MEMORIALONJURISDICTIOAND
ADMISSIBILISUBMITTEBYTHE
GOVERNMENT OFAUSTRALIA INTRODUCTION
1. This Meiiiorial is subiiiitted to the Court in pursuance of the Order made
by the Court on 22 June 1973, as amended in respect of finie-limits by its
0rder of 28 August 1973.
2. In the Order of 22 June 1973, the Court directed that "the written pro-
ceedings shall first be addressed to the questions of the jurisdiction of the
Court to entertain the dispute and of the admissibility of the Application".
3. The Government of Australia proposes to deal with thesetwo questions
separately.
4. In the present cÿse it does not appear that the question of the admissi-
bility is raised in connection with any default in the observance of purely
formal requirements of the Rules but in respect of the question whether or
~ ~ ~~~stral~ ~ ~~~- a~leral interest in the subiect of the disoute between the
parties. II thus appearFto be quite unconnectéd with the quéstion of the juris-
diction of the Court to entertain the dispute and itwould seem proper that
the jurisdictional aspect of the case be treated first and disposed of indepen-
dently of any question of admissibility.
5. In the lirst part of the present Memorial. the Australian Government
will therefore deal first with the matters relating to the question of 'juris-
diction". These will. where necessary, include points raised in the letter
addres~edto the Court on 16 May 1973from the French Ambassador at The
Hague (hereafter referred to as"the French Note") and in the Annex attached
to the French Note (hereafter referred to as "the French Annex"). In the
second part of this Meniorial the Government of Australia will examine,
quite separately. under the heading of "admissibilily", the question of
Australia's legal interest in its claims.
6. The Governilient of Australia recalls that the Government of France
has not raised any objection to the jurisdiction of the Court in any form
knownto the Statute or Rules of the Court; and has not raised any question
relating Io the admissibility of theclaim in any forni whatsoever. The Govern-
ment of Australia also notes that the Court has referred (in para. II of the
Order of 22 June 1973) to the "non-appearance" of the French Government.
but has not referred Io Article 53 of the Statute.
7. At the sanie tinie, the Government of Australia also observes that the
Court, in directing that the written proceedings shall first be addressed Io
questions of jurisdiction and of admissibility. has not referred to Article 67
of the Rules of Court which prescribes that "any objection by the res-
pondent to the jurisdiction of the Court or to the admissibility of the appli-
cation . ..shall be made in writing".
8. The Governnient of Australia cannot. therefore. be certain that il has
judged correctly the precise procedural framework within which the Court is
dealing with the present stage of the case; and il mus1 therefore ask for the
court's indulgence if it has In any respect failed to meet the Court's wishes.
In particular, the Government of Australia expresses the hope that, if the
Court should feel that the Government of Australia has no1 adequately dealt
with a point which the Court finds material 10 its decision, the Court will so
inform the Government of Australia and enable it to supplement the present
Memorial either in writing or al the oral hearings.
9. This point is the more important becausethe Government of Australia250 NUCLEAR TESTS
as~ ~ ~ ~ ~t the Court wishes to foll~ ~ ~t the oresent stage. a orocedure -. .
analogous ta that laid down in Article 67, especially paragraph 7 thereof.
The whole of this Article oresuo~oses that a resoondent has regularly raised
soecific obiections to iurisdicii6;~ ~ or admissibilit;. This. of course. is no1 the
- r ~ ~ ~ ~ ~.~
case here. Accordingly, the Government of Australia expresses the hope
that in accordance with the fundamental standards of due orocess the Court
will not consider any arguments running contrary to the ~ustralian position
without being satisfied that the Governnient of Australia has developed
before the Court an argument directly and expressly dealing with that point.
10. The ~overnmeni of ~ustralia-will conclude-this ~emorial with two
12. The second will be that the ~~~lication is admissible. PART ONE
A. Prellminary Observations
13. The French Note stated that the French Governnient considered that
the Court was manifestlr not cornDetent in the case and that it could not
accept the court's jurisdiction. In cintravention of Article 38 (3) of the Rules
of Court, the French Government then informed the Court that it did no1
intend tu appoint an agent, and requested the Court to remove the case from
itslists. In the circumstances, the Court, wishing tu satisfy itself that it has
jurisdiction in accordance with Articles 36 and 37, decided in its Order of
22 June 1973 that it was necessary to resolve assoon as possible the questions
of the Court's jurisdiction and of the admissibility of the Application, and
that accordingly the written proceedings should first be addressed to these
questions.
14. As has already been pointedout in paragraph 6 above, the question of
the jurisdiction of the Court in the present case has not been raised by the
defendant Government in any form known tu the Statute or the Rules.This
non-compliance by France ii,ith the Rules has put the Governrnent of
Australia in the quite novel situation of being required positively tu establish
the jurisdiction of the Court in the present case, instead of being simply
requested to counter the arguments developed in support of a preliminary
objection in writing.
15. Nevertheless, willing as ifis to co-operate in any way with the Court in
the difficult conditions created by the French Government, the Australian
Government will be happy to set out in the present Mernorial the reasons
which, in its subiiiission, fully support the existence of thejurisdiction of the
Court to entertain the orese~~ disoute.
16. AS the Court will recall, the question of the Court's jurisdiction has
been examined at considerable length in the course of the oral proceedings
relating to the request for interim keasures of protection. ~here will, the&
fore, be an inescapable overlap between substantial parts of this Part of the
Mernorial and rnany points made in the oral proceedings.
17. The Government of Australia also observes that. ultimatelv. .. .iuris-
diiti<iii iiiiisi dcriie fruiii the Siüii.ie uf ilic Caihrhich h:is opcned up IUO
diikreni roiites i>f :is:zbr to ihc Caiiri undrr Ariiilc 26 (1J and Ariiilc 36 (2)
respe;ti\cly. The Applii:ii.un in\,ikei ,\rti:le17 of the Gencra1 Ait for the
Plicifii Sciilciiieiiof Intcrn,iii,>ii31 Uispiiieas a hmi, for ihe C'ourt's juris-
diciii>n. CnJcr Ariiile 31;(1) re~d uiih ,\rticls 37, ihc <;encra1 Azt is a treary
or convention in force between Australia and France and creates a soecial
link of compulsory jurisdiction between the Iwo States. The ~pplication
invokes, alternatively, Article 36 (2) and the respective declarations of Aus-
tralia and France made thereunder which create between them a further link
of comDulsory jurisdiction.252 NUCLEAR TESTS
B. The Link of Compulsory Jurisdiction between Australia and France
according to the General Act for the Pacifie
Settlement of International Disputes
1. THE JURISUICTION OF THE COURT UNOER THE GENERALAC1
(a) Atistrali<iandFranceare Parties IOthe GerieralAct
18. The General Act for the Pacific Settlement of International Disoutes 1.
done at Geneva, was opened for accession on 26 September 1928. 11camé
into force pursuant to Article 44 on 16August 1929. Under Article 45 (1) the
General ~ct was to be concluded for a period of five years dating from its
entry into force. Under Article 45 (2) it is 10 remain in force for successive
periods offive years in the caseof Contracting Parties which do not denounce
it at least six months before the expiration of "the current period". Such
periods expired on 15August in the years 1934, 1939. 1944, 1949, 19541,959.
1964 and 1969. The current five-year period is due 10 expire on ISAugust
1974.
19. Australia accededto the General Act on 21 May 1931.The British Secre-
tary of State for Foreign Affairs notified Australia's accession to Chapters 1,
~~. III and IV of the General Act durine a -ession of the Council of the
Leasut of Sation, (Anne% II. Auriralia hxs not Jenoiinced the Ciencri! Act.
20. On8 April 1931 3Ina \i:iipirrr'd:iitihori~insthcPreqiJrnt of ihe Frciich
Reoublic. firit. to accede to the General Act and. secondlv. to ratifv the
declaration under the optional clause of the ~tatutebf the permanent court
of International Justice deposited by France on 19September 1929.16 months
c~eviouslv. However. the Genera~Act was seoaratelvadhered to in Geneva on
21 May 1931, and was separately promulgated by a Presidential Decree dated
15 July 1931. The French accession. which also applied to Chapters 1, 11,111
and IV of the General Act. is set forth in Annex2
21. Even though theauthorizing law was the same in each case, it was clear
that the accession to the General Act and the acceptance of the optional
clause were totally independent. The then French ~inister for Foreign Af-
fairs, M. Aristide Briand, emphasized the special significance of the accession
to the General Act in a letter of 10April 1931 to the Secretary-General of the
League of Nations:
"1have the honour to inform you that. after the Chambcr of Deputies,
the Senate at its nieeting of March 5th unanimously approved the draft
law authorizing the President of the French Republic to accede to the
General Act. ..
Th~ ~ren~h Government is now in a oosition to deoosit its definitive
accession with the secretkat ofthe ~eague of ~ations. However. taking
account of the wishes of Parliament, and in order to emphasize the im-
portance French opinion attaches to this Act. 1 intend Io deposit Our
accession myself during the next session of the Council of the League 2."
22. The Australian accession was made subject to certain reservations
(Annex 1).On 7September 1939a further reservation was notified by telegram
by Australia (Annex 1). None of these reservations is relevant to the present
proceedings.
93 L.N.T. S.3.
2 The full text is attachedasAnnex 3. 23. The French accession was also subject to certain reservations (Annex
2). In addition, on 13 February 1939,a further reservation under the General
Act was notified by France (Annex 2). None of these reservations is relevant
to the present proceedings.
24. France has not denounced the General Act.
(b) The General Act 1sa "Treaty in Force" which VestsJilrisrlictionin the
Interi~ario~ial ourt ofJusrice NIAcrordar~rewithArrirles 36 (1) and37
of the Statr,reof the Colirl
(i) Article 17 of the GeneralAct
25. Chapter II of the General Act entitled "Judicial Settlenient" contains
Article 17:
"17. AI1 disputes with regard 10which 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 Cour1
of lnternational Justice, unless the ~arties agree, in the manner herein-
irier pri>\,iJeJ. io hs\e recori io ;in 2rbitr:il irih.insl.
riis iin,lerctooil th~t the Ji\piiier referrid.ih.)vc iii:I.iJe in p:irticiilir
ihoce iiicnii,~ned in ~rii~le 30 or ihc St.iii.ic oi the I'crii1;tnsni (:~uri of
lnternational Justice."
(ii) Article 37 ofthe Stor~~te ofrlie Coi~rt
26. The link between Article 17 and the present Coiirt is furnished by
Articles 36 (1) and 37 of the Statute of the Court. Presently, in paragraphs 35
to 46 it will be submitted that the General Act is a "treaty in force" within the
meaning of Articles 36 (1) and 37. It is convenient however to consider first
the operation and effect of Article 37. This Article provides:
"37. Whenever a treaty or convention in force provides for reference
of a matter to a tribunal to have been instituted by the League of Nations,
or to the Permanent Court of International Justice, the matter shall, as
between the parties to the present Statute, be referred 10the lnternational
Court of Justice."
27. Australia and France are parties to the Statute of the Court. They are
therefore bound by the replacement of the Permanent Court by the Inter-
national Court eiïected by Article 37. As between them, the reference to the
Permanent Court of lnternational Justice in Article 17of the General Act and
other references to that Court in related Articles of the General Act-Articles
19.20, 33,34 (h), 36, 37 and 41-are al1to be read as references to the Inter-
national Court of Justice.
28. The ooeration of Article 37 of the Statute as enècting a substitution of
the present court for the Permanent Court, in those placei where references
to the latter may be found in trealies in force between parties to the Statute,
has repeatedly been acknowledged by the Court.
29. In the Advisory Opinion of 1950 on the International Slatris of Soiith
West Afrira, the Court adverted to the role of Article 37, in observing that
South Africa was under an obligation to accept the coinpulsory jurisdiction of
the Court in relation to the Mandate in South West Africa (I.C.J. Reports
1950, at p. 138).
30. This conclusion was approved by the Court in 1962 in the Sailth West 254 NUCLEARNTS
A/rica cases (Preliminary Objecrio~is) (I.C.J. Reports 1962,al pp. 334-335).
There uas no disposition on the pari of the Court to question ihis conclusion
in the Second Phax of the cax (sec especially I.C.J. Reports 1966.al pp. 21
and 37).
31. ln the meantime,the functioning of Article 37 had beenfully considered
in the Barcelona Tracrion case (Preliminary Objections) (I.C.J. Reporrs 1964,
at pp. 31-36). The jurisdiction of the Court was invoked, in that case, onthe
basis of Article 17, paragraph 1, of the Hispano-Belgian Treaty of 1927 1.
which was, in efïect, in this respect, a bilateral miniature General Act. 11
provided:
"In the event of no amicable agrecnient being reached before the
Permanent Conciliation Cotniiiission, the dispute shall be submitted
either to an Arbitral Tribunal or to the Pernianent Court of International
Justice, as provided in Article 2 of the present Treaty."
32. The operative parts of that Article and of Article 17of the General Act
are virtually identical. In the one case "the dispute shall be submitted ... to
t....er.anen~ ~~ur~ -f~International Justice": in the other "al1 disoutes .. .
shall . . .he subniiited for dcci;ion IO the Perniliiient Ctiuri cii Iiilcrii:tIional
Jiisijie". No possihlc sro.ind for disiinçuishtiig the iiiip;ici of t\rticlc 37 upon
these respective texts can exist.
33. In the Barceloiia Tracriorr case, Spain, in ils second Preliniinary Ob-
jection, denied that Article 17 of the Treaty of 1927 had created a bond of
compulsory jurisdiction in respect of the international Court of Justice.
Belgium argued that the Treaty was a "treaty in force", and by virtue of
Ariicle 37 of the Statute the present Court must be deemed Io have replaced
its predecessor for the purposes of the Article. The complication arising out
of the fact that Spain did not become a member of the United Nations iintil
1955does not exist in the present case.
34. It is unnecessary to urge upon the Court the considerations which it
atiiply endorsed in the Barcelona Tracrioti case concerning the objects and
purposes of Article 37. The central aini and, as the Court held, the efective
a.~.~~~.~ ~~ ~ ~ ~ ~cle 37 was to oreserve as manv iurisdiction. . clauses as
possible from extinction upon the forthcoiiiing dissolution of the Permanent
Court. The aini was realized by creating, in the Court's words, "aspecial
rieiiiie wh~ ~ ~.~~~ ~b-~-een~ ~e varties to the Statute. would automaticallv
transforrn rcferences to the Permanent Court in these jurisdictional clauses
into references to the present Court". (/hi</., at p. 31.) Article 37 mentions the
~e.~~~~~~~~~~rt~~or one ouroosc .nd .ne onlv. nanielv. th. .of defin..c or
identifying the category of dispute covered. The Court sumnied up the total
imoact of the Article uoon the relevant jurisdictional clauses in the forni of
~~~~-~c~ ~it~ons: first. that there iiiust be a treatv in force: secondlv. that if
should provide for the reference of "a niatter" (i:e., the matter in liiigation)
to the Pernianent Court: and. thirdly, that the dispute should be beiween
parties to the Statute of the Court. It is subiiiirted that al1three conditions are
fulfilled in the present case, and that no oihers need to be fulfilled.
(iii) "Trearv iri Force"
35. Latcr in (hi> \lciii<ir.al the Go\,crniiicni .>f ,\iistrüli;i\%IIIiIt\cl,,p 41
lengih ils .~hiiiissiaii th~t thc Ciciicr~l Ait 1% rtill iii Coric anil thst 11i\ tlicre-
fore a "trcaty in for;cn iiiiliiii Arti~lcs 36 and 37 of thc Staiuie. 36. Bearing in mind, however, that in the Barcelona Traction case (Pre-
lirninary Objecriotrs) the Court held the Hispano-Belgian Treaty of 1927 to
be a treaty in force, it is helpful at this stage to compare the relevant pro-
visions of that Treaty and the General Act and, because of their essential
similarity, to consider the view which the Court adopted of the basic obli-
gations in that Treaty. Indeed, the parallel that exists between the relevant
orovisions of the Hisuano-Belgia. Treaty and those of the General Act is so
close :is to bc s sirong. ilnot concl~si\c. argunicni in faiour of Austrslia's
subniission thxi the Ciçnernl Act is clclirl) a trcliiy in fi~r~c.
37. ,\ithe ouisct it ijininilriant ti~rec~ll ihat buth the General Act and ihc
Hispano-Belgian Treaty had an identical aim and strikingly similar devices
for attaifiing it.
38. The aim in both cases was the peaceful settlement of al1 disputes
between the parties and the means were various and not confined to judicial
action. The Court will recall that the General Act provides for the peaceful
settlement of international disputes by three methods-conciliation, judicial
settlement and arbitration. Under Article 38 accessions can be made to:
(a) al1its provisions;'or
(b) those dealing with conciliation and judicial settlement; or
(cj those relating to conciliation.
The provisions concerning conciliation deal with "disputes of every kind",
i.e., political as well as legal disputes, which it has not been possible to settle
by diplomacy. If a State is also party to the provisions relating to judicial
settlement of legal disputes, Le., of those "disputes with regard to which the
parties are in conflict as to their respective rights" (Art. 171, these disputes
will only be the subject of conciliation if the pürties so agree (Art. 20). Under
the orovisions relatine t. .udicial settlement. such disputes were Io be sub-
niiticd fur de~.i*.i>nii~the I'çriiianent Court of Intcriiütional Ju,ti<c unlos the
partics agreed IO have re\<iri t<ian ürhitr.il tribunal.
39. The narsllcl heiurcn ihis itruziure and thai of the Ilirp<ino-Belginn
Treaty is iistructive. There, the recourse to judicial settlement bas logically
sequential to the effort to resolve disputes by diplomatic methods and con-
ciliation. Articles 2 and 17 of that Treaty embody thislogical order of proce-
dure. and ilis intercsiing ii,nitic that the).in~orpor:iic the csscntixl dcrign of
thc Cicncral Act, ai a con\ideraii<in i)f ihciii uill reüdil) denionjtrdle.The~c
Articles provide:
"2. All disputes of every kind between the High Contracting Parties
with reeard to which the Parties are in conflict as to their respective
rights, and which it may not have been possible to settle amicablyby the
normal methods of diplomacy, shall be submitted for decision to an
arbitral tribunal orto the Permanent Court of International Justice.
Disputes for the settlement of which a special procedure is laid down
in other conventions in force between the High Contracting Parties shall
be settled in conforinity with the provisions of those conventions."
"17. In thc eveni of no aniic;iblc agrccnicnt bcing reÿched before the
Pcrniancnt Concililiiion Coiiimission. the diipute shall he .rubiiiiitcd
eiiher io an Arbitral Iribunxl tir ta the IJerniancnt Couri of Intcrnstiun~l
Justice, as provided in Article 2 of the present Treaty.
In this case, and also when there has been no previous recourse to the
Permanent Conciliation Commission, the Parties shall jointly draw up
the special agreement referring the dispute to the Permanent Court of256 NUCLEAR TESTS
International Justice or appointing arbitrators. The aforesaid agreement
shall clearly state the subiect of the dispute, the particular competence
that might-devolve upon ihe permanent Court of ~nternational~~ustice
or upon the Arbitral Tribunal and any other conditions arranged
between the Parties. This agreement shall be constituted by an exchange
-..no....--et~ee~ ~he two Ciove-n-en~-~ ~
The Permanent court of International Justice, when requested to
render a decision on the disuute, or the Arbitral Tribunal, when aupoin-
ted for the same purpose, shall respectively be competent to interpÏet the
terms of the special agreement.
If the special agreement has not been drawn up within three months
from the date on which one of the Parties was requested to sub'mit the
matter for judicial settlement, either Party may, on the expiry of one
month's notice. bring the question direct hefore the Permanent Court of
International Justice hy iiieans of a requeit.
The pro~cdiirc applic:tble rhdll be that laid ddun hy the Stiitute oCihc
1'erni:incntCourt of Internatii>ndl Justice. or in the c3se of rciour5e ioan
Arbitral Tribunal, that laid down hy the Hague Convention of October
18, 1907,for the Pacific Settlement of International Disputes."
40. A~~~~-~ s~ ~~ine similaritv b~,wee~ ~he General Act and the Hisoano-
Belgian treaty is that tcey are both intrinsically bilateral in nature. ~esphe the
multilateral form of the General Act the obligations under it are not global
bu1are direcicd 1,) inher inrli\idiial pdrties. cider Article 44 ihe Cieneril Act
cüiiie into forze on üi.'ci,ii>n hy tuo pariics only. and thcoreiically il mtghi
ha\e had onl, t\\o. This ser\ed to emph.isi~e the bildter;il characier of ils
operation andthe fact that it created obligations between States independently
of a general acceptance of it by a large number of States.Notwithstanding its
general language it was in substance a means whereby parties could adopta
general system for the pacific settlement of their disputes, vis-à-vis those
other States who are parties to it or became parties to it. If the Hispano-
Belgian Treaty, which was so similar in character and purpose has survived,
it is difficult to see why the General Act should not.
41. There is yet another similarity. The Hispano-Belgian Treaty did not
and could not of its own force confer jurisdiction on the Permanent Court or
on this Court. Prior to the demise of the Permanent Court its jurisdiction
under the Treaty depended on it being a "treaty in force" within the first
paragraph of Article 36of that Court's Statute. which provided: "36.Thejuris-
diction ofthe Court comprises al1 cases which the parties refer to it and al1
matters specially provided for in treaties and conventions in force." Since
then the jurisdiction of this Court has depended (inrer alfa) on the provisions
of Arti~ ~ ~ ~ ~)and 37.
42. ~ikewiieihe General Act, even though adopted by the League of Na-
tions, could not. independently of the Statute of the Permanent Court, have
given the courtjurisdiction t6 deal with disputes referred to it thereunder.
The Court obtained its jurisdiction in relation to disputes which fell within
Article 17 of the General Act in the same way as it obtained itsjurisdiction
under the Hispano-Belgian Treaty, namely, by virtue of the combined opera-
tion of that Article and Article 36 (1) of the Court's Statute. On the accession
of two parties the General Act became a treaty or convention in force and
thereafter the Court had jurisdiction between parties in relation to disputes of
the kind described in Article 17,subject of course to their respective reserva-
tions under Article 39. 43. The link supporting the jurisdiction of the International Court on the
basis of Article 17 of the General Act is therefore clearly established. In the
words of Judge Basdevant in the Norwegiar~Loonscase:
"This Act is, sa far as they are concerned, one of those 'treaties and
conventions in force' which establish the jurisdiction of the Court and
which are referred to in Article 36. D.raar..h 1.of the Statute. For the
parposes ol'ilic apl~li~;iiioii ol'ilALI. Ari1.1~ 37 of the Si:ii~ie ha. i.ib-
stitutc,l ihc InicrnaiioiialCo.iri olJii>ii:c for ihc Pcriiijnciii Ctiiirii>f
Inierniii<>ndl Jurti:c."(I.C'.J.X<.porr.s1957. ai p. 71.1
44. However. it is imoortant not onlv tu .ote the oarallels that exist h~- ~ ~-~
tween these two treaties but also the view which the Court expressed in the
Barcelona Traclion case as ta the nature of the obliaations com~rised in
Articles 2 and 17 of the Hispano-Belgian Treaty. of these provisions the
Court said:
"ln the light of these provisions it would be difficult either tu deny the
seriousness of the intention ta create an obligation to have recourse tu
comoulsorv adiudication-al1 other means of settlement failine-or tu
assektthatihis obligation was exclusively dependent on the existence of a
particular forum, in such a way that il would become totally abrogated
and extinguished by the disappearance of that foruin. The error of such
an assertion would lie in a confusion of ends with means-the end being
obligatory judicial settlement, the means an indicated forum, but not
necessdrily the only possible one." (I.C.J. Reports 1964, at p. 38.)
45. This led the Court tu stress the incidental character of the choice of
forum:
"If the obligation exists independently of the particular forum (a fact
implicitly recognized in the course of the proceedings, inasniuch as the
alleaedextinction was related to Article 17(4) rather than ta Articles 2 or
17(i), then if il subsequently happens that the forum goes out of exis-
tence, and no provision is made by the parties, or otherwise, for reme-
dvina the deficiencv.it will follow that the clausecontainina the obligation
will for the time being become (and perhaps remain GdefiniteG) in-
operative, i.e., without possibility of effective application. But if the
obligation reniains substantivelv in existence. though not functionallv
capable of being implemented, iÏ can always be rendered operative once
more, if for instance the parties agree on another tribunal, or if another
is supplied by the automatic operation of sanie other instrument by
which bath parties are bound. The Statute is such an instrument, and its
Article 37 has precisely that effect." (I.C.J. Reporls 1964, at pp. 38-39.)
The obligations in the General Act ta refer disputes ta conciliation, judicial
settlement and arbitration are. it is submitted. of an identical character. It was
possible, for instance, for a Party to accede tu only the conciliation proce-
dures in the General Act, and it is obvious that the intention was not to sub-
ject the General Act i,! rorotu the continued existence of the Permanent Court
of International Justice, The obligations in al1 parts of the General Act are
obligations ta submit disputes ta one or other of the forms of peaceful
settlement. The actual procedures and instrumentalities are only the means
by which these obligations could be carried into effect.
46. The emphasis which the Court placed upon the autonomy of the sub-
stantive undertakings of theTreaty of 1927is thereforetheemphasis whichthe258 NUCLEAR TESTS
Governnient of Australia seeks to place upon those of the General Act. The
Court said that it could not regard the obligation ta have recourse to com-
pulsory adjudication as being exclusively dependent on the existence of a
particular forum, for judicial settlement was the substantive object of the
Treaty, not judicial settlement by the Permanent Court. Judicial settlement is
theobject of Article 17 of the General Actjust as it is the object of thecorres-
ponding Article of the 1927Treaty.
(c) The Specific Reqiiiremenrs of Article 17 O/rheGenernlAct
47. Article 17 of the General Act, in providing for the jurisdiction of the
I'ernidncnt Court. uscs Ianguagc the cileci of tihich is io prescribc four idn-
dition, ivhich niusi he sÿtisficd if ihc Ariiclc is to beciTccti\e. The Go\,crnnient
of Ailsiraiid u,1IIrcfcr Io earh of these in turn:
48. First, there must exist a dispute between the parties. That there is such
a dispute can hardly be questioned. Indeed, no contrary suggestion has been
made, either in the French Note and Annex or in the Court's Order of 22 June
1973or the declarations or dissenting opinions attached thereto.
49. In these circumstances il is necessary 10 do little more than simply 10
recall the history of the diplomatic correspondence that preceded the insti-
tution of the present proceedings; that history is described in par.grap-s 8-18
of the ~pplication and was &lplified in cërtain respects in the ~1torne~-
Generai's speechbefore the Court on 21 May 1973on the question of interini
measures of vrotection. The corres~ondence shows that over the last decade
ihc ,\urtr.ilianCiovernnicni 11.1h secn ai p~in, taiconi,c! to [lie French Ciokcrn-
iiicnt ils appreheniioii and cunccrn ai the conduct of trenih niirlcar ueïpons
tcsts dt iis Pïcific Tests Centre. The Appliation directcd particiilnr ;ilteniion
to the Ausiralian Sole of 3 Januar) 1973and the Frcnch reply of 7 Fcbruar).
In ils Nute thc hii~tralian Go\ernmcnt siated thai iii11sopinion the conduct
of further nuclear tesis ivould be unlauful and ii inviied the Frcnch Cio\,crn-
ment to rcirriin froni an). further atiiiosphcric tcsts in the Parific arc3 2nd
formally tiia.;?urc the Australi~n Ciovernmcni thai no morc such lests would
he held in the Pacifie area. The FrenchGovcrnmcnt. in iis replv of 7 Fehruarv
1973, siatcs iis ci)n\,iciion that the conduci of ihc tesis did no; ini,olve a via>--
laiion oiany rulc of internaiii>nal Iaw. In a Note to the French Ciovcrnment of
13Fcbruary 1973the Australian Governnient ideniified this diiTerence of voeu
as anioiiniing 10 a "substanti;il Icgal dispute" bctucîn the liio Go\crnnients.
but ai the same ilme indicaird ils uillingnes\ IO hold ncgoiiaiions iiiih the
Frcnch Governnicni. Thcsc took placc on 18-20April 1973. Further technical
di\cussion\ hciuccn siientists were hcld beiireen 7-9 May 1973. Thesedii-
cussioni lcd 1,)no sctilc~iicni of the ditTercnics bctucen the parties. Indccd. in
3 staiciiicnt niiide in ihc French Parliament on 7 hla) 1973the Frcnch Gobern-
nient had indicïicd ihat. regardlesr of the prtiieiti made by Ausiralia and
oiher coiintries. iidid no1 eni,iwge any cïnccllaiion or mi)dification of the
programme of nuclear testing as originally planned (see Application, para.
18).
(ii) Disputeberwzeet"rParties"
50. Subject to the question which will be examined in detaii below, as 10 MEMORIAL 259
whether the General Act is slill in force. there has been no sunnestion bv the
French Governmcnl or anyonc else tha~~ustralta and rance-ir no1 parties
to the General Act. The acceptance by the iwo partics of the General Act and
the fact that neither has terminated iis acceptance are set out in paragraphs
19,20 and 24 above.
(iii)A Dispute as Io the "Respective Righrs" of theParries
51. It has already been indicated that. while in Chaoter 1. Article 1. of the
General Act, the pÛrt,es underrook to cubmit tu a procedure ofconoliation
"disputes of e\er). ktnd". in Chapter II. Article 17. they cngaged theiiisel\es
to submit fur dccision to the I'erm~nent Court of Internaiional Juslice "al1
disputes with regard to which the parties are in conflict as to their respective
rights".
52. The reason for this dilierence in treatment is the essential distinction
between~~olitical and leea- disou.es. A comoarison between the two Articles
clearly shows the distinction as to the means of settlement respectively pro-
vided for the two categories of disputes. Only conciliation and arbitration
are foreseen for politicai disputes.
53. For legal disputes, on the other hand, no recourse 10 the conciliation
procedure is foreseen unless both parties so agree. The agreement of the
oarties-~~ al~o re.uire~ ~or substitutin- arbitration for iudicial settlement. The
only compulsory means of settlement provided for with reference to a dispute
of this kind is the submission for decision to the Permanent Court of Inter-
national Justice by application from one of the contending parties.
54. An examination of the rravoitx préparoloires of Article 17 confirms
that the formulation chosen was simply an attempt to provide a more precise
formulation of the then more usual phrase, "disputes ofa legal nature" 1.
55. The distinction between "legal" and "political" disputes which the
above analysis reflects is too well known to require detailed,support by
reference to literature. There is, however, a succinct treatment of the subject
in Oppenheim's Ititernotional Law, Volume II (7th ed., 1952), al page 4,
note 1, where three meanings of the distinction are examined. The third is
that "it mav have reference to the attitude of the Dartv outtine forward a
claim or a défence.A&ording to the las1test only those disputes are 'legal' in
which the oarties admittedly basetheir claim or defence on existing law, while
dis.ute~ ~hich are admittedlv concerned with a claim for a chan& in t-e law
are disputes as to 'conflicts of interests', and as such political and non-jus-
ticiable". The same note later adds: "The third test, which is purely subjective
and regards the attitude of the parties as the decisive factor, has a great num-
ber of adherents and finds support in the language of the General Act and of
numerous other instruments."
56. For the our.os. of establishinr tha- the oresent disoute between
r\~tsttjlirl and France is one regarding legal rightc ntin quite sullicient to look
only at the Appliclition. 'l'he Governnient of Austmlia puis ils caseexclusively
in terms of iegal rights when it asserts the unlawfulness in international
law of the nuclear tests executed by France in the atmosphere of the South
Pacific Area. This is no more than a reflection of the terms in which the
L. of N., Records of rheNinth Ordinary Sessionof the Assentbly;Ofici01 Journal;
SpeciolSupplement No. 65,September1928, al p. 61Theformulation was usedin the
Locarno Agreements, cg., Arbitralion Convention betweenGermany and Belgium
of 1October 1925,Article 1,54L.N.T.S., p.305.260 NUCLEAR TESTS
Government of Australia addressed the FrenchGovernment on 3January and
13 February 1973 (A~plication. Annexes 9 and II). Furthermore. the "legal"
character of the dispute is conclusively demonsirated by the fact thaïthe
French Government, in its note of 7 February 1973to the Australian Govern-
ment (A~plication. Annex 10) exoresslv took issue with the Australian
~overnn;ent on ihis aspect of the m~iter:~~.~urihermcire. thc French Co,ern-
nient. \%hichhxs itudied nith the clo,esi aileniioii the problcnis raiscd in the
Australian Note, has the conviction that its nuclear experiments have not
violated any rule of international law. It hopes Io make this plain in connec-
tion with the 'infractions' of this law alleged by the Australian Government in
its Note above cited." It would be imoossible to formulate a more exolicit
ackno!rledgenieni of the ch~racicr of ihi preseni di\puie as one relai&! Io
"respec.ri\e rights". and therefore as ilne cf those conieinplaied by rlrlicle 17
of the General Act. The fact that a particular question may have a political
or military aspect does not of course prevsnt il from also being a legal ques-
tion and a disputeabout it (rom being a legal dispute.
(iv) TheScopeofthe Reseri~atiofro sfrhe Parties
57. It is oerhaos hardly necessarvto refcr to the French reservaiions to the
Gcneral A& The trench Aiinex. ~lthougli it has pu1 forward conieniions in
ihc altcrnlii\e,on the bssis Tirsrihai ihe Genïral Act is no1in force and then
on the basis that it is, does not invoke any reservation. Nor is anv oint made
in this coiineciiain hy rhe Coiirt i)itj~fnibers. llo~ie,er, in o;drr that the
poiition should nui hc Ieft open or unceriain. ihe ,\uïirali:inGo\ernment uiII
refer brieflv to these reservations
58. ~he-~rench accession was limited in the first place to disputes arising
after its accessionwith regard to situations or facts subsequent thereto. Clearly
the present dispute meets that requirement.
59. Next, the French accession excluded disputes "bearing on a question
left by international law to the exclusive competence of the State". Again, it
is manifest that a disDute which raises such issues as the violation bv France
of its internaiional oblig~iion> Io abstain froni carrying on nuclear ieiis in ihe
atmosphere in the Souih Pacitic areit or no1 IO infringe Ausirdlia's territorial
sovereiantv or the freedoni of the seasdoes not fall within this limitation
60. fhe.other reservations in the French accession relate to disputes sub-
mitted to the Council of the League of Nations and to the law to be applied
by arbitral tribunals. Again, neither is relevant in this case.
61. In February 1939the FrenchGovernment addeda reservation excluding
"disputes relating to any events that may occur in the course of a war in
which the French Government is involved". As the French Government was
not involved in any war at the date of the Application in thiscase thedispute
cannot relate Io an event which niay occur in thecourse of a war. Thus it is
apparent that the present dispute does not fall within any of the French
reservations.
62. Tt is necessary next 10 examine the Australian reservations. First,
Australia excluded disputes arising prior to its accession or relating to situa-
tions or fdcts orior to that accession. This reservation is obviouslv irrelevant.
63. Next, ~ustralia excluded disputes in regard to #,hich the parties agreed
to some other method of ~eaceful settlement. The parties have not aareed .o
any such method.
64. Thirdly, Australia excluded disputes with other niembers of the British
Commonwealth of Nations. France is not such a member. 65. Fourthly, Australia excluded disputes concerning questions which
according to international law are solely within the domestic jurisdiction of
States. An indication has already been given, in relation to a similar French
reservation. whv this is irrelevant.
66. Fifihly. ~\urir;tli;i e~cliideil dispuics rriih in! pdriy ICIihe Generdl .Act
uho \rd\ iiot a .\lcniber id the Le:igue <if N.iiii>tir. Ir.iricc rras ;ila11niaisrtdl
i;iiies nrior td the iIi,\oliiii<i<iithe Lexcue3 Sleiiihcr oiih3i Orran17xiioii. A
comparable reference tu membership of the League was examined by the
Court in the Soirth WestAfrico cases(Prelimitrary Objecrions)(I.C.J. Reports
1962, at p. 335). Paragraph 2 of Article 7 of the Mandate provided that "if
~ ~2~ -~-r~ ~~h~u~d arise ~ ~~een the Mandatorv and another Member of the
League of Nations" relating tu the interpretation or application of the
Mandate. it should be submitted to the Permanent Court of International
Justice. South Africa contended, to use the words of the Judgment, "that
since al1 Member States of the League necessarily lost their membership and
its accompanying rights when the League itself ceased to exist on April 19,
1946, there could no longer be 'another Member of the League of Natioiis'
today". This contention was rejected by the Court. Its conclusions were in
substantive terms identical with the views expressed by Judge Sir Arnold
McNair in his separate opinion on the IirrertrariotfolSturrrsof Soiith West
Africa:
"The expression 'Member of the League of Nations' is descriptive, in
my opinion, not conditional, and dues not mean 'so long as the League
enists and they are Members of it'." (I.C.J. Reports 1950, at pp. 158-
159.)
These views were referred tu, evidently with approval, by Judge Jessup in
his seoardte ooinion in the Soirrh West Africa cases(I.C.J. Reoorts 1962. at
p. 412).
67. The situation was thus one in which Liberia and Ethiopia, having been
members of the Leaeue before its dissolution. were for the ourooses of a
jurisdictional clause,>till tu be regarded as ';~embers of the ~eague of
Nations" in 1962, 16years after its dissolution. The Government of Australia
can see no basis for distinguishing that situation from the present one, in
which France was also a Member of the League of Nations before its disso-
lution. Nothing has happened between 1962 and 1973 tu change the legal
oosition.
63. The Ausir.ili.in accessi.>ndI\o ciinixined rcier\3iiJns in conne.'iion
<r1111dtipuies iindcr :i)niiiler:iti<in by ihe C<iiin:tl ui the I.clig.ic. Thesc rescr-
vations manifestly ceased tu be relevant after the demise of the League of
Nations.
69. Some further reference is made at page7lof the French Annex to the
effect of these two reservations. The orecise legal thrust of the French sub-
missions is far from clear. However, in so far as they appear tu start from a
orooosition that in some way thesereservations are "uncertain", the Govern-
ment of Australia can onlv sav. .at this comment aoDearstu b. .ntirelv mis-
placed. The content of the reservations is absolutely clear and they are evi-
dently quite irrelevant in the present case. It may also be said that the sug-
gestion made by the French Government that the attitude of a party can, as it
were, predetermine the decision by the Court as tu the effect of the relevant
reservations is obviously logically defective.
' II, pp. 353-354262 NUCLEAR TESTS
70. There remains only the Australian reservation, made at the outbreak
of the Second World War, which excluded any dispute "arising out ofevents
occurring during present crisis". This too is irrelevant in the present case.
71. It is evident, therefore, that no relevant reservation limits or excludes
the jurisdictionof the Court in these proceedings.
(v) Refrrence Io thePernione,tr Cortrtof I~lrernationalJtwlice
72. For the reasons stated in paragraph 27 above, the rcference in Article
17 to the Permanent Court of lnternational Justice must now be read as being
to the International Court of Justice.
(vi) E.rclf!siono/Re/ere,rce Io "Arbirrril Tribrtnal"
73. Finally, it may be observed that the terms of Article 17 apply "unless
the parlies agree to have resort to an arbitral tribunal".There has been no
such agreement between the parties.
74. The Court is thus confronted by a situation in which every condition of
Article 17 of the Generzl Act is satisfied. There is, therefore. no reason why
that Article should not serve to vest jurisdictionin this Court in these pro-
ceedings.
2. THE GENERALACT HAS NOTCEASED TO BE IN FORCE BY REASON OF
1TSRELATIONSH~ PlTH THE LEACUE OF NATIONSSYSTEM
(a) TheFrenclr Assertion
75. In the French Annex it is asserted that the General Act is no longer
valid because (iiiter alia) of the circumstance that the Act was an integral
part of the League of Nations system. Tt is said that it is linked ideologically
and structurallv with that svstem. that these links were em~hasized in the
Australian and-~ew zealand acceptances of the General Act and that after
the demise of the League il was thought necessary 10revise the Act.
76. ln sumort of ils main submission that the General Act is still in force.
the Go,crni~~i~ntof Auciraliasubmiti ihat h<iac\er one describcs ihç rel~tton:
ship hetueen the Act and ihe League of Xations systciii thai rclaiionship was
injiillicieIo rcndrr the Aci invalid by rc:isoii of the ileniirc of the LFJPUCIn
1946. It is submitted thatthe vital paits of the Act on which the AusGalian
Government relies to support its case that the Court has jurisdiction in this
matter are still fullv overative and in force notwithstandinr! such demise. To
support this submiisi0.n il is proposed to consider, first, the-historical circum-
stances in which the Act came into force, and to analyse its provisions in so
far as they depended on the League system.
(b) TheLeazne System and rhe General Act-Distinct atid Separate
77. It is true that both the League of Nations system and the General Act
were part of the same ideological milieu. since both were devised to bring
about the veaceful settlement of international disoutes in a world which had
been shattered by the 1914-1918war and which feared another such war. But,
so far as the legal structures of the two systems are concerned-and this is
what is relevant for present purposes-they were quite separate.
78. It would. indeed, even be inappropriate to describe them both as
"systems", because any such designation of the General Act could operdte tendentiouslv to sueeest an orranizational or structural com~arison between
it and the ~éague cf~ations which cannot in fact be made,-for the General
Act was neither more nor less than a treaty in multilateral form which had no
characteristic other than to create reciprocal obligations between individual
parties. The Covenant of the League of Nations, on the other hand, was also
the constitution of an international organization.
79. The fact that oeaceful settlement of disvutes is the sole purilose of the
General Act and alsi a significant feature of the Covenant of the League
certainly results in some partial parallelism, and it is certainly true that both
were motivated bv the same moral and ~olitical DurDoses. But. aDart from
this, the difference in purpose and machinery of the two instr;ments is
sufficiently striking tu demonstrate their mutual independence.
~ ~ ~i h~-~ae-6f~ ~ Nations was the first effective move towards the orran--
zation of a world-wide political and social order. The Covenant, in Articles
12-15, indicated various ways in which disputes might be settled-by arbitra-
tion, by reference to a Permanent Court of tnternaiional Justice tu he estab-
lished, or by laying them before the Council or Assembly of the League. But
it was orimarilv concerned with disDutes likely to lead to a "rupture".
81. it was bécause the of the oven n seen td incomplete and
vague that during the 1920s various proposais were put forward tu ensure
international veace and securitv within the framework of the Covenant
82. One >uih 3111hiiioua IO perfect the C.o\en~ni a.: iibiirricr agdinsi
nar \%a the Cieiic\,;i Proto~.ol for the I'iiifi< Sctileiiicnt oi I)i\puics sdi~pted
hy the Asscnibly of ihc l.ea#iie,rf Kati<in,on? Ociober 1924. Under rii~lc 1.
the CignLtory Stdtcs unJert~iuk te iiiake c\cry e!T<>ritn their pi>\rer to çcLiirc
ihc inirod.i~tion into thc <'<>\enan1of seri.iin anieiidiiicnis. Ilic I'roto~~>l
would have hound al1 its sianatories to accept the compulsory jurisdiction of
the Permanent Court of ~nkrnational lustice. For disputes that could not be
settled by a process of law or by the Council it was provided that a special
committee of arbitrators should be constituted. Various other provisions
attempted to perfect the League of Nations system. But the Protocol was
regarded as heing too perfect and never came into force 1.
83. Another such proposal for strengthening the Covenant was the Treaty
for Strengthening the Means tu Prevent War, which was opened for signature
on 26 September 1931, but which never came into force. This Treaty incor-
porated a German suggestion that the parties might undertake in advance
tu accept certain recommendations of the Council of the League of Nations
in a crisis.
84. But various other wro.osa.s were made at the time which, although
iii~~ri\~tedhy ihc idiiie ide.il'1%th~se upon ahich rhc Lcaguc <iiSilions ad,
i,iunJeJ, ucrc separiiie .$#idoutii.1~ the Le.igiie .y>rcln. Ihc rli~i\pr,iiiinciit
of thcie na$ the Gencr.11 I'aci i,urthe Keniiiia.iiion of \\'sr (the Kçlltigg-
Briand Pact), which was signed in Paris on 27 August 1928 and which came
into force on 24 July 1929 2.Articles I and 2 provide:
"Article 1
The high contracting parties solemnly declare in the names of their
respective peoples that they condemn recourse tu war for the solution of
1 See Eppstein 1.(ed.),Ten Years' Life ofrhe Leagueof Narions (London, 1929),
Chapter VI1(written by A. Henderson, U.K. Secretaryof State for Foreign Affairs),
at p. 99.
2 94 L.N.T.S. 59.264 NUCLEAR TESTS
international controversies, and renounce it as an instrument of national
policy in their relations with one another.
The high contracting parties agree that the settlement or solution of
al1disputes orconflicts of whatever nature or of whatever origin they may
be, which may arise among them, shall never be sought except by pacific
means."
85. The Kellogg-Briand Pact could be regarded as extending and comple-
menting the Covenant of the League in that the parties to it renounced war
and aereed to resolve their disputes onlv bv ~acificmeans. TheCovenant. in
~rticles 12 to 15, laid down procedures-foi the pacific settlement of certain
international disputes. But essentially the two documents proceeded from
d~~ferent conce~~.ons. and harmonv between the two could onlv have been
achieved by aremodelling of the "diiputes" articles of thecovenant to provide
an all-inclusive svstem for the pacific settlement of al1 disputes. Proposais
were made ta kniÏ the two documents into a single structure.~he very litle of
the item under which the matter was discussed within the League ofNations
servesto confirm this view of the mafter. It read:
"Question of amending the Covenant of the League of Nations to
bring it into Harmony with the Pact of Paris 1."(ltalics added.)
