Summaries of Judgments, Advisory Opinions and Orders of the Internationa
l Court of Justice
Not an official document
REQUEST :FOR AN EXA.MINATIO:NOF THE SITUATION IN ACCORDANCE
WITH PARAGRAPH 63 OF THE COURT'S JUDGMENT OF 20 DECEMBER 1974
IN THE NUCLEAR TESTS (NEWZEA!LAND v. FRANCE) CASE
Order of 22 ;September1995
The Court handed down its decisionthat New Zealand's Tests (New Zealandv. France)case"; andthat "the imme-
Request for an Examinationof the Situation in accordance diate circumstance giving rise to the present phase of the
with Paragraph 63of the Court's Judgmentof 20 Decem- Case is a decision announced by France in a media state-
ber 1974 in the Nuclear.Tests (NewZealand v. France) ment of 13June 1995" by the President of the FrenchRe-
Case, made on 21 August 1995, "does not fall within the public, accordingto which "France would conduct a final
pr13visionsof the said paragraph 63 and must consequently series of eight nuclear weapons tests in the South Pacific
be dismissed". starting in September 1995". New Zealand expressly
founds its "Request for an Examination of the Situation"
Consequently, New Zealand's request fi3rprovisional on paragraph 63 of the Judgment of 20 December 1974
measures and the applications for permissionto intervene (cited below). At the end of its Request, New Zealand
submitted by Australia, Samoa, Solomon Islands, theMar-
shall Islands and the Federated States of Micronesia, as states that the rights for which it seeks protection all fall
well as the declarations of intervention made by the last within the scope of the rights invoked in paragraph 28 of
four States, all of which are proceedings incidentalto New its Application of 1973, but that, at the present time, it
Ze:aland'smain Request, likewisehad to be dismissed. seeks recognition only of those rights that would be ad-
The Court limitedthe present proceedings;to the exami- versely affected by entry into the marine environmentof
nation of the following question: "Do the Requests sub- radioactive material as a result of the further tests to be
mitted to the Court by the Governmentof New Zealand on carried out at Mururoa or Fangataufa Atolls,and of its en-
21August 1995fall within the provisionso:fparagraph 63 titlement to protection andto the benefit ofa properly con-
,of the Judgment of the Court of 20 December 1974in the ducted Environmental Impact Assessment; within these
case concerning NuclearTests(NewZealana'v.France)?". limits,New Zealand asks the Courtto adjudge and declare:
In the Court's view, that question has two elements. The "(i) that the conduct of the proposed nuclear tests
first element concerns the coursesof proceclureenvisaged will constitute a violation of the rights under
international law of New Zealand, as well as of
by the Court in paragraph 63 of its 1974 Judgment, when other States;
it stated that "the Applicant could request an examination further or in the alternative,
of the situationin accolpdancewith theprc~visionsofthe
Statute";theother concernsthe questionwhetherthe "basis" (ii) that it is unlawful for France to conduct such
of that Judgment has been "affected" within the meaning nucleartests beforeit has undertakenan Environ-
of paragraph 63 thereof. mental Impact Assessment according to accepted
In its examination of that question, the Court found in international standards. Unless such an assess-
the first place that by inserting in paragraph 63 theve- ment establishes that the testswill not give rise,
mentioned phrasethe Court did not exclude a special pro- directly or indirectly, to radioactive contamina-
ce'durefor access to it (unlike those mentioned in the tion of the marine environment the rights under
Court's Statute, like the filing of a new application, or a international law of New Zealand, as well as the
request for interpretation or revision, which would have rights of other States, will be violated."
