NUCLEAR TESTS CASE (NEW ZEALAND v FRANCE)Paul East Attorney-General
I. Mr President and Members of the Court, as the Attorney-General for New Zealand I feel honoured and privileged to appear before you on this occasion to represent New Zealand in a matter which is of the greatest importance to it.
2. In 1973 one of my predecessors stood here in this highest Court in support of an application made by New Zealand. The proceedings concerned French nuclear testing in the South Pacific. The Government of New Zealand is here now, as it was then, in the spirit of the rule of law amongst nations.
3 Today New Zealand seeks to continue those same proceedings.
4. I recognise that last Friday the Court decided that the purpose of this public sitting is to enable New Zealand and France to inform the Court of their views on the following question:
2 "Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v France)?"
I will confine my speech, as will those who follow me for New Zealand, to that matter. It is necessary however to put the question asked by the Court into its factual and legal context and its regional context.
5. There are currently two documents before the Court - one is the Request for an examination of the Situation (the Main Request), the other is the Further Request for the Indication of Provision Measures (the Interim Measures Request).
6. The Main Request seeks a declaration from the Court that the conduct of the proposed nuclear weapons tests will constitute a violation of international law, or alternatively a declaration that it is unlawful for France to conduct the proposed nuclear tests unless an Environmental Impact Assessment is conducted according to accepted international standards. Unless such an Environmental Impact Assessment shows that the tests will not give rise to any radio-active contamination of the marine e4nvironment the tests should not proceed.
7. In view of the fact that the French Government has shown no willingness to reconsider its decision to break the moratorium on nuclear testing which it and other nuclear weapons states agreed on in 1992 or even to postpone the proposed series of nuclear weapons tests until the Court has had an opportunity to consider the matter, New Zealand is also requesting interim measures of protection from the Court. The need for interim measures has been sharply demonstrated by the nuclear detonation which took place at Mururoa on 5 September 1995.
8. New Zealand seeks an order from the Court to direct France to refrain from carrying out any further nuclear tests in the South Pacific Region.
9. The Court will be, aware of both the urgency and the gravity of the case before it. The nuclear weapons tests which were looming when New Zealand filed its Request for an Examination of the Situation and its Further Request for Provisional Measures have now, regrettably, become a reality with the news that France exploded the first of its series of nuclear weapons tests at Murorua on 5 September 1995.
10. New Zealand wishes to express its deep sense of regret and frustration at France's decision to proceed with its first nuclear weapons test since 1991 despite the clearly expressed views of the international community that it should not do so. It is particularly regrettable that France should begin its nuclear tests before the Court has been able to consider the New Zealand Requests. New Zealand sincerely hopes that France will not again act in a way that prejudges the outcome of this case.
11. It should not be thought that the fact that the nuclear tests have commenced in any way removes the need for the Court to consider the matter. On the contrary, France's actions in carrying out a nuclear weapons explosion on 5 September and the continuing determination of France to proceed with further tests, scheduled to take place between now and May 1996, highlights the urgency of the case and the need for provisional measures.
12. For New Zealand and other South Pacific countries this is a matter of vital importance. members of the Court will be aware of the rioting and destruction which has occurred in Tahiti following the recent nuclear detonation. The countries of the South Pacific are gravely concerned at these developments. New Zealand approaches this Court as an appropriate and responsible forum which can respond to the legal aspects of the concerns of our region. By having such matters heard in considered and judicial manner, it is hoped that much of the tension and anger which lead to the rioting can be dissipated. It is far better that the opposition to nuclear testing is presented in this way rather than by civil disobedience.
13. In just a few days the leaders of the South Pacific countries will gather in Papua New Guinea for the annual meeting of the South Pacific Forum. Their attention will be focused on French nuclear testing, which is of grave concern to the countries and peoples of the region. Their attention will also focus on these proceedings in the expectation that the due process of international law can provide early resolution.
14. My Government is therefore grateful to the Court for the steps it has taken to give New Zealand an early hearing.
15. The New Zealand Government is most gratified by the appearance of France before the Court today. This enables the serious issues at stake to be dealt with in accordance with the procedures envisaged by the founders of the United Nations and this Court.
16. When France announced the resumption of nuclear testing on 13 June of this year the New Zealand Prime Minister immediately made a public statement in the New Zealand Parliament deploring the French decision and urging the French Government to reconsider its decision. The New Zealand Parliament then considered a resolution condemning the resumption of French nuclear testing in the South Pacific. The resolution was supported by all seven political parties represented in the New Zealand Parliament and was passed unanimously. Bringing the matter to the Court is not an attempt of the party in Government to seek political advantage. It is rather a measured and responsible action taken with the full participation and support of all political parties in Parliament including the government's political opponents.
17. The next day on 15 June the New Zealand Permanent representative at the United Nations Conference on Disarmament made a similar announcement, stating in particular that New Zealand rejected the argument that further tests are necessary to ensure the safety of France's nuclear arsenal. before the Comprehensive Test Ban Treaty enters into force. He also observed that there was no justification that France could advance that would be consistent with the commitment that it had undertaken that pending the entry into force of the Comprehensive Test Ban Treaty "the nuclear weapon States should exercise utmost restraint."
18. On 4 July 1995 the New Zealand Prime Minister addressed a letter to the French President, referring to the statement made by the Prime Minister in Parliament, calling attention to the strong public reaction in New Zealand and indicating that the French decision had cast a pall over the relationship between New Zealand and France that would last so long as the nuclear tests continue. A further letter was sent by the New Zealand Prime Minister to President Chirac on 13 July 1995 stating among other things that "Small island nations dependent for their livelihood on the sea find the risk associated with testing unacceptable. Aside from the possibility of accidents there are concerns about the long-term consequences for the marine environment. Countries of the South Pacific are unanimous in their opposition to nuclear testing in the region."
19. New Zealand hoped greatly that diplomatic representations and realisation by France of the strength of public opposition in the world, including, it may be said, 60 per cent of its own people, would lead to the abandonment of French plans to resume testing.
20. In this hope New Zealand was encouraged by its recollection of the fact President Chirac's predecessor President Mitterand had on no fewer than three occasions expressly linked the continuance of French restraint in nuclear testing to the exercise of similar restraint by the United States and Russia.
21. It was, therefore, a considerable change of position that the clearly stated and firmly held policy of one President should now be repudiated by his successor. That change in position had to be carefully considered by the New Zealand Government, the more so given the warm nature of New Zealand's relationship with France and the ties which the two countries had in common.
22. Eventually the Prime Minister of New Zealand, on 17 August 1995 had to write to the President of France in the following terms: "We have earnestly sought to appraise all the avenues of action that are open to the New Zealand Government in order to further our view-point and to protect the national and international interests that we consider important. Needless to say, in this process we seek to act moderately in a manner consistent with the bilateral relationship between our two countries which, I agree with you, is both cordial and permanently based."The letter then went on to inform the French President that New Zealand had decided to have - urgent recourse to the opportunity afforded by the Judgment of 20 December 1974 in the Nuclear Tests Case.
23. In short, Mr President and Members of the Court New Zealand's response to the French announcement of 13 June, as it finally emerged in legal form when we lodged our Request for an Examination of the Situation of 21 August is one which New Zealand deferred until New Zealand had thoroughly explored with France the possibility that France would change its mind.
24. Mr President, as the Court will be aware New Zealand's concerns about the legality and safety of nuclear testing in the South Pacific are long-standing.
25. New Zealand is not returning to this Court on a sudden impulse. There has been continuous opposition, on New Zealand's part to nuclear testing in the region. This was not broken by France's decision, in 1974, to stop testing in the atmosphere in the South Pacific.
26. Our opposition to nuclear testing in the region is of long standing. Amongst other things, it reflects concerns for the South Pacific environment. It has also reflected the strong attachment of New Zealand, other South Pacific countries, and most of the international community, to nuclear non-proliferation and the goal of nuclear disarmament.
27. Since 1972 New Zealand has taken a lead in tabling a resolution each year at the United Nations General Assembly calling for a comprehensive test ban treaty to be negotiated. In 1993, for the first time, and again in 1994, the resolution was adopted by consensus. The negotiations on a comprehensive test ban treaty underway in the Conference on Disarmament ,on have been very much welcomed by New Zealand. The potential impact of resumed nuclear testing in the South Pacific, on the progress towards that ban has of course heightened alarm over the French decision. There is considerable concern that renewed French nuclear testing may jeopardise these negotiations.
28. Mr President, New Zealand's opposition to nuclear testing and nuclear weapons has also been expressed in domestic legislation, the New Zealand Nuclear Free Zone, Disarmament and Arms Control Act, which was enacted by the Parliament of New Zealand in 1987. Amongst other things that Act creates a nuclear free zone within New Zealand and gives effect at the national level to our related international obligations.
29. The New Zealand Act therefore complements the South Pacific Nuclear Free Zone which was established in 1986 by the entry into force of the Treaty of Raratonga. That treaty reflects the collective will of South Pacific nations.
30. The 1973 case, under which New Zealand now seeks to return to the Court related not just to New Zealand itself but also to the Cook Islands, Niue and the Tokelau Islands (now called "Tokelau"). The same applies to the Requests before the Court today. This is because New Zealand's acceptance of the Statute of the Court embraces these areas of the Pacific.
31. The Cook Islands and Niue are self-governing states in free association with New Zealand - having carried out acts of self determination under United Nations supervision.
32. Both governments have given their full support to New Zealand's action in bringing the matter before the court.
33. New Zealand continues to have responsibility for the administration of Tokelau under Committee of 24 supervision. Tokelau has indicated its support for New Zealand's stance on France's decision to resume nuclear testing in the South Pacific in a letter from the Council of Faipule to the Administrator of Tokelau. The Council of Faipule is made up of one representative from each of the three atolls that make up Tokelau.
34. New Zealand has made available to the Court copies of each of these letters.
35. When my predecessor appeared here in 1973 in the earlier phase of this case, he told the Court that New Zealand's concerns regarding nuclear testing were strongly shared by the peoples of the South Pacific Region. He referred to a regional identity based on ethnic and cultural ties, and to the emerging collective role reflected in the recently formed South Pacific Forum, which is the annual meeting of leaders from self governing countries in the region.
