Written Replies of New Zealand to Questions put by Judges

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13321
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Date of the Document
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NEW ZEALAND EMBASSY
THE HAGUE

TELEPHONE: !0701 34693 2.1 c.:...R~C·.J~0ELAAN
FAX: (070; 363 29 83 :51-'\i~E HAGLE
'"i'<EriERLA~CS
15 September 1995

The Registrar

International Court of Justice
The Peace Palace

THE HAGUE

Your Excellency

I enclose the answers of New Zealand to the questions it was asked on Tuesday,

12 September 1995, in the course of the public sittings relating to the New Zealand
Request for an Examination of the Situation in accordance with Para!.!raph 63 of the

Court's 1974 JudQment in the case concerninll Nuclear Tests (New Zealand v France).

D JMacKay
Co-Agent ofNew Zealand

'.' !
~ 1
reg REPL Y OF NEW ZEALAND TO
JUDGE SCIDVEBEL'S FIRST QUESTION

The Question:

Paragraph 63 of the 1974 Judgment provides that "if the basis of the
Judgment were to be affected, the Applicant could request an examination
of the situation inaccordance with the provisions of the Statute." What

meaning is to be given to the words "in accordance with the provision of
the Statute"?

The Answer:

1. The terms of the 1974 Judgment are to be interpreted by analogy

with the principles applicable to the interpretation treaties, as set out in

Article 31 of the Vie1maConvention on the Law of Treaties. Thus, the

Judgment must be read in good faith in accordance with the ordinary

meaning to be given to its terms in their context and in the light of its

object and purpose.

2. New Zealand notes that, as used in paraf:,rra63, the expression ··in

accordance with the provisions of the Statute" could qualify or condition

either the word "request" or the words "an examination of'. Thus, in the

fust alternative, the correct reading the whole phrase would be: "... the

Applicant could request, in accordance with the provisions of the Statute, 2

an examination of the situation". If this had been the intention of the

Court, obviously it could easily have said so - in just that way. But it did

not.

3. Instead the Court added the words "in accordance with the

provisions of the Statute" at the on1yplace in which they could be located

if it had been the Court's intention to use them in relation to the second

alternative, the idea of "examination of the situation". The position is the

same inthe French version of the paragraph.

4. An additional important literai and grammatical indicator that the

Court had in mind the second alternative is that the words "in accordance

with the provisions of the Statute" are immediately followed not by a full

stop and a new sentence, possibly containing a different thought, but by a

semi-colon introducing a dependent clause. This clause refers to an aspect

of the jurisdiction of the Court - a matter which is, of course, regulated by

the Statute, Article 36. This emphasises that the words "in accordance

with the provisions of the Statute", involving as they also do questions of

jurisdiction, are related to "an examination of the situation" rather than to

the form of the "request".

Answer2..

3

5. Thus, it is the second alternative - that which must be "in

accordance with the provisions of the Statute" is the "examination of the

situation"- that should be looked at more closely.

6. New Zealand has, from the commencement of its initiative in the

present phase of these proceedings, acted on the basis that the procedure

which both it and the Court must follow is one that adheres as strictly as

possible to the prescriptions of the Statute and the Rules of the Court. It

is, of course, true that there is no express provision in the Statute to

support the course for which the Court provided in paragraph 63.

However, it cannot be concluded that the Court therefore acted illegally or

without purpose. As New Zealand has pointed out on several occasions,

the Court was acting in the exercise of its inherent power, derived from its

very existence under Article 1 of the Statute as "the principal judicial

organ of the United Nations", from the fact that it is its duty, under Article

38(1) of the Statute, "to decide in accordance with international law such

disputes as are submitted to it''and from the power granted to it in Article

48 to make orders for the conduct of the case.

7. But the fact that the Court exercised its inherent or reserve powers

under the Statute to provide for the continuity mentioned in paraL,'Taph63

Answer2 4

does not mean that the Court's procedures thereafter were themselves to

be freed from regulation by the Statute and the Rules. Itis the view of

New Zealand that when the Court in 1974 used the words "an examination

of the situation in accordance with the provisions of the Statute", it meant

that, if the circumstances contemplated in the words "if the basis of the

Judgment were to be a:ffected" should arise, New Zealand should, hanging

its request upon the very terms of paragraph 63 itself, do exact!y what that

paragraph said, namely, "request an examination of the situation". Having

regard to the manifest connection between the request and the terms of the

1974 Judgment of the Court, the Court would then receive that request and

process it in the same manner as it would any other request or application

made to it by a State Party to the Statute. It would not in any way be

influenced by the recollection that it had on occasion dismissed without a

hearing applications which themselves expressly acknowledged that they

had been made in the absence of any jurisdictional Iink·with the named

Respondent State. The Request would then be dealt with in a procedurally

predictable way. If there were no request for interim measures of

protection, the Court would proceed forthwith to make an order for such

written or oral proceedings on the matter as it might deem appropriate. If

France were to think that the Court lacked competence or jurisdiction to

deal with the matter it would either appear and so argue, just as it was to

Answer2 5

do on 11 and 12 September 1995, or it would refrain from attending and,

as a non-participant, could send a letter or memorandum just as it did

when the case was started in 1973.

