Member of the League, it signed by 31 Decem-
ber 1929)
Thailond acceded 1963 (a Memher of the League)
United Kingdom ratified 1959 (a Member of the League, it signed by 31
December 1929)
(UN List, pp. 432, 433).
Convenrion rrluring ro the S;mplificarion of Cusromr Formalirier and Prorucol,
ticncva. 3 Novemher 1923(Caiegory (b, (iij).
Juoon raiified1952 (3Member of the Leaguc. ilsigned by 31 October 1924)
(UN List, p. 446)
Conventionfor the Campaign Agoinst Contagious Diseasesof Animols.
Convention concerning the Transit of Animols, Meat and Other Products of
Animal Origin with Annex.
Convention concerning the Exporr and Import of Animol Products (Other thon
Meat, Meor Preporotions, Fresh Animol Products, Milk and Milk Producrs),
with Annex, Geneva, 20 February 1935(Category (ci).
YugosIavia acceded in 1967to al1threeconventions (Member of the League)
(UN List, pp. 447, 448, 449).
Consistently with the above practice, the League list included among the
States which were entitled to accede to treaties with restricted participation
clauses, States which had been Members of the League. Thus, in respect of
the General Act, which it will be recalled was open to accession by Members
and those invited by the Council (Category (cl) the 1944 list includes al1the
former Members of the League (except Haiti, the withdrawal of which had
only just taken effect) among those States, other than Members, which were.
entitled to accede: p. 48.(See for similar listings: pp. 52, 61, 62, 63, 64, 81, 83,
84.89.98. 103. 106, 110, 115, 116, 117,etc., and earlier lists in the same series.) Annex VI
GENERAA LSSEMBLR ESOLUTIO2N 68A(111) OF 28 APRIL
1949 ON THE "RESTORATIO NO THE GENERAL ACT OF
26 SEPTEMBE1R 928 OF ITSORIGINAL EFFICACY"
The General Assembl)~.
Mindful of ils responsibilities, under Articles 13 (la) and II (1) of the
Charter, to promote international co-operation in the political field and to
make recommendations with regard to the general principles of the main-
tenance of international peace and security, and
Whereas the efficacy of the General Act of 26 September 1928 for the
pacific settlement of international disputes is impaired by the fact that the
organs of the League of Nations and the Permanent Court of lnternational
Justice to which it refers have now disappeared,
Whereas the amendments hereafter mentioned are of a nature to restore to
the General Act ils original efficacy,
Whereas these amendments will only apply as between States having
acceded to the General Act as thus amended and, as a consequence, will not
affect the rights of such States, parties to the Act as established on 26 Sep-
tember 1928,as should claim to invoke it in so far as it might still be opera-
tive,
Ins~rucrsthe Secretary-General to prepare a revised text of the General
Act, including the amendments mentioned hereafter,.and to hold it open 10
accession by States, under the title "Revised General Act for the Pacific
Settlement of lnternational Disputes":
Amendmenrsru Be Made ro rhe General Ac1 of
26 Seplember1928
(a) In article 6, the word"10 the Acting President of the Council of the
League of Nations" shall be replaced by "10 the President of the General
Assembly of the United Nations. or, if the latter is not in session, to the las1
President".
(b) In articles 9, 43 (paragraph 2). 44, 45 and 47. the words "of the
League of Nations", or the words "of the League". shall be replaced by "of
the United Nations".
(c) In articles 17, 18, 19, 20. 23, 28, 30, 33, 34, 36, 37 and 41, the words
"Permanent Court of lnternational Justice" shall be replaced by "Interna-
tional Court of Justice".
(d) The text of article 42 shall be replaced by the following provision:
"The present General Act shall bear the date . (date of the resolu-
tion of the General Assembly)."
(e) The tex1of paragraph 1of article 43 shall be replaced by the following
provision:
"1. The present General Act shall be open to accession by the Mem-
bers of the United Nations, by the non-member States which shall have
become parties 10 the Statute of the lnternational Court of Justice or to232 NUCLEAR TESTS
which the General Assembly of the United Nations shall have com-
municated a copy for this purpose."
