Max Planck Institute for Comparative Public Law and International Law Logo Max Planck Institute for Comparative Public Law and International Law

You are here: Publications Archive World Court Digest

World Court Digest

II. Substantive International Law - Second Part

¤ Request for an Examination of the Situation
in Accordance with Paragraph 63 of the
Court's Judgment of 20 December 1974 in the
Nuclear Tests (New Zealand v. France) Case,
I.C.J. Reports 1995, p. 288

[p. 306] 63. Whereas, in analysing its Judgment of 1974, the Court has reached the conclusion that that Judgment dealt exclusively with atmospheric nuclear tests; whereas consequently it is not possible for the Court now to take into consideration questions relating to underground nuclear tests; and whereas the Court cannot, therefore, take account of the arguments derived by New Zealand, on the one hand from the conditions in which France has conducted underground nuclear tests since 1974, and on the other from the development of international law in recent decades - and particularly the conclusion, on 25 November 1986, of the Noumea Convention - any more than of the arguments derived by France from the conduct of the New Zealand Government since 1974;

64. Whereas moreover the 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;

[p. 345 D.O. Weeramantry] It is clear that on an issue of the magnitude of that which brings New Zealand before this Court the principle of Environmental Impact Assessment would prima facie be applicable in terms of the current state of international environmental law.
This Court, situated as it is at the apex of international tribunals, necessarily enjoys a position of special trust and responsibility in relation to the principles of environmental law, especially those relating to what is described in environmental law as the Global Commons. When a matter is brought before it which raises serious environmental issues of global importance, and a prima facie case is made out of the possibility of environmental damage, the Court is entitled to take into account the Environmental Impact Assessment principle in determining its preliminary approach.

Of course the situation may well be proved to be otherwise and fears currently expressed may prove to be groundless. But that stage is reached only after the Environmental Impact Assessment and not before.

[pp. 345-346 D.O. Weeramantry] The marine environment belongs to all, and any introduction of radioactive waste into one's territorial waters must necessarily raise the danger of its spread into the wider ocean spaces that belong to all.
If such danger can be shown prima facie to exist or be within the bounds of reasonable possibility, the burden shifts on those who claim such action is safe to establish that this is indeed so. As observed already, the 1992 OSPAR Convention between France and the United Kingdom requires a report that any proposed dumping of low and intermediate level radioactive wastes would not result in hazards to human health and marine resources. Such is the standard observed internationally. Until such time, a judicial tribunal is entitled to act upon the prima facie case that New Zealand has made out.

[pp. 378-379 D.O. Koroma] 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. This trend is reflected in treaties such as the Moscow Treaty of l963 Banning Nuclear Weapon Testing in the Atmosphere, in Outer Space and Under Water (about l30 States are now parties to this Treaty, according to which they undertake to prohibit, prevent and not to carry out any nuclear weapon test explosions at any place under their jurisdiction or control in the atmosphere, including outer space, or under water, including territorial waters or the high seas), the l967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and the l971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, which have as their object the prevention of radioactive contamination of the environmental areas to which they are related. It is reflected in the United Nations Convention on the Law of the Sea, Part XII of which is on the protection and preservation of the marine environment.

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.