been open to the Applicant in any event). Secondly,how- TheCourt furtherrecallsthat onthesameday New Zealand
ever, the Court found that that special prclcedure would filed a request for the following provisional measures:
only be availableto the Applicant if circumstances wereto
anisewhich affected the basis ofthe 1974 Judgment. And "(1) that France refrain from conducting anyfurther
that, it found, was not tihecase, as the basis of that Judg- nuclear tests at Mururoa and Fan-ataufa Atolls;
ment was France's undertakingnot to condust any further (2) that France undertake an environmental impact
atmospheric nucleartests and only a resump:tionof nuclear assessment of the proposed nuclear tests according to
accepted international standards and that, unless the
tests in the atmosphere would therefore have affectedit. assessment establishes that the tests will not give rise to
The decision was take:nby 12votes to 3. Three declara- radioactive contamination of the marine environment,
tions, one separate opinion and three dissenting opinions France refrain from conducting the tests;
were appended to the Order. (3) that France and New Zealand ensure that no
action of any kind is taken which might aggravate or
extend the dispute submitted to the Court or prejudice
the rights of the other Party in respectofthe carrying out
of whatever decisions the Court may give in this case".
In its Order, the Couirtrecalls that on 21 August 1995 The Court also refers to the submission of applications
New Zealand filed a "R.equestfor an Exarr~inationof the for permission to intervene by Australia, Samoa, Solomon
Situation" in accordance:with paragraph 63 of the Court's Islands, the Marshall Islands and the Federatcd States of
Judgment of 20 December 1974in the NuclearTests(New Micronesia, as well as to the declarations on intervention
Zealandv. France)case; it is indicated in the Request that made by the last four States. It then refers to the presen-
it"aris[es] out of a proposed action announced by France tation, at the invitation of the President of the Court, of
which will, if carried out, affect the basistheJudgment informal aides-mtmoire by New Zealand and France and
renderedby the Court on20 December 1974inthe Nuclear to the public sittings held on 11 and 12 September 1995.The Court then summarizesthe views expressed bythe two Court is governed by the Statute, which circumscribes the
States in the course of the proceedings. powers of the Court and prescribes the conduct that States
must observe without it being possible for them to depart
The Court finally observes that New Zealand's "Request therefrom,even by agreement ... ;as a result and afortiori,
for an Examination of the Situation9' submitted under a State cannot act unilaterally before the Court in the
paragraph 63 of the 1974 Judgment, even if it is disputed
in liminewhether it fulfils the conditions set in that para- absence of anybasis in the Statute.Now New Zealand does
graph, must none the less be the object of entry in the Gen- not invokeanyprovisionof the Statuteand couldnot invoke
eral List of the Court for the sole purpose of enabling the any that would be capable of justifying its procedure in
latter to determine whether those conditions are fulfilled; law. It is not a request for interpretation or revision,nor
and that it has accordingly instructed the Registrar. a new Application, whose entry in the General List would,
for that matter, be quite out of the question (b)".
The Court observes that in expressly laying down, in
paragraph 63 of its Judgment of 20 December 1974,that,
in the circumstances set out therein, "the Applicant could
The Court begins by citing paragraph 63of theJudgment request an examination of the situation in accordance
of 20 December 1974, which provides: "Once the Court with theprovisions oftheStatute", the Court cannot have
has found that a State has entered into a commitment con- intended to limit the Applicant's accessto legalprocedures
cerning its future conduct it is not the Court's function to such as the filing of a new application (Statute, Art. 40,
contemplate that it will not comply with it. However, the para. l), a request for interpretation (Statute, Art. 60) or a
requestforrevision (Statute,Art. 61),which wouldhavebeen
Court observes that if the basis of this Judgment were to
be affected, the Applicant could request an examination of open to it in any event; by inserting the above-mentioned
the situation in accordance with the provisions of the Stat- words in paragraph 63 of its Judgment, the Court did not
ute; the denunciation by France, by letter dated 2 January exclude a special procedure, in the event that the circum-
1974, of the General Act for the Pacific Settlement of stances defined in that paragraph were to arise, in other
International Disputes, which is relied on as a basis of words, circumstances which "affected" the "basis" of the
jurisdiction in the present case, cannot constitute by itself Judgment. The Court goes on to point out that such a pro-
an obstacle to the presentation of such a request." cedure appears to be indissociably linked, under that para-
It then indicates that the following question has to be graph, to the existence of those circumstances; and that if
answered in limine: "Do the Requests submitted to the the circumstances in question do not arise, that special pro-
Court by the Government of New Zealand on 21 August cedure is not available.