(f) In article 43 (paragraph 3), the words "The Secretary-General of the
League of Nations" shall be replaced by "The Secretary-General of the
United Nations". and the words "The Assemblv of the Leaeue of Nations"
shall be replaced by "the General Assembly of the United ~ations".
(r) The text of article 46 shall be replaced by the following provision:
"A copy of the present General Act, signed by the President of the General
Assembly and by the Secretary-General of the United Nations, shall be
deposited in the archives of the Secretariat. A certified true copy shall be
delivered bv the Secretarv-General to each of the Members of the United
Nations, tothe non-mcmher Statcs uhich shall have becotne parties to the
Statute of the Intcrndiional Court of Justice and IO ihose dcsignatcd by the
Gcncr~l Assembly of the United Nations." Annex VI1
EXTRACT FROM THE REPORT OF THE INTERIM COMMITTE TO THE
THIROSESSION OF THE GENERAL ASSEMBLY
(3) Belgianproposa1ro resrorethe originaleficacy of rire
Cmeral Ac1of 26 Seprember1928 (A/AC.18/18 atrdAdd. 1)
46. The Belgian proposal to confer upon organs of the United Nations
certain functions formerlv entrusted Io Ornans of the Leanue of Nations and
to the Permanent court-of lnlernational-~ustice under the General Act of
1928, was considered at length. The original proposal was elaborated by a
commentary including a draft resolution to be~proposed to the General
Assembly providing for the amendment of the Act and opening the amended
Act to ratification.
As was made clear in the discussion, adoption of the proposal would not
imply any approval or disapproval by the Interim Committee or the General
Assembly of the substantive provisions of the General Act. By agreeing that
United Nations orrans (includina the International Court of Justicel would
assume the functiois of'the ~eaiue of Nations and the Permanent court of
International Justice under the Act and by providing for this in a protocol
ooen to accession. the General Assemblv would merelv make it oossible for
~iates, of thcir oun volitioIO rcstore the efficacyof th; Act.
The Bclgian representativc made certain change$ in the draft rcsolution to
makc clcarer its iimited scopeas described above. The reprcsentative of the
United Kingdoni statcd that, while his Govcrnmcnt uas a party IO the Gencral
Act. it had acccded with rescrvaiions and now had doubts conccrning the
value of some of ils provisions. He did not object to the draft resolution
because it had been made clear that no Assembly approval of the Act as
public policy of the Organization was implied.
It was noted that. bv a resolution of 12 Februarv 1946.the General Assem-
bly had decidcd 10assime certain non-political functions and activities of the
Lcague of Nations and that in th13resolution ilhad dctcrmined that itwould
itself examine. or submit to the aooronriate ornan of the United Nations. anv
request from the parties that the'Ùni1ed ~ations should assume the exercise
of functions or powers entrusted to the League of Nations by treaties,
international conventions, agreements and other instruments of a political
character.
The question arose whether, in the light of this, the General Assembly
should be advised to adoot the ~rooosed resolution only at the request of a
specific nuinber of the parties. In the view of the Belgian represcniative. the
consent of the parties was unncccssary. sincc. in its final form. his proposai
did no1suopress or modiry the Gcneral Act. as rstablished in 1928. but left il
intact as &O, therefore,-whatever rights the parties to that act might still
derive from it. The Belgian proposal would achieve ils object through a
revised General Act, binding only on States willing to accede thereto. There
would thereby be created an entirely new and independent contractual
relationship for the implementation of certain of the ends contemplated in
Articles 11, paragraph 1, and 13, paragraph 1 a, of the Charter. Thanks to
a few alterations, the new General Act would, for the benefit of those States234 NUCLEAR TESTS
acceding thereto, restore the original effectiveness of the machinerv orovided
in the Act of 1928, an act which, though still theoretically in exiSténce,has
become largely inapplicable.
It was noted, for example, that the provisions of the Act relating to the
Permanent Court of International Justice had lost much of their effectiveness
in respect of parties which are not Members of the United Nations or parties
to the Statute of the Internationai Court of Justice.
