ou
NUCLEAR TESTS CASE
(New Zea/andv. France)
(Application of9 May 1973)
AIDE-MEMOIRE OF NEW ZEALANP
OUTLINE
~
!. INTRODUCTION I
IL THE SCOPE OF THE PRIVATE MEETING OF THE 3
COURT SCHEDULED FOR 8 SEPTEMBER 1995
III. THE TREATMENT OF THE FURTHER PROVISIONAL 13
MEASlJRES REQUEST
IV. CONTINUTTY OF THE PROCEEDINGS COM!\.ŒNCED 21
ON 9 MAi: 1~13
A. The right ofNew Zealand to resume the 1973 case 24
B. The circumstances in which the 1973 case might be 25
resumed
C. The existence of the circumstances in which the 1973 c36e
may be resumed
(!) The standard ofproof 37
(2) The failure of France to meet the required stand39d
D. Conclusions of this Part 41
V. THE POSITION OF THE AD HOC JUDGE CHOSEN BY 42
NEWZEALAND
VI. THE MAINTENANCE OF THE JUR.ISDICTIONAL 53
BASIS OF THE !973 PROCEEDINGS12)5-SC:P-1995 15:53 FROM TG 81231703632523 p.22/22
2
Para
VIL THE COURT TAKES UP THE CASE AGADI AT THE 56
PROCEDURAL STAGE WHICH IT HAD REACHED AT
THE DATE OF THE 1974 JUDGMENT
VIII. THE TREATMENT OF THE APPLICATIONS TO 58
INTERVENE
IX. APPLICABLE RULES OF THE COURT 60
....,. ....,.,....,1 rNIRODUCTIQtJ
1. On 30 August 1995 the President of the Court hcld a meeting with the
Co-Agents of New Zealand and a representative of France ta discuss proceduraJ
aspects of the Rcquest for an Exarnination of the Situation ("the main Request") and
the Further Requcst for Interim Measures of Protection (..the !nterim Measures
Request"), beth ofwhich documents were filed by New Zcaland on 21 August 1995.
Towards the close of the meeting, the President invited the Parties to submît by
6 September 1995 an Aide-Memoire restating in swnmary form their positions on the
principal questions considered during the course of the meeting, Ylith a view to.
assisting the Coun at the private meeting which it is to hold on 8 September 1995.
The present Aide-Memoire contains New Zealand"s response to that invitation.
2. This document is not, oÎ course, a complete restatement of
New Zealand's position. Ttshould, therefore, be read together wjth the main Request.
New Zealand \.Vishes to emphasise that the present Aide-Memoire, .g entirely
informal in character and being presented at the specifie request of the President and,
as he himself stressed, without any basis in the Statute or the Rulcs, cannat be
regarded as a submission on the material issues sufiicient to meet New Zealand's
entitlement to a fonnal, public and proper presentation ofits position in relation to the
issues raised by the President and by the letter from the French Ambassador dated
28 August 1995.2S-5E?-1995 t5=37 ~RGM TO
2
II. THE SCOPE OF THE PE.[VATE MEETING OF THE COURI
SCHEDULED FOR 8 SEPTEMBER 1995
3. A priyate meeting of the Court is, of course, one with wh.ich the Panies
would not norrnally be concerned. New Zealand would not, therefore, venture to
make any comments regarding such a meeting were itnot responding to the specifie
request of thePresident which has just becn mentioned. One reason for this request
appears to be the submission by France that the New Zealand Request should not be
entered on the Court's List. This submission bas been expressed by France in the
penultirna.te paragraph of the letter dated 28 August 1995 from the Arnbassadorof
France to the Netherlands trl1eRegistrar of the Court as follows:
"Ainsi, la démarche de la Nouvelle-Zélande n'a pas lieu, selon fui,
conformément aux dispositions du paragraphe 5 de l'article 38 du règlement
de faire l'objet d'une inscription au rôle de la Cour."
4. New Zealand must begin by observing, parenthetîcally at tl1.isstage,
thatno question of tl- :-lication of Anide 38(5) of the Rules arises in the present
proceedings. This provision is directed only to a case in which "the applicant State
proposes to found the jurisdiction th~ Court upon a consent thereto yet to be given·
or manifested by the State against which such application is made...". The tcrms of
Article 38(5) thus presuppose that the case to which its provisions apply is a new one.
5. The present Requests are not made by New Zealand in relation to a
new case. They are requests made within the framework of an existing case - the one
begun by New Zealand on 9 May 1973- which was never formally terminated and in
relation to which the CoUrt,in paragraph 63 of its 1974 Judgment, expressly reserved
New Zea!and's right to resume the case. However, this pointis one which falls to be
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discussed in connection with the subject of the continuity of the proceedings
commenced in May 1973 dealt with in Part IV below.
6. For the moment, however, the only matter that needs ta be considered
in the present section is the French request thar the New Zealand Requests should not
be entered on the Court's List. ln the circurnstances now prevailing, especially the
facr that the President has as yet on!y tentatîvely indicatethe date for a hearing of the
Interim Measures Rcquest. New Zealand understands that the submission made by
France îs bcing regardcd as a requesl that the Court surnmarily dismiss in }jminç:, af
the Court' s meeting on 8 September, the Requests made by New Zealand.