1995fall within the provisions of paragraph 63of the Judg-
ment of the Court of 20 December 1974 in the case con-
cerningNuclear Tests(NewZealandv.France)?";andthat
the present proceedings have consequently been limited to
thatquestion. The has two elements: one concerns
the courses of procedure envisaged by the Court in para- The Court thenconsidersthatitmust determinethesecond
graph 63 of its 1974 Judgment, when it that element:of the question raised, namely, whether the basis
Applicant could request an examination of the situation of its Judgment of 20 December 1974has been affected by
inaccordance withtheprovisionsoftheStatute";the other the facts to which New Zealand refers and whether the
concernsthe question whether the"basis" of that Judgment may consequently proceed to examine the situation
has been "affected" within the meaning of paragraph 63 as contemplated by paragraph 63 of that Judgment; to that
thereof. end, it must first define the basis of that Judgment by an
analysis of its text. The Court observes that in 1974it took
ASto the first element of the question before it, the Court as the point of departure of its reasoning the Application
recalls that New Zealand expresses the following view: filed by New Zealand in 1973; and that in its Judgment of
"paragraph 63 is a mechanism enabling the continuation 20 December 1974 it affirmed that "in the circumstances
or the resumption of the proceedings of 1973 and 1974. of the present case, as already mentioned, the Court must
were not fully determined. The Court foresaw that ascertain the true subject of the dispute, the object and pur-
the course of future events might in justice require that pose of the claim . e In doing so it must take into account
New Zealand should have that opportunity to continue its not only the submission, but the Application as a whole,
case, the Progress of which was stopped in lg74. And to the arguments of the Applicant before the Court, and other
this end in paragraph 63 the Court authorized these deriva- docume:ntsreferred to . . (1.c.~. Reports 1974, p. 467,
tive proceedings. -. .the presentation of a Request for para. 31). Referring, among other things, to a statement
Suchan examination is to be part of the SameCaseand not made by the Prime Minister of New Zealand, the Court
of a new one." New 2kaland adds that paragraph 63 could found that "for purposes of the Application, the New Zea-
only refer to the procedure applicable to the examination land claim is to be interpreted as applying only to atmos-
of the situation once the Request was admitted; it further- pheric tests, not to any other form oftesting, and as apply-
more explicitly Statesthat it is not seeking an interpretation ing only to atmospheric tests so conducted as to give rise
of the 1974 Judgment under Article 60 of the Statute, nor
a revision of that Judgment under Article 61. to radio-active fall-out on New Zealand territoryw (1.c.~.
Reports 1974, p. 466, para. 29). In making, in 1974, this
France, for its part, stated as follows: "As the Court finding and the one in the Nuclear Tests (Australiav.
itself has expressly stated, the possible steps to which it France)case (for the Court, the two cases appeared iden-
alludes are subject to compliance with the 'provisions of tical as to their subject-matter, which concerned exclusively
the Statute' ... The French Government incidentally fur- atmospheric tests), the Court had addressed the question
ther observes that, even had the Court not so specified, the whether New Zealand, when filing its 1973 Application,
principle would nevertheless apply: any activity of the might have had broader objectives than the cessation of
82atm'osphericnuclear tests-the "primary concern" of the the last four States-allof which are proceedings inciden-
Government of New Zealand, as it now puts it. The Court tal to New Zealand's main Request.
concludes that it cannot now reopen this question since its
current task is limited to an analysis of the Judgment of
1974.