36. This regional identity has grown in the intervening period. The South Pacific Forum had seven members in 1973. In 1995 the membership has grown to 15.
37. The region's leaders, speaking through the South Pacific Forum and bilaterally, have consistently opposed nuclear testing in the South Pacific, and the region's use for nuclear purposes generally. This stance has been expressed in a great number of resolutions adopted in the Forum's annual meeting.
38. Forum Communiques and resolutions over the years show not only strong political opposition to nuclear testing in the region but also serious concerns about the risks to the environment as a result of the tests. This concern for the environment is reflected in numerous requests that have been made by the region for full and open scientific access to the testing sites. Regrettably, these requests have never been satisfactorily met by France.
39. It was with great relief therefore, that the South Pacific Forum welcomed the decision of France in 1992 to cease nuclear testing in the region. The Forum's strong wish - and, indeed its expectation given the public statements by the French President - was that this decision would lead to a permanent end to nuclear testing in the South Pacific. There is deep disappointment in the region that the moratorium on testing has now been broken.
40. Traditionally this region has been dependent on the marine environment for sustenance and survival. Many Pacific peoples five on small islands and atolls where land resources are very limited. This has lead to a strong dependence on the oceans.
41. The value placed on the maritime environment was demonstrated by the conclusion in 1986, of the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, known as the Noumea Convention. This Convention, which entered into force on 22 August 1990 reflects the collective wish of all counties in the region to take concrete steps to protect the environment and to engage in this process those nuclear powers which are in the region. Indeed, it was particular concern about radioactive contamination which triggered the negotiations on the convention. The Region welcomed France's ratification on 17 July 1990.
42. While there are many environmental conventions around the world, the Noumea Convention is perhaps unique in that it specifically addresses the issue of radioactive contamination from nuclear testing. The parties expressly obliged to "take all appropriate measures to prevent, reduce and control pollution in the Convention Area which might result from the testing of nuclear devices." There are also other quite specific requirements including those relating to Environmental Impact Assessments.
43. Mr President this language was very carefully chosen. It is not intended to condone testing in the Region. But it did impose quite specific obligations on any Party which has tested in the past, and any which might fly in the face of regional wishes in testing in the future.
44. It is clear that the only way France could carry out its obligations under the Convention would be to do an Environmental Impact Assessment. I can also do no better, Mr President than to repeat the words used by the French Foreign Minister, M. Herve de Charette in an open letter to the Australian public published in the4 Sydney Morning Herald on 28 July 1995: "openness is the sole remedy against fear,"he said. France has stated many times that it is committed to a policy transparency in relation to its nuclear testing. This assurance has been given time and again at both the political and diplomatic level. But that transparency has never been fully evident, and the concerns of New Zealand and the other countries of the region have not been fully satisfied.
45. It is important to the region to have an Environmental Impact Assessment, because France is conducting its underground nuclear tests in a unique environment. Whereas other underground nuclear tests have taken place in continental land masses, France is conducting its test in the fragile marine environment of two small atolls. The atoll structure is porous, and water saturated and interacts directly with the oceans.
46. Indeed I would suggest that the reason France has chosen Mururoa and Fangataufa for its current testing sites has nothing to do with their inherent suitability for underground nuclear testing. Rather, it was because the infrastructure for conducting nuclear tests was already in place as a legacy of the atmospheric tests conducted on the atolls until 1974.
47. This quest for information about the tests has been a central feature of the regions approaches to France on the issue. In particular the region has pressed for access to the testing sites by scientific missions.
48. While some access has been allowed on three occasions, in each instance access has been strictly controlled, and the missions have been narrowly focused and of limited durations. My government would like to make clear that none of the scientific investigations permitted by France to date satisfy New Zealand or the rest of the region about the safety of the tests. Nor do they meet France's obligations under general international law or the Noumea Convention to conduct an Environmental lmpact Assessment. There has never been a comprehensive EIA carried out in accordance with contemporary environmental standards.
49. On the contrary the information which is available regarding the risk of contamination surrounding underground nuclear testing at Mururoa has further fueled the fears and legitimate concerns of states in the region.
Summary of New Zealand case on continuity
50. Mr President I turn now with your leave, to explain in summary form the nature and legal objective of the Requests that have been made to the Court. This summary will be developed by my colleagues present with me now: the Solicitor-General of New Zealand, Mr John McGrath, QC; the President of the New Zealand Law Commission, Sir Kenneth Keith QC; the Legal Advisor of the Ministry of Foreign Affairs and Trade, Mr Don MacKay; and Professor E Lauterpacht, CBE, QC.
51. The first point which will be made is that this is not a new case. Rather New Zealand is relying upon the right reserved to it by the Court in the previous phase of this case in 1974.
52 When New Zealand commenced this case France was conducting atmospheric nuclear weapons tests in the South Pacific Region. After protesting strongly against nuclear weapons tests for a period of 10 years New Zealand took the decision to bring legal proceedings against France in this Court.
53. One basis of the proceedings commenced in 1973 was that the nuclear tests were in violation of international law in that they violated the rights of all members of the international community to the preservation of the terrestrial, marine and aerial environment from unjustified artificial radio-active contamination. At that time the New Zealand Government sought from the Court a determination that the conduct of nuclear tests in the South Pacific region that gave rise to radioactive fallout constituted a violation of New Zealand's rights under international law and that these rights would be violated by any further such tests.
54. Because of the urgency of the situation New Zealand also sought interim measures of protection from the Court in the form of an order that France refrain from conducting any further nuclear test that gave rise to radioactive fallout until the Court had decided the case.
55. This request for interim measures of protection was granted and the Court indicated that the Parties should take no action to aggravate the dispute or to prejudice the rights of the other party and that in particular the French Government should avoid nuclear tests causing the deposit of radioactive fallout on the territories of New Zealand, the Cook Islands, Niue or the Tokelau Islands. At the same time, the Court ordered that the next stage of the proceedings should be addressed to the questions of the of the jurisdiction of the Court to entertain the dispute and the admissibility of the Application. Notwithstanding the 1973 Order France conducted further atmospheric nuclear tests later in 1973 and 1974.
The Court's decision and the right reserved to New Zealand
56. In 1974 the Court heard oral argument on those questions of jurisdiction and admissibility. However, both before and after that oral hearing, the French Government had made a number of statements concerning its intentions as to future nuclear testing in the South Pacific region. The Court interpreted these statements as constituting a binding undertaking on the part of the French Government to cease atmospheric tests. In paragraph 29 the, Court held that the claim of New Zealand was to be interpreted as apply to atmospheric testing only. The Court concluded that as a consequence of the undertaking by France the essential New Zealand concerns had been met.
57. Accordingly. the Court concluded that it was not at that time necessary for it to make any further pronouncement on the case. However, this conclusion was subject to the qualification reflecting the fact that the only testing then conducted m the South Pacific was atmospheric testing. The Court recognised that case was clearly decided on this basis. In reaching this conclusion, however, the Court specifically reserved to New Zealand a most important right, the right to return to the Court in the event that the basis of the Judgment were affected. In that event, New Zealand could request an examination of the situation in accordance with the provisions of the Statute. This right was specifically spelled out in Para 63 of the judgment of the Court delivered on 20 December 1974.
58. The Court also added that the denunciation by France in January 1974 of the 1928 General Act on which New Zealand relied as one of the bases of jurisdiction in the case could not "by itself constitute an obstacle to the presentation of such a request." This addition is highly significant because, for reasons which will be elaborated later, it shows clearly that the Court in adopting this unprecedented procedure had it in mind that any proceedings which might subsequently be taken would represent a continuation of the same case, not the commencement of a new one.
59. In 1974 the assumption was made by all involved that the French decision to terminate nuclear testing in the atmosphere and to shift its tests underground met the immediate concerns of New Zealand about the contamination of the environment. But New Zealand's wider concerns remained, as New Zealand's application indeed made clear. Those wider concerns related to future conduct by France. No thought was given at that time to whether underground nuclear testing might lead to some of the same environmental consequences the subject of Zealand's application. The only nuclear testing taking place in the South Pacific at this time was atmospheric testing.
60. Underground testing at the moment of the Judgment was not an issue, and the Court had before it no evidence that such testing either could or could not lead to radioactive contamination of any part of the environment.
61. The essentials of the matter are that in 1974 the Court adopted a novel device for dealing with the situation before it. In this respect the Court was using its inherent power to regulate its own procedure and to do as it thinks appropriate for the achievement of justice. The procedure adopted in 1974 was in the same line of development as the procedure which it was to adopt Later in its Judgment of I July 1994 in the case of Qatar v. Bahrain (ICJ Reports 1994, p.112). In the operative part of that Judgment the Court did not respond to the submissions of either party - on the Part of Qatar that the Court had jurisdiction in the case and on the part remitting the matter to the Parties in order to afford them the opportunity to submit to the Court the whole of the dispute. In so acting, in the absence of any specific authority in the Statute, the Court was doing no more, than exercising its inherent power to regulate its own procedure. In case of the exercise of such power it is for the Parties to bring themselves within the specific terms of the procedure laid down by the Court. This is precisely what New Zealand is seeking to do in its present Request for an Examination of the situation.
62. The Court has asked us to address the issue of whether our current Requests fall within the provisions of Paragraph 63 of the 1974 judgement. In order to answer this it is necessary to consider the circumstances in which the right reserved to New Zealand can be exercised.
- One possibility certainly is that it might be affected by a resumption by France of atmospheric nuclear testing. If that were the sole possibility, then New Zealand would not be able to maintain the present proceedings.
64. On the other hand, it is more likely that in considering the idea that the basis of the judgment might be affected in some way the Court was concerned that the resumption by France at some future time of nuclear testing could give rise to artificial radioactive contamination of the environment. In a manner not foreseen in 1974. That, New Zealand contends, is what the Court must have had in mind. As New Zealand has pointed out in its Request and spelled out in fuller detail Aide-Memoire, is it to be imagined that when France announced its intention to terminate atmospheric testing (precisely, it may be noted, because such testing could lead to radioactive contamination), it did so subject to the following reservation? "But we reserve the right to cause radioactive contamination of the marine environment by methods other than atmospheric testing, e.g. underground testing."
