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III. The International Court of Justice
2.7.Jurisdiction on the basis of a previous judgment

¤ 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

[pp. 302-304] 45. Whereas New Zealand bases its Request on paragraph 63 of the Judgment of 20 December 1974, which provides:

"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";

46. Whereas, in the present instance, the following question has to be answered in limine: "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)?"; and whereas the Court has consequently limited the present proceedings to that question;
47. Whereas that question has two elements; whereas one concerns the courses of procedure envisaged by the Court in paragraph 63 of its 1974 Judgment, when it stated that "the Applicant could request an examination of the situation in accordance with the provisions of the Statute"; and whereas the other concerns the question whether the "basis" of that Judgment has been "affected" within the meaning of paragraph 63 thereof;

48. Whereas, as to the first element of the question before it, New Zealand expresses the following view:

"paragraph 63 is a mechanism enabling the continuation or the resumption of the proceedings of 1973 and 1974. They were not fully determined. The Court foresaw that the course of future events might in justice require that New Zealand should have that opportunity to continue its case, the progress of which was stopped in 1974. And to this end in paragraph 63 the Court authorized these derivative proceedings";

49. Whereas New Zealand claims that it

"is given a right, in stated circumstances 'to request an examination of the situation in accordance with the provisions of the Statute'. Those words are only capable of meaning that the presentation of a Request for such an examination is to be part of the same case and not of a new one";

and whereas it adds, furthermore, that, in pointing to "the provisions of the Statute", paragraph 63 could only be referring to the provisions concerning the procedure applicable to the examination of the situation once the Request is made;
50. Whereas New Zealand furthermore explicitly states that it is not seeking an interpretation of the 1974 Judgment under Article 60 of the Statute, nor a revision of that Judgment under Article 61:

51. Whereas France, for its part, stated as follows:

"As the Court itself has expressly stated, the possible steps to which it alludes are subject to compliance with the 'provisions of the Statute' ... The French Government incidentally further observes that, even had the Court not so specified, the principle would nevertheless apply: any activity of the Court is governed by the Statute, which circumscribes the powers of the Court and prescribes the conduct that States must observe without it being possible for them to depart therefrom, even by agreement ...; as a result and a fortiori, a State cannot act unilaterally before the Court in the absence of any basis in the Statute.
Now New Zealand does not invoke any provision of the Statute and could not invoke any that would be capable of justifying its procedure in law. It is not a request for interpretation or revision ..., nor a new Application, whose entry in the General List would, for that matter, be quite out of the question ...";

52. Whereas, in expressly laying down, in paragraph 63 of its Judgment of 20 December 1974, that, in the circumstances set out therein, "the Applicant could request an examination of the situation in accordance with the provisions of the Statute", the Court cannot have intended to limit the Applicant's access to legal procedures such as the filing of a new application (Statute, Art. 40, para. 1), a request for interpretation (Statute, Art. 60) or a request for revision (Statute, Art. 61), which would have been open to it in any event;
53. Whereas by inserting the above-mentioned words in paragraph 63 of its Judgment, the Court did not exclude a special procedure, in the event that the circumstances defined in that paragraph were to arise, in other words, circumstances which "affected" the "basis" of the Judgment;
54. Whereas such a procedure appears to be indissociably linked, under that paragraph, to the existence of those circumstances; and whereas, if the circumstances in question do not arise, that special procedure is not available;

[pp. 304-306] 55. Whereas the Court must now consider the second element of the question raised and determine whether the basis of its Judgment of 20 December 1974 has been affected by the facts to which New Zealand refers and whether the Court may consequently proceed to examine the situation as contemplated by paragraph 63 of that Judgment; and whereas, to that end, it must first define the basis of that Judgment by an analysis of its text;
56. Whereas the Court, in 1974, took as the point of departure of its reasoning the Application filed by New Zealand in 1973; whereas it affirmed in its Judgment of 20 December 1974 that it was its duty "to isolate the real issue in the case and to identify the object of the claim"; whereas it subsequently added that "it has never been contested that the Court is entitled to interpret the submissions of the parties, and in fact is bound to do so", this being "one of the attributes of its judicial function" (I.C.J. Reports 1974, p. 466, para. 30); and whereas it continued as follows:

