Summaries of the Decisions
Request for an Examination of the Situation in accordance with Paragraph
63 of
the Court's 1974 Judgment in the Nuclear Tests Case
(New Zealand v. France)
Order of 22 September 1995
In a press release of June 3, 1995 the French President Chirac announced
that France would conduct a final series of nuclear underground tests in the
South Pacific region beginning September 1995. To prevent these tests, New
Zealand filed a "Request for an Examination of the Situation" together
with a request for the indicaton of provisional measures in accordance with
paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New
Zealand v. France). This unusual attempt at seizing the Court resulted from two
facts. Firstly, there no longer existed a jurisdictional link between New
Zealand and France and, secondly, the Court in its Judgment of 1974 which
declared an earlier case involving French nuclear tests moot owing to the
unilateral declaration of France announcing its intent to cease all atmospheric
nuclear tests, opened the way to come back to the Court if France would not
comply with that commitment. Paragraph 63 of the 1974 Judgment expressly
empowered the Applicant "to request an examination of the situation in
accordance with the provisions of the Statute, ... if the basis of this Judgment
were to be affected".
The Court, had to examine whether the request of New Zealand fell within the
provisions of paragraph 63 of the 1974 Judgment. The main question was whether
the basis of the 1974 Judgment would be affected by the French tests announced
for 1995. According to the Court, the application of New Zealand which led to
the 1974 Judgment concerned the question of atmospheric tests exclusively, and
not all testing that might result in radio-active fall-out on New Zealand
territory. Since the commitment given by France in 1974 concerned only the
cessation of atmospheric tests, the Court could not find that the basis of the
1974 Judgment would be affected by the new series of underground testing. Due to
the unambiguous wording of the French commitment, the Court could not even take
into account the developments of international environmental law and the
undisputed possibility of radio-active fall-out originating from underground
testing. Accordingly, the Court had to dismiss the request of New Zealand as
well as the applications to intervene filed by Australia, Samoa, the Solomon
Islands, the Marshall Islands as well as the Federated States of Micronesia.
Three Judges, Judges Weeramantry, Koroma and ad hoc judge Sir Geoffrey
Palmer dissented. They relied on the developments in international environmental
law and focussed on that part of paragraph 63 of the 1974 Judgment which
concerned the causing of radio-active fall-out without, however, taking account
of the express reference made to the atmospheric origin of the fall-out in the
1974 Judgment. Their dissents reflect, in particular, a concern for the
protection of the environment, a view shared by the Court which had underlined
expressly the obligations of States to respect and protect the natural
environment.