7. It nccd hardly be said that, were the Court to take such an
unprecedented step at that meeting, it would occasion the greatest concem to rhe
New Zealand Govemment, to other Govemments and to world public opinion. There
·.> warrant whatsoever · either in the Stanne or Rules of the Court, or in its
practice - for the Court to deal sununarîly with an issue of such central importance as
the one now before it. This is not a case whcre a procedural stage is tainted by sorne
manîfest defect such as, for example, the failure by the applicant to meet the
requirernents of Artide 34 of the Starute. Indeed, it may be recalled that as regards a
request by France coucht:d in a!most îdentical language when the case was first filed
in 19ï3, the Court left the 1natter until itconsidered the request for provisionaf
measurcs and then, în the Order which it made after oral heari.ngs on that request,
rcached the conclusion expressed thus in paragraph 33 of the Order:
"... the foregoing considerations do not permit the Court to accede at the
present stage of the proceedings to the request made by the French
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Govcmrnent in its letter dated 16 May 1973 that the case be rcmoved from the
list". (See !CJReoorts 1973,p.l41 .)
8. Nor is the situation comparable to that in which the Court decided in
1984, by ninc votes to six, "not to hold a hearing on the Declaration of Intervention of
the Republic of El Salvador". (See !CJ Report< 1984, p.216.) For one lhing that
decision related ro a declaration of intervention in a case already in progress betwccn
t\Voother States, whereas the present situation is one in which a Stare is requesting the
Court ta resume its consideration of that State's own case pursuant to an express
provision in ajudgment of the Court foreseeing such an action.
9. The compelling difference betwcen the two cases, however, is to be
found in paragraphs 2 and 3, and the operative part,of the Court's above-cited Order
of 4 October 1984. Paragraph 2 states that
"The Declaration of Tntervenrionof the Rcpublic of El Salvaàv., '"'nichreiates
to the present phase of ti1e proceedings, addresses itself also in cfft o ct
rnatters, induding the construclÎon of conventions, which presuppose that the
Court has jurisdiction to enterram the dispute betwecn Nicaragua and the
United States of America and that Nicaragua's Application against the United
States of America in respect ofthat dispute is admissible."
Paragraph 3 notes that El Salvador, in its Declaration of Intervention, rcserved the
right in a later substantive phase of the case to address the interpretation and
application of the Conventions ta wh1chit was a party. Accordingly, the Court, in the
operati ve part of the Orcier, hcld that the El Salvador declaration of intervention was
inadmissible "înasmuch as it relates to the current phase of the proceedings".
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1O. In short, the etfect of the Court's Order was not to exclude El Salvador
altogetber from the proceedings, but only to defcr !he moment at which it might
participate in them. (See a1so ICJ Re:ports 1984, pp 395-396, para 6). The fact that
El Salvador did not seek to intervene at a later stage in the proceedings rnak.es no
difference. The essential point is tlmt the decision sumrnarily tak:en by the Court to
refuse El Salvador the opportunity lOintcrvene at the jwisdictional phase of the case
was not at thar moment seen by lhe Court as depriving El Salvador of a!l opportunîty
to assert its interein the case.
11. The present situation is quite different. If the Court were summarîly to
reject the two New Zealand Requesrs it would be deciding the essentials of the case
against New Zealand without having given itthe opportunity to present its case orally
in a proper procedural framework. This would be a manifest and serious departure
from the principle reflected in Anicle 43(1) the Statute, narn.ely,thar "the procedure
shall consist of two parts: wTitten and oral". Any such depruture would be seen as
being the more grave by reason of the fact that the Rcquests made by New Zealand are
carefully reasoned and cannat be regarded as superficial or rnanifestly defective. If
the Court should evenrually find that, contrary to New Zealand's submissions, it
cannet grant New Zealand the relicfthat ît requests, this should be donc only airer the
Court has heard oral argument on the rnerits of the main Rcquest.
12_ A further pertinent consideration is that the requcst by France that the
Requests should be summarily dismissed (misconceived and obliquely expressed as it
is) is not accornpanied by any reasoning. The French lener contains no more than ù1e
repeated assertion that the Court Jacks jurisdiction, unsupported by any reasoned
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response ro the main Rcquest. Itwould, in New Zealand's subrnission, be improper,
to say the !east, if the Court wcre to dismiss the New Zealand Requests jo limin.e on
the basis of so barean assertion by France. Werc lhe Court to reach such a decision, ît
would have to be on the basis of a compellingly argued French response to
New Zea1and's main Rcquest to which, in its tum, New Zea!and wou!d have an
opportunity ta reply.
Ill. THE IREATMENT OF THE FURIHER PRQVISIQNA!. MEAS!IRES
REQUEST
13. ln the submission of New Zealand, the first public procedural step thal
the Court should take folloViing its privatc meeting of 8 Seprember 1995 is that of
holding a public hearing on the New Zealand Further Request for the Indication of
Provisional Measures of Protection filed on 21 August 1995. In accordance with
Article 66(2) of rhe 1972 Rules of the Coun, this r::quest must not only have priority
over ali ether cases but is also to be treated as a malter ofurgency.
14. Because of the imminence of the resumption by France of underground
testing it is necessarily the case that the relief sought in the Provisional Measures
Request is very simi!ar to ù1at sought in the moin Request. That does not mean,
however, that the consideration of the Provisional Measures Request shouid be as
ex:tended as would be the consideration of the main Request.
15. Obvîously there will arise. even at the Provisional Measures stage, the
threshold question of the continuity of the 1973 proceedings because this goes to the
question of the Court's jurisdictîon or competence to indicate provisional rneasures.