"In the circumstances of the present case, as already mentioned, the Court must ascertain the true subject of the dispute, the object and purpose of the claim ... In doing so it must take into account not only the submission, but the Application as a whole, the arguments of the Applicant before the Court, and other documents referred to ..." (ibid., p. 467, para. 31);

57. Whereas, in the light of this, the Court referred, among other things, to a statement made by the Prime Minister of New Zealand that

"[t]he option of further atmospheric tests has been left open. Until we have an assurance that nuclear testing of this kind is finished for good, the dispute between New Zealand and France persists ...";

and whereas it found that

"for purposes of the Application, the New Zealand claim is to be interpreted as applying only to atmospheric tests, not to any other form of testing, and as applying only to atmospheric tests so conducted as to give rise to radio-active fall-out on New Zealand territory" (ibid., p. 466, para. 29);

58. Whereas on the same date, 20 December 1974, the Court furthermore delivered a Judgment in the Nuclear Tests (Australia v. France) case, in which Australia had asked, in express terms, that it "adjudge and declare that ... the carrying out of further atmospheric nuclear weapon tests ... is not consistent with applicable rules of international law" (I.C.J. Reports 1974, p. 256, para. 11); whereas, having considered the Application of Australia, the Court employed in paragraph 60 of that Judgment a form of words identical to the one used in paragraph 63 of the Judgment in the Nuclear Tests (New Zealand v. France) case and adopted, in both Judgments, operative parts with the same content; and whereas for the Court the two cases appeared identical as to their subject-matter which concerned exclusively atmospheric tests;

59. Whereas the Court, in making these findings in 1974, had dealt with the question whether New Zealand, when filing its Application of 1973 instituting proceedings, might have had broader objectives than the cessation of atmospheric nuclear tests - the "primary concern" of the Government of New Zealand, as it now puts it; and whereas, since the current task of the Court is limited to an analysis of the Judgment of 1974, it cannot now reopen this question;
60. Whereas, moreover, the Court, at that time, took note of the communiqué issued by the Office of the President of the French Republic on 8 June 1974, stating that

"in view of the stage reached in carrying out the French nuclear defence programme France will be in a position to pass on to the stage of underground explosions as soon as the series of tests planned for this summer is completed" (ibid., p. 469, para. 35);

whereas it likewise referred to other official declarations of the French authorities on the same subject; and whereas it concluded, with reference to all those statements, that

"they must be held to constitute an engagement of the State, having regard to their intention and to the circumstances in which they were made" (ibid., p. 474, para. 51);

61. Whereas the unilateral declarations of the French authorities were made publicly outside the Court and erga omnes, and expressed the French Government's intention to put an end to its atmospheric tests; whereas the Court, comparing the undertaking entered into by France with the claim asserted by New Zealand, found that it faced "a situation in which the objective of the Applicant [had] in effect been accomplished" (ibid., p. 475, para. 55); and accordingly indicated that "the object of the claim having clearly disappeared, there is nothing on which to give judgment" (ibid., p. 477, para. 62);
62. Whereas the basis of the Judgment delivered by the Court in the Nuclear Tests (New Zealand v. France) case was consequently France's undertaking not to conduct any further atmospheric nuclear tests; whereas it was only, therefore, in the event of a resumption of nuclear tests in the atmosphere that that basis of the Judgment would have been affected; and whereas that hypothesis has not materialized;
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;
65. Whereas the basis of the Judgment delivered on 20 December 1974 in the Nuclear Tests (New Zealand v. France) case has not been affected; whereas the "Request for an Examination of the Situation" submitted by New Zealand on 21 August 1995 does not therefore fall within the provisions of paragraph 63 of that Judgment; and whereas that Request must consequently be dismissed;
66. Whereas, as indicated in paragraph 44 above, the "Request for an Examination of the Situation" submitted by New Zealand in accordance with paragraph 63 of the 1974 Judgment has been entered in the General List for the sole purpose of allowing the Court to determine whether the conditions laid down in that text have been fulfilled in the present case; and whereas, following the present Order, the Court has instructed the Registrar, acting pursuant to Article 26, paragraph 1 (b), of the Rules, to remove that Request from the General List as of 22 September 1995;