86. It riasprecirely he.~~uscthe necd uaj felt 31 this tinie for .in ill-incltisirc
ohligatory con\eiition for the piiciti~ setiletnent of al1 intçrnation.tldisputes
ih~i the Gcncral Act \i.iiconceivcd. And it!r.;~s~rïciscly th31 kind of l;ingua~e
that was used at the time by the ~overnme't of the United ~ingdom io
describe theorigins of the General Act. In its"Memorandum on the Proposed
Accession of His Majesty's Government in the United Kingdom ta the
General Act of 1928for the Pacific Settlement of International Disputes 2".it
stated that a number of States Members of the League of Nations desired to
accept the principle of all-inclusive obligatory pacific settlement ofdisputes
and to achieve this end by means of an open multilateral treaty. The Memo-
randum went on to observe(p. 3):
"So long, however, as no such treaty was available, these States were
compelled to have recourse to the much more lengthy and laborious
exoedient of makino a series of bilateral treaties with one another. The
m;ltiplication of such treaties, often needlessly diverse in text, directed
attention to the inconveniences of this system of bilateral engagements
and to the uree-t need for some ooen convention which woild afford
States Members of the League an =asy means of accepting the principle
of obligatory pacific settlement, and of a predetermined procedure in the
handling ofany disputes which miçht hereafterarise. The mere existence
of such a predetermined procedure, and its acceptance in advance hy
States which might subsequently find themselves at variance, would, it
was e-nerallvf.lt. .ea oowerful contribution to the senseof international
security, and would have great psychological value in banishing from
men's minds the idea of war, and replacing it by precise ideas of peaceful
methods of settlement."
1 L. of N., Commirreefor the Amendment of the CovenantoftheLeague ofNorions
in OrderroBring ithro Hormony wirh the PoerofParis, Minutes, doc. C. 160.M.69.
1930.V.
Cmd.3803,H.M.S.O.,1931,p.3. The criteria inspiring the General Act was accurately summed up in another
reference as follows:
"The work is divided ... between three types of body, al1strictly 'non-
oolitical'. There is the Permanent Court of International Justice which ~~ ~.
to have the last word as regards legal disputes.
There are Conciliation Commissions, which are to deal, in the first
instance, with non-legal disputes. And, finally, there are Arbitral Tri-
bunal~, which are to have the final determinationof non-legal disputes 1."
87. The General Act was a completely distinct and separate instrument
from the Covenant of the League and, becauseof its comprehensive nature,
was ideally suited to the implementation of the pledge to settle disputes
pacifically contained in Article 2 of the Kellogg-Briand Pact. A contemporary
publication of the League of Nations Union-The General Act of September
26, 1928, for thè Peaceful Serrlemenr of International Dispirtes-makes clear
(p. 4) the relationship between the two instruments, especially in view of the
failure of attempts to amend the Covenant. The document observes (p. 6)
with respect to the GeneralAct, that-
"reference to the League's machinery is as far as possible avoided. The
object of this was to facilitate acceptance of the Treaty by States not
members of the League."
88. A consideration of the drafting history of the General Act also serves
to indicate its separate and distinct character.
89. The General Act originated in the appointment on 30 November
1927 of a Committee on Arhitration and Security by the Preparatory Com-
mission for the Disarmament Conference, in pursuance of a resolution of the
League of Nations Assembly dated 26 September 1927. This Cornmittee
instructed a draftinr committee to ore. .e a certain number of model treaties
ofc,~nciliation. arhiiration. non-aggrcssion :ind ntuiual ii<~sI>~icc.;is \icll aia
serie, i~fJrafi rcsoluiions. TheC<iinmitiein Juc courre ~rihntircd threc iiiodel
gcncr31conieniioiih (A. R. C J anil thrcc ni.>rlel bll;iicr:ioni,cnti<ini for ihe
pscifi: \etilemcni of interniiioiiillJiipiltcc 2.A, iiriirncd oui. the iltree ntodrl
gcncral cori\enri<ins ircre in f~ct IO forin ihc bar15of the Cicner;il A.? Iaih of
these was to come into force on theaccession ofat least two contracting States.
90. The model treaties were discussed by the Third Committee of the
League of Nations Assembly in the course of the ninth ordinary sessionof the
Assembly in 1928. The Third Committee requested the First Committee to
examinefrom a legal point of view the part of the work of the Committee on
Arbitration and Security concerning the pacific settlement of international
disuutes. includinr the model conventions 3
91. When the ~irst Committee discussed the draft conventions for the
pacific settlement of international disputes, it considered in particular whether
Zimmern A., The Leogueof Norionsand the Rule of Low 1918-1934 (London,
.. .. .~ ~. ..8.~
L. of N.,OffiriolJoumal. Record,of rhe Nmrh OrJ~nor)Sessionof rhe Asrembly.
Repurrof rhe li'drkof the C~t>~»~irree ArhirrorionundSecrrir). doc. A. 2U. 1928 IX,
Pr. -145-1176.
8 L. of N.,Oficial Journal,Recordsof rhe Ninrh Ordinary Sessionof fhe Assembly,
SpecialSupplemenrN , o.61,Mtnurerof theThirdCommilree(Reducrionof Armaments),
SecondMeeting, LI September1928,pp. 8-13. 266 NUCLEAR TESTS
the three model general treaties might he fused into one treaty and this was
referred to a sub-committee 1.
92. In due course, a sub-committee reported to the First Committee and
recommended the amalgamation of the three draft conventions into a single
General Act 2. This was duly done and the draft was discussed and adopted
at the Nineteenth Meeting of the Ninth Ordinary Sessionof the Assembly on
26 September 1928 3. On that date, the Assembly passeda resolution inviting
al1States to hecome parties to the General Act 4.
93. Reference to the drafting history shows in particular that the Act
arose out of a desire to provide a comprehensive means for the pacific
settlement of legal disputes separate and distinct from that provided under
the optional clause provisions of the Statute of the Permanent Court of
International Justice. Under Article 17 a disoute as Io leeal riehts was Io be ~ ~ ~
referred to the Court and could be brought io it by unilateralapplication in
those caseswhere the parties did not agree, previously, on a difïerent method
of settlement (conciliation or arbitration). The aereement to the iurisdiction
of the Court kas to be subject to reser"ations which could be made under
Article 39 of the General Act. However, these reservations were limited to the
classesenumerated in Article 39 (2) and any addition to them was subjected
to specified time and procedural limitations. As has heen previously noted,
the Court found its jurisdiction in the combined operation of Article 17and
the first paragraph of Article 36 of the Statute which gave the Court juris-
diction in "al1 matters specially provided for in treaties and conventions in
force".
94. The General Act was therefore in origin an attempt to provide separate
and distinct means for the pacific settlement of international disputes and, in
the submission of the Government of Australia, when drafted, it achieved
that ohject.
(c) The General Acr Was nor so ItiregratedSrriicruraliy wirh the Leagirr
as to Render II or Any ofIts Relevant Provisions Invalidor
Inoperative by Reason ofthe Demise of the Leagrre
95. In considering the terms of the General Act it is important always to
have in mind the nature of the obligations it contains. As is apparent from
the decision and reasoning of the Court in the Barcelona Traction case,
alreadv considered. thev were oblieations to submit disoutes to the forms of
peaceiul settlement prkvided ani were not dependent on the continued
existence of the trihunals nominated. There can, it is suhmitted, be no doubt
that the reasoning in that case applies directly to Chapter II relating to
"Judicial Settlement", for there is no relevant ground of distinction. Nor is
there any reason in principle why it should no1 equally apply to the basic
obligations in Chapters 1 and III. This, in itself, is sufficient to answer the
' L. of N. Sprr,ol Pipplrnr~zrA'o65. hl,nrrcr ofihe Iirsr C'oni»iir(Conirirurionol
andl.r#ol Ore,riu?is,, Fi/rhI~rrinp. 14 Srpiembcr 1928.pp 27-33.
2 lh>i,~Vln~ ~~-~etinii 2iSrntemhcr 1928 nn 57-65
lbid. Nineleenrh Meeting, 26 September1928,pp. 178-184.The report of the
Third Committee10the Assembly iscontainedin L. of N., OflfcialJournal,Records O/
rhe Ninrh Ordinary Session ofrhe Assembly, pp. 486-497.Another important source
regarding the drafting of the General Act is a joint meeting of the First and Third
Cornmitteeswhich conducted a delailcdexaminationof thearticlesof the GeneralAct.
JoinrMeering of rheFirfr and Third Commirtees, 24 Seplember1928, pp. 79-94.
L. of N., Oficial Journal,SpeeiolSupplemenl, 1928,No. 63,p. 17. MEMORIAL 267
contention that, because of its references ta the League system, the Act is
invalid or inoperative.
96. However, it is useful to analyse more closely the references to the
League systeni for, on closer study, it will be found that they do not render
the continued validity or operation of the General Act dependent thereon.
As a matter of fact, references to the League and its officials only appear in
Chapters 1and IV.
97. ln Chapter 1, Articles 6 and 9 contain references to the League.
Article 6 (1) provides for the choice of Commissioners to be entrusted on the
request of the parties to the Acting President of the Council of the League.
This is Io be done as an alternative to entrusting ifto a third power chosen
bv the oarties. Article 6 (.)..however. orovides what is to haooen. .. no .
agrceiiieni i,reached undcr Article 6(I J.and in o provding dealscoiiiplctcly
uiih an) railiire tu agree arising froin there being nu Caiuncil i~fihe Le3cuç.
~avingin mind thisand the fict that he only Gercises this function althe
request of the parties, the cessation of his office due Io the demise of the
League could hardly cause the conciliation provisions to be invalid or, for
that matter..inoo.rative.
98. There are also references to the League and its officials in Article 9.
Article 9 (1) provides that the conciliation commission shall meet at the seat
of the ~eagui of Nations or at some other place selected by "its President".
Article 4 (1) provides for the appointment of a president of the conciliation
commission and he is the "President" referred Io in Article 9 (1). 1t can
readily be seen that the fact that the League ceasesto exist cannot thwart the
operation of the sub-article, for the president can always select a meeting
place. Article 9 (2) enables the commission ta request the assistance of the
Secretarv-General of the Leaeue. Aeain it is clear that the oower to seek
assistanie and the ability to eiercise-it are no1 fundamental io the valid or
effective operation of the conciliation provisions. lt is a mere discretion and
the inability to enercise it. due ta there being no Secretary-General, could
not possibly prevent the process of conciliation from being effectively carried
out.
99. These are the only provisions of Chapter 1 of the General Act which
are affected by the demise of the League. Ifis clear, it is submitted, that their
operation is not touched in any essential way by the demise of the League,
nor is their validity impugned.
100. Chapter 11relates to "Judicial Settlement". It is the only chapter the
operation of which is invoked to assert the Court's jurisdiction in the present
case. lt places no reliance at al1 on the League of Nations or its officials. It
refers, of course. to the Permanent Court of International Justice. However,
as has already been pointed out, Article 37 of the Statute overcomes this
probleni completely, with the result that Chapter Il can operate with full
force and eiïect.
101. Chapter Ill deals with settlement by arbitration. It contains, in
Article 23 (3).~rovision for the ao~ointment in certain events of members
of the arbiiral iribiinal by the prisident or other judges of the Permanent
Court. Under these provisions the Court only became involved after a series
of disagreements and it was always open to the parties to resolve the problem
by agreement. The existence of the Court was, therefore, no1 essential to the
operation of Chapter Ill and, at most, if Article 37 of the Statute of this
Court were ina~oiicable. the conseauence would not be to abrogate il or
render it invalid but 10 suspend ils ;peration, temporarily, until s&e other
body was substituted by agreement between the parties. 268 NUCLEAR TESTS
102. If, contrary to the Government of Australia's previous submissions,
Chapters I and Ill (having no comparable provision to Article 37 Io sustain
them), were rendered invalid or inoperative by the demise of the League,
Chapter Il would. il is submitted. be clearly severable and operate indepen-
dently thereof. The fact that it is severable is indicated not only by aconsidera-
tion of its terms but also by Article 38 of the General Act which enables
accessions thereto to be made to some only of the three Chapters.
103. None of the articles contained in Chapter II requires reference to
Cha~ters 1 or III before ils orovisions can operate to brins! d-.putes of the
type'therein referred to befoke the Court. ~urihermore, judicial settlement is
a distinct and separate means for peaceful settlement, and there is no reason
to suooose that ihe oarties would have intended that it should ooerate onlv
in conjunction with one or both of the other Chapters. Article 20 does refei
to the conciliation procedures of Chapter 1,but this is only for the purpose of
dealins! with a oroblem which could arise if the relevant oarties had acceded
to boti chapte;s.
104. It is submitted therefore that Chapter II is valid and, by virtue of
Article 37 of the Statute of this Court, can operate of its own force and, if
need be, independently of the other Chapters.
105. It is in reality. only Chapter IV which contains significant references
to the League and its oficials. Articles 43 to 47 involve the League in the
following relevant respects:
(a] Accession is open tu Members of the League or tu non-member States
to which the Council of the League has communicated a copy for the
purpose.
(b] Instruments of accession and additional declarations under Article 40
are to be transmitted to the Secretary-General who is to notify their
receipt to meinber and non-member States referred in (a).
(c) The Secretary-General is tu draw up three lists showing the accessions
and declarations and publish them.
(d) The Act is to come into force on the 90th day following receipt by the
Secretarv-General of the accession of not less than two States.
(el Arici<ions recei\eJ ïficr ihe Aci comei inio force arc IObec<-meelTeciive
froni ihe 90th day fullouing receipt by ihe Secrctary.Genera1.
,. , I>r.nunciaiion of ihe Act shall be elTccicd bv a ivritien notification
addressed to the Secretary-General who is to inform meinbers of the
League and the non-members referred tu in (a).
106. Some of these provisions give the Secretary-General of the League
depositary functions. By the lime of the demise of the League the General
Act was undoubtedly in force. The eiïect of its disappearance could not have
been to nullify the effect of the accessions made before that time, for the Act
had come into force between the parties who had acceded to it. The analysis
of its substantive provisions undertaken in this Memorial clearly establishes,
it is submitted. that the existence of the League was not essential to either
their validity or continued operation and therefore the parties were enlitled
to look to their continued performance. In these circumstances the disap-
pearance of the Secretary-General of the League could have had no larger
effect than to ren~e~ ~ ~t a closed treatv but one still ooeratinr amons! those
States who had already acceded to il. This is establishéd by riference-to the
United Nations law and practice in the rnatter of League treaties which is
examined in paragraphs 120-139of this Memorial.
107. As noted above, the provisions in Articles 43 to 47 provide forthe Secretary-General to receive declarations under Article 40 and denuncia-
tions and to inform other States about them.
108. The function of the Secretary-General, in this respect, is clearly to
act as a channel through which information on these matters is to be passed
on to other States and as a storehouse of the relevant treatv information.
Although the passing of information was not restricted to théparties to the
General Act ils purpose, so far as they are concerned, was clearly to inform
them of the actions of the oarties in resoect of declarations and denunciations.
109. The object of notifying declaraiions under Article 40 and of denuncia-
tions under Article 45 could as easily be achieved by notice direct to other
States or. for that matter. throu~h-the Secretarv-General of the United
N.iii<iii, or \oiiie oihcr $uii;iblc inicrnicdi~ry. Thcrcfi~rjii,i2s ihc ;oiiiiniic<l
ehlbtencc olilir. 1.cjg.i~isnot ciicnti:ilt<iihc<c>ntinuerl\;iIiJ.i) sn.1 olier.tiic>n
of the basic oblinat~ons of the Act (e.n.. Art. 17). so the role of the Secretarv-
General of the feague under these'~;ticles is nit essential to ils validity and
effective operation. It is submitted that none of these.provisions of the
General Act is invalid or inoperative by reason of there being no Secretary-
General of the Ledgue. They are not invalid because none is an essential
condition. Nor are they altogether inoperative-because of resolution 24 (1)
of the General Asseniblv of the United Nations (see ua.a. 1.1 etsea. below)
and also because a part; wishing to make a declaration or denunciaiion ca"
effectively achieve the object of the provisions by bringing it to the notice of
the other parties. if the main obligations of the Act are not dependent on the
continuance of the League it would clearly be contrary to common sense, in
the absence of a clearly expressed intention, to hold that ancillary machinery
provisions, such as these, are.
110. The Governnient of Australia thereforesubmits that on close aiialysis
the General Act was not so integrated structurally with the League as to
render it either invalid or inoperative by reason of the League's demise and
that in any event no such eWectcould have been produced as to Chapter II
of that Act.
(d) Referetrcesfo theLeagitein Otlrer Trrafiesfor PacificSrttlemeiztizorMade
Under rheAirspicesof !lie Leagrte WereNever Regardedas Reasoiwfor
PrevetrritrgtheseT~eatiesfrom Remainiizg;II ForceAfter the
Demiseof theLeug,te
111. The General Act is only one of many arbitration treaties concluded
in the inter-war years. There were 130 such treaties concluded between 1918
and 1928, 94 of them subsequently to 1924, that is, to the Locarno Pact.
embodying no less than 1I dinèrent methods of procedure. They have been
collected in Habicht, Post-War Treafiesfor the Pacific Setrlemeiit of Iizler-
national Disprrres (l931), and they are also set forth in the League publication,
Svstemaric S,trvev of the Arbitratio~i Co,ri,e,rtio,rsand Trearies of Mrttrml
~ ~
Sertlementof ~ispittes1928-1948.
112. The General Act was unique among these treaties only in that it was
in form a multilateral treaty and of a more coniprehensive nature than most
other systems for pacific settlement; and the reason for its existence, as the
United Kingdom Government pointed out at the time (see para. 86 above)
was only that it was convenient to have one instrument on the same subject270 NUCLEAR TESTS
embodying standard rules for pacific settlement instead of a multiplicity of
instruments which diverged in varying respects from each other.
113. Twenty-two of these treaties, concluded at the time of the League of
Nations, make reference to the League of Nations, including its organs, and
so far asthe researchesof the Government of Australia have revealed it has
never been suggested that this in any way linked their continued existence ta
that of the League. These treaties, and the respective articles, are as follows:
1.Treaty of Conciliation between Norway and Sweden of 1924, Articles 7,
8 and 9;
2. Treaty of Conciliation between Denmark and Norway of 1924,Articles 7,
8 and 9;
3. Treaty of Conciliation between Denrnark and Finland of 1924, Articles 7,
8 and 9;
4. Treaty of Conciliation between Finland and Norway of 1924, Articles 7,
8 and 9;
5. Treaty of Conciliation between Finland and Sweden of 1924, Articles 7,
8 and 9;
6. Treaty of Conciliation between Denrnark and Sweden of 1924, Articles 7,
8 and 9;
7. Treaty of Conciliation, Arbitration and Compulsory Jurisdiction of 1928
betweenGreece and Rornania, Articles 5 and 24;
8. Treaty of Arbitration between the United States and Italy of 1928,
Article Il (dl;
9. Treaty of Arbitration between the United States and Germany of 1928,
ArticleII (dl ;
10. Treaty of Arhitration between the United States and Finland of 1928,
Article Il (dl ;
II. Treaty of Arbitration between the United States and Denmark of 1928,
Article Il (dl ;
12. Treaty of Arhitration between the United States and Czechoslovakia of
1928, Article IL (d);
13. Treaty of Arbitration between the United States and Poland of 1928,
Article II (dj ;
14. Treaty of Arhitration between the United States and Albania of 1928,
Article II(dl ;
15. Treaty of Arbitration between the United States and Sweden of 1928,
Article LI id);
16. Treaty of Conciliation, Arbitration and Compulsory Adjudication
between Denmark and Germany of 1926, Exchange of Notes;
17. Treaty of Conciliation, Arbitration and Compulsory Adjudication
between France and Romania of 1926,Article 19;
18. Treaty of Conciliation, Arbitration and Compulsory Adjudication
between Germany and Czechoslovakia of 1925, Articles 1, 18, 19and 21;
19. Treaty of Conciliation, Arbitration and Compulsory Adjudication
between Germany and Poland of 1925, Articles 1, 18, 19and 21;
20. Treaty of Conciliation, Arbitration and Compulsory Adjudication
between Czechoslovakia and Sweden of 1926, Articles 1, 18, 19 and 21;
21. Treaty of Conciliation between Sweden and Uruguay of 1921, Articles 1,
6, 8, 13and 15;
22. Treaty of Conciliation between Sweden and Chile of 1921, Articles I and
15.
Many of these eiiibodied references ta the Council of the League of Nations, the Seat of the League of Nations, and Commissions set up pursuant to the
Leaeue of Nations. which. in addition to the orovisions concernine submis-
sion, iciihc ~urirdiction 01'the Pcrnianent C'ourt ciiInti~rnati,iii~I J~stice, are
\trikin~.,'~;ir.illel i;~liii,~al1rcle\ant derail. t<iihc provsions in theLencr:~l
Act.
114. Treaties 8 to 15 in the above list are shown in the 1972 edition of
Trearies in Force as being in force. Treaties 8 and 9 were specifically revived
after the war. Al1 these treaties contain articles to the effect that their oro-
visions should not be invoked in any dispute the subject-matter of which
would depend upon or involve the observance of the obligations .f a Member
of the League of Nations.
115. Treaty No. 16 between Denmark and Geriiiany has been invoked
since the deniise of the League of Nations in judicial proceedings (Pelersetr v.
Federal Repriblic of Germany, Infrrnaliorral Law Reports, Vol. 42, p. 383
(1961)). This Treaty provided for reference of any dispute not settled by the
Permanent Board of Conciliation ta be referred to the Council of the League
of Nations, which would deal with it under Article XV of the Covenant of the
League. Denmark stated in the proceedings that the Treaty might be taken
into consideration.
116. Other important agreements of this nature which made reference to
the League of Nations organs and yet stayed outside the League of Nations
structure were the Locarno Arbitration Agreements which were similar
bilateral treaties entered into by Gerinany with Belgium, France, Poland and
Czechoslovakia. See 54 Lrxagr,eof Nafiorrs Treaty Sertes, pages 305 A:
117. Just because the General Act was in form a niultilateral treaty it
cannot be argued that it was any more an integral part of the League of
Nations than any other of these treaties. There is no instance of any such
treaty having been held not to be or having been treated as not being in force
merely becauseit contained references to the League or ils organs. The Court
has already held that one of these treaties, the Hispano-Belgian treaty
remained "in force" after 1946. This treaty certainly contained no reference
to the organs of the League of Nations, but did refer to the Permanent Court
of International Justice and this was a characteristic which it shared with
most of the other treaties on the subject. However, is it conceivable that only
the treaties which did make reference to the Learue are no1 in force? 1s it
likely, for instance, that the treaty between ~ennTark and Norway of 1924
which contains references to the League and to the Court is not in force while
that between Spain and Belgium, which only contains references to the Court,
is? 1s it conceivable that the General Act is differeiit froni either of these
treaties, because it shares with one the characteristic of references to the
League of Nationsandwith both that of submission to the Permanent Court?
(e) Conclrtsion
118. While the General Act mav have emerged from the same ideoloaical
milieu as the Covenant of the Leigue of ~ations, it constituted a comire-
hensive scheme for the settlement of al1 international disputes which existed
seuaratelv from the Leaaue .tructures, and for which thise did not provide.
II lias open io noii-iiieiiibers of the I ea~uc and reicreii:e IO !lie leaguc uss.
asl...ia., possible, .,i~>iJe<l.Tlic \pcciii< \tipul~tion \r;~siiiade ih~t iiir~s tu
"reniain" in force tini,l denoiin~cil in sc<tirdan:e \ilth ,\rii:le 45. 'lhc onlv
conclusion open is that the Act was not brought down by the demise of the
League.
119. Since the lapse of the General Act does not follow logically from theconstruction of its provisions or the clearly expressed intentions of its con-
tracting parties, the French suggestion that it did lapse raises questions of
treaty law of importance, and tu these the Government of Australia will later
turn.
170 The Government of Australia turns now tu a further bodv of material
which demonstrates in a striking way the continuity in force of the General
Act at thedemise of the Leaeue. This material consists of the practice of the
United Nations in relation tomultilateral treatiesconcluded under the League.
This practice bears upon the present question in two ways:
(i) It provides an acknowledgement of the continuance in force specifically
of the General Act.~
(1.) II ~li~lc;:i~ciclciltIii1tin the c?c<ai ~IicUriiic,l U~tiuns the fiici that ihe
Lc3cue of N:itioni caiiic 1,).in cnJ iIiJ n<it b\ itseli briiicto;inenJ inulti-
lateil treatiesconiparable tu theGeneral ~ctconcluded during the period
of the United Nations.
(a) Ack,~o~ulrdgo~~cs t ftltc Coirti,inai~ce Nt Force of the Ceileral Act
121. In order to appreciate the significance of the United Nations practice
in relation to the GeneralAct, il is necessaryto start froni resolution 24 (1) of
the General Assenibly adopted on 12 February 1946 (for tex1 see Annex 4,
para. 1). This resolution referred tu the fact that the League of Nations or its
oreans vreviouslv exercised numerous functions under treaties which. alter
th~dissolution o? the League, itwould be desirahle that the United Nations
should perforni. It also stated that certain hlembers of the United Nations
who had previoiisly been Members of the League of Nations and who were
also parties tu the League treaties were proposing at the forthconiing last
Assembly of the League to inove a resoliition under which the Members of
the League would assent tu certain steps for which United Nations General
Assenibly resolirtion 24 (1) ivas going tu make provision.
122. The United Nations resolution then recorded that the hlenibers of
the United Nations parties tu the instrument referred tu above woiild. by this
resolution, "assent and give effect to the steps contemplated below". In
addition the General Assembly declared that the United Nations \vas willing
tu assiime the exercise of certain functions and powers. These fell into three
groups:
(A) fiinctions pertaining tu a Secretariat;
(B) fiinctions and powers of a technical and non-political character; and
(C) fiinctions and powers under treaties, international conventions. agrec-
ments and other instruiiients having a political character.
The action of the Assembly differed in relation tu each of ihese groiips. What
matters for present piirposes, though, is that as regards group (A), no
distinction was drawn between the two categories of, on the one hand,
technicÿl and non-political treaties and, on the other hand, treaties having a
political character. As regards Group A treaties, the Gener~l Assembly
declared that the United Nations was "willing tu accept the authority of the
instruments and ta charge the Secretariat of the United Nations with the task
of performing for the partiesthe functions pertaining tu a secretariat, formerly
entrusted tu the League of Nations". 123. This resolution of the General Assembly was followed two nionths
later, on 18 April 1946,by a resolution adopted at the final Assembly of the
League (Annex 4, para. 2) in which directions were given to the League
S~ ~ ~ ~ ~ ~ ~ ~l to transfer to the Secretariat of the United Nations "for
. ~ ~ ~
safe custody and performance of the firncrions hitherto performed by the
Secretariat of theLeaarr., a.l the original signed texts" of the League Treaties.
(Ltalics added.)
124. Now there is nothing in the general language of these arrangements
to exclude their application to the General Act. That treaty was included in a
list of 72 multilateral conventions (not including additional protocols not
separately registered with the Secretary-General) concluded under the aus-
pices of the League of Nations, which was issued by the League in 1944as
SpecialSirppleme~~tNo. 193to the Oficial Jouriralof the League. That list was
in turn amended to bring the status of the parties up to date in Special
Supplenietrt No. 195 which was issued by the League at the time of its disso-
lution in 1946.
125. The General Act was also listed at page 93 of another list issued by
the League in September 1945, which was confined to treaties conferring
powers on the organs of the League, other than purely administrative ones.
(See List of Conve>ztionswith Ifrdication of the Releva~t Articles Conferrirrg
Powers on the Orgarzsof the L~agireof Nations (C. 100.M.lOO 1945V).)
126. Thus it can be seenthat when, in February and April 1946the United
Nations and the League adopted their respective resolutions, al1 concerned
had in mind a clear conception of the range of treaties covered by the
~ ~ ~ u-ent~.
127. I'hisconccpiic>n sc.iircd 11% rirsi public reflc~iiun in the L'ni1r.J S.iti<ins
coniext in 1949. nhcn ihc Szcreiar,-Gcneral ~iibli,hcd his Ii\i i~fS;#ii<iiuri~.s.
Ratificotioiis, ~cceptances, ~ccesiions, etc.; concerfri~rg the ~ilrilaleral
Conventionsand Agreenir>ztsin Respectof which the Secretary-Get~eralarts as
Depository (Ref. UN Publications 1949, V.9.). The Secretary-General listed
both the General Act (with a footnote reference to the last League of Nations
text) (at p. 25) and, il may he noted, the Revised General Act (at p. 23).
128. Recognition of the survival of the General Act was repeated in 1959
in the Si<n~nzaryof the Practice of the Secrerary-General as Depositary of
Mrrltilareral Agreements (ST/LEG/7 of 7 August 1959, p. 56). This stated
that-
"the Secretary-General of the United Nationstook over the functions of
depositary in respect of the multilateral treaties concluded under the
auspices of the League of Nations".
Footnote number 61 provided a reference to a list of these treaties:
"For a list of these treaties, see Leagrre of Nations Oficial Jorrrnal,
Special Sirpplement, No. 193, 1944."
This is the 1944 League list previously referred to.
129. Between 1949and 1965 the Secretary-General did not puhlish a list of
the treaties which he regarded as subject to the operation of resolution 24 (1).
In 1965 in his publication Multilateral Treaties in respect of which the Secre-
tary-Cenerol Performs Depositary Firnctions(ST/LEG/SER. D/1), he listed in
Part IIunder the heading "League of Nations Multilateral Treaties" 26 of the
72 treaties previously listed by him. This list did not include the GeneralAct.
130. However, this is of no significance to the present question as a con- MEMORIAL 275
the exercise of "uowers and functions" of the Council of the League. Yet the
~ecretary-General's view was that these treaties, although they~might have
incurred extinction because of the cumulative influence of many factors,
includine the wholesale migration of the minorities populations, did no1
suffer this fate by reason on6 of the disappearance of the League.
138. The Secretary-General concluded that, in the event of there coming
into existence an organ which was competent to respond Io the undertakings
made in the Minorities Trealies to the Council of the League, these under-
takings could be revived, since they were only suspended by reason of the
demise of the League in the case of those treaties which survived the other
terminating factors. This is a conclusion amply warranted by this Court's
findings in the matter of the Mandate for South West Africa.
(c) Conclrrsion
139. The Government of Australia therefore submits that the United
Nations practice with regard to League treaties, including the General Act,
supports the continued existence of the General Act after 1946.
4. THEADOPTION OF THE REVISED GLNERAL ACT ON 28 APRIL1949
DID NOT AFFECT THE CONTINUANC IE FORCE OF THE GENERAL ACT
(a) Introduerion
140. The practice of the United Nations, which has jus1 been surveyed,
strongly supports the view that the General Act could no1 have lapsed merely
because of the terniination ofthe League of Nations. It is now necessary to
refer to the fact that in48-1949steps were taken Io revise the General Act.
As will presently be seen, this episode, far from reflecting any termination of
the original General Act, proceeded on the basis, and was a confirmation, of
its continued existence and operation. Indeed, it iso be observed that even
the French Annex does not seek Io extract from the situation any unequivocal
conclusion that the General Act was regarded as al an end.
141. There are Iwo incontestable principles embodied within the frame-
work of the rules applicable Io treaty revision which are of fundamental
importance in considering the effect and significance of the revision of the
General Act of 1928 by the Revised General Act of 1949. Tbey are:
(i) The revised treaty is not abrogated Save as between the revising parties,
ifat all, and then only to the extent of the revision;
and
(ii)Revision presupposes that the previous treaty Io be revised is in force,
otherwise the process would be negotiation of a new treaty and not treaty
revision.
(b) The Revisionof 1949 WasAecompaniedby ExpressStoremenci
that the Original Ac1of 1928 Wasconlinuingin Force
142. The French Annex asserts that so closely did the Act appear Io be
inteerated into the structure of the Le-eue that after itsmise the necessity
-3s rcc~>jin17cof pro~ecding tu rwise ii. Honcvcr, the Anncx concedcs that
the re\,ision of the Ait aas noi accompanied by any clear affirmlii~un thail276 NuCLEAR TESTS
143. Not only was there no such affirmation but, as will appear from the
analvsis in the Daraaraohs that follow, the revision of the General Act was
accimpanied b; the-cléarest affirmations, which went uncontested, that the
General Act was still in force for those States which were Party to it and was
intended to remain in force betwsen the ~arties to if. This was ~articularlv
clear in the case of Belgium, which promoted the revision. The révision wai
not based on the premise that the demise of the League had abrogated it, nor
is there any real support in the General Assembly debates on the subject for
such a proposition. In fact, the debates clearly support the contrary con-
clusion.
144. The revision was elfected by General Assembly resolution 268 (111)
of 28 April 1949, which itself provides evidence that the General Act is in
force. There are three recitals in the preamble to this resolution:
"Whereas the efficacy of the General Act .. . is impaired by the fact
that the organs of the League of Nations and the Permanent Court of
lnternational Justice Io which it refers have now disappeared,
Whereas the amendments hereafter mentioned are of a nature to
restore to the General Act its original efficacy,
Whereas these amendments will onlv aoolv. ...etween States havine -
.,~c~'dcdto ihç Ciencriil ,\ci 3. tliu\ ;tiiiciidcd and, '8.3 coiisequsnce, tiill
iioi .itkci the rizlits oi siicli 5t.1ies p:irtiss io tlic Act 3s esiîblished on
26 S~.riicinher IY2à ui rhoitltl<'/<irmro i,i~.<?r(tort.A,tiirui il nrrwhrrrrll hr
op~ralive." (Italics added.)
145. These recitals are then followed by the operative part of the resolution
which consists of seven paragraphs. One of these, paragraph (c), is concerned
wi.~~~ ~ ~ ~sub~ ~tu~io~ of~the words "International Court of Justice" for
"Permanent Court of International Justice" wherever the latter words appear
in the General Act. The remaining six pa~.gra~hs al1contain amendments to
other parts of the General Act which were aflected by the disappearance of
the League. For example, the reference to the Acting President of the Council
of the League is replaced by a reference to the President of the General
Assernblv of the Unit~d Na~ ~ns. and the references ~ ~the S~cretarv-General
of the ieague are replaced by 'references to the secret=&-Geneial of the
United Nations. Altogether, the replacement of the Permanent Court by the
lnternational Court affects 12 articles; the other amendments affect 10
articles.
(c) As ro the Stibsritefionof the Words"IizternarionalCoiirtof Ji~srice"for
"Permanent Coirrt of InterirarionalJ~utice",the Revisionof the Original
Cenerai Act Had Already BeenA~~romarically Realized,as
BelweenSraresMembers of the Utriled Nations or States Orherwise
Parties to theStacirteof the Internafior~olCoirrt of Jirsrice,
by Virrueof Articles37 and36 (1) of ihe Statute
146. The most far-reaching purpose of the proposal, adopted by the
General Assembly on 28 April 1949, was to restore practical efficacy to the
provisions of the General Act of 1928 concerning the settlernent of what the
Act described as "disputes of every kind", that is, to those clauses which
provided for participation, in the exercise of specific functions, of League of
Nations' ore-ns. These clauses were rendered oracticallv ino~era* .e bv the
disappearance of the League of Nations, although in the very limited terms
that this Mernorial has already illustrated. It was in order to restore the fulleilicacy of such clauses that the proposa1 was made to transfer the afore-
mentioned functions to the corresponding organs of the United Nations.
147. But in so far as the settleientof purëly legal disputes was concerned,
the aim of the proposal, namely, the transfer to the International Court of
Justice of the jurisdiction ascribed by the General Act to the Permanent
Court, had already for the most part been achieved. It has already been
recalled that in respect of the member States of the United Nations, or States
otherwise parties to the Statute of the International Court of Justice, Articles
37 and 36 (1) of the new Court's Statute had already realized the revision that
the proposal of 1949 aimed only to generalize.
148. It is therefore obvious that for the member States of the United
Nations, such as France, Australia and New Zealand, there was no necessity
for accession to the Revised General Act, for the purpose of carrying in10
enèct the transfer 10 the lnternational Court of Justice of the jurisdiction
conferred on the Permanent Court by the original General Act of 1928. In
actual fact. the hindrance caused by the disappearance of the Permanent
Court of lnternational Justice was in 1949 much less important than that
caused by the disappearance of the League of Nations; it usaslimited to
treaties concluded between or with States which were not, or were not yet,
members of the United Nations or parties to the Statute of the lnternational
Coiirt of Juriire. And the lntcriiii ~6inmiiteeofthe (iener.il i\sreiiibly did nui
fail to note quite spccific;illy thdt ihe provisions of ihc Act relating IO the
Pernianent Coitrt had los1a good part of their eiïectiveness only in respectof
Parties whoweretrotnicmbersof the UiritedNationsOrgairizariot~o , r whowere
no! parties to rlreSiatrrteof t/te li~teri~ariol orrrtof Jrrsti1.
149. Notwithstanding the fact that the States parties to the present dispute
did not accede to the Revised General Act of 1949, this accession was no1
necessaryinorder that the transfer be made to the lnternational Court of
Justice of the jurisdictionconferred by the original General Act of 1928 on
the Permanent Court of International Justice. As between those States,
Chapter II of the General Act had already recovered its full effectiveness.
(d) The "Trarar,.r Préparatoires''of the RevisedGeiieral Art of 1949
Clearly Evirleirrethe Coirvictioizof the Coirti~~riiVolidily
otrdEffecrive,ie.c.vf tlzr Origiirol GerteralAct of 1928
150. The history of the process which led to the adoption by the General
Assembly of the resolutions containing the text of the Revised General Act
fully supports the conclusion that the sponsors and the authors of the
resolution were clearly convinced that the General Act of 1928 was still in
force and will reniain in force as between those parties to it who do not
adhere to the Revised Act.
151. The proposal to establish a sub-committee to study the question and
make a report to the lnterim Committee of the General Assembly was sub-
mitted to the Interini Comniittee by the Representative for Belgium, the
well-known international Iawyer M. J. Nisot. In referring to the analogy of
the purposes of the General Act of 1928 with those of the United Nations
Charter, the Belgian delegation proposed that the sub-committee-
"consider the possibility of ensuring the transfer to the organs of the
United Nations. including the International Court of Justice, of the
' UN doc. A/605, 13August 1948,para. 46.278 NUCLEAR TESTS
functions conferred uoon the oreans of the Leaeue of Nations and uoon
lhc Pcrill~irerii Cour1,iTIiilcrn~ironal Ju\ri:e hy the <;ener.i,221 Tor thc
Pdcifi; Setilement 01'1nterniition;il Dirp~izs 01'Sepicniber 20. 19281".
152. The proposal made by the Belgian delegation was, according to the
statement submitted by it, aimed at-
". ..restoring to the General Act for the Pacific Setilement of Inter-
national Disputes of September 1928 its original efficacy. impaired by
the fact that the organs' of the League of Nations and the Permanent
Court of International Justice to which it refers have now disappeared 2".
However, the delegation took care to specify in the same text that-
". ..the General Act, thus amended, will only apply as between States
having acceded thereto, and, as a consequence, will rlof affect the righrs
of suchStarer, parriesto the Act as esrablished oti 26 Seprember1928, as
shoiildclaim to invoke ir in sofar as it might sri11be operative" (italics
added).
153. M. Nisot, in foreshadowing the specific proposal in the Interim
Committee, stated that-
"The General Act wasstill inforce, but its effectiveness was decreased
owinr to the disaoveareance of certain essential oarts of the machine. Le..
the secretary-~&ieral, the Council of the ~e&ue, and the ~ermaneni
Court of International Justice. The aim of the Belgian proposal was the
transfer to the oreans of the United Nations. includine the International
Court of ~ustice,of the functions which the'~ct accoyded to the organs
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 inter-
national disputes 3."(Italics added.)
154. The same position was adopted in a preliniinary report of sub-
cornmittee 2 of the lnterim Committee, of which the French representative
M. Ordonneau was Chairman and Dr. P. C. Jessup was Rapporteur. This
document States that-
"The proposa1doesnot aim at remoiddingthe Cei~eralAct which is still
inforce and to which the Belgian Government is a Party. lts sole object
is to provide for the effective operation of the Act under present con-
ditions by arranging for the transfer of theabove-mentioned functions 4."
(Italics added.)
155. The statement of the Belgian representative, which is Annex A to that
document, contains two relevant passages:
"The Crtreral Act for rlie ~arific settlementof international dis~uresof
26 Seplember1928ls~stilli,rforce. A great number of States have acceded
toit. The aim of the Belgian proposal is to secure that certain adjustments
' UN doc. A/AC.18/18, 11February 1948.
IbidA .d,dendum 1.
UN doc. A/AC.I8ISRII, 2 March 1948,at pp. 4-5
UN doc. AIAC.18148,19March 1948,at p. 10. should be made which would restore il Io complete efficacy 1." (Italics
added.)
"The Belgian proposal does no1 aim al remoulding the General Act,
which is still in force.
Its sole object is to ensure the transfer Io the organs of the United
Nations, including the International Court of Justice. of those functions
which the General Act conferred uDon the orrans of .he .earue of
Nations and upon the Permanent Court of lnternational Justice. These
functions have been mentioned in the analysis of the provisions of the
General Act which has been made above 2."
156. A history and analysis of the General Act prepared for the lnterim
Conimittee by the Secretariat also adopted the same position.
"1 II. PresenrSralus of rhe CerleruIAct
26. In accordance with Article 44, paragraph I, which provides for the
entry into force of the General Act on the ninetieth day following rcccipt
by the Secretary-General of the Leagiie of Nations of at least Iwo
accessions, the General Act came into force on 16 August 1929 and is
now in force for the fourth successive period of five years, expiring on
15Aiigust 1949 3."
157. The Report of the lnterim Committee to the General Assembly of
13 August 1948 niade the following observations on the Belgian proposal:
"ln the view of the Belgian representative, the consent of the parties
was unnecessary since. .. his proposal did iror srtppressor morlijy rhe
Ge,ieral Arr. as establislrediir 1928. brrrIefi ir itrtart as also, therefore,
wharei~errifhrs rheparties IO rhatAcr miglirsri11derivefronrir. The Belgian
proposal would achieve its object through a revised General Act, binding
onlv on States willine. to accede thereto. There wotild thereby be created
an éntirely new and independent contractual relationshipfor the im-
plenientation of certain of the ends contemplated in Articles II (para-
graph 1) and 13 (paragraph 1 (a))of the Charter. Thanks Io a few
alterations. the new General Act would, for thc benefit of those States
acceding thereto, restore the original effectiveness of the machinery
provided in thc Act of 1928,an Act which, thoogh still theoretically in
existence, has beconie Iargely inapplicable.
It was noted. for example, that the provisions of the Act relating Io
the Perniancnt Court of lnternational Justice had los1 much of their
cnè~t.vcnc~~in respect of' partici aIi.;h.ireiioi hlenibcrs i~fthe United
Nations or ptiriies ICIihe Striiiite of'ihc Inicrnati<in.il Coiirt of'Jii\ticcJ."
(Italics added.)
158. It has already been noted that the last remark by the lnterim Com-
mittee applied to a very limited number of States, as in 1949 the great
majority of theStates parties to the General Act of 1928had beconie Menibers
of the Unitcd Nations or parties Io the Statute of the International Court
of Justice, so that for these States the provisions of the Act relating to
judicial settlcment of legal disputes had already recovered their full eiïec-
Ibid.,at p. 16.
2 Ibid.,at p. 19.
UN doc. A/AC.18/56, 4 May 1948,al p. 7.
UN doc. A/605, C.A.O.R.. Suppl.No. IO, at pp. 28-29.280 NUCLEAR TESTS
tiveness. On this point. the purpose of the proposed revision was only fully to
complete the transfer from one Court to the other of the commitments of
compulsory jurisdiction already assured for the most part by Articles 37 and
36(1) of the Statute of the International Court of Justice.
159. Thus itis clear that the Belgian delegaiion, the lnterim Cornmittee of
the General Assembly, and the United Nations Secretariat regarded the
General Act as still in force at the time the Revised General Act was adopted
and that its continuation in force was no1 affected by the Revised General
Act. The reference made in the preanible to the fact of the efficacy of the
General Act being impaired was no1a reference to the substantive obligations
arising under the Act.
160. In the Twenty-Eighth Meeting of the Ad Hoc Political Cominittee of
the Third Session of the General Asseinbly, the Belgian representative in hi$
statenient confirnied that the original Act "was still valid" 1.Again, in the
Plenary Session of the General Assembly at its 198th Meeting, the represen-
tative for Belgium said:
"The General Act of 1928wasstill in force; neverthelessits efectiveness
had diminished since some of ils iiiachinery had disappeared; the Secre-
tary-General of the League of Nations, the Council of the League of
Nations, and the Permanent Court of lnternational Justicez."
161. Even more importantly the representative for France M. Lapie,
observed that-
"The General Act of 1928which it wasproposed under draftresolution
A (A1809) to restore to its oriainal efficacv. was a valuable document
inher/ted irom the League of ~ations and iihadonly ta be brought into
concordance with the new Organization. Moreover, it was an integral
part of the long tradition of arbitration and conciliation which had
proved itself efiective long before the existence of the League itself 3."
162. At the end of the debate on 28 April 1949 the resolution already
quoted was passed opening the Revised General Act for signature.