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16. The proposition îs too weil established in the Court's jurisprudence to
require extensive citation of authority, that any conclusions thar the Court may reach
at the interim measures stage - whether on jurisdiction or on substa nccannat
prejudice the Court's decision on such mattcrs when it cornes to deal with them later.
It is sufficient to cite the following sentence from the Order of the Court of 10 May
1984 on Provisionai Measures in the Ca<:econcernine MilitaQ' .and Pararnilitary
Activitjesin and a~ajn 1icaragua (lCJ Reports 1984, at p.l82, para.31):
"... the Court in the context of the present proceedings on a request for
provisional measures ... cannat make definitive findings of fact, and the right
of the respondenr State to dispute the facts alleged and to submit arguments in
respect of the rnerits must remain unaffected by the Court's decision."
Moreover, because the urgency of the interim measures stage limits the ability of the
Court to examine in dcpth any questions of jurisdiction that may arise, the Court bas
consistently taken the vicw that it îs sutiicient for an applicanr to show a prima facie
case of jurisdîclion.
17. This is what happened in 1973 when the Coun held (in paragraph 18)
that "the provisions invokedby the Applicant appear,primafacie, to afford a basis on
which the jurisdiction of the Court might be founded". ln addition, the Court also
stated in paragraph 24 that •'Jcannet be assumed a priori that such cla.ims fall
completely outside the purvicw of the Court's jurisdiclion, or rhat the Govemrnent of
New Zealand may not be able to cstablish a legal interest in respect of these daims
entitling the Court to adm1tthe Application". Tü
8
18. It is thus evident that the 1973 Order is ilsetf authoritfor the
conclusion thathe 1928 Gen~r Aact and Anicle 36(2) of the Court's Stature cstablîsh
primafacie jurisdiction in respect of the case as fra1973.nNo subsequent act of
the Court bas in any way replaŒd that interim finding. To the cx.tent that the present
proceedings are a continuation of the 1973 proccedings, there is no basis for regarding
that determinationy the Court ofitsprimafacijurisdiction as ether than valid.
19. At the same tirne, as is already manifest, New Zealand recognises thar
there isow an additional question that affects the competence of the Court, namely;
whether the present proceedings are a continuation of those to which the Court's
earlicr findingf primafacie jurisdicrion applies. This additional question must itself
be identified as one of jurisdicüon or, at the least, as analogous to one of jurisdiction.
It is, therefore, also to be detennined by reference to rhc same tests as are applied ro
ether questions of jurisdic!ion, namety, whether thcreIS a prima facie case of
jurisdiction or, expressed in terms ofpres~ J'-OlcHedinw,hether there is a prima
JO.ciecase of continuity.New Zealand submits that, for the purposes of the present
stage of the proceedings, and on the basis of the considerations set out in Part IV
below, such a prima jacie case does exist.
20. As regards the substance of the request for interim rneasurcs.
New Zealand recalls the manner in which the Court approached this question in
paragraph 30 of the 1973 Ordcr. There the Court used the words:
"... isuftlc teobserve that the information submincd to the Court ... does
not exclude the possibility that damageNew Zea.landmîght be shawn to be
caused "
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In the present phase of the proceedings, of cour.se, the issue is not one of damage to
the territoryf New Zea!and but one of contamination of the marine envirorunent in
which New Zealand hasan interes1.
IV. CONTINUITY OF lliE PROCEETl!NGS COMMENCED ON 9 MAY 1973
21. Because of the central position in New Zealand's present initiative of
the contention that the two Requests of21 August 1995 continue, and form pan of, the
case begun by the Application of9 May 1973 ('"the1973 Application'') New Zealand
will now recapitulate its main :uguments on these points.
22. This is not a new case. As stated in the main Request, the case which
New Zeabnd began in 1973 did not come to an end with !he delivery of the Court's
Judgment of20 December 1974 ("the 1974 Judgment"). The key paragraph in thot
Judgmcnt was paragraph 63 which stated thar if '·thebasis of this Judgment were to
be affecrcd" New z.__ J might request the Court to examine the situation. The
Court ulso said thatIfsuch an examination were to take place,itwould be on the basis
that the denunciation by France of the 1928 General Act forthe Pacifie Settlementof
International Disputes ("the General Act") cannat constitute by îtself an obstacle to
the presentationof such a request.
23. There are three separate aspects ro the operation of the paragraph. (A)
The first is the right reserved ta New Zcaland ta resume the 1973 case in certain
cîrcumstances. (B) The second is the identifi.catiçn of the circumstances in which that
may happen. (C) The tl11rdis the existe ofcte circumstances in which the 1973
case may be resumed.
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TnTDI P 11/1 JO
A. The right of New Zealand to rcsŒne the 1973 case
24. Paragraph 63 dearly indicates that the Court did not intend to, and did
not, bring the case to an end. This is inherent in the very words: used: "... the
Applic:mt could rcquest an exa.mination of the situation ...". The narural meanîng of
the words suggests that such an cxamination would be sccn as part of the same case.
Ifthere could be any doubt asto this, ît is resolvedby the Court's staternent that the
dcnunciation by France of the General A.ctcannat by itself constitute an obstacle ta
the presentation of such a request. TI1e Court could not have contemplated the
ineffectivencss of the French denunciation of that treaty cxcept on the basis that this
was an act donc aftcr the jurisdiction of the Court had a[ready become established by
the 1973 Application. If tl1eCourt had considered that the case had been brought to a
complete end by the 1974 Judgment, it cou!d not have preserved îts jurisdiction in this
way. If Li:lecase had ended, the Court's jurisdiction would also have ended. /\.ny
"resumption" or "continuation" of the case would, on this basis, have required a new '
source of jurisdiction operative at the time of such resumption or continuation. The
Court 's preservation of the original basis of jurisdictîon is cleaylincompatible with
any such approach.