[p. 309 Decl. Schwebel] While concurring with the Court's disposition of the substance of the Requests of New Zealand, I have reservations about some of the procedures which have been followed.
In my view, it was obvious from the outset that New Zealand was entitled to move in pursuance of the express authorization provided by the Court in paragraph 63 of its Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case. Claims that there could be no case, that New Zealand could act only to seek the interpretation or revision of the Judgment or to bring a new case, that there was no room for appointment of agents or a judge ad hoc, that the President was not entitled to exercise his authority under the Rules of Court to call upon the Parties to act in such a way as would enable any order the Court might make on the request for provisional measures to have its appropriate effects, and that the Court could not have oral hearings, accordingly were misplaced. The action of New Zealand was singular, in pursuance of a singular provision in the Court's Judgment of 20 December 1974. But France's reaction was in my view tantamount to an objection to the admissibility of New Zealand's Requests, and should have been so treated.

In the end, and in the essentials, the Court did assimilate France's objections to New Zealand's Requests to an objection to admissibility, in so far as it seated the Judge ad hoc designated by New Zealand, and held oral hearings at which the Parties submitted their arguments on the threshold question put by the Court to them. Whatever the reservations expressed, it is plain that when fifteen judges gathered in their robes in the Great Hall of Justice of the Peace Palace, and when Judge ad hoc Sir Geoffrey Palmer took his oath of office, the Members of the Court did not meet, Pirandello style, in search of a courtroom or a case, but conducted an oral hearing on a phase of a case.

[p. 315 S.O. Shahabuddeen] The reservation in paragraph 63 of the 1974 Judgment was not intended, in my opinion, to enable the Court to assume and exercise competence over fresh matters not covered by such jurisdictional bond, if any, as existed between the Parties when the Application was brought in 1973. Where the Court has jurisdiction at the time when an Application is brought, the Nottebohm principle entitles it to continue to exercise that jurisdiction in relation to the dispute presented in the Application notwithstanding that the jurisdiction was terminated during the course of the proceedings. The last sentence of paragraph 63 of the 1974 Judgment sought to treat a request made pursuant to that paragraph as falling within the operation of that principle, in the same way that the principle would have applied to the original case had it continued; the sentence could not be construed as an attempt by the Court, by force of its own decision, to vest itself with jurisdiction not otherwise available to it. I have not been able to find any principle of law which entitles the Court to exercise a terminated jurisdiction over fresh acts occurring after the termination, in this case some 21 years after the jurisdiction (if it existed) was terminated. A request which leads to that result is not, in my opinion, a request within the meaning of paragraph 63 of the Judgment.

[p. 316 S.O. Shahabuddeen] It does not follow from the fact that the Court may also be described as a court of law that it administers the law mechanically. Lacking the full measure of the judicial power available to some national courts, it has nevertheless found opportunity for enterprise and even occasional boldness. Especially where there is doubt, its forward course is helpfully illuminated by broad notions of justice. However, where the law is clear, the law prevails.
The law is clear that the Court cannot act unless there is a dispute before it, and then only within the limits of the dispute. The dispute which New Zealand referred to the Court in 1973 arose out of a claim by New Zealand which the Court found applied "only to atmospheric tests, not to any other form of testing" (emphasis added). The Court would have been acting ultra petita in 1974 had it sought to adjudicate on the legality of underground tests (supposing it had been asked to do so), these being another form of testing. It is in respect of the legality of underground tests that New Zealand's present Request seeks relief. The matters sought to be so raised do not fall within the limits of the 1973 dispute by which the Court is still bound.

