CASE COMMENT: NUCLEAR TEST CASES (AUSTRALIA V.

FRANCE & NEW

ZEALAND V. FRANCE), [1974]

(3.2) INTERNATIONAL LAW

Submitted by-

Shreyashkar Parashar

UID No.- UG-17-97

Academic Year 2018-19

Semester III (June-November)

Submitted to-

Ms. Shreya Mishra

(Assistant Professor of Law)

Maharashtra National Law University, Nagpur

CONTENTS

 Research Design…………………………………………………….……..…..1
 Introduction………………………………………………………......……….2
 Background………………………………………………….……………..….4
 Issues…………………………………………………………………………..5
 Judgement of the court………………………………………………………..6
 Analysis…………………………………………………………………..…...9
 Conclusion……………………………………………………….....................11
 Bibliography………………………………………..........................................12
RESEARCH DESIGN

Research Methodology

Doctrinal research has been followed for the completion of this project. The research
started in the library of the university. Textbooks related to this topic have been referred
to. Several primary sources such as statutes have also been referred for this project. The
other major source of information is the internet. Articles available on the internet
concerning the project have been taken into account for this project through the internet.
Major source of information for this project have been books and internet. Those
websites have been referred to which have information regarding the topic to explain the
relevance of this topic.

Research Questions
1. What was the dispute (or subject of the dispute) in this case?
2. Was the application in this case without object?
3. Did French Statements constitute a unilateral binding undertaking?
4. Did the Court have jurisdiction in deciding the case?

Objectives of the research

The objective of this project is to find the main issues with regard to the case and analyze
them.

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INTRODUCTION

In 1973 Australia and New Zealand intuited proceedings against France with regard to the
French nuclear testing in the South Pacific Ocean. This litigation pitted Australia and New
Zealand against France1 which involved the French atmospheric nuclear test in the South
Pacific2 has had and will continue to have an important legal and political impact on the
international community. 3 The Australian application sought a declaration of illegality of the
French Tests as well as of all other atmospheric tests conducted by any country. 4It was for the
first time, the International Court of Justice was confronted with a question of military power
and national defence. The Court was invited to develop a totally new area of law with respect
to atomic weaponry by drawing upon the relevant arms control treaties 5 and the numerous
United Nations resolutions concerning nuclear tests. In the present case, the French
Government had carried out atmospheric tests of nuclear devices at its Centre
d'expérimentations du Pacifique, in the territory of French Polynesia, in the years 1966, 1967,
1968, 1970, 1971 and 1972. The main firing site used has been Mururoa atoll some 6,000
kilometres to the east of the Australian mainland. The French Government has created
"Prohibited Zones" for aircraft and "Dangerous Zones" for aircraft and shipping, in order to
exclude aircraft and shipping from the area of the tests centre; these "zones" have been put
into effect during the period of testing in each year in which tests have been carried out. As
the United Nations Scientific Committee on the Effects of Atomic Radiation has recorded in
its successive reports to the General Assembly, the testing of nuclear devices in the
atmosphere has entailed the release into the atmosphere, and the consequent dissipation in
varying degrees throughout the world, of measurable quantities of radioactive matter. It is
asserted by Australia and New Zealand that the French atmospheric tests have caused some

1
The subject matter of the Australian and New Zealand applications was the same, the Court dealt separately
with the two actions As a result there are two identical Orders of Interim Protection (of 22 June 1973) and two
Judgments (of 20 December 1974). The judgements in both the Australia and New Zealand cases are parallel
one another, and while there are some significant differences between the two cases, this comment will centre
on the reasons of the Court in the Australia case.
2
France conducted 43 atmospheric tests between 1966 and 1974 in the Atoll of Mururoa, a French territory
located 6,ooo kilometers east of Australia and 4,200 kilometers northeast of New Zealand.
3
R. St. J. Macdonald; Barbara Hough, The Nuclear Tests Case Revisited, International Lawyer
4
Para. 49 of the Australian Application reads in relevant part: The Australian Government contends that the
conduct of the tests as described above has violated, and if the tests are continued, will further violate
international law and the Charter of the United Nations, and, inter alia, Australia's rights in the following
respects: (i) the right of Australia and its people, in common with other States and their peoples, to be free from
atmospheric nuclear weapons tests by any country. Application filed with the Registry of the International Court
of Justice by the Government of Australia instituting proceedings in the Case Concerning Nuclear Tests, May 9,
1973
5
Multilateral Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water
(Moscow Test Ban Treaty) Oct.