B_ The cîrcumstances in wbich the 1<J73case mighl be resumed
25. Quite distinct from th.:possibility of resuming the 1973 case is the
question of the conditiOns upon which such a resumption might be sought. That
situation is described in paragraph 63 of the 1974 Judgment as being "if the basis of
the Judgment were to be affected" by pertinent future cv~nts.
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26. 1l1e ··basis of the judgment" thus referred ta would clearly have been
affected if France resumed atmospheric testing, contrary toits undertak:ing. Then:: is,
however, no indication that the Cowt believed that this cou!d be the~ circumstance
in which the basis of the judgment would be affectcd. [tis perfcctly consistent with
the Court's words to say that:
1 The "basis of the judgment" lay in the Court's assumption that, since France bad
in 1974 only conducted "atmospheric" testing, the concerns of New Zealand
could be related only ta atmospheric testing;
u France had undertaken ta discontinue that form oftesting;
iii Therefore, on that bac:js, the daim of New Zealand had no further abject as
matters stood in 1974.
27. But, at the same time, the Court foresaw that the ''basis of the
judgrnent" would be affected if:.Jew Zealand's concems which related to nuclc3I
testing ingeneral terms, becarne relevant in the future either becausc the fa!lout from
French nuclear tests produced radioactive contamination violating New Zealand's
rights or because French conduct in relation to nuclear testing otherwlse violated
New Zealand' s rights.
28. Tt is not correct to treat lhe cornmitmcnt undertak.en by France as
controlled by the adjectives "atmospheric" and ·'underground", so that only
atmospheric tests would be banned and any and ail underground tests would be
perrnitted. As the Court itse!f said in paragraph 31 of the 1974 Judgment, "the Court
must ascertain the true subject of the dispute, the object and gurpose of the cla.irn".
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That "true subject" was, as set out in the concluding request of the 1973 Application, a
declaration "1hat the conduct by the French Goverrunent of nuclear tests in the South
Pacifie region tbat give rise to radioactive fallout constitutes a violation of
New Zealand's rights under international law and that these rights v.-illbe violatcd by
any further such tests... That request was not lim1ted by the adjective '·atmospheric".
That omission was not accidenta!. New Zealand was not opposed simply to
atmospheric testing but to any testing that gave rise to environrnental contaminati~n
whether by radioactive fa!lout on the territory of New Zealand or by radioactive
pollutionof the marine environment. \Vhen the adjective "atmospheric" was used in
the arguments it was because thot word described the only type of testing that had
until that time been conducted by France in the Soul.h Pacifie region and that had
given rise to radioactive fallout in the areTtwas not because of any suggestion that
D..IJ .r:ospheric testing could cause pollurion.
29. At severa! points in the New Zealand pleadings, both wrinen and oral,
in the 1973·74 proceedings it was made plain that the concern of New Zealand was
with the v.ider problem of radioactive contamination rather than the narrow issue of
atmospheric testing as the single source of such pollution. Thus the 1973 Application
referred in paragraph 27 to '·... intensified goverruncntal and popular action to control
and prohibît nuclear weapons and their testing in the atmosphere and elsewhe ..".
In paragraph 28 reference wa." made to the violation of New ZeJ.land's rights "by
nucleor testing undertaken by the French Govemment in the South Pacifie region"
without limitation to atmosphenc testing (JCJ Pleadings, voi.II p.8). Moreover, the
rights for which New Zealand sought protection were not rights wh.i.chcould be
violated ~ by atmospheric fallout, namely, the inviolability of New Zealand's
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territory. They included also non-territorial rights which could be affected by the kind
of contamination that îs now in issue, namely, the right ta preservation from
unjustificd a.Jtificialradioactive contamination of the maritime environmcnt, the right
that no radioactive rnaterial enter the territorial waters of New Zealand, the Cook
Islands, Niue or the Tokelau Islands and the right of New Zealand to freedom of the
high seas, including the freedom !o exploit the resourccs of the sea and seabcd,
v.ithout interference or detriment resulting from nuclear testing (see paragraph 28 of
rhe Memorial, referred to above).
30. The rights of New Zealand were expressed in identical terms in
paragraph 2 ofits Rcquest for the indication of Interim Measures of 14 May 1973 and
in the interim measures proposed in paragraph 51 thereof
.31. Again, in its Memorial on Jurisdiction and Admrssibility, paragraph
, n.New Zealand, in describing the rights for which it was seeking protection, v.-rote
of the first two categories of rights ir claîmed: "Yer the rights are the s::uncfor ali.
They reflect a community interest in the protection of the sccurity, !ife and health of
ail peoptes and m the preservation of the global environment". The scope of the rights
which New Zealand was seeking to protect and, therefore, the absence of limitation of
the sources of violation of such rights, was further demonstrated in paragraphs 210
and 213 of the same Memorial, where, in the latter paragraph, New Zealand said:
"No country has more consistently and c!early exprcssed opposition to French
nuclear testing in the South Pacifie. No country has a stronger daim to a legal
intercst in the protection of the right to inhabit a world free from nuclear
testing in the atmosphere and the right to the preservation of the environment
from unjustified artificîal radioactivecontamination". 14
Although this sentence includes the adjective "atmospheric" the context makes it clear
that itwas not used as a lirnîting description but only as the description of the source
then responsible for contamination in the region.