[pp. 320-321 D.O. Weeramantry] This Request for an Examination of the Situation is probably without precedent in the annals of the Court. It does not fit within any of the standard applications recognized by the Court's rules for the revision or interpretation of a judgment rendered by the Court. It is an unusual request generated by an unusual provision contained in the Court's Judgment of 1974.
Paragraph 63 of that Judgment reads as follows:

"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." (Nuclear Tests (New Zealand v. France), I.C.J. Reports 1974, p. 477.)

Paragraph 63 was a precautionary provision which the Court included in its Judgment when it decided to act upon a unilateral declaration by France that it would discontinue atmospheric testing of nuclear weapons - a declaration which it considered to be legally binding. The Court used its undoubted powers of regulating its own procedure to devise a procedure sui generis.

This procedure went beyond the provision for interpretation of a judgment contained in Article 60 of the Court's Statute and the provision for revision contained in Article 61. The Court no doubt considered that in the circumstances before it, it needed to go beyond either of those provisions. It was seeking to meet a need different from the need for interpretation or for revision of the Judgment. It was also opening the door to New Zealand in a manner which reached beyond the period of limitation attached to applications for revision.

The rationale of the Court's action was totally different from the rationale underlying revision, for revision involves an alteration or modification of the Judgment, whereas the Court's action was aimed at preserving the Judgment in its full integrity, in the event that some event had occurred which undermined the basis of the Judgment. Moreover, had revision been its intention, there was no necessity for the Court to make any special provision as the Statute would have operated automatically.
I therefore see no merit in the submission that an application under paragraph 63 is an application for revision under another guise. The two procedures are totally different in conception, nature and operation.

[pp. 331-332 D.O. Weeramantry] While the nature of a judgment's commands or prohibitions are important, so also is the basic object which it sought to achieve. It would strain both language and juridical principle to hold that the basis of a judgment can be found in its commands or prohibitions alone, considered apart from its reasons, or in its reasons alone, considered apart from its commands and prohibitions. As in all legal interpretation, it must be an interpretation in context.

Some insights may also be gained from discussions of the meaning of the expression ratio decidendi, which one examines in order to ascertain the basis of a judgment. The volumes written on what constitutes the ratio decidendi of a judgment (see, for example Cross and Harns, Precedent in English Law, 4th ed., l99l) contain various formulations of its meaning, but all different versions go back to the central question of law or principle from which the eventual orders made in the case proceed. The orders, or in this case the means prohibited, are part of the judgment, but clearly not the basis of the judgment.
What is this central question of principle in the 1974 Judgment? It must surely be that New Zealand is entitled to protection against harm caused by radioactivity from the explosion of nuclear weapons. It surely cannot be that New Zealand is entitled to protection against harm caused by radioactivity so long as such radioactivity proceeds from atmospheric detonations, and that New Zealand is not entitled to such protection if the harm proceeds from underground explosions.
To make this point clearer still, suppose France had moved not to underground explosions but to underwater explosions alongside of Mururoa. Could anyone have claimed that this was a permissible activity within the terms of the 1974 Judgment? It would strain language and credibility to argue that such was the intention of the Court. The conclusion appears patently clear that the basis of the Judgment was that harm must not be caused by nuclear tests and that New Zealand was entitled not to be exposed to radioactive contamination from French nuclear tests in the Pacific.

Another way of analysing the phrase is to observe that an order or directive statement contained in a judgment constitutes only a part of a judgment. The term "judgment" goes beyond the merely operative portion of a judgment. The basis of a judgment goes deeper still into the area of the underlying principles on which it rests, rather than the external orders used to implement it.
As I read paragraph 63, it seems clear, in the Court's own language, that it was not contemplating a breach by France of its undertaking, or of the Court's Judgment, but that it still had some concerns that the "substratum" of the Judgment might be affected in some way not then foreseeable. It is a tribute to the wisdom of the Court and to its foresight that it expressly provided for this possibility. The contrary contention which necessarily implies that the Court was prepared to sanction similar damage so long as it did not occur from atmospheric testing, is clearly untenable and does little credit to the judgment and foresight of the Court of 1974.

[pp. 336-337 D.O. Weeramantry] A fundamental rule of interpretation of any legal document is that it must not be so construed as to lead to results which are unreasonable or absurd. The interpretation that the Court was banning radioactive contamination by atmospheric tests but giving its tacit endorsement to radioactive contamination by underground tests seems to fall into this category. For reasons already discussed, the Court's order clearly did not contemplate that the shift to underground testing, in the state of knowledge at that time, would lead to these deleterious results. The Court could not, even by remotest implication, have reserved the right to France to cause similar kinds of nuclear contamination provided it was done by non-atmospheric testing.
Another way of looking at this matter is that it was a clear implication of the French declaration that the new procedures it was resorting to were to be free of the harm manifestly resulting from the old procedures.

To draw an analogy from another department of law, it is a well-known doctrine, universally recognized in the law, that there can be certain conditions not expressly specified in a document, which nevertheless are so clearly implied by its terms that a reasonable onlooker would say, "Of course, that is understood." The entire body of learning on the doctrine of the implied term in contract rests upon this rationale.

In regard to the underground tests which were announced by the French Government as replacing the atmospheric tests, it would surely be the view of an objective onlooker that the clear understanding, in regard to those tests, was that they would not affect such rights of New Zealand as it had sought to conserve by asking the Court for relief. The basis of the Judgment issued by the Court in answer to New Zealand's claim to protection was the implication that such protection ensued in consequence of France's declaration.
New Zealand's complaint related to the radioactive contamination of its terrestrial, maritime and aerial environment. That threat was now apparently at an end, for how else could the Court pronounce that New Zealand's claim had no longer any object?
Applying all the three tests formulated by the Court, the basis of the 1974 Judgment has been affected, the dispute has not disappeared, and New Zealand's claim still has an object if the identical type of harm - namely, radioactive contamination - results from the new situation that has arisen. On all these three counts, all specifically part of the 1974 Judgment, New Zealand has the right to ask the Court to examine the situation in the light of paragraph 63.

Significance of Opening Sentence of Paragraph 63

There is an important aspect of paragraph 63 which is deeply relevant to an understanding of the words "if the basis of this Judgment were to be affected". This aspect is reflected in the opening sentence of that paragraph, setting the context for the operative words that follow.

In the opening sentence, the Court makes it clear beyond any doubt that what it was contemplating was not any default by France in complying with its commitment. In the Court's own words that was an aspect which "it is not the Court's function to contemplate".
This is in line with an entrenched body of principle contained both in its governing instruments and its settled practice, that once the Court has delivered judgment, it is functus officio. It has discharged the duty for which the parties approached it and resolved the dispute so far as a judgment according to law can resolve it. Enforcement is not and never has been the concern of the Court, either in terms of its Statute or in terms of its settled jurisprudence.

In formulating paragraph 63, the Court was making it clear beyond doubt that what it was contemplating was not a non-observance by France of its obligations. That was assumed. In short, the cessation of atmospheric tests was assumed.
But on the basis of compliance by France, there could still be considerations affecting the basis of the Judgment which parties could not contemplate at that time, but which might nevertheless entitle a party in all justice to ask the Court for an examination of the situation. The Court was providing for just such an eventuality as this - that while France complied with its undertaking, the basis of the Judgment could still in some way be affected.

[p. 373 D.O. Koroma] In my view, the Court took the right decision when it invited the two States to inform it of their views as to whether the Requests submitted by New Zealand fell within the provisions of paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests (New Zealand v. France) case. The burden of establishing the legal basis of the Request rested upon New Zealand, for it was New Zealand that had submitted the Request, and it was for New Zealand to establish that the Request fell within the provisions of paragraph 63.
In my considered opinion, the standard of proof the Court should have applied as to whether New Zealand had established the legal basis of its Request should have been on a prima facie basis.