Il was also noted that, since the function of the Acting President of the
Council of the League of Nations under the General Act would, by the draft
resolution, be vested in the President of the General Assembly or, if the
Assembly were not in session, in the President of the most receot session,
approval by the Security Council might no1 be necessary. It was felt that the
choice of the last President of the General Assembly to perform this function
might be reconsidered at a later stage if the Interim Committee should be
continued.
The Interim Committeeapproved the proposal as elaborated. Annex VI11
EXTRACT FROM OFFICIALJOURNAL OF THE FRENCH REPUBLICN , ATIONAL
ASSEMBLY 1.1 DECEMBER 1964, PAGE6064: QUESTION TO THE FRENCH
MIGIST OFROREIGN AFFAIRS:ANSWER BY THE MINISTER
11176. M. Dassié demande à M. le ministre des affaires étrangères s'il
entre dansIcsinrenlions du Couvernenient d'engager la procédure deratifica-
tion de la convention européenne pour le reglenient pacifique des différends
au'il a sianécle29 av1957. ~Qursriond14 ocrobre1964.)
-~,- on;La Franc~~.c-~mela nlunart des Etats eurooéens. est liéenar de
nombreuses obligations de r&glement'pacifique des diff&nds~depuis 1;s con-
ventions de La Haye de 1899 et 1907, le statut de la Cour permanente de
justice internationale et deCour internationale de justice, l'acte général
d'arbitrage du 28 septembre 1928 revise en 1949, auxquels viennent s'ajouter
olusieurs conventions bilatérales de conciliation et d'arbitrage. La convention
èurop4enne sur le reglenieni pacifique de>diff2rendr internaÏionaux rirque de
fairedoable eniploi dvec plusieurs der rextes %Savratificsrion renJrsii
donc nécessaireune revision comDlètedes engagements internationaux de la
France en la matière. Dans ces conditions,Gouvernement n'envisage pas
d'entamerpour l'instant la procédurede ratification de ladite convention. EVIDENCE IN TREATY LISTSOF THE CONTINUED FORCE
OF THE GENERALACT
The following publications, both official and unofficial, have been found
which list treaties in force for countries which adhered to the General Act.
(a) France
A book compilcd by H. Rollct. Lisre des enfafemenrs mulriluréraur au
.IOjuin 1969( 1971)States its nature in ils preface in the following terms:
"Pour cumpleter 13 liste des accords bilütkraux en vigueur au 30 juin
1969 auxquels la France est partie. une liste aussi complkte que possible
des accords niultilatkraux auxauels la Francc ktait partie A la mémc
date a étédressée."
The General Act is listed in this publication 1
(b) India
A book by C. M. Samuel, a former'research scholar of the University of
Delhi, India Treary Manual (1966) is described on the title page as "giving
citations to the text of over 1,000 treaties binding India in 1966". In the intro-
duction it is stated that it is "an attempt to list India's treaties"; and it is
noted that it is compiled from non-official sources. The 1928 General Act is
listed and under this listing there is the annotation: "Later: April 1949
Revised General Act .. ." Under the separate listing of the 1949 Revised
General Act there is no note, as there is in several other cases, to the effect
that the later instrument has superseded the earlier.
(c) Netherlands
The publtcaiion by A. M. Stuyt, Reperrorrumvan door Nederland russen
1813en 1950geslorenVerdra~en (1953). published by the government printer.