65. The notion is absurd. The truth of the matter must be that when France gave up atmospheric testing and indicated that in the future underground testing would suffice for its needs, it did so because testing was at that time the sole known method of causing the contamination of which New Zealand complained, while underground testing was thought not to give rise to such risks.
66. It was not atmospheric testing that was in issue. It was testing that could cause radioactive contamination not only of the territory of other interest. When France resorted to underground testing it was not underground testing as such that it chose, but a method of testing that was at that time thought to be free of risk of causing radioactive contamination of the environment.
What has triggered New Zealand's exercise of this right - why now?
67. New developments between the Court's Judgment in 1974 and the present Request have justifiably reactivated New Zealand's original fears regarding the risk of contamination of the environment. These developments are such that the world can no longer be expected to rely upon the bare assertions that the tests are safe.
68. Accordingly New Zealand exercises the right reserved to it in the 1974 Judgment to return to the Court. It returns to the Court with the Request entitled "Request for an Examination of the Situation" - a title exactly reflecting the wording in which paragraph 63 of the 1974 Judgment expressed the object of such a return to the Court.
69. Until fairly recently the evidence has been that leakage of radioactive material from the atoll has been gradual and limited. However recently and somewhat belatedly, in creasing evidence has emerged of scientific concern about the possible environmental impacts of underground testing. This includes the work of a noted French vulcanologist, Professor Pierre Vincent, whose article on the environmental risks of nuclear testing at Mururoa is included as an annex to the Main Request. Professor Vincent has written:
"All the factors now known to be conducive to the destabilisation of volcanoes - major weathering and fracturing of materials and steep sides - are present at Mururoa. In view of that fact, the shock wave produced by one of the planned new explosions, even if it were conducted beneath the lagoon, could be big enough to cause one or more of the large "pre-formatted" blocks to shear away. This situation, which has no parallel anywhere else, can only be described as high-risk."
"The immediate consequences of such a destabilisation would be a sudden spill-out of part of the radioactive "stockpile" into the sea and the formation of a tidal wave - or, more accurately speaking, a tsunami - which would threaten the lives of those living not only in Mururoa but in neighbouring archipelagoes."
An example of more scientific concern comes from Dr Colin Summerhayes the Director the Institute of Oceanographic Sciences in the United Kingdom. Research on underwater landslides is new and it is only in recent years that the potentially catastrophic results of a landslide have become known. Dr Summerhayes is quoted in the Independent Newspaper on 9 September 1995 as saying that volcanic islands like Mururoa were:
"... inherently unstable and may fail given an appropriate trigger like an earthquake or a very large explosion. Failure is likely to cause a giant submarine landslide which may demolish parts of the island and could create a tidal wave that may itself damage coastal installations on other islands nearby."
Furthermore he stated that the creation of such a tidal wave was "a general threat to coasts as far away as New Zealand and Australia."
70. The possibility that the south-western sector of Mururoa in particular may leak as a result of further testing has become apparent in the last few months and it has become apparent from documents published by the commission itself. The data they present shows that the largest tests of the 1970s and 1980s took place in a small area of the western part of Mururoa, and that some had unanticipated effects. Some tests took place closer to the outer flanks than was desirable from a safety point of view. There must now be a concern that some of these old detonation chambers could become exposed directly to the ocean if further testing generates additional fracturing in the area.
71. It has been known for many years that accidents have occurred on Mururoa. There were three submarine landslides on the outer flanks of the atoll in 1977, 1979 and 1980 as a result of large tests conducted under the rim. The largest of these landslides in which approximately one million cubic, metres of material was dislodged generated a tidal wave that swept over part of the atoll, seriously injuring 2 people.
72. In addition to these accidents, which were acknowledged shortly afterwards by France, there have been at least two accidental releases of radioactivity during post-test sampling operations. These were acknowledged by France only after their occurrence had been established independently. Furthermore, it was only in the monograph published recently by the Atomic Energy commission that the fact that a device had to be detonated at less than its planned depth in 1979 was finally admitted.
73. One of the essential complaints of the present process is that there is a reasonably founded concern that what France has already done to the two atolls may cumulatively have so weakened their structures that further tests may develop the weaknesses and fracture the structures in a way that leads to substantial escape of radioactive material and risk to the marine environment. There is now reason to fear that these risks are substantially higher than was previously believed to be the case.
74. As knowledge about the risks of radiation and nuclear testing has increased so too have the standards applied to these activities by the international community. These increased standards can be seen as a response to the increased understanding regarding the risks to the environment. A notable example of these increased standards is the development of the law on EIAs.
75. It can now be said that them is a clear legal obligation on France to conduct an EIA before carrying out any further nuclear tests at Mururoa and Fangataufa both as a consequence of France's participation in the Noumea Convention and also as a result of international law derived from widespread international practice.
76. Closely linked to this is the emergence of a very widely accepted and operative principle of international law: the precautionary principle. In the field of environmental protection it has come to be recognised that insistence that a complaint must carry the burden of proving that the conduct contemplated by the, respondent will lead to damage, could rise to situations when irremediable damage would occur.
77. The principle provides that where there are risks of serious or irreversible damage lack of scientific should not be used as a reason for postponing measures to prevent environmental degradation. The precautionary principle has been applied in a wide number of situations domestically and internationally and is contained in many international treaties. It is also, significantly, incorporated in French domestic law regarding protection of the environment Because of the potentially devastating and long lasting effects of radiation the precautionary principle is particularly applicable to nuclear matters.
78. Again I return to the question before the Court. How do these matters submitted in 1995 fall within the provisions of the 1974 Judgment? Put another way - why does Now Zealand contend that the basis of the 1974 Judgment has been affected? It must be kept in mind that in recent years France has honoured a moratorium preventing any nuclear testing. There are three new developments providing compelling reasons for New Zealand to make its Requests.
First, new evidence regarding the cumulative effect of underground testing gives foundation to the fears held by South Pacific nations.
Second, the Noumea Convention requires France to cease testing until at the least an EIA has been completed.
Third, new developments in international law particularly the precaution principle place the onus of proof on France to offer satisfactory evidence that this testing is safe.
REQUESTS TO THE INTERNATIONAL COURT OF JUSTICE BY THE WORLD HEALTH ASSEMBLY AND THE UNITED NATIONS GENERAL ASSEMBLY FOR ADVISORY OPINIONS ON THE THREAT OR USE OF NUCLEAR WEAPONS
ORAL STATEMENTS BY NEW ZEALAND
OPENING STATEMENT: Hon Paul East, Attorney-General of New Zealand
May I say how privileged I am to represent the Government and people of New Zealand before this High Tribunal on this most vital matter. Members of the Court will appreciate that the questions brought before them by the World Health Assembly and the United Nations General Assembly are closely related to those matters which I addressed here just two months ago when New Zealand sought an examination of issues relating to French Nuclear Testing.
It will be our purpose on this occasion to supplement and develop the written statements which the Government has already filed in response to the Court's orders relating to the two requests for advisory opinions.
At the outset I would like to acknowledge groups and individuals from New Zealand, some of them present here today, who have worked so hard and played such a major role in bringing this matter before the Court.
Mr President, New Zealand voted for resolution 49/75K on 15 December 1994 whereby the United Nations General Assembly decided to request the advisory opinion of the Court on an urgent basis. In New Zealand's view, the question is an entirely fit and proper one for the United Nations General Assembly to be putting to the Court. To our mind, the Court unquestionably has jurisdiction in this case and it would be unthinkable to us for it not to decide the matter or for it to give an answer that would harm the cause or the process of nuclear disarmament and arms control. We would draw attention to the obligation on the Court to give its opinion on legal questions put to it by the main political organ of the United Nations. On a question as clear and as fundamental to the international legal order as this, the Court is, we suggest, bound to exercise its jurisdiction to reach a decision on the substantive issue put to it. As I will go on to show, the answer to the question put to the Court should be no; the threat or use of nuclear weapons should no longer be permitted under international law.
In brief, the New Zealand position on the Court's competence is:
1. That the Court has jurisdiction to answer the questions put to it by the World Health Assembly and the United Nations General Assembly.
2. That the Court ought to answer the questions- there are no "compelling reasons" standing in the way of its general duty to cooperate with other organs of the United Nations system.
I would also like to make mention of nuclear testing at this early point. I will come back to this subject later in my submissions, but I wanted to record at the outset New Zealand's outrage at the resumption of French nuclear testing in our region of the world. South Pacific countries have had to put up with nuclear testing for far too long. They have made it plain, at various meetings in the region and in international fora, that the latest series of French nuclear tests is unacceptable. These tests, and France's refusal to stop them forthwith, have only reinforced in our mind that the international community must turn up the pressure on nuclear weapons. Simply put, the world must now be rid of them.
Mr President, the first of the two propositions that I have just mentioned is that the Court has jurisdiction to answer the questions. That proposition is easily established. Under Article 96 of the Charter and Article 65 of the Statute, the Court has jurisdiction to give advisory opinions on "legal questions" put to it by the United Nations General Assembly and by the World Health Assembly as an authorised body of a specialised agency. The questions put to the Court are without doubt "legal questions". The requests expressly refer to the obligations of states under international law and to what is permitted by international law. The fact that the question might be considered abstract does not affect that conclusion. The Court, in giving its very first opinion on the Admission of Members, rejected the argument that it was not competent to answer abstract questions as "a mere affirmation devoid of any justification", 1947-8 ICJ 57, 61. There is of course practice to show that the Court may have to interpret a question to facilitate the giving of an answer.
Any problem about the competence of the World Health Assembly to ask for an opinion has been made hypothetical by the request made by the United Nations General Assembly. Article 96 of the Charter of the United Nations and Article 65 of the Statute of the International Court place no explicit limit on the power of the General Assembly to request an opinion on any legal question. In any event matters of nuclear disarmament and indeed of disarmament generally are preeminently within the competence of the General Assembly. If authority is needed for that proposition it is to be found in Article II of the Charter and in the very first resolution adopted by the General Assembly at its first session. The fact that the Security Council has relevant powers under Articles 24 and 26 of the Charter does not affect that broad responsibility of the principal organ comprised of representatives of all Members of the United Nations.
I turn secondly to the Court's discretion to answer the questions put to it. It is plain from the Statute of the Court, that the Court is not bound to answer a request for an advisory opinion. Article 65(1) reads, in part "the Court may (I emphasise may) give an advisory opinion on any legal question at the request" of an authorised body.
The Court does not need to be reminded that it is both a judicial organ and an organ of the United Nations. The Court, in terms of Articles 7 and 92 of the Charter and Article I of the Statute, is the principal judicial organ of the United Nations. As a principal organ of the United Nations it is under a general duty to cooperate, whenever possible, with the other organs and with member States in the attempted attainment of the objects of the Organisation. The Court has clearly recognised that duty from the outset. For instance, in 1950 in the Peace Treaties case where its competence to answer the questions put to it had been challenged and where it was further argued that it should exercise its discretion against giving an opinion, the Court said in a very important passage:
The reply of the Court, itself "an organ of the United Nations", represents its participation in the activities of the Organisation, and, in principle, should not be refused. (1950 ICJ Reports 65, 71).
The Court has maintained that position without any deviation ever since. I will not weary the Court with all the references, but to refer to its recent advisory opinion, on the Applicability of the Convention on the Privileges and Immunities of the United Nations, the Court declared that:
It is well settled in the Court's jurisprudence that when a request is made under Article 96 of the Charter by an organ of the United Nations or a specialised agency for an advisory opinion by way of guidance or enlightenment on a question of law, it should entertain the request and give its opinion unless there are "compelling reasons" to the contrary. 1989 ICJ Reports 191.
Any such compelling reasons would most likely relate to possible compromise of the Court's judicial character. It is not only a principal organ of the United Nations; it is also a judicial organ and must remain true to that character. So far the Court has not ever considered itself prevented from answering questions put to it by reference to such reasons. It has answered each and every question put to it, although in some cases it has had to interpret the question. The objection of an interested State to an opinion being given is not itself a reason for refusal. The Court has made that clear in several cases, from the Peace Treaties case to the Western Sahara case.
The statements and practice of the Court do however give some indication of the reasons relating to its judicial character which might compel it to refuse to answer. They could concern only one of three matters. The first is that interested States and parties should have full and equal opportunity to present their case in writing and orally and to reply to the arguments made by other participants in the process. The second requirement is that the Court must be provided with all the information necessary to enable it to answer the question put. Thirdly, the process must be a public one.
In the present proceedings, all of those requirements in our submission have been amply satisfied. The Court, through the orders it has made and the procedures it has followed, has given all interested States an ample opportunity to present their cases in writing and orally. The Court has been and is being provided with a wide range of information and argument. The Court and its members can themselves, of course, seek further information from the organs which requested the opinions as well as from States participating in the process; as is indeed already happening. And the process itself is a public one.
In our submission it would be quite improper for the Court to question the motivations and reasons of the requesting organs. It would also be contrary to the separation of powers within the organised world community. The Court has plainly recognised these considerations. In the very first opinion which it gave, on the Admission of Members, it stressed its legal and judicial function, as opposed to any political role:
the Court cannot attribute a political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task..... It is not concerned with the motives which may have inspired this request.... (1947-48 ICE Reports 5 7, 6 1).
That is to say whether the requesting organ should or should not make the request is a matter for it and its members and for it and them alone. If the requesting organ considers it no longer requires the opinion it can vote to withdraw the request, as has happened just once, in 1925 in the case of Expulsion of the Oecumenical Patriarch, PCIJ E3 p 1 84. Neither body has taken that action. These requests remain before the Court. In New Zealand's opinion the wisdom of making the request is not a matter that can be the subject of legal evaluation by the Court to which the request comes.
To repeat, New Zealand does not see any "compelling reason" standing in the way of the Court answering the questions put to it. On the contrary, the Court should respond to the clear indication given by the requesting organs both in the decisions to seek the opinions and in the terms of the resolutions seeking them of their need for the opinions and of their real interest in having the opinions. For instance, in its resolution, the World Health Assembly recalled earlier studies by the World Health Organisation on the health and environmental effects of nuclear weapons, and affirmed
that primary prevention is the only appropriate means to deal with the health and environmental effects of the use of nuclear weapons.
The Assembly expressed its realisation that primary prevention of health hazards - a matter plainly within the competence of the World Health Organisation - required clarity about the status in international law of the use of nuclear weapons.
The General Assembly in its resolution requesting the opinion, recalled earlier resolutions declaring that the use of nuclear weapons would be a violation of the Charter and a crime against humanity and expressed its conviction that the complete elimination of nuclear weapons is the only guarantee against the threat of nuclear war.
Accordingly New Zealand submits, first, that the Court has jurisdiction to answer the questions asked by the two bodies and, second, that it ought to answer them.
I now turn, Mr President and members of the Court, to the substance of the New Zealand submissions.
The Court already has available to it New Zealand's written statements. It is also hearing from many other states, a record number I understand, attesting to the vital importance of the issues placed before the Court. We will endeavour in our submissions to focus as succinctly as possible on the principal issues.
I will begin with the fundamental principles of International Humanitarian Law. I will contend that, in the context of the developments which we have outlined, those principles forbid the use, in any circumstances, of nuclear weapons and likewise any threat of their use.
I will then emphasise the great importance of the obligations undertaken by the parties to the Nuclear Non-Proliferation Treaty, obligations which look forward to a ban on the very existence of nuclear weapons, let alone their use.
My colleague, Mr Bracegirdle, will then address the development of the practice limiting and prohibiting the development, deployment, testing and use of nuclear weapons and will refer to the law prohibiting the use of force.
I will then return to the rostrum to deal with the testing of nuclear weapons in more detail and to conclude the New Zealand submission.
International Humanitarian Law
Mr President and members of the Court, in this part of New Zealand's submissions, I will seek to persuade you that International Humanitarian Law forbids the use of nuclear weapons. We have long ago passed from the situation described by Cicero in 52BC:
"Silent enim leges inter arma"
"Laws are silent in time of war"
This is clearly no longer the case, and the first point I wish to make about this body of International Humanitarian Law is that in significant part it takes the form of principles. The Court recently recognised the existence of "fundamental general principles of humanitarian law" in the Military and Paramilitary Activities case 1986 ICJ Reports 1 13. That characteristic is important for at least four reasons:
I . The first is that these humanitarian principles endure and provide a continuing standard, even as the activities, weapons and methods and means of warfare to which the principles are to apply change, and as a consequence the detailed law also changes. The continuing relevance of humanitarian principles is evidenced by the new tribunals established in respect of international crimes in Former Yugoslavia and Rwanda.
2. It follows that the principles apply to new weapons and methods and means of warfare; the principles are not bounded by the circumstances and weapons at the time they were first stated; the point is reflected in Article 36 of the First Additional Protocol to the Geneva Conventions concluded in 1977 and now accepted by 140 states; that provision requires a State in the study, development, acquisition or adoption of a new weapon, means or method of warfare, to determine whether the use of the weapon would in some or all circumstances breach international law.
3. The principles are not however immutable, nor do they comprise a closed list; developing circumstances and especially major threats presented by new weapons of mass destruction may well require the development of further principles.
4. The principles continue to give life to the law, even although specific provisions regulating an area in a particular way have not yet been made; the world community has long recognised that proposition in the DeMartens clause included in relevant treaties since last century. In its latest form, in Article 1(2) of the First Additional Protocol of 1977, the principle is stated as follows:
In cases not covered by this protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.
Members of the Court will recall, of course, the similar reference to "elementary considerations of humanity" in the Corfu Channel case, the Judgment in which was given nearly 50 years ago, 1949 ICJ Reports 22.
It follows from these characteristics of the body of International Humanitarian Law, that it is no answer at all to the present questions to say that the use of nuclear weapons is not prohibited by international law since there is no specific treaty to that effect. Rather the question must be determined by reference to broader principle in the context, among other things, of the developments, especially relating to the Nuclear Non-Proliferation Treaty. The Court is being asked to state the law as it now is.
I turn now to the particular principles of International Humanitarian Law, conscious of course that you will already have heard a great deal about them in the last week or two, also about the effect of the use of nuclear weapons in armed conflict.
I begin with the most general principle, one that takes a somewhat negative form. According to this basic principle, the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited. That is to say the world community rejected any doctrine of unlimited warfare or of total war. Rather, both in principle and in treaty obligations since the St Petersburg declaration in 1868, the world community has accepted that limit. It is a limit, of course, which flatly rejects in this area any general proposition that under international law states are free to act unless they are specifically prohibited.
The second principle requires parties to a conflict to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives in order to spare the civilian population and property. Neither the civilian population as such nor civilian persons are to be the objects of attack. Attacks must be directed solely against military objectives. There can of course be collateral civilian damage consequential to an attack on a legitimate military target. That realisation of the harsh facts of war is however tempered by the requirement that the loss of civilian life, injury to civilians, damage to civilian objects or any combination of those losses must not be excessive in relation to the concrete and military advantage anticipated. One member of this Court, citing an earlier President of the Court, has referred to an Indian classic, The Ramayana. That text tells us that the use of a weapon of war which would destroy the entire race of the enemy was forbidden by the virtuous Prince Rama. The reason given is that the weapon would destroy even those who did not bear arms; such destruction en masse was forbidden by the ancient laws of war even though Rama's adversary was fighting an unjust war. (Weeramantry, Nuclear Weapons and Scientific Responsibility (1987) 84 citing Nagendra Singh, Human Rights and the Future of Mankind (1981) 93).
A third basic principle is that parties to a conflict must not use weapons and methods and means of warfare of a nature to cause superfluous injury or unnecessary suffering. Again there is a recognition in this proposition that armed conflict does cause suffering. There is, however, a limit on weapons by reference to superfluity and lack of necessity.