8. The Court would then hear the case "in accordance with the terms

of the Statute". Either it would sustain the French objections, in which

event the proceedings would come to an end, or it would reject them and

the case would proceed in the normal way. The situation thus parallels in

procedural terms a case in which an issue of jurisdiction might be raised,

whether by the Respondent State or, in its absence, by the Court itself.

9. The fact that the imminence of the resumption of testing by France

might oblige New Zealand to request provisional measures of protection

would make no difference to the basic procedural situation. The request

for provisional measures would merely raise more immediately the same

question of competence or jurisdiction. The Court has a well-established

practice for resolving threshold question of jurisdiction or competence at

the provisional measures stage and that practice could be followed.

France could abject to the jurisdiction -as it did in May 1973 - and the

Court could then decide whether or not jurisdiction exists prima facie. The

Statute provides in Article 41 for a Request for Provisional Measures and

Answer2 6

the Rules provide that such a request shaH have priority over ali other

cases and shall be treated as a matter of urgency.

10. There exists, therefore, a clear set of prescriptions enabling the

Court to examine the situation in accordance with the provisions of the

Statute. In the submission of New Zealand it was this kind of predictable ·

procedure, founded in the Statute and its subordinate Rules, to which the

Court in 1974 was referring by the use of the words "in accordance with

the provisions of the Statute" in paragraph 63.

Answer2 REPLY OF NEW ZEALAND
TO JUDGE SCHWEBEL'S SECOND QUESTION

The Question:

After the rendering of the Judgment of the Court in the Nuclear Tests case
in 1974, and before June 1995, did New Zealand indicate, and, if so, how,

that it understood the 1974 Judgment to relate to the possibility of nuclear
contamination deriving from nuclear tests other than atmospheric tests? It
is appreciated that the statement by the Prime Minister of New Zealand of.
21 December 197 4 is relevant to this question.

The Answer:

1. Immediate!y after the Judgment of 20 December 197 4 the Court's

judgment was analysed with great care by the Government lawyers, and

careful note was taken ofparagraph 63. The New Zealand Prime Minister

referred express!y to paragraph 63 in his statement of 21 December 1974.

As he said:

"... New Zealand's concem about nuclear testing had never been

confined to the particular case of the tests conducted by France - or,

indeed, to the question of testing in the atmosphere." 2

2. This wider concem had been clear from New Zealand's Application

and had not been addressed in the Judgment; hence the Prime Minister,

having referred expressly to paragraph 63, commented that the Judgment

achieves "in large measure the immediate object for which these

proceedings were brought" (emphasis added).

3. New Zealand did not expressly state, for the public record, that

paragraph 63 would, or could, be utilised in respect of future non-

atmospheric nuclear testing. Until such time as New Zealand had

evidence that a clear risk of nuclear contamination was created by such

testing, a statement of that kind rnight have been seen as provocative and

irresponsible. Such evidence as New Zealand has is of relatively recent

ongm. The Court in paragraph 63 placed no limit of time on New

Zealand's rights.

4. But New Zealand continuously sought information, or evidence,

from France in bilateral, regional and multilateral contexts. Those requests

include the following:

3 December 1979 Request by New Zealand Minister of Foreign
Affairs during meeting in Paris with French
Foreign Minister

22 April1980 Request to France to allow visit to Mururoa

Answer 3

test site by New Zealand scientists

9 December 1981 Further request for information

24 March 1982 New Zealand request for independent
verificationof French safety-measures

23 August 1982 New Zealand repeated request for access to
site by New Zealand scientists
(Atkinson visit allowed October/

November 1983)

25 November 1986 Noumea Convention signed following negotiations
over sorne years involving New Zealand and France

and other South Pacifie States

There were no tests between July 1991 and September 1995, a period

largely covered by the moratorium on testing. New Zealand has never

regarded the few visits of independent scientists (Tazieff, June 1982;

Atkinson, October/November 1983; Cousteau, June 1987) as reliable

evidence, one way or the other. Vincent's article, renewing fears for a

release of radioactive material was published only in July 1995.

5. From this record it will be clear why New Zealand did not have the

evidence to justify a public threat of renewal of its case against France

under paragraph 63. And it is for this reason that, even today, New

Zealand seeks in the alternative to have the Court require France to carry

out an Environmental Impact Assessment.

Answer 4

6. There can be no question of"acquiescence" by New Zealand during

this period. The record contains repeated protests by New Zealand and, of

course, the 1986 Noumea Convention was also inlarge part based on the

concems of New Zealand and other South Pacifie States over the French

underground testing.