163. Itis the submission of the Australian Governinent that four major
points einerge from this analysis:
(1) Tlie Cienerdl Ac1 xss rcgdrrled 31thai tinic3s s trraty in fdrce.
(II) Although refcrencci ur'rc made IO 11siinp3ired ctlic~cy. thisuis only in
relation to the machinerv ~rovisions of the Act and rnainly to the fact
that due to the demise of the League of Nations States could no longer
accede to it. If was not made in relation to the substantive obligations
arising thereunder.
(iii)The references to the provisions of the Act relating to judicial settlement
oflegal disputes having los1 much of their effectiveness did not concern
States parties to the Act which had already become Members of the
United Nations or parties to the Statute of the lnternational Court of
Justice. For those States. Chapter II of the Act was regarded as having
already recovered its full effectiveness.
(iv) The RevisedGeneral Act did not affect the rights of States parties to the
General Act.
1 UN Ofiial Records,Third Session, Ad Hoc Political Committee,28th Meeting.
p.323.
UN Ofiial Records,Third SessionPlenary, 198thMeeting, p. 176.
Ibid p..193. 164. In stressing socarefully, as has been seen, that the 1949revision in no
way affected the rights and obligations of the parties to the original Act of
1928, the States intended Io eniphasize that what they pursued was solely
restoration of the Act to the fullest extent of ils fornierefficacy. Clearly it was
their firni conviction that the General Act still constituted-es~eciaIlv that
part referring IO the settlement of disputes-an agreement that was valid and
operative for most of ils original parties and particularly in relation to al1 its
essential substantive obligations, and that it was not an obsolete instrument
sujtable only for revival. And certainly there is nothing that could lead one
to believe that such a conviction has los1ils force with the passing of tinie.
5. THE GENERALACT HAS NOTBEENTERMINATED
BY DESUETUIX OR OBSOLESCENCE
165. The Government of Australia has so Far shown two things. The first
is that the demise of the League of Nations in 1946 did no1 bv itself serve 10
bring the General Act to an-end. The second is that the pr&aration of the
Revised General Act within the United Nations in 1948-1949 proceeded on
the basis that the original General Act was still in force and that the Revised
General Act would no1 deprive the original Act of ils effectiveness between
the parties 10 il.
166. II is convenient now Io turn brieilv 10 a ooint which is made in the
French Note in such fieeting terms that ii is scaicely possible Io determine
whether itis seriously put forward as a legal argument. In a long sentence in
theeighth paragraph of the Note, there appears the phrase "et la désuétude
dans laquelle il est tonibé depuis la disparition du système de la SdN". This
is not elaborated in the Note. While the Annex spends some paragraphs in
develo~.nr -.e thouaht-that the General Act is no longer in f-rce and uses
the uord .'dcsiictiide" trvirc. the ide:is no1 filriliere\pxndcii Once again.
thrrclore, thc Gi>i.crnnient of ,\i1sir31ia 1,placcd in ihe position of hwing to
deal with a contention presented without sufficient elaboration or precision.
167. In so far as considerations of Fact are material Io the survival of the
General Act, the Australian Government has shown above and will further
show that there has been re~eated recoanilion of the existence of the General
Aci ;is a val14il~tdh~~id~nin ~iernational in,iruiiicni. tlere the C;o\ernlnent of
Ai~strali:t~III jet out ~.crt:tan~iiatcr~>lkgal considerations
168. The subiiiissions of the Australian Governrnent can convenientlv
begin froni the presuiiiption, too fundaniental and well established to requirk
citation of authority, that a legal situation once established will continue
until altered bv one or another recornized leaal rnethod. The French Govern-
nient, in its ~bte, hns indicated ilsipinion that "desuetude" is one of these
recognized legal riiethods. But the Australian Governrnent considers that this
method cannot be amlied to the caseof the General Act. Nor can il be taken
into consideration ior establisliingthe terniination of that instrument. The
notions of "desuetiide" and of "obsolescence" are not frequently referred to
by authors of international law. The tex1 books contain little discussion of
them 1 and the Vienna Convention on the Law of Treaties makes no mention
1Sir Gerald Fitunaurice, oneof theclosestanalystsof thesubject,is verynegative
asto their existence:
"Obsolescenceis sometiniesranked as a ground determinativeof treatieshy
lapse.Bi11althoiigh siich casesmay involvecircumstancesrendering ilpossibleta282 NUCLEAR TESTS
of theni. In the coniment prepared by the International Law Commission on
what is now Article 42 of the Vienna Convention, the following considerations
were inserted:
"..lhe C-mmission considered whether 'obsolescence' or 'desuetude'
should be recognized as a distinct ground of termination of treaties. But
it concloded that, while 'obsolescence' or 'desuetude' may be a factual
cause of the terniination ofa treaty, the legal basis of such termination,
when it occurs, is the consent of the parties to abandon the treaty, which
isIO be iniplied froni their conduct in relation to the treaty." (Ycarbookof
the Itzrrriiotio~mlLaw Coninzissioi~1,966, Vol. II, p. 237.)
169. Desuetude(or obsolescence)therefore in relation to treaty termination
describes no more than this: conduct or practice of the parties from which it
ma" be inferred that thev al1 tacitly aaree that the treaty is al an end.
CO. It is evidenl thaiin determining whether a treaiy has been so termi-
nated the greatest caution is required. To prove the extinction by desuetude
of a oreviouslv existina treatv is no easier nor sim~ler than oroving the
forma.tion of anew treaiy. ~hat has to be proved is the clear intention of the
parties to put an end to a valid treaty. Positive and conclusive evidence af
intent must be produced. For instance, there mus1 be siifliciently repeated
instances of opposition by a party to the application of the treaty in question
when invoked by the other parties and a final renunciation by the latter of
their rights to insist on performance of the treaty. The abrogative effect can
surely not result fro~n the coiiduct of one party alone; nor simply from the
fact that no practical useof the treaty clauses has beeniiiade over an extended
~eriod of lime. This ao..ies oarticularlv 10 the case of treaties of onlv occa-
sional or intermittent function as opposed to those in regular and necessary
use.The difficuliies of proof are manifestly greater in the caseofa multilateral
treaty than that ofa bilateral treaty. For mere plurality of conduct would be
of no more significance than unilateral conduct, unless it gave rise to a cogent
inference of unanimous consent.
171. Similar considerations apply to treaties which contain clauses pro-
viding for their terniination on short notice or at regitlar intervals.
172. There is the possibility that desuetude may have its elïect upon a
treat. .v virtue of the emer-ence between the ~arties of a su~erveninp.-ustom.
However, the requirenients for the establishment of such a custom are no less
exactinp, especially in ternis of the identification of the relevant concordant
conduc; of the partics and the existence of a sufliciently widely accepted
opiniojrwis. It is evident that in this case these criteria are no1 satisfied.
173. The only instance of judicial consideration of desuetude which
research has so Par been able Io discover is ~rovided by the decision of the
Senate of Haniburg acting asarbitrator in thecase of ~ttillc,Sltortridrc et Cie.
In this case, Portugal argued that certain British subjects were not protected
by relevant British-~ortuguese treaties because their rights had never pre-
viously been invoked. The Arbitrator said:
"Néanmoins. de ce que plusieurs Anglais (quel qu'en soit le nombre)
n'ont pas voulu se prévaloir de leur privilège, on ne saurait tirer une
invake someother principlesof law conducing 10 termination. such as physical
impossibility of furiher performance,the Rapporteur doesno1bclievethai there
is any objective principle of law terminative of treaties on the ground of age,
obsolescenceo .rdesuetudeassuch." (Yeorbookof rheI~~rer~turioLnaal Comniis-
sion,1957, Vol. II, p48.) conclusion contraire à ceux qui le revendiquent. Ceux-la n'ont pas le
droit d'établir un usage que ceux-ci seraient forcés d'accepter comme
obligatoire. Là question changereait de caractère si le gouvernement de
la G.-.B. avait à plusieurs reprises refusé d'intervenir, estimant que le
traité était tombé en désuétude, ou s'il avait, pour le même motif,
renoncé à poursuivre une intervention commencée. Car il est certain qu'il
appartient aux gouvernements d'abroger expressément un traité ou d'en
suspendre l'usage, ce qui devra êtreregarde par leurs sujets comme une
désuétude dérogeant au traité.
Mais ce non-usage devrait émaner du gouvernement et se manifester
par le refus d'intervenir nonobstant les requêtesde ses sujets a cet effet,
ou par l'abandon d'une intervention déjà commencée par suite des
réclamations de la part du Portugal fondées sur la nullité du traité.
Alors mêmecependant, on ne devrait admettre la vertu suspensive de
l'usage, relativement au traité, qu'avec une réserveextrême.Car dans les
cas où il ne résulterait de la violation du traité que peu ou point de
préjudice pour les sujets britanniques, l'intervention de leur gouverne-
ment serait oiseuse: elle constituerait une impolitesse gratuite envers un
g.,J\,crrieiiient ami; s'en rlhsrenir semit don< il11ncie de ri)urioi~ie et non
Jc rcni~n;taiioii." (Lxpradcllc ei I'~liiis, Hi~~~i,i~<~<.iArbirr<iy,~.iI~ll<,r-
nationaux, vol. 2, p. 78, at p. 105.)
174. The mere fact that a treatv is old or has not heen invoked either a1al1
or recently cannot by itself be treated as leading to its terminafion by desue-
tude. This is clearly recognized by a number of publicists of authority. Thus,
Lord McNair makes the~point in the following passage:
"... bv desuetude is meant not mere lapse of time, however long, but
di,ci>iiiinii;ince oi the uic <ii and re%~rt IO. rl Ireitiy or xqittcscen;e in
siich Jjsc<>~iiiniijn~e. 531 ;igre:it Je~l of ii~lli<irit).on ihe riiattcr exists.
Thii riierc 1xri.c tiiiid,ic, iiai briiir: ahi>iti ilie terniinaiion üfireaiy
is patent upon a consideration of the-ancient treaties which the ~nited
Kingdom Government and other Governments regard as being still in
force 1."(Law of Trearies (19611,p. 516.)
175. The Government of Australia submits that it must be obvious that
the General A,i h.is ni,! f~lleii iiiio ~le,uciude. Truc, ilus noi actually relied
upon .I<a ior ihc wiilciiieni airJispuier Juring the pcri<id 1928-1945;
but that is no more than a oeriod of 17 vears. It certainlv did not out an end
to the treaty, and was not'regarded as having done so..Indeed, ihe French
Government does not so allege. Clearly, the General Act is a treaty which by
ils terms is not in~en~ed for dailv~~~2. The settlement of dis~utes bv the
processes contemplated in the General Act is necessarily irregular and rare.
Moreover, since recourse to the General Act is voluntary and available as an
alternative to other methods, one cannot expect the regularity and uniformity
of use to which treaties are put when the application of their terms is man-
datory.
176. There is, therefore, nothing inherently destructive in the fact that the
General Act has rarely been invoked. What matters is that it has on occasion
McNair, ibida. t,pp. 516-517,gives a number of instances. For example, he refers
to the treaties of alliance between the United Kingdom and Portugal, which though
dating as far back as 1373 wereregarded as still in force in an English Parliamentary
Paper of 1898.284 NUCLEAR TESTS
been used, that this use provoked no opposition at ail from the defendant
State, and that the continued existence of the Act has repeatedly been recog-
nized by States in recent years, when no State has ever denied such existence.
177. In the period 1945-1949 there is clear evidence, as shown above, that
the General Act was regarded as still in force; and this manifestly runs
counter to any suggestion that the intention of the parties was to treat il as
having lapsed. And, as will be shown below, there is striking evidence of the
invocation of the General Act since 1945 by a number of States-and none
morc \<ithan ïr;ince-in iinianner uh.ch run, qu.tc c\ountcr to ;in) idea of
an intenti~in tu reg~rrl the trcsty s41.in end.
t7X. In iliese rondit~on\. IOaiierl the tcrni~n~tion ul ihe General Aci of
1928 by "desuetude" appears as such an extravagant proposition that the
Government of Australia can hardly understand how it can have been
advanced. An alleaation of desuetude. as alreadv.su~--sted.mus1be ~roved
strictly. The burdei of proof rests upo" the party asserting the termination of
the treaty; and this is a burden which the French Government has not even
begun to support.
179. Moreover, it should not be forgotten that the General Act, notwith-
standing the bilateral character of the relationship which exists between the
.~~tie~ t~ an. di~.ute in which it is invoked. is a multilateral tr..tv: and in the
caseof such iiirîdty. if rleruetudc or any other foriii ofgcncral terinination is
to L>ce~tiihl~shc<l.mus1beby referenc~. 10the intention or theo,pi!i,o,irrisa11
the parties, andnot the slightest basis exists for a positive conclusion in this
respect.
180. Summing up, the Government of Australia can regard as fully
answered the French suggestion of the so-called "desuetude" of the General
Act.
6. THE GENERALACT HASNOTBEEN TERMINATE DECAUSE
OF ANY FUNDAMENTALCHANGE OF CIRCUMSTANCES
181. In spite of the conclusion just now reached, the Covernment of
Australia thinks that itmight be useful if brief reference is also made to a
notion which, though no1 mentioned by the French Government, may lie
hiddenbehind the curtain of notions like desuetude or obsolescence, although
it is an entirely different one.
182. For some writers, in Tact, "obsolescence", in so far as il can be
distinguished from "desuetude", is regarded as an aspect of, or as an alter-
native way of referring to. the concept of rrbiis sic sranribrds. It is so treated
by Lord McNair in his Law of Trearies (op. cir., p. 518) and similarly by
Scelle in his Précisde droit desrelis (pp. 417-418).
183. Indeed, to the extent that any reasoned reference is made to the con-
cept of rebrts sic srai~tibi~s,i.e.. of a fundamental change of circumstances,
it is abundantly clear that the concept totally fails to establish the termination
of the General Act.
184. As recently as February 1973, the Court has had occasion 10 discuss
the principle of rebus sic sranribu.r in terms which clearly exclude ils appli-
cation in the present case. First, the Court acknowledged that Article 62 of
the Vienna Convention, dealing with "Fundamental Change of Circum-
stances", might be treated as declaratory ofexisting law on the subject. The
Court said:
". ..the conditions and exceptions to which it is subject, have been embodied in Article 62 of the Vienna Convention on the Law of Treaties,
which mav in man" res,ec~~.be c~n~idered as a codification of existine -
cu\toinïry Iaa. on the \~hje.'r of the terniinaiion oia iredi) relaii~>n>hip
on sciount of ihanxe oicircum~tan~er"~F~~l~r.ri~ ~s~r~.s<l~i~ ctrc.lI.C.J.
Reports 1973, at p.-63).
185. It is permissible, therefore, to look more closely at Article 62. The
material parts read thus:
"1. A fundamental change of circumstances which has occurred with
regard to those existing at the time of the conclusion of a treaty, and
which was not foreseen by the parties, may not be invoked as a ground
for terminating or withdrawing from the treaty unless:
.a. the existence of those circumstances constituted an essential basis of
the consent of the parties to be bound by the treaty; and
(hl the effect of the change is radically to transform the extent of
obligations still to be performed under the treaty."
186. What fundamental change of circumstances could be alleged ashaving
taken place in the present case? Non-use is not such a change; nor is the
demise of the League. To justify the exclusion of these factors it is necessary
to do no more than quote the Court's own words in the Fisheries Jurisdiciion
case:
"The ini<>caiion hy Icclxnd <if il,'vii:il inicrests', \iIii~h rvere no! niade
thesub~cci oi;~n cxpress re$er,uiloli Io tIie~c~cpl;inieofthejiirirdi.'ti~indl
ohligliii<,n under the 1901 Exhtingc of Ni>le\, musi he inicrprcicil, in ihe
conteri of tlie asscrti,iii oi changeJ circuniitances, as an indic~tiiin hy
Icel;ind of ihc re;iion ah, itregards ;xsliind.inicnt:~l ihe cli;,ngc$ \rhi~.h
in its view have taken place in previously existing fishing techniques.
This interpretation would correspond to the traditional view that the
changes of circumstances which must be regarded as fundamental or
vital are those which iniperil the existence or vital development of one of
the parties. .. But the alleged changes could not affect in the least the
oblination to subniit to the Court's jurisdiction. which is the only issue
at t<e present stage of the proceedings" (pp. 63-64).
"Moreover, in order that a change of circumstances may give rise to
a ground for invoking the termination of a treaty it is also necessarythat
it should have resulted in a radical transformation of the extent of the
obligations still to be performed. The change must have increased the
burden of the oblications to be executed to the extent of renderinn the
performance soniething essentially diferent from that originally under-
taken" (ihid.,p. 65).
Need the Government of Australia say more?
187. And. it mav be added. even if there were some sunnestion tha--a
iund.i~i~enixl change of cir.uiii,tdn<e\ had i:ihen plaie, it\%ciulJ he sppro-
priale to recall the fiiiidanicntal riiles olconsstenc) and pi>od &.III in lrcaiy
relaiions u hich underlie the rcrrns of Arii:le 45 tif the \'icnna C~iiivciiiiori:
SILIC III:~n,) longer in\ohe a gru.ind for in\.ilidai~ng, terllltoai!ng,
\iithdra,,i~ig iroiii or \~\pendins ille operaiion oia ireai) undcr Ariicles
46 tu 50 or Ariccles 60 ;ind 62 ii.alter bcconiing ïjvare of the f.icts:
(a) il shall have expressly agreed that the treaty is valid or remains in
force or continues in operation, as the case may be; or
(hl it must by reason of its conduct be considered as having acqui-286 NUCLEAR TESTS
esced in the validity of the.treaty or in its niaintenance in force or in
operation, as the case niay be."
188. French conduct which may, at the least, be considered as demon-
strating acquiescence in the validity of the General Act, or in iis niaintenance
in forceandooeration. will be anionnst the matters set out in the next section.
This will be devoted to a consideracon of the confirmation in State practice
and otherwise of the continuing validity of the General Act.
7. THE GENERALACT REMAINSVALID AND EFFECTIVE
(a) Co~eralRcmarks
189. It has already been recalled that the French Note and Annex allege
that the General Act los1ils elïectiveness and became invalid after the colla~se
of the League of Nations. Although an atternpt is made to support ihis
assertion by invoking the demise of the League and the notion of desuetude,
the assertion nevertheless rernains extremelv vaeue. Nol the sliehtest Diece
. -
of evidence is advanced to confirm it. Moreover, it is nianifestly;nsufliCient,
in such a sweepingfashion, to contend that a treaty is terminated because of
extraneous circumstances without any indication being given as to exactly
when, let alone how, ihis occurred. Without some such explanation, the
Court could hardly be satisfied of the correctness of this broad assertion,
or that the onus. which lies on a Dart. ma.ina il. .ad .een discharned. Not -
only h;ij Frlin~c P~ilcJ.Io 111;ike ille alleg~tion in.ifor111\rliicli \ro.ild putiin
issuein thesï pri)iceJ:ngs. but 11hx. re\<;iIcd an attitude of indiiTerencc io the
question of the moment when it considers the General Act to have expired-
an indifference which can only reveal the enibarrassrnent which France iiiust
experience in considering the evidence of ils own practice, and that of other
parties to the General Act, that the General Act was clearly considered in
force al some stage long after the date of the dissolution of the League of
Nations.
190. The orevious sections of the Memorial and those which follow
denionstraie ihai \rh~ieber date is suggested for the Iapsc of ihe Gencr~l Act.
ihere i, >irongevidence 10 suppori ihecontrary rieu thai itci~ntinued in force
For instance, if it is suggested that iis lapse was instantaneous wiih ihe
winding up of the League, why did France, several months later. niake a
treaty referring to the General Act as if it was still in force? (see para. 219
below). Aea... i. il is sunnested ihai il la~sed when the Revised General Act
u.as li&iptcd in 1919. uhy did the sub-c;mmitice of the InirriiiiC~IIIIIIII~~CÇ.
sct up 1,)ronsider the I3elgian propoj~l \hi~h Ird to ihe revi\isli. express the
viewthat it wasstill in force(see para. 154above); and why did the Secretary-
General of the United Nations lis1 both the General Act and the Revised
General Act in connection with his deoositary funciions in that year (see
Dara. 127above)? Further. if it is said to have lavsed after the iudniiieiit of the
court in the ~o;weEio,r ~oniis case (see para. 193below), whi did the French
ForeignMinisier refer to il asstill being in force in 1964(sec para. 233 below)?
And finallv. if it is said to have laosed even later. how does France explain
that the ~eiherlands Foreign ~inister, as late as1971, has told the ~eiher-
lands Parliament that the General Act is in force (see para. 239 below)?
191. II is submitted thai the French assertion that the General Act has
fallen inlai desuetude is not iinly unsupported h) ihe Iirgiinlent in the French
Note hui is si~pporicd neither by the prlicticc of Sliiics and oiher relevani
circumstances, nor by the principles of international law MEMORIAL 287
192. The Australian Government has, until now, negatively proved that
the General Act of 1928 has not ceased to be in force becauseof the specific
fact of the termination of the Leaeue of Nations or because of the ~evision
oi 1949.or e1.ehccaiisc of f~~torslihc obsoles<r.n<r.,<Ic~ur.tuJeor fiiiiJ~riicnial
chanzc of circuiiisilin;cs.Thr ,\iisirdli.!nGovcrnnicnr !\III ni)\\ coiiiplzts11.;
argumentation by positively showing how the jurisprudence, the practice of
the States and the opinions of aothors confirni the continuing validity and
effectiveness of the General Act.
(b) The Judicial Authority Supporting the Coiilini,ation of the Ccneral Act
193. Judicial recognition of the continuing applicability of the General
Act after the deniise of the League of Nations is found in the judgment of
Judge Basdevant in a separate opinion in the Norw~gian Loans case (I.C.J.
Reports 1957, at p. 9). He said emphatically (at p. 74) that there was "no
reason to think that the General Act should not receive the attention of the
Court". While the Court did not itself utilize the General Act in its Judgnient,
this was for reasons quile unconnected with its continuing applicability,
which neither the Court nor the parties to the case contested. These reasons
become clear upon analysis of the way in which France introduced the
General Act into that case.
194. In ifs Application of 6 July 1955, France invokedonly Article 36 (2)
of the Statute. On 20 April 1956 Norway filed certain preliminary objections
to the Court's jurisdiction. One of those asserted that the dispute related to
interna1 and not international law; a second asserted that the dispute related
to situations of fact arising before the French acceptance of the Court's
jurisdiction.
195. To theseobjections the French Government replied on 31 August 1956
with its "Observations and Conclusions", in which il made no lessthan three
separate references to the General Act.
196. First, at page 172 of the Plearli~igs(Vol. 1). the French Government
said:
"Le refus général d'arbitrage de la Norvege est une violation d'en-
gagements internationaux entre la France et la Norvege sur laquelle la
Cour est naturellement compétente pour se prononcer, qu'il s'agisse de
la violation de la convention d'arbitrage entre la France et la Norvege
du 9 juillet 1904 (annexe XII), de la II"' convention de La Haye du
18 octobre 1907 (aiziz~xeXllli. de I'acceotation sans réserves Dar la
France (le 21 !niai 1931) et la No'rvège (leli juin 1930) de l'acte général
du 26 septembre 1928ou de l'acceptation de la juridiction obligatoire de
la Cour par les deux États."
197. Ils second reference appears at page 173 where it said:
"Le chapitre II de l'acte généralde Genève do 26 septembre 1928sur le
règlement judiciaire vise 'tous différends au sujet desquels les Parlies se
contesteraient réciproquement un droit'. L'article 36,s b, du Statut de la
Cour parle des différends sur 'tout point de droit international'. Quels
aue soient les termes desobli-ations assuméesvar la France et la Norvèee
dans ces divers actes, ils recouvrent en tout cas le présent litige. Le
Gouvernement de la Répuhlique francaise a une divergence de vues avec
le Gouvernement norvégien aui. tout en orocédant de la réclamation
- . .
de ses ressortissants, constitue un différend international. Par sa nature
ce différend rentre dans les cas d'arbitrage obligatoire et peut êtreporté288 NUCLEAR TESTS
directement devant le juge international en application des règles con-
ventionnelles en vigueur entre la France et la Norvège.
Malgré ses patients efforts de règlement par la voie diplomatique, le
Gouvernement de Ia'République constate aujourd'hui que la Norvège,
par ses'Exceptions préliminaires', lui oppose un refus absolu d'arbitrage.
Ce refus est illicite, car il est contraiBeune séried'obligations conven-
tionnelles de la Norvège d'après lesquelles le litige actuel entre la France
et la Norvège est un cas d'arbitrage obligatoire."
198. The thirdexpress referenceis to be found at page 180 and is in these
terms:
"Si l'on devait entendre de la thèse norvégienne que c'est la Cour
internationale de Justice seule qui est incompétente, la Cour periiianente
d'arbitrage devant êtresaisie à sa place, le Gouvernenient de la Républi-
que ferait remarquer que I'oBre de sa part de l'arbitrage a rencontré un
refus absolu par la Norvège de toute forme d'arbitrage. Le Gouverne-
ment de la Réoubliaue devrait alors demander à la Cour de constater
qu'il) a. par ce refus d'une ollre d'ïrh~tragc. viulït~on de la con\,ention
du 9~uillct 1904.de la ~on\cniiun dii 18urtohrc 1907et de I'astegéneral
199. There are thus no less than three specific and unqualified assertions in
the French pleading that the General Act was then in force and capable of
beine invoked.
26. There was nothing casual about the invocation of the General Act
in the French Observations of 31 August 1956, submitted by the Agent of the
French Governnient. In less than three weeks what had been said to the
Court in the Obseri'utions was formally repeated to the Norwegian Govern-
ment in a Note from the French Ministry of Foreign ARairs dated 17 Sep-
teniber 1956. The tex1 of the Note is set forth in the Pleadiirgs (Vol. 1, al
p. 301). The French Governnient apparently decided to renew ils appeal Io
the Norwegian Governnient to agree to arbitration, even if the latter would
not accept the jurisdiction of the Court. And so in the course of the Note the
French Governmenl said:
"Le Gouvernenient de la Ré~ubliaue a l'honneur de faire remarauer
au Gouverneinent du ~oyauiiie de Norvège qu'un refus formel de iout
arbitrage dans le diRérend actuellement soumis a laCour prendrait une
erande imoortance. Par la convention d'arbitrage du 9 iuillet1904 la
ÏlmC convéntion de La Haye du 18 octobre l-907. 1'aCte général du
26 septembre 1928, la Norvège a pris. a i'égard de la France, des obli-
gations formelles d'arbitrage. Le Gouvernement de la Republique
regretterait de devoir constater que les engagements résultant de ces
accords ne seraient pas remplis."
201. Clearlv. the words of the French Note convey no other inipression
than that of the existence in force of the General Act ai the date of that Note,
17 September 1956.
202. The Norwegian Government replied to the French Note on 9 October
~95~. remindine -hé French Government that the matter was alreadv under
cons/drration hy the Court and should tredriiltivith within the fraiiieu.ork
of the Court's nr,iiedure. Saiilu.35no1UnIll ils hlenioriril. d3tcd ?O1)eccniber
1956, that thé Norwegian Government dealt with the references Io the
General Act. There arc two significant features of the way in which theNorwegian Government approached this task. First, at no moment did it
suggest that the General Act was no longer in force. Toput itat ils lowest, the
point either did not occur Io, or was rejecied by, Norwegian Counsel, who
included Professor Bourquin, generally acknowledged as one of the most
skilled and distinguished advocates ever ta have appeared before this Court.
203. The second point of significance is that the Norwegian Governnient
specifically stated that the French Governiiient had not previously invoked
in the case three conventions which it was then mentioning. The Norwegian
Governnient concluded that:
"si le Gouvernement francais croit oouvoir articuler contre lui le eriefde
ne pas seconft)riiier aux ohlisaiions qui dCcoulent desditer cain\entions.
on setrouvrrü;~ en prCicnce J'unc dein:snclr nouvcllr." (Plcu~l;»~#< V.i)I. 1.
at pp. 220-221).
204. The French Reply of 20 February 1957 made no reference to the
conventions in question. The Norwegian Rejoinder of 25 April 1957referred
to this fact, andits consequences,in ils opening paragraphs:
"2. 11constate en oremier lieu aue le Gouvernement de la Réoubliaue
francpise ne ?ait plu; état dans sa réplique ni de la convention d'arbi-
trage franco-norvégienne du 9juillet 1904, ni de l'acte généralde Genève
du26seotembre 1928.auxauels ilaccordait une imoortance maieure dans
ses observations et conclusions sur les exceptions préliminaires(pp.172-
173). L'argunientation qui en avait ététirée et a laquelle le Gouverne-
ment norvégien avait répondu dans son contre-mémoire semble donc
abandonnée." (Ibid.)
The Norwegian Rejoinder also noted that no further mention had been made
bv the French Government of ils Note of 17 Sevtember 1956in which. as the
court will reniember, the French Government had again referredto the
General Act.
205. During the oral hearings on 14 May 1957, when discussing the ques-
tion of whether the non-payment of contract debts was in the domain of
questions governed by international law, the distinguished French Agent
reintroduced the subject of the General Act. The Agent said that the Nor-
wegian refusal of arbitration had a bearing on the payment of Norway's
international obligations. He continued as follows:
"Le Gouvernement norvégien porte ses efforts sur l'idée que, s'il y a
refus d'arbitraee contraire aux eneaeements internationaux de la
- -
NorvCge. c'est Ii problciiie ddTéren1.dciii:inds nouvelle. A ici arguiiient
de pure pri1r2Jiire. le <i~iui.erneiiient de la Kcpiihliq.ir. répondra de Jeii~
iiilini@rcs." (Plru<lo,ps,Vol. II31 pp. 59-60,)
206. First. the A~~-~ said that the French reference to the treaties was a
reply ta a ~orwegian objection to the Court's competence. Secondly, the
Agent observed that Francehad repeatedleysought arbitration. Hecontinued:
"Une fois de plus, devant lejuge - dont la Norvège, conime la France,
a fait le souverain de tout litige juridique - le Gouvernement de la
République fait appel au Gouvernement norvégien pour qu'il accepte
la iuridiction de la Cour. Commele sait mon éminent collègue, M. l'agent
-~ Gouvern~me~-~~~ norvée-.n. l'accord des Parties est ~ossible à tout
moment de la procédure (arrét no4, arrét no 5, arrêtno 12). Car, encore
une fois, je dois, au nom du Gouvernenient de la République, lui rappeler290 NUCLEAR TESTS
les engagements formels de la Norvège, d'abord en vertu de la conven-
tion franco-norvégienne d'arbitrage du 9 juillet 1904: 'Les différends
d'ordre iuridiaue ou relatifs A interor or ét detstraités existant entre
. .
les ~auÏes Parites contractantes. .. séront soumis à la Cour pernianente
d'Arbitrage', puis de l'article 17de l'acte généraldu 26 se~tembre 1928:
'Tous différends au suiet desauels les Parties se contesteraient réci~~.-
qocnient un <Iruii scroni souiiiis :ila Cour perinmente de Jusiicc inier-
ndiionilc.' Cette dispos:iiun c5i nppiicdblc il nioins q~c les 1'~rl.c~ iir
choisissent un arbitre; ce que la ~orvège a constamment refusé.
La Cour a donc juridiction en notre affaire, sur la requéte dont le
Gouvernement de la République l'a saisie, sur la base de l'article 36,
paragraphe 2, du Statut, parce qu'il y a un point de droit international
soulevé dans un différend de droit international entre les deux Etal: et
paice qu'il y a un problème de violation de l'obligation d'un Etat
débiteur de payer sesemprunts internationaux." (Ibid,, at p. 60.)
207. Thus the French Agent was clearly invoking the General Act as a
valid and effective treaty and he referred also, specifically, to Article 17.
Iiowwer, most important of al1 in understanding the Court's subsequent
attitude-he lirnited his statement of the basis of the Court's jurisdiction to
Article 36 (2)-the optional clause. In other words, and for some reason,
he invoked the General Act and the obligations deriving from it but he did
not invoke the said Act as itself being a basis of the Court's jurisdiction. But
surely that reason. whatever itmay have been, could not have been. in the
lightof the way in'which the Act \vas cited elsekhere, any feeling on the part
of France that the Act was no longer in force. If it was sufficiently in force to
form the basis for the assertion of an obligation-and the Governiiient of
Australia would emphasize the word "obligation"-to arbitrate, il was
sufficiently in force to serve as a foundation for the Court's own jurisdiction.
208. Turnina from the conduct of the ~arties Io the attitudes taken bv the
\leiiiherj oi itie Coiiri. one linds thc clc~rest sxpre\si<in of jdJisial opinion.
in the dis,eniing opinion of Judge Basdevani. on the continiiing valtdiiy and
ap~licability of the General Act. He said:
'III ihc niniter of conipuls<iry jurisdiciioiiFrance :inJ Soruay arc not
boiind only by ihe Decl;ir;itions tuuhich the) siibscrihcd un ihe basisof
Article 36, paragraph 2, of the Statute of the Court. They are bound îlso
by the General Act of September 26, 1928, Io which they have both
acceded. This Act is, so far as they are concerned, one of those 'treaties
and conventions in force' which establish the iurisdiction of the Court
iinil u hi;h :ire relerredIO in Article 36. plir;igr;iph 1,of ihe Sisiutc. For
the piirposei i11ihe applic~iion <if ihis Act. Ariiclc 37 of the Stai.iic hltr
5.ihriiiiiicithc Iniern;iiional Court (ifJu,ti:e fcir ihe Periii3ncnt Ci>iirt
of Inierii~t.~)n.il Jiisii:e. This ;ici iras iiicriiioned in ilie 0hscrv;iiioofs
ihe Iïrench Ciorcrnnicnt and uar si~hseq~icnilyiniokcd c\pl.citly a1 ihc
he~rinr oi.I.iy 14th h, ihe Aceni 11ii1i:ii Ci<i\rrnniciii. li uas iiiciiiioned
at the hearingof ~ay-2lst, by Counsel for the Norwegian Governnient.
At no tinie has any doiibt been raised as to the fact that this Act is
binding as between France and Norway.
There 1sno reason Io think that this General Act should not receive
the attention of the Court." (I.C.J. Reports 1957, al p. 74.)
209. He continued with the observation that: "At no lime did it appear
that the FrenchGovernment had abandoned ils right to rely on if." (Ibid.. at
p. 74.) 210. Nothing could be clearer than those observations of Judge Basdevant.
He said three things:
(i) the General Act was in force;
(ii) the present Court was substituted for the Permanent Court by Article 37
of the Statute; and
(iii) the General Act had been invoked by France.
211. What the Court said on the subject was (I.C.J. Reports 1957,at pp. 24
and 25):
"The French Government also referred ta the Franco-Norwegian
Arbitration Convention of 1904 and to the General Act of Geneva of
Se~tember 26. 1928. to which both France and Norwav are oarties. as
showing that the two Governments have agreed tu submit their disp"tes
ta arbitration or judicial settlement in certain circumstances which it is
unnecessary here tu relate.
These engagements were referred tu in the Observations and Sub-
niissions of the French Government on the Preliminary Objections and
subseauentlv and more exolicitly in the oral presentations of the French
Agcni Neithcr iilihcie refcrences. houe\er, can he rcg.irded 41 sdlli~~icrii
ta justiiy ilie \ici< thai the Appli~ation oi ihe I'rench <;oi.ernnicni \\a.;.
su Far as the question of jurisdiction is concerned, based upon the
Convention or the General Act. If the French Government had intended
to proceed upon that basis it would expressly have so stated.
As alreadv shown. the Aoplication of the FrenchGovernment is based
clcarl) and preciscly on ihe~ùracgiaii and French I>cclsration, undcr
Ariiilr 36, pardgr3ph 2,of the Siaiiiic In ihusc ~irciini>ian~.esihc Cuurt
u<iulJ not lie justified in sceking a haws for tisjurisdtcii<in diiTcrcni froni
thai ivhich ilic French Go\crnmeni iiself sci oui in ils Application and
hy reference IO uhich ihc case lias heen prcsented by boih Parlie, io ihc
Court."
212. In this passagethe Court neither expressed nor implied any disagree-
ment with ludge Basdevant regarding the first two points made by him,
namely, that the General Act was in force and that Article 37 of the Statute
aoolied to il. The onlv ooint of disaereement was the third-namelv. .. the
naiure and etïect of thé French reliance upon the General Act.
213. The Norivoian Loariscase therefore has a special sianificance for the
present proceedinis. In Judge Basdevant's opinion, theri is the clearest
expression of judicial opinion on the continuing validity and applicability of
the General Act.
214. The French Annex States that il is difficult to believe that the Court
would have so sumniarily excluded the General Act as a ground of its
competence if it had provided a manifest basis for taking jurisdiction.
However, there is nothing Io support this view for the judgnient of the
Court expressesno disagreement with the view that the General Act was still
in force. lndeed the judgment treats the Act as in force when it refers ta it as
beina one "tu which both France and Norwav are oarties". The whole tenor
of the judgment is that the Court's only riason' for not considering the
General Act is solely on the view that the Application of the French Govern-
ment su far as aueslions of iurisdiction are concerned was not based uoon the
Gcncral Aci. liis inipos%ihic tu dedace froni ihis circunijianse th;it the Court
was thercby indisaiing. ii$ihe French Annex iuggests. thai ihc Genersl Ac1
diJ no1 providc a msnifest barn ofjurisdiciion. It is alsi) apparent thdt thosc292 NUCLEAR TESTS
judges who.delivered separate or dissenting opinions also adopted the view
of the Court as Io the jurisdictional basis relied on in the FrenchApplication
and therefore excluded consideration of the General Act.
215. Judge Basdevant's judgment on the question of the General Act
should, therefore, be regarded as a distinct and undisturbed auihority on the
subject.
(c) The Pracricc of Slalcs Cunfirnts rhr Co~ttiti~ii~rg Validity of
<lie Genrral Act
216. There is aniple State practice since 1946 confirming the coiiiinuance
in force of the General Act. This practice has included the invocation of the
Act in judicial proceedings, and other references by States to the Act as a
treaty in being. rndeed, the bulk of State practice relating to the General Act
belongs to the period after the demise of the League in 1946.
217. Prior to that date, practice appears to have been almost wholly
confined to the actions of parties in lodging accessions and reservations; in
1939 Spain lodged an instrument of deniinciation. This relative lack of
activity before 1946 is not to be regarded as unusual or significant. Trealies
for pacific setllement are there to be invoked only when the occasion arises.
Thus an examination of the Ititernatioilal Law Reporls (1919-1972) showed
only ten reported cascs of recourse to one or other of the niany arbitration
treaties concluded since 1900 1.
218. Instances of Slate practice since 1946 are as follows:
(i) The Sertlenru~rtAgreenreizl of 17 Novembcr 1946 Berweor France aird
Tlrailand
219. The League of Nations was wound up on 18 April 1946. On 17 No-
The reported cases referred Io are: (1) Norwoy v.UnilcdSrores(Requisirionof
ShipbuildinrConiraerscase)(1 I.L.R., p. 414). in which the Nonvay-United States
Arbitration Convention of 4 April 1908 was invoked in 1922; (2) the arbitration in
1935betweenAbyssinia and Italy on the Walwal incident, under the Treaty of Arnity,
Conciliation and Arbitration of 2 August 1928(8 I.L.R., p. 268); (3) In re Sociéré
CommercinledeBelgique(9I.L.R., p. 521),in which theTreaty of Conciliation, Arbitra-
tion and Judicial Settlernentof 25June 1929betweenBelgium and Greecewasinvoked
in 1938; (4) ElecrricifyCo»?pai>o vfSofiaanil Bi,lgnrilrcase(9 I.L.R., p.51i), in which
Belgiiim invoked the Treaiy of Conciliation, Arbitration and Jiidicial Seitienient of 23
June 1931betwecn il and Bulgaria in 1938; (5) Itr ru Villr,iir,(16 I.L.R., p. 2811, in
which the Treaty of Concilialion, Compulsory Arbitralion and Judicial Settlement of
3 February 1926betwecn Kiiniania and Swiizerland wasa~plied and interpreied by the
Swiss Federal Tribunal in 1949; (6) Re Applirorioi?ro SwissNafio,rol.rofthe Iralia>i
SpecirtlCopllol Lev) Dtiry (25 I.L.R., p. 313). in which the Italian-Swiss Permanent
Conciliation Conimission provided for in the Treaiy of Conciliation and Judicial
Seitlenieni betwecn Iialy and Swiizcrland of 20 Septeniber 1924dealt in 1956 with a
dispute concerniny ihc application to Swissnationals of an Italian tax; (7) the Lake
Lanoux arbitration broughi under the co»lproiiiisof 19Navcrnber 1956pursuant Io the
Arbitraiion Treaty of 10Jiily 1929between France and Spain (24 I.L.R.. p. 101): (8)
ihe Norii,c~iottLoutircase (24 I.L.R., p. 782) in which France invoked, as well asthe
1928General Aci. ihc FrancclNorway Treaty for the PacificSetilemcnt of International
Dispuics of 9 Jiily 1901;(9) ina note of 9 August 1956in rclatian to the l~~rerlia,idel
disliuie. Swiizerland reaiiested ihat the daim of I.C. Chemie besiibrnitted io concilia-
lion or arbiiraitun itndcr the 'l'rial) of ,\rhiir;iiiand C'onitl~illion ofIO IïehriiJry
1'131cv~hthe tJn.icJ Staicr (22 1.L.R .p. lY7 in):(10)Pcr<v<<vi\. fi<brol R<~t~r~h orc
(;i.,,iion1lYhl1 (42 1 L K. ri. M31. in uhiih Ocnni~rl clrtimed in.!# ihr. Ihniih-
~erma" Arbitration Agreenicnt of 1926cauld be taken intu considcraiion. vcmbcr 1916 Seitlcii~cnt Agrccnicni \id\ cuncluded h) Fran~c and Thail.inJ
io ,ci up s spccial cuinnii\,i<in uf;uncili~iion. Article 3 rcsd ai folli>iis:
"hritcle 3-ltn~iiedi.~iely iiiicr ihc sisning tif ihs prc.ent r\greeincni,
Fr:incciinil Sisiii sh311set up, by 4ppli;ation <if Articlç?I ni the f7r.inco-
Simcse l're.iiy of Deceniher 7th. 1937, .ICu~iiiii~ssioii of Ci>n:ili.,iisn
c,>iiiposed of itio reprcsentaiives di ihc pdriier and ihrcc ncutrals. in
c~nforiiiiiy niih the Cienerdl h.1 oiCicneva i~fSepiciiibsr 20th. 192Rfur
ilic p.i<iiic ictileincni <if iiiicrnxtion~l diip~ie\. \ihiih regiilstcl the
cdiisiiiutiim 3nd ihc irorkin~ uf ihc Coiiiiiii\\i~iti. 'Tlir' Coniiiiission sli~ll
beein its work as soon as oossible after the transfer of the territories
spc:iiied In ihc 2nd p~ragriiph oi ,\rtaclc I ,hall hxte hecncti'cied. 11\h~ll
hc chlirged xriih ihe cuminaiiun of cihnical, gcogr~phical 2nd ccnnoniic
arguments of the parties in favour of the revision or confirmation of the
clauses of the Treaty of October 3rd, 1893, the Convention of February
13th 1904and the Treaty of March 23rd 1907, kept in force by Article 22
of the Treaty of December 7th 1937 1."
220. Not only does the Article speak of the General Act as if it was then
in force, but it seemshighly unlikely that the parties would have incorporated
such a reference tu a treaty which either of them considered tu be no longer
in force.
(ii) The European Convention for the Peaceful Settlemenr of Inter~~atioi~al
Disputes 1957
221. Several references were made tu the General Act during the drafting
of the European Convention for the Peaceful Settlement of International
Disputes. On 22 November 1950, M. Bastid presented tu the Consultative
Assembly of the Council of Europe on behalf of its Committee on Legal and
Administrative Questions a reDort relative tu the creation of a permanent
organization for ihe peaceful séttlement of disputes between Members of the
Council of Europe. This report set out the opinion of the Committee on the
matter and recommended its adootion in the form of a draft resolution. This
opinion referred tu the General A& in the following terms:
"ln su far as concerns disputes justiciable in accordance with the
definition contained in Article 17 of the General Act of Geneva, 1928,
and with Article 36 of the Statute of the International Court of Justice,
the Committee is of the o~inion that a Eurooean Court for the settlement
of disputes would overlai with the lnternaiional Court of Justice whose
juridiction has been accepted as binding by several Members of the
Council of Eurooe and further that a new Court. unless it were sub-
ordinated to the International Court of Justice, would put an end tu
the unity ofjurisprudence assured by the Hagueorgan and indispensable
to the development of International Law 2."
The opinion of the Committee was adopted by the Consultative Assembly on
24 November 1950 3.
Ihc Ilispîni>-llslgian Trriil)of 1927 u3s. of aiirrc, inioke%l in ihc &i,ct~lut,ci
Trucrro,iw5e heyun.on iltc cc:ond appli;~iidn. in 1962
Reoraduced inAnnex 5 ofthe C~mbo~lian hlemoriîl in I.C.J. Plrodinas..emule.
of preaii ~ihear,Vol. 1, at p. 20.
Council of Europe, ConsulrotiveAssembly Documents, Ordinary Session1950,
doc. No. 149.
= Ibid.294 NUCLEAR TESTS
222. This opinion of the Committee in mentioning Article 17 of the
General Act and Article 36 of the Statute of the Court not only emphasizes
the two means of access to the Court but also clearly treats the General Act
as still in force.