The Court recalls that, moreover, it took note, at that
time, of the communiquk issued by the Office of the Presi- The full text of the operative paragraph reads as follows:
dent of the French Republic on 8 June 1974, stating that "68. Accordingly,
"in view of the stage reached in carrying out the French
nuc'leardefence programme France will bein a position to THECOURT,
pass on to the stage of underground explosio~~sas soon as (1) By twelve votes to three,
the series of tests planneclfor this summer is completed" Finds that the 'Request for an Examination of the
(I.C.J.Reports 1974, p. 469, para. 35) and of other official Situation' in accordance with paragraph 63 of the Judg-
declarations of the French authorities on the same subject, ment of the Court of 20 December 1974 in the Nuclear
maclepublicly outside the:Court and erga ontnes,and ex- Tests (New Zealandv. France)case, submitted by New
pressing theFrenchGovernment's intentionto put an endto Zealand on 21 August 1995, does not fall within the
its atmospheric tests; and that, comparing the:undertaking provisions of the said paragraph 63 and must conse-
entered into by Francewith the claim asserted by NewZea- quently be dismissed;
land, it found that it faced."a situation in which the objec- IN FAVOUR: President Bedjaoui; Vice-president
Schwebel;JudgesOda,GuillaumeS , hahabuddeen,Ranjeva,
tive of the Applicant [had] in effect been accomplished" Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari ravo,
(I.C.J. Reports 1974, p. 475, para. 55) and accordingly Higgins;
indicated that "the object of the claimhaving clearly dis-
appeared, there is nothing on which to give judgment" AGAINSTJ:udges Weeramantry, Koroma; Judgeadhoc
(I.C.J. Reports 1974, p. 477, para. 62). The Court con- Sir Geoffrey Palmer;
cludes that the basis of the 1974 Judgment was conse- (2) By twelve votes to three,
quently France's undertaking not to conduct any further Finds that the 'Further Request for the Indicationof
atmospheric nuclear tests; that it was only, the:refore,in the Provisional Measures' submittedbyNew Zealand onthe
eve:ntof a resumption of nuclear tests in the atmosphere same date must be dismissed;
that that basis of the Judgment would have been affected; IN FAVOUR: President Bedjaoui; Vice-President
and that that hypothesis has not materialized. Schwebel;JudgesOda,Guillaume, Shahabuddeen,Ranjeva,
The Court observes further that in analysing its Judg- Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo,
meritof 1974,it reached the conclusion that that Judgment Higgins;
dealt exclusively with atnlospheric nuclear tests; that con-
seqi~entlyit is not possible for the Court now to take into AGAINST J:udgesWeeramantry, Koroma;Judgeadhoc
consideration questions relating to underground nuclear Sir Geoffrey Palmer;
(3) By twelve votes to three,
tests; and that the Court cannot, therefore, take account of Finds that the 'Application for Permission to Inter-
the arguments derived by New Zealand, on the one hand vene' submittedby Australia on23August 1995,andthe
frorn the conditions in which France has concluctedunder- 'Applicationsfor Permissionto Intervene' and 'Declara-
ground nuclear tests since 1974,and on the other from the tions of Intervention' submitted by Samoaand Solomon
development of international law in recent decades-and Islands on 24 August 1995,and by the Marshall Islands
parf:icularlythe conclusion, on 25 November 1986,of the and the Federated States of Micronesia on 25 August
Noilmea Convention-any more than of the arguments 1995,must likewise be dismissed.
derived by France from the conduct of the New Zealand IN FAVOUR: President Bedjaoui; Vice-President
Government since 1974. It finally observes that its Order Schwebel;JudgesOda,Guillaurne,Shahabuddeen,Ranjeva,
is without prejudice to the obligations ofStties to respect Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrariravo,
and protect the natural environment, obligations to which Higgins;
botlhNew Zealand and France have in the present instance AGAINST J:udgesWeeramantry, Koroma;Judge ad koc
reaffirmed their commitmlent. Sir Geoffrey Palmer."
The Court therefore findsthat the basis ofthe 1974Judg-
meilt has not been affect,ed;that New Zealand's ~e~uest *
does not therefore fallwithinthe provisionsof paragraph63
* *
of that Judgment; and that that Request must consequently
be dismissed. It alsopoints out that following its Order,the Vice-President Schwebel and Judges Oda and Ranjeva
Court has instructed the Registrar to remove that Request appended declarations to the Order of the Court. Judge
from the General List as of 22 September 1995. Shahabuddeen appended a separate opinion; and Judges
I Weeramantryand Koromaand Judge ad hoc Sir Geoffrey
Palmerappended dissenting opinions to the Order.