[p. 374 D.O. Koroma] In recent years a settled case-law has emerged in the Court which allows issues relating to incidental jurisdiction to be decided if title to jurisdiction can be adduced and is not manifestly invalid, and if the circumstances so require (case concerning Anglo-Iranian Oil Co., Interim Protection, I.C.J. Reports 1951, p. 89, cases concerning Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection and Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim Protection, I.C.J. Reports 1972, pp. l2 and 30). The Court has taken the. position that the mere fact that a State has challenged the basis of its jurisdiction does not suffice to prevent it from indicating interim measures of protection; nor need it come to the conclusion that where it has jurisdiction to deal with the merits of a case it must decide whether to grant interim provisional measures of protection.

Given the seriousness of the matter New Zealand has raised in its Request, and the weight of the evidence presented both in terms or facts and the law, it is my considered opinion that it has clearly shown both that its Request has a legal basis and that it falls within the provisions or paragraph 63. Had the Court applied the appropriate standard of proof, it would have come to the conclusion that New Zealand had established a prima facie case for the Court not only to have granted its request for the indication of provisional measures of protection, but to have assumed jurisdiction to consider the merits of the Request.

[pp. 375-376 D.O. Koroma] New Zealand contended that its Request should not be considered as application for revision in accordance with Article 6l of the Statute. This position seems accurate to me, for it appears unlikely that the Court would have contemplated a revision as the route whereby New Zealand could come to the Court, given the conditions laid down in the Article which provides that such an application must be based on some new fact of a decisive nature which was unknown to the Court and to the party claiming revision, and since the Article precludes any application for revision after ten years. I agree that there was no reason why the Court would have wished to so restrict New Zealand or any other State for that matter if the basis of the Judgment had been affected. Furthermore, paragraph 63 did not anticipate the discovery of new facts but rather provided for an examination of the subject-matter of the Judgment. It is thus clear that New Zealand's Request cannot be debarred under Article 61 of the Statute.

[pp. 377-378 D.O. Koroma] My own reading of paragraph 63 is that, the Court in its 1974 Judgment having taken into consideration the circumstances then prevailing, namely, atmospheric tests in the Pacific, Australia's concerns about atmospheric tests, as well as the New Zealand Application, France's commitment to cease atmospheric testing led the Court to believe that cessation of atmospheric testing would end contamination of the environment by radioactive material.

The Court thus believed itself to meet New Zealand's primary concerns as far as it related to atmospheric testing, but its wider concerns relating to radioactive fallout from nuclear testing remained. New Zealand's reading of an implied understanding that underground testing would not result in radioactive contamination is not therefore without considerable merit.

It thus seems to me that New Zealand was not contesting that atmospheric testing constituted the object of the l974 Judgment; what it now contends is that the object has been affected by radioactive fallout resulting from underground testing. The Court, in my view, should have given more careful consideration to this construction of the Judgment, while taking into account New Zealand's original Application and the evidence presented with the Request.
New Zealand had informed the Court that there is now a growing body of scientific evidence pointing to the potentially adverse and detrimental effects of underground testing in the South Pacific region of the Mururoa and Fangataufa atolls, and showing that contamination of the marine environment is a real risk. It seems to me that this would serve as evidence relating to the basis of the 1974 Judgment. What New Zealand complained about in 1973 was the radioactive effects of testing, and if the assumption then made that underground testing produces no radioactive effects no longer holds true, then, in my opinion, the basis of the 1974 Judgment must have been affected. There is merit in the contention that the 1974 Judgment met the concerns - including New Zealand's - in relation to atmospheric testings. However, as radioactive contamination is now said to be caused by underground testing, this, if proved, would seem to affect the basis of the Judgment, and would entitle a party to make use of the channel provided by paragraph 63 as New Zealand has done.

[pp. 395-396 D.O. Palmer] 42. The basis for paragraph 63 may indeed stem from the strong dissenting opinion of Judges Onyeama, Dillard, Jimenez de Aréchaga and Sir Humphrey Waldock. Those Judges said:

"In accordance with the above-mentioned basic principles, the true nature of New Zealand's claim, and of the objectives sought by the Applicant, ought to have been determined on the basis of the clear and natural meaning of the text of its formal submission. The interpretation of that submission made by the Court constitutes in our view not an interpretation but a complete revision of the text, which ends in eliminating what constitutes the essence of that submission, namely the request for a declaration of illegality of nuclear tests in the South Pacific Ocean giving rise to radio-active fall-out. A radical alteration of an applicant's submission under the guise of interpretation has serious consequences because it constitutes a frustration of a party's legitimate expectations that the case which it has put before the Court will be examined and decided. In this instance the serious consecquences have an irrevocable character because the Applicant is now prevented from resubmitting its Application and seising the Court again by reason of France's denunciation of the instruments on which it is sought to base the Court's jurisdiction in the present dispute." (Ibid., p. 499, para. l2.)

