New Zealand's attempts to end nuclear testing at Mururoa Atoll through the World CourtPaul East Attorney-General
INTERNATIONAL COURT OF JUSTICE NEW ZEALAND v FRANCE (NUCLEAR TESTING CASE: 1995)
- History of the International Court of Justice (ICJ)
1918: Need for Rules of Conduct among States.
1920: "Permanent Court of International Justice" established.
- To decide cases States bring before it according to principles of international justice.
- To develop international law.
1945: United Nations Charter establishes International Court of Justice as the judicial arm of the United Nations.
- Statute of ICJ
Only States may be parties to disputes. Article 34.
Advisory opinions. Article 65.
No State compelled to litigate against its will. States may recognise jurisdiction of Court as compulsory under "Optional Clause" with or without reservations. - Article 36.
- Composition of ICJ
Body of 15 independent judges elected by General Assembly of United Nations.
Term of Office: 9 years.
Nationality of Present Judges: Algeria, United States, France, Guyana, Venezuela, Sri Lanka, Madagascar, Hungary, China, Germany, Sierra Leone, Russian Federation, Italy and United Kingdom.
Judges make a declaration they will act impartially and conscientiously - Article 20.
They may sit in cases involving their own countries - Article 31.
- Ad Hoc Judges
If the Court includes a judge of the nationality of one party to a case the other country may appoint an ad hoc judge for the case - Article 31.
Role of ad hoc judge is to ensure other judges understand arguments advanced by the appointing country.
- ICJ's Procedures
Official languages: English and French
Representation: By agents, counsel and advocates.
Pleadings: Memorials, Counter Memorials and Oral
Hearings in public.
- The 1973-74 Case: Issues and Hearings
- In May 1973 New Zealand and Australia initiated proceedings over nuclear testing by France in the South Pacific.
- Australia's application addressed atmospheric nuclear testing. New Zealand complained about all nuclear testing that resulted in radioactive fallout.
- June 1973: ICJ grants applications for interim relief. France ignores the orders made.
January 1974: France withdraws its consents to ICJ jurisdiction. This has prospective effect only.
June 1974: ICJ hears argument over its jurisdiction in the case.
Thereafter France announces intention to move to underground testing.
- Outcome of 1973-74 Case
20 December 1974: ICJ delivers judgment.
Holds: France has made a binding commitment to cease testing in the atmosphere.
This meets Australia's complaint over atmospheric testing.
It also meets New Zealand complaint because in essence it was concerned only with atmospheric testing.
Because the complaints matched the binding promise, the two cases were "moot" and the dispute no longer in existence.
Subject to paragraph 63 the case should not proceed.
- Paragraph 63 of 1974 Judgment
"Once the Court has found that a State has entered into a commitment concerning its future conduct it is not the Court's function to contemplate that it will not comply with it. However, the Court observes that if the basis of this Judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute; the denunciation by France, by letter dated 2 January 1974, of the General Act for the Pacific Settlement of International Disputes, which is relied on as a basis of jurisdiction in the present case, cannot constitute by itself an obstacle to the presentation of such a request." (Emphasis added)
- Subsequent Events
1975-1990: France conducts 134 underground tests in Mururoa and Fangataufa Atolls.
1986: South Pacific countries conclude a Treaty for Protection of Natural Resources and Environment of South Pacific ("the Noumea Convention").
Obliges parties to take all appropriate measures to prevent, reduce and control pollution in convention areas resulting from nuclear testing.
1990: France ratifies Noumea Convention.
1992: France decides to cease nuclear testing in South Pacific joining a world-wide moratorium on nuclear testing.
June 1995: President Chirac announces resumption of underground testing in South Pacific.
- Legal Issues
Would resumption of testing be contrary to international law as:
- a breach of the Noumea Convention?
- a breach of emerging rules of international environmental law that require a party conducting activities at risk to the environment to first prove they are safe?
- if so, could New Zealand bring a case against France before the ICJ?
- New Zealand Government's Decision to Take Case
- Legal advice:
- Case outside of 1974 judgment leave to apply provision (Para 63), as underground testing contemplated in 1974.
- New Zealand not entitled to take a new case against France because of steps France took in 1974 to withdraw basis of jurisdiction
- Lobbying by Greenpeace.
- Ministerial consultations with Opposition parties:
Decision to proceed (8 August 1995).
- Legal advice:
- Course of Case
8 August 1995: Prime Minister announces decision. New Zealand Embassy in the Hague calls on ICJ Registrar to confirm New Zealand's intentions. 9 August 1995: New Zealand Embassy advises a formal proceeding will be filed on 21 August and a hearing sought as soon as possible thereafter.
21 August 1995:"Request for Examination of the Situation" and "Request for Interim Measures" filed in ICJ Registry.
Notification to Court of intention to have Sir Geoffrey Palmer appointed an ad hoc judge.
21-23 August: Court notifies France of application and serves New Zealand's documents, including translations, on French Embassy.
29 August: Preliminary meeting between ICJ President and Registrar and representatives of parties to discuss case.
No assurance there will be a hearing or appointment of ad hoc judge.
New Zealand legal team assemble in Cambridge, United Kingdom.
6 September: Sir Geoffrey Palmer arrives in the Hague.
8 September: ICJ judges meet for first time on case.
Agree to appoint ad hoc judge.
Agree the parties should express their views on the Court's jurisdiction on Monday, 11 September, at 2 p.m.
11 September(am): At preliminary meeting President agrees ICJ will hear parties over two days.
11-12 September: Oral Hearing: Court requests responses to written questions of parties.
15 September: Written responses submitted by New Zealand.
22 September: Judgment delivered.