Answer REPLY OF NEW ZEALAND TO JUDGE SHAHABUDDEEN'S

FIRST QUESTION

The Question:

Bearing in mind that France has withdrawn her optional clause declaration
and has denounced the 1928 Treaty:

(a) Would a request for an examination of the situation within the
meaning of paragraph 63 of the 1974 Judgment extend to include a request
for reliefs in respect of the current series of nuclear tests, such as

declarations as to their legality?

(b) Or, would the abject of such a request be limited to a reopening of

any issues which were before the Court in 1974 and securing their re­
examination in the light of the new situation')

The Answer:

1. Itshould be recalled that the Court in 1974 did not reach the point

of examining the issue of the illegality of nuclear testing that was raised by

New Zealand in its Application of 9 May 1973. The only issues

considered by the Court were, in 1973, that of interim measures of

protection and, in 1974, those of jurisdiction and admissibility.

2. In the view of New Zealand, when the Court contemplated that the

basis of the Judgment might be affected by sorne subsequent development

Answer3b 2

and that the Applicant cou1dthen request an examination of the situation in

accordance with the provisions of the Statute, it could not have been on

the basis that the Applicant could not ask the Court to provide, in

accordance with the provisions of the Statute and the Rules, sorne relief

responsive to the new sihtation. It is not conceivable that the Court would

have intended to provide New Zea1and with an opportunity to do no more

than request the Court to examine the situation in abstracto.

3. As paragraph Ill of the main Request indicates, New Zealand had

contemplated that once the Court had examined the situation it should

make appropriate procedural orders in respect of the New Zealand

application of May 1973 with a view to according New Zealand the relief

referred to in paragraph 113 of the main Request. As a matter of priority

and urgency, however, New Zealand would first be requesting provisional

measures to protect its rights.

4. As the Court could not, in 1974, have foreseen all the circumstances

rn which New Zea1and might have to request an examination of the

situation, it wou1d have been impossible for the Court to have been

specifie in its statement of the remedies New Zealand might seek without

taking the risk that it might omit a possibly pertinent contingency. In line

Answer3b 3

with the policies of pmdence and of protection of the rights of an applicant

under the Statute to seek appropriate relief, the Court included paragraph

63. To ensure its effectiveness it maintained its generality.

5. New Zealand proceeded on this assumption rn formulating the

request for relief that appears in paragraph 113 of the main Request. At

the same time, New Zealand took care to remain within the scope of the

Application of9 May 1973. The request made in that Application was:

"...New Zealand asks the Court to adjudge and declare: That the

conduct by the French Govemment of nuclear tests in the South
Pacifie region that give rise to radioactive fallout constitutes a
violation of New Zealand's rights under international law, and that

these rights will be violated by any further tests."

6. The difference in wording between this request for relief and the one

which appears in paragraph 113 of the main Request is to be explained as

follows:

(i) The relief requested in paragraph 113 is prospective only from the

date of the Request. That sought in May 1973 was both prospective

and retrospective;

(ii) While the terms of the May 1973 Application referred to

"radioactive fallout", the main Request refers to "radioactive

Answer3b 4

contamination". This is simply a more appropriate expression of the

result of the leakage or spread of radioactive material through water

into the marine environment whether in large or small quantities;

(iii) The expression in the main Request of the rights of other States, in

addition to New Zealand, that would be violated was descriptive of

the likely situation, but did not limit the assertion of New Zealand's
...

own rights~

(iv) The references, in sub-paragraph (ii) of paragraph 113 of the main

Request, to the carrying out by France of an environmental impact

assessment has been seen by New Zealand as a specifie step falling

short of an immediate determination by the Court that the proposed

tests would violate New Zealand's rights under international law. It

was intended to enable the Court to provide France with an

opportunity to carry out a proper Environmental Impact Assessment

in accordance with international standards and, if such an

assessment were to establish that the tests would not give rise,

directly or indirectly,to radioactive contamination of the marine

environment, then France would, in effect, no longer be enjoined

from conducting the proposed tests.

Answer3b 5

7 According to New Zealand's understanding of the process that

would follow the Court's examination of the situation, the Court would

provide relief appropriate to the facts (including the possible physical

consequences of the resumed nuclear tests) and in accordance with the law

(including aspects of intemational environmental law which have

developed since 1974). That is to say, sorne of the matters of fact and law

would be such that they could not have been brought before the Court in

1974 tey would still fall within the scope of the 1973 application. The

answer to Judge Shahabuddeen' s second question is pertinent to the issues

raised in this paragraph.

Answer3b REPLY OF NEW ZEALAND TO JUDGE SHAHABUDDEEN'S
SECOND QUESTION

The Question:

I understand New Zealand's position to be that the precautionary principle
became part of customary international law after the Judgment was given on
20 December 1974. Can the Court now act on the basis of law which was

notin existence on that date?

The Answer:

1. The answer is Yes. The Cou11 can act on the basis of law which was

not in existence on the date of the Judgment, or indeed on 9 May 1973, the

date the Application was filed.