contains. in PartII. information concerninn each treatv in force as aï 1 Julv
1952. 7he author, in an introduction, thankr the ~inisiry of Foreign AiTairi
"out of whose archives much of the data was extracted". The 1928 General
Act is included
1Rollet's work also includes a lis1of the States parties, as at 1969, 10the
treaties included in. The Stater parties to the General Act are listed as follows:
Australia, Belgium, Canada, Denmark, Ethiopia, Finland, France, Great Britain,
Greece, Italy, Luxembourg, Netherlands. Norway. Pcru, Turkey and Swden. li will
be seenthat a number of countries are excludedfrom this list.The omissionofS~ainis
expltcableb) referenceIo the fact titlodgcdan inrirumeni of dcnuciation of the
Gcncral 4ci on8April 1939 Istsnot knoun uh) oihcr couniries whichadhered to ihc
Gcncral Act. tncludingIndia. Ircland. Ncu Zcaland and Suitzcrland, are no1Iistcd (d) New Zealand
TheNew Zealand TrearyList 1948, published in 1948by the Department of
External ARairs and included in the New Zealand Treaty Series, 1948,No. 11
states ina prefatory note (p. 3) that it is "a result of an examination of New
Zealand's formal obligations and commitments" and, further on (p. 17), it is
said: "The international agreements shown in this publication are those
which seem to affect New Zealnnd as at 31 March 1948." The 1928 General
Act is included in the section recording multilateral agreements. This publica-
tion is the only treaty list (otherthan a 1961 publication which only covered
the period 1948-1960)which has heen produced by New Zealand.
(e) Norway
~heTreatiesof Norway 1661-1968 (1970), a publication by the Norwegian
Ministry of Foreign Affairs, does not include the General Act in the relevant
chronological volume, but it is noted in the preface to the publication that
some treaties have been omitted. including some "considered to be of small
practical value". The reîder is refcrred 10-the lndex volume (4) for relevani
information in respect of such treaties. The lndex volume listr both the 1928
General Act and the 1949 Rcvised Genernl Act. Accordine Io a lis1of sims
and abbreviations at the front of the volume, listings of treaties which areno
longer in force are placed in square brackets. There are no such brackets
around the listing of the 1928General Act 1.A suoolementarv index oublished
in 1973 as a sto&ap until the publication of a complete néweditifon of the
Index volume (4), includes a section containing a list of treaties no longer in
force. The General Act is not included in this section.
(f) Sweden
Kungl. UtrikerdzparremetirPrskalender 1969, published by the Sucdish
Ministry of Foreign AiTairs. contains a section hcaded: "Treaties in force
with foreian Domersas at I Fcbruary 1969." The 1928General Act is lisied in
this section and a footnotc to this listing reads (in translation): .'Still in force
forsome States.-See also the Reviscd General Act of28 April 1949."
A further Swedish publication by S. Lewenhaupt (who appears to have
held an official position)"Traktatc7versiktFrammande makterssrillning till
for Sverigebindandeinternationellaavral" (1948) states in its preface that it is a
listing of treaties which are in force for Sweden. The information collected is
said ;O hc supportcd by rnaterial [rom the archiver of the Foreign Minislry
and most of the manuscript is siated to have hcen checked by the authorities
holding the original documents. Ir is stated that the lirt coniains those
agreements which. on the basis of information rcceivcd by the Swedish
Foretgn Ministry at that date, were in eiTecton I July 1947.The 1928General
Act is included.~
Artention should, however. be drawn Io the fact that the preface of the Index
volume (4)containsthe followingparagraph:
"In many cases it may bcdifficultIo establish whetheror not a certain treaty
shouldbeconsideredas stillking inforcebetween Norwavand theother riarty in
question The faci that a treat1;or Irno1tncludcd inth; preeni uork does nul
rignif) rhai the hliniqir)of ForeiAiïdlrsha\aJoplcdan) tinalaitiiudr inreeard
tuwheihçror noi ihai oarticularireai) ~ssiillbindingfor Norway Thecompilaiion
is primarily intendedio assis1those hho needilin their work."238 NUCLEAR TESTS
(g) Swirzerlond
Volumes XI-XIV of Recueil Systématique des Lois el Ordonnances, 1848-
1947 (1949-1953), published by the Federal Government, contains al1 the
international agreements published between 12 September 1848 and 13
December 1947 which remained in force on I January 1948. Volume XI
includes the 1928 General Act. Over the last two years, Switzerland has
published a complete revision of the laws in a new format. The 1972 Index
volume to this revision, Recrreil Oficiel el Recueil Syslérnariqire du Droit
Fédéral, Tobledes Matières, Année 1972, contains a section headed "Table
Systématique des Textes Legislatifs en vigueur publiés de 1848 a 1972". The
General Act is listed in this section with a reference to the volume and page
where it is tbe found in the earlier collection.
