| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.7. | Evidence |
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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. 347-348 D.O. Weeramantry] As stressed in this opinion, it is
essential, in order to activate the procedures of the Court, that New Zealand
should make out at least a prima facie case that the dangers which brought it to
Court in 1973 are now present again in consequence of the underground nuclear
tests that France has commenced in the Pacific. There must therefore be an
examination of the facts in order to decide whether the jurisdictional basis
exists for New Zealand's present Request.
The ensuing examination is therefore undertaken as an integral part of the
preliminary jurisdictional question and is not a part of any examination of the
merits.
There are two ways of approaching this question. The first is to place the
burden of proof fairly and squarely upon New Zealand, and to ask whether a prima
facie case has been made out of the presence of such dangers as New Zealand
complains of.
The second approach is to apply the principle of environmental law under
which, where environmental damage of any sort is threatened, the burden of
proving that it will not produce the damaging consequences complained of is
placed upon the author of that damage. In this view of the matter, the Court
would hold that the environmental damage New Zealand complains of is prima facie
established in the absence of proof by France that the proposed nuclear tests
are environmentally safe.
It will be noted in this connection that all the information bearing upon
this matter is in the possession of the Respondent. The Applicant has only
indirect or secondary information, but has endeavoured to place before the Court
such information as it has been able, to the best of its ability, to marshal for
the purposes of this application.
The second approach is sufficiently well established in international law
for the Court to act upon it. Yet, it is sufficient for present purposes to act
upon the first approach, throwing the burden of proof upon New Zealand.