223. A Draft European Convention for the Peaceful Settlement of Inter-
national Disputes was presented by M. Rolin of Belgium during the Seventh
Ordinary Session of the Consultative Assembly 1.In presenting it he indicates
that it was modelled on the General Act of 1928 2.
224. In the course of the debates M. Lannung (Denmark) specifically
referred to the General Act as being in force for 20 States:
"First, itfollows from the views so far expressed here that the draft
European Convention will, in a way, bea successorto theGeneva General
Act of 1928 for the Pacific Settlement of lnternational Disputes. This
Convention, which, as is said in the Report of the Committee on Legal
and Administrative Ouestions. was revised in some minor details bv the
General Assembly O? the ~niied Nations in 1949, binds twenty siales,
some of which are not, of course, members of the Council of Europe 3."
225. Thus the rrovau- préporaroiresleading to the European Convention
for the Peaceful Settlement of lnternational Disputes provide further
evidence of the practice of States and the opinions of learned jurists con-
firming the continuation in force of the General Act.
(iii) Recoursr ro the General Act NIrlie Norwegian LOOIISCase
226. The attitude of Franceand Norway to the continuation in force of the
General Act in the Norwegian Loons case (I.C.J. Reports 1957, at p. 9) has
alreadv been referred to al soine lenrth in this Memorial (seeoaras. 194-207).
~rancéinvoked ilspecifically as a triaty in force and, although it would have
been 10 ils advantage in that case to do so, Nonvay did not argue to the
contrary
(iv) The Templeof Preoh Viliear Case
227. The suggestion made in the French Annex that the General Act is a
forgotten instrument is strikinglyrebutted by certain features of the Tenzple
of Preah Vihear case. These individuallv and cumulativelv demonstrate that
France and Siam in 1946, and ~ambodia and ~hai1and.h 1959-1961 con-
sidered the General Act as in force at those limes. Equally significant is the
fact that the General Act as a livinr -nstrument was broueht 1- the attention
of the Couri; thltt publicity nds giken to il ln the Judginent ancl ihe PIeaJings
of the Court; that il\\as tnvokcd on heh<ilfofCamhod~a h) a ieam ofcounsel
experienced in international litiaation and includina one. Professor Reuter.
who had appeared as Counsel and even ~e~ut~-~&nt for the ~overnment
of France on a number of occasions 4; and who is on record as saying cale-
' Council of Europe, op. cil.doc. No. 356,21lune 1955.
Council of Europe, Consulrarive AssemblyOficiolReporrofDebares,1955,Seventh
Session,at p. 295.
3 Ibid.. at o. 302.
11may b; appropriaie 10recall how closely Profnsor Rcutcr hasben associatcd
with the preseniaiion of ihc French Covcrnrnent's position in this Couri: in 1952hc
appcarcdon bchall or France in thecaseof ihe Rightsof Nuiionolsofthe UntredSlarergorically that the General Act is "in force"; and that when the application of
the General Act was opposed by Thailand it was only on the ground that
neither Cambodia nor Thailand was rartv to it. The.e was not even the
slighte\t siiSScsti.>n 11131ilic <;sncr~l Ad IIIJ? have i2llcii intai JesuetuJs.
228. Thoie srpc~ts <if the iùse rclsv.int 1i1 the c<intinued ~pcrriti~n oi ihc
General Act are set out below in greater detail.
229. First, the Cambodian Application referred to Article 3 of the French-
Thailand Agreement of 17 November 1946 1.The Agreement is referred to in
,arae.. .s 219 and 220 above. As indicated in those oarazra~hs i. har..v
\eeni\ Iikcly th.it ihesc tw.) St;itc\ u.)iild in 1946 .Icliher;itcl) Ii.i\e h~sr.il ilie
\ihi>lc fun<ti,>ntiil:2nd pr<i:cJiirc dia ne!\, i)\tcili of iciilciiient iip<in .I1re:iiy
which. iii thcir c. .. hnd. iollt~\iinr:-ilie dcniise of the Leacuc -f S~iions.
become inoperative.
230. Secondly, the special conciliationcommission for which provision was
thus made was actuallv constituted and sat in Washington in May-June 1947.
The reliance of the commission upon the General ~ct;s shown inparagraph 7
of the Report of the Commission dated 27 June 19472, where it said " ...in
accordance with Article 10 of the General Act of Geneva. it was decided that
~ ~ ~ ~ ~ ~
the work of the Commissionwould not be public.. ."
231. Thirdly. the Preliminary Objections of Thailand, though discussing
in some detaifthe applicability of the General Act, do so exclusively to show
that neither Canibodia nor Thailand became a party to it 3. Counsel for
Thailand referred specifically to those passages in the 1948 Report of the
lnterim Committee of the United Nations General Assembly ivhich said of
the 1928 Act that "though theoretically still in existence . . .has become
largely inapplicable". Thailand did not in any way suggest that the Act had
lansed. And this is~oa~.icularlv si.nifi-ant when it is recalled that Thailand
argued that the jurisdictional obligations arising from another treaty, one of
1937. had la~sed as a result of the disappearance of the Permanent Court.
232. ~ourihly, the same elements reappear in the oral pleadings. Counsel
for Thailand argued in detail that neither Cambodia nor Thailand had he-
come parties to the GeneralAct 4,but never contested its continuing validity.
Similarly counsel for Cambodia, who relied upon the General Act, never
made any suggestion that it could have lapsed 5.
.v, Further French Reliance on the Cenrrol Act in 1964
233. On 11 December 1964,in explaining in the French National Assembly
why the French Government did not then envisage becoming a party to the
in Moroeeo. I.C.J. Reoorrs1952, at p. 176,where hewasdescribedas "Assistant Legal
Adviserto the Ministryof ForeignAflairs"; in 1954,underthc sametitleherepresented
the French Govcrnment in the proccedingsleading up to the AdvisoryOpinionon the
Effect of Awardr of Compe,zsarioim i ade by the U.N. AdmiitistrotiveTribirnal,I.C.J.
Reporrs1954, at p. 47; and in 1957,again under the same title, he appeared in the
CertainNorwegiaiiLoons case, I.C.J. Reporrs1957, at p. 9, where France relied upon
the General Act and to which separate reference is made. Does il seem likely that
Professor Reuter would have reliedupon the General Act in 1961, five years after
France had reliedupon ilin 1956, ifhe had hadreason to believethat it had lapsedin
the interim?
1 I.C.J. Pleodings,Templeof Preah Vihear, Vol. 1, at p. 20.
2 Ibid.,at p. 22.
3 Ibid.,Vol.pII,at pp. 22-25,103.
Ibid., Vol. 11at p. 76.296 NUCLEAR TESTS
European Convention on Pacific Settlement, the Foreign Minister pointed
out that France was already bound C'liée") bv numerous obliaations relatina
to the pacific settlement of.international disputes. One of the caties referrez
to by him in thisconnection was the General Act of 1928.
234. The Minister said:
"La France, comme la plupart des Etats eurovc!ens, est liée Dar de
nonibreuses obligations dercilement plicilique de; dinërcndi depuis les
conventions de la Ila)c de 1899et 1907. le itdtut de la Cour permanente
de iiistiieinternliti<in~le etde la Cour internliti,in~lc de iiiit~ce. l'aile
gén-érald'arbitrage du 26 septembre 1928 revisé en 1949, a;xquels
viennent s'ajouter plusieurs conventions bilatérales de conciliation de
d'arbitrage. La convention européenne sur le règlrment pacifique des
différends internationaux risaue de faire doubl~ ~m~loi avec olusieurs
des textes susvisés.Sa ratification rendrait donc nécessaireune révision
com~lète des engagements internationaux de la France en la matière.
ans ces conditiois, le gouvernement n'envisage pas d'entamer pour
l'instant la procédure de ratification de ladite convention 1."
Clearly in referring to the revision of the General Act the Minister was not
stating that France \vas bound by the Revised General Act. He was merely
making a comment about a treaty, namely, the 1928 General Act, by which,
as he acknowledged, France was bound and which, by way of description,
was referred to as having been aniended.
(vi) Cor~ritznedInclirsio,~of the Ceireral ActiirTreary Compilarions ami Lisrs
235. Another material fact which supports the continuance in force of the
General Act is the continued inclusion of the Act in treaty compilations and
lists of manv of the countries that became varties to the Act. ~hese include.
with anv relevant thinkine on the oart of the aovernment in auestion. In no
case th& has been examined is /t stated that the General'~ct has been
terminated.
236. The compilations and lists that have been examined are as follows:
(1) Aesrralia-The official treaty lists published by the Australian Govern-
ment have invariably included the General Act. The latest list was
published in 1971, covering the position up ta 31 December 1970; the
reference is Arrs~raliun Treory Series, No. 1of 1971, page 189.
(2) Belgirrm-The treaty list edited by the Director of the Treaty Section of
the Belgian Ministry of Foreign Affairs and published in 1973 lists the
General Act. See 1. de Trover. Ré~erroire des rreités conclris Dar la
Belniqoe 1830-1940, ~russels..l973, page 369.
(3) Canada-Cana<lo Treury Series 1928-1964, Ottawa, 1966, lists the
General Act without anv comment
(4) Deplmark-The cenerai Act is included in the publication Samlirrg af
Trakrarer m.v. af saerlig inreressefor forsrarcr, Copenhagen, 1947, page
1108.
(5) Ellriopia-The United Nations list of Treaty Collections refers to A. L.
Journal Oficiel de la RépubliqueFrancaise,AssembléeNationale, 11 December
1964.p. 6064. Paddock, Jr., I,irer~rational Trearies birrdiirg Erhiopia, Addis Ababa.
1952. This makes no reference to the General Act but 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 developnient of Efhiopian
engagements, the thread of development over the yeürs."
(6) Firrloti[l-The General Act is reprinted at page 71 of Finl(rnd.s/or/atr-
rrirrgssorrrlirr~sfurdrogsserie, Helsinki,1930. If is included in the 1967
list of Finnish treaties: Vieraiderr valrioiden kaairssarrh<lyr Sopimrlkser,
Helsinki, 1967, page 29.
(7) Frairce-Allhough there is no official French treaty list, a list of multi-
Iateral treaties to which France is a party, prepared by Dr. Henri Rollet,
includes the General Act at page 54: see Liste des E,rgogoner#rsMi~lri-
1ardrar1.rnlr 30jniii 1969, Paris, 1971, page 54.
(8) Crear Briraiir-There is no official British treaty list. The Generül Act
is listed at page 729 in Volume 3, AII 1trde.rto Brirish Trearies 1101-1968,
London, 1970, by C. Parry and C. Hopkins.
(9) Iirdia-An unolficial list compiled by C. M. Samuel includes the General
Act as "binding lndia in 1966". See C. M. Samuel, Iir(1iair Treary
iClarirral 1966, Kozhikode, 1967, page 65. (The list of treaties which was
prepared at the time of the partition of British lndia and which was
included in the Partirioir Proceediirgs (Vol. III, pp. 217-276) omitted the
General Act. But it omitted many of the other League treaties 10which
lndia wüs a party because of the manner of its compilation, which was
to assenible treaties in the order in which departments of the Govern-
nient of lndia were responsible for their administration. The General
Act wüs one of the many treaties (including almost al1 the extradition
agreeiiients) which escaped this procedure because they were Imperia1
and not local.)
(10) Irelaii<l-The Cervral 1ticle.r Io the Treaty Series 1930-1953, Dublin,
1954. includes the Gerieral Act at o.ze-118.
(II) Italy-The publication by E. Buda, Le coizveirzioni iirrer~rnrionali
collerrive rririficurlc,IIiuliudal 186/a/1959, Milano. 1959,includesthe
General Act at .a-ie25.
(12) .\'crlri,~/u,rd~-A il. St.i)l. H<,p<.riorii,r>r,u,r ,lr,<ir.\',~<lirl,,o1813
ivi /9SO rt..,lic>ri<,rilf<iqt',r.'s.Cir;ivc.nh.1953. Iiiis the Gencral Act
as among the Netherlands treaties at page 190.
(13) Nriv Ze(11aird-the official New Zealand treaty list published in 1948
(Neiif Zeolairtl Treary Series, 1948, No. II) includes the General Act at
page 48.
(14) Nor~vo),-the General Act is listed in the official Norwegian Treaty List
dated I January 1960, at page 177. The subsequent publicütion-Norges
Trrikro~er, 1661-1968-does not reprint the General Act; however, the
prefüce states "these volumes do not contain the texts of al1 treaties to
which Norway is a party", and the index volume lists the Act (Vol. 4, at
p. 57).
(15) Perrr-A list of Peruvian Treaties published in 1962 and edited by E.
Gonzales Dittoni. Texros inrernacioirales del Perrr (los mas iniporrantes
rrara<losclcl Peri,. hilareraley rnrtltilarera/es, Lima, 1962,does not list
the General Act. But the only pre-1945 documents in the book are the298 NUCLEAR TESTS
"Acta de la Jura de la Independencia" and treaties regarding Peru's
boundaries and "dominio maritimo".
(16) Sweden-The treaty list Ki~ngl Utrikesdepartemenietskalender, Uppsala,
1969, published by the Swedish Ministry of Foreign Affairs, includes
the General Act at page 311. A foofnote 10 that reference reads as
follows:
"Fortfarande giltig mot visra stater-Se aven reviderade general-
akten av den 28 April 1949."
The footnote niay be translated:
"Still in force as respects some countries. See aswell the Revised
General Act of 28 April 1949."
(17) Switzerlond-Volumes II to 14 of Reciieil sysrémati~~riedes lois et
ordoirnanres 1848-1947, Berne, 1949-1953,contains treaties. The General
Act is included in Volume II, page 219.
(18) Ttorkey-A. Gunduz Okcun, A Guide to Tiirkish Treaties (1920-1964).
Ankara, 1966,refers to the General Act at page 222.
The researches carried out have not located any treaty list relating to Greece
or Luxembourg.
237. The official compilations and lists enumerated in the preceding para-
graph are clearly acts of State practice which are quite inconsistent with the
proposition that the General Act was treated by the parties concerned as
moribund. The unofficial treaty lists also attest the continuing vitality of the
General Act in the eyes of the experts concerned.
(vii) Two Fiirther Signifiatir Instances of State Practice Coi7firmi11gthe Con-
tini~atioif1Force of the Ge~reralAct
238. Finally two further items of significant State practice are worthy of
being referred to. The United States Department of Stare Bulletin, 1951,
contains notes on the compulsory jurisdiction of the Court and includes
references to the Revised General Act (pp. 664-669). The notes include the
following paragraph (p. 668):
"The General Act of September 26, 1928remains in force. the current
5-year period heginning August 16, 1949. An accession is subject to
denunciation for the period beginning August 16, 1954 on 6-months'
notice before that date."
The notes go on to list the accessions in force; these include al1the countries
so listed by the League of Nations. Siairati~res. Ratifications & Accessions in
respect of~~greeme,~ts and ~onve,ztio,is conclirded linder the ailspices of the
League of Nations, Geneva, 1944(para. 124above).
239. In a memorandum dated 3 March 1971 from the Foreign Minister of
the Netherlands to the Second Chamber of the States-General describing the
Revised General Act and explaining the reasons of the Government of the
Netherlands for seeking the Parliament's consent to ratify it, the General Act
is spoken of as "still in force for 22 States including the Kingdom 1."
1 Translation. Ref.BIJL.HAN. II 1970-71-11202(R 780No. 1). (d) The Viewsof Highly Qualified PlrblicistsConfirm the
Confinr,edExisrenceof the GeneralArt
240. The views of highly qualified publicists support and confirm the sub-
mission of the Government of Australia that the General Act continues in
force.
241. It is true that some authors, when comparing the General Act and
the Revised General Act, have observed that some doubt might exist con-
cerning the scope of the former as a result of the disappearance of the
machinerv of the Leaeue of Nations. One of these is Professor O'Connell
(I,,rr~iniiriv,?o lun (2nd cd.. 197II, Veil. 2, p. 10711 \iho noncihclc\. records
ihxi ihcre de 20 paries 10 tlic Gcricrsl Act linil .'lexrlj rcgardr the inctninlcnt
as s-i~l in force~~l~ee also O'C~nn~ ~. Stare ~!,ccessionin~"rernarionalLawand
~~~
Municipal Law, 1967, Vol. II, p. 213, where the discussion of non-succes-
sion to the General Act proceeds entirely on the basis of the continuation in
force of the General ~ct.) Generally there is a very considerable number of
authors who have in recent years treated the General Act as being in force.
No less im~ortant is the fact that no author can be found who has expresslv
~t~ ~ ~ ~ ~ ihe ~en-~al~Act has~~e~ ~~~o~be in force. On the contrarv. there is
., ~ ~ ~
a truly massive accumulation of authoritative opinion that it is in force.
242. In reviewine, the authorities it is convenient to begin with the French
authorities. All ofthe authors of the standard French treatises on public
international law treat the General Act as being in force. Specifically, Reuter:
at the time "jurisconsult adjoint" to the French Foreign Office, says in his
work Droit 1,zternrrrionaP l ublic (1958) that:
"L'Acte généralest toujours en vigueur, mais iln'engage qu'une ving-
taine d'Etats parmi lesquels le Royaume-Uni, la France et le Canada"
(at p. 310).
(The same passage appears at p. 274 in the 2nd ed., 1963; at p. 289 in the
3rd ed., 1968; and at p. 346 in the 4th ed., 1973.)
243. ProfessorRoi,sseairin his Chapter RèglemefitpacifiyrtedesCotif?itsin
his work Droit International Pitblic (5th ed., 1970) dedicates the whole of
Section 334 to the General Act, containing the following:
"En vigueur depuis le 16 aoOt 1929, cet Acte - auquel ont adhéré23
Etats (dont seulement 3 grandes Puissances: la France, la Grande-
Bretagneet l'Italie) et que l'Espagne a dénoncéle 1" avril 1939- institue
trois procédures distinctes. . ." (at p. 294).
244. Mme Ba~fid in her Cours de droir inler~tarionalfor the third year
Licence course in the University of Paris has several sections devoted to the
General Act. A typical passageis the following:
"Très souvent, on se trouve en présencede traités qui sont appelés
traitésde règlementoacifiue oii traités d'arbitrageet deconciliation.De
plus dans ces traités on voit souvent, à côtéde l'engagement d'arbitrage,
des engagements touchant le recours à la C.P.J.I. . .. Tel a étél'objet
de ce que l'on appelle souvent, couramment, l'Acte générald'arbitrage
élaborépar la S.D.N. et dont le titre véritable est: Acte généralporrrle
règleme81parijîqiie desdiArrendsinrernationairx(1928).
Cet Acte d'arbitrage, en réalité,réservel'arbitrage pour des différends
qui peuvent êtredesdifférends de caractère politique. Pour les différends
juridiques, on a prévu le système du recours à la C.P.J.I." (at pp. 866-
867). 300 NUCLEAR TESTS
245. Scelle, in his Coilrs de droir inrernationalpirblicalso delivered at the
University of Paris, devoted a whole section to the General Act in which,
again, he writes of itin the present tense as a current treaty.
246. Colliard in his Insrirafionsinrernarionales(4th ed., 1967). a study of
the role of law in contemporary diplomacy, also writes of the General Act
in the present tense (at p. 314).
247. This opinion of authoritative French writers is shared by the standard
authorities of other countries, particularly those specially concerned with
arbitration and pacific settlement.
248. C. WilfredJenks in 1964wrote thst "the General Act also appears to
be still in force for a number of States": The Prosoectsof Irirernafioi~al
Adjrjrldicatio(1964). at page 24. He had already expreised thésame opinion
in his report of 20 December 1956to the Institut de droit internationalentitled
"Compétence obligatoire des instances judiciaires et arbitraires interna-
tionales".
249. J. L. Simpsonand Hazel Fox in several passages refer to both the
General Act and the Revised General Act as providing, at the present time,
for aspects of international arbitration: Internarional Arbitrarion (1959),
pages20-23,40,46, 83, 184.
250. Sereniin his Dirirfo Infernazionalz(1965), discusses the General Act
asa treaty in force at great lengthat pages61, 139, 1611, 1626, 1627, 1647and
1688 ff . pecifically he says:
"L'Arto Pancorairr vigore"(italics added) (Vol. IV, p. 1669).
He also says:
"Esso fu menrionato dalle parti nell' Affare deipresriri tzorvegestira la
Francia e la Norvegia innanzi alla CIG; il giudice Basdevant dichiarava
nella sua opinione dissidente: 'A aucun moment, iln'a étémis en doute
que l'acte fit droit entre la France et la Norvège'.(Ibid.)
251. Professor Cirggenhein~in his Lehrbriclrdes Vülkerrechrs(1951) dis-
cussed the General Act in the present tense at pages 74, 78, 80, 114, 150, 532,
572, 609, 619, 620, 644, 675, 676,677, '697, 699, 700-702, 708; and in his
Traitédedroir inrer~iafionapl riblic(1954), Vol2, at pages 113, 123 and 189.
252. Dr. Hambro, once Registrar of this Court, wrote that the "General
Act is still in force and is fully valid for thegreater part of the Members of the
United Nations": RechtsfragenderInternationalenOrganisationin Fesrschriff
fir Hans Wehbera(1958). D... -67.
253. Dahm treat's the General Act and the Revised General Act together
in the present tense, analysing indetail the provisions relatingto this Court's
iurisdiction bv reference to the enumeration of Articles 17-20. Incorooratine-
ihe Revised Genera~Act he wrote that:
"While the General Act of 1928 is ratified by over twenty States, in-
cluding Great Britain and France, the Revised Act is up to now only
sparsely ratified.(Vülkerrecht, Vol. 2, 1959, translation at p. 353.)
254. ProfessorFrançoisdiscusses the General Act in the present tense in
very great detail and in every context: Handboek van het Volkenrechr(2nd
ed., 1950), pages 106ff. 153 If .nd page 171 ff.This is significant because of
François' importance in the prdctical field of arhitration as Secretary-General
of the Permanent Court of Arbitration.
255. ProfessorSohnin his BasicDocrtmenrsofrhe United Narioris(1956) at
page 76 lists the General Act, with the Revised General Act incorporated in its text within parentheses, which indicates his view on the parallelism of the
two instruments. In a Note on page 84 he speaks of the 1928Act and the 1949
Revision as both current for the accessionary parties.
256. Professor Verdross in his Volkerrecht (5th ed., by Verosta and
Zemanek) (1964) does the same at page 419.
257. Professor Seidl-Hohenveldern mentions the General Act in his
Volkerrecht (1965). in paragraph 1268.
258. The leading English treatise Oppenheim'sItiteriratioiial Law, Vol. II
(7th ed. 19551,treats the General Act as still being in force (see especially
p. 94, note 2).
(e) France'sPres~,~rC tontetrtionas tu theAttitude of StatesDerivesno
Si~pporfrrom theAllegedParallelism BetweeirReservatioiisUnder
the Ce,reralAct alrdOpfional Cla~zse
259. Again, with reference to the practice of States, it is to he specially
noted that the French Annex places great emphasis on the parallelism which
it alleges existed between the reservaiions which countries inserted in their
accessions to the General Act and their respective declarations under Article
36 of the Statute of the Permanent Court of International Justice. It also
alleges that in relation to countries which acceded to the Revised General
Act this parallelism between their accessions to that Act and their declarations
under the Statute of the oresent Court. "stands unbelied".
260. The purpose of ihese assertions was to found a submission that the
"contiast between the total Iack of concern shown by the parties to the 1928
Act, to maintain consistency between the various sitiiations in which they
would recognize the Court to be conipetent, can only be explained by the
feeling that the 1928 Act had lost its validity" (French Annex, p. 7). The
logical link between these assertions and the submission which they are in-
tended to support is quite iinclear.
261. The Government of Austrdlia has already given an effective answer
to the French claim that the Act has lost its validitv and this answer would be
quite sufficient to counter these assertions.
262. However. it is prouosed at this stage to examine them more closely.
for an analvsis of the variius reservations and declarations will auicklv show
that to the éxtent that they are relevant they are quite inaccurate:
i
(i) Comparisoiiofflie Reservarions itiAccessioirsrorlieCerrerolAct w,irhReser-
varioristo Declurariutrsloider Article 36 of the Statrrreof the Pernron~nt
Coirt of lnrernatio~~aJliisIirc
263. As to these, the French Annex asserts that for so long as the General
Act was manifestly in force the reservations to the Coort's competence on
either basis were always similar.
264. Twentv-<h~~~-~~un~rie~~~~-~~ ~ to the General Act. All of these were
Members of the League of Nations. Al1 were parties to the Statute of the Per-
manent Court and lodged declarations under Article 36. If their respective
reservations to the Genëral Act and their respective declarations under Article
36 are examined it will be found in the cases of at least 15 countries there are
material direrences.
265. This is so in the case of the British Commonwealth countries (United
Kingdom, Canada, Australia, India, New Zealand). No1 only had they
excluded disputes, in each case, after differing dates but the declarations underthe opiion:il clau\s do n.)i in an) L:ise.'oiit:iin s rïser\diiori s<inipr.ihlc iiitli
rcjcr$~ilon (\) 10 lllcir (knerdl ALI 2.':c~~.Oti\, 1.c. "dl~p.itc~ u~ih :,n) p;irI>
iuihe Cieneral Act who t> nui a \leniber of the Iciicue oi h>ii<>ni". Thti ii;i
material diference for Article 34 of the Statute of the Court madeit clear that
States *ho were not Members of the League could become parties to the
Statute of the Court.
266. A consideration of the position of France itself will also reveal that,
even though prepared at the same time, the terms of the reservations in its
acc~ ~ ~ ~ ~ the Ceneral Act and of its declaration of 1931under the ontional~r~~
clause are different.
267. A consideration of the reservations in al least nine other cases will
also reveal material dilierences 1.
(ii) The SpecialPosirionof Fratrceafter 1940
268. The French Declaration under Article 36 of the Statute of the Per-
manent Court of lnternational Justice deposited on 25 April 1931 was for a
period of five years. It was renewed on 25 April 1936 for a furlher period of
five years biit expired without any further declaration on 24 April 1941. The
only link between France and the Court froin that date until the Court ceased
to exist was throueh -he General Act. When the Statute of the International
C'oiiri <,fJu~iizecaiiic. inici T.>r<cihcre!$.fiilicrciorc n<>:.irrr.iit Je.l.ir~tioh)
Frdn~c III~II NI~.:II ,lri!:Ic70 (5) ur 1t1cSi.itiiIc ~.<~i.l,luorh. Fr:in~~cdid tiot
I.>dres dccl.ir>ii,in iiitJcr ,\rii<lc 3<12,oiilii.. Sldtutc tintil 1hlar~,h1Y.l')1 hr.
onl; link which France could have had with this Court between ils establish-
ment and 1 March 1949was through the General Act. Therefore, from 1941to
March 1949 no such parallelisni as is suggestedexisted or could have existed
in the case of France.
(iii) Comparisoi~ of Re.servarioirs ro Accessioi~s Io the RevisedGeiieral Arr a~rd
Reservatioirstu Declararions iiirder Article 36 (2) of the Sraritte of the
I~rteriratio~ralorirrofJtisrice
269. To date scven countries have acceded to the Revised GeneralAct, i.e.,
Belgium, Denmark, Luxenibourg, the Netherlands, Norway, Sweden and
Upper Volta. All except Upper Volta have lodged declarations under Article
36 (2) of this Court's Statutc.
270. The French Annex alleges that in the cases of Belgi~im, d en mark,
Luxembourg, Norway and Sweden, the conditions on which the Court's
jurisdiction was accepted by each rnethod were identical.
271. Again, comparison of the respective declarations will indicate that
this statenient is quite inaccurate.
272. The accession of Belgium Io the Revissd General Act dated 23 De-
cember 1949 contained no reservations. Ils declaration under Article 36(2)
then in force, deposited 13 July 1948, was confined to legal disputes which
mieht arise after the ratification of the declaration concerninr an-.situation or
fact arising thereafter save in caseswhere the parties have agreed or agree to
employ other means of peaceful settlement. Belgiuni's subseqiient declaration
under the ootional clause deoosited on 17June 1958reoeated this restriction.
273. ~imiiar diiïerences ca'n be found in the case of~uxenibourg and the
Netherlands.
' Belgium, Estonia, Ethiopia, Greece, Italy, Latvia, Luxembourg, Peru, the
Netherlands. 274. In the cars of Sucden, the accept3nce df the L~iliipulsor) j.iri~dicti<in
of iheCourt ua, caiiilined io dt.;piitss >rh~<hartawith regard id\iiu:ition,or
faci, rubseaiient IJ 6 Aiiril1947. The a<;essioit io the Kevi,cJ Gcneral AL,!
dated 22 un e950reserbed disputes arising out offacts prior to theaccession.
275. As previously indicated, Upper Volta has not lodged a declaration
under Article 36 (2).
(iv) Concli,sion
276. The above analysis clearly indicates the inaccuracy of the French
assertion that when the General Act was manifestly in force States look care
to maintain an identity between their accessions to the General Act and their
declarations under Article 36 and that a similar position has applied in rela-
tion to the Revised General Act where countries party to it havealso filed
declarations under the Ootionai Clause. The lack of oarallelism is even inore
pronounced when one takes into account the ditTering dates of termination or
possible termination of the respective declarations under Article 36 and
accessions to the General Act and where relevant the Revised General Act.
277. Ir is thercf<ire .ippdrdni iIi11,rcli~n:e s.iii bc pldrerl <>ritlie pra<ti<c
of Si:tie\ n ihi, regirii 10 ,uppori ilie 1-re~i i>ntenti\vi ilvit the Gcneral st
has lost ils validitv. Indeed. a comoarison of the reservations which the Darties
to the General AE ~ttached to their accessions with the conditions atiached
to their declarations (if any) under Article 36 (2) of the Statute of this Court
will show that in general there is between them practically the same diflerence
that already exisced between those reservations and the-conditions attached
by those countries ta their declarations under Article 360f the Statuteof the
Permanent Court of International Justice.
(f) Tlie Fuilure ofMany Srutesro AccedeIo the Revised GeneralAcr
Is of No Significance
278. A further matter relied upon in the French Annex to support the view
that the General Act has laosed is the fact that few States have been willinr! to
accedeto the Revised Genéral Act. The point was made that, as the two Àcts
are identical, except that one substituted United Nations organs for defunct
League of Nations orrans. it was difficiilt to sec why States should have ore-
ferred the version whch bound their comrnitmenls io non-existent struct;res
except on the basis that the original Act had lapsed.
279. A question wasasked of theGovernment of Australia by Judge Dillard
during the hearing of the lnterim Measures Proceedings in this case. The
distinguished Judge asked:
"Bearing in mind that the Revised General Act of 1949 provided a
method for making effective the provisions of the General Act of 1928,
and therebv removino a.. do.bt' as to the continued effectiveness of
nii15iaiiitsproii.;iiins;;in y.>uanis1 ui hy otreririg an). e\pl.in.iiiofar
the \ceniin,: Id~koi u.llingner, of the Sraie, pJrtw$ ttithe 1928(icner31
Aci, I~CIU~III~Frin~e 3nd ,\ustr:tlia, ta x~crle io ilie Re\iscd Act!"
The Judge's question was answered on behalf of the Government of Australia
by Professor D. P. O'Connel1 of Counsel on Friday, 25 May 1973 1.
280. The Government of Australia submits that the answer which it gave
See pp. 231-234,supra 304 NUCLEAR TESTS
to Judge Dillard's question is a complete answer to the French contention
and ihat it is not possible to draw from the failure of States to accede to the
Revised General Act any conclusion that the General Act has lapsed nor does
this fact in any way support an argument that the General Act has lapsed.
8. APPLICARILITY OF THE GENERALACT IN
RELATIONSBB~WEENFRANCEAND AUSTRALIA
281. The Government of Aiistralia before concluding this part of the
Memorial will make some reference to certain observations which appear in
the French Annex under the heading "lnapplicability of the General Act in
relations between France and Australia and New Zealand". This heading
itselffalls under the larger heading "II-Hypothesis of the General Act not
being wholly without validity today".
282. The French observations fell into two parts. Of these one, relating to
the uncertainty of reservations, has already been dealt with.
283. The second group of French observations in this part of the Annex
starts from what purports to be a statement of fact-that Aiistralia's niost
recent action in relation to the General Act "amounted to a patent violation
of it".It concliides that "if the FrenchGovernment is'now going to becalled
on to observe an agreement from which other parties have freed themselves,
it will contend that it does not considcr that it is bound to respect a treaty
which Australia itself has ceased to respect since a date now long past".
284. The Government of Australia is unable to accept the acciiracy or
validity of any of these points.
285. First, as to the statciiicnt of fact, it is no1 correct to say that any
action of the Governnient of Australia has amounted to a violation of the
General Act. As to the specific sugestion that Australia violated the General
Act by the manner and content of its action in Septeniber 1939. it is clear that
Australia was not freeing itself from the provisions of the Act concerning
rnodificationsto reservations. If was niaking a statement as to itsintention
with regard to disputes which i\,oiild have arisen out of the War. Franceand a
nuniber of other countries (United Kingdom, New Zealand and India) had
alreadv lodeed communications which also indicated the disoutes which were
. -
to be reserved from their accessions to the Act. These howe;,er u,ere made at
least six months before the expiry of the then ciirrent period of the General
Act (i.e., 15 August 1939). Although it is a fact that these reservations were
made for other purposes. it is true to say that, in so far as the principle of
reciprocity applied, the Governinent of Australia would have had the benefit
of these amendments to reservations bv other oarties and to this extent its
accession to the General Act would notcover or.relate to disputes arising out
of events occurring diiring the then crisis. The action of the Governnient of
Australia was not an atteiiiot to free itself from the relevant orovisions of the
Act Thcrr i* ni,b~\i \po" which the telegrdm cotilJ he si)Eonstriie~.
2x6. 3loreoier. the iclegr.iiii ctiuld only aii'cci Atizirsli;icicçsi<ini<ithe
General Act to the extent~to which it conforined with its provisions. Under
Article 45, Australia's reservations contained in ifs accession to the General
Act could only be modified in the senseof the addition of new reservations
within the time therein described. Clearly enough the telegram wasout of time
to take ei7ectasan extension of reservations previously made so as to operate
from 16 August 1939. However, itcould operate under Article 45 from the
expiration of the next current period, i.e.. 16August 1944and to this extent it was a valid partial denunciation. It contains no expression of an intention on
the part of the Government of Australia wrongfully Io repudiate the General
~ct;The oresum~tion was clearlv that it intended Io act reaularlv and within
the termsof the Act. The comminication made in seplember 19j9 was an act
incapable of producing effect until 1944, but il certainly was nota breach of
the Act
?87 The French ,\nne\ clearl) ctitifiises ;iiciiipi>r.iriltii\alida21 nith a
\\ri>ngful;ICI.,\n ici buch 3s tlje 1clegr31iiof 1939i'lnnot surcl) heJrs2ribr.J
as a material violation of the GeneralAct.assuchentitlineFrancetoinvokeit
as a ground for suspending the operationof the Generalict between herself
and Australia.
288. Secondlv..e.en if the Australian action could he reaa-ded as a de-
parture from the procedural requirements of the General Act, what conceiv-
able relevance can that have today? Did the so-called "breach" terminale the
General Act or Australia's accevtance thereof? Manifestlv. it couldnot and
did not. Did it adversely affect tke rights of France iinder.t'he General Act?
There is no suggestion that it did. And if, in 1973, France chooses to say that
her rights in relation fo Australian actions during the Second World War
were injured by what happened in 1939, il is now completely out of tiine. What
is the purpose of protest? Surely if must be to preserve rights from extinction
by Iapse of lime. Yet lime has passedand there has been no French protest.
Or did the so-called "breach" in 1939 vest in France some right to take
reprisal action which now, in 1973, it seeksIo exercise in the form of a refusal
Io accept the application of the General Act as a basis of the Court's juris-
diction? If so, have the usual conditions for recourse Io reprisals been satis-
fied: was an injury inflicted upon France by Australia? Was there a request
for redress by France? Tsthe conduct of France proportionate to the wrong
suffered?
289. In the light of its contentions and in the face of so many unanswered
questions about the true force and effect of the French observations, the
Government of Australia submits that there is no substance in these French
arguments.
C. The Link of Compulsory Jurisdiction Betseen Australia
and France under Article 36 (2) of the Statute of the Court
1. PRELIMINARYREMARKS
290. I he Go\erniiieni of Aii,ir~l.:ino\\ iurn, frd111the deiel,ipment of ils
contention tli.iihe Cgiurt posiesscr j~ridiiiioii iintler the Gcner.11 ,\LIILI.in
t r n b r th ir~ctn f th o r the orierdiion of Article
36 (2) of the Statute of the Court. This alternative basis was invoked in
paragraph 50 of the Application in this case.
291. On 9 May 1973, the date of the Application, both Australia and
France were bound by declarations made under Article 36 (2) (the optional
clause) of the Statute of the Court (Annexes 4 and 5).
292. The current Australian declaralion was filed on 6 February 1954. Its
period of duration was not limited and it was in full force and effect on
9 May 1973. Although it contains a number of reservations, none of these
make il inapplicable ratione Dersonae to France as a defendant. or ratione
materiae to the circumstancesofthis case.To put the same point in a different
way, there is nothing in the Australian reservations which, if invoked by306 NUCLEAR TESTS
France on a basis ofreciprocity, would restrict the Court's jurisdiction in this
case in such a way as to favour France.
293. The current French declaration was filed on 20 May 1966. It was in
force on 9 May 1973. It contains nothing which ratioizeperso,ine excludes its
application in proceedings instituted by Australia. Of the four reservations
which the Declaration makes, only one could have any relevance 10 the
prescnt proceedings. The third reservation excludes-
"disputes arising out of a war or international hostilities, disputes
arising out of a crisis affecting national security or out of any measure
or action relating thereto, and disputes concerning activities connected
with national defence".
The French Government has referred to this reservation in its Note and
Annex as a basis for contesting the jurisdiction of the Court under Article
36 (2). It has done so in short and direct terms. The conduct of the atmo-
spheric nuclear tests in the South Pacific area, it States, is an activity con-
nected with national defence. The connection is alleged to be too obvious to
require specification or elaborztion. The applicability of the reservation is
thus seen in the eyes of the French Government to rest solely upon ifs own
~--~-tion.
294. The Government of Australia has already had occasion Io draw atten-
tion to the manner in which the French Government has invoked its reserva-
lions. The French Note and Annex manifestly do no1 fall in form, content or
intention within the ternis of Article 67 of the Rules; and neither the Statute
nor the Rules contemplate any other manner of lodging preliminary objec-
tions. However, while fully maintaining the objections which it has raised to
the manner in which France has invoked the reservation, the Government of
Australia assumesfroni the terms of the Court's Order of 22 June 1973 that
it is the wish of the Court that the French reservations should be dealt with
on the basis that they have been properly invoked; and the Government of
Australia is oreoared Io rneet the Court's wisheson this ooint.
295. At the sime lime, the Government of Australia js bound once more to
draw the attention of the Court to the inappropriate form used by the French
Government for raisina it- obiection and to the abnormal vosition in which
the Guvcrninent of t\ustral~a hai, in consequencc, beenplaied.
296. Having niïde lhis rcniark. ihc Go\eriiiiisnr tif Auriralia suhmits thai
logic dictates that there are only two wavs of avoroaching the French reserva-
tion of "disputes concerning-activitie; connected with national defence".
Either it must be considered as a "subjective" and "automatic" reservation,
or as an "ohiective" one. The Government of Australia does not have to
choose hetuecn ihe tuo. fiw. in ils \ubniisjion.iCthc rescr\;it.on isdïcmcd IO
be a jubjeciii,c ,>ne. 11IS taintcd by the i,icr<if incoiiip~iih.liiytrith the prin-
civles governina the Court's iurisdiction and must be disregarded. If. on the
oiher hand, it is ta be considered as an "objective" reservation the criteria
have not been satisfied. Il may be added that the very fact that this degree of
uncertaintv can exist is ilself an additional consideration militating .gai.st the
validity ofthe reservation.
297. Ifwill be convenient Io examine the French reservation on the basis,
first, thatit ought to be deemed subjective in character. This implies that ifs 308 NUCLEAH TESTS
Government of France, a close consideration of the relevant reservation
reveals. it is submitted. that it mav have chosen words which are not susceo-
tible uian uhjeiiive mcaning andurhich iherefore do no1enable the Court io
deterniine the elTeciof ii upon ils jurisdictiori in this case.
305. So far as the researchesof the Government of Australia extend. this
is the only instance where a country has used in a reservation to its declara-
tions under the optional clause or in its accessionto the General Act a phrase
containina the words "activities connected with national defence".
306. llrofessor Rou~srau. in cummeniing upon ihr dcclardiion \ihen ii aas
made, drea aiteniion as follo~is. to the p~rpori of ihç rocrvaiiun as negaiing
in substance the declaration itself:
"La limitation est de taille et, dans les termes iniprecis où elle est for-
mulée, elle risque de réduire dans des proportions imprévisibles le
niaigre domaine encore assignéà la Cour." (Revi~egénéralede droit
it~rcrnationalpitblic,Vol. 70, 1966, p. 1040.)
307. The ohrase "activities connected with national defence" could be
argued to cober anything. For instance, the making of buttons in a factory
might be such an activity. On the other hand, it niight not. The question thus
arises-how can il bedeterniined in a aiv-n case?The true answer mav well be
th.11ils application cnn neber be aicertaincd independenily of the vieus of the
Govcrnnicnt uf France. Ifihis is so. ihe retcri,aiiun istruly subjective.
308. In truth. the difficultv can readilv be recoanized of~evaluatina the
scope of naiionil <lefcnccor Cheekteni tukhch cuidrict is connectcd w<ih it
in Jn objcciive way and independenily frotii the \icu.s. \,aluc>and idcas of thc
-overnment concerned. in this case the French Government. "War" and
"iiiterniiionsl Iii~,iiliiieiare concepis uhich can be objeciively svnluaied-
"n~imn:il Jsfcnie" un ihs itihcr hnnil is iiiiich Ici\ >u\<cptihlc i~f<ibjezi.vc
e\,dliiatiun. Ilnlikc "riir" or "~nierniittonal hosi.lii.cs" \rhicli descrihc event,
aci~i~lllyocci~rrinç. '.iiaiiun;ll Jcfcncc" consirued in the aiJc\r ienbc cm nlso
he sciid Io cnconip.iss ;i cons.dcr:iiion <if Luntingenccs .inJ <iriuiii\idii<c* in
the future, oonceived by or known only to the particular government con-
cerned. This necessarily introduces a subjective element.
309. If the view thus stated is correct, the French reservation could in
realitv onlv be aiven effect to on the basis of French iudame.t. -hat is to sav. ..
when France in its subjective or self-judging role proclaims that its activity is
or is not "an activity connected with national defence". It would not be for
the Government of Australia nor for the Court itself to attempt to put
objective content into it. This would be the task of the Government of France
alone and it would be prcciscly because itwas a task that only she could
oerform that the trulv subiective nature of the reservation would be revealed.
This might well explain why the Government of France did not develop in ils
Note or Annex the assertion that French tests in the Pacific constituted an
activity connected with national defence, being convinced that italone could
-.te~ ~n~ ~ ~th~ ~ ~ ~ ~ ~~ ~~-.
310. But if, for these reasons. the reservation were to be considered as
being, in realitv. a suhieciive or automatic one, the Government of Australia
coniénds. tir>i:ihai il;I<ILIIJhc nuIl and void. ~nd. w<imdly ihdt il sh<iuld be
se\erc.î froiii thc resi of the Frcnih de;lariii~n lc~ving the reiiiainJer ,!and-
ing and effective to confer jurisdiction upon the Court.
311. The most convenient starting point for the development of the conten-
tion that a subjective reservation is nuIl and void is the separate opinion of
Judge Lauterpacht in the NorwegianLoatrscase (I.C.J. Reports1957, p. 9, at p. 34 ff.)1.The reason for su saying is that this appears to have been the first
significant judicial expression of doubt about the validity of such a reserva-
tion. If it were an isolated statement which had not secured the su~oort of
any other judges of the Court, the justification for extended reliance.;pon it
might be questionable. But'the significant feature of the opinion is that four
other judges of the Court came to share its essential conclusions.
312. 11will be recalled that in the Norwegian Loans case France was the
applicant and Norway the respondent. The Court'sjurisdiction was invoked
by France on the basis of the optional clause. The French declaration in force
at that time contained a reservation excluding "matters which are essentially
within the national jurisdiction, as understood by the Government of the
French Republic". This reservation was described by Judge Lauterpacht asan
"automatic reservation". "That description", he said, "expresses the auto-
matic operation of that reservation in the sensethat, by virtue of it, the func-
tion of the Court is confined to registering the decision made by the defendant
Government and not subject to review by the Coitrt" (I.C.J. Reports1957, at
p. 34).
313. The French reservation was invoked by the Norwegian Government
by reference to the concept of reciprocity. Noting that the validity of the
reservation had not been questioned by the parties in the specific case, the
Court considered itself (ibid., at p. 26) to be relieved from the duty of ex-
amining-
"whether the French reservation is consistent with the undertaking of a
legal obligation and is compatible with Article 36, paragraph 6, of the
Statute"
Therefore, although emphasizing that it did so "without prejudging the
question" the Court gave eîlect to the reservation, as it stood, as both parties
tu the dispute regarded it "as constituting an expression of their common will
relating tu the competence of the Court" (ibid., al p. 27).
314. Thus the Court really expressed no view of principle on the validity of
a "subjective" reservation.
315. Consequently, the view of Judge Lauterpacht and those who shared it
cannot be read asbeing really in opposition to those of the Court.