2. Mention ehould also be made to the fact that a book by A. L. Paddock,
Internorional Trearies Binding Ethiopio (1952), does not include the General
Act among the treaties it lists.It is, however, clear from the foreword to the
book that it does not purport to list al1the treaties binding on Ethiopia. The
foreword States:
"Many of the old agreements have not been reproduced here. What
was intended was to show, by reproduction of the texts of agreements
that contributed to the development of Ethiopian international engage-
ments, the thread of development over the years."
3. It should be stated for the sake of completeness, that treaty lists and
indices to publications containing the texts of treaties have been located in
respect of each of the following countries, but in no case does the work
purport to list treaties in force as at the date of its publication: Australia,
Belgium, Canada, Denmark, Great Britain, Ireland, Italy, Peru and Turkey. Annex X
NOTE OF 15 OCTOBER1973 FROMTHE NEW ZEA~-~DPERMANENT
MISSON TO THE UNITED NATIONS TO THE PERMANENT MISSION
Of NORWAY TO THE UNITED NATIONS:NOTE OF26 OCTOBER
1973 FROMTHEPERMANENT MISSIONIN REPLY
The Permanent Mission of New Zealand to the United Nations presents its
compliments to the Permanent Mission of Norwav totheunited Nationsand
has ihe honour to refer to the General Act concerning the Pacific Settlement
of lnternationalDisputes done at Geneva on 26 September 1928. The New
Zealand Mission would be most erateful for information bearine on Norwav's
attitude towards the 1928 GenGal Act as illustrated, for example, in treaty
lists or rnaterial suhmitted to the Norwegian Parliament.
The New Zealand Mission takes this opportunity to convey to the Perma-
nent Mission of Norway the assurancesof its highest consideration.
Norwegian Note
The Permanent Mission of Norway to the United Nations presents ils
com~liments to the Permanent Mission of New Zealand to the United Na-
tions and hss the honuur \iilh referensc io lhe latter's Note of 15 Ortuher
1973 regarding the Generïl ALI concerning the I'aiific Seillenieni of Inicrna-
tional ~~snutcsdonc :i(icneiiion 26 Sçnteinber 19?X. IO eivc the follosinr
informatiOn with regard to Norway's attiiude towards'the said General ACC
(1) The General Act of 1928 entered in10 force for Norway on
9 September 1930.
In Parliamentary Bill No. 59 (1951) from the Ministry of Foreign
Affairs regarding the Revised General Act of 1949 it is stated amongst
other things that (in translation from Norwegian):
"The revised General Act for the Pacific Settlement of lnternational
Disputes which entered into force on 20 May 1950 applies only to
those States which explicitly accede to the Act. The Act in no way
affects the rights of those States which have acceded to the original
General Act. These States may continue to invoke this Act to the
extent it might apply. The Ministry of Foreign Affairs therefore
believes that the question of denouncing the original General Act
should be postponed until further notice."
In a recommendation No. 158 (1951) from the Foreign Relations
Committee to the Parliament il is stated (in translation):
"The Committee agrees with the Ministry that the question of
denouncing the original General Act which has been acceded to by a
total of twenty-two States, wholly or in part, should be postponed until
further noticebecause those States having acceded to the original
General Act still may invoke this Act to the extent it might apply."
It follows from the official records of the Parliament (1951) at page240 NUCLEAR TESTS
1655that the Parliament unanimously without debate gave its consent to
Norway's accessionto the revised General Act of 28 April 1949.
(2) Norway's attitude to the General Act of 1928remained the same
in 1970.The Act is thus included in the Index volume of the Treaties of
Norway 1661-1968. For conveniencc the Act was not printed in th;
Treariesof Norway. If is,owever, printed in the publication Agreempnrs
wirh Foreian Srares(1929-19301.
(3) ~orway's attitude to the General Act of 1928 today is still as
outlined above. Norway considers the General Act of 1928binding vis-à-
visthose States having acceded to the Act, but not explicitly acceded to
the Revised General Act of 1949provided that the State concerned has
not denounced the original General Act.