2. The principal reason for that answer is that the conduct which is the

subject of the Application and, accordingly, of the Request for an

Examination of the Situation is continuing and proposed conduct (see

especially the submission at the end of the Application, 1.C.J. Pleadings,

Nuclear Tests Vol II, p9 (parat,rraph 28), and paragraphs 1, 112 and 113 of

the Request). Similarly the Court in its 1974 Judgment emphasized the

concem of New Zealand with further tests (see paragraphs 31, 33, 54

Q4.DOC 2

("there is no occasiOn for a pronouncement m respect of rights and

obligations of the Parties concerning the past"), 57 and 59).

3. The lawfulness or unlawfulness of conduct must be detennined by

reference to the law in force at the time of the conduct, in this case conduct

occurring in 1995 and 1996. If for the sake of argument France had become

party to the Partial Test Ban Treaty after the commencement of the case or

the Judgment of 20 December 1974, can there be any doubt that the Court

would have assessed the legality of its conduct after that accession by

reference to those treaty obligations?

4. The answer of course applies on!y to the issues which are still at large

following the Judg:ment of 20 December 1974. The matters decided by that

Judgment are res judicata. They cannot be questioned. · But the matters

decided by that Judg:ment fall within a very narrow compass. They do not

include the central matters raised by the 1973 application- including the

unlawfulness of French nuclear testing which causes the contamination of

the marine environment, by the addition of artificially created radioactive

material. These matters can be brought back to the Court under the

provisions of paragraph 63.

Q4.DOC 3

5. The applicable law is to be determined by reference to the critical

date, a date which has nothing at ali to do with the date the case was

initiated. Thus the date of the Application or the Special Agreement

initiating the proceedings and the date of the law to be applied by the Court .

are two completely distinct matters. That is clear for instance for many

territorial disputes when the date on which the jurisdiction of the Court is

established or when the Court is seized with a matter may be decades or

even centuries after the date of the law which is to be applied.

6. The principles 1mderlying the developing law relating to the

environment were weil established when the Application was filed on 9 May

1973. Among these principles are those developed in the Stockholm

Declaration on the Human Env1ronment \vhich was annexed to the 1973

Request for the Indication of Interim Measures and those developed by the

International Commission on Radiological Protection, referred to in

paragraph 24 of the 1973 Application, I.C.J. Pleadings, Nuclear Tests, Vol

II, pp79 and 7.

Q4.DOC 4

7. It is inconceivable, New ZeaJand submits, that the Court would

decide a case relating to conduct affecting the environment in 1 995 other

thanbyreference to the law of 199 5.

Q4.DOC 'f.

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REPLY OF NEW ZEALAND TO
JUDGE KOROMA'S QUESTION

The Question:

New Zealand contends that its Request for an Examination of the Situation

in accordance with paragraph 63 of the Court' s 1974 Judgment is not an
application for revision, as the Request is not in relation to new facts
within the context of Article 61 of the Statute, but relates to new events.

I would welcome further clarification on the difference or differences
between an application based on Article 61 of the Statute and the present

Request by New Zealand.

The Answer:

1. When New Zealand decided that it was necessary to request the

Court to resume its consideration of the case begun in 1973 and suspended

in 1974, it,of course, thought carefully about the proper fonn of such a

request. The only fonns of initiating proceedings in the Court that are

expressly referred to in the Statute are those mentioned in Article 40,

Article 60 and Article 61.

2. New Zealand took the VIew that none of these forms was

appropriate. New Zealand considered that it had not been the intention of

the Court that New Zealand should have to attempt to squeeze a request

for an examination of the new situation into the straight-jacket of an

application instituting new proceedings or of an application for•.
2

interpretation or revision. It seemed to New Zealand that the Court was

breaking new ground in opening up the right to return to the Court if the

basis of the Judgment were to be affected. Just as the Court had the

inherent right under its Statute to establish the possibility of continuance

that it envisaged in paragraph 63, so equally the Court had the right to

accepta request from New Zealand thus to retwn in a form not specifically

laid down in the Statute.

3. In any case, as is made clear in New Zealand's reply to Judge

Schwebel' s fust question, the reference in paragraph 63 to "in accordance

with the provisions of the Statute" must refer, not to the manner of making

the request, but to the procedure for .examining the situation, to the

situation thereafter, and to the question of the Court's jurisdiction. This

point is also touched on in the answer to the first question by Judge

Shahabuddeen (para. 3).

4. That is not to say that New Zealand could not have framed its

request in terms of an application under Article 40, invoking the same

jurisdictional grounds as it did in the original application of May 1973,

coupled with the extension in time and operation thereof accorded by the

reference in paragraph 63 to the ineffectiveness, in this connection, of the

Answer5..
3

French denunciation of the 1928 Geneva Act. In logic, what the Court

said about the General Act should equally apply to the French Declaration

under the Optional Clause.