2
fall-out of this kind to be deposited on territory of Australia and New Zealand; France has
maintained in particular that the radio-active matter produced by its tests has been so
infinitesimal that it may be regarded as negligible, and that such fall-out on Australian
territory does not constitute a danger to the health of the Australian population. On 20
December 1974, the International Court of Justice delivered judgment in the case concerning
Nuclear Tests (New Zealand v. France). Both countries had different claims in their
application namely, Australia 6 and New Zealand7. By 9 votes to 6, the court found that the
claim of New Zealand and Australia no longer had any object and the court was therefore not
called upon to give a decision thereon.
Talking about the reasoning of the court behind the judgement and the main issues involved,
the court identified four issues and resolved the same. One of the issue was to identify the
dispute that whether there was any dispute or not. Second issue was whether there was any
object in the applications of Australia and New Zealand. The court in this matter remarked
that the dispute had disappeared as France through its unilateral statements claimed to having
been reverted to underground testing which was the ultimate objective of both the countries.
The Court held that the dispute had been disappeared and the claim advanced by Australia
and New Zealand had no longer any object in their claim. Next issue was regarding whether
The International Court of Justice had jurisdiction in this case as it was argued by France that
ICJ was not competent to handle this case. The Court gave its reasoning about the same and
established that it was competent enough to handle case. The last and the most significant
issue was whether the French statements constituted a binding undertaking the court
vehemently explained the same in very lucid manner.
The research project aims to analyse and review the reasoning of the majority opinion. So,
this research project is bifurcated into five heads to keep it simple and lucid. The first head
i.e. Introduction talks about basic introduction of the case, brief facts and highlights the main
issues rose in the case. The second part, i.e. background talks about the introduction to the
case and the main findings of the case. The third part deals with the case description in which
the majority holding and the issues have been drawn out. The fourth head, is the analysis
section which is basically analysis of the main case in detail and lastly the conclusion is the
brief summary of the comment.
6
To adjudge and declare that "the carrying out of further atmospheric nuclear weapon tests in the South Pacific
Ocean is not consistent with applicable rules of international law" and to order "that the French Republic shall
not carry out any further such tests."
7
To adjudge and declare: That the conduct by the French Government of nuclear tests in the South Pacific
region that give rise to radio-active fall-out constitutes a violation of New Zealand's rights under international
law, and that these rights will be violated by any further such tests.

3
BACKGROUND

In its Judgment, the Court recalled that on 9 May 1973 the Applicant instituted proceedings
against France in respect of French atmospheric nuclear tests in the South Pacific. To found
the jurisdiction of the Court, the Application relied on the General Act for the Pacific
Settlement of International Disputes concluded at Geneva in 1928 and Articles 36 and 37 of
the Statute of the Court. By a letter of 16 May 1973 France stated that it considered that the
Court was manifestly not competent in the case, that it could not accept its jurisdiction and
that it requested the removal of the case from the Court's list. The Applicant having requested
the Court to indicate interim measures of protection, the Court, by an Order of 22 June 1973,
indicated inter alia that, pending its final decision, France should avoid nuclear tests causing
the deposit of radio-active fall-out on the territory of the Applicant. By various
communications the Applicant informed the Court that further series of atmospheric tests
took place in July-August 1973 and June-September 1974. By the same Order of 22 June
1973, the Court, considering that it was necessary to begin by resolving the questions of the
Court's jurisdiction and of the admissibility of the Application, decided that the proceedings
should first be addressed to these questions. The Applicant filed a Memorial and presented
argument at public hearings. It submitted that the Court had jurisdiction and that the
Application was admissible. France did not file any Counter-Memorial and was not
represented at the hearings; its attitude was defined in the above-mentioned letter of 16 May
1973. With regard to the French request that the case be removed from the list-a request
which the Court, in its Order of 22 June 1973, had duly noted while feeling unable to accede
to it at that stage, the Court observed that it had the opportunity of examining the request in
the light of the subsequent proceedings. It found that the present case was not one in which
the procedure of summary removal from the list would be appropriate, it was to be regretted
that France had failed to appear in order to put forward its arguments, but the Court
nevertheless had to proceed and reach a conclusion, having regard to the evidence brought
before it and the arguments addressed to it by the Applicant, and also to any documentary or
other evidence which might be relevant.

The court examined the claims of both Australia and New Zealand. It found out that the
“original and ultimate" object of Australia's claim was the termination of atmospheric nuclear
tests by France in the region of the South Pacific'. The following facts support this
conclusion”:

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a) Australia's note of January 3, 1973, in which Australia invited France to refrain from
further tests "and formally to assure the Australian Government that no more such tests will
be held in the Pacific area";

b) Australia's comments, in its application, on the notes of January 3, 1973 and February 7,
19738;

c) Australia's comments on its own objectives in its request for interim measures 9;

d) the comments of the Attorney-General of Australia at the oral hearings on the French
communique of June 8, 197410; and

e) the comments of the Attorney-General of Australia to the Australian Senate on the French
statement of September 25, 197411.

New Zealand in its application stated that the conduct by the French Government of nuclear
tests in the South Pacific region that give rise to radio-active fall-out constitutes a violation of
New Zealand's rights under international law, and that these rights will be violated by any
further such tests.

ISSUES

 Did the Court have jurisdiction in deciding the case?

 What was the dispute (or subject of the dispute) in this case?
 Did French Statements constitute a unilateral binding undertaking?
 Was the application in this case without object?

8
In para. 15 of its application, Australia referred to the notes of January 3, 1973 and February 7, 1973 and
asked the Court to look "most closely" at them, 'for it is in them that the shape and dimensions of the dispute ...
appear so clearