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Facts:
The French Government had carried out atmospheric tests of nuclear devices at its
Centre dexperimentations du Pacifique in French Polynesia in 1966-68 and 197072. The main firing site used was the Mururoa atoll, around 2,500 nautical miles
from the nearest point of the North Island of New Zealand, and approximately
1,050 nautical miles from the nearest point of the Cook Islands., which was in free
association with New Zealand. The French Government had created Prohibited
Zones and Dangerous Zones for aircraft and Shipping in order to exclude them
from the area of the test center.
As reported by the United Nations Scientific Committee on the Effects of Atomic
Radiation, atmospheric nuclear testing results in the release into atmosphere and
consequent dissipation of radioactive matter throughout the world. New Zealand
claims that the French nuclear tests have caused radioactive fallout on New
Zealand. France claims that the radioactive matter is so infinitesimal that it is
negligible and thus that there is no danger to the people of New Zealand. 1
Proceedings in the ICJ:
1. On May 9, 1973, the Ambassador of New Zealand, through a letter,
instituted proceedings against France over the legality of atmospheric
nuclear tests conducted by the French Government in the South Pacific
region. The application included arguments to found the jurisdiction of the
ICJ over the case based on Arts. 36(1) and 37 of the Statute of the Court and
Art. 17 of the General Act for the Pacific Settlement of International
Disputes in Geneva.
2. The Application was communicated to the French Government and all other
states entitled to appear before the court were notified of the application.
3. The Government of New Zealand chose the Right Honourable Sir Garfield
Barwick, Chief Justice of Australia, to sit as judge ad hoc in the case.
1 And then the ICJ decides to say Well, were getting to the merits of the case. Well
get back to that later, and then doesnt.
4. In a letter sent by France to the Netherlands dated May 16, 1973, which
was handed over to the Registrar of the ICJ, the French Government said
that the ICJ was incompetent in the case, could not accept its jurisdiction,
did not intend to appoint an agent, and requested the Court to remove the
case from its list.
5. On May 14, 1973, the agent of New Zealand field a request for interim
measures of protection. The Court approved the request in an order dated
June 22, 1973.
6. On May 18, Fijis government requested to intervene. The Court deferred
consideration until the end of written proceedings.
7. By the same order of June 22, the court decided that written proceedings
were necessary to resolve questions regarding the its jurisdiction and the
admissibility of the Application. It fixed the time limit for filing a Kiwi
memorial at Sept. 21, 1973,2 and a French counter memorial at Dec. 21,
1973.
8. New Zealand asked for an extension, which was granted, until Nov. 2, 1973
for the memorial, and Mar. 22, 1974 for the counter-memorial.
9. New Zealand filed the memorial on time.
10.France did not file a counter-memorial. The case was ready for hearing on
Mar. 23, 1974
11.The parties to the General Act for the Pacific Settlement of International
Disputes were notified of the proceedings.
12.The Governments of Argentina, Australia, Fiji, and Peru asked that the
pleadings and annexed documents be made available to them. The court
acceded to their request.
13.On July 10 and 11, 1974, public hearings were held, where oral arguments
on the questions of the ICJs jurisdiction and the admissibility of the
application were held. The French Government did not appear.
It must be mentioned that contrary to the assertions of the French Government,
the case was not subject to the procedure of summary removal, and thus could not
be so removed. Thus, by not appearing, the Court was deprived of assistance in
determining the matter.
Nevertheless, the Court must proceed and reach a conclusion, not only on the
basis of evidence brought before it by New Zealand, but also on any other
evidence. It must:
1. Satisfy itself that there is no bar to the exercise of its judicial function, and
2. That the application is well founded in fact and in law.
Issues:
2 Meanwhile, in a tropical archipelago, Martial Law was declared.
such testing. Clearly, if the note resulted in an unqualified assurance that would
see the end of atmospheric nuclear testing, or if the President of France did, in
fact, cease nuclear testing, then New Zealand would have fulfilled its objective.
2.
The claim of New Zealand no longer has any object, and so the Court is not
called upon to make a decision thereon.
Gabe.