A fourth principle is unlike the preceding three in that it cannot be traced back to last century or even earlier. It has been recognised more recently as the destructive effect of weapons has massively increased. Under this principle parties to a conflict must not use methods or means of warfare which are intended or may be expected to cause widespread, long term and severe damage to the natural environment. Closely related to this principle is the concern for intergenerational damage, a matter touched on by Judge Weeramantty in his dissenting opinion given in this Court two months ago when New Zealand sought to resume the case which it had brought in 1973 relating to French Nuclear Testing. That idea of a continuing obligation owed to future generations is increasingly recognised in environmental law.
Indeed, it is noteworthy that over 200 years ago, an American President, James Madison, espoused a not dissimilar principle when writing in the "National Gazette" on February 2nd, 1792. "Each generation should bear the burden of its own wars", Madison said, "instead of carrying them on, at the expense of other generations".
A fifth relevant principle of International Humanitarian Law is that methods and means of warfare must not violate the neutrality of states which are not participating in the conflict. Belligerents have no right to carry on hostilities within the territory of such a state. Neutral states have the right to freedom from harm and injury arising from an armed conflict with which they are not involved.
Finally is the set of rules prohibiting the use of asphyxiating, poisonous or other gases and all analogous materials. This principle is generally acknowledged as forming part of customary international law and is codified in part in the 1925 Geneva Protocol on the use in war of gases and bacteriological weapons. Given the radiation effects of nuclear weapons many contend that this body of law also applies to nuclear weapons.
The most recent authoritative statement supporting the propositions I have stated is the First Additional Protocol of 1977 relating to the protection of the victims of armed conflict. In the course of the preparation of that agreement, nuclear powers made it clear that they did not consider that text governed the use of nuclear weapons. I do not intend to take up the particular legal effect of those various statements and declarations. Rather it is enough for present purposes to make the point that in the present context that text is simply a convenient statement of well established principle existing under customary international law independently of the formal status of the 1977 Protocol and its exact interpretation. This Court did of course, in 1986 in its Judgment in the case concerning Military and Paramilitary Activities, recognise the customary force of the Geneva Conventions. The force, it said, does not derive only from the conventions themselves but from the general principles of humanitarian law to which the conventions merely give specific expression.
I might note, Mr President and members of the Court, that such fundamental principles which have the character of jus cogens do not fall within the scope of the primacy provision in Article 103 of the Charter; the obligations arising from those principles are not to be found simply in "any other international agreement". They have a much more basic character.
Nuclear Non-Proliferation Treaty
Mr President, I would now like to consider the fundamental legal obligations that exist concerning nuclear weapons, particularly in the context of the Treaty on the NonProliferation of Nuclear Weapons. In 1968 many countries around the world entered into a compact. Non-nuclear-weapon States agreed not to develop nuclear weapons. Nuclear-weapon States, for their part, agreed to negotiate in good faith on bringing the nuclear arms race to an end at an early date and on nuclear disarmament.
These were commitments of the most solemn kind. Security is a fundamental concern of nation states and the United Nations. Countries do not lightly renounce whole categories of weapons that they have come to see as being, or as holding out the promise of being, essential to their security. But in 1968, the paradoxical nature of nuclear weapons was already well understood. If ever used, they would most likely ensure the destruction, not the maintenance of the security, of the user. It is trite today to observe that these weapons were wholly different from anything that humanity had previously had to deal with. The threat and fear of such weapons and of their proliferation was very real. They posed a unique challenge to the international legal order.
That concern remains with us today, even if the worst fears of the 1960s have not been realised. It was widely recognised that nuclear weapons posed an overwhelming danger to humanity. Their further proliferation, whether "horizontally", involving the acquisition of nuclear weapons by additional countries, or "vertically", through the development of greater numbers of nuclear weapons and of new types that might appear to make nuclear weapons more "usable" and thereby supposedly enhance their deterrent value, would not be in anyone's interests. The overriding security imperative that underpins the Nuclear Non-Proliferation Treaty adopted in 1968 is that nuclear weapons are too dangerous for humanity and must be eliminated. That is the central and fundamental point of the treaty, as its preamble makes clear. This security imperative remains as valid today as in 1968. The willingness of the parties, at their Review and Extension Conference in May 1995, to make the treaty permanent, is the strongest evidence that that is so. That decision also emphasises that the international community's rejection of nuclear weapons that is the very basis of the treaty is a permanent rejection.
In New Zealand's view, it is very significant that this treaty has broad international support. It is not yet universally accepted, but only a handful of countries have not yet committed themselves to its terms. Some 180 countries are party to it. What is especially significant is that all five nuclear-weapon States are now party to it. They are bound to work to eliminate their nuclear weapons, and the non-nuclear-weapon States Parties are bound not to acquire nuclear weapons. The principle of non-proliferation, of the unacceptability, of nuclear weapons is so widely accepted that it can now be said that it has attained the status of a norm at international law which binds all countries, even though the terms of the treaty itself do not yet bind all.
The agreed premise of the treaty is that a world free of nuclear weapons would be a better and more secure place. The treaty held out the promise of that goal being reached without undue delay. Even those states that are not party to the treaty would be hardly likely to disagree with the elimination of nuclear weapons. That has not happened. For most of the life of the treaty, the nuclear arms race accelerated rather than going into decline. Only in recent years has the nuclear arms race been reversed. It is due to the fact that that promise has not been fulfilled that this opinion is now being sought. The requests to the Court reflect the impatience and concern of the international community at the failure to live up to this promise.
The challenge to the Court that this case presents is a very large one. Nuclear arms control and disarmament has long been one of the highest objectives of the international community. The Court is bound to ensure that its opinions support and assist the achievement of that objective and do not jeopardise it in any way. The Nuclear NonProliferation Treaty, as reinforced by the recent decision of the parties to make it permanent, has "delegitimised" nuclear weapons. The international community is committed to their complete elimination. That this is so is clear beyond doubt as a matter of international law. There can be no turning back now from the treaty commitments. The Court must seize the opportunity to help in building on that process and achieving the objective of the treaty as rapidly as possible. It cannot do otherwise, and in particular must avoid any weakening of the process. New Zealand is confident that the Court's findings in this matter will be consonant with other developments in nuclear arms control and nuclear disarmament, including the rededication of commitment to the Nuclear Non-Proliferation Treaty, the imminent conclusion of a comprehensive nuclear test ban treaty, and further rapid progress in bilateral nuclear arms control talks.
Mr President, it is sometimes claimed that the Nuclear Non-Proliferation Treaty created two classes of countries, the nuclear-weapon States and the non-nuclear-weapon States, the "haves" and the "have-nots". Certainly, it recognised the reality of the world at the time, where some countries already had nuclear weapons and others did not. But more important, it set out the conditions by which equality could be restored between both sets of countries, that is, a world in which nuclear weapons would be eliminated as quickly as possible. In providing for the elimination of nuclear weapons, it was plainly not aiming to maintain the status quo or encourage renewed development of nuclear arsenals by the nuclear-weapon States. No distortion of that kind stands up to scrutiny.
Nor can an argument that the nuclear-weapon States were being given a legal basis for the maintenance of their nuclear weapons be sustained. That is simply not what the treaty provides. It does not provide a basis for the nuclear-weapon States to argue that nuclear arms control and nuclear disarmament can be deferred. Article VI does not make that process conditional on a treaty on general and complete disarmament under strict and effective international control. Such an argument ignores the very raison d'etre of the treaty, which is based on a recognition that nuclear weapons are different.
The judgment made was that, in view of the uniquely destructive potential of such weapons, and human nature being what it is, the only option for humanity was to rid itself of these weapons entirely. The threat that the weapons represent hangs over the security of the whole international community. They also constitute a threat, and a challenge, to the very international legal order. The Nuclear Non-Proliferation Treaty is the most important response to date to that challenge.
The closest parallels to nuclear weapons are biological weapons and chemical weapons, which are also commonly referred to as weapons of mass destruction. Both these latter two categories of weapons, and in effect their use, are of course subject to comprehensive prohibitions which are now incorporated in a single treaty in each case. Despite their even more threatening nature, the abolition of nuclear weapons has proceeded down a more complicated track. The general terms of Article VI of the Nuclear Non-Proliferation Treaty to negotiate in good faith towards the elimination of such weapons stands by itself as a powerful, if only partly met, obligation to that end. It is reinforced by a large amount of additional international law, both treaty law and customary law, that bears on nuclear weapons and their use.
This law, some of which long predates the Nuclear Non-Proliferation Treaty and even the advent of nuclear weapons, and some being of more recent origin, contains a whole series of sometimes overlapping obligations and prohibitions which circumscribes, inter alia, the threat or use of nuclear weapons in many ways. The comprehensiveness of that law is, in New Zealand's view, now beyond debate. In no realistic scenario of nuclear war can it today be said that the use of nuclear weapons would be taking place in conformity with international law. For many years, the direction of international law has been overwhelmingly clear; it has now reached a point where a conclusive answer can be given to the question before the Court.
Mr President, I would now like to ask my colleague, Mr Bracegirdle, to address state practice in the area of disarmament and arms control.
STATEMENT by Allan Bracegirdle, Deputy Director, Legal Division, Ministry of Foreign Affairs and Trade of New Zealand
Nuclear Disarmament and Arms Control: State Practice
New Zealand Practice
Mr President, I need hardly note at the outset that the process whereby new rules of customary international law emerge is a large and complex topic on its own, well beyond the scope of these submissions. New Zealand is aware that a rule, in order to constitute customary international law, must be based on more than evidence of state practice alone; it is also necessary to show that states consider themselves to be legally bound by the practice.
Evidence for the existence of such a legal obligation can be expressed in various ways, and there is no need to show that every state accepts the practice. It is pertinent to note that the Court, in its Judgment in the North Sea Continental Shelf case, indicated that rules of customary international law may be crystallised or generated by treaties and bind states that never become party to them, and that such a process could in certain circumstances take place over only a short period of time. It has also reiterated, in its Judgment in the Military and Paramilitary Activities case, that rules of customary international law embodied in treaties have an independent existence, and noted that instances of inconsistent state conduct do not affect the existence of a rule of customary international law where state practice has, in general, been consistent with it.
So far as the actual use of nuclear weapons is concerned, state practice is of course virtually non-existent. There has been no case of a nuclear weapon being used by one state against another state in 50 years. The nuclear-weapon States have shown great restraint with these weapons. The restraint might appear remarkable, but it reflects a recognition on their part of the enormity of the question of the use in war of such weapons and that such use would be a very different proposition from anything that had gone before.