32. Moreover, the fact that the term "Jaiiout" was often used in conjunction
with the mention of atmosphcric testing should not be taken to mean that"fallout" is a
concept of a gravitationaf kind associated only \Vithannospheric testing. "Fallouf'
has a wider meaning and in, for cxample, the Oxford Encyc!opaedjc En~lîsh
Dictjonary, is dcfi.ned as "radioactive debris causcd by a nuclear explosion or .
accident". Radioactivity can "fallout" of the Mururoa tests equally weil by seepage or
leakagc from its structure.
33. Indeed, if the Court were to accept the present insistence by France
upon the controlling force of the adjecüvcs ·'atmospheric''and "underground" alone,
the Court would in effcct be subscribing to the following propositions:
(i) that in 1974, when New Zealand was thought by the Court to have
requested it to declare atmospheric testing illegal, New Zealand wou!d still have been
content that the Court should pennit othcr fonns of testing that could give rise to
nudear contamination of a k.ind similar to that which New Zealand was seeking to
stop;
(ii) that in !974, when France undertook to stop aunospheric testing. it
would have been acceptable for it, without changing the content of that commitment,
la have expressly reserved the right ta cause simîlar kinds of nuclear contamination
provided that îtdid so by mcans ofnon-atmospheric, e.g. underground, testing; and
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(iii) that in 1974, when the Court treated the cornmitments entered into by
France as meeting the concern expressed by New Zealand that nuclear testing should
be endcd, the Court regarded bath New Zea!and's daim and France's undert.akîng as
subject to an exception pennitting nuclear contamination of rhe environrnent, provided
thatitwas not caused by atmospheric testing.
34. One only needs ro spell out in this way the implications of treating the
adjectives "atmospheric" or "underground" as controlling factors to demonstratc the
unreality of the interpretation whîch France now seeks to put upon the use of those
words.
35. Thus the conclusion must be reached, in relation to the circumstances
in which the 1973 case rnight be reopened, that the basis of the Court's 1974 judgment
was not solely the Court's recognition that France had w1dertaken to give up ali
atmospheric testîng. lt was rather that, whilst ,, d74 lhe French comrnitrnent met
New Zea!and's immediate concems, any new development which re·activated those
concems by raising new fears of contamination of the environment would affect the
basis of that judgrnent. Underground testîng at the moment of the Judgmenl was not
in issue,and the Court had beforc it no evidence that suchtcsting either could or could
not lead to radioactive contamination of any part of the environment.
C. The existence of the cjrcumstances in which the 1973 case may be resumed
36. The third aspect of the operation of paragraph 63 of the 1974 Judgment
is that thebasis of Ù1e Judgment should be af:fected by subsequent conduct on the part
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of France. This requires sorne consideration of whether the conduct of France, cither
past or prospective, has affccted tl1ebasîs on which the Court concluded in 1974 !hat
the daim of New Zealand no longer had any abject. This is, first, a matter of
idenüfying the standard of proof applicable in such circumstances; and, second, a
question of whether this standard is satisfied by the facts before the Court.
(1) The standard ofpmof
37. In approaching this matter, it is necessary to bear in mind the evolution
during recent years of the international law of the environment. The relevance of
evolution in the pertinent law bas been clearly poinred out by the Court in the Aegean
Sea (Jurisdiction) Case (!CJ Reports 1978, p.3, at pp.32·34), where the Court held
that the rneaning of the expression '"theterritorial status of Grccce" in a reservation
attachcd by Greece to its acccptance of the 1928 General Act must have been
''intended tc fol!ow the evolution of the law and to correspond with Ùle meaning
---:1edto the expression by the law in force at any given time". Again. at p.34, the
Court stated that ît "has to tak.eaccount of the evolution whlch has occurred in the rule
of international law concerning a coasta! State's rights of exploration and exploitation
over the continental shdr'. If the evolution of customary international law is relevant
ta the interpretation of a reservation to a jurisdictional provision, it is no less relevant
to the detennination of the Court's approach to the standard to be applied in asscsslng
the signi1icance of pertinent scientific information.
38. In terms of the present case. the relevant evolution of the law to be
taken into account îs that relating to the protection of the environment, national}y and
intematioml.lly. In particular, States have become aware that in this area of activity it
A;\L05-SEP-1995 15:50 FROM TO 0031703632983 P.08/10
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is no longer sufficient to rdy on concepts which previously determined lhe obligations
of States. The generai proposition, in relation to international daims, that a State
aHeging that the conduct of another had or wouJd have transboundary consequences
must prove Ùle existence of harm or damage, has now, in relation ta envirorunental
matters, been :s:ignificantlyaltered by the evolution of the '"precautionary principle"
and of the associatcd procedural requirernent of the conduct of environmental impact
assessrnents (EIAs). ?jo longer is itcorrect for a State whose conduct in the
environmental field is challenged ta say: "We may proceed unless and until you, the
complainant, can prove thar our conduct has caused damage or that our proposed
conduct will, oris likely to. cause damage". The burden ofproofhas, in effect, been
reversed. It now rests upon the State which proposes ta act (especially in nuclear
maners) to show through appropriatc procedures, in the form of EIAs, that its
proposed conduct will not cause environmental harm. Indeed, for France there is a
specifie obligation in this respect by virtue of the Noumea Convention. This shift in
the anus of proof is essential in the environmental field because normally - and
certain!y in this case- the facts are largely in the possession of the State planning the
activity. lt is self-evident that New Zealand does not have access to the Mururoa
AtolL In the present document it is not necessary to develop this point :further. The
Court is respectfully rcferred to paragraphs 105-107 of the main Request.