5. Nor is it excluded that New Zealand could have framed its request

in terms of an application for interpretation under Article 60 of the Statute.

It is quite evident that the argument that has been conducted before the

Court in recent weeks has centred on the meaning to be accorded to

paragraph 63 of the 1974 Judgment.

6. The question which the Court conveyed to the Parties on 8

September 1995, and within the framework of which the hearings of 11

and 12 September have been conducted, asked whether the Requests

submitted by New Zealand "fall within the provisions of paragraph 63" of

the 1974 Judgment. The precise way in which New Zealand identifies the

manner in which its Requests fall within the provisions of paragraph 63

should not be regarded as of controlling importance. As the Court has

often said, it does not attach dominant importance to matters of fonn.

Sorne may take the view that the correct way to implement paragraph 63 is

the one which New Zealand has actually followed; others may see it as a

matter for an application under Article 40, with jurisdiction resting on the

Answer5•
4

basis mentioned in paragraph 4 above; yet others may see it as a case for

interpretation under Article 60. But the one thing that is clear is that in

paragraph 63 of the 1974 Judgment the Court did something that cannot

now be denied effect solely by reference to a purely fonnal consideration

that does not alter the essential substance of the matter. In paragraph 63

the Court made a certain promise which New Zealand is entitled to invoke.

The form in which the promise is invoked is subsidiary, provided that the

substance of the request falls within the scope of the words "if the basis of

this Judgment were to be affected".

7. Therefore, without in any way resiling from its view that the fonn in

which it bas expressed its request for an examination of the situation is

correct and sufficient, New Zealand must emphasise that the dominant

question before the Court is the substance of the Request and that the

Members of the Court remain free to approach the Request for an

Examination of the Situation from any point of view that they wish,

provided that they ultimately reach agreement upon the main question

which is: "Ras the basis of the 1974 Judgment been affected by the facts

and developments set out in the main Request and elaborated in the oral

proceedings just concluded?" So to approach this matter would not g]ve

rise to a situation of ultra petita.

Answer5..
5

8. Having explained the background in this way, New Zealand can

now turn to the specifie question put by Judge Koroma. There is one

approach to the matter that may not properly be adopted, namely, that the

New Zealand request is really an application for revision - or at any rate a

request for revision within the scope of Article 61 of the Statute. ln 1974

the Court was of course fully aware that Article 61, paragraph 5, of the

Statute excluded any application for revision after a lapse of ten years from

the date of the judgment. There was no reason why the Court would have

wished to limit the eftèctive duration of the French undertakings to ten

years. Indeed, the sarne point can be put positively: there was good

reason why the Court should not wish to limit the effective duration of the

French undertakings to ten years. That reason was that the Court could

not have been certain in 1974 that the situations in respect of which it was

seeking to protect New Zealand in paragraph 63 would necessarily occur

(if at ail) within ten years.Itis also relevant to this matter that the Court

made an express findiag "that the unilateral undertaking resulting from

these statements cannot be interpreted as having been made in implicit

reliance on an arbitrary power ofreconsideration" (paragraph 53).

Answer5•
6

9. This factor - the known existence of the time limit in Article 61 - 1s

itself afull and sufficient reason why the Court must in 197 4 tacitly have

excluded the idea of resumption via the route of revision. In the

circumstances, if the Court had wished to place a time limit upon the

operation ofparagraph 63, it could easily have said so by expressing itself

in different and clearer language. Instead of saying that "the Applicant

could request an examination of the situation" it could have said that "the

Applicant could apply for the revision of the Judgment". The obvious

inference of the Court's not having said so is that it foresaw a different

mode of proceeding.

10. The reply to the second paragraph of Judge Koroma's question is

that revision as prescribed by Article61 is available "only when it is based

upon the discovery of sorne fact.... which fact was when the judgment was

given unknown to the Court..." (emphasis added). These words stipulate

that the fact giving rise to the request for revision was one in existence at

the time of the Judgment, but undiscovered and unknown.

11. Paragraph 63 1s rather concerned with authorising further

consideration of the subject matter of the case if a future event having the

effect described in the paragraph occurs a:fter the Judgment. Such new

Answer5 7

facts would not be within the scope .of an application for revision under

Article 61.

13. The difference can be demonstrated by assuming that subsequent to

delivery of the 1974 Judgment France recommenced atmospheric testing.

Such a new fact would not have fit the requirements of Article 61. News

of it would not be a "·discovery" of a matter in 1974 "unk:nown" to the

Court. And it is "only" in that situation that Article 61 applies. Paragraph

63 however is drafted to cover such future conduct, indeed any future

actions by France such as would affect the basis of the judgment.

Answer5....
REPL Y OF NEW ZEALAND TO
JUDGE WEERAMANTRY'S FIRST QUESTION

The Question:

What are the principal radioactive wastes resulting from a nuclear

explosion? What is the halflife of each of them?