43. The internal textual evidence to be derived from that passage matches up closely with what was said by the Court in paragraph 63. The Court in that paragraph included a reference to a denounced instrument, specifically saving the request for examination from the fate predicted by the dissenters. In my opinion a possible explanation of paragraph 63 is that it was adopted by the Court, after having seen the dissent circulated in draft, in order to blunt power of the central point made by the dissenters and to ensure it did not come to pass. In that way the majority may have attempted to secure more support within the Court for the Judgment and may in fact have done so.
44. If the above reasoning is correct, it would suggest the Court had in mind in framing paragraph 63 that New Zealand was entitled to make a Request in terms of its original pleading. And as has been adverted to earlier those pleadings were framed rather widely. The majority of the Court was tacitly admitting future difficulties could arise because of the line it was taking; assurances from France may not be enough to satisfy all the applicant's objectives. The Court did not therefore decide the substantive issue before the Court but left open to itself the opportunity to do so later. New Zealand, as the dissenting Judges observed in 1974, never filed any discontinuance of its proceedings in light of French assurances. While the case was found to be moot in l974 its status could change if the facts that rendered it moot changed.

[pp. 399-400 D.O. Palmer] 51. In my opinion the jurisdictional foundation for the New Zealand Request rests upon the Judgment itself, particularly paragraph 63. The Judgment was rendered in accordance with the Statute. Indeed, France now admits the validity of the Judgment, even though it chose to make no appearance before this Court in 1973-l974 and did not comply with provisional measures ordered by the Court. The Court solemnly and clearly left it open in paragraph 63 for New Zealand to request an examination of the situation. The Court in reaching its Judgment knew what the Statute provided. In these circumstances the reference to the Statute must be understood as meaning in accordance with the Statute, the Rules of the Court and the Judgment of the Court. It was not to be understood as a reference to a particular procedure provided for by the Statute. What the Court meant in my opinion was that if paragraph 63 was activated the Court would use the procedures it usually uses to deal with it. It was a commitment to procedural due process in relation to any application for an examination of the situation. To give the phrase the meaning contended for by France is to render the paragraph devoid of practical effect. It could not have been intended by the Court to prevent a New Zealand return to the Court if, for example, France had resumed atmospheric testing 12 years after the Judgment.

52. In making provision in paragraph 63 in the way that it did, the Court was acting in exercise of the inherent power it enjoys as the result of its existence, including the Statute of the International Court of Justice itself and the reference in Article 1 to the Court as "the principal judicial organ of the United Nations" and the power in Article 48 to make orders for the conduct of the case. The Court in my opinion has the power to regulate its own procedure and to devise a procedure sui generis. It is, after all, a court.
53. The French argument also relies upon the long period of time that has elapsed since the Judgment of the Court coupled with the fact that New Zealand refrained from protesting against the underground tests which France carried out on occasions. But against that it should be said that it is common in domestic jurisdictions for matters to be left open for the parties to litigation to return to the Court consequent upon later developments. Such a feature in international law can hardly be regarded as unacceptable in terms of the sources of international law articulated in Article 38 (1) of the Statute of the International Court of Justice. In such circumstances the formal fact of the status of the case on the Court's formal list is irrelevant.

54. In my opinion the Court had the power to keep open the possibility of an examination of the situation in this case and it exercised that power. The reason the case is not dead is because the 1974 Judgment kept it alive. Given the subsequent development of matters in the South Pacific it might be regarded as providential that the Court had the foresight to act in the way that it did.