(4) Norway has not yet denounced the original General Act of 1928.
The Permanent Mission of Norway takes this opportunity to convey to the
Permanent Mission of New Zealand the assurances of its highest considera- Annex XI
CONDITION RELATINO TO THE PERlOO OF VALIDITY AND IO TERMINATIO IN
THE DECLARATION RSECOGNIZINO THE COURT'SCOMPULSORJY URISDICTION,
MADE BY THE STATES PARTIE SO THE GENERAL ACT
This Annex sets out certain information relatin10 the declarations made
under Article 36 (2) of the Statutes of the two Courts by the States which also
acceded to the General Act. It notes the periods for which the declarations
were to run, the conditions relating to termination and the terminations. The
datesof the commencement of the commitment are those provided for in the
instruments in question rather than the date of deposit. The date which
appears in parentheses beside the name of each State is the date on which the
General Act came into eîTectfor il.
2. The successive five-yearly periods under the General Act are 16August
1929-15August 1934, 16 August 1934-15August 1939, ... 16 August 1964-
15 August 1969, 16 August 1969-15August 1974.
Ausrralia(29.8.31)
(1) 18.8.30for 10years; thereaftcr terminable on notice; terminated 2.9.40
(ii) 2.9.40 for 5years: thereafter terminable on notice; terminated 6.2.54
(iiij 6.2.54; terminable on notice.
Belgium (16.8.29)
(i) 10.3.26 for 15years
(ii) 13.7.48 for 5 years
(iii) 17.6.58for 5years; thereafter terminable on notice.
Canada (30.8.31)
(i) 28.7.30 for 10years; thereafter terminableon notice; termina7.4.70
(ii) 7.4.70; terminable on notice.
Denmork (13.7.30)
(i) 13.6.21for 5 years
(ii) 13.6.26 for 10 years
(iii) 13.6.36 for 10years
(iv) 10.12.46 for 10 years
(v) 10.12.56 for 5 years and successive 5-year periods unless al least 6
months' notice is given.
Esroniu(2.12.31)
(i) 2.5.23 for 5 years
(ii) 2.5.28 for 10years
(iii) 2.5.38 for 10years.
Elhiopia(13.6.35)
(i) 12.7.26 for 5 years
(ii) 16.7.31 for 2 years
(iii) 18.9.34 for 2 years.
Finlad (5.12.30)
(i) 6.4.22 for 5 years
(ii) 6.4.27 for 10years 242 NUCLEAR TESTS
(iii) 6.4.37 for 10 years
(iv) 25.6.58 for 5 years and successive 5-year periods unless at least 6 months'
notice is given.
France (29.8.31)
(i) 25.4.31 for 5 years
(ii) 25.4.36 for 5 years
(iii) 1.3.49for 5 years; thereafter terminable on notice; terminated 10.7.59
(iv) 10.7.59for 3years; thereafter terminable on notice; terminated 20.5.66
(v) 20.5.66; terminable on notice.
Greece (14.9.31)
(i) 12.9.29 for 5 years
(ii) 12.9.34for 5 years
(iii) 12.9.39for 5 years.
India (29.8.31)
(i) 5.2.30 for 10years; thereafter terminable on notice; terminated 7.3.40
(ii) 28.2.40 for 5 years; thereafter terminable on notice; terminated 9.1.56
(iii) 7.1.56; terminahle on notice; terminated 8.2.57
(iv) 14.9.59; terminable on notice.
Ireland (25.12.31)
(i) 11.7.30 for 20 years.
Iraly (6.12.31)
(i) 7.9.31 for 5 years.
Larvia (16.12.35)
(i) 26.2.30 for 5 yean
(ii) 26.2.35 for 5 years; thereafter terminable on notice.
Luxembura -.(14.12.30)
(i) 15.9.30for 5 years and successive 5-year periods unless at least 6 months'
notice is given.