316. .Judge Lauterpacht siinimarized his views as follows:
"1 consider it legally impossible for the Court to act in disregard of its
Statiite which im~oses uDon it the duty and confers won it the right to
determine itsjurisdiction. That right cannot be exercised by a part? to
the dispute. The Coiirt cannot, in any circumstances, treat as admissible
the claim that the parties have accepted its jurisdiction subject to the
condition that they, and not the Court, will decide on its jurisdiction. Tu
do su is in my view contrary to Article 36 (6) of the Statute which,
without any qiialification, confers upon the Court the right and imposes
uoon it the dutv to determine its iurisdiction. Mo~ ~ ~ ~~~. ~~ also con-
tpary to Article i of the statute of ihe Court andArticle 92 of the charCr
of the United Nations which lay down that the Court shall function in
accordance with the provisions of its Statute" (ibid., al p. 43).
317. Judge Sir Hersch Lauterpacht then proceeded to examine in detail the
The pruhlcrn h3d beendircu,,rd eîrlier by Profesrur Waldock (3shc ihcn wab)
in hisarticle"1lie I8Ieof Domc\lic Juri,.iici.un bcfureIntern3i1onalLcealTribunaIr",
31 B.Y.B.I.L. 1954.p. $11,al pp. 131-137.310 NUCLEARTESTS
two ~rinci~al reasons for his conclusion: that the reservation is inconsistent
eith'thc 5;atutc and that it 15 veld bc~ause ilisdepriicd of legal cuiitent The
Covernmcnt of ,\usiralia u,ill not hcrc rcpeat thcsc passages. -hich run from
naees43 Io 52 of the Re~orts. but it resoectfullv adopts the reasonina in these
r ~ u . . .
p3ss;lges as part or it, arguiiient. ,\r.cordingly. the Gu\criinicnt of Au,rritlia
subiiiits ihat the Frcnih rewr\,3tion in the prcscnt cise is ntill and void.
318. A similar assessment of the French reservation was made by Judge
Cuerrero, than whom no one served longer on the Court or enjoyed greater
international respect. His comment on the rescrvation was: "The great defect
of this reservation is that it does not conform either to the spirit of the Statute
of the Court or ta the provisions of paragraphs 2 and 6 of Article 36" (1.C.J.
Reports 1957, at p. 68). After further discussion he concluded that "such
reservations mus1 be regarded as devoid of al1 legal validity" (ibid., at p. 69).
319. Later, in the Irrterhandel case (I.C.J. Reports 1959, p. 6). Judge Sir
Hersch Lauterpacht developed his earlier expressed views a1 greater length
.~~ . . 97-1 19). Moreover he was ioined bv Judee Sir Perc- Soender (at . . . ..
55-57). Jutlgç lil~cstad (:II pp. 76-78) and Judge Arinxnd-Lgon 1x1pp. YI-93).
320. The qricstian remains of the e&ct ol thij invalidit) upon the dcclara-
li~n o~ which the reservation forms oart. In the Norweaian Loairscase. Judze . -
Sir Herrch L3uterpa;ht e\prcs>cd the vicjr, thai on ihc facts thcrc prescnt the
rcscr\,:ttion coulJ not bc se\er<.d froiii the decl3ratii)n. uhich uas ;iccilrrlingly
~ ~ ~ ~- ~ ~ dest~~ved bv,the nullitv of the reservation. However. if his
reasoning is applied IO the facts of the present case, it will be seen that in this
instance he would in al1 likelihood have held that the dcclaration could be
severed from the oKending reservation and could survive.
321. The legal principle which Judge Sir Hersch Lauterpacht held to be
applicable is-
"that il is legitimate-and perhaps obligatory-Io sever an invalid
condition from the rest of the instrument and to treat the latter as valid
provided that having regard to the intention of the parties and the
nature of the instrument the condition in question does no1 constitute
an essential part of the instrument. Utile ,ion deber per i~irrlile vitiori. The
same applies also ta provisions and reservations relating to the jurisdic-
tion of the Court" (ibid., at pp. 56-57) 1.
1 In the Interhandel case, I.C.J. Reports 1959, p. 6, too, Judge Sir Hersch Lauter-
pacht look the view that the reservation madeby the Unitcd States was no1 severable
from the declararion of which ilforrned part.This view wassharcd by Judge Sir Percy
Spcndcr (ihid., ai p. 57). Rut Judçes Klaestad and Arrnand-Ugon (a1 pp. 78 and 93
rcspcctivcly) while reaching the conclusion that the reservation was a nullity, were
nonethelessinclined to treat it as severablefram ihc rest of the declaration and to
regard the latter as surviving. The problcrn was rolved by the United StatesGovcrn-
ment renouncing any righi it had to avail itsell of the rescrvation.
Sincethe date of the Norwegion L00ils caseand the Intcrlra~rdelcase.the law rclating
ta severabilily as there dcvelaped has been restated in terms which appear fully tu
support the Aiistralian position. Article 44 (3) of the Vienna Convention on the Law
of Treaties providcs:
"If the ground (for invalidaiing atrcary) relata solely to particular clauses,il may
be invoked only with respectto thore clauseswhere:
. . . . . . ..... . . . . . . . . .
(b, IInppcars Crimithe ircaty or i,otherasre c<tablishedthai acccptan.'cof thore
cl.?~,ei u31 no! an rs\ïniial ba< i of ihr ;onwni of ihc oihcr p3riy or ptrties
ro br bu~nd hy the ireai! as n uholr .. ." MEMORIAL 311
322. The reason why he held that principle inapplicable in the Norwegian
Loatts casewas that "the principle of severanceapplies only to provisions and
conditions which are not of the essenceof the undertaking" (ibid.,at p. 57).
His view of the situation was that-
"the Court is therefore confronted with the decisive fact that the Govern-
ment in question was not prepared to subscribe to or renew its commit-
ment of com~ulsorv iudicial settlement unless it safeeuarded in that
particular wa; its fréedom of action. That particular formulation of the
reservation is an essential condition of the Acceptance as a whole. It is
not severable from it" (ibid.,al p. 58).
323. A big difference is to be noted between the scope and character of the
reservation made by the French Government in ils 1959 declaration and
those of the reservation of "disoutes concerning activities connected with
n.itiori;il Jcfcn~e" rrhiih dppcdr, in the 1966 dccl:ir;iiioii. The iirst rcrcr\a-
iiim r\.isriide joinily snJ ~iiiiiili:iiicuurl) niili ilic ,~c.~~iisii~cif iIic j.irij-
diiiii>n ofthe C'oiiri. One .an onilcrii:,nJ ihst th,!-c \ih.> JeeiiiçJ tlicoii'iri<li~ie.
reservation, niade in 1949, Io be void thought that this implied the nullity of
the whole declaration.
324. The 1966reservation wasonlyan addition inade to a reservationformu-
lated in 1959, which existed for seven years without the addition being
considered necessaryor, what is more, "essentiai" by the FrenchGovernment.
Therefore, it could hardly be said Io be "an essential condition of the accep-
tance" to use another phrase of Judge Lauterpacht.
325. Moreover, the reservation of 1959 wasan "objective" one. Should the
added reservation be considered "subiective" an inconsistencv would aooear
with the intention nianifested in 1959io submit the question ofjurisdict6 to
the decision of the Court, and the added reservation would, in a sense,be in-
comoatihle with the orieinal oart of the reservation. In these conditions it
seemsevident that the addition, if nuIl and void, would not nullify either the
acceptance or the original reservation. If a cledr instance were sought of a
proper application of the principle of severability, this undoubtedly would be
il.
326. In other words, if the reservation of "activities connected with
national defence" is to be considered as a "subjective" or "automatic"
reservation, it should be severedfrom the French declaration, leaving the rest
of il intact.
327. Once it isestablished that the reservation is nuIl and that it is severable
fron~the declaration of which itfornis part. thesubmissionwhich the Govern-
ment of Australia makes is that the French acceptance has to be read as if
the words "dis~utes concerning activities connected with national defence"
3rc not tlicre. Tlic rciiiliiiihiii the ('\~iiri h:isjur.~di:ti.~ii on tb,is olion-
ciirrcni :i:ccptdncc\ h) h<>thpartio iinrc,tri:teJ hg ïnh tni3icr131rc,crv3ti<in.
328. Having thus examined the French reservation as if it were a sub-
jective reservation, the Government of Australia would now turn to a
consideration of the bearing of the French reservation on the Court's jurisdic-
lion in the present ca. on the assumption that ils content could beobjectively
determinable.312 NUCLEAR TESTS
329. However. a major obstacle to this way of proceeding has beenerected
by the FrenchGovernment itself. If, when adding in 1966the new reservation
to the one originally formulated in 1959, if did not intend to depart from the
intention then manifested of acknowledging that the Court alone has the
riaht to aooreciale and decide on anv auestion concerning its iurisdiction.
logic wouid' have required the ~rench Government duly Ïo appear in the
Court. properly to invoke in the proceedings the existence ofits reservation in
the form of a oreliminarv o.iec.ion. adeauatelv to .rovi.e the Court with al1
ihe information 3s 10the nature. sci~peaiid purpose of the aiiivities perfornied
as ircll3s illthe objcctirr elcnicnts cap,blc.ofpro\ing tliat the caindiict of the
tests in issuewere objectively to be considered as an activity really connected
with the national defence of France, and finally to leave 10 the Court the
decision of the matter.
330. But the French Government hasdone none of thesethings. Instead. it
has bluntly refused to appear and has nierely asserted, unilaterally and dog-
matically. that its activities in the South Pacific area were i~idisprirablycon-
nected with its national defence. drawina fr-ni that premise the consequence
thit the I:ick <ifji.riçJi;ii(uf tlie C<i.irt in tlie \priitir. u;i\ rr»~/ir~~rro»ol~l~~
up io the point ofdispensiiig itfroni the Jui) to appclr hcli~rc thc C<i.trt. H)
such an attitude. amountina to niakina itself iudae of the whole auestion. the
French Government was, in effect, giving to it; reservation that subjective
character which. ashas beenshown in the previous section. is to beconsidered
void and of no elTect.Even if the originalintention as to the operation of the
reservation was differcnt, the present conduct of France clearly contradicts
and nullifies il.
331. Moreover, in itsletter of 16 May 1973, the French Government does
no more than make twoassertions namely, that it is incontestable that:
(i) the tests form part of a programme for the preparation of nuclear
weapons; and
(ii) rhr~sconsiitute an activity connected with national defence 1.
332. No element of proof has beenproduced which could assist the Court
in fulfillingifs task in deciding whether in al1 circumstances-or indeed
whether in the present circumstances-the reservation thus invoked servesto
limit the French acceptance of the Court's jurisdiction. In fact, in the under-
standing of the Government of Australia, the operation of an objective reser-
vation is dependent upon the Court satisfying itselfthat the conduct which is
exposed to judicial challenge truly and fully falls within the words of exclu-
sion.
333. The French Government saysthat its atmospheric testsare connected
with the oreoaration of a nucleür armament. but nothina is said, il mar be
observedi toindicate the degreeof connection of the testswith the preparition
of nuclear armanient. TheCourt is not informed what kind of nuclear arma-
ment is involved; nor is any material given on which to judge whether the
development of il is for national defence. The matter is left solely to the
assertion of the French Government.
334. It is no answer to the identification of the undeveloped features of the
"...il n'est pascontestable queles expériences nuclbairesfrançaisesdans'le
Pacifique,quele GouvernementAustralienconsidèrecomme illicites,font partie d'un
programmede miseau point d'un armementnucléaireet constituent donc unedeces
activitesserappartant à la défensenationale que la déclarationfrançaise de1966a
entenduexclure." (ltalics added.) French argument, no answer 10 ils complete failure to provide the Court with
the necessary material to enable it to make an objective appreciation of the
validity of recourse to the reservation, toSaythat these elements are for the
French Government alone Io assess.For if that issaid, then the Court is taken
away from an "objective" reservation to one which is alleged to have "sub-
iective" content and is. for the reason alreadv stated. nuIl and void.
335. In these circumstances, the ~ustralian Government siiggests that the
proper conclusion should be that, whatever may have been the original
character of the 1966 addition, the present attitude of the French Govern-
ment rendered it a purely subjective and automatic reservation, the applica-
tion of which should be refused without even attempting to appreciate its
possible effect on the Court's jurisdiction Io entertain the presentcase.
336. However, should the Court deem that the 1966 reservation to the
French unilateral acceptance of the compulsory jurisdiction is worthy of
consideration with reference to the present case, and should the Court
(notwithstanding the points already made as to ils character and the way it
has been utilized by the French Government in this case) wish to strive Io
treat itas an obiective reservation. the Australian Government ventures
respectfully to express ifs convictionthat certain considerations ought to be
taken into account in the performance of this difficult task.
337. It would seeni a~oro~riate. for exam~le. to reflect on the meanina of
"activities connected with nÿtiona'l defencew-when read as a phrase fornTing
the third of a series of eventiialities in which the French declaration was in-
tended not to be operative. The third head of the French reservations ex-
cludes:
(i) disputes arising out of a wor orirrleriiorioiia/liosrilirir~s;
(ii) disputesarisingout of a rrisisoficri~rgriorioira lrocutoifriry
measureor actionrelating thereto; and
(iii) disputes concerning ocriviries coniircfed wirli rrarioiiol drfeiice.
Item (iii), as has beensaid, was added in 1966.What does it add?
338. One mus1 suppose that the concepts of "war" or "international
hostilities" or "a crisis alfectine national securitv" are ~robablv intended to
rcfcr IO episodci identiriiiblc in ieriiis or plicc. tims and piirticip3nis"Sa-
tia~naldsiencc" is noi soeiisily idcntitiliblc in thc teriiiisiiggciicd and mas
be intended to be a much wider concept. But if this is the nitenfion, where
does the concept stop? Is national defence to be thought of exclusively in
terms of reaction to hostile physical violence in an age when economic
factors can alfect the vital interests of the State everv bit as moch as militarv
ones?Is "defence" niuch the süme as"security"; andif so does itafict a hoit
of other matters involving the well-being of the State? If so, would il raise
considerations which nius; depend on the view of the government concerned?
Once again, one is forced back to the position that unless, when the reserva-
lion is invoked, facts are adduced which relate an objectively verifiable con-
ceDt of "national defence" to the circunistances. the Court is confronted bv a
reservation which is entirely subjective in its content and is practically un-
liniited. This would leave to the State invoking it the opportunity to escape
from the iurisdiction of the Court on virtuallv anv occasion.
. .
3.39. 'fhc forepoing iunsi~icr~ti<in or ihc plir<i\e ..<ictiviiics c<innecied ulih
nltionsl ,lr.fcnic" illiistriitcs thlit ~Cthcu,Ire,givcn a broad mmning they
incvitahly ini<il\e siibjeitii.e cons:dcr~iiun.: \ihisli dcpcnd un the \,.eus of the
G~~i,erninentof Fr:incc. In thesc circiini<iiin:eiihc Government of Ausiraliü
.;uhiiiit\ ihai ilthc \r\irdi;io he gii,en an objcct~\c niclining conaisteni iriih314 NUCLEAR TESTS
an intention not ta exclude from the Court almost any conceivable activity
and a meaning which. ex hvoothesi. cannot depend on a mere ex~ression of
opinion by thé French ~overnment, they rnustbe construed stricily as refer-
ring ta activities which, in the specific case,are "intrinsically" or "essentially"
connected with national defence
340. The friistrat8ng conscquenzc of ihc Frcnih failiire ICIexpl;tin the con-
neLiion bçt\iecn ifs ict.\itiç\ and n.~ti,?nxldeicii:e ii exaccrn.ited hy the i3ct
that the Dresent case rests uoon three clainis. each of which is related to a
diiierent Lctivity. With regard to the breach 01-a norm of customary interna-
tional law, the activity is the explosion of nuclear devices in the atmosphere in
an island territory of the ~acific remote from France. In relation to the claim
of a breach of sovereignty, the activity is the explosion there of such devices
in such a way as inevitably to deposit radio-active material on and over
Australiii's territory. In relation to the infringement of freedom of the high
seas, the activity includes not only the explosion of the devices involving
consequent fall-out, but also the act ofclosure of the high seasand airspace.
341. In which. ifanv. of th~~ecasesis the activitv one which is intrinsicallv~ ~ ~
or inherently connectid with national defence? ~o; unless every one of thes;
aspects of French activity can be connected with national defence, then the
remainder coiild not prevent the French declarafion from being an appropri-
ate basis of jurisdiction in respect of those claims to which they relate.
342. It is triie that nuclear explosions are ctipc~hl< o,f being activities con-
nected with national defence. But when thev are undertaken. as here. in a
reitioic pl;ace.ian il bc id of iheiii it.tli<iiknotring iiiorc ihit tliey <ir, so
connccied'! Tlie Go\erniiient of Ai.\trali.i siihiiiit.ih.11 it c;innot. This is
particularly so when the activity is one involving the deposit, as French
scientisls have conceded, of radio-active material on othcr countries. Tt is
surely part of any objective concept of national defence that il excludes
activities involving consequences in the territory of another friendly State.
343. One reason why they are not so connected, whether the activity is
atmospheric nuclear explosions or the closure of the high seasand airspace,
is that there is nothin-about the activitv itself which intrinsicallv or essentiallv
connects it with national defence. Gunnery practice by armed forces in time
of peace is intrinsically an activity connected with national defence. Likewise
army manoeuvres within a country's territory or bombing practice on a range.
Nuclear explosions, however, are consistent with activity directed towards
other purposes and there is nothing which intrinsically or essentially connects
theni with national defence.
344. Furthermore, ifthe Court were to look at the expressed intention of
the Government of France, it would not be assisted towards a dccision that
the activity was for the purpose of national defence.
345. How is the Court to conclude that the nuclear testsare in fÿct activities
connected with national defence? There is only the simple assertion hy the
French Governnient that they are. No reasons are given by them to the
Court.
346. There are a number of authoritative official statements by members of
the French Government which suggest that France's nuclear programme has
other purposes than national defence-Io give France a place in the councils
of the great powers. for example, and to give her mastery of nuclear tech-
noloe...Most recentlv. declarations emanatinc - from the highest French
political persunlilii) have p;,rticulsrly c411cd the <itiention of the Frcnzh
public Io the finanaal liJvant;tges of ihc French r'lTort to ireste a nuileilr
force. This form of armament was described as much less ex~ensive than a MEMORIAL 315
comparably strong conventional armament. "Quoi qu'on pense" it was said
"l'arme atoniique est [moins chère que l'arme conventionnelle. telle qu'il
faudrait la développer si on reconqait à l'arme atomique 1".
347. Is il then no1 open to conclude in the absence of evidence to the con-
trary that these tests are not indispensable for the national defence and are
not at al1 "essentially connected" with if?.
348. Can it no1 also be asked whether il is only because France was in the
pas1 able to conduct ils atmospheric tests in the Sahara and is now able to
conduct them in an island of the South Pacific-both regions being quite
remote from the nietropolitan territory of France-that ils choice in Favour of
atomic arinament against a more expensive conventional one was possible?
The French Government has no1 provided the Court with an answer 10 this
question. The reactions that were provoked las1 August in French public
opinion by the simple runlour that the authorities were planning to create an
"undereround" test site in south-west France obliged the Government
- ~ ~ -
officially to declare that it was "absolument exclu" that nuclear tests of any
kind niav be elïected in French metropolitan territory 2.
349. 1sit unreasonable to deduce frotii these facts, without evidence to the
contrary froni France, that if France had been unable Io go to the Pacific Io
conduct ils atmosoheric nuclear tests. the Government would have been
unable to developits nuclear arrnarnent and would, like niany others, have
had 10 base its defenceeffort on conventional weapons to defend itself?
350. 1s it then to be so easilv acccoted without roof that the French
nuclear atniospheric tests in the south ~acific are reaily activities essentially
connected with France's national defence?
351. Finallv. there are the freauentlv r.Deat.d and authoritative stateiiients
h! the lren;l~ Cid~crn~lienl $$h~:h Ii;l\~.t~,l.:;~tctI1:xtlhc pri[ut~trypurpo,c slf
lr.inr'c'~~lcvcl~~pn~cn ti 3 11i1~1c.ifrc>r:eN.I\ :~~r~nc~:tcd IIII~:~ntore :I\I.CIY
ut111n~~l~t~:.i l,(II>ih.~n h~tli ,~tiinIc dc,fc,~~~\. rn!lctlitrc 11.1teIxen ,~rli~~i~l
statenienls by the French Governnient indicating the defence reasons. why
should not the Court conclude in the absence of proof to the contrary by
France that the stateiiients ciiiphasizing the political reasons are the niore
coiiiplete indication of French iriteniions?
352. The Australian Governrnent therelore submits that even if-which is
surely not the case-the jririsdiction of the Court in the present proceedings
can only be based on the declarations of acceptance by the parties Io the
optional clause, and even if the French declaration should be considered as
validly liiiiited by an "obiective" reservation excluding activities connected
nith ".iitcin;idetenit. ihi;rc\er\~iiori sli~~iilJhr'w> <<i"\trucd. trith rclércn.c
1s IIic picirnt c'.i\rd> not Io ~nilii.lc in ili\.i>pc the 11.liic.irtcsts clTe.ic~ hy
the French Government in the South Pacific area,
' See Le Monde, 29 Seplember 1973,p. 3.
The paper Sud-Ouesrof Bordeaux reported on 26 July 1973that it receivedthis
preciseassurance fram M. Robert Galley, Minister of the Armed Forces.A footnote
10 the report stated that M. Galley'sdenial may be taken as an advance reply Io a
question askedin the National Assemblyby M. Henri Lavielle,Deputy of the Landes.
The paper then reassured ils readers by indicating that the underground explosions
were to he executed in the Kerguelen Islandsor in an island of the Pacific. D. The Helationship Belwcen the Jurisdiction of the Court
Under the Ceneral Act and the Optional Clause
353. It remains now to considcr an argument briefly raised by the French
Government at the end of both the Note and the Annex. It proceeds on the
assumptions, first, that the General Act is valid and operative and, secondly,
that the reservation tu the French declaration of 1966 is valid and effective
in deorive the ~r~nch declaration under the o~tional clause of ils aoolica-
bility;O the present case.Although the Government of Australia ob;;ously
accepts the first assurnption which it believes tu befully in accord with reality,
itca" onlv acceot the iecond (which it believes to be wrone) for the purouses
of the pre;ent akgument. The french contention is tu the egect that the court
would be here confronted with "a probleni of the relationship between two
successi;e acts in the nature of agre-ments relatine to t-e same matter" and
that the expression of French intention in its declaration under the optional
clause made in 1966 should override the obligations which it assunled under
the General Act in 1931
1. THE CASE OF THEELECTRICCTC YOMPANY OF SOFIAAND BULGARIA
354. Before meeting the French contention in specific ternis, it is as well to
recall the fact-su inanifesily ignored in the French Note and Annex-that
the question of the CU-existenceof two separate and independent sources
of jurisdiction has already been aiithoritatively exaniined and answered by
the Court. The answer is crystal clear: when two valid sources of jurisdiction
exist at the sarne time, neither overrides the other. Each may be used. The
answer was given in the well-known caseof the E1ecrricir.vConoa~ryof Sofia
aizdBulgaria(P.C.I.J., SeriesA/B, No. 77,p.64).
355. Th~ ~~~s ~ ~~~e broucht bv Bel.iui~~uaeains- Bulearia. -he substantive
cause of action arose out of the treatnient by Bulgaria of a Belgian Company
operatine in Bulearia and that substantive causeof action does nui matter for
niesent ;tirnose;. In that case. as in this. two rrounds of iurisdiction were
-- r~ - ~ - ~
Ynvoked.The first consisted of ihe declaraiions made by ~ulgaria in 1921and
Belgiurn in 1926under the optional clause. The second ground ofjurisdiction
wa'the Treaty of conciliation, Arbitrationand Judicial ~ettlemenÏ concluded
between the two coi~ntries in 1931. This treaty may, for convenience, be de-
scribed as a sort of bilateral general act of a kind prornoted by the League of
Nations at the same lime as the General Act itself was drawn UV. and in
material content ilwas very similar to the General Act. On analysis-it will be
found tu be as niuch a general lreaty for the peaceful settlement of disputes,
in oarticular.>iudicial selilenient. as the FrenchNote hassugeested theGeneral
~ct 10be. This, therefore, is nota ground for distinguishingthis casefrom the
present.
356. The factual point of dinèrence in that case from the present case iS
that there the declarations under the optional clause were earlier in time than
the treaty.
357. The question of the effect of the Belgian invocation of two grounds of
jurisdiction was not raised by the Bulgarian Government. It arose, il would
seem,almost by accident in the course of argument by counsel for the plaintiff
State. Belniuni. One niornine he observed that relations between the two
countries Gerefora period go;erned by the 1931Treaty alone. That afternoon
heretracted this view-see P.C.I.J.. SeriesAIB, No. 77, al page 75.
358. However, the point was pursued within the Court. Although theJudgment itself is relatively brief in its treatment of the question, it is signifi-
cant that the Court's conclusion on the niatter was quite clear.
359. The whole relevant passageof the Judgment reads as follows (ibid.,
at p. 76):
"The Court holds that the sueeestions first made bv Counsel for the
Belgian Government cannot be ggarded as having the-elTect of modify-
ing that Party's attitude in regard tu this question. The Belgian Govern-
ment in facthas alwavs beenin aereement with the Bulnarian Govern-
- -
iiisnt in hi,lding ih:iirrhen the ,\ppliciiiion u:is fileil. iheir Je~lxrst.<~ni
:i~.~.cpiingthç <'oiirt'~jiiri\Jictio:~.;soiiipiil,i~ry ncrc \[il1 in force.
'1he Ct>urt shires the vie\%of ihe I?irtic, In II,opcnion. inc niiiliiplicity
or dgreciiienis :un~~l.i<led ac.,cpting the con~pi~l<or) jurr>diL.iii>n ii
cvden~c ihat the conir:icting l'ariie,i~itcii,le<1%)c>pm r,p r,r.iii<r)<<.f
acqess to the Corrrt rarher than ro close old ways or to allow rhem Io =ancil
each orher OI~Iwith rhe itlfimare rernlr thar nojnrisdicrioi7 woirld remaiir.
In concluding the Treaty of conciliation, arbitration and judicial
settlement. ,he ~ ~ ~9~~f Beleium-and Bulearia was tu institute a verv
complete system of mutual obligations with a view tu the pacific settle-
ment of any disputes which might arise between them. There is, however.
no jr,stificarion for holding rhaÏ in so doiiry they intended to weaketr rhe
obligations whictr fhey hadprer,ioosly eirtered i~rto with a similar pirrpose,
ofrd especially whe~e such ob/iga/io,~s were more e.rteirsive than thore
ensi~itlgfiom the Trealy.
It follows that if, in a particular case,a dispute could not be referred to
the Court under the Treaty [the later instrument] whereas it might he
submitted tu it under the declarations of Beleium and Bulnaria acce~tine . -
as conipulsory the jurisdiction of the ~ourt'[the earlier instruments], in
accordance with Article 36 of the Statute, the Treaty [the larer i,rsrrr,-
ment1 raimot he addured to prevetrt those declararions from e-~ercisii~g
their eb'bctsand </isprttesfrom beirrg thris srihmirterl ta the Court." (Italics
added.)
360. This is as Faras it was necessaryfor the Court to take its discussion of
the subject. The Court manifestly reji,sed ro accepr a larer ~rirrrrrmenf confer-
ring jrrrisdiction oir it as anfomotically overridiny an earlier i,zsrrnmrnt. The
Court emphasized the continuing force of the earlier instrument especiÿlly, as
it said, "where such obligations were more e.~tetrsivethan those ensuing from
the Treaty".
361. Now the decision of the Court, read by itself, provides the most
powerful support for the submissions of the Government of Australia.
There, as here, were two sources of jurisdiction; there, as here, the earlier
source ofjurisdiction was more extensive, that is.1~~~ re~trictedby reservarioirs
than the later source. In the Electricity Compariy casethe significant diference
between the optional clause declarations and the 1931 Treaty was that the
latter contained a provision making exhaustion of local remedies a condition
precedent tu the proceedings. This made more precise the rule of customary
internationallaw that would olherwibç haveapplied, and significantly reduced
the benefit of the 1931 Treaty to the claimant State, Belgium. Hence its
preference for the optional clauseasa hasisforjurisdiction.
362. There is another distinction betweenthe Eleoricity Compairy caseand
the present casewhich servesonly tu strengthen the contention in the present
case that the optional clause declaration does not override the acceptance
under the General Act. The Electricity Company case was one of conflict MEMORIAL 319
In a casein which it had been contended that not a unilateral declara-
tion but a treaty between two States had liniited the scope as between
them of their previous declarations accepting compulsory jurisdiction,
the Permanent Court rejected this contention and said in this connection:
'The multiplicity of agreements concluded accepting the compul-
sory jurisdiction is evidence that the contracting Parties intended to
open up new ways of accessto the Court rather than to close old ways
or toallow them tocancel each other out, with the ultimate result that
nojurisdiction would remain' (P.C.I.J., SeriesAIB, No. 77, p. 76).
A way of accessto the Coitrt wasopenedrrpby the accessio~o rf the two
Parties to the GeneralAct of 1928. Ir corrld notbe closed orcancelledout
by the restrictive clarrsewhichthe French Government,atrdnof the Nor-
wegianGover,rment,addedto ifsfiesh acceptanceof compr,lsoryjrtrisdic-
rion staredin ils Derlaration of 1949. This~re~ ~~ ~ ~e clause. emanatine
from only one of them, does not constitute the law as between France
and Norway. The clause is not sufficient to set aside thejuridical srstem
existing betbeen them on this point. It cannot close the &y of acciss to
the Court that was fornierly open, or cancel it out with the result that no
jurisdiction would remain." (Ltalics added.)
366. Having thus indicated the extraordinarily direct and cogent strength
of authority within the Permanent Court and the International Court in
support of the Australian contention that the French declaration under
Article 36 (2) does not adversely affect the terms of its acceptance of the
General Act, it is necessaryto say a few words about the specific contentions
advanced in the concluding pagesof the French Annex.
367. The French Government identifies the oroblern as beine in its view
one "of therelütionship between two successiveacts in the nature of agree-
ments relating to the same matter". This French position is developed first in
specific terms, by reference to Article 103 of the Charter, and Ïhen more
generally on the basis that Article 103 is not applicable. In view of the sub-
sidiary role thus attributed to Article 103, the Australian answer on that
point will be left until the more general point has beendealt with.
(a) The Problemof So-Colled "Successive Treaties"
368. The French Annex scarcely elaborates what it conceives to be the
proper resolution of "the ordinary problem of a subsequent treaty relating to
the same subject-matter as an earlier treaty as between the saine countries".
It is left to the imagination of the reader to suppose that, in the French view,
where there is a conflict between two such provisions, the later in time should
prevail.
369. Yet the French Annex immediately shiesoff the implications of such a
conclusion, for it says:
"lt is not of course suggested that when any treaty whatsoever con-
tains a clause conferring jurisdiction on the lnternational Court of
Justice, a State party to such a treaty may automatically free itself from
that clause by modifying its reservations to the jurisdiction of the Court
on the basisof Article 36, paragraph 2."
370. The French Government seeksto avoid this situation by distinguish-320 NUCLEAR TESTS
ina between the case of the General Act. which is a treaty devoted whollv to
peaceful settlement of disputes, and that of other treatie; in which the pres-
ence of ajurisdictional clause is only an incidental element.
371. Üowever. if the basic French argument w-re correct. everv iurisdic- . .
iiondl clliise in ariy irc;1iy10 \\hach France 1s3 pari) should bc reiid ;issiibjcci
io ihc ih.inging contcnt i)f ihr I'rrnzh dcclar~tioni undcr thc opiiimsl r'lause.
The verv .~or..ension of the French Government that this result mav flow
fr,>ni 115 irguiiient shoui horr derir.i~ti\e the conseqdence \iaiulJ he. IFrûnce
rvoiild not $i:inJ ;ilune :is the "heneliiiary" of this propos:lion. Thc intcrna-
tionalconiniunitv would beconfronted bv the essential worthlessness of everv
,uri,diction.il undcriaking 111tlic f:icc ufcullisi~n uith s subsequeni inc<)iiip3t-
ihlc dcilaraiion undcr ihc optional claii\r. InJeeJ Siaier srould cvcn bc able
to oroduce declarations hedced ar-und with so manv reservations ainied at
pre-existing jurisdictional undertakings and containing so little in the way of
new positive obligation that the structure of the Court's conipulsory com-
petence would soon crunible away entirely.
372. The central error of the Frenchcontention is the idea that when two
States are tied by two bonds of compulsory jurisdiction, one established on
the basis of the optional clause and the other by a treaty in force between
them, the two niiist necessarily be made to coincide in their effects, and that,
by applying the critcrion that the later in time should override the earlier.
373. The Statute of the Court and the General Act are two aeneral treaties
cs~h u.ih 115oun indcpcndcnt loi;.. neiihcr is ileeiiied iici\crr.de the other.
374. Thc optional cl:iiisc 15 a 5pc:ial pro\ i5i.m oitlic Stai~ic. 1tdoci inui. hy
itself. create link ofconioulsorv . .iurisdiction between its varties. but it oro-
\ode, ihai the) m,iy irwc uni1:iIcr:al dc.'laral~c>~is of leceptancc of the jitrl~,l~c-
lion of ihc Coiiri. so th~t ihc ji~int etTrci oi itic isrious iinilatcral dcil;iraiioni
will be the creation between them of an engagement. The extent of this will be
determinedon the basisofthelimits freely indicatedby each Party. Moreover,
the acceptance niay be withdrawn or its limits changed.
375. The General Act is a lrealy which by itselfdirectly creates the engage-
ment for compulsory jurisdiction among the States parties to it. These States
may unilaterally place some limitations upon their engagement, but this only
by referring to certain agreed categories of reservations; moreover, they may
add new limitations to those originally indicated only at certain fixed times
and following a fixed procedure.
~76~ ~h~ c~m~ ~is.~ ~-~wee~ ~he ~ ~ thus shows thüt anv modification of
the engagement respectively assumed under the optional clause and under the
General Act can only be etTectedin the way and subject to the conditions
provided for by the instruments which form their respective bases.
377. Froin this it clearly follows that agreements for coiiipulsory jurisdic-
tion created upon the two different hasesbetween two States which are parties
both to the Statute of the Court and to the General Act may not have the
same scope. This result is in no way surprising. as the General Act is a treaty
havina - wider scooe and is not confined to the creation of an engagement f-r -
the judicial settlcnicnt of Iegal di\putes. As a conscqucncc, ii is quiie posrihle
that in a spccific caseihc conclusir~n niay he rcached ihat the Court hasjuris-
diction only under one of the two ditTerent links.
378. The central element in this whole problem is an appreciation that any
formal rules which may be cited, e.g., that the particular overrides the general
or that the later overrides the earlier. are no more than ~resumptions about
intention in the absence of specific or other indication; of the will of the
parties. The Iaw relating to the independence of paragraphs 1 and 2 of Article36 has always been so clear that there has never-until now-been any sug-
gestion of the possibility of confusion between them.
(b) The Irrelevance of Article 103of the Charter
379. It has been suggested in the French Annex that the French declara-
tion of 1966 constitutes an obligation under the United Nations Charter
which, by virtue of Article 103 of the Charter, niust prevail over the General
Act. Article 103 reads:
"ln the event of a conflict between the obligations of the Members of
the United Nations under the present Charter and their obligations under
any other international agreement, their obligations under the present
Charter shall prevail."
Reference is made in the French Annex to the fact that the Statute of the
Court is declared by Article 92 of the Charter to be an integral part thereof.
380. In the submission of the Government of Australia there are threeclear
reasons why Article 103does not apply to the situation.
381. First. there is no "conflict" within the meaning of Article 103. between
the French déclaration and the General Act. The tw6 instruments clearly can
stand together; they are compatible ways of dealing with similar subject-
matters. ~nv other ~onclusion&ould be sur~rising in view of the fact that the
Charter itseif, in the Chapter dealing with the ~acific Settlement of Disputes,
makes it clear that judicial settlement is an appropriate means for settling
disoutes: that consideration is to be eiven to orocedures for the settlement of
-, ~ r ~ ~ ~ ~
382. The second reason is that it is not correct'to suggest, as the French
Annex does by implication, that the obligations assunied by States which
have made declarations under the optional clause have the same status as
"obligations of the Members of the United Nations" under the Charter. It is,
of course, quite true that the Statute is, under Article 92, an integral part of
the Charter. But it does no1 follow that the relationships created between
States which make declarations under Article36 (2) of the Statute are them-
selvesto be assimilated to obligations under the Charter.
383. This Court in the Rights of Passage case (I.C.J. Reports 1957, at
p. 146)clearly regarded the relationship between parties to the optional clause
as a distinct contractual relationship arising from the fact that they have
both niade declarations within the framework of the optional clause. Thus,
the Court said:
"The Court considers that, by the deposit of its Declaration of Accep-
tance with the Secretarv-General. the accepting State beconies a Party to
the system of the pii ion a clame in relation to the other declarant
States, with al1 the rights and obligations deriving froni Article 36. The
contractual relation between the Parties and the compulsory jurisdiction
of the Court resulting therefrom are established, 'ipsofacto and without
special agreement', by the fact of the making of the Declaration."
A few lines later the Court referred to the consensual bond, which is the basis
of the optional clause.
384. Il is clear of course that the bond is not created by the Charter itself;322 NUCLEAR TESTS
itis net,in th31sense. a Chsrter rel~tionship. Kor is 11the rcllitionship created
by the Statiite, for al1 Memhers of the United Nations are bound by that
relationshio. while onlv some are bound bv the ootional clause. To sav that
the relatiokhip exists bithin the framewoLk of théStatute is not to sa; that
the obligation thus established is an obligation under the Charter. All the
obli-ations under the Charter and the Statute. assuch. are alreadv . .lled out
and are equal for al1 parties. Obligations under the optional clause are extra
commitments which originale from outside and, 11should be noted. are in
some cases even assumed by States who are not members of theUnited
Nations and are not bound by the Charter. This, for example, was the case
with Liechtenstein in the Norrebohm case (I.C.J. Reports 1955, at p. 4).
385. It is submitted therefore that the optional clause declaration is not an
"obligation of the Members of the United Nations" under the Charter within
the meanina of Article 103.
386. The-third relison why the French contention relating IO Article 103
miist be rejected is thiit therc is no conllict oi "obltp:~tions" within the
meantnc of the Article This asneci u;ir de\.eloped in the sneeclr oi the Solio-
tor-Genëral before the Court on 22 May 1973 (pp. 203-204, supra). The
Solicitor-General referred to, amongother things, the nature of the obligation
owed by France to Australia under the General Act. It is thc obligation to
submit Io the jurisdiction of the Court under the General Act if Australia
invokes it. It may be asked, what obligation has France accepted under the
optional clause? It is to accept the jurisdiction of the Court as defendant if
Australia chooses 10invoke it. It is only heavier if France's reservütions under
the optional clause are less restrictive than those attached by France to ifs
acceDtance of the General Act. But in this case the reservation uoon which
ranc apepears to be relying-the reservation of national defence-is not less
restrictive but more restrictive than ils reservation under the General Act.
There is no conflict of obligations.
(c) Tlic Frerich Declararioii of 1966 Ca~i~iorBe Rcgorded os a
Rescrrorio,~ Mode U~rclerthe Cenerol Act ro Take Eficr
or the E,ldof the Five-Year Period
387. ln the closing paragraphs of the French Annex, the suggestion is made
that, upon the hypothesis that the General Act is in force, the reservation of
activities connectcd with national defence in the declaration niade in 1966
under Article 36 (2) of the Statute of the Court should be interoreted as a
suspended addit& of a reservation under the General Act to take eiiect in
1969, the end of the current five-year period during which the General Act
would not be abroaated or amended
388. Il 1snoi becçved by the A~str;ili;in <;o\ernnient Ihat the Court could
txke seriou~ly the propociti,in thaa de<lar:ition under the opiion;il cl~iise idn
have the automatic effect of operating as a suspended notice under other
treati~~-auite unsoecified-of termination or aniendnient. when the tr~a~ies
.~.
themselves conrain quite precise provisions for amendment.
389. For reasons uoon which the Australian Governnient need not soec-
ulate, the French Go;ernment has trot niade use of the possibility open to il
under Article 44 (4) of the General Act of a dcnunciation consisting of
notification ofreservations not previously made. The rcsult can only be that
the French Government isstill bound by the General Act on the conditions
previously indicated by the said Government. PART TWO
ADMlSSlBlLlTY
A. introduction
1. PRELIMINARYOB~ERVAT~ON~
390. In thii pari of ihe )rlcitiorial the C..>\crniiicnt of A~rtralia uill aJJrr.i.;
itrclIO thc question <~f:tdnii;sibility of thc Appliwlii>n.This irin 2ccord:ince
uiih the rcquireiiient, oi the opcraiii,c psrt of the Coiirt's Ordcr ,~f22 Junc
1973, with which the ~overnment of ~ustralia will seek to comply as con-
structively as possible.
391. The Australian Government notes first of al1that there is no generally
established or accepted concept of admissibility. This has, indeed, been
acknowledged by the Court. In the Northern Cameroorrscase,the Court said:
"The arguments of the Parties have at times been at cross-purposes
becauseof the absence of a conimon meaning ascribed Io such terms as
'interest' and 'admissibility'. The Court recognizes that these words in
differing contexts iiiay have varying connotations but it does not find it
necessary in the present case to explore the meaning of these ternis."
(I.C.J. Reporrs 1963, al p. 28.)
392. The word "adniissibility" itself does not appear in the Statute of the
Court. Nor was it to be round in the Rules ofcourt prior Io ils inclusion in
Article 67 of the revised Rules of 1972.The jurisprudence of the Court on the
ooint is relativelv sniall. Whenever auestions of this kind have been raised in
ihe past, it has been at the instance' of a respondent State which has raised
some specific issue identified and accepted as one of "admissibility". So far as
the Ciovernment of Australia is aware. this iç the first occasion on which the
Court has ordered an applicant State to address itself generally Io the question
of the admissibility of an Application.
393. Such being the case, the Government of Australia deems il useful to
review briefiy in chronological order the casesin which admissibility has been
mentioned.
394. The experience of the Permanent Court with the question of admis-
sibility was so slcnder that the concept appears no1even Io have attracted the
attention of Judge Hudson.in his work on the Court. That tribunal, il seenis,
Ravesuecific consideration to the auestion of admissibility only twice. First,
procecd with the case because proceedings on a similar matter were pending
before the German-Polish Mixed Arbitral Tribunal. The Court decided that
the objection could be considered al the preliminary objection stage. and then
rejected it. Secondly, in the Pajzs. Csaky aird Esterhazy case the Court held
that the appeal of the Hungarian Government against the three judgments
rendered by the Hungarian-Yugoslav Mixed Arbitral Tribunal on 22 July
1935 could no1 be entertained because the conditions prescribed for appeals
under the relevant treaty had no1 been satisfied (P.C.I.J., Series AIB, No. 68).324 NUCLEAR TESTS
395. The present Court has been presented with questions of admissibility
more frequently. In the Nottebohm case (Seco~rdPhase) (I.C.J. Reporrs 1955,
p. 4), the Court held that the claim submitted by the Government of Liech-
tenstein was inadmissible on the ground that Nottebohm's Liechtenstein
nationality could not be relied upon agdinst Guatemala. The Court did not
examine two other grounds of inadmissibility which were invoked by Guate-
mala: insufficiency of diplomatic negotiations to reveal the existence of a
dispute between the partiesand failure to exhaust local remedies.
396. In the Interhan<lelcase (I.C.J. Reports 1959, at p. 6) the Court held the
application of the Swiss Governnient inadmissible on the ground of non-
exhaustion of local remedies.
397. In the Aerial Iiicidetrt case (Israel v. Bulgaria) (I.C.J. Reports 1959,
at o. 127). Bulgaria raised two issues which it described as ones of adniis-
s.hilit),ii3111ïly.non-c\hxi~ii~an of local reiiicJie\ .in4 nliiion;il.of r.l.iiiiis:
hut ihe Coi.rt deciJcJ the c.i~ upitn 311 excluri\cl) juri\dl~i~<>nill gro~.nJ,
namely, the lapse of the Bulgarian declarations under the optional clause.
398. In the Northern Cameroonscase the Court in eiïect treated the grounds
upon which il held that il could not proceed with the case as relating to
"admissibility" rather than jurisdiction. It concluded "that the orooer limits
of ils judiciai functions do not permit it to entertain the claims;ubmitted to
it" (I.C.J. Reports 1963,at p. 38).
399. In the Barcelo~ia Traction case (I.C.J. Reports 1964, at p. 3), in
addition to the question of jurisdiction which was dealt with as a preliniinary
objection, two questions of admissibility were raised by the Government of
S~ain: an obiection to the Iocrtsstandi of Belaium and an obiection that local
remedies had not been exhausted. Both the; objections wérejoined to the
merits, and ultimately in itsjudgnient of 1970 (I.C.J. Reports 1970, at p. 31,
the Court, after hearing the whole case on its nierits, rejected the Belgian
claim on the ground that Belgium had no locns stai~di.