The Answer:

The following table lists all of the radionuclides produced by an

underground nuclear explosion that have a half-life of greater than four

hours. The table lists the name of the element, the specifie radionuclide,

the half life of that radionuclide, and the method of formation of the

radionuclide.....

1
Element Radionuclide Half-life Origin
Tritium 3H 12 years fission. fusion, activation
Sodium 24Na 15 hours activation
36CI
Chlorine 300,000 years activation
Manganese 54Mn 313 days activation
ssFe
Iron 2.7 vears activation
Iron s~e 45 days activation
Cobalt 60Co 5 years activation
85"'Kr
Krypton 4.5 hours fission
Krypton 85Kr 10.8 years fission
S9Sr
Strontium 90 54 days fission
Strontium Sr 29 years fission
Yttrium 91y 59 days fission

Niobium 9sm 35 davs fission
Zirconium 9szr 64 days fission
97zr
Zirconium 17 hours fission
Molybdenum ~0 2.9 days fission
Technetium ~c 210,000 years fission
1oJRu
Ruthenium 39 days fission
Ruthenium ~~u 372 days fission
1osRe
Rhenium 35 hours fission
Antimony 125Sb 2.7years fission
Tellurium ~~e 34 days fission
1291
lodi ne 16 million years fission
lodi ne 1311 8 days fission
1331
lodi ne 21 hours fission
Xenon IJimxe 12 days fission
Xenon IJJmxe 2 davs fission
133
Xenon Xc 5 davs fission
Xenon IJSXe 9 hours fission
135
Caesium Cs 3 million vcars fission
Caesium 137Cs 30 years fission
Barium I40Sa
13 davs fission
Cerium 141Ce 33 davs fission
Cerium t43Ce 33 hours fission
I44Ce
Cerium 285 days fission
Neod_ymium I47Nd Il days fission
tssEu
Europium 4.8 vcars fission
Uranium 235u 700 million years weapon
Uranium mu 7 days
23su activation
Uranium 4.5 billion years wcapon
Neptunium 237NJl 2 million vears activation

Neptunium 23~p 2.4 davs activation
Plutonium 238Pu 86 years activation
23~
Plutonium 24,000 vears weapon
Plutonium 24~ 6540 years weapon, activation
Plutonium 241Pu 15 years weapon. activation
241Am
Americium 433 years wcapon

1
The origins of the radionuclides are as follows:
activation: the element was formcd by neutron irradiation of matcrials in the wcapon

or the surroundings
fission: the element was formed by fission of uranium or plutonium in the primary
(fission) stagef the weapon

fusion: the element was formed by fusion in the sccondary (thcrmonuclear) stage of
the weapon
weapon: the clement was part of the primary material of the weapon REPLY OF NEW ZEALAND TO

JUDGE WEERAMANTRY'S SECOND QUESTION

The Question:

Are there intemationally accepted criteria for the selection of geological

repositories for radioactive wastes? If so, please list them briefly.

The Answer:

Part 1.

1. The International Atomic Energy Agency Safety Standard "Safety

Principles and Technic;alCriteria for the Underground Disposai ofHigh

Level Radioactive Wastes" (Safety Series No. 99, 1989 ) is the

intemationally agreed document which defmes technicat criteria for the

underground disposai of high level wastes. (It is this type of waste that

most closely approximates to the radioactive debris resulting from an

underground nuclear test.)

2. The safety of a waste disposai repository depends not only on the

barrier to movement of radioactive material inherent in the geological

repository site itself but also on barriers determined by:

This document is being superceded by a number of more detailed studies. including the one
cited in Part 2 of this answer. Nevertheless, the criteria it specifies are still relevant to the selection of
a waste disposai system. 2

the physical form of the waste;

the containers in which the waste is placed;

the method used to seal the waste containers; and

the physical and chemical properties of the rock and surrounding

geological formations.

The IAEA document lays down technical criteria for each ofthese.

3. Because high level wastes present a potential hazard for very long

times and because the difficulty of long term predictions may lead to large

uncertainties, it is necessary that the safety of waste disposai does not rest

on one single component or barrier, but rather on the combined

effectiveness of ali of them. It may be that a weakness in one part of the

overall system may be compensated for by the containment capabilities of

other parts. Thus, the component parts of the waste dispos al system must

be considered as a whole; the characteristics of the repository site itself are

not the sole determinant.

4. We nevertheless confme ourselves to answering the question posed

by listing only the technical criteria relevant to the selection of the waste

repository site itself. 3

Criterion No. 1: Overail systems approach

The long term safety of high leve/ radioactive waste disposai shall

be based on the multibarrier concept, and shall be assessed on the

basis of the performance of the disposa/ system as a whole.

Criterion No. 5: Repository design and construction

A high level waste repository shall be designed, constructed,

operated and closed in such a way that the post-sealing safety

functions of the host rock and its relevant surroundings are

preserved.