. Netherlands (6.11.30)
(i) 6.8.21 for 5 years
(iil 6.8.26 for 10 vears
(iiij 6.8.36 for 10 iears
(iv) 6.8.46 for 10years: thereafter terminable on notice: terminated 6.8.56
'(v 6.8.56 for 5 iears and successive 5-year periods unless at least 6 months'
notice is given:
New Zealand (29.8.31)
(i) 29.3.30 for 10 years; thereafter terminable on notice; terminated 5.4.40
(ii) 1.4.40for 5 years; thereafter terminable on notice
(The French Annex is in error in referring to a later New Zealand decla-
ration).
Norway (9.9.29)
(i) 3.10.21 for 5 years
(ii) 3.10.26 for 10 years
(iii) 3.10.36 for 10 vears
iivj 3.10.46 for IOGears
(v) 3.10.56 for 5years and successive 5-year periods unless at least 6 months'
notice is given. MEMORIAL
Peru (19.2.32)
(i) 29.3.32 for 10 years.
Spain (15.12.30)
(i) 21.9.28 for 10years.
Sweden (16.8.29)
(i) 16.8.21 for 5 years
(ii) 16.8.26 for 10years
(iii) 16.8.36 for 10years
(iv) 5.4.47 for 10 years
(v) 6.4.57 for 5 years and for successive 5-year periods unless al least 6
months' notice is given.
Switrerland (7.3.35)
(i) 25.7.21 for 5 years
(ii) 24.7.26 for 10 years
(iii) 17.4.37 for 10years
(iv) 28.7.48; terminable on 1 year's notice.
Turkey (24.8.34)
[(i) 12.3.36 for 5 years; no1 ratifiedl
(ii) 22.5.47 for 5 years
(iii) 23.5.52 for 5 years
(iv) 23.5.57 for 5 years
(v) 23.5.62 for 5 years
(vi) 23.5.67 for 5 years.
United Kingdom (29.8.31)
(i) 5.2.30 for 10years; thereafter terminahle on notice; terminated 7.3.40
(ii) 28.2.40 for 5years; thereafterterminable on notice; terminated 2.6.55
(iii) 2.6.55; terminable on notice; terminated 31.10.55
(iv) 31.10.55; terminable on notice; terminated 12.4.57
(v) 18.4.57;terminable on notice; terminated 26.11.58
(vi) 26.11.58; terminable on notice; terminated 27.11.63
(vii) 27.11.63; terminable on notice; terminated 1.1.69
(viii) 1.1.69; terminable on notice. Annex XII
FRENCHDECREE SELATING TO "SECURITY ZONE"
ROUNDMURUROA
1. Décrern" 73-618 du 4 juillet 1973 créant une zone
de sécrtrien Polynésiefrançaise
[Sm Aniiex 7 ro rlle AusrralianMe,,ioria1,p. 3631
2. Suspensionde la navigarionmoritime dans unezonede sdcuriré
en Polynésifrancaise
[See Annex8 ro rheA~isrraliatiMetnorial, 1p.3641
3. Navigationmoritimedansla zonede sécuriré
en Poly,résifro>zqaise
Le ministre des armées,
Vu le désret n" 73-618 du 4 juillet 1973 créant une zone de sécuritéen
PolynQie française;
Vu l'arrêtédu 4 juillet 1973 portant suspension de la navigation maritime
dans une zonede sécuritéen Polynésie française,
Arrête:
Art. 1". L'arrêtédu 4 juillet 1973 portant suspension de la navigation
maritime dans la zone de sécuritéen Polynésiefrançaise cesse d'avoir effet le
15 septembre 1973, à Oheure T.U.
Art. 2. Le présent arrêtésera publiéau Journaloffrcel de la République
française.
Faità Paris, le Il septembre 1973.
Robert GALLEY. MEMORIAL
Annex XII1
Note of22 July 1973
The New Zealand Embassy presents ils compliments to the Ministry of
Foreign Affairs and has the honour. on the instructions of its Government, to
transmit the followina communication
Reports that a nuclear weapons test has been conducted at Mururoa have
been received with profound dismay in New Zealand. The New Zealand
Government mus1once aeain affirm its strone-oo..silion to al1such tests and
deplore this latest act byjhe French Government in defiance if the renewed
and most earnest representations of the peoples of the South Pacific and of
many other governments around the world.