#C *
Finally, the Court indicates that it must likewise dismiss Declarationof Vice-PresidentSchwebel
New zealand's "Further Request for the Indication of Pro- Vice-president Schwebel, in a declaration, maintained
visional Measures", as well as theapplicatiorlsfor permis- that France's objectionsto the maintenanceby New Zealand
siorito intervene submitte:dby Australia, Sarr~oa,Solomon of its Requests were tantamount to an objection to admis-
Islands, the Marshall Isla~ndsand the Federated States of sibility, and should have been treated accordingly pursuant
Micronesia and the decla.rationsof intervention made by to the Rules of Court. Declaration of JudgeOda "Having failedtoresolve through diplomatic meansthe
dispute that exists between it and the French Govern-
In his declaration, JudgeOda fully supported the Order, ment, the New Zealand Government is compelled to
which dismisses New Zealand's Request to reopen the refer the dispute to the International Courtof Justice."
NuclearTests(NewZealandv.Francelcase of 197311974, Thus, the dispute which was referred by New Zealand
as he shared the reasoning with regardto the matters of to the Court in 1973was one to the legality of atmos-
procedure leadingto the refusalof that Request. But,asthe pheric nuclear tests,,; it was not one concerningthe wider
Memberof the the which has subject of nuclear contamination by nuclear testing of any
fered the devastating effects of he kind. The subject of the 1973case being different fromthe
bound to express his persona' that no further tests of Subjectof New ZealandVspresent Request, iffollowedthat
any kind of nuclear weapons would be carried out under the latter couldnot be linkedto the former.
any circumstances in future.
In the circumstances, although agreeing withNew Zea-
Declaration of Judge Ranjeva land on several points, JudgeShahabuddeenfelt prevented
by substantial legal obstacles from agreeing with iton the
In his declaration, Judge Ranjeva expressed regret that remainder of its case.
the Court had overemphasized procedural formalism while
not adhering to the structure of the reasoning adoptedin
paragraph 63 of the 1974 Judgment. As he saw it, dealing Dissenting opinion of JudgeWeet.anzantry
first with the question of the basis of that Judgment and Judge Weeramantry, inhis opinion, stated that the Court
the conclusions reachedin the Order rendered the develop- in 1974had devised a special procedure, distinct from pro-
ments devoted to procedural questions without object. cedures for revision or interpretation of its Judgment,
enablingNew Zealand to approach the Courtif the "basis"
Separate opinion ofJtrdgeShahabuddeen of the Judgment was "affected". The Court laid down no
In his separate opinion, Judge Shahabuddeen saidthat limits of time for this purpose.
the growing recognition of the need to protect the natural A situation has now arisen, not contemplated then, ofa
continuance of the same sort of radioactive contamination
concerns and agreed with its case on several points. He as brought New Zealand to the Court in 1973.
agreed that~ew-zealand was entitledto come to-theCourt, The Court would not have considered the shift of venue
entitled to a hearing and entitled to a Judge ad hot, and to underground tests as having brought New Zealand's
that it was not shut out by the vf01-di~n paragraph 63 of thedispute to an end had the knowledge available today
1974 Judgment, "in accordance with the provisions of the been available to the Court then. Had it possessed that
Statute". knowledge, it would have been strange if the Court had
Judge Shahabuddeen also accepted that New Zealand been prepared to commit New Zealand to the dangers
was opposedto nuclear contamination arising from nuclear "OW (:~m~lainedof and, at the same time, had viewed
testing of any kind. The question was howfar wasthis gen- FJ~WZealand's grievances as having come to an end in
eral opposition to from nuclear testing of consequence of the shifting of the venue of the explosions.
any kind made the subjectof the specific dispute presented
in the particular case whichNew Zealand brought against New ZealandVs in 19-73was that damage
France in 1973. caused by French nuclear explosions in the Pacific.