4ûû. In the Soitth West Africa cases (Prelimi~rary Objectio~u), 1962, the
South African Government raised a number of issues which it described as
objections to jurisdiction, though they al1depended upon an allegation of the
lack of locits srandi of Ethiopia and Liberia (see I.C.J. Reports 1962, ai
p. 326). These were rejected by the Court. In the Sorith West Africa cases
(Second Phare), 1966, the Court held, by the President's casting vote, the
votes being equally divided, that Ethiopia and Liberia had no1 established
any legal right or interest appertaining to them in the subject-niatter of the
clainis (I.C.J. Reports 1966, at p. 3). The Court did not feel it essential to
treat the question of "interest" as one of adniissibility,but by way of what it
described as "a digression", il did state that "looking at the niatter from the
point of view of the capacity of the Applicants to advance their present claiiii,
the Court woold hold that they had not got such capacity, and hence that the
claini was inadmissible" (ibid., at p. 43).
401. This survey of the jurisprudence of the Court, as can readily be seen.
confirms the statement made earlier to the efïect that there is no single
established meaning of the word "admissibility".
402. On turning now to the Order of the Court in the present case, the
Government of Australia notes that it contains a reference which clearly
indicates what was meant by the Court itself when asking the Australian
Government to demonstrate the "admissibility" of its Application. At para- graph 23 the Order reads: "Whereas it cannot be assumed a priori that ...
the Government of Australia mav not be able to establish a lezal interest in
rcspcit uf the\c cliiiiiis entitling the Cotir1 tu iJmii ihc ,\ppli.'iÏion:' Clrsrly
the Court i,nor asking the .4iistriilian C;<i\erniiient IO cngdge in in euliiina-
tion of al1 theoreticanv imaeinable auestions of admissibilitv. but to con-
centrate its attention on one cpecific aspect: the existence of a fegal interest of
its own in the case il has brought to the Court.
403. The accuracv of this inter~retation is confirmed bv a readine of the
commentary made by one of the Judges who participated in the adoition of
the Order. In his declaration, Judge Jiménez de Arechaga commented upon
this sentence in the following terms (at p. 107):
"The question described in the Order asthat of the existence of 'a legal
inicrest in rï3peit si tliasc ilxim> ent:iling tlic Cti~ri io iidniii the Appli-
catiun' (piri. 23) ir chiriiterilcJ in ille <~per.iiivepart as i~iierelaiing Io
the admi~~ibil~t~uf the AnpI;;;~l~an. The i.\ue l!cihbccn rdiseJ oiu hetlicr
Australia has aright of 6; own-as distinct from a general comrnunity
interest-or has suffered or is threatened by, real damage. As far as the
power of the Court to adjudicate on the merits is concerned, the issue is
whether the dispute before the Court is one 'with regard to which the
parties are in conflict as Io their respective rights' as required by the
jurisdictional clause invoked by Australia."
Judge Jiménez de Aréchaga later said:
"At the oreliminarv . sta-e it would seem . . .suficient to determine
whether the parties are in conflict as 10 their respective rights. It would
not appear necessary to enter at that stage into questions which really
pertain Io the nierits and constitute the heart of the eventual substantive
decisions such asfor instance the establishinent ofthe rights ofthe parties
or the extent of the daniage resulting from radio-active fall-out" (at
p. 108).
3. POSITION AND TASK OF THE GOVERNMENT OF AUSTRALIA
404. The Gor,ernrnent of Austrîliri has indicated that in this part of its
Memorial it will examine, quite separately, the question of Australia's legal
interest in its claim.
405. In dealing with the specific requirements of Article 17 of the General
Act. the Australian Government has already had occasion to emohasize that
ihc di,puie hetueen II:ind 1-r.incc isiindoubicdl) a dhpule of ciicgdl nature,
i.e, J Jijpure ii tu the '.respe<tite rights" of rhe parties. Il hi, rei.illed thil
uhcn in ilsA~@liciilion iis,,eris ihc iinl~iriu~ness in internat;on;il Iiiu of the
nuclear atmoipheric tests conducted by France in the South Pacific area,
Australia puis its case exclusively in terms of existing legal rights and more
particularly alleges the infraction by France of its obligations under interna-
tional law. On its side, the French Governnient hss expressed the view that its
nuclear tests do not violate any existing rule of international law. The Aus-
tralian Government therefore concludes that it could not be more explicitly
acknowledged by both parties that the present dispute only concerns their
respective rights and obligations and that these Iegal aspects only are now at
issue before the Court.
406. The Australian~ ~~ ~G~v~rnment does not reallv see how it could be
maintained that it has not a legal interest in its Applicatiuii. When it asserts
that France, by executing its nuclear tests, infringes its international legal326 NUCLEAR TESTS
obligations towards il, and France on ils side contests the existence ol'such
obligations, how could it be denied that Australia has a legal interest in ob-
taining ajudicial decision on those essential points of ditïerence in law?
407. Nonetheless, the Australian Government, wishing fully to comply
with the Court's Order, will now devote itself to explaining ils position in
greater detail. in order to eliminate any possible residual doubts as to the
admissibility of ils Application.
B. The Meaning of "Legal Interest"
408. On the basis, then, that ils sole task in connection with adniissibility
is to estsblish that it has a legal interest in respect of its claims, the Govern-
ment of Australia thinks it will be useful to examine first of al1 the way in
which the Court has in the past treated the concept of "legal interest". As
will be seen, little in the way of positive definition will emerge. However,
certain indications of what the Court has in the past had in mind in using this
expression will appear; and for that reason a review of the relevant cases
seemsto be iustified.
409. It appears to be coinmonly accepted that an applicant State niust hnve
a legal interest in the subject-niatter of the claim which it is bringing. On this,
as a general proposition, there was basic agreement amongst the ~ëmbers of
the Court ai bolh stagesof the Soitrh West Africa casesin 1962and 1966-the
deep division in the Court in those cases being related, al least in part, 10
ditïerences of opinion as to what amounted to a legal interest. More recently
in the Bnrceloizo Traclioit case (Secoi~dPhase) (I.C.J. Reporls 1970, at p. 3),
the Court again adverted to the need for an applicant State to show an appro-
e ria tleaal interest.
410. Concern to identify the legal interest of an applicant has niarked the
Court's judgments from ils earliest days. In the IVimbledoir case, the Court's
first judgiiient, the Court said:
"It will suffice to observe for the purposes of this casethat each of the
four Ao~licant Powers has a clear interest in the execution of the orovi-
sions réliting to the Kiel Canal, since they al1possessfleets and merchant
vesselsflying their respectiYe flags. They are, therefore, even though they
may be unable to adduce a prejudice to any pecuniary interest, covered by
the terms of Article 386, paragraph I ..." (P.C.I.J., Series A, No. 1, at
p. 20.)
It is thercfore to be noted that since the beginning the Court thooght it
necessaryto eiiiphasize that the requirernent that a State show the existence of
a legal interest of ifs own in a specific case wasnot at al1to be understood asa
requireïnent to show the existence of an actual prejudice or of a pecuniary
interest.
411. A iiiore positive definitionof the concept of a "legal interest" than
this, in a way, negativc one, may be difficult to find, even though the concept
has often been nientioned. An exaniination can however be made as to how.
in the various cases, the Court has satisfied itself wbether or not a legal
interest exists.
412. In ~ractice. the Court and individual iud~es have mainlv tended to
draw a distinction between two categories of leial &terest, material and non-
material. though both have been regarded as a sufficient basis for the institu-
tion of proceedings MEMORIAL 327
413. In the South Wesr Africa cases (Preliminarv Obiecrions) (1C.J.
Reports 1962,at p. 319), ~outh~frica raised'a preliminary o~ection,'amongst
others, to the effect that the cases did no1 involve a "dis~ute", as envisaged in
Article 7 of the Mandate,
"more particularly in that no material interests of the Governments of
Ethiopia andior Liberia or of their nationals are involved therein or
affectedthereby" (I.C.J. Reports 1962, at p. 327).
The Court's treatment of thesubject of "interest" was relatively brief. It stated
that-
"the manifest scope and purport ofthe provisions of this article [Article 7
of the Mandate1 indicate that the Members of the League were under-
hisud io Iiare IcgxIrighi ur iniercst in the i>bsïr\,ance hy the Mandatory
of ils i~bligaiii>nshoth tsir.ird the inhsbii~nis or the hlandated Terriiury.
2nd toiidrd the League JI Naiiuns and il\ hleiiihsrs" (,hiil., ap.343).
Later the Court said of Article 7:
"Protection of the material interests of the Members or their nationals
is of course included within its compass, but the well-being and develop-
ment of the inhabitants of the Mandated Territory are not less impor-
tant" (ibid., at p. 344).
414. The question of legal interest was more fully examined by Judge
Jessup in his separate opinion. There he said:
"International law has long recognized that States may have legal
interests in matters which do not affect their financial, economic, or
other 'material', or, say, 'physical' or 'tangible' interests" (ibid., at
p. 425).
He gave several illustrations of this principle.
415. First, he spoke of the right of a State Io concern itself, "on general
humanitarian grounds, with atrocities affecting human beings in another
country" (ibid., at p. 425).
416. Next he referred to the assertion by States of "a legal interest in the
general observance of the rules of international law" (idem). He gave two
illustrations of this point. The first was provided hy the claims made by
France against ltaly in the cases of the Carthage and the Manoirba (Scott,
Hague CorcrtReports, at pp. 329 and 343), decided by the Permanent Court of
Arbitration in 1913. They arose from the interference by ltaly with French
shipson the high seas in circumstances which the Court found to be illegal.
The French Government claimed in each case darriages under two heads:
first,
"as reparation for the moral and political injury resulting fromthefailure
to observe international common law and the conventions which are
mutuallv binding u.on.hoth ltaly and France";
and. sscondly, as indeninit) iu ihc pr.\,ate individiials intcresied in the ships.
The Court aircirded damages unJer the second hcdd, and in rel;ltiun tu the
first head it held:
"that in case a Power has failed to fulfil ils obligations, whether general
or special, to another Power, the establishment of this fact, especially in
an arbitral award, constitutes in itself a severe penalty". (Scott, Hague
Court Reports, at p. 349.)328 NUCLEAR TESTS
417. These observations clearly justify the conclusion drawn from the
casesby Judge Jessup. France was asserting that it had a general legal interest
in the observance by other countries of their obligations under international
law auite seoarate and distinct from that concernine th- or~.~~~~on of th~~ ~ ~ ~
specific material interest of its nationals. This general legal interest was recog-
nized by the Court and was identified by Judge Jessup as a leaal interest of a
non-material character. -
418. Judge Jessup's other illustration was the decision of the Arbitral
Tribunal in the caseof the I'm Alone.This casearose out of the sinking on the
high seas by the United States of a Canadian-registered vessel. The sinking
was held unlawful; and the Commissioners recommended that the United
States should pay to Canada $25,000 "as a material amend in respect of the
wrong". This sum was independent of the sums recommended to be paid as
compensation to the injured members of the crew. (UN Reports of Iwterna-
tionolArbitral Awords,Vol. 111,at p. 1618.)
419. The next category of example provided by Judge Jessupfor his propo-
sition that States can have a legal interest in matters not aflecting their
economic interests is drawn from treaties which "for over a century .. .have
specifically recognized the legal interests of States in general humanitarian
causes. . ."(I.C.J. Reports1962, at p. 425). The specific instances inentioned
by Judge Jessup were the Minorities Treaties, the Genocide Convention, the
Constitution of the International Labour Organisation and the conventions
concluded within that Organisation.
420. The Government of Australia has referred to the views of Judge
Jessup in such detail, not only because of the eminence of their author, but
also because they may represent the origin of certain observations made by
the Court itself in itsjudgment in the Barcelo~iaTractio~rcase (SecorrdPhase)
(I.C.J. Reports1970,at p. 4). There, in considering whether a right of Belgium
had been aflected by measures taken against a Canadian Company in which
Belgian nationalsowned the majority of shares, the Court said:
". . an essential distinction should be drawn between the obligations of
a State towards the international communitv as a whole. and those
arisingvis-à-vis another State in the field of iiplomatic protection. By
their very nature the formerare the concern of al1States. In view of the
importance of the rights involved, al1States can be held to have a legal
interest in their protectionthey are obligations ergoomtres.
Such obligations derive, for exaniple, in conteniporary international
law. from the outlawinp of acts of aaaression. and of eenocide. as also
from the principles andrules concerning the basic rights of the human
person, including protection from slavery and racial discrimination.Some
of the corresponding rights of protection have entered into the body of
general international law. (Reservationsto the Cotrve,rrionon the Preven-
rion ond Piorishmentof the Crime of Genocide,Advisory Opiiiion, I.C.J.
Reuorts1951. D. 23): others are conferred bv international instruments of
:Iunlverh;~Ior q~~;ls~-c~n~\crjdhl~ra.wr.
Ohlrgai,%~nçthc pcrfornidn,.~. of v h#cl! is thc siihjc~t <if drplon~.,ti:
protection are not of the samecategory. Itcannot be held, when one such
obligation in particular is in question, in a specific case, that al1 States
have a legalinterest in ils observance. In order to bring a claim in respect
of the breach of sucb an obligation, a State must first establish its rigbt to
do so . . .(ibid., at p. 32).
421. Compaiable observations were made by Judge (now Vice-President)Ainmoun. First, he recognized the possibility that a State might bring an
action "based on a general interest, or on an international or human interest
of an objective nature" (ibid., at p. 326).He then continued as follows:
"If, on the other hand. the applicant State is not acting to protect a
collective interest, but is complaining of an injury it has suiïered as an
individual subject of law, it goes without saying that it will only have
accessto an international tribunal to claim a subjective right on the basis
of a personal and direct interest" (ibid., at p. 327).
422. It appears from what precedes that the Court, while not expressly
defining the concept of "legal interest", has had s~ecially in mind the distinc-
tion between it and a purely political or merely equitable interest; neither of
which would be advanced on the basis of a legs1 right. It has, moreover,
acknowledged as legal interests entitled to protection both a "general" or
"collective" one and a "~articular". "individual". "s!3ecific" or "material"
one. The former can exisi in situations where treaties have established rights
clearly intended to be enforceable at the instance of any Party. These are
usually in the humanitarian suhere. But this category is not restricted to rirhts
created by treaties. There cari-ex isgeneral or e~encollective legal intereit in
claiming the observance of obligations arising out of a customary rule of
international law. which is auite distinct from the s~ecific interest which a
State may advance in, for example, seeking to protect-its nationals.
423. The individual or specific interests of States have been spoken of as
aiïected when iniurv is done to the national of a State, but such interests are
clearly not limikd io such situations. For example, it may be recalled that
when the United Kingdom brought proceedings against Albania in the Corfit
Channelcase (I.C.J. Reports1947-1948,at p. 15and 1949, at p. 4), no doubt
was expressed in any quarter that the United Kingdom had an interest in
rnaking a claim arising out of infringements of the rights of passageof British
warshi~s in international straits or out of the damage donc to such warshi~s.
Nor was it ever doubted that Albania had an inter& in asserting the inviola-
bility of her territorialwaters against trespass by British warships sweeping
mines.
424. It is also appropriate to bring to the notice of the Court, as bearing
on the question of legal interest, the work which the International Law Coin-
mission has recently been doing on the subject of "State Responsibility". At
its twenty-fifthsession in 1973 the Commission prepared a draft which con-
tained, itrteruliu, Article 1entitled "Responsibility of a State for its interna-
tionally wrongful acts". The text reads as follows: "Every internationally
wrongful act of a State entails the international responsibility of that State."
The cornmentary to this Article, in reviewing the opinion of the various
writers, observes:
"Some of the internationalists, on the other hand, hold today that in
addition to these relations lbetween the wrongdoing . State and the
inj.ircd Si.ttr.1 <iihcr%iiixy be ~.rc:iird in ccriüiii (dies eiihcr hctaecn the
otT~nrl,ngSi.~tcand an interniii.>nil org.in.~st.i>no. h<,~.ie~.~i,kt~ot)t~>i<h,ie
Store and otherSlares." (Rroort of the Inrertratiot~oL l aw Con~mission on
the Work of ils 25th ~essi0n.j (1taÏics added.)
A footnote to this passagereads as follows:
"In connexion with this'last point. attention must be drawn to the
growing tendency of a group of &riters to single out, within the general
category of internationally wrongful acts, certain kinds of acts which are330 NUCLEAR TESTS
so grave and so injurious, not only to one State but to al1 States, that a
State committine them ought to be automaticallv held res~onsible to al1
States. It is temiting to relate this view ta the ricent affirkation of the
International Court of Justice in its judgment of 8 February 1970 in the
caseconcerninethe Barcelana~racti&. LizhlandPower ~om~anvLimite. .
ihat iherî arc cert;iin .ntern3iional ohligiiiii~ns uf States uhich are ohligï-
lions rr,eo nn?trei.thiii ti io sa). ohligaiion.. 10 the intern~tional coin-
munity as a whole. (I.C.J. ~eports 1970, p. 32.)"
It would appear from these passages that in the view of the International
Law Commission every State is entitled to seekthe respect by another State of
certain international leaal obligations. even if (which is not the case here) the
violation by that State Of one if thoseobligations is not directly or rnater'ially
causing damage to it.
C. Australia's Legal lnterest in lis Claims
425. The Australian Government will not repeat in the present Memorial
the statements of fact already included in the Application, the request for
interim measures of protection and in the oral hearings before the Court on
21 and 23 May 1973 (pp. 164-228, supra). The relevant passagesare hereby
formally incorporated in this Memorial and the Court is respectfully referred
ta them. In some respects,hawever, they require supplementation referring to
more recent events.
6 Firsi, thc trench Go\ernnicnt lias, in hrç~ch of the C'i,iiri's Order of
22 June 1973,coi~Ju.wJ d \crics oi liie tejii in tlie ssursc uf July and Auguit
1973. Thcsc teris h;i\c IcJ icifdII-oui of radio-acii\e iiiaicrial on Auiirdlian
territory. The Court was informed of these breaches by a letter from the
Australian Government dated 19September 1973.
427. Secondly, the French Government has given no indication of any
intention of departing from the programme of testing planned for 1974 and
1975, to which reference is made in paragraph 3 of the Application. Instead,
the French Government, having no regard to the Order of the Court, has
clearly indicated that the programme will continue. Thus, on 30 August 1973,
in the course of a visit to Papeete, Tahiti, the Minister for the Atmed Forces
M. Galley, is reported as having said:
"Je peux vous dire que jamais le gouvernement français ne prendra
l'engagement de cesser les essais aériens." (Jorrrnalde Tahiri, 31August
1973.)
428. Thirdlv. the French Government has continued and extended its
., ~ ~
practice of closing areas of the high seasand of the superjacent airspace to sea
and air navigation. On 4 July 1973 Ministry of Defence Decree No. 73-618
(Annei; 7) ciÏablished a se-uriiy ~i~neol' 60naiiticnl iiiiles soiitiguous Io the
terrilorial sç~round hliiriiroa Atoll. In thib ihc French C;uvernnient rcscrvcd
the right temporarily to suspend navigation. This power was exercised by the
Minister for the Armed Forces in a decree dated 4 Julv 1973 sus,~ndin~ -
maritime navigation in the security zone as from 11 July 1973 (Annex 8).
A further decree dated II Se~tember stated that the susuension was to cease
to be effective fro~ ~idni~ht 13 Seote~~.~ ~97~ ~
129. kourthly, therc lias hern u<iniinued denionsiraiion of internaiional
concern al iheconduci of ihe French tesis. Imporidnt ihuugh this niaierial 1s.ils bulk is iusli ihxi il prcscnied ai this poiiii 11iruiild unduly del,,) the
de\~cli>piiicniof ihc Icgiil :irgunicni. 11h~, ihcrclore heen prinicd a..Anne\ Y
heli,ii. to \$hich the <:i~urt1s reipccilull) iiivitcd Io refcr.
2. GENERAL REMARKS ON THE MAINELEMENT SF AUSTRALIA'S
LECALCASE
430. As reference to the main prayer in theApplication shows, the Govern-
ment ofAustralia asks the Court tu adjudge and declare that the carrving out
of atmospheric nuclear tests in the ~iuth~acific area is no1 consisténtwith
obligations imposed on France by applicable rules of international law.
431. These obligations include, first of all, the general one of abstaining
from any kind of atmospheric nuclear tests. In the opinion of the Australian
Government this obligation is clearly imposed on every State by a rule of
general international law and it is clearly one owed by each State towards
every other State; Australia, like any other country, is entitled to claim
respect of that legal prohibition.
432. Auslralia also alleges that France's activities in the South Pacific area
are inconsistent with its obligation under general international law to respect
the sovereignty of Australia over and in respect of its territory and thus tu
abstain from oroducina alterations of anv kind in the Australian erivironment
(atmosphere, soil, waters) by the depositon ifs territory and the dispersion in
its airspace of radio-active fall-out.
433. Finally-and this list is bv no means meant tu be exhaustive-French
nuclear tests in the South ~acific area represent a violation by France of its
obligations towards other States, and particularly towards a country of the
Pacific like Australia. concerning resoect for the freedom of the hiah seas-
this by interference with sea andair navigation and by pollution.
434. The Government of Australia will, therefore, now turn tu show in
more detail how it has a leaal interest in resoect of each of these elements in
the clsiiii. In so J<>ing.ihc <io\erniiieni ol r\i.str,tlii .igAincnipliari~cthji ;II
rhc prciciit si.~gci1i111e~3.e II15no1 nc:etrdr) for ii.nor i\ irini,tied, io prme
ils $.ih\i.iniivc çasc Th.. i, nt,! in i\iue.ilihi.;J-iiiciiirc. Th? <io\sr~iiiicni of
Australia will rrive such a detailed demonstration in the next ohase of the
proceedings, the one dedicated tu the substance of the case. ~ipresent, the
Government of Australia is reauired to show that it has a legal interest in ils
Application; and since this is-tu be treated as a prelirninaiy question, the
Court can only proceed on the basis of the presumed correctness of the
Australian contentions on the merits.
435. Tt is, in.oassinu. h~rdlv necessarv,for the Governnient of Australia to
make the point that the existence of its legal interest is in no way affected by
the fact that the Government of Australia dues no1 seek an awardofdamages
but a declaratory judgment. As the Court will have appreciated from the
argunients advanced on behalf of the Government of Australia in connection
with the aoolication for interim measures of ~rotection and fromthefinal
prayer in ihe Application, the essential purpose of instituting the present
proceedings was tu achieve the termination of illegal atmospheric nuclear
testina by France. and this before further damage is dune. At the oresent time.
althoigh it is quite possible lor the ~ustraliai Government 14 identify thé
type of damage which flows and will flow from the French tests, il is not the
intention of the Australian Government tu seek oecuniarv damages. Indeed.
as the Application indicates, for the Australian ~overnmént the only accept:
able remedy in this case consists of (a) the recognition by the Court of the332 NUCLEAR TESTS
prohibition under existing international law of the atmospheric nuclear tests
conducted by France in the South Pacific area,(b) the assertion by the Court
of the legal obligation of France to abstain from this testing activity and
(cl the acknowledgement by thecourt of the legal right of Australia to claim
from France that it conform with that dut" of abstention.
.~ ~ ~ ~ ~
436. The Australian Government will now proceed to show that it clearly
has a lenal interest in each one of the above-indicated ~rinci~al elements of
its case
3. THE LEGALINTEKEST OF AUSTRALLA TOOBTAIN A JUUGMENTTHAT
UNUEREXISTINGGENEKAL ~NTERNATIONAL LAW FRANCE IS ODL~CED
(a) The Bosis of the Australiatt Contention
437. The first main element in Australia's claim is that atmospheric nuclear
testing is unlawful under a general rule of international law and that every
State, including Australia, has a right to claim that France refrain from
conducting such testing activity.
438. It was niore or lessabout the middle of the fifties that world o~inion
began to be alarmed by the danger of atmospheric nuclear tests assuch. If one
wishes to mark the starting point of this new tendency, one can say that it
bee-n at the lime of the thermonuclear test executed bv the United States in
the Bikini Atoll in 1951. Fall-~~iitiruni tliitcsl n;is iincxpecteJly \ri.lerl>read
;inil ,lk;ted in p:irtiiiiIlhe (reri ui ihr. J~pxnc\c iisliing h,,t'tiktir!.\lori,.
The cIlc<t\ <if ihc U.kini e\nl<bion ~ii~denuhli~ ciniiiiuii drr.,re uf ihc f~<t ihdi
nuclear tests had in themielves a growjng degrLe of dangerousness which
must be a source of direct concern. Some member States first expressed
their new anxieties at the Tenth Session of the United Nations General
Assernbly, where resolution 914 (X) adopted on 16 December 1955suggested
that account should be taken of the proposal of the Governnlent of lndia
reeardine the sus~ension of ex~erimental ex~losions of nuclear weaoons.
439. The concérn of the peoiles and of t(e countries for the urgent eliniin-
ation of the risks connected with ex~erimental en~losions then ~rogressively
developed 1. The greater level of activity in nuciear testing b; the ~nited
Kingdoni, the United States and the Soviet Union in 1957-1958 provoked
increasing world-wide concern at the eiïect of the fall-out. A petition signed
by 9,000 scientists froni 43 countries was presented on 13January 1958to the
Secretary-General, urging that "an inrernational agreemenr ro stop the tesring
of nrtclear bonrbs be niade irow". (Italics added.) The appeal of the United
Nations Scientific Cornmittee on the Effects of Atomic Radiation for "the
cessation of co,rrarnination of the e,zvironmeiir by esplosions of nr<clear
weapons2" (italics added), brought the General Assernbly to adopt on
1 On 13July 1956,lndia placeda proposal beforethe Disarmament Commission,
pointing out that:
"While theremaybecertainauthoritieswho may no1feel fiilly convincedthat
experimentalexplosions an thepresentscalewill causeseriousdangerIo humanity,
it ievidentthat no risk shouldbe takenwhenthe healih, well-beingand survival
of the human race are at stake.The responsibleopinionofthose whobelievethal
nricleor testsdo catisririiren seriousdanger ro hi<ma»wel/are and sitrvival murt,
rherefore,bedecisiveinsucha conresr."(UN, The U.N. a>rdDimrmametrr1945-1970
(New York, 1970)a,t p. 196.)(Italics added.)
2 A/3838, para.54,setforth in Annex 3of the requestfor interim measures. 4 November 1958 resolution 1252 (XIII) urging an early agreement on the
ending of testing. The concern of countries, and particularly of African
countries, was then increased by the first three nuclear test explosions con-
ducted bv France in the Sahara in 1960. It took them until 1963 to arrive. on
25 July of that year, after a period in which increasingly alarmed public
opinion helped to produce temporary unilateral suspensions of nuclear testing,
at thesigning of the Moscow Test Ban Treaty. ban. .~ nuclear weaoon tests
in the atmosphere, in outer space and under water. IR addition, the parties
undertook not to carry out such tests in any other environment if such
exolosion causes radio-active debris to be oresent outside the territorial limits
of'the State under whose jurisdiction or control such explosion is conducted.
440. France is not a party to the 1963 Treaty, while Australia is. But in the
opinion of the Government of Australia the prohibition of nuclear tests
stated in theTreaty is a prohibition that general international law makes now
its nwn, and which therefore rests on al1 members of the international
community, whether or not they have adhered to its text. The Government of
Australia will provide at the merits stage of this case al1 the elements which
combine to prove that the content of this Treaty must now properly be
reearded as formine oart of customarv law: the ooint need not be develooed
n& in too great detail. It will be sufficient to put'in clear terrns the ~ustraiian
contention in this respect and to state that, according to it, it would be a
mistake to believe that the 1963 Treatv . -ave birth merelv to a contractual
engagement concerning, ultimately, the three nuclear powers which have
promoted the agreement. The 116 States, big and small, which by 1966 had
hastened to sien or accede to that instrument 1 definitelv contributed. in so
rloing, io the cst3bli\hnicnt <ifthe validity x.cigcnersl priniiple of internalion-
il lau, uf the pruhihiiton ui tlic cdrrying oiit <ifrltrllospherlc nuclcar te\t,
recorded in tha~twritten document.Thevdemonstrated with the utmost claritv
the ncccssarily iini\erul char.i;tsr oithr.con.'ept uithc Iihcraiion of huin.iniiy
froni the dnxiety aliiih ih<i\c rcpcxierl tests harl111then bcen spre~diiig.
441. To out it differentlv the Government of Australia is deeolv convinced
that the prohibition contained in Article 1 of the 1963 ~reat; has become
the expression of a general principle of customary international law, now
definitivelv received into the opinio iirris of the rnemhers of the international
cùnimunity. The 3.~u;il p<i~~ihilit)i~f~cli cipr<~<e\\of e\oltiti<in iroiii ireai).
in10 cu,toni:iry la\< ii;i>e~pressly rr.;ogiii7e.l by the C~iiri init\Jiidgiiicnt in
the .\'orihS?o Conr~ii~»rul S/re,ll'c~~eiII.('.J. H,.norrs 1969..ai .. 411. And
Judge (now President) Lachs observed on that occasion:
"It is generally recognized that provisions of international instruments
may acquire the status of general rules of international law. Even un-
ratified treaties may constitute a point of departure for a legal practice.
Treaties binding many States are, a fortiori, capable of producing this
effect, a phenomenon not unknown in international relations." (Ibid.,
at p. 225.)
442. Furtherniore. with reference to the relationshio between the banning
tif atn~ospheric nuclc~r tests and the 1963Tre~ty. thc .iu>trdli;in ~;o\<.rnnicnÏ
csn spcciltlly :ippeal to the opiniun e\prcsserl hyJi.dge Sir Huiiiphrcy \V>lrlo~'k
during the discus5ion ai the Iniernatti~nïl Lahr Conimi\ioii of hir tliirJ rcpori
on thc Lar, of Trciiiier. He thcn c\prcs$ly mentioncJ the "niicleltr te,i ban"
as a typiccil c;i,e "o3 cultoiiinr). riilc whose rlcvelopnient had ils gcneil, in a
1 The U.N. ~ndDisnrmament1945-1970 (New York, 1970),p. 232,334 NUCLEAR TESTS
particular treaty" and also expressed his conviction that the principle of
international law which forbids such tests "was fast acquiring jrrs cogens
force" (Yeorbook ofrhe I.L.C., 1964. Vol. 1,at p. 78).
443. Moreover, it would beabsurd to clairn that no rule of general custom-
arv law was able to emerge simvly because two States. latecomers amone
nklcar pouers. hdve de;liied iisibrcribe io ihe 1963 Trcaiy, haie >ho>ri
iheir oppaisiiion to iiand haveconiinued Io cîrry on nucleîr expcriiiienis. un-
niindi'ul oi ihe prohihiiion ihai the Treaiy contains.
444. ~oreo;er, the reactions of other members of the international
commuriity to the dissenting behaviour of one or of some of them can be a
very efficient and valid element of proof of the opinio jrrris which is at the
basis of that norm. Now, the reactions Io the conduct of the French nuclear
tests in the Southern Pacific could not possibly have been more numerous,
more constant. or firmer. On every occasion several governments have sent
IO the I'rench Go%ernmeni diploniîtic noies of proicT\t. Rcsolution\ by the
Gener~l As\enibly c,iiiJcnining the iesisconJucic~l ln \iol~t~i)n of ihe hïnning
of atmospheric tests are set out in Annexes 9. 11-18and 21 to the reauest for
interim measures, and the relevant passagesof the Declaration and ai. resolu-
lion 3 (1) adopted at the Stockholm Conference on the Human Environment
are to be found in Annexes 19 and 20 of the request. Other bodies, among
them the Asian-African Legal Consultative Committee 1,have clearly joined
their voice in that chorus.
445. 11will thus beevident that there is amplejustification for a finding by
the Court that there now exists a rule of customary international law to the
effect that atmospheric nuclear testing is unlawful.
446. In addition. the Court will wish Io recall the relevance in this connec-
lion of internatii>nal soncern for ihe proiecti,in <iffiindariientxl hiiniîn righir.
Th,\ concerii has non progrerred IJ ihe stage ai u hich iiis inipoi$ihle io deny
that the observance of such riahts i- a niatter of international obliaation.
Ati~idrpherii tiiisle;>r iciiing\iolaics su;h righis in .inuniber dl iiiiporiani
and ,pe~.ilic rc,pecti. Rc:;iiise andl!cii <>iihe siibjeci In qiiewon ne:ei<artly
involves some detailed reference to varioiis texts. the Government of Australia
would invite the Court's attention to the development of this aspect of the
matter in Annex 10.
(b) Conclr~sion us ro A~~srralia'sLegal Interest
if1this Elemenr of 11sClaims
447. In the light of the above-nientioned considerations, the Australian
Government believes that the existence of a legal interest of its own in this
element of ils claims could hardly be contested. How could Australia be
denied a loci~ssrandi Io seek iudicial confirniation of the existence of this rule
prohibiting atmospheric nuclear testing and a judicial determination that
French action in the past and cornr>arable French action in the future is in
breach of il and should be ordered Io stop?The submission of the Australian
Government is that this question could only be answered in the affirmative.
448. The feature comrnon to al1 the specific expressions and confirmations
of th~ ~u~e as indicated above is that thev are *ouched in terms of an erpa
amnesobligation and no1in terms of an obligation owed to particular States.
The duty Io refrain from atmospheric nuclear testing is stated in absolute
1 SeeAsian-Africnn Legal ConsuIroriveCornmirtee:The Legaliry ofNueleor Tcsrr,
New Delhi, referredto in para. II of Annex 10. MEMORIAL 335
terms, rather than in terms relative to the incidence of the effect of nuclear
testing upon particular States. The duty is thus owed to the international
community; it is a duty of every State towards every other State. For this
reason and-to use the very langiiage of the Court in the Borcelona Traction
case-because "of the importance of the rights involved, a// States CO,,he
held10have a legal irireresf in rheir prorecrio(I.C.J.Reporrs 1970, at p.33)
(italics added).
449. The Australian Government therefore submits that it undouhtedly
has a legal interest in the protection ofits right to claim from the French
Government the observance of the obligation to abstain from conducting
atmospheric nuclear tests; that it has locrts srandi to obtain a declaratory
judgment to this effect; and that ils Applicatiois already, under this heading,
fully admissible.
450. In making this statement, the Government of Australia cannot
refrain from also observing that, if il must he recognized that every State
possesscsa legal interest in the protection of the right involved in the present
case, Australia has a higher title than most States to claim such protection,
since bv reason of its eeoera~hical situation and the deoosit of fall-out
from French tests in t<e Guihern hemisphere, Australia'is more directly
affected than many othcr States by the harmful effects that the rule of general
international law Ürohibitine atnÏosoheric nuclear tests is des-.ned opeciselv
to prevent. If Australia is nit entiti-ed to protect the right here in questioi,
what other State would be entitled Io do so? And one of the most essential
general rules of today's international law would become devoid of any
effective content.
4. THE LECAL INTEREST OF AUSTRALIA TO OBTAIN A JUDCMENT
THAT ITS SOVEREIGNTO YVER AND IN RESPECT Of ITS
TERRITORY IS VIOLATED BY THEDEPOSITON ITSTERRITORY
AND THE DISPERSION IN 1TS AIRSPACE Of RADIO-ACTIVE
FALL-OUT FROM THE FRENCHNUCLEARTESTS
451. The las1 DararraDh of the ~receding section brings the Government
of Australia to the sëco-nd main élement of ils claim. The special interest
*,hich Australia possessesin the preservation of both its territorial integrity
and al1 the rights associated with sovereignty over that tcrritory has in effect
already been recognized by the Court in the operative part of the Order of
22 June 1973. For there the Court indicated that "in particular, the French
Government should avoid nuclear tests causinr the de~osit of radio-active
interim measures of protection cannot prejudice the legal position of either
party and for this reason it now reverts once again to this aspect of its claim.
(a) TheBasis of the Arrstraliair Co~rteiition
452. lhç Couri irhcrc coniranicd \iiiha dispute reg~rdiiig thc right of n
Sritc to ille proieciion i>fiti tcrriiury (diiiiosphcrc. si~il. watcrsj frmi extcrnlil
d~ts The iisiicii ,iniply one of the skielt%>a hi~h S131~s.In the nrscrtion of
their right of sover~i~nty, can refuse to be exposed to the consequences
arising-fr.om nuclear tests carried out by other States.
453. Now, as already stated, there is no need in this Memorial to pursue
the substance of thisargument. It is sufficient if the legal issue is identified to
the Court. And thalSuch an issue is a real one there can be no room for 336 NUCLEAR TESTS
doubt. It is, perhaps. worthwhile emphasizing a fact, which has been recog-
"nized in many quarters. that when a State conducts a nuclear test it initiates a
process of cause and eRect in relation to radio-active fall-out as direct and
certain as does an individual who pulls the trigger of a loaded firearm. In
both cases, the impact of the projectile upon a destination-radio-active
fall-out in the case of the nuclear test, a bullet in the case of the firearm-
follows inexorably. The destination may bedistant; attempts may be made to
reduce the consequences: but in both cases,as a matter of fact, the relation-
ship of causeand effect is qiiite inescapable.
454. The question remains, of course, of the legal consequences of the
effect. The Governnient of Austrülia has already, in the course of the oral
hearings on interim measures(21 May 1973, pp. 186-188. si~pra),given some
indication of the factors which eslablish thdt French conduct leadine to -
nuclear fall-out on Australian soi1 is internationally unlawful. The Govern-
ment of Australia repeats that its case rests upon several bases: on the mere
fact of treso.ss..on lhe harmful elïects associated with tresoass.. .d on the
impairment of ils independent right to determine what acts shall take place
within its territorv. In this connection. the Government of Australia wants to
emphasire that the mere füct of trespass. the harmful eKectswhich flow from
such fall-out and the impairment of ils independence, each clearly constitute
a violation of the affected State's sovereignty over and in respect of ils
ter~~torv. Of course~~.he harmful eRe~ ~fro~ t~e fall-out nnv no1 be identi-~ ~
fiable in the sanie way as, say. the damage to an individual who losesan arm
as a result of a bulle1 fired from an identifiable source. But that rüdio-active
fall-out contributes in a ineasurüble degree 10 the sum total of hunian il1 in
any given territory there can scarcely be any doubt, or that lhose who add to
theamount of radioactivity add to the amount ofill. The fact that the Court is
here faced bv what. for it.is ü novel claim that harmful effects are occurrine
and will coniinue 1; occiirmust not be allowed to obscure the fact that scieny
tific knowledge for a long tinie has recognized the existence of such eficts.
455. These, then, are aniongst the principal substantive legal issueswhich
arise in connection with Australia's claim that its rights are violated when
radio-active fall-out is deposiied on ils soi1 and waters and dispersed in ifs
airspace. Thesequestions are inanifestly not ones to beconsidered at this stage
of the case; but in the opinion of the Government of Australia their existence
cannot be denied.
(b) CoiicI~<siofai s10 Aiisrralia's Lego1Iirrcrrsl
i~i rhis Elr~~triof Ils C1ai111s
456. The evident character of Aiistralia's legal interest in a clcim alleging
violation of its sovereignty over and in respect of its territory is such as to
make any extended srgunient upon this point superfluous. It is, indeed, quite
obvious that a State possessesa legal interest in the protection of its territory
from any form of external harmful action, as well as in the defence of the
well-being of its population and in the protection of national integrity and
independence. It would indeed be positively absurd to suggest otherwise. If a
State did not possessa legal interest in such matters, how could Portugal
have brought the h'or~lilaa caseagainst Germany (Atini~al Digrsr, 1927-1928,
CaseNo. 360); how could Albania have brought against the United Kingdom
in the Corfu Chartnelcase (I.C.J. Reports 1949, at p. 4) the claim arising out
of the sweeping of mines in Albanian territorial waters?The point does no1
require elaboration. MEMORIAL 337
(a) The Basis of the A~lstralia~~Conlention
457. The Government of Australia in paragraph 49 of the Application
claims, inter alia, that "the interference with ships and aircraft on the high
s'easand in the superjacent airspace, and the pollution of the high seas by
radio-active fall-out, constitute infringeinents of the freedom of the high
seas". Some of the facts relating to the closure by the French Governrnent of
areas of the high seasare set out in paragraph 45 of the Application. There
have, of course, beenfurther instances of interference with ships and aircraft
on and over the high seasin connection with the series of tests conducted by
the French Governrnent in the sumnier of 1973. However, at the present
juncture, it is not necessary to burden the Court with a fuller statement of
these additional facts. Reference is simply made to paragraph 428 above
mentioning in particular the security zone of 60 miles established round the
territorial seaof Mururoa Atoll, in which navigation was "suspendeci" from
11July to 13Sepiember 1973.
458. In aoo. .chine the oresent situation. it is necessarv to sav that the
ts,i of Sna~i~:iI breaih of the frse,idiii of ihc hi~h scd\ i: iioi. cg.. \<hcihcr .i
Y~CLII~L >hip or a~r~r~ith.~, hcen c~~ni~ii~i~~~th is)~lrdio:i.m\~t) ari>ind iro~ii
niiilc~r icrts. Tne re.11qiiestion In rr.l.ilion iu ihe dsseriion ufan inCringe#iient
<rf ille ir:eddni of ille high sedi in alieilier ihe ~itid.i;t id trdiix ijIikcly 10
.,ili'<t aJ\cricl) the generil riglit p,i\\e.wJ b) uthcr SIXICS 10 ilie inJ CI~J!
. ~
the sea and ils resouices.
459. There is an additional point of particular cogency which relates
especially to the pollution of the high seas. Leaving aside any qiiestion re-
garding contiguous or other comparable zones of exclusive fishing rights, il
niust be accepled as beyond need of argument or proof that every Stnte is
entitled to iish freely in the high seas. It would clearly be contrary to al1
coinmon sense to sue~e~t--hat a oarticular State is free to oollute the high .
seas because no other State can show that al that moment the area of pollu-
tion is one in which that or other States are active. The sea is not static; ils
life-systenis an complex and closely interrelated. It is evident, therefore, that
no one cdn Saythat pollution-especially pollution involving radioaclivity-
in one place cannot eventually have consequences in another. It would,
indeed, be quite out of keeping with the function of the Court to protect by
judicial means the interests of the international community, if it were to
disregard considerations of this character.
460. In the light of what has alreadv been said. this is not the stage of the
procsedingj :iiiihich IO enisr intr, ;in!. ilciailcd cunrider.irion oi i2usir:ilt;i's
ni;iritinie anil iil.,rinc inrersris in the I'L.ii.'Oce~n. Hiit therc i\ oiic nlatier
which. thouph virtuallv 'self-evident. reauires nonetheless to be exvressly
recalléd. It that geo~raphically ~"strajia is a State in the Pacific~cean
and that the tests which are the subject ofthe present proceedings are taking
place in that ocean. True, il is a great ocean and the distances involved are
large. But distance is a highly relative concept; and what may in bare terms
of mileage appear far away can in terms of scientific causeand effect prove to
be relatively close. Of this general consideration, the Court. it is submitted,338 NUCLEAR TESTS
cannot fail ta take note. Apart from its general right as a maritime State ta
assert a right shared by al1maritime States, Australia is a Pacific Ocean State
with a snecial interest in matters atïecting the Pacific Ocean.
461. This said, the Australian ~overnment will proceed in the remainder
of this section ta develor, the proposition that every State has an enforceahle
le-al interest in assertin- thefreedom of the seas. esoeciallv in relation to
nuclear testing.
(b) The Interest of Al1 States in theMaintenance of rheFreedomof the
High SeasIs Inherei~tin the ConceptIrsel/
462. To start at the highest level of generality, it can properly be said that
every State has a legal interest in safeguarding the respect by other States
of the freedom of the seas. Or, to put the point the other way round, it cannot
be said that any State lacks a legal interest in asserting sa fundamental a
concept. This proposition flows, first, from the idea, so widely accepted, that
the high seas are res cornmunis, that they belong to all. It follows that any
interference with the freedom of the seas affects al1 who share in the common
abject. There is no need to establish any additional interest.
463. In the second place, the proposition is directly supported by modern
authority. It is clearly appropriate to examine in this connection the terms of
Article 2 of the Geneva Convention on the High Seas. This Convention is
largely codifying in character-and certainly so in Article 2. This provides as
fnllows:
-\
"The high seas being open ta al1nations, no State may validly purport
to subject any part of them ta its sovereignty. Freedom of the high seas
is exercised under the conditions laid down by these articles and by the
other rules of international law. It comprises, inter aliabath for coastal
and non-coastal States:
(1) freedom of navigation;
(2) freedom of fishing;
(3) freedom to lay submarine cables and pipelines;
(4) freedom to fly over the high seas.
These freedoms and others which are recognized by international law,
shall be exercised by al1 States with reasonable regard ta the interests of
other States in their exercise of the freedom of the high seas."
464. This text reflects in large part the wording of Article 27 of the draft
articles on thelaw of the sea completed by the International Law Commission
in 1956. These were in a slightly shorter form:
"The high seas being open to al1nations, no State may validly purport
to subject any part of them ta its sovereignty. Freedom of the high seas
comprises, itzreralia:
(1) freedom of navigation;
(2) freedom of fishing;
(3) freedom to lay submarine cables and pipelines;
(4) freedom to fly over the high seas."
(Report of the international Law Commission covering the work of its
eighth session, Yearbookof theI.L.C., 1956,Vol. Il,at p. 278.)340 NUCLEAR TESTS
be excluded from navigating within the distance of 100 Italian miles. ..
from the coast." (Behring SeaArbiirafion(U.S. No. 1(1893),at p.41).)
Or sgain (28 November 1822):
"We cannot admit the right of any Power possessing the sovereignty
of a country to exclude the vesselsof others from the season its coasts
Io the distance of 100Italian miles." (Ibid., at p.42.)
Or yet again (28 November 1822):
"We contend that no Power whatever can exclude another from the
useof the open sea." (Ibid., at p. 43.)