Criterion 7: Site geology

The repository shall be located at sufficient depth to protect

adequate/y the emplaced wastefrom extemal events and processes,

in a host rock having properties that adequate/y restrict the

deterioration of physical barriers and the transport of

radionuclides from the repository to the environment. 4

New Zealand comment:

The IAEA observes with respect to this criterion that

The location of the waste repository is of great importance to its

long term safefunctioning. The size of the selected host medium

shall be large enough to accommodate the repository and that part

of the surrounding medium which is necessary for safety.

The most likely way radionuclides can migratefrom the repository

to the biosphere is by groundwater transport. For that reason,

special emphasis must be placed on the hydrogeological and

geochemical transport of the host medium to restrict nuclide

transport by groundwater.

It is evident from this observation that Mururoa atoll fails to meet the

standard laid down inthis criterion.

Criterion No. 8: Consideration ofnatural resources

The repository site shall be selected, to the extent practicable, to

avoid proximity to valuable natural resources or materials which

are not readily available from other sources. 5

Part2

5. The International Atomic Energy Agency Safety Guide "Safety of

Geological Disposai Facilities" (Safety Series No. 111-G-4.1, 1994)

specifies more detailed criteria to be used in selecting sites for the disposai

ofhigh level radioactive wastes (known as high-level wastes). Relevant

extracts from this report follow.

General

401. Owing to the predominance offactors and processes which

may be highly site specifie and interactive, only general guidelines

can be identified that will govern the suitability of potential sites to

host a repository..... ft is necessary, therefore, that implementation

ofthese guide/ines and the development of any subsidiary criteria

in a siting process be done in consideration of long term safety,

technicalfeasibility and social, economie and environmental

concems. Critena so developed should translate techmcal and

institutional concerns into practical measures. 6

402. Guide/ines can be helpful in the overall decision making

process but they are not intended to be strict preconditions. To

assess whether a disposa! system meets itsperformance goals, the

system ofnatural and engineered barn·ershas to be considered as

a whole. Flexibility in the disposai system is important and the

possibility to compensate for uncertainties in the performance of

one component byplacing more reliance on another should be

retained.

403. Thefollowing text provides an example of the different siting

factors that will have to be considered in a siting process. They

are not meant to be a complete set of guide/ines and their

application will have to take into account the options availahfe and

the limitations within each country. Further, these guide/ines

should not be applied in isolation but willhave to be used in an

integrated fashion for an overalf optimisation of site selection. 7

GEOLOGICAL SETTING

404. Guideline:

The geological setting of a repository should be amenable to

overall characterisation and have geometrical, physical and

chemical characteristics that combine to inhibit the

movement of radionuclides from the repositorylOthe

environment during the time periods of concern.

405. The depth and dimensions of the host rock should be

sufficient for hosting the repository and provide sufficient distance

from geological discontinuities that could provide a rapid pathway

for radionuclide transport, such as brecciatedfault zones....

FUTURE NATURAL CHANGES

408. Guideline:

The host rock should not be fiable to be affected byfuture

geodynamic phenomena (climatic changes, neotectonics, 8

seismicity, volcanism, diapirism) to such an extent thal these

could unacceptably impair the isolation capability of the

overall disposa/ system.

409. Future climatic evolution (extemai geodynamic) represented

by interglacial and glacial cycles may result infundamental

changes in the Earth 'shydrosphere, such as sea leve/ fluctuations,

changes in erosion/sedimentation processes, transitions in glacial

or periglacial conditions, and variations in the surface and

subsurface hydroiogical balance. Interna/ geodynamic activities

such as ground motion associated with earthquakes, land

subsidence and uplift, volcanism and diapirism may aiso induce

changes in the Earth 'scrust conditions and processes. Bath types

of events, which can be in sorne cases interrelated, may affect the

overall disposa! system through disturbances in the site integrity or

modifications of groundwater fluxes and pathways. A preliminary

assessment of the predictability and effects ofthese phenomena

should be madefor the required periods of time at an early :.;tage

of the siting process. The site should be focated in a geological

and geographicaf setting where these geodynamic processes or 9

events will not be likely to lead to unacceptable radionuclide

release.

HYDROGEOLOGY

412. Guideline:

The hydrogeological characteristics and setting of the

geological environment should tend to restrict groundwater

flow within the repository and should support safe waste

isolationfor the required times.

413. An evaluation of the mechanisms of groundwater movement,

as weil as an anafysis of the direction and rate o_fflowwill be an

important input to the safety assessment of any site because the

most likefy mode of radionuclide refease is by groundwater flow.

Irrespective of the nature of the waste or the disposai option, a

geological environment capable ofrestrictingflow to, through and

from the repository will contribute to preventing unacceptable

radionuclide releases. Natural features such as aquifers or

fracture zones are potential release pathways for radionuclides. 10

Such paths should be limited in the repository host rock so that the

protective functionsof the geological and engineered barrier

system remain compatible. The dilution capacity of the

hydrogeological system may also be important and should be

eva/uated. Siting should be optimised in such a way as tofavour

long and slow moving groundwater pathways from the repository

to the environment.

