Summary:World Court in New Zealand's bid to end nuclear testing at Mururoa Atoll.Paul East Attorney-General
ISSUE BEFORE THE COURT
"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 Court's judgment of 20 December 1974?"
1. New Zealand's Legal Argument
1. Introduction: Political and diplomatic history of dispute.
Concerns of South Pacific countries.
Scientific concerns and relevant developments in international law.
Summary of "continuity" argument.
2. Continuity Argument
In 1974 the ICJ concluded New Zealand's concerns were "matched" by the promise of France to cease atmospheric testing. The Court assumed such testing would not damage the environment or breach international law. In 1995 the assumption is demonstrably wrong. Under para 63 New Zealand has shown "the basis of the judgment to be affected" by new underground testing. New Zealand can resume its 1974 case against France accordingly.
Although releases of radiation from underground testing in the atolls historically are very small, there are real concerns for the integrity of the atolls. The ICJ should be concerned at the risk of future pollution of the marine environment.
4. International Environmental Law
States are, in 1995, not permitted to act in a way that damages the environment outside of their territorial limits. Such damage is caused by any emission of radiation created artificially without good reason. Nuclear testing activity no longer constitutes "good reason" at international law.
5. Noumea Convention/Precautionary Principle
France's resumption of nuclear testing is in breach of the Noumea Convention. Under the "Precautionary Principle" of international law France must demonstrate its nuclear testing meets the above requirements before undertaking it.
2. France's Legal Argument
There is no case for the Court to consider. The 1974 case was concluded and is dead.
Para 63 does not allow the 1974 case to be reopened except as the ICJ Statute expressly allows. No provision in the Statute can assist New Zealand because of limitation periods.
Reluctantly, France addresses New Zealand arguments on safety of testing. New Zealand's case is "science fiction". Nuclear testing by France is safe and conducted in remote areas of the world.
New Zealand has deceived France by going beyond the issue posed by the Court in arguing the case. The Court should reject its arguments and the ICJ meeting should not be recognised as a "hearing" given the absence of jurisdiction of the Court to consider a matter that was concluded in 1974.
Majority holds New Zealand failed to show the Requests fall within para 63 of the 1974 judgment.
While New Zealand correctly said para 63 provided a special procedure for resuming the 1973-74 case, it was not intended to be available unless France recommenced atmospheric testing.
The 1995 dispute was new and different to that of 1974 and the Court had no jurisdiction to consider it consequent on withdrawal by France.
New Zealand's requests were therefore dismissed.
Dissenters hold: New Zealand had, prima facie, shown the basis of the 1974 judgment was affected by resumption of testing in the South Pacific given the developments in international environmental law and fresh scientific concerns. The case should continue to a full hearing.
1. The Government's decision-making process and the role of Greenpeace.
2. South Pacific regional support.
3. The real risk that the case would not get a hearing.
4. Participation by France in the case and its anger at being forced to address the merits of its nuclear testing.
5. The impact of the hearing of the case in Europe in presenting South Pacific concerns about nuclear testing.
6. The speed of the process. From decision to proceed until judgment - 45 days.
7. The Nuclear Weapons Advisory Opinion case - next stage.
8. Has the case influenced France? Will it affect its likely future policy to testing? Will it consent to ICJ process in future?
INTERNATIONAL COURT OF JUSTICE NEW ZEALAND v FRANCE (NUCLEAR TESTING CASE: 1995)
The issue posed by the Court at the 1995 hearing was:
"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 Court's judgment of 20 December 1974?"
Paragraph 63 of the 1974 Judgment of the Court reads:
"Once the Court has found that a State has entered into a commitment concerning its future conduct it is not the Court's function to contemplate that it will not comply with it. However, the Court observes that if the basis of this Judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute; the denunciation by France, by letter dated 2 January 1974, of the General Act for the Pacific Settlement of International Disputes, which is relied on as a basis of jurisdiction in the present case, cannot constitute by itself an obstacle to the presentation of such a request."