470. Two points may be noted about the correspondence between the
parties: First, the British Government never indicated that specific British
vesselshad been or would be affected by the Russian action; the protest was
lodged on grounds of principle, coupled with the general interest of the
UnitedKinedon- in the freedom of naviga.ion in the area.
471 SeronJly. n<>siiggeititin \tas nicide on the psrt ofihc K.is,idn Govern-
riieni thxt ilie Brii..h Ciuicrnlncni hxl to sIi<i\i inat saiiic \pecific iiiatcrial
interest was aiïected by the measure
472. Anothcr cxanielc ir pro\idcd b) the I-rencli corrc~p~indencc oi 1869-
IR70 \\il11Norii~y and S<reJen. In I>c~cniher ISW ihc Frcn~li \Iinijtcr in
Stockh<>lnir.iise<lu'ith ihe \linisirs<ift<irei-n Arliirs of Sur\\d) and Sucden.
a question which was of interest "from the point of view of the general
principles of international law", and would concern other governments
besides the French. This related to the correct interpretation of a decree
which reserved to the Swedes certain exclusive fishery rights. In the corre-
spondence which followed, although France referred to the activities of her
fishermen, there was no apparent disposition on the part of Norway-Sweden
to question the existence of a general interest of iiiaritime States in the
legislation in question (I.C.J. Pleadings, Fisheries, Vol. II, al pp. 66-73).
473. An illustration of special interest because of the explicit wording of
one of the notes of protest relates to the Soviet closure of the Peter the Great
Bay in 1957.On 26 July 1957 the USSR claimed the bay of Peter the Great as
interna1 waters of the Soviet Union. Protests have been made anainst thi-
il.iinih) ;iiiiirtihcr of Sinics. One of the Iproterting Siaici. J;ip:i~i. ili.h;id
3 ti\liing inicrcst in the atiecicd dred. But thc s.inic dtic. noi 3ppc;iIO bc irue
ut'thc United Si.itcs ulii~h iiruic\icd on I? Aiictirl 1957 l\ee ~>I.Po~~!>I< ~fII~
Srate Birllerin, Vol. 37, p. 388) and again on 6 March 1958 (ibid.,'Vol. 38, p.
461). The second note contains the important statement that "encroachments
on the hir- seas are of concern to the entire world". The Uniled Kinndom-
prtitcsieJ in Sepicniber 1957 \rith.~iii asseriing iiny rpe:iiic iiitzrot (\ce E.
I.ïuierp.ichi, "C,inienipor;iry Pr.i;ii<e ~>fthe United Kingdoni. \"', in lirr~r-
i~ult~,~rola,?dCi>,>tp<r!iiliii L~tbi'@~inrr<,rli, \'<II 7 (19581. ai p. 1121. Fr;in~.e.
C.in;id~ *,id Sucdcn are alio repurted to have proicsicd (sec Jtipii,i~,.ii..A>i>,t,ol
oJ'lnrr~rir<irtoiiiilLaSo. 2 (1953). ai p. 15aiid pp. 213-21x1.
(d) Recognirion of lhix General Inreresr in Connecrion wirh Nuclear Tesrs
474. The considerations which establish the leeal i-terest of al1 States in
safeguarding the freedom of the seasare made even stronger when the specific
situation to which they are material involves nuclear testina. It is scarcely
possible to overemphasize the special character of this activit; and the degree
of attention which il has attracted to itself during the past two decades. And MEMORIAL 341
nowhere is this more aoo..ent than in connection with the evolution of the
law of the sea.
475. Thus, the International Law Commission in 1956, in what at first
might have appeared the relatively innocuous context of a discussion regard-
ing the freedom ta conduct scientific research on the high seas,showed con-
siderable concern lest recognition of this freedoni should in any way be
regarded as acknowledgement of the legality of nuclear lesting (see Yearbook
ofthe I.L.C., 1956, Vol. 1, at pp. 11-14, 29-32 and 261). Thus Mt. Pal said
that-
"The Commission could not ignore the fact that in recent years power-
Culweaoons ofmass destruction had beeninvented and tested on the high
seas and that, although political considerations were involved, some
provision should be inserted in the draft prohibiting the use of the high
seas,which were res comrnrr~zisi,n a manner which might be injurious to
mankind." (Ibid., at p. Il.)
Mr. Krylov observed that-
"... it was widely held that such tests should not be carried out on the
high seasat all" (ibid., at p. 12).
Mr. Zourek said:
"Experiments on the high seaswith atoniic or hydrogen bombs must
beconsidered as a violation of the orincide of freedoin of the high seas"
(ibid., at p. 12).
476. Ultimately, in ils Report (Yeor Book o/l/ze I.L.C., 1956. Vol. II, at
pp. 2-6) the Commission said:
"Nor did the Commission make any express pronouncement on the
freedoin ta undertake nuclear weapon develapinent tests on the high
seas. In this connexion the general principle enunciated in the third
sentence of pïragraph I of this commentary is applicable. In addition,
the Commission draws attention to Article 48, paragraphs 2 and 3, of
these articles. The Commission did not. however. wish ta prejudice the
findings of the Scientific Cominittee set up under General Assembly
resolution 913 (X) of 3 December 1955 to study the effects of atomic
radiation."
477. Although the Coinmission did not expressly hold that nuclear testing
on the high seaswas illegal, the fact remains that itwas an item to which the
Comniission ea-e soecial attention and in which. so il would aoo..r. the
nieiiiberr regardcd ïII Siste, .I\hli\,ing an inicresi.
47% l'hec\istenre ofa univrrr~l Iccdl interest of Siaies. to be recoeni~ed3s
aooertainine 10 each one of them. in maintainine and orotectine the freedom
oiihe seasGoni nuclear testing i4demonstrated yn clear and specific terms by
the proceedings of the Geneva Conference on the Law of the Sea 1958. The
relevant passageswill be found in Annex II below.
479. To this indication of the attitude of States, it is necessary to add the
one illustration ofjudicial consideration of the niatter which the Government
of Australia has beenable to find. It would appear that in the Firheries case
the International Court recognized that, in assessingthe ekct of State prac-
tice on the law of the sea,and in judging the eiiect of protest in this area, the
concept of "interest" in the sense of a specific material interest has never
played a role.342 NUCLEAR TESTS
480. Thus the Court spoke of the Norwegian conduct as "constituting a
system ... whichwould reap the benefit of general toleration" (I.C.J. Reports
1951, atp. 138). The Court continued:
"Thegeneral toleration of foreign States with regard to the Norwegian
practice is an unchallenged fact" (ibid.).
Now, the Government of Australia reads these words as an indication that in
the opinion of the Court "general toleration" is an element in the identifica-
tion of the content of the law of the sea. There is no suggestion there that the
States which tolerated a situation niust be shown to have been States which
had a specific material interest in doing so. It would seem that any maritime
State minded to oppose the Norwegian claims might have done so and ils
protests could not have been dismissed for want of locusstoirdi.
481. This assessment of the sense of the Court's words is confirmed by a
passage which follows shortly afterwards:
"The United Kingdoin Government has argued that the Norwegian
system of delimitation was not known toit andthat the system therefore
lacked the notoriety essential to provide the basis of an historic title
enforceable against-it. The court is unable to accept this view. As a
coastal State on the North Sea greatly interested in the fisheries in this
area, as a maritime power rradiiionally concernedwirh thelaw of the sea
and concernedparricrtlarly ro defendthefreedom of the seas, the United
Kingdom could not have been ignorant of the Decree . .." (Ihid., at
p. 139, italics added.)
482. If the last sentence had no- included the words ~hich~h~ ~ been
italicized, then it could have been said that the Court was employing a
relatively narrow concept of interest in identifvinc: the States which had an
interest in protesting. But the presence of the-italicired words quite allers
the picture. The use of those words manifestly expands thecategory of States
whom the Court regarded as having a suflicient interest in the Norwegian
action to warrant some display of reaction on their part.
483. The point is made even clearer hy consideration of another passage, a
few lines later:
"The notoriety of the facts, the general toleration of the international
comniunity, Great Britain's position in the North Sea, ker own inreresrin
rhe qiiesrioir,and her prolonged abstention would in any case warrant
Norway's enforcenient of her system against the United Kingdom."
(Ihid., italics added.)
484. TheCourt appears Io haveregarded the United Kingdom as having an
"interest" in the Norwegian system. What was it? In the earlier passage it is
identified as havina two elements: a narrow and more ~recise one. an interest
in fishcrieh: and s hr<~sJr.rand iii,>regcnerzl %:de. ;iiraditi,in:il ion:ern iiiih
ihe Idsror ihr. \cd 2nd i p3riiciil:ir zonicrn io Jerend ihr. frced,ini of the .;cd$.
485. It is this broader element-the protection of the freedom of the seas-
\rIiish i~iniiitutes in large part ihr Au~trïlirn Iiiiercit in the prcjent C:ISCand
giies io Au~tr~lid 3 ~tiili~cniIi,cr,r$r<irrOi;allcge .Ihrcïch oi ihr.lundanieniïl
ireed<~nisof th: sed by ilic I.rench niiclr.ar acii\irics in rhc Soiiih I'd~ifi:aren. 486. By way of conclusion to this part, the Government of Australia will
very briefly recapitulate the main elements in its argument.
487. As no question of admissibility has been raised by the Government of
France, the Government of Australia bas looked exclusively to the Court's
Order of 22 June 1973 for guidance on the points to be covered in this con-
nection. It appears that under the heading of "admissibility" the Court is
exclusively concerned with the identification of Australia's legal interest in the
subject-matter of its Application.
488. Accordingly, the Government of Australia, using the standards laid
down by the Court itself, and particularly in the Barcelo~raTraction case, has
first identified its clear legal interest in establishing the illegality in general
international law of atmospheric nuclear testing per se. It has, further, in-
dicated that the issue is also one affecting its sovereignty over and in respect
of its territory-a matter in which it also has an undeniable legal interest.
Finally. it has shown that Australia. in common with everr State. has a legal
iniere..t in the proieciicin ~fthe freed,vn of the high \<a,.
49. I hr. <;o\eriiiiici<if Aiistral.;~ subiiiiiihereiorc ihdi ils App1i;ntion
against the French Government is admissible. PART THREE
SUBMlSSlONS OF THE GOVERNMENT OF AUSTRALIA
490. Accordingly, the Government of Australia submits to the Court that
it is entitledatdeclaration and judgment that:
(a) the Court has jurisdiction to entertain the dispute, the subject of the
Application filed by theGovernment of Australia on9 May 1973; and
(h) the Application is admissible.
(Si.ried) P. BRAZIL.
Agentfor the Covernmenrof Ausrralia
23 November 1973 ANNEXES TO THE MEMORIAL
Annex 1
AUSTRALIANACCESSION TO THE GENERALACT FOR
THEPACIFICSETTLEMEN T F INTERNATIONAL DISPUTES
"The undcr>igncd. Hir Majesty's Principal Secretüry of Siaie for Foreign
Ailairs, ar the insi3nce of 11.3Müiesiy's C;o\crnmcnt in the Cdmmiinaeslth
of Australia.. h~ ~bv notifies the accission of His Maiest. in.resoect of the
~nmiiion~reilth of;\uitrîliü to~haptrrs 1. 11,III and IV of the iencrül AL.Ï
fur the Pxilic Setilen~entof Inicrnxtional Dijpiiiei.anneled Io the reroluti~in
adoptcd by ihc Arsenibl) of the I.eagiie i~f Nation, on the 26th Sepieinber.
1928.tlii hlajjoty's raid ac;ï\>ion isrii:ide subjïit Io the iollo\\ing ronditi~ins:
(1) I'h.11the iollouing- dis~utes are chiludrd ironi the prucedure dessribed
in the General Act, including the procedure of conciliation:
(i) Disputes arising prior to the accessionof His Majesty ta the said General
Act or relating to situations or facts prior ta the said accession;
(ii) Disputes in regard to which the parties ta the dispute have agreed or
shall agree ta have recourse to some other method of peaceful settle-
ment;
(iii) Disputes between His Majesty's Government in the Commonwealth of
Australia and the Government of anv other Member of the Leaaue
which is'a Member of the British ~ommonwealth of Nations, aliof
which disputes shall be settled in such manner as the parties have agreed
or shall agree;
(iv) Disputes concerning questions which by international law are solely
within the domestic jurisdiction of States; and
(v) Disputes with any Party to the General Act who is nota Member of the
League of Nations.
(2) That His Majesty reserves the right, in relation to the disputes men-
tioned in Article 17 of the General Act, to require that the procedure described
in Chapter II of the said Act shall be suspended in respect of any dispute
which has been submitted to, and is under consideration by, the Council of
the League of Nations, provided lhat notice to suspend is given after the
disoute has been submitted to the Council and is eiven within ten davs of the
ni>;ific~tion tif ihe ,naliailonuI'the procedure. and proi,ided sl\o ihat such
suspïnsiun sh.111 be Iiriiitïd Id period of 12 months or suih longer pcrtod a\
mai be agreed by the parties to the dispute, or determined by a decision of
al1the Members of the Council other than the parties to the dispute.
(3) (i) That, in the case of a dispute, not being a dispute mentioned in
Article 17 of the General Act. which is brouaht before the Council of the
League of Nations in accordarice with the provisions of the Covenant, the
procedure described in Chapter 1of the General Act shall not be applied, and,
if already commenced, shall be suspended, unless the Council determines
that the said procedure shall be adopted.
(ii) That in the case of such a dispute the procedure described in Chapter
III of the General Act shall not be aoolied unless the Council has failed to
eti'eci a seitlciiient of ihc di\puic \rith12'iiiuiithjI'roiii the dxte on uhich il
\\ai firsr iubniiitcicithe Council, or, in îc.ise \hcrï the procedurï prercribed
in Chapter 1 kas been adopted without producing an agreement between the346 NUCLEAR TESTS
parties, within six months from the termination of the work of theConcili-
ation Commission. The Council may extend either of the above periods by a
decision of al1its Members other than the parties to the dispute."
On 7 September 1939 the following telegrarn was sent to the Secretary-
General of the League of Nations:
"His Majesty's Government in the Commonwealth of Australia has
found it necessary to consider problem in existing circurnstances of its
accession to General Act for Pacific Settlement of International Dis~utes.
Taking into account considerations referred to in my telegrarn of even
date concerning Optional Clause of Statufe of Permanent Court of
International Justice whicha~olv with eaual force in case of General Act
His Majesty's Government in.~&nmonwealth of Australia now notifies
you that it will not regard its accession to General Act as covering or
relating to any dispute arising out of events occurring during present
crisis. Please inform al1States parties to General Act.
Prime Minister
Commonwealth of Australia." Annex 2
FRENCH ACCESSIOT OTHE GENERAL ACT FOR THE
PACIFICSETTLEMEN TF INTERNATIONA LISPUTES
.'Acte d'adhcsion du I'residcni de la République Frïnqaisc
Sur I'Acie C;CnGraId'Arbitrage approube parIliXeuvièmr hssciiiblr;e de la
Sociétédes Nations le 26 septembre ,928
Gaston Doumergue.
Président de la République Franqaise
A tous ceux qui ces présenteslettres verront
Salut:
Avant vu et examiné l'Acte Général pour le Règlement Pacifique des
~i~ircnds Intern;iiionaux.adopte le 26icpiciiibreIY.?>, ar l'~o<eniblce de la
Socieie des hliiions. et don12teneur sait:
Acte
En vertu des dispositions de la loi votéepar le Sénatet par la Chambre des
Députés,
Déclarons adhérer audit Acte, ladite adhésion concernant tous les diffé-
rends aui s'élèveraient aorès ladite adhésion au suiet de situations ou de faits
postérieurs à elle, autres que ceux que laCour Permanente de Justice Inter-
nationale reconnaitrait comme portant sur une question que le droit inter-
national laisseà la comoétenceexclusive de l'État. étant entendu au. ..ar
application de l'Articlj9 dudit Acte. les différend; que les parties ou l'une
d'entre elles auraient déféréau Conseil de la Sociétédes Nations ne seraient
soumis aux orocédures décrites Dar cet Acte aue si le Conseil n'était oas Dar-
venu à statu& dans lesconditions prévuesà 1'~rticie 15, alinéa6, du Pacte.
Déclarons en outre que. conformément à la Résolution adoptée par l'As-
sembléede la Sociétédes Nations "oour la orésentationet la recommandation
de I'~\clc GC:ncraI" I'Art~cle 28 de cît Aciinierprèti par Ic G<iuvernciiient
francaii coiiiiiic iignitnoianinient que "le respcct dei droit, Ctsblis par lcs
Traités ou résultant du droit des aeni" est obliaatoire pour les Tribunaux
Arbitraux constitués en application-du Chapitre ?dudit Acte Générai.
Proiiiettons que ledit Actsera inviolablement observé.
En foi de quoi, nous avons donné les présentes,revêtuesdu Sceau de la
République.
A Paris, le 12 mai 1931
(Sig17C)
Par le Président de la République
Le Ministre des Araires Etrangères
(Sinné)"
On 13 February 1939 the following further declaration was notified to the
Secretary-General of the League of Nations:348 NUCLEAR TESTS
"Monsieur le SecrétaireGénéral,
J'ai l'honneur de porter à votre connaissance que le Gouvernement de la
Réoubiiaue francaise. au moment où l'Acte Générald'Arbitrage est sur le
pokt d'éntrer dans une nouvelle période de cinq ans, conf&mément
l'Article 45 dudit Acte, a pris en considération la situation telle qu'elle se
orésenteoour lui àcet égard.
Le ~~u\ernement d; 1.1Republiquc cntend maIntenir l'adhésion qu'il d
donnee auII11Acte II lui fsut toutefois tenir coniptc de la situation nou\elle
oui résultetant de la sortie de certains Etats de la Société desNations oue de
l'interprétation que certains niembres de la Sociétéont donnée de'leurs
obligations résultant du Pacte. D'autre part, il ne saurait perdre de vue que
selon le orincioe admis oar les Conventions de La Have. les Etats bell-~érants
&ivent,én temps de guerre. êtretous soumis aux mêmesrègles.
En raison de ces considérations et me référant aux Articles 39, alinéa 2,
et 45. alinéa 4. dudit Acte..-'ai l'honneur de vous adresser la Déclaration
suivante:
Le Gouvernement de la République française déclareajouter à l'instrument
d'adhésion a l'Acte Générald'Arbitrage deoos..e. son nom. le 21 mai 1931.
la réserve que désormais ladite adhe'sion ne s'étendra aux différend;
relatifs à des événements qui viendraient àse produire au cours d'une guerre
dans laquelle il serait impliqué.
Veuillez agréer. Monsieur le Secrétaire Général,les assurances de ma haute
considération."
(Signd) Annex 3
LEITER OF 10 APRIL 1931 TOTHESECRETARY-GENERA OF THE
LEAGUE OF NATIONS FROM THE MIN~STER FOR FOREIGN
AFFA~RS OF THE FRENCH REPUBLICREGARDlNGTHE
ACCE~SION OF THE COVERNMENT OF THE FRENCHREPUBLIC TO THE
CENERALACT FOR THE PACIFICSETTLEMENT OF ~NTERNAT~ONA DLISPUTES
Paris,
April IOth, 1931.
Sir,
1 have the honour to inform you that, after the Chamber of Deputies, the
Senate at its meeting of March 5th unanimously approved the draft law
authorizing the President of the French Republic to accedeto the Ceneral Act
for the Pacific Settlement of InternatioDisputes, adopted on September
26th. 1928 by the Assembly of the League of Nations.
The French Government is now in a position to deposit ils definitive
accession with the Secretariat of the League of Nations. However.taking
account of the wishes of Parliament, and in order to emphasize the impor-
tance French opinion attaches tothis Act1 intend Io deposit Our accession
myselfduring the next session of the Council of the League.
1should be very much obliged if you would bring the above information to
the notice of the Governments Members of the League.
(Signed) A. BRIAND. ,
(L. of N. translationtaken from a communication from the Secretary-
General of 17 April 193: ref. No. C.242.M.108.1931.V.) Annex 4
TREATIESUNDER THE AUSPICES OF THE LEAGUE OF NATIONS
(a) The Application of resolr~rio,i(1)IO the General Aci
1. Resolution 24 (1) adopted by the General Assembly of the United
Nations on 12 February 1946, whereby the United Nations accepte3 the
custody and secretarial functions of League treaties read in part as follows:
Under various treaties and internationalconventions, agreements and
other instruments, the League of Nations and its organs exercise, ory
be requested to exercise, numerous functions or powers for the continu-
ance of which, after the dissolution of the League, it is, or niay be.
desirable that the United Nations should provide.
Certain Members of the United Nations, which are parties to some of
these instruments and are Members of the League of Nations, have in-
formed the General Assembly that, at the forthcoming session of the
Assembly of the League, they intend to move a resolution whereby the
Members of the League would, so far as this is necessary, assentand give
effect to the stepscontemplated below
1. THE GENERAL ASSEMBLYreserves the right to decide, after due
exaniination, not to assume any particular function or power, and to
determine which organ of the United Nations or which specialized
a-.ncv broueht into relationshio with the United Nations should
exerciseeach particular functionor power assunied.
2. THE GENERALASSEMBLY records that those Menibers of the United
Nations which are parties to the instruments referred to above assent by
this resolution to the steps contemplated below and express their resolve
to use their good offices to secure the CO-operation of the other parties
to the instruments so far as this may be necessary.
3. THEGENERALASSEMBLY declares 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 assumethe exerciseof certain functions
and powers previously entrusted to the League of Nations, and adopts
the following decisions, set forth in B,and C below.
A. Ft,irclionsprrrainMignIo a Secrelariat
Under certain of the instriiments referred to at the beginning of this
resolution, the League of Nations has, for the general convenience of the
parties, undertaken to act as custodian of the original signed texts of the352 NUCLEAR TESTS
II
NON-POLITICAL FUNCTIONSAN0 ACTIVITIES OF THE LEACUE OF NATIONS
OTHEKTHANTHOSEMENTIONEOIN SECTION1
1. THE GENEKALASSEMBLY requests the Economic and Social Council
to survev the functions and activities of a non-~olitical character which
have hiiherto beeri performed by the ~eague-of Nations in order to
determine which of them should, with such modifications as are desirable,
beassumed bv .r-~-~ of the United Nations or beentrusted 10soecialized
agencies which have been brought into relationship with the United
Nations. Pending the adoption of the measures decided upon as the
result of this examination. the Council should on or before the dis-
solution of the League, assume and continue provisionally the work
hitherto done bv the following League departments: the Economic,
Financial and Ti~n~it ~eoartment. ~articularlvthe research and sta-
. .
tisticîlwork; the Hedlih Section, piiriicularlythe epidrmiolugical
service; the Opium Sectionand the secrrtariats of the Permanent Central
~.ium~oardand Suoervisorv Bodv.
2. THECENERAI- ASSEMBL; reqiests the Secretary-General ta make
provision for taking over and maintaining in operation the Library and
Archives and fo-~ -.moletine the Leaeue of Nations treatv series.
3. THE GENEKAL ASSEM consiiers that il would aiso be desirable
for theSecretary-General to engagefor the work referred to in paragraphs
1and 2above, onappropriate terms, such members of theexperienced per-
sonnel by whom it is al present beingperformed as the Secretary-General
may select."
2. On 18 Aoril 1946. the Assembly of the League of Nations adopted the
following resolution on the assumption by the Ünited Nations of funclions
and powers hitherto exercised by the League under international agreementsi :
"The Assembly of the League of Nations,
Having considered the resolution on the assumption by the United
Nations of functions and powers hitherto exercised by the League of
Nations under international agreements, which was adopted by the
General Assembly of the United Nations on February 16th, 1946,
Adopts the following resolutions:
1. Custody of the Original Texrsof Internafional Agreemeirrs
The Assembly directs that the Secretary-General of the League of
Nations shall. on a date to be fixed in aereement with~ ~ ~ ~ ~ ~arv--
General of thé Ünited ~ations, transfer to-the Secretariat of the unitid
Nations, for safe custody and performance of the functions hitherto
oerformed bv.the ~ ~cretariat of the Lea-.e. al1 the o~-ein~l siened texts
of treaties and internation31 conventioii~. agrecmcnts and other instru-
ments. nhich are depostted \iih ihe Secrr'tariai or the Leaauof Nation<,
with the excemion of the Conventions of the ~ntern~tional Labour
Organisÿtion. the original< of \%,hichand other reliited docuiiients shall
be placed ai the disposal of that Orgînisntion.
1 Ofieiol Jotirnoi,SpcciolSitppleniNo. 194, p. 278. 2. Ftrncrionsand Powers Arising or11of Inrernarional Agreementsof a
TechnicalandNon-poliricalCharacrer
The Assembly recommends the Governments of the Memhers of the
League to facilitate in every way the assumption without interruption
by the United Nations, or by specialised agencies brought into relation-
ship with that organisation, of functions and 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 is
willing 10 maintain."
[ResoltrtionadopredonApril18rh, 1946 (aJiernoon).j
3. As indicated in the main text, in the 1949list of Signalr~resR , orifications,
Acceprances,Accessions,etc,, concerningthe Mulrilareral Convenrionsund
Agreemeiils;II Respectof whichthe Secrelary-Ceneralacrsos Dfposirary, the
United Nations Secretary-General listed hoth the General Act (al p. 25) and
the Revised General Act (at p. 23).
4. At the fifteenth sessionof the Economic and Social Council the question
was raised as to the authority'of the Secretary-General to perform, without
specific agreement of the parties to the Slavery Conventions of 1926, the
functions originally entrusted thereunder to the Secretary-General,of the
League. The representative of the Secretary-General of the United Nations
said :
"[The Secretïry-General] had unquestioniibly heen given the authority
Ito ~erform these functions] by resolution 24 (1)of the Gcneral Aiiçmbly.
;hich had listed the functions formerly entrusted to the Secretary-
General of the League of Nations to be transferred 10 the Secretary-
General of the United Nations. Those functions did not affect the oper-
ation of the instruments and did not relate to the substantive rights and
obligations of the Parties thereto, but were simply those customarily
performed by a depositary. The Secretary-General had performed such
-~~~~~ ~s~as the receiot of instruments of ratification from States not
originally Parties to a convention or denunciations by those who had
been Parties in respect of other League Conventions, notably in the case
of the withdrawals from the International Relief Convention Dursuant
a resolution hy the Economic and Social Council.
The authority of the Secretary-General under resolution 24 (1) had
never been questioned ... No government was boundto make useof the
Secretary-General's services in that connexion; but the Secretary-General
was bound to take action when required to do so. No agreement was
necessary for the transfer of the Secretary-General's responsihilities,
since they were solely depositary." (ST/LEG/7 of 7 August 1959, p. 66.)
5. In the Summary of Practice the Secretary-General has explained his
practice as depositary of League treaties as follows:
"The Secretary-General has received signatures and instruments of
ratification, accession and denunciation concerning agreements con-
cluded under the auspices of the League of Nations; he has also trans-
mitted certified copies when requested to do so, and has continued to
communicate the information provided for in those agreements. The
relevant circular letters have been addressed to the States parties and to
States Memhers of the United Nations.354 NUCLEAR TESTS
The Secretary-General has receivcd notifications supplementing in-
formation published by the Leaguc of Nations; he hasaccordingly added
that inforination to the mosi rccent League of Nations publications and
communicated 11to the States conccrned." . . LEC17 of7 Aua~s-. 1959.
p. 67.)
6. On 3 December 1971the Secretary-General addressed a Note Verbale to
the Permanent Representative of a Member of the United Nations on the
subject of the procedure he proposed to adopt when receiving an accession to
a League Tredty (the Convention concerning the Use of Broadcasting in the
Cause of Peace, signed at Geneva on 23 September 1936) which was ac-
companied by reservations. In this Note Verbale 1 the Secrelary-General
made the following points:
(a) "The Secretary-General acts as depositary of conventions concluded
under the auspices of the League of Nations in accordance with a
resolution adooted bv the Assemblv of that oraanization at its las1
sessionand rre;olutiok (24(1llofthc ilnited aii ion <;sner:kl A\renibly."
(b] The Secretÿry-General. in exercising there depositary functions. recei\ed
reservations attaching to accessions to League treaties.
(c) Notwithstanding General Assembly resolution 1452B (XV) of 7 Decem-
ber 1959 on the subject of the procedure to be adopted by him in the
matter of reservations to multilateral treaties made under the ausoices
of the United Nations, he proposed to adhere in the case of reservations
to League conventions to the procedure of the Secretary-General of the
~eague, since he, "acting as depositary, cannot infringe upon the rights
of the parties".
7. Within the restricted limits of his competence under resolution 24 (l),the
Secretary-General was clearly empowered to exercise depositary functions in
relation to the General Act. as in relation to al1 other League of Nations
conventions which had designated the Secretary-General of the League as
depositary; and to act in respect of its Article39 as the Secretary-General of
the League might have acted. As stated in the text, the General Act was one
of the 72 listed conventions. It was not excepted from this framework, so
that it was clearly regarded as in force al the date of resolutio24 (1).
8. It would appear that, at least on one occasion, the Secretary-General has
exercised secretarial functions in respect of the General Act. This was when
he received a notification dated 14 July 1971 from Barbddoszadvising him
chat the Government of Barbados had been considering the General Act in
connection with its review of treaties applying to it by virtue of United
Kingdom adherencebefore independence, in order to determine its succession
thereto. It advised that it did not consider itself bound by the General Act
and asked that the notification be circularized to al1the parties to the General
Act.
(b) U~riredNarionsPracriceShowsrharOrherLeagrreTrearies Werenor Regarded
as no Longer iiForce Merely Becarrseof rhe Demise ofrhe Leagite
9. The Generrtl Act vas one of 72 tre;itics concluded undcr the auspices of
the Leïgue of Nations which uere the <ub~ecti)fGeneral Assenibly re\olution
1 UN luridicol Yearbook,1971,p. 224.
2 A copyof thecorrespondencewill be lodgedwith theRegistrar(II, p. 403) 10. The participation clauses of many of these treaties raised questions of
~~~~..retation. S-~~~~f~the treaties restricted adherence to Members of the
League of Nations or to non-members who might be invited Io accede by the
Council of the Leaaue. or were invited Io attend the drafting conference. or
were expressly nokinited. Others, such as the Protocolon ~rhitration
Clauses of 24 September 1923, were open for signature by al1 States, giving
rise to the question whether this meant States that were in existence at that
date.
II. The question of new States (that is, States which did no1 exist at the
time of the League). and of other States that did no1 qualify under the
participation claiher bcing sccorJcd the pusribility of adher~ng IO these
trcaties ar<i.;ein the Sixth Comiiiittee of the Gcncral Assenihly at ils Scvc'n-
teenih Session in 1962. in connectiun with cunsideraiiun of ihc dmft arri.'lcs
on the conclusion, entry in10 force and registration of treaties submitted by
the lnternational Law Commission.
12. In its Commentary Io draft Article 9 the Commission had pointed out
the technical difficulties involved in opening up these treaties Io further par-
ticipation, in the absence of protocols Io which al1 the parties would sub-
scribe (Yearbook o/ rhe Internarional Law Commission, 1962, Vol. 2, p. 169,
para. 10).
13. The Sixth Committee thought that it would be desirable Io study sepa-
rately the problems arising from treatiesconcluded in the past, and more parti-
cularly those concluded under the auspices of the League of Nations. Several
solutions were proposed, but when the difficulties of the matter were dis-
cussed a number of representatives submitted a draft resolution (A/C.6/L.
508). which was subsequently revised (A/C.6/L.508/Rev.I), requesting the
lnternational Law Commission to study the problem further; and upon the
recommendation of the Sixth Coniniittee the General Assembly adopted on
20 November 1962 resolution 1766 (XVII) requesting the lnternational Law
Commission to study the question of extcnding participation of new States
"in general multilateral treaties" of a technical nature.
... ~-~~~s-~~etine-on 2 Julv.19~3 the lnternational Law Commission con-
sidered a Report of Sir Humphrey Waldock, the Special Rapporteur on the
question (AlCN.41162). This Report was confined Io 26 treaties actually in
force. which a~oeared in a document Dreoared bv the Secretarv-General in
response to a reiucst from the Sixth ~om&iitee to.list treaties ";fa technical
and nun-~olitfcal" characier requiring con~ideration from the point of view uf
15. hé GenGal Act was not included among these 26 treaties, but this is of
no significance considering the purpose for which the lis1 was drawn up.
That purpose was to open Leaguetreaties Io new States, and since the Revised
General Act was in existance and new States were encouraged Io participate
in it, naturally the General Act of 1928 was not included in the list, and
it would have been anomalous for it Io have a~~eared there. Also. the
Secretary-General was directed by the General ~ss&nbl~ to prepare a lis1 of
treaties of a "technical and non-political" character which would be suitable
for extended participation. ~bviously this direction excluded the General
Act. for it could no1 be said 10 be a treaty ofa "lechnical and non-political"
character.
16. The Special Rapporteur found that five of these 26 treaties had been
deliberately closed to additional States, and that the reniaining 21 al1 con-
tained clauses, framed in virtually identical terms, extending participation Io356 NUCCEAR TESTS
any State no1 represented al the negotiating conference, Io which a copy of
the treaty might be communicated by the Council of the League.
17. In its Report Io the General Assembly on the subject in 1963, the Inter-
national Law Commission adverted to the possible "out-of-dateness" of
some of the 26 treaties due Io their having been "overtaken by modern
treaties" or as having "lost much of tbeir interest for States with lapse of
time" (Yearbook of rhe Inrernational Law Commission. 1963, Vol. 2, p.218,
para. 22). And il concluded ils Report by saying that even a superficial
examination of the 26 treaties indicated that a number of them held no
interest for States (ibid., p. 223, para. 50 (d)). Il recommended a study of this
aspect, but in fact no such study was carried out.
18. The Report. in considering the methods available for extending partici-
pation, recognized that this would involve a change in the substantive rules
in the treaties themselves. What is sienificant for the Dresent Case isthat the
International Law Commission did iot consider that'the fact that was the
Council of the League that was 10 issue invitations for participation in the
case of 21 of the 26 treaties meant that the participation clauseshad lost any
of their viability. Il was only a question of bridging the gap caused by the
disappearance of the Council of the League.
19. Obviously, then, that disappearance was in no sense\vital to the
operation of the treaty clauses. The Report proposed that except in the case
of the five treaties, which were intended to be closed, the treaties could
be opened by a procedure analogous 10 resolution 24 (1) (ibid., p. 223,
para. 49).
20. The Report of the International Law Commission was discussed by the
Sixth Committee at the Eiehteenth Session of the General Assemblv. when a
..
drafi resolution based ui& the conclusions reached by the Coniniis,i<in uas
submitted by nine countries which would designate the General Assembly as
the ao.. .riate orea- of the ~ ~ ~d Nations 10exercise the oowers conferre~~ ~ ~ ~ ~
by multilateral treaties of a technical and non-political character on the
Council of the League of Nations Io invite States Io accede 10those treaties;
and would reauest~the Secretarv-General as the deoositarv of those treaties
10take certainadministr~~ive aftions with a view toseeking adherence.~
21. Although it was uryed thai the only correct legal procedure uould be by
wav of amendine orotoc~l. and althouéh there were direrences of oninion
~ ~ ~ ~r~
as io whetherpaGicipation khould be reGricted to United Nations Members,
the Sixth Committee's text was adopted by the General Assembly as reso-
22. It wili be nofed that thal resolution soncerned 21 general niultilateral
lreaiies or a ieshnicül and non-political charaster oui of the 72 treaties listed
in the las1publication of the ~ea~ue, 10of which had been brought within the
scope of the UnitedNations by protocol.
23. Acting pursuant 10resolution 1903(XVIII), the Secretary-General con-
sulted both Members of the United Nations and non-members who were
parties10 theireatiesas touheiherany of the 21 trcaiies had. in their opinton.
cea\ed to be in force, been superseded. or otheru,ise ceasedto beof iniercst for
accession by additional tat te sr,required action 10 adapt them Io contem-
porary conditions.
24. The Secretary-General issued a Reporton theseconsultations on 25 Fe-
bruary 1965(UN doc. A/5759) and a supplementary report on 7October 1965
(A/5759/Add.l). He stated that, since sufficient evidence existed that the
Convention for the Suppression of Counterfeiting Currency and the Optional
Protocol Concerning the Suppression of Counterfeiting Currency were fullyoperative (the question had first been raised by a new State seeking means to
adhere to these). he had not consulted parties and had invited States covered
bv the resolution to accede to these two treaties.
25. The replies received by the Secretary-Gcncral from govcrnments and
international and regional organi7ationj uhich hc coniulird are vrry rignifi-
cant. No reply suggested that~an~of the treaties was not technically in force,
although the replies did indicate that some treaties had been largely super-
seded or were of little interest from the point of view of extended partici-
pation.
26. This enabled the Secretary-General to reach a conclusion, in which he
divided the treaties concerned into five categories:
(i) Treaties still in force. not superseded. nul rcquiring adaptation Io con-
teniporary cunditions, and uf intereri far accession by addiiional States.
(\~, ~reaties still in force. not suoerseded. of interest for accession bv addi-
tional States, but possibly requiring some adaptation ta contemporary
conditions.
\ ~ ~ ,~ ~ties~ ~ill in force. not suoerseded. of interest for accession bv addi-
tional Statrr. but cleaily requi;ingadapiation toeontcniporary condiiions.
(IV, Treaties still in force but having sciised tu bc of intcrcst for accession hy
addition~ ~ ~~~ ~ ~ ~
(v) Treaties u hich had becn rcplaccd or had oiher\ii\e ceased io be ofintercst
for iicccsçion hy additional Siaies (Replies rcceivcd on ihcsc trcatic5 fur
the most part said they were technicaily in force. No reply denied that
they were in force).
27. The Secretary-General proposed that, if invitations to participate were
to be issued, they should be restricted ta the treaties in the first three categories,
and the question of revision could be left to a possibly expanded number of
parties or to the international organizations within whose respective com-
oetence their subiect-matters fell.
' 28. The ~ecritary-General's Report was considered by the General
Assembly at itsTwentieth Session. A recommendation of the Sixth Committee
that the nine treaties listed in the first three categories of the Secretary-
General's conclusions should be the subject of invitations was adopted in
resolution 2021 (XX) of 5 November 1965.
29. In December 1965invitations were issued respecting these nine treaties.
30. AI1of ihese ninc ircaiies appcar in Part II ;rf .~drilurerul Trcuri<,rin
Rrcpecr of IVhich rhc S~~cr~~rury-tii,z~~ P erIijrrns Deporilury Fu~icriunr. In
Cactthcrc arc noa 27 trelitier in that liri Siniccn of thesc appearcd in the liii
which was prepared by the Secretary-General and were~included in the
International Law Commission's Report on extended participation. Eleven
were not included in that Report.
31. The Secretary-General began listing League of Nations treaties not
covered by protocol in the edition which followed resolution 2021 (XX). At
that time he listed 26 treaties which had been the subject of accessions, decla-
rations of succession or denunciations since resolution 24 (1).In 1969headded
the Convention and Statute on the International Régime of Railways of 9
December 1923, which up to that date had been the subject of no activity
on the part of any State, but which was the subject of a declaration of succes-
sion on the part of Malawi on 7 January 1969. It was one of the 12 treaties
which had been excluded from resolution 2021 (XX) as being of no further
interest.
32. Of the 21treaties covered by General Assembly resolution 1903(XVIII),five have been the subject of no communication with the Secretary-General of
the United Nations whatever, except in reply Io his enquiry pursuant to that
resolution.
33. One treaty, the Special Protocol concerning Statelessness (12 April
1930), which was not included in any of the lists connected with extended
oarticioation nonetheless ao.,ared in Part 11 because in 1946 Pakistan h~d ~
decl,ireJ il\rus:es,ion tt?ii. ,\lth,iugh not ihen in f.~rce.ths Scsreisry-Genersl,
iii 1972.~nd~cütcdthal hc \\.fienipouered h) rewl~iitin 23 II) to reseii,c.s dcc-
Iaraiiuii ai ruc<e\rion frurli ILI in re>pe.'i (if th#\ Treai) nh:ch uuuld briiig ii
inio ior~e, xlthi~iigh he na, not enipo\rerej Io a.vc.pi An iniiriiiiieiit ufacces-
sion 1. Oiher trest~esin l'art II ha\e becn siibje~t tu cqii:ills~inini~al aciivitv.
34. In the case of several treaties which the Secretarv-General in 19i5 ~ - .-
reported wereconsidered by the parties to he of no further interest, his enquiry
appears to have had the effect of stimulating denunciations. Because it was
necessarv for him to record these changes in the -tate of the oarties to the . ~ ~~~-
irc:ities In quc\i:oii. the Se:ret.iry-Generil Iited [hem in Part II.
35. The niost strih.n,:e\~iiiplc oia tre:iiy \rhich hid long beenindciive. had
heen e\;liiJed fri~ni reii~liition 2021 (XX) :is of no furiher interebi and from ~ ~ ~~-~~~
Part II, but which was suddenly acti"ated is the Convention and Statute on
the International Régime of Railways of 9 December 1923. In 1969 the
Secretarv-General for the first time included itin Part 11because in that vear ~ ~, -~ ~
he accepted the notifisation of successionrespecting ii from hlalau,i.
36. The~di;il~~g~ei~ftre~tiel~n I'iri II isthereforenoiiI.?~eJ. I'heSe~rct~rv-
General adds to-it treaties in respect of which he has been obliged in the
exercise of his depositary functions to indicate changes in the state of the
parties. Until he is obliged to take such steps he does not include League
treaties in Part II.
37. He hii n'it in,.luJed ihc Gcncral Ait in P.trt II hewu,~. he hlis not hren
ohlired t<i indicaie chdnee, in the p:triies Ii%iedin the Ii\i riuhliciiiion oi thr
~eague of Nations which has earlier been referred to. If a party should
address a notice of termination to him at the expiry of a current quinquennial
period, there is no reason to assume that the Secretary-General would not
then include the General Act in Part II, because he would certainly be
obliged pursuant to resolution 24 (1) to accept such conimunications and to
notify the change in the list of parties.
38. Also. it would be hazafdous to suonose that a. .eatv is not in force
merel) tiecsube there is,for i iiiiie. no interest in 11.The Secrci:try-(icneral in
hl%Repurl of 25 rchru.ir) 1965in~luded in ciiegory (VI 2% Ii.iriiig :ea\ed ILIbc
of intere51for ;ic:essioit h) 3dditional Siare.>,the Coniention on thc.ld~sti<in
of Furcign Mutor \'chicles of30 3l;irch 1931.As a re,tili, ihis a:ts iiot includcd
in reioliition 2021 (XXJ. U<incilicless. scven ioiintrirs h.ivr iinir i:iken the
precaution formally to denounce the Convention, which the Secretary-
General asa resultlists as in force intes re the other parties.
39. Again, the Convention for the Campaign against Contagious Diseases
of Animals of 20 February 1935 was included by the Secretary-General in
category (v) and exempted from resolution 2021 (XX). Yet the Secretary-
General on 8 Fehruary 1967accepted an instrument of accession respecting it
from Yugoslavia. The same is true of two other similar Conventions.
40. One of the 19 treaties which were thought not to require extended
participation, the Convention relating to Gases (Asphyxiating, Poisonous or
1 A copyofthecorrespondencewill belodgedwith theRegistrar(II, p. 403)Other) and Bacteriological Methods of Warfare. 1925.has been the subiect of
niuch activity and ~on-sider;ition in recent years. No one h3s sonsirler&J th31
ils omi\\ion from the Sezretary-Gcncral's lis1 of treaties rrquiring extcndcd
participation means that it is nit in force.