New Zealand's complaint today is the same. The cause is
The question was important because New Zealand was the same, namely, French nuclear tests in the Pacific.The
seekingto link its present Request to the973case. France damage is the same, namely, radioactive contamination.
contended that there could be no linkage because, in its The only difference is that the weapons are detonated
view, the 1973 case concerned atmospheric nuclear tests, underground.
whereas New Zealand's present Request concerneda dif- ~~d~~ weeramantr oypision states that N~~ zealand
ferent question, of underground nuclear tests. New Zea- has made out a prima facie case of danger from French
land's view was that the 1973 case concerned the general nuclear tests,on the basis of which, in the absence of
subject of contaminationby nuclear testing of any evidence by France,New Zealandhas shownthat
kind, and was therefore wide enough to include nuclear the Y,~~~~ ofthe 1974 ~~d~~~~~is now hi^
contamination by underground tests. gives New Zealand a rightto request an examinationof the
On this crucial issue, Judge Shahabuddeen noted that, situation, and places the Court undera dutyto consider that
after references inNew Zealand's 1973Applicationto dis- Requestand the interim measures following fromit. It also
cussions between NewZealand and France, paragraph 8 of placer;on the Court the duty to consider the applications
that Application stated: for permission to intervene of Australia, Samoa, Solomon
"The French Government . .made it plain that it did Islands, the Marshall Islands and the Federated States of
not accept the contention that its programme of atmos- Micronesia.
pheric nuclear testing in the South Pacific involved a JudgeWeeramantryalsopointed outthat importantpin-
violation of inkrnational law. There is, accordingl~, a ciples of environmental law are involved inthis case, such
dispute between the ~~v~rnmentof New Zealand and as the precautionary principle, the principle that the burden
the French asto the legality of atmospheric of proving safety lies on the author of the act complained
nuclear tests in the South Pacific region." of, andthe intergenerational principle relatingto the rights
That passage fell under the heading "The Subject of the of fu1.uregenerations. Judge Weeramantry regretted that
Dispute". Paragraph 10 of the Application, falling under the Court had not availed itself of the opportunity ton-
the same heading, added: sider these principles.
84 Dissenting opinionofJudgeKoroma radioactive effect onthe environment, and should have
proceeded to examine the Request submitted by New
In his dissenting opinion, Judge Koroma stated thah te
was unableto supporteithertheOrderofthe (Zourt,ormost Zealand.
of ]itsreasoning.
Judge Koroma pointedout that New Zeala.ndhad estab- Dissenting opinionofJudge ad hoc Sir GeoffreyPalmer
lished that its Requestsill under the provi:;ionsof para-
Judge ad hoc Sir Geoffrey Palmer's dissenting opinion
graph 63 of the Court's Judgment renderedin 1974 in the reaches a different conclusion from that of the Court.n
Nu4clearTests(NewZea1,andv. France)case. his view, paragraph 63 of the 1974 Judgment is wide
I4erecalled that that Judgmenthaddealt with the effects enough to providegrounds for the Courtto entertain the
of radioactive fallout rc:sultingfrom atmospheric tests, present Application andin the circumstancesit should do
whereasNew Zealand'sApplication then related to nuclear so. The fundamental issue inthe case in the view of the
testsin theSouthPacific:region,and,totheextent thatnew majorityturns on the distinction between atmospheric and
scientific evidence now suggests that radioactive fallout underground testing.In Judge Palmer's opinion,both in-
cou~ldresult from underground tests in the region, the basisvolve nuclear contamination andthat is sufficient in the
of the Judgmenthas beer1affected. particular circumstancesthat have occurred to provide
Ile also stated that the Court should have taken cog- grounds for the Courtto examinethe situation and proceed
nizance of the legal trend prohibiting nuclear tests with to the next stageof the case.
Summary of the Order of 22 September 1995