(2) The fajlure of france to meet the required standard
39. lt is not necessary in !his Aide-Memoire, intcnded only 1:0assist the
Court in addresstng the procedural questions raised by the President, to develop in
detail the contention that France has failed in its obligation to apply the precautionary
A:\L05-SEP-1995 15:50 FROM TO 0031703532953 ~.29/~2
18
principle orto carry out an appropriate EIA in accordance with ils obligations under
the Noumea Convention and customary international law. lt is a fact that sorne 34
atmospheric and 124 underground nuclcar tests have already been carried out at the
Mururoa Atoll and a further 4 atmosphcric and 8 underground tests at Fangataufa
Atoll. The French Government has alleged that these tests have notoccasioned any
significant radioactivecontamination of the surrounding marine envirorunent and that
their continuation will not do so. In the present proceedings New Zealand is not
seeking to condemn France l'orcontamination that has already occurred as a resuit of
such tests- even though there is evidence to contradict the contention of France that
there has been no such contamination. The essential complaint of the present
proceedings is that there is a reasonably founded concern that what France has already
clone in the two atolls (particularly Mururoa) may curnulatively bave so weakened
thcirstructures that further te:.ts of w1disdosed force may develop such weaknesses
and fractureÙlOse structures in a way leading to greater escape of radioactive material
into the marine environment. Contrary to hench statements, none of the scientific
missions to Mururoa has been enabled to form a properly researcbed or informed
opinion of the matter, beyond observing that there has already been sorne noticeable
and possibly significant impact upon the structure of Mururoa.
40. lt has not been possible for any rcsponsible independent scientist to
concludc that the proposcd tests do not carry any environmental risk or that such risks
as are involved are justified by any benefit to be gained from the tests. Such scicntists
have not bccn given appropriate opporrunities to investîgate the problem and the
French authorities have not providcd in relevant scope or detail the information which
A:\L05-SEP-1995 15:50 FROM TO 0031703632983 P.10/10
19
is necessazy for suitable conclusions to be dra~n. In thus failing to provide in
advance the necessary information abaur the tests, France has violated the obligations
resting upon it by virtue of international adherence to the precautionary principle.
Moreover, it has failed to comply with its own express obligation under the Noumea
Convention, as weil as its customary international law duty, to carry out an ElA or
provide equivalent reassurance ta the international community.
D. Conclusions ofthjsPart
41. In the light of the considerations seout above, New Zealand submits
rhe following conclusions:
ln 1974 the Court rescrved the possibilîty of resuming the case if the basis of the
Court's Judgment were affected;
11 The circumstancev ___ n_ contemplated as affecting the basis of the Court's
Judgment were any dcvclopments that mighr rcactivate New Zea!and's concem that
French testing could produce contamination of the Pacifie marine environment by
any artificial radioactive material;
iii If thcrc is evidence that a risk of radioactive contamination of the marine
cnvironment may be produced by France as a rcsult of the proposed tests, then the
Court should procecd to an examînation of the siruation 'Withinthe framework of
the 1973 case. (The question of the prier indication of interim measures has
already been mentioncd in Part Hl above.);
A:\L TO 0031703632983 ?.01/~3
20
iv As matters have rumed out, the Court's understanding and belief in 1974 !hat
New Zealand's concems would be fully met by a cessation of atmospheric testing
cannat be maintained because thcre is now a well-founded apprehension of
cumula1ive damage to the structural integrity of the atoUs such as maytothe
funher contamination of the marine environmeby radioactive material as a result
of additional tests;
v The burden of proof does not rest upon New Zealand to show positively thar such
contamination of the marine environment will, or even may, takc place. In view of
the development of both treaty and customary international law standards
applicable to environmental matters, the burdcn rests upon France to satisfy the
requirements of the precautionary principle and, to that end, to carry our a suitable
EIA in orcier establish that such contaminatwillnQ1 occur~
vi By reason of the above, the vîew to be taken of the present proccedings is thar they
are properly a rcquest to examine Ihe situation arising out of the French proposai to
renew underground testing. As such, the request cmdensuing examination take
place within the framework of th1973 proc~:: end îrno be regarded in law
as a resumption and continuation thereof.
Y. "rHE PQSfTION OF THE AD HOC JUDGE CHOSEN RY NEW ZEALAND
42. When the case was comrnenced in May 1973 New Zealand nominated
as Judge ad hoc the Rt Hon Sir Garfield Banvick, then Chief Justice of the High
Court of Australia.Sir Garfield sat bath in the interim mcasures proceedings and in
those relating to jurisdictionand adrnissibility which led ta the Judgment of
20 Decemb~ 1974. Sir Garfield, being now rather advanced in years, has conveycd
his resignation to theurt.
A:\L 21
43. In view of the continuity of the proceedings, New Zealand is entitlcd to
choose another ad hoc Judge in succession to Sir Garfield. By !errer of 21 August
1995, New Zealand comrnunicated to the Coun its choîce of the
Rt Hon Sir Geoffrey Palmer.