41. The Government of Australia thereforesubmits that a consideration of
the practice of the United Nations in relation to League treaties indicates quite
clearly that other multilateral League treaties were not treated hy it as no
longer in force merely hecause of the demise of the League. Annex 5
6 II 54.
Whereas by paragraph 5 of Article 36 of the Statute of the International
Court of Justic~ ~ declaration made under Article 36 of the Statute of the
Ganent Court of lnternational Justice and still in force at the coming into
o~eration of the Statute of the lnternational Court of Justice is deemed, as
bétweenthe parties to the latter Statute, to be an acceptance of the compul-
sory jurisdiction of the International Court of Justice for the period which it
still has torun and in accordance with its terms;
And whereas on the coming into operation of the Statute of the Inter-
national Court of Justice there was still in force in respect of Australia a
declaration made on 21 August 1940 under Article 36 of the Statute of the
Permanent Court of lnternational Justice;
And whereas that declaration accepted as compulsory the jurisdiction of
the Court in respect of certain disputes for a period of five years from the
date thereof and thereafter until such time as notice might be given to ter-
minate the acceptance;
Andwhereas the Government of Australia is desirous of terminating that
acceptance and also of making a new declaration of acceptance in terms
appropriate to contemporary circurnstances;
Now therefore 1, William Douglass Forsyth, Head of the Australian
Mission to the United Nations, acting on behalf of the Government of Aus-
tralia and in accordance with instructions in that regard from The Right
Honourable Richard Gardiner Casey, Minister of State for External Affairs,
(1) give notice that 1 hereby terminate the acceptance hy Australia of the
compulsory jurisdiction of the lnternational Court of Justice hitherto
effective bv virtue of the declaration made on 21 Aueust 1940 under
Article 36 of the Statute of the Permanent court of lntekational Justice
and made auplicable to the lnternational Court of Justice by parasrauh
5 of Articl~ ~ ~of the Statute of that Court:
(2) declare, under paragraph 2 of Article 36 of the Statute of the International
Court of Justice. that the Government of Australia recognizes as com-
nulsorv. .n~~,~ and~wit~out s~ecial aer-enient~~,n relation to anv other
State accepting the same obligation, the jurisdiction-of the lnternational
Court of Justice, from the date of this declaration and thereafter until
notice is given to terminate this declaration, in al1 legal disputes arising
after 18 August 1930with regard to situations or fdcts subsequent to that
date and concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(cl the existence of an" fact which, if established. would constitute a
bre~ch of an iniern~riondl ohlig~tion;
Id, lhc nature or ehieni of rhe rep~ralion to be niade for the brc2L.hof an
international obligation;
but this declaration does not apply to: (i) disputes in regard to which the parties to the dispute have agreed or shall
agree to have recourse to some other method of peaceful settlement;
(ii) disputes witli the governrnent of any other member of the British Com-
monwealth of Nations, al1of which disputes will be settled in such man-
ner as the parties haveagreed or shall agree;
(iii) disputes with regard to questions which by international law fall exclu-
sively within the jurisdiction of Australia;
(iv) disputes arising out of events occurring at a time when the Government
of Australia was or isinvolved in hostilities; and
(v) disputes arising out of or concerning jurisdiction or rights claimed or
exercised by Australia-
(01 in resnect of the continental shelf of Australia and the Territories
~ ~ ~ ~
undeithe authority of Australia, as that continental shelf is des-
cribed or delimited in the Australian Proclamations of 10September
~ ~~- -- in or under the Australian Pearl Fisheries Acts:
(b) in respect of the natural resources of the sea-bedand subsoil of that
continental shelf, including the products of sedentary fisheries; or
(c) in respect of Australian waters, within the rneaning of the Australian
Pearl FisheriesActs, beingjurisdiction or rights claimed or exercised
in respect of those waters by or under those Acts,
except a dispute in relation to which the parties have first agreed upon a
modi~s vivendi pending the final decision of the Court in the dispute;
And his declaration is subject to the condition that the Government of
Australia reserves the right to require that proceedings in the Court shall be
susoended in anv disoute in resoect of which the Securitv Council of the
, .
unitcd Nation, i\e\cr;i.cng the iunction.. ~><igncdto itby the Charter oi the
Uniicd Slitiims, pro\idsJ thÿt nciti~r. ti~suspend i\ giwn uiihin ten <I.iy>of
the notification of the initiation of the oroceedings in the Court. and orovided
also that the suspension shall be limiied to a Griod of 12 monthi or such
longer period as may be agreed by the parties to the dispute or determined by
a decision of the Security Council.
Signed and sealed by the said William Douglass Forsyth this sixth day of
February one thousand nine hundred and fifty-four. Annex 6
DECLARATION OF FRANCE UNDER ARTICLE36 (2)
OF THE STATUTE
[Translution from the French] 20 V 66
On behalf of the Government of the French Republic, 1 declare that 1
recognize ascompulsory ipsofacto and without special agreement, in relation
to other Members of the United Nations which accept the same obligation,
that is to say on condition of reciprocity, the jurisdictionof the Court, in
conformity with Article 36, paragraph 2, of the Statute, until such time as
notice may be given of the termination of this acceptance, in al1 disputes
which may arise concerning facts or situations subsequent to this declaration.
with the exception of:
(1) disputes with regard to which the parties may have agreed or niay agree
to have recourse to another mode of pacific settlement:
(2) disputes concerning questions which,~according to international law, are
exclusively within domestic jurisdiction;
(3) dis~utes arisin. out of a war or international hostilities. dis~utes aris.na
oui of a crisis ;iITe.iing nlii.>ndl rccLrit) or ou.III)iiica\ure or action
reldting ihrrcto, dnd disp,iier conzcrning .i~tiiitics connecicd rriih ndiio-
na1defence;
(4) disputes with a State which, at the time of occurrence of the facts or
situations giving rise to the dispute, had not accepted the compulsory
jurisdictionof the International Court of Justice.
The Government of the French Republic also reserves the right to supple-
ment, amend or withdraw at any time the reservations made above, or any
other reservation wbich it may make hereafter, by giving notice to the
Secretary-General of the United Nations; the new reservations, amendments
or withdrawals shall take effect on the date of the said notice.
Paris, 16 May 1966. (Signed) M. COUVE DE MURVILLE. Annex 7
1. Décretno 73-618 du 4jrrillel 1973 créantrtnezorre
de secrrriréen Polynésiefrançaise
Le Président de la République
Sur le rapport du Premier ministre, du ministre des affaires étrangères,du
ministre des armées, du ministre des transports et du ministre des départe-
ments et territoires d'outre-mer,
Vu l'ordonnance No. 59-147 du 7 janvier 1959 portant organisation géné-
rale de la défense,
Décrète:
Art. le'- II est crééautour de l'atoll de Mururoa une zone de sécuritéd'une
étenduede soixante milles marins, contiguë à la mer territoriale, dans laquelle
la France se réserve le droit de suspendre temporairement la navigation
maritime.
Art. 2 -le Premier ministre, le ministre des affaires étrangères,le ministre des
armées,le ministre des transports et le ministre des départements et territoires
d'outre-mer sont chargés, chacun en ce qui le concerne, de l'exécution du
présent décret, quisera publiéau Jorrrnal Oficieldela République franqaise.
Fait à Paris, le 4 juillet 1973.
par le Président de la République:
Georges POMPIDOU.
Le Premier minisrre,
Pierre MESSMER
le ministre des armées,
Robert GALLEY
le ministre des affaires étrangères,
Michel JOBERT
le ministre des transports,
Yves GUENA
le ministre des départementser territoires d'oirtre-mer,
Bernard STASI. Annex 8
DECREE SUSPENDING MARITIME NAVIGATION
IN THE"SECURITYZONE*'
Slispensionde la navigation maritime dansune zone de sdcurité
oz Polynésie française
Le ministre des armées,
Vu le décret du 4 juillet1973 créant une zone de sécuritéen Polynésie
française,
Arrête:
Art. 1" - En application de l'article 1" du décret susvisé, la navigation
maritime est suspendue dans la zone de sécurité etablie autour de I'atoll de
Mururoa, à partir du Iljuillet1973,à0 heure T.U.,etjusqu'à nouvel avis.
Art. 2 - L'amiral commandant le centre d'expérimentations du Pacifique est
chargé de prendre à l'égard des navires contrevenants toutes les mesures
nécessairespour assurer leur sécurité et celle des personnes se trouvant à
bord.
Art. 3 - Le présent arrétésera publié au Jourrra1 Oficielde la République
française.
Fait à Paris. l4 juillet1973.
Robert GALLEY. Annex 9
1. The ioniinued dcmonsiration of international sondeinnation of and
roncern ïI the conrluct of the French test3at its Pacific Te\i Centre has tiken
a variety of forms. The following are recent significant instances, by no means
exhaustive, of soch expressions of condemnation and concern. (References to
earlier resolutions of international organizations concerning nuclear testing
are to be found in oaras. 40-42 of the Ao~lication and in oaras. 9-40 of the
.. ~ ~ .
Kequert for Intcriiii Mr~si.rci tif IJruicciii>n. and in the Annews rcferrcd io in
ihose paragraphr. Theic ~ncluJe 3scriei of United Nations Gencral As\enibly
reso~ution~.and the Declaration and resolution 3 (1) ad\~,ed at the stock-
holm conference on the Human Environment.)
Coe,rrries and Terrirorics of rhc Soitrli West Pocific
2. In the area closest to the site of the French tests, the South West Pacific,
the protests of the Australian, New Zealand and Fijian Governments, who
have instituted proceedings in the International Court, have been joined by
proiests from nearly al1 the States and territories of that region, including
some of the French overseasterritories in the Pacific. In April 1973,the South
Pacific Forum, attended by the President of Nauru and the Prime Ministers
of Australia, New Zealand, Fiji, Western Samoa and Tonga, and the Premier
of the Cook Islands, with the Chief Minister of Papua New Guinea and the
leader of the Government of Niue present as observers, issiied a Joint Decla-
ration urging the Government of France "to hced the cal1 of the United
Nations General Assenibly and its obligations under international law by
bringing about an immediate halt to al1 testing in the area". The Declaration
reads as follows:
"Members recalled the expression of opposition at the meetings of the
forum in 1971 and 1972 Io atmospheric nuclear weapons testing con-
ducted by France in the South Pacific.
Members took note of the fact that their opposition was increasingly
shared by world opinion.
Thev welcomed the most recent resolution of the United Nations
Geneil Assembly calling, with renewed urgency, for a halt Io ail
atmospheric testing of nuclear wetpons in the Pacific and elsewhere in
the world.
Members were once again unanimous in expressingtheir deep concern
at the apparent continuing failure of the French Government to com-
orehend the extent of oooosition to the conduct bv France of its tests in
ihe Pacific area and to respect the wishes of the peoples of the area.
They reaffirmed their strong opposition to these tests which exposed
their people as well as their environment to radio-active fall-out, against
their wishes and without benefit to them which demonstrated deplorable
indifference to their future well-being. They urged the Government of
France to heed the cal1of the United Nations General Assembly and its366 NUCLEAR TESTS
obligations under international law by bringing about an immediate
halt to al1testing in the area.
Members enpressed their determination to use al1 proper and practi-
cable means open to them to bring an end to nuclear testing, particularly
in the South Pacific.
The forum requested the Government of Western Samoa to transmit
the views of the meeting to the French Government."
3. As regards the French Pacific Territories, the Territorial Assembly of
New Caledonia and its dependencies voted on 13 June 1973 in favour of a
resolution which declared the opposition of the Assembly to al1 tests. In its
resolution, the Territorial Assembly noted that the French Government had
imposed for years on the 120,000 French of French Polynesia, and in the
name of 50 million Frenchmen of metropolitan France, a situation which the
latter would not accept in their own land, since there was not an atomic bomb
test centre in metropolitan France. The operativeparagraphs of the resolution
state:
"The Territorial Assembly of New Caledonia and Dependencies
expresses its deepsympathy forand solidarity with the peoples subjected
to the effects of nuclear explosions.
States its opposition to al1nuclear tests whatever may be the countries
which conduct thcm.
Condemns the Chinese position which proposes to make a zone free
from nuclear testhg of the Pacific Ocean (sic).
Demands the convening of a conference of al1 the countries of the
Pacific with a view to prohibiting in the future al1testing (aerial or under-
-round) in the PacificOcean. es~eciallv within that zone of fractures of
the edrih's crusi rihtch encircle5 thPacific
Thxnks the Au5tr~liiiniind Neu 7ealdnd unions for their understanding
of the situation of Our peoples and for consequently having willingly
spared New Caledonia from being boycotted.
Supports the interventions made by the parliamentary representatives
of French Polynesia and their appeals to the French people and to
international opinion 1." (Translation.)
4. On 12 July 1973, the Western Samoan Legislative Assembly unani-
mously adopted the following motion, which condemned the tests and de-
plored the "irresponsible and high-handed disregard by France of the expres-
sed opinion of the international community":
"That this Legislative Assembly, recalling the provisions and spirit of
the United Nations Treaty banning nuclear weapons tests in the atmo-
sohere. in outer space. and under water. of which Western Samoa is a
signatory, and whkh has received almosi universal support, being aware
that nuclear tests in the atmosphere pose unknown hazards to human
life and the environment. knowine also that a laree number of countries
including the South ~acific ~orum countries haveexpressed objection to
the continuation of nuclear tests in the Pacific by France, noting espe-
cially the Pacific region's grave concern about these tests and its total
opposition to the explosions of nuclear devices in the Pacific as demon-
strated by the actions brought against France by Australia and New
Zealand in the International Court of Justice, and further noting that in
'Acopy ofthefulltextoftheresolutionwillbelodgedwiththe Registrar (II,p.403). spite of international protests and the determined op~osition of the
countries and peoples closest to the test site, indeed even in spite of the
interim judgment of the International Court of Justice, France still
intends to continue its programme of nuclear tests in the Pacific: now.
therefore, this ~e~islative ~ssembl~ condemns the further explosions of
nuclear devices in the Pacific which increase the level of nuclear pollu-
tion and the potentialdangers from contamination, deplores the irrespon-
sible and high-handed disregard by France of the expressed opinion of
the international community and the continued protests of the govern-
ments and peoples of the South Pacific, and the interim iudgment of the
lnternational court of Justice, applauds and supports the actions taken
by Australia and New Zealand and other members of the international
communitv to dissuade France from continuine. its nuclear testine
programme in the Pacific, calls for more effective international measur;
to limit or totally ban the testing of nuclear weapons, and requires the
Government to brine.t-is Resolution to the attention of the Go;ernment
of France."
Countries of Latin America
5. The Pacific countries of Latin America have also protested strongly and
repeatedly about the French Pacific tests.
6. On 21June 1973,the Governments of Chile, Ecuador and Peru issued a
Joint Declaration, as follows:
"The Governments of Chile, Ecuador and Peru, noting current inter-
national action to oppose the resumption of nuclear tests in the atmo-
sphere in the South Pacific area, reiterate their rejection of such explo-
sions as expression of a policy contrary to the principles, resolutions and
objectives of the United Nations." (UN doc. A19084.)
7. On 24 July 1973, the Presidents of Colomhia and Venezuela signed a
Joint Declaration which registered their protest against the French nuclear
tests:
"We register our frank protest regarding the nuclear tests in the Pacific
which constitute a threat to the peoples and living resources in the area.
These tests were carried out without regard for world public opinion and
the principles of the United Nations which oppose the continuation of
the arms race, particularly in the nuclear field. We invite the Latin
American countries, especially those in the Andean area, to take joint
action to implement the principles referred to above." (UN doc. Ai9110.)
8. In addition to these Joint Declarations and to the imoortant ioint
Communiqué by the Foreign Ministers of the six countries oi the ~ndean
Pact made on 3 August 1973on French nuclear testing in the Pacific, protests
have also been made bv individual Latin American countries.
9. Thus, on 16July i973, the Chilean Foreign Ministry issued thefollowing
statement:
"In view of recent developments connected with further nuclear tests
by France in the South Pacific, the Ministry of Foreign Affairs declares:
.1. Chile has constantlv and eneraeti-allv condemned these tests
front their beginntng in the various ;ntcrnliionÿl ri>runis.In the llnited
Nations, 11h~s intervcned actively in dis;ussion of the question and
has CO-sponsoredvarious resolutionscondemning such acts, especially368 NUCLEAR TESTS
during the last General Assembly. It did likewise in the Environment
Conference in Stockholm last year, and in the recsnt WHO Assembly.
(2) In the Latin-American context, it is appropriate to recall the
joint declaration of the Andean Pact Foreign Ministers on 21 June
. 1973, in which the above tests were condemned in precise terms; the
joint declaration of the Minister of Foreign Affairs of Chile and
Colombia on 25 June 1972and of Chile and Ecuador of 25 October of~ ~ ~
the same year, which reaffirm our Government's categoric opposition
to such tests. Moreover, recently, on 21 June. the Governments of
Chile. Ecuador and Peru. in view of the imminénceof fu~~ ~r niicle~~~~- ~~.~ ~~~-
tests in the South ~acific,'repeated their opposition to such explosions
as expressions of a policy contrary to the principles, resolutions and
objectives of the United Nations.
(3) As regards the Chilean Government's attitude towards France,
as soon as nuclear tests began at Mururoa in 1966 Chile. on manv
occasions, has presented protest notes ta France, expressing its
concern at the possibility of the danger of radioactive contamination,
bath of human heings and marine fauna. and has develooed clear leeal
arguments in which it categorically miintains its position of open
rejection of the above-mentioned tests. The same was done in June
1971 and A~ril 1972.
In view of the announcement of further nuclear explosions, the
Ministry of Foreign Affairs,two months aga, on 15 May of the current
.ear..sent a further note in which it reDeated 'its most forceful nrotest'
at such an attitude on the part of the~rench Government. ~his note
added that, 'in spite of al1the precautions which may be taken, it has
not been reliablv demonstrated that the effects of nuclear exnlosions
cm bç taitally conirolled. \%hichinvol\cs evident danger for the S,iuth
P~citic and, thcrciore. for Chilelin territory and the tiiterr under ils
jurisdictton'. 'II i. bc~aiise of this'-the note snded- 'th21 the Chile~n
Governinent rcserie, th? ri~ht 10 niahe cliinis COI3ny daniage that th?
aforementii~ned tcsis niay taus IO ils inhibitanis, tc?il, territor?, and
to the waters under its iurisdiction or their marine life.'
(4) On the 6th of the present month, the President of the Republic,
replying ta a message from the Prime Minister of New Zealand, again
expressed opposition to such tests and recalled the firm and constant
attitude of the Government of Chile.
(5) Finally, on Friday last, the Minister of Foreign Relations,
participating in a television programme, categorically reaffirmed the
attitude of the Chilean Government as one of condemnation of such
tests.
(6) On this occasion, the Ministry of Foreign Affairs wishes to
repeat once again its deep concern at the fact that atomic tests are
about to be begun again in the South Pacific. Chile considers that the
high seas of the Pacific Ocean are a free sea, and therefore that no
State may use them to carry out nuclear experiments nor prohibit the
passage of vessels or aircraft of other States. For that reason the
conduct of the nuclear tests announced by France is contrary to the
norms of international law and they constitute internationally illegal
acts." (Translation.)
10. On 22 July 1973, the Argentine Foreign Ministry issued the following
statement: "The Gov-r~ment of the oeoole .f t.e Areentine Re-ublic is f~7~l~ ~~
con\,inced thai international relation, are passing through a period of
decp transiorniaiion. in which the f~ndaniental basis 1ssllirmed to bc the
principle oico-opcration as oppo$ed 15 poser poliiics.
It belie\es ihat it is thc obligation of al1 Siaie\ to contributc wiihin
thcir possibilities ta accclcrating this process through positive dccds and
avoiding a11actr that caii be considercd ncçaiive.
Likcuisc, the Govcrnmeni of the Argentine pcople considers ihat a
predominant concern of our limes should be to preserve man from the
risk of environmental contamination that might eventually endangcr its
own existence.
In this context, the Argentine Government cannot but express its
concern at the detonation of a nuclear device in the Pacific, ordered by
the French Government.
The reoetition of these experiments has created a areat and arowina
anxiety ;mong neighbouring Latin American cointries ana otheÏ
alïected regions, an anxiety which is shared by the Argentine people, and
towards which thev feel solidaritv.
Moreover, this broblem has been brought to the consideration of the
International Court of Justice which has recently ruled against carrying
out the tests.
For al1 these reasons the Argentine Government expresses its firm
desire that al1 States should put an end to programmes of this nature,
the conseauences of which cannot be considered one wav or another.
as anything but negative elements in the attainment of the-objectives of
peace and universal CO-operation in which we should al1 be engaged."
II. Condemnaiion of the French atmospheric tçst* has îlso corne from
many African couniries. Thus. in Press Rcle~sc 696 oi ihc Nigerian Fedcral
3linistry of Information issucd on 19Junc 1973 itaaq $taled:
"General Gowon obsewed that as a signatory tu the nuclear non-
proliferation treaty and also as a result of our experience of a similar test
in 1961, Nigeria does not support such nuclear tests particularly when
such tests are conducted outside the boundaries of the State undertaking
them."
12. Also in June 1973, the Tanzanian Government issued a statement
condemning French nuclear tests. The statement, as reported in the Daily
News, Dar-Es-Salaam, of 16 June 1973, included the following:
"The Governilient hds isued J sidtcmcnt condcnining French nuclear
atmospheric tests ln othrr pcople'~lands dnd French niil~tdry5upport to
South Africa. the ~inistrvof Ïnformation and Broadcastine. announced
vesterdav ~ ~ .
< ...
The statement says Tanzania condemns strongly such tests 'especially
when thev are done in utter disreeard of world ouhlic ooinion' andadds
'the maticr bccomes even more r~prehensiblc m'henihcic tests are donc
in othcr Dcor>ie's lands where the French peopleare not directly alfecicd'."
13. On 28 August 1973 during a meeting of the UNCTAD Trade and
Development Board, the Kenyan representative, on behalf of the African 370 NUCLEAR TESTS
group of countries members of the ','Group of 77", made a.statement on
atmospheric nuclear tests. The provis~onal summary record States:
"The African Group also warned the internationalcommunity against
oollution caused bv continued nuclear tests in the atmosohere. The fact
ihat countries werétaking care 10conduct such tests far irom their own
territory did not encourage anyone 10believe them when they stated that
fall-oulwas notharmful IO the population of the areas where these tests
were taking place-areas which tended to be developing countries."
(TD/B/SR. 371.)
Asia
14. In Asia, likewise, there have been many condemnations of the recent
atmospheric nuclear lests. It will suffice to record only a few of them.
15. On 6 June 1973 the Prime Ministers of lndia and Australia issued a
joint public communique in which they stated:
"The Prime Minister of Australia informed the Indian Prime Minister
of the strong opposition of the countries of the South Pacific to the
current and proposed programme of atmospheric tests of nuclear
weapons in the area. Both Prime Ministers, mindful of United Nations
endorsement of the partial nuclear test ban treaty, the resolution of the
Uriited Nations Conference on the Human Environment held in Stock-
holm in June 1972, and the resolutions of the United Nations General
Assembly, and of the World Health Assembly, in May 1973, on the
harmful effects of ionizing atomic radiation, reiterated their opposition
to the testing of nuclear weapons in al1environments and in particular to
atmospheric testing by whatever nation."
16. There have been a number of expressions of concern and opposition in
Japan. Thus on 3 July 1973, the following resolution, protesting against
China's nuclear tests and opposing the French tests, was adopted by the
House of Representatives of Japan:
"This House had resolved the following:
This House, considering that Japan is the only atomic-bombed nation,
opposes any nuclear test conducted by any State.
This House strongly protests against China's nuclear test as it will
bring about radio-active fall-out,pollute the atmosphere and ocean,
and destroy the natural environment to a great extent.
This House also opposes the proposed nuclear test in the Pacific by
France.
This House requests the Government that, in view of the expressions
herein, it should oppose the production, testing, hoarding and the use
of nuclear weapons by any State and that il should take a prompt action
to the Governments of China and of France." (Transiarion.)
17. The Government of the Mongolian People's Republic issued the
following statement on 4 Augusts 1973:
"The conclusion of the Treaty Banning Nuclear Weapon Tests in the
Atmosphere, in Outer Space and Under Water was a first step towards
deliverine, mankind from the threat of thermonuclear war. In the
ensuing Gars, theTreaty has no1only playedan important role in curbing
the nuclear arms race and strengthening world peace and international
security, but has contributed to the adoption of subsequent treaties and agreements limiting nuclear armaments. The fact that more than 100
States are now parties to the Moscow Treaty is further evidence of its
tremendous significance and importance.
The Ministry of Foreign Affairs of the Mongolian People's Republic
expresses the hope that the favourable climate which now prevails in
international relations will serve to promote early agreement on the
banning by al1 States of al1 types of thermonuclear tests, including
underground tests.
The Government and ~eo~le of the Mongolian Peo~le's Re~uhlic are
dceply concerncd 21ihc îdci ihai .criin nu~lcar Sinies, in pdriiciilar ihc
People'j Kepublii uf Chind. arc conduciin,: xiii~asphcr~cnucleïr tcsts in
violation of renerallv recognized treatv norms and the ~rinci~les of
international ïaw, and in défiance of word-wide protests, chus contam-
inating the environment with dangerous radio-active substances and
impeding the process of strengthening international peace and security.
On the tenth anniversary of the signing of the Treaty Banning Nuclear
Weapon Tests in the Atmosphere, in Outer Space and Under Water,
the Mongolian People's Republic appeals Io the Governments of al1
States that have not done so to accede without further delay to the
Treaty, which is also in the vital interests of the peoples of those
countries." (UN doc. Al91 17.)
Commonwealth Heads of Covernmenf
18. On 5 August 1973 the 32 Commonwealth Heads of Government
meeting in Ottawa 1 issued the following statement:
"On this, the tenth anniversary of the signing of the treaty banning
nuclear weapon tests in the atmosphere, in outer space and under water,
heads of Government of the Commonwealth, meeting in Ottawa,
reaffirmed their unfailing support for the treaty and their concern Io
ensure its universal observance.
Kcc3lliiig the tcrm, of ilie pre:iiiihlr. to the treaty.
Pri~<lairiiind\ thcir principxl ;iiiithe \peedieïi p~s~iblcachic\cnicni
of an agreement on general and complete disarmament under strict
international control in accordance with the objectives of the United
Nations which would put an end to the armaments race and eliminate
the incentive to the production and testing of al1 kinds of weapons,
i~ ~udineu~~~~e~r wea~. ~.
Seeking to achieve the discontinuance of al1test explosions of nuclear
weapons for al1 time, determined to continue ne~otiations to this end,
and-desiring to put an end to the contamination of man's environment
by radioactive substances,
Commonwealth'Heads of Government appealed to al1 powers, and in
particular the nuclear powers, to take up as an urgent task the negotiation
of a new agreement to bring about the total cessation ofnuclear weapon
tests in al1environments."
The following 32 wuntries were represented at the meeting: Britain, Canada,
Australia, New Zealand, lndia, Sri Lanka, Ghana, Malaysia, Nigeria,Cyprus, Sierra
Leone, Tanzania, Jamaica, Trinidad and Tobago, Uganda, Kenya, Malawi, Malta,
Zambia, The Gambia, Singapore,Guyana, Botswana, Lesotho,Barbados, Mauritius,
Swaziland,Tonga, WesternSamoa,Fiji, Bangladesh,Bahamas.372 NUCLEAR TESTS
Organizalionof African Unity
19. It is also worthy of note that on 25 May 1973 the Heads of State and
Government of African countries assembled in Addis Ababa on the tenth
anniversîry of the Organilation of Africîn Unity adoptcd ;t"Declaraiioii on
Co-operation. De\elopmeni and t'conomic Independence". This Declaration
included the following paragraph:
"Ensure that African countries are always guided by the principles
adopted by the Stockholm Conference on Human Environment."
(OAU doc. CM/STI2IXXI.)
The Declaration was supported by 41 African States.
Conjerenceof the Cornmitteeof Disormament
20. In the Conference of the Committee of Disarmament, a number of
statements by national representatives have been made criticizing the con-
tinuation of atmospheric tests and referring to their illegality. Thus, on
7 August 1973, during a special meeting to commemorate the Tenth Anni-
versary of the 1963 Partial Test Ban Treaty, the Mongolian representative
read out a short statement issued by the Ministry of Foreign Afïairs of the
Mongolian People's Republic on 5August 1973:
"The Government and people of the Mongolian People's Republic are
deeply concerned by the fact that some nuclear States, and in particular
the People's Republic of China, are carrying out nuclear tests in the
atmosphere, in violation of universally recognized treaty rules and
principles of international law, and in defiance of protests by theentire
world community thereby oollutina the atmos~here with danaerous
radio-active subslances, a-nd creatini obstacles t" disarmainent and ihe
strcngthening of intern~tiunïl .;ecurity." (CCDlPV.619, p. 15.)
The Swedish delegate stated:
"Tu.0 nuclear pouers continue to test in the atmosphere in detiance of
the purpose uf the \loscow Treaty. The Suedish Government deplores
this and joins in the ivorld-uideproiests." (Ibrd.. p. 21.)
The Czechoslovak delegate said:
"The recent nuclear tests in the atmosphere, which were rightly
condemned throughout the world, remind us that if mankind is to be
finally freed from the dangerous consequences of nuclear tests in the
atmosphere, it is essential that al1 States which have not yet done so
should accede to the Treaty Banning Nuclear Tests in the Atmosphere,
in Outer Space and Under Water." (Ibid., p. 23.)
The Canadian delegate said:
"... the world is also witness to the fact that two nations continue to
test in the atmosphere, despite widespread concern and despite the very
treaty whose anniversary we are observing today ... My delegation
continues to believe that the nuclear powers which have been carrying
out tests in the atmosphere should stop this particulartype of testing and
associate themselves with the test ban." (Ibid..p.26.)The British delegate said:
"... my Government has repeatedly expressed ifs opposition to al1
nuclear tests in the atmosphere (as well as in outer space and under
water)" (CCD/PV.619, p. 44).
World Heolrh Assembly
21. The final important statement to which reference will be made in this
short survey is the resolution on nuclear testing adopted this year hy the
World Health Assembly.
22. On 23 May 1973, the World Health Assembly adopted a resolution
which exoressed deeo concern at the threat to the health of oresent and future
generations and ai the damage to the human environment uhi;h niight he
expected from any increase in the lcvsl ofionising radiatiain in the atmosphsre,
and urged the immediate cessation of the tests. The text reads as follows:
"The Twenty-Sixfh World Health Assembly:
Conscious of the potentially harmful consequences for the health of
present and succeeding generations from any contamination of the
environment resulting from nuclear weapons testing,
Recognizing that fall-out from nuclear weapons tests isan uncontrolled
and unjustified addition to the radiation harards to which mankind is
exposed,
Expressing serious concern that nuclear weapons testing in the
atmospherehas continued in disregard of the spirit of the Treaty hanning
nuclear weapons testsin the atmosphere, in outer space and under water,
Recalling the constitution of the World Health Organiration and in
panicular the following principles:
(1) that the enjoyment of the highest attainablestandard of health is one
of the fundamental rights of every human being without distinction
of race, religion, politicallief, economic and social conditions; and
(2) that the health of al1 peoples is fundamental to the attainment of
peace and security and is dependent upon the fullest CO-operationof
individuals and States,
Conscious also of the soecial res~onsibilitv of members of the United
Nations family of organizations ta express.their concern, in the areas
coming within their respective competences, about the implications for
present and future generations of mankind of continued nuclear weapons
testing;
Further recalling that the World Health Assembly in resolution
WHA19.39 of May 1966 called upon ail countrics to CO-operate in
oreventine an increase in the level -~ -~~~eround radiation in the
lnterests if the health of the piesent and future-&nerations of mankind,
Noting with regret that al1 States have not yet adhered to the Treaty
banning~nuclear weapons tests in the atmosphere in outer space and
under water, signed in Moscow on 5 August 1963,
Further recalling resolution 2934 A-C (XXVIi) of the United Nations
General Assemblv of 29 November 1972 and Princiole No. 26 of the
Declaration <if the United Nations Conlercnse on the human Cnviron-
ment that man and his cn\ironment niust bc s~ared the eficcts of nucleür
weapons and al1 other means of mass destruction,374 NUCLEAR TESTS
Further noting that certain member States of the World Health
Organization havein severalfora expressedtheiroverwhelming opposition
to nuclear weapons testing and especially ta testing which exposed their
peoples to radio-active fallout,
Further noting and endorsing the views expressed by such bodies as
UNSCEAR and the ICRP that any avoidable increase in the level of
ionizing radiation in the atmosphere is unjustifiable and constitutes a
potential long-term danger to health,
(1) Expressesits deep concern at the threat to the health of present and
future generations and al the damage to the human environment
which might be expected from any increase in the level of ionizing
radiation in theatmosohere. .
(2) Deplores, therefore, ail nucl'earweapons testing which results in such
an increase in the level of ionizing radiationin the atmosphere and
urges its immediate cessation,
(3) Invites the Director-General of the World Health Organization to
bring this resolution ta the attention of the Secretary-General of the
United Nations with a request that he inform ail member States of
the United Nations of ils contents." Annex 10
HUMAN R~CHTS
1. The priinary oblig~iioii i~fSt;itcj in conncction wiih hunidn righis flo\vr
froni Articlei55 and 56 of the Chariçr of ihc Cnitrd Nütions. \\hich contains
comniiinicnt, bindinr far France as .ihlciiiber of ihc Cniied Sstions. One
starts from the obligation placed upon the United Nations generally in
Article 55 to promote "universal respect for, and observance of, human
rights and fundamental freedoms". Thence, one proceeds to the specific
commitment for each Member of the United Nations in Article 56:
"All Members pledge themselves to take joint and separate action in
CO-operation with the Organization for the achievement of the purposes
set forth in Article 55."
2. As will presently beseenenough has happened within the framework of
United Nations activity to dress this bare undertaking with a solid and iden-
tifiable vestment of legal commitment quite inconipatible with con!inued
atmospheric nuclear testing.
3. It is, indeed, nowadays almost impossible to distinguish this general
obligation under the Charter from a concurrent obligation of comparable
content existing iinder customary international law. Respect for human
rights is now part of the fiindaniental structure of that law. lt can indeed be
regarded as one of the peremptory norms of international law ta which
reference is made in Article 53 of the Vienna Convention on the Law of
Treaties. The Court is. therefore, both entitled and bound to assess the
legality of State behaviour against no1 only the traditional content of inter-
national law but also against the emergent standards of international human
rights; and if such conduct fails to meet these standards then it must be
condemned as unlawful.
4. The continuancc of atmospheric nuclear testing infringes fundamental
human rights in a number of specific respects which can be enumérated by
reference to sonie of the principal international texts bearing on the subject.
5. It will be convenient to begin with some reference to the Universal
Declaration of Hunian Rights. 1948. Although the Declaration takes the
form of a resolution of the General Assembly of the United Nations it has
been described by one reccnt coiiimentator in the following terms:
".. .some of ils provisions either constitute general principles of law
(see the Statute of the International Court of Justice, Art. 38 (1) (c)),
or represent elementary considerations of humanity. More important is
its status as an authoritative guide, produced by the General Assembly
to the interpretation of the Charter. In this capacity, the Declaration has
considerable indirect legal efiect and it is regarded by the Assembly and
by some jurists as part of the 'law of the United Nations'." (Brownlie,
ed.,Bosic Doc«mr~rls or! Hltmo~r Righrs(1971). p. 106.)
6. The Declaration contains the following material provisions:
Article 1. "All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act towards one
another in a spirit ofibrotherhood."376 NUCLEAR TESTS
Article 3. "Everyone has the right to life, liberty, and security of person."
Article 5. "No one shall be subjected to cruel, inhuman, or degrading treat-
ment or punishment."
Article 16. "1. Men and woman of full age, without any limitation due to
race, nationality or religion, havethe right to marryandfound a family ..."
"3. The family is the naturaland fundamental group unit of society.and
is entitled to protectionby society and the State."
Article 22. "Everyone, asa member of society, has the right to social security
and is entilled to realization, through national effort and international
co-operation and in accordance with resources of each State, of the eco-
nomic, social and cultural rights indispensable for his dignity and the free
development of his personality."
Article 25. "1. Everyone has the right to a standard of living adequate for
the health and well-being of himself and of his family, including food.
clothing, housing and rnedical care and necessary social services, and the
right to security in the event of unemployment, sickness, disability.
widowhood, old age or other lack of livelihood in circumstances beyond
his control."
Article 28. "Everyone is entitled to a social and international order in which
the rights and freedoms set forth in this Declaration can be fully realized."
7. Tt is virtually self-evident why atmospheric nuclear tests involve a
breach of the rights set out above. In addition to the quite obvious physical
consequences of fall-out, it is impossible to overlook the emotional and
psychological reactions of populations which are or may be affected by fall-
out. The ~hvsical eiTectsof fdll-out have been referred to in the ADDiicütion.
the request.for interim ineasures and the Oral Hearings thereoi.~entio"
was also made of the psychological eiïects. But what cannot be overlooked
is the objective fact, readily apparent from even the most cursory perusal
of the world press, that there is a great deal of public concern and anxiety
about atmospheric nuclear testing. (Thereis some concern, too, about under-
ground testing. But il is small in relation to the fear of atmospheric testing
stemming from the manifestly greater risk involved in il.)
8. This combination of physical and psychological consequences clearly
infringes the specific rights formulated in the Universal Declaration as set
out above. To these rights must be added a number of others which are or
have been elaborated in various international conventions. Although lhese
conventions assuch rnav not be directlv bindine. uoon the oarties in this case.
ihey incorporiie sianda.rds of wch miiiifebt rc~so";lhlenc~s thai they cannol
bc neelccted as elçmcnts in the \au governing the conduci of Stïlcs aliccting
individuals in the territorv of others
9. Thus the lnternatihal Covenant on Economic, Social and Cultural
Rights 1966, contains in addition to provisions which overlap with those in
the Universal Declaration, the following:
Article 12. "1. The States Parties to the present Covenant recognize the
right of everyone to the enjoyment of the highest attainable standard of
.h.sical andmental health.
"2. The steps to be taken by the States Parties to the present Covenant
to achieve the full realization of this right shall include those necessaryfor:
(a) the provision for the reduction of the still-birth rate and of infant
mortaiity and for the healthy development of the child;
(b) the improvement of ail aspects of environmental and industrial
hygiene: (cl the prevention, treatment and control of epidemic, endemic, occupatio-
na1and other diseases. .."
10. Comparable rights have also been recognized at the regional level. The
European Convention on Human Rights 1953, drawing heavily upon the
Universal Declaration, acknowledges the right to life and to security of the
person. Similarly, the American Convention on Human Rights 1969 also
provides for respect for life and specifically stated in Article 5 (1) that
"... every person has the right ta have his physical, mental and moral
integrity respected".
11. The relationship between the protection of human rights and matters
afïecting the environment has been recognized on a number of occasions. As
long ago as 1964 the Asian-African Legal Consultative Committee adopted
at ils Sinth Session a final report on the legality of nuclear tests whicb con-
tained, inter alia, the following conclusions:
"5. Test explosions of nuclear weapons are also contrary to the
principles contained in the United Nations Charter and the Declaration
of Human Rights." (Asian-African Legal Consultative Cornmirtee, The
Legaliry of Nucleur Tests,New Delhi, p. 244.)
The same relationship was emphasized in the Declaration of the United
Nations Conference on the Human Environment adopted at Stockholm on
16 June 1972 (Annex 20 to the request). Thus the las1 paragraph of Part 1
proclaimed, inter alia, that "... both aspects of man's environment, the
natural and the man-made, are essential to his well-being and to the enjoy-
ment of basic human rights-even the right to life itself".
12. Again, in the Principles set out in Part II, the Declaration stated:
Principle 1. Man has the fundamental right to freedom, equality, and
adequate conditions of life, in an environment of a quality that permits
a life of dignity and well-being, and he bears a solemn responsibility to
protect and improve the environment for present and future genera-
fions. ..
Principle 2. The natural resources of the earth including the air, water,
land, flora and fauna, and expecially representative saniples ofnatural
ecosystems must he safeguarded for the benefit of present and future
generations through careful planning or management, as appropriate.
13. Doctrinal opinion is also coming to recognize the close link between
the protection of the environment and the law of human rights. Thus Professor
Paul De Visscher in a study in "La protection de l'atmosphère en droit
international" said, even seven years ago:
"Dans la mesure où la communauté internationale prendra plus
nettement conscience de la ~rimautéde la Dersonne humaine, le problème
de la protection internationale de l'atmosphère devra êtreenvisagéplus
sous l'angle du respect des droits de l'Homme que sous l'angle du respect
des souverainetés étatiques. La reconnaissance du droit à la vie età la
santé nar des instruments internationaux tels aue la Déclaration univer-
selle des Droits de l'Homme et, plus encore, la Convention europknne
de sauvegarde des Droits de 1'Honime et des Libertés fondamentales,
:ippellc logiqiieiiienCI ni'ie\\aircnieni un enseiiihle de iiiesurc5 de
prC\çniion. tic proicitionCI de c<inir6lç desiinéch3 dssurcr. sur le plan
inlernaiionil. une proieali>n PIJScoordonn2r el plus clfiiiice de I'almo-
sphère." (~~heral Report subnzitted tothe 7th International Congress of
Coniparative Law, Uppsala, 1966,at p. 359.) Annex II
1. Article 27 of the draft articles prepared by the International Law
Commission sought to elaborate the concept of the freedom of the seas.This
Article fell to be discussed by the Second Committee of the 1958 Geneva
Conference on the Law of the Sea.
2. On 21 March 1958, Czechoslovakia, Poland, the USSR and Y ugoslavia
tabled a proposal as follows:
"Arricle 27. After Article 27 insert a new article worded as follows:
'States are bound to refrain from testing nuclear weapons on the
high seas'."
(Doc. A/CONF. 13/C.2/L.30, United Nations, Conference on the Law
of the Sea, Oficial Records,Vol. IV,at p. 124.)
3. On 26 March 1958 lndia tabled the following draft resolution:
"The Comniirree,
Recollingthat the Conference on the Law of the Seahas beenconvened
by the General Assembly of the United Nations in accordance with
resolution AIRES1478 of 22 February 1951,
Recognizitigthat there is a serious and genuine apprehension on the
part of many States that nuclear explosions on the high seasconstitute
an infringement of the freedom of the seas,
Recogniringthat the question of nuclear tests and production is still
under review by the General Assembly under various resolutions on the
subject and by the Disarmament Commission and is at present under
constant review and discussion by the governments concerned,
Considersthat it is not necessary to prescribe any rule relating to
nuclear tests on the high seasand that this matter should be left to the
decision of the General Assembly." (United Nations doc. A/CONF/13/
C.2lL.71, Oficial Records,Vol. IV, at p. 134.)
4. On the following day, lndia submitteda revised draft resolution which-
(i) altered the reference to the General Assembly resolution in the first
paragraph to the General Assembly resolution Il05 (XI) of 21 February
1957, and
(ii) deleted from the last paragraph the words "considers thdt it is no1
necessary to prescribe any rule relating to nuclear tests on the high seas",
leavinginsreadand amending the remaining words to read: "Decides to refer
this matter to the General Assembly for appropriate action."
5. On 28 March 1958 these proposais came before the Second Committee
of the Conference, which decided to put them to the vote before Articles 26
and 27 of the Commission's draft. The Indian proposal was voted on first
and was adopted by 51 voies to I with 14 abstentions. It was then decided
that the four-~ower ~ro~osal should not be ut to the vote
6. The ~oljsh dejegaie explained why h;s delegation had abstained from
voting on the Indian draft resolution, saying (as reported in the summary "that the attitude of his Government in the matter-namely, that
nuclear tests should be prohibited-was generdlly known. The Con-
ference should. however, establish the fact that nuclear tests were not in
conformity with international law, and should not refer the problem
back to the General Assembly" (ibid.at p. 52).
The Czechoslovak, Bulgarian, Romanian and Soviet delegates also explained
their abstentions, the first power in terms which made it quite clear that it
regarded nuclear testing on the high seas as contrary to international law.
7. The Indian delegate, in explanation of his vote said:
"rt was well known that the Indian Government and Parliament were
in favour of complete cessation of nuclear explosions, which were a
crime against humanity." (Ibid.,at p. 45.)
8. The Soviet delegate, Professor Tunkin, said that the Soviet delegation-
"believed that the Conference should deal with the question of nuclear
tests and should adopt a positive rule, arising from the principle of the
freedom of the high seas, which would prohibit such tests. Mere state-
ments were not enough, and the U.S.S.R. had always advocated taking
concrete steps." (Ibid.,at pp. 52-53.)
9. The four-power proposal was re-introduced at the tenth plenary
meeting of the Conference on 23 April 1958.
10. On that occasion the Soviet delegate, Professor Tunkin said:
"that his deleeation had ioined with others in submitting the ~rooosal
in the belief that such a proposal was a logical consequence of the défini-
tion adopted in Article 27" (ibid.,at p.22).
11. In sunoortine the orooosal. the Czechoslovak deleeate. -.. Zourek.
said that h'i; delegation'ha'd joined in sponsoring the proposal becausé
nuclear tests were the most dangerous threat to the freedom of the hiah seas
since that orinciole had received-general recoe..tion.Therecould be nodoubt
that such icsis \\cre a ilagrûni violaiiun of the frcedom enunctstcd in Article
27, ihnt ihey closed vasr sreas to navigation and fi\hing and aciuld, according
to the exoerts. endaneer neiehbourine oo-.lat.ons. seafarers and the livine -
resources'of the sea ($id.,p.23).
12. The delegate of Poland (Mr. Ocioszyinsky), who also supported the
proposal, stated that-
"ohviously, nuclear tests on the high seas and the institution of pro-
hibited zones were a violation of the freedom of the seas and a threat to
seafarers and the living resources of the sea" (ibid.pp. 23-24).
13. Other speakers, who also expressed the view that nuclear testing on the
high seas was unlawful, were the representatives of India, Ceylon and the
United Arab Republic (ibid.,pp. 23 and 24).
14. The four-power proposal was not put to the vote. The draft resolution
submitted by the Second Committee was adopted by 58 to Owith 13 absten-
tions.
15. This episode can be looked at in a number of ways which individually
and cumulatively convey the strongest impression that every maritime nation
has a sufficient interest and right to assert the illegality of nuclear testing as a
violation of the freedom of the seas.
16. The resolution was adopted in connection with and in the context of a
provision in the High Seas Convention which was manifestly intended to380 NUCLEAR TESTS
codify a basic right of al1 States regarding the permissible user of the high
seas.
17. There is absolutely nothing in the record of the discussion to suggest
that there was in the mind of any Stafe the idea that freedom of the high seas
from nuclear testing was a right which could only be asserted by a State
specifically and directly affected by such testing; and this is especially true
of the speeches of those who opposed the four-power proposal.
18. Furthermore, the very wording of the resolution runs counter to any
assertion of the relevance of a narrow concept of interest. It recognizes
ex~resslv "that there is a serious and genuine ao~rehension on the Dart of
many scates that nuclear explosions conititute aninfringement of the fieedom
of the seas". If this apprehension "on the part of many States" is sufficient
to iustifv the adootion of a resolution of this characteforriorieach of the
tat t eoncerned'has a sufficient individual interest to issert its interest in
the freedom of the seas.
Memorial on Jurisdiction and Admissibility submitted by the Government of Australia