The New Zealand Government views with utmost concern and disquiet
France's disregard for ils obligations under the United Nations Charter in
thus spurning a binding order of the International Court of Justice. The
French Government has indicated that it does not consider that the Court has
cornpetence in this matter. The French Government is. however, well aware
that it is a long and firmly established principle of international law that it is
for international tribunals to establish their competence and not for the
parties to the proceedings.
The New Zealand Government must fur~~er orotest ai the French Govern-
ment's violation of the rights of New Zealand citizen; on b&rd the yacht
"Fri" on 18July. These citizens were in international waters when the French
navy unlawfully boarded the vesse1 and took it under tow. This act was a
violation of thefreedom of the high seas and is regarded by the New Zealand
Government as illegal.
The New Zealand Government urges France to fulfil its obligations to the
International Court and to New Zealand and other countries in the South
Pacific by refrainingfrom any further nuclear weapons tests at Mururoa.
The New Zealand Government reaffirms that it regards the tests as a
violation of international law and formally reserves the right to hold the
French Government responsible for any damage or losses incurred by New
Zealand or the Pacific Islands for which New Zealand has a resoonsibilitv as a
result of any nuclear weapons tests conducted by France.
The New Zealand Embassy avails itself of this o~portunity to renew to the
Ministry of Foreign Afiairs the assurances of ils highest consideration.
Nofe ofI Ocrober 1973
The New Zealand Embassy presents its compliments to the Ministry of
Foreien Aiïairs and has the honour to refer to the incident o15 Aueust which
invol;ed the vesse1the-Greenpeace 11I"and which hdsalready becn~herub,ect
ofsome discussion betueen the New Zealand and French Governmcnts
As explained to the Ambassador of France in Wellington, the two members246 NUCLEAR TESTS
of the crew who were New Zealand citizens, Misses Horn and Lornie. have
becn interrogated at length concerning the incident They habe indicaiid. tn
sworn stdtements that. after ha\ing bcen uarned on 13 Auguit tu lea,e the
"securitv zone" round Mururoa. the "Green~eace 111" was boarded on 15
August by a party of men from the~rench ship "La Dunquerquoise." At the
time the "Greenpeace III" was outside the territorialsea of Mururoa. The
members of the boardinr-.oart. were armed with coshes and knives. Thev
made no attempt at discussion of any kind but immediately beat the two
men on board the "Greenpeace 111"with their coshes, severely injuring one of
them and knocking out the other. The Iwo girls were treated roughlybut not
brutally. The Iwo New Zealand girls (and the other members of the crew of
theaGreenpeace 111")were then takenagainst their willto Frenchterritory and
subsequently detained for some time before being permitted to return to
New Zealand.
On 24 September the Ambassador of France handed Io the New Zealand
Ministrv of Foreian Affairs in Wellinaton. a reDort on this incident oreoared
by the crench auihorities.II ir apparent from .sludy of iithai theré i5'sonie
conflict of e\idenceas Io uhat happencd at the lime of the boarding of the
"Greenpeace 111". There would appear, however, to be no dispute that the
incident occurred on the high seas outside territoriallimits, that force was
employed by the boarding party, and thaf the crew of the "Greenpeace III",
including the Iwo New Zealand girls, were taken against their will to French
territory.
The New Zealand Government cannot accept that the French Government
has any right to suspend international navigation through large areas of the
high seasfor the purpose of testing nuclear weapons.Ifregards the implemen-
tation of the French decrees of 4 July 1973, which purported to create a
security zone round Mururoa, as a violation of international law, and it is
disturbed that force should have been used for this purpose in the incident
involving the "Greenpeace III".The New Zealand Government protests at
the interference with lawful activities of New Zealand citizens on the high
seasand at their subsequent detention by the French authorities.
The New Zealand Embassy avails itself of this occasion Io renew to the
Ministry of Foreign Aiïairs the assurances of its highest consideration.
Memorial on Jurisdiction and Admissibility submitted by the Government of New Zealand