44. France hasnot raised any objection to the selection of Sir GeofItey.
has taken the same position îtdid in 1973. Anhat time, by a letter of 16 May 1973
to the Registrar of the Coun (see Pleadi Vo~lI,pp.347-48) the Ambassador of
France to the Netheriands said:
"... le Gouvernement de la République estime que la Cour n'a manifestement
pas compétencedans cette affaire et qu'il ne peut accepter sa juridiction ...
De ce fait, .de l'avis de ~ouvernem lenuestion de la designation d'un
juge ad hoc parleGouvernement Néo-Zéiandajsne <;epose p~, non plus que
celle de l'indication de mesures conservatoires...." (Emphasis supplied.)
45. ln relation to the present phase of the case, the Amba:.,..:...:...;.:,rof France
to the Netherlands said in his lettcr of28 August 1995 ta the Rcgistrar of the Court:
"... le gouvernement de la Republique française estime que la Cour n'a
manifestement pas compétence pour connaître de l'action intentée par la
Nouvelle-Zélande et qu'il ne peut accepter sajuridiction en !'espèce.
De ce fait de ravis de mon gouvernement. la guestion dedésj~oat i'n n
jui"e "ad hoc" par le gouvernement de la Nouvelle-Zélandene se pose pas, non
plus que celle de l'indication de mesuses conservatoires qui n'auraient en tout
étatde cause peu dejustification ...." (Emphasis supplied.)
46. Tn 1973 the President of the Court, at the opening of the oral
proceedîngs on the request for interim mcasures, referred ta the terms of the lcner
from France of 16 May 1973 qttoted in paragraph 36 above and concluded: "Thus the
objection on theart of France was not one within the meaning of Article 3, paragraph
A:\L TO 0031703632983 P.03/8S
22
], of the [1972] Rules of the Court [corresponding to Article 35(3) of the 1978
Rtùes]". Sir Garfield Barwick accordingly sat as the ad hoc Judge chosen by
New Zea!and both at the interim measures stage and at the jurisdiction and
admissibility stage. Since the words useù by France in its letter of 28 August 1995
are.in this respect, identical with those usedin its letter of 16 May 1973. itmust be
presumed that the Court will treat the words used in the Iater Ietter in the same way as
it did the words in the earlier letter- that is ta say, as not being an objection on the
part of France within the meaning of Article 3, paragraph l, of the 1972 Rules. There
is, therefore, nothing on the record that amounts to a relevant objection by France to
the immediate participation of Sir Geoffrey.
47. But even ifthcre were such an objection, it would not bind the Court.
And if the Court had to decide on the validity of the choice of Sir Geoffrey Palmer, it
would, so New Zealand submits, wish to take into accoW1.t the foilowing
considerations. It is c1ear, as New Zeatand suggests, that if Sir Garfield had not
resigned and if New Zealand had sought Ùle continuance of the 1973 case on the
basis of paragraph 63 of the 1974 Judgment and, let it be assumcd, in reaction to, or
anticipation of, undoubtedly atmospher:ic tests, there could be no doubt that
Sir Garfield would have been entitled to participate in all meetings and deliberations
of the Cowt, whether public or private, rclating to the case. This would flow from the
!ast sentence of Article 31(6) of the Statute which provides that ad hoc Judges "should
tak.epart in the decision on tenns of complete equality with their colleagues". What
would be true for Sir Garfield wou!d nccessarily be true in respect of his _properly
nominated successor. New Zealand submits, therefore, that in logic Sir Geoffrey
A:\L05-SEP-1995 15:53 FROM TO 0031703632983 P.04/08
23
Palmer should participate in what~v prrate meeting the Court may hold to discuss
the case, such as the one fixed for 8 September 1995.
48. 1l1e logic of the situation îs reinforced by the important consideration
that there is already a member of the Court of French nationality. If he were to
participateiD the private meeting and Sir Geoffrey werc excluded from it, there would
thus be an inequalîty between the Parties which it is the evident intention of Article 31
of the Statute to avoid. This inequality could only be remedied if the Judge of French
nationality were to stand do\\-n.
49. There is no real difficulty in the situation. It is comparable to any case
where an Applicant State, having nominated an ad hoc Judgc, is then con.ti-onted by
an objection to the Court's jurisdiction. It has been the practice of the Court to permit
th,ad hoc Judge to sit in the pre!iminary objection phase, even though the outcome
mîght eventually be a holding that the Court had no jurisdiction and. therefore,
implicitly that therewas no case in which the Applicant State could originally have
nominated the ad hoc Judge. The situation in "lhepresent case is analogous to this.
50. In any event, New Zealand suggests that thcre should come into play a
presumption of the continuity of the proceedings - a presumption which is created by
the very inclusion ofparagraph 63 in the 1974 Judgment. In theory, even ifÙle tests
cobe resumed were manifestly •;atmospheric", there might be sorne ether ground than
continuity on whîch France might wish to challenge the validity of a request for
examination of the case. Yet îtcould not be said in such circum.stmces that the ad
hoc Judgc nominated by New Zea!and could not sit. To New Zealand, it appears that
A:\L 24
if he could sit in that situation, he is entitled to sit in a case where continuity is the
lSSUe.
51. If the Court were to decide otherwîsc itwould, in effect, be violating its
Statute. The Court in 1974 opened up the possibi1iry that a request might be made at
sorne later date to resume consideration of the case. It did not then say that in such an
event it would exc!ude the ad hoc Judge. lndeed, it could not say so, for the Stature
contains no provision authorising the Court to suspend the participation of an ad hoc
Judge (ether than on the grounds indicated in Article 24, which are applicable to ail
Mernbers of the Court). Funhermore_,Article 21(5) of the Stature provides that "the
full Court shall sit except when it is cxpressly provided otherwise in the present
Statute". ln cases where an ad hoc Judgc îs properly appointcd, he or she must be
regarded as a member of the ·'full" Court- by reason. again, of the position of
complete equality cstabllshed by Article 31(6) of ÙleStatute.