On the other hand, in the area of nuclear disarmament and arms control, a large body of law, particularly treaty law, has continued to evolve and imposes prohibitions of various kinds on, inter alia, the threat or use of nuclear weapons. It is appropriate to look at state practice accordingly, and I would like to begin with the New Zealand approach.
New Zealand is a long standing advocate of nuclear disarmament and non-proliferation. We believe in the benefits of a nuclear free and more secure world. We are a diligent party to the Nuclear Non-Proliferation Treaty, and have sought to match our belief in the objective of that treaty with further actions. We have made every endeavour to make our part of the world nuclear free. In his recent address to the Special Commemorative Meeting of the United Nations, the New Zealand Prime Minister said that the time has come for a new commitment to a world free of nuclear weapons and called for a strategy to achieve this goal.
In New Zealand, the nuclear free foundations are laid down in a statute in the New Zealand Nuclear Free Zone, Disarmament and Arms Control Act 1987. The Act embodies New Zealand's commitment to the nuclear disarmament and arms control process. It does this in two main ways.
First, the Act creates a nuclear free zone within New Zealand. The Act makes it an offence for New Zealand citizens or persons ordinarily resident in New Zealand to manufacture, acquire, or possess or have control over any nuclear explosive device within the New Zealand Nuclear Free Zone. Offences are also created for aiding, abetting or procuring any person to do any of those things. In the case of servants or agents of the Crown, the prohibition against committing such acts extends beyond the Zone. There are further prohibitions in the Act on the stationing or testing of nuclear explosive devices in the New Zealand Nuclear Free Zone, and on the entry into New Zealand internal waters of nuclear weapons.
Second, the Act enshrines in national legislation five international agreements in the disarmament and arms control field, four of which are directly applicable to nuclear weapons. These are:
- The South Pacific Nuclear Free Zone Treaty of 6 August 1985 (also known as the Treaty of Rarotonga);
- The Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water of 5 August 1963 (also known as the Partial Test Ban Treaty);
- The Treaty on the Non-Proliferation of Nuclear Weapons of I July 1968 (the NPT); and
- The Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-bed and the Ocean Floor and in the Subsoil Thereof of 11 February 1971 (also known as the Seabed Arms Control Treaty).
By giving special status to these treaties and creating a New Zealand Nuclear Free Zone, the Act robustly expresses New Zealand's support for a nuclear free world. It is the national basis for stronger action in disarmament and arms control at the regional and global levels.
New Zealand's commitment to effective nuclear disarmament and arms control measures at the regional level is reflected in our support for the Antarctic Treaty and the South Pacific Nuclear Free Zone, both of which are important examples of prohibitions on nuclear weapons and their use applying to particular geographic regions.
New Zealand is an original contracting party to the Antarctic Treaty of 1959. Article I of that agreement provides that Antarctica shall be used for peaceful purposes only. Any measures of a military nature, including the establishment of military bases, the carrying out of military manoeuvres, and the testing of any type of weapons, are prohibited. The Treaty also prohibits any nuclear explosions in Antarctica and the disposal of radioactive waste there. Through its active participation in the continuing operation of the Antarctic Treaty, New Zealand contributes to the demilitarisation of a whole continent.
New Zealand was pleased to play a major role in the establishment of the South Pacific Nuclear Free Zone. The Treaty of Rarotonga, which creates that zone and entered into force in 1986, reflects the collective will of South Pacific nations to renounce the possession of nuclear weapons, to ensure that nuclear weapons are neither tested in the zone nor stationed on national territory in the region, and to gain assurances of non-use of nuclear weapons from the nuclear-weapon States.
The last of these objectives of course requires the support of the nuclear-weapon States. To date, only China and the former Soviet Union of the nuclear powers have become party to the relevant protocols to the treaty. New Zealand greatly welcomes the very recent joint announcement of the other three nuclear-weapon States of their intention to sign the protocols in the first half of 1996. In doing so, they will be strengthening the nuclear non-proliferation regime in our region of the world. Nuclear weapon free zones can only be fully effective if they gain the support of the nuclear-weapon States. We hope that the success of the Treaty of Rarotonga and the Treaty of Tlatelolco establishing the Latin American nuclear weapon free zone will encourage other regions of the world to make similar arrangements, where appropriate, for their security as envisaged in Article VII of the Nuclear Non-Proliferation Treaty.
The significance of such regional initiatives can be seen in the fact that together with the areas covered by the adjacent Antarctic Treaty and the Treaty of Tlatelolco, the South Pacific Nuclear Free Zone contributes to an overall nuclear weapon free area which covers approximately 200 million square kilometres of the earth's surface. Almost all of the Southern Hemisphere will be included within such zones upon the entry into force of the Treaty establishing the African nuclear weapon free zone. New Zealand has followed the recent developments concerning that treaty with considerable interest, in particular the adoption of the Pelindaba text of the treaty in June 1995 by the Heads of State of the Organisation of African Unity. New Zealand is also very interested in the negotiations under way among South East Asian countries who are members of ASEAN on a treaty to establish a nuclear weapon free zone in their region. Such a zone would complete, in effect, a Southern Hemisphere zone, and further reinforce state practice in respect of the non-proliferation of nuclear weapons.
Beyond this contribution at the regional level, New Zealand is also committed to progress in global efforts in the disarmament and arms control field. New Zealand recognises that no part of the globe may be insulated in the event of the use of nuclear weapons. The security of all states is dependent upon the effectiveness of international agreements directed at the control in various respects, and the elimination, of nuclear weapons.
To that end, New Zealand is a party to significant global disarmament and arms control treaties that bear on the threat or use of nuclear weapons. These treaties include the Partial Test Ban Treaty, the Outer Space Treaty, the Seabed Arms Control Treaty and, most importantly in our view, the Nuclear Non-Proliferation Treaty itself
As has already been noted, New Zealand has been, and continues to be, a strong supporter of the Nuclear Non-Proliferation Treaty. It is the fundamental underpinning for further progress in nuclear disarmament and arms control. It is in recognition of this fact that New Zealand supported the unanimous decision taken at the Review and Extension Conference in May 1995 to extend the treaty indefinitely. That decision was a vote of confidence in the contribution that that treaty has to make to a nuclear free world and in the commitment of the nuclear-weapon States to work, without further deflection, towards that goal.
As mentioned in our written statement, since 1972 New Zealand has taken a lead, with other States, in tabling a resolution each year at the United Nations General Assembly calling for a comprehensive nuclear test ban treaty to be negotiated. In 1993, for the first time, and again in 1994, the resolution was adopted by consensus. A comprehensive nuclear test ban treaty is now being negotiated in the Conference on Disarmament, with the active participation of the nuclear-weapon States. Three of the nuclear-weapon States have already indicated that a treaty with a zero testing threshold would be acceptable to them. Such a treaty will make a significant contribution to halting the proliferation of nuclear weapons in all its forms, and hence have a major impact on the threat or use of nuclear weapons.
New Zealand strongly supports other recent multilateral steps towards nuclear disarmament that would further back up a comprehensive nuclear test ban. Such steps include the recent agreement by the Conference on Disarmament on a mandate for an ad hoc committee to begin negotiations on a treaty banning the production of fissile material for nuclear weapons purposes. New Zealand has also called for a negotiated and verifiable agreement to ban the future production of nuclear weapons.
New Zealand also welcomes the progress made in the bilateral nuclear arms reduction negotiations between the United States and the Russian Federation. We urge an acceleration of their work, which is further evidence that state practice is now turning strongly against nuclear weapons.
The New Zealand approach, then, is a comprehensive one. We are committed to the goals of nuclear disarmament and arms control through our national legislation, through our participation in regional initiatives, and through our active support of international agreements that might ultimately help to bring about general and complete disarmament. The New Zealand practice is both clear and strong.
Practice of Other States
Mr President, turning to the practice of other states, we know that we share our aspirations in respect of nuclear disarmament and arms control with countries all round the world. The support given to the Nuclear Non-Proliferation Treaty is perhaps the clearest evidence of that. We believe that the tide of state practice today is stronger than ever in favour of nuclear non-proliferation and the complete elimination of nuclear weapons.
Although nuclear weapons are a comparatively recent invention, international law has not been slow to respond to their uniquely destructive qualities and progressively develop a range of prohibitions and restrictions. There is now a considerable body of international law which bears specifically on the threat or use of nuclear weapons. Further, more recent, development of this law is evidence of the strength of state practice on the matter.
A substantial body of treaty law already exists regulating nuclear weapons. In various respects, possession, testing, deployment, threats or use of nuclear weapons are expressly prohibited. Several of the treaties, which are widely if not universally accepted, are of major importance:
- First, commitments made under the Nuclear Non-Proliferation Treaty and other regional treaties such as the South Pacific Nuclear Free Zone Treaty and the Treaty of Tiatelolco in respect of Latin America mean that nearly all states other than the five declared nuclear-weapon States have undertaken not to manufacture or otherwise acquire nuclear weapons or to receive the transfer of or control over such weapons whether directly or indirectly. The decision of the parties to the Nuclear Non-Proliferation Treaty at their Review and Extension Conference in May 1995 to make the treaty permanent is of special significance;
- Secondly, under the Partial Test Ban Treaty of 1963, undertakings have been secured not to carry out any nuclear weapon test explosion, or any other nuclear explosion, in the atmosphere, under water, or in outer space. Moreover, the treaty prohibits nuclear weapon tests in any other environment if the explosion would cause radioactive debris to be present outside the borders of the state under whose jurisdiction or control the explosion is conducted;
- Thirdly, the Outer Space Treaty of 1967 is restrictive of nuclear weapons in two important respects. It prohibits placing nuclear weapons in orbit around Earth, or installing them on the moon or any other celestial body, or otherwise stationing nuclear weapons in outer space. It also limits the use of the moon and other celestial bodies exclusively for peaceful purposes and expressly prohibits their use for, inter alia, testing weapons of any kind. Like prohibitions are contained in the Moon Treaty of 1979;
- Fourthly, the Seabed Arms Control Treaty of 1971 prohibits emplanting or emplacement on the seabed and the ocean floor and in the subsoil thereof of any nuclear weapons, or other weapons of mass destruction. Structures, launching installations or any other facilities specifically designed for storing, testing or using such weapons, are prohibited beyond the outer limit of a twelve mile "seabed zone". The same prohibition applies to the area within a seabed zone, except in relation to the coastal State concerned.
