II. | Substantive International Law - Second Part |
14. | INTERNATIONAL ENVIRONMENTAL LAW |
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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
[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.