>-. New Zealand therefore respect:fully urges the Court to proceed on the
basis that Sir Geoffrey Palmer is a member of the Court, in the capacity of an ad hoc
Judge, and that he should sit as such forthwîth.
VI. THE MAINTENANCE OF THE JlJRJSDICTIONAL BASIS OF THE 1973
PROCEED[NGS
53. A further consequence of the continuity of the proceedings is that the
present Requests still rest upon the same jurisdictional basis as did the proceedings
instituted m 1973, namdy, French acceptance of the 192& General Act and,
additionally, the French acceptancc of the Optional Clause.
A:\L 54. ln paragraph 18 of the 1973 Order indicating interim measures of
protection the Court held that •'theprovisions invoked by the Applicant appear,prima
facie. to afford a basis on which thejurisdiction of the Court might be foundc:d".
55. In paragraph 63 of the 1974 Judgmcnt the Court expressly preserved
the position under the General Act (whatever that position might bby stating that
••the denunciation by France, by letter datcd 2 January 1974, of the General
Act for that Pacifie Settlement of International Disputes, which is relied on as
a basis of jurisdictionin the present case, cannat constirute by itself an
obstacle to the presentation of such a request".
Logically the same must be true of the withdrawal by France on 2 January 1974 ofîts
declaration of acceptance of the Optional Clause. That logic is unimpairby the fact
thar the Court made no reference to this aspect of its jurisdiction.
VII. THE COURT IAKES THE CASE L'" ''>AlN AI THE PROCEDURAL
STAGE WHJCH II HAD REACHED AT THE DATE OF THE 1974
JUDGMENI
56. Another consequence of the continuity of the 1973 case is that it is still
at an interlocutory stage. In its Order of 22 June 1973 the Court called. upon the
Parties to argue, in the first instance, questions of the jurisdiction of the Court and the
admissibility of the Application (IC.JReports 1973, p.l42). The Court did not pass
upon those matters in its Judgment of 20 Decernber 1974 sinee ît limited itself to the
finding that the claim of New Zealand no longer had any object and that the Court was
thercfore not called upontogive a decision lh.ereon_
A:\L05-SEP-1995 15:54 FROM TO 0031703632983 ;o,0?/'2S
26
57. Accordingly, once the Court ho.spassed the provisional measures stage
of the case the next phase wou[d be the resumption of its consideration of the
questions ofjurisdiction and admissibility, as called forby its Order of 22 June 1973.
In view of the fact th.atthese matters have already been fully ple<1ded inthe Memorial
filcd by New Zealand on 2 Novembcr 1973 and in the hearings held on 10 and 11 July
1974, it is unnecessary to plead thcsc maners again in detail. However, the Parties
should be given an opportunity to submit a supplementary Memorial to take into
account developments subsequent to 11 July 1974 (that is, the date of the closure of
the oral proceedings), in particular the significance of the opinions expressed by six .
Judges in Decembcr 1974 ta the effect that the 1928 General Act is a valid basîs for
exercise of jurisdicrion by the Court. Thîs supplementary pleading could be combined
with a further Memorial developing New Zealand's main Request for an Exarnination
of the Situation_ Thereafter the proce::dings would continue in such manner as the
Court may deern appropriate.
Vlll. THE TREATMENI OF THE APP!.!CAI!ONS IO !NIERVENE
58. Orùy passing reference was made at the meeting of 30 August 1995 to the
Applications to Intervene which have recently been filed in the case.
59. New Zealand believes that these Applications are of importance as an
indication of legitirnate regional concem. ltraises no objection to them and wclcomes
them. It does not regard the fact that the Applicant States indicate a wish to
participate in the interim meas.ures stage as creating any insurmountable obstacles,
though it would hope that such participation would not contribute tc any delay in the
indication by the Court of provisional measures. Tt would be quite acceptable to
A:\L ~~-SEP-1995 15:54 FRO~
.u
27
•
New Zealand ifthe Court were to give the Applicant States an opportunity to support
their Applications at the hearîngs immediately after France (ifit appears) has replied
to New Zealand's opening presentation. New Zealand and France could then offer
any corrunents that they might have on the Applications in the course of their
repliques and dupliques.
IX APPLiCABLE RULES OF COURT
60. One consequence of the continuity of ù1e proceedings is that the
present phase of the case fallsv.ithinthe tenns of the last paragraph of the Prearnble to
the Ru!es of the Court adopted on 14 August 1978:
·"thefollowing revised Rules of Court ... shall come into force on 1 July 197&,
and shall as from that date replace the Rules adopted ... on 6 May 1946 and
amended on 10 May 1972. save jn respect of any case submjned to the Court
before 1 .Tulv1978. or anv phase of such a çose. wbjch shaH continue to be
governed by the Rules in force before thatdate".
4
New Zealand submit.<::' "'rc::foret,hat the Rules of Court adopted on 6 May 1946, as
amended on l0 May 1972, willcontinue to apply.
Respectfully submitted,
········~········
Co-Agents for New Zealand
5 September 1995
A:\1...
Aide-mémoire of New Zealand