The first point to note, then, is that significant regulation of nuclear weapons already exists in important multilateral treaties.
State practice against nuclear weapons is continuing to evolve and strengthen. I have already mentioned the developments concerning the African nuclear weapon free zone and the proposed South East Asian nuclear weapon free zone. These efforts are further evidence of the desire of a significant number of states to buttress other prohibitions on nuclear weapons and to express in formal treaty terms their rejection of these weapons as far as possible in their own backyards.
A significant outcome of the Review and Extension Conference of the parties to the Nuclear Non-Proliferation Treaty in May 1995 was the commitment agreed by all parties to complete negotiations on a universal and internationally and effectively verifiable Comprehensive Nuclear Test Ban Treaty no later than 1996. Negotiations are well advanced in the Conference on Disarmament in Geneva. Such a treaty will be the most important development since the adoption of the Nuclear Non-Proliferation Treaty itself in strengthening the non-proliferation regime and as a signal of the intention to eliminate nuclear weapons. The commencement of negotiations on a treaty on the cut-off of production of fissile material for nuclear weapons, as has also been proposed in the Conference on Disarmament, will further reinforce these goals.
Practice of Nuclear-Weapon States
Mr President, so far as the practice of the nuclear-weapon States is concerned, Article VI of the Nuclear Non-Proliferation Treaty is the starting point. That Article provides as follows:
"Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control".
In the Principles and Objectives for Nuclear Non-Proliferation and Disarmament, adopted unanimously by Decision of the parties to the Nuclear Non-Proliferation Treaty at their Review and Extension Conference, the parties agreed that the undertakings with regard to nuclear disarmament as set out in the treaty should be fulfilled with determination. In this regard, the nuclear-weapon States reaffirmed "their commitment, as stated in Article VI, to pursue in good faith negotiations on effective measures relating to nuclear disarmament".
Recent welcome progress has been made by the nuclear-weapon States in nuclear disarmament and arms control. Bilateral agreements in more recent years between the two major nuclear powers, the United States on the one hand and the former Soviet Union and the Russian Federation on the other hand, have provided for significant reductions in their respective nuclear arsenals and the elimination of one whole category of nuclear weapons, intermediate-range nuclear missiles.
Initially in the early 1970's, the Strategic Arms Limitation Talks, or SALT, focused exclusively on limiting the size of the respective side's strategic nuclear arsenals. Overall, nuclear arsenals increased as the nuclear arms race continued almost unabated. It was not until 1987, with the conclusion of the Intermediate Nuclear Forces Treaty, followed by the Strategic Arms Reduction Treaties (START) in the 1990s, that real reductions in nuclear stockpiles finally got under way. Present stockpiles, however, still far exceed the number of nuclear weapons in existence when the Nuclear Non-Proliferation Treaty entered into force and are a measure of the intensity of the nuclear arms race in the 1970s and 1980s.
The willingness of the major nuclear powers to enter into negotiations on a comprehensive nuclear test ban treaty and on a treaty banning the production of fissile material for nuclear weapons is a further indication of changing attitudes on the part of the nuclear-weapon States.
As already noted, the practice of the nuclear-weapon States supports the non-use of nuclear weapons. In various respects, non-use has been accepted by them as a legal obligation. A further significant part of their practice in this regard concerns the negative security assurances given by all five nuclear-weapon States about the circumstances in which they would not use nuclear weapons. The United States, the United Kingdom, France and Russia have this year reaffirmed that they will not use nuclear weapons against non-nuclear-weapon States Parties to the Nuclear Non-Proliferation Treaty. While there is an exception in certain cases of armed attack by a non-nuclear-weapon State in association or alliance with a nuclear-weapon State, it does not constitute evidence that nuclear weapons will be used in the circumstances concerned. China's assurance is unconditional in that it is not limited to parties to the Nuclear Non-Proliferation Treaty but extends to all non-nuclear-weapon States. Its guarantee to non-nuclear-weapon States also applies "in all circumstances", and it has reaffirmed its undertaking not to be the first to use nuclear weapons at any time and under any circumstances.
While discussions in the international community on the incorporation of these unilateral security assurances into an international instrument have continued in recent years, it is New Zealand's view that such a move would serve to codify the customary law force that such assurances already enjoy. Negative security assurances, made in good faith, give rise to a legitimate expectation on the part of non-nuclear-weapon States that they will be complied with. This is by virtue of the Judgment of the Court in the Nuclear Tests Case (New Zealand v France) in 1974, when it stated that, based on the principle of good faith, unilateral declarations by states may be binding at international law. The quotation from the relevant parts of the Judgment is set out in paragraph 50 of our written statement.
It is also relevant to the practice of the nuclear-weapon States to draw attention to the parallels with other categories of weapons. Since the adoption of the Nuclear Non-Proliferation Treaty in 1968, the nuclear-weapon States have also agreed to the adoption of treaties to eliminate other weapons of mass destruction, that is the Biological Weapons Convention in 1972 and the Chemical Weapons Convention in 1993. Moreover, they have agreed to the elimination of certain conventional weapons which are excessively injurious or have indiscriminate effects, that is certain booby traps and weapons based on non-detectable fragments, in the Inhumane Weapons Convention adopted in 1981.
Resort to Force
Mr President, broadly related to treaties in the disarmament and arms control field is international law regarding resort to force. Article 2(4) of the United Nations Charter proscribes the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. The Court has recognised, in its Judgment in the Military and Paramilitary Activities case, that the principle of the prohibition of the use of force is a rule of customary international law and referred to suggestions that it may be a fundamental principle having the character of jus cogens.
The Charter recognises only tightly prescribed exceptions to the general rule against the threat or use of force. First, the threat or use of force is lawful if made as part of enforcement action taken by the Security Council under Chapter VII of the Charter in the event of a threat to the peace, breach of the peace or act of aggression.
Secondly, countries have a right of self defence as recognised in Article 51 of the Charter. Nothing in the Charter impairs the inherent right of individual or collective self defence in the event of an armed attack against a member "until the Security Council has taken measures necessary to maintain international peace and security". A member state exercising its right of self defence is required to immediately report such action to the Security Council. The Council's authority and responsibility to take whatever action it deems necessary to maintain or restore international peace and security is not affected by the measures taken by a state.
There is of course nothing in these exceptions which specifically authorises the use of nuclear weapons. Moreover, the right of self defence cannot be exercised in isolation from other applicable rules and principles of international law. In particular, the humanitarian laws of armed conflict apply to measures taken in self defence. Such measures must, for example, be necessary and proportionate to the danger faced, as recognised by the Court in its Judgment in the Military and Paramilitary Activities case.
Mr President, I would like at this point to return to the Attorney-General to complete the New Zealand submissions.
CLOSING STATEMENT:Hon Paul East, Attorney-General of New Zealand
Nuclear Weapon Testing
Mr President, as earlier indicated, I should like to begin this final part of New Zealand's presentation by referring to one particular aspect of nuclear weapons where there have recently been reprehensible developments. I refer to the nuclear tests conducted by China and France.
As this Court will be well aware from New Zealand's recent Request concerning the case filed against France in 1973, New Zealand has been especially concerned about French nuclear testing, which takes place in our region of the world, far from metropolitan France, and in a fragile and vulnerable marine environment. New Zealand recognises that all countries have the right to ensure their security. That is a fundamental fight at international law. But the right does not operate in a vacuum. It is not wholly a matter for the subjective determination of each individual state. It must be exercised within the bounds of the international legal framework.
New Zealand's attitude to nuclear weapons testing has been abundantly clear. As my predecessor, the then Attorney-General, told this Court in 1973, from the earliest days of the development of nuclear weapons, New Zealanders, along with the world community, have viewed them with the deepest apprehension. In the United Nations, New Zealand was, in 1958, associated with a number of countries in sponsoring a resolution in the General Assembly designed to promote conditions in which a comprehensive nuclear test ban could be realised. In 1959 we joined our voice to the appeal of African countries to France not to carry out its announced intention of beginning nuclear weapon tests in the Sahara. In 1961 we deplored the Soviet Union's breach of the moratorium observed since 1958 by three nuclear powers, a breach which led to the resumption of nuclear testing soon after by the United States and the United Kingdom. In 1962 New Zealand voted along with an overwhelming majority of Governments to condemn all nuclear weapon tests and to demand their cessation. That record has continued to this day.
Indeed, it has already been noted that New Zealand has taken a lead for over twenty years in tabling an annual resolution at the United Nations General Assembly, which was adopted by consensus in the last two years, calling for a comprehensive nuclear test ban treaty to be negotiated. The negotiations on a comprehensive nuclear test ban treaty under way in the Conference on Disarmament have been very much welcomed by New Zealand. The potential impact of resumed nuclear testing in the South Pacific on the progress towards that ban has of course heightened alarm over the French decision. There is considerable concern that renewed French nuclear testing may jeopardise these negotiations.
Mr President, New Zealand's opposition to nuclear testing, and nuclear weapons, has been strongly shared by other countries of the South Pacific Region. I referred to this two months ago when I appeared before this Court.
The region's fifteen leaders, speaking through the South Pacific Forum, and bilaterally, have consistently opposed nuclear testing in the South Pacific, and the region's use for nuclear purposes generally. This stance has been expressed in a great number of resolutions adopted in the Forum's annual meetings. Forum communiqu&eacut;s and resolutions over the years show strong political and environmental opposition to nuclear testing in the region.
This opposition, and the fears that go with it, are solidly grounded. Traditionally, this region has been vitally dependent on the marine environment for sustenance and survival. Many Pacific peoples live on small islands and atolls where land resources are very limited. This has led to a strong dependence on the oceans. The region cannot afford to have this environment damaged.