414. Possible consequences for the hydrogeology resultingfrom

processes caused by the disposai of radioactive waste (e.g. thermal

and radiation effects, increased hydraulic conductivity due to

mining, etc.) should be taken into account.

GEOCHEMISTRY

416. Guide/ines:

Thephysicochemical and geochemical characteristics of the

geological and hydrogeological environment should tend to

limit the release of radionuclides from the disposalfacility to

the accessible environment. 11

417. The choice of a host rock and of a surrounding geological

environment that has suitable geochemical characteristics and

good retardation properties for long lived radionuclides is

particularly important in the disposai of long lived waste. In a

formation where groundwater movement through fissures and

pores occurs, retardation by minerais bath within the rock matrix

and on the rock surfaces could be important ta ensure satisfactory

long term performance of the repository system. The retention or

retardation processes which govem the consequent rate and

quantity of radionuclide migration include processes such as

dispersion. diffusion, precipitation, sorption. ion exchange and

chemical interaction. The ability of groundwater ta transport

radioactive colloids may be important and should also be taken

into account. 12

EVENTS RESULTING FROM HUMAN ACT/VIT/ES

420. Guideline:

The siting of a disposai facility should be made with

consideration of actual and potential human activities at or

near the site. The likelihood that such activities could affect

the isolation capability of the disposai system and cause

unacceptable consequences should be minimised.

CONSTRUCTION AND ENGINEERING CONDITIONS

425. Guideline:

The surface and underground characleristics of the site

should permit application of an optimised plan of surface

facilitiesnd underground workings and the construction of

ali excavations in compliance with appropriate mining rules. 13

TRANSPORTATION OF WASTE

429. Guideline:

The site should be located such that radiation exposures of

the public and the environmental impacts of transporting the

waste ta the site are within acceptable limits.

PROTECTION OF THE ENVIRONMENT

432. Guideline:

The site should be located such that the qualityf the

environment will be adequate/y protected and the potentially

adverse impacts can be mitigated ta an acceptable degree.

taking into account technical, economie. social and

environmental factors. 14

LAND USE

435. Guideline:

ln the selection of suitable sites, land use and ownership of

land should be considered in connection with possible future

development and regional planning in the area of interest.

SOCIAL IMPACTS

438. Guideline:

The site should be located sa that the averai/ societal impact

of implementing a repository system at the site is acceptable.

Beneficia! effectsf the siting of a repository in a region or

area should be enhanced wheneverfeasible and any negative

societal impacts should be minimized. REPL Y OF NEW ZEALAND TO
JUDGE WEERAMANTRY'S THIRD QUESTION

The Question:

Was there any disturbance of the ocean surface alongside Mururoa in
consequence of the nuclear test of 5 September? If so, what were its

causes?

The Answer:

1. New Zealand has no information on whether there was any

disturbance of the ocean outside Mururoa.

2. The surface waters of the lagoon are always disturbed by the

seismic shock wave created by a test taking place under the lagoon. The

strong shock wave causes surface water over a considerable area of the

lagoon to rise sorne metres into the air ando fonn isolated geysers as it

collapses. These effec:tswere visible on the French video of the test.

3. When testing took place under the rim of the atoll, the shock wave

used to cause subsidence of the land surface of the atoll around the testing

point, and on severa! occasions caused slumping of sediments and

limestone blocks down the outer flanks of the atoll. These effects were

described in the New Zealand main request and in its oral presentation. REPLY OF NEW ZEALAND TO

JUDGE WEERAMANTRY'S FOURTH QUESTION

The Question:

76 of the 134 nuclear explosions on Mururoa took place, according to

New Zealand, inhales drilled through the coral crown of the atoll and 50
insha:ftsdrilled through the central part of the atoll. Are the radioactive
wastes of the fust group of explosions still contained in the hales drilled in
the coral crown of the atoll?

The Answer:

The 76 tests that took place under the rim (or coral crown) of the atoll, like

the50 tests that took place under the lagoon, were conducted within the

volcanic rock (basait) that forms the core of Mururoa. Radioactivity

created by an explosion is initially located within the vicinity of the

explosion, but it saon begins to be transported by water circulating through

the atoll away from the site and up towards the swface. Ali three

independent scientific missions that have visited Mururoa (led by Tazieff,

Atkinson and Cousteau) have agreed that water carrying the radioactivity

will reach the atoll's lagoon or the open ocean. But France has not

released sufficient information to enable an accurate assessment to be

made of the probable time-scale of this leakage. Commander Cousteau

was given sorne general information, on the basis of which he estimatedr
2

that leakage would occur on a time-scale of 100 to 300 years. New

Zealand bas no independent means of confirming this estimate.

Document Long Title

Written Replies of New Zealand to Questions put by Judges

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