The region's strong opposition to nuclear testing was reflected in the applications by four Pacific Island States, and Australia, to intervene in the recent proceedings which New Zealand brought before this Court. Needless to say, this support was very much welcomed by New Zealand. New Zealand also very much welcomes the participation of other states from the region in these present proceedings.
But the strong international opposition to nuclear testing is not of course confined to the South Pacific Region alone.
Mr President, I have already referred to the obligation on nuclear-weapon States under Article VI of the Nuclear Non-Proliferation Treaty and to the decision of the parties to the treaty in May 1995 to extend it indefinitely. That decision would not have been secured without agreement between the nuclear-weapon and non-nuclear-weapon States that a Comprehensive Nuclear-Test-Ban Treaty be concluded in 1996 and that the nuclear-weapon States exercise "utmost restraint" in the meantime.
Already, non-nuclear-weapon States Parties to the treaty feel a real sense of betrayal. Within a month of the compact being reached, China had conducted a nuclear test and France bad announced its intention to terminate its three-year-long moratorium on nuclear testing by recommencing nuclear tests in the South Pacific. Since then, it has conducted three nuclear explosions in the region, the third less than two weeks ago. New Zealand, and many other countries, have expressed strong opposition to the actions by France in resuming nuclear testing in our region. The two nuclear testing states have provided no justification that could support a new recourse to nuclear explosions. Their actions are contrary to favourable developments in the international security environment in recent years. They appear determined to proceed with further tests regardless of the representations of other states or the damage that their actions are causing to the nuclear non-proliferation regime. Such actions undermine the integrity and credibility of that regime. They amount to an anachronistic and retrograde step.
French nuclear tests are, moreover, contrary to international law. I need hardly remind the Court of the views that New Zealand put to it very recently that French nuclear tests are also contrary to the binding obligations on France under Article 16 of the 1986 Noumea Convention for the Protection of the Natural Resources and Environment of the South Pacific Region. France is obliged under that provision to conduct a prior Environmental Impact Assessment of the potential effects of major projects which might affect the marine environment so that appropriate measures can be taken to prevent any substantial pollution of, or significant and harmful changes within, the Convention Area. At the biennial meeting of the parties to this Convention, held in Apia in Western Samoa only last month, all the South Pacific Forum member countries present at the meeting supported a Declaration to that effect.
In paragraph 64 of its Order of 22 September 1995, the Court said that its present Order "is without prejudice to the obligations of States to respect and protect the natural environment, obligations to which both New Zealand and France have in the present instance reaffirmed their commitment". In his dissenting opinion in that case, Judge Koroma commented that: "Under contemporary international law, there is probably a duty not to cause gross or serious damage which can reasonably be avoided, together with a duty not to permit the escape of dangerous substances.... Given this trend, it can be argued that nuclear testing as such is not only prohibited, but would be considered illegal if it would cause radioactive fallout".
Judge Weeramantry, in his dissenting opinion, said that the case raised, "as no case ever before the Court has done, the principle of intergenerational equity - an important and rapidly developing principle of contemporary environmental law". He went on to refer to the evidentiary difficulty in cases of possible environmental damage and noted that: "The law cannot function in protection of the environment unless a legal principle is evolved to meet this evidentiary difficulty, and environmental law has responded with what has come to be described as the precautionary principle - a principle which is gaining increasing support as part of the international law of the environment". Mr President, it is submitted that these are matters of very great importance to the countries of the South Pacific, given the reliance of small island states on their marine environment for their livelihood and the damage that underground nuclear testing has been doing to the tiny atolls of Mururoa and Fangataufa. Countries of our region share a justified fear of further radioactive contamination from French nuclear testing.
That the tests are contrary to the wishes of the whole region also finds legal expression in the Treaty of Rarotonga of 1985 establishing the South Pacific Nuclear Free Zone. The South Pacific region, in its various institutions, operates on the basis of consensus, and cooperation is marked by the principle of good neighbourliness. As New Zealand said in this Court two months ago:
"[In] Europe...... France has accepted quite onerous obligations to carry out Environmental Impact Assessments by way of several regional treaties. ....[If] France were to conduct its nuclear testing in its European territory, would it first carry out an EIA? The answer must, of course, be "yes". It is inconceivable that France would test in Europe without first carrying out an EIA. One wonders..... why France is not prepared to accept the same obligations to its Pacific neighbours as it does to its European neighbours".
International law is founded to an important extent on the principle of the sovereign equality of states, as it is on the principle of good faith. Both principles were declared to be "basic principles of international law" by the United Nations General Assembly in 1970, on its 25th Anniversary when it adopted unanimously the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the United Nations Charter. In respect of the principle of sovereign equality of states, the Declaration provides that "Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States". In its Judgment in the Military and Paramilitary Activities case, the Court placed weight on the Declaration as evidence of the opinio juris supporting the existence of customary international law. By not complying with its international obligations in the case of nuclear testing, not least under the Noumea Convention, France is acting in bad faith and contrary to fundamental principles of international law as to the solemn and binding nature of treaty commitments. The Court would be making a major contribution to the nuclear non-proliferation regime, and to international security generally, were it now to find that any testing of nuclear weapons should be regarded as no longer permissible at international law.
As I have already noted, New Zealand welcomes the very recent joint announcement of France, the United Kingdom and the United States of their intention to become party in due course to the Protocols to the Treaty of Rarotonga. That will be a major step forward. But that decision, by itself, cannot satisfy the demands of the region that France stop its nuclear testing forthwith.
New Zealand has also welcomed the decision of France to sign the Comprehensive Nuclear Test Ban Treaty when it is adopted by the Conference on Disarmament next year, and to support a zero threshold on nuclear tests. We have noted France's explanation for resuming nuclear testing while the negotiations on the treaty continue. But again, in New Zealand's view, the actions of the two nuclear testing States are difficult to reconcile with participation in good faith in the treaty negotiations. Their actions will have been exposed as an act of bad faith were they to result in disruption to the negotiations, in particular if any of the other three nuclear-weapon States that have been respecting the moratorium on nuclear testing were to take similar action. It should be recalled that the international community has been close to securing a comprehensive nuclear test ban in the past, only to have it slip from our grasp.
Mr President, I would like to begin my final comments by observing that the Nuclear Non-Proliferation Treaty was the most significant of the Arms Control treaties. Twenty-five years ago, when it entered into force, people thought that the abolition of nuclear weapons was about to begin, in much the same way as they anticipated the elimination of biological weapons upon the entry into force of the Biological Weapons Convention in 1975 and as they look forward to the elimination of chemical weapons once the Chemical Weapons Convention of 1993 enters into force.
It is significant to note that the two latter treaties do not countenance any use of the weapons concerned, even those that may be judged to be proportionate or in self-defence. The intentions were clear; these weapons are different - they are weapons of mass destruction - and are to be outlawed in their entirety. The intentions of the Nuclear Non-Proliferation Treaty were no different. If those intentions had been met, there would have been no need to have negotiated a variety of other treaties to prohibit the possession, testing, deployment, threats or uses of nuclear weapons in various respects. Those treaties, which also reflect the disappointment of non-nuclear-weapon States at the failure of the Nuclear Non-Proliferation Treaty to deliver the elimination of nuclear weapons, and the fact that the nuclear-weapon States continue to maintain nuclear weapon stockpiles, do not in any way change the nature and force of the commitment on the nuclear-weapon States to fully implement the objectives of the treaty contained in Article VI. That commitment has even greater force now that the parties have decided to make the treaty permanent.
The security interests of all states are engaged in the regulation of weapons of mass destruction. All live in the nuclear shadow. It is not therefore open to the nuclear-weapon States to argue that the obligations on them in the case of nuclear weapons, whether under treaty law or customary international law, are different from or less than other states on the ground that their interests, as the possessors of nuclear weapons, are most directly affected. None of the nuclear-weapon States have expressed any wish to see nuclear weapons spread to other states, but that would be the logical corollary of any such arguments on their part.
Mr President, the large body of international law to which we have referred at some length demonstrates the extent of regulation that already exists in respect of nuclear weapons and the prohibitions of various kinds on their threat or use. There is a large amount of state practice in the area of nuclear disarmament and arms control; there are relevant prohibitions in the law on resort to force; there is all of the applicable international humanitarian law- and there are the still emerging areas of international law such as protection of the environment. Much of this law is undergoing continuing development, and the pressure continues to mount, as the New Zealand Prime Minister said in his address to the Special Commemmorative Meeting of the United Nations less than three weeks ago, "for a world without nuclear weapons". As he said on that occasion, this is not an impossible goal.
Mr President, the Nuclear Non-Proliferation Treaty, together with the range and weight of other international law that bears on this issue, leaves only one possible answer to the requests that have been put to the Court. There is only the one answer that the Court can give if it is to decide the matter in accordance with that law, and not undermine it. It is clear to New Zealand that the international community has come more and more strongly to the view that no realistic scenarios or case can any longer be mounted in support of the proposition that the threat or use of nuclear weapons under any circumstance - and their testing - would be in conformity with international law. Rather, the international community expects that nuclear weapons will now be eliminated. In short, New Zealand believes that the threat or use of nuclear weapons should be illegal. The Court should, in our view, reach a decision to that effect.
Such a declaration of illegality would serve as a powerful further step to the elimination of nuclear weapons. There are huge numbers of these weapons. We cannot wish them away. Only the countries that have them can get rid of them. We recognise that this may take time. Agreements will be required on associated steps, first the completion of the Comprehensive Nuclear Test Ban Treaty and then a ban on the production of uranium and plutonium for nuclear weapons. The Court needs to play its part in helping to set the scene for that to happen.
Mr President, over two hundred and fifty years ago, a famous French philosopher, Charles Louis de Montesquieu, wrote with considerable prescience in "Les Lettres persanes":
"Ever since the invention of gunpowder ... I continually tremble lest men should, in the end, uncover some secret which would provide a short way of abolishing mankind, of annihilating peoples and nations in their entirety".
Montesquieu's personal fear came true and several generations have come to share it, not as a possibility, but as a reality.
All states must energetically pursue their common commitment to abolish these weapons, and this High Tribunal has an important role to play in this process. The potential consequences of failure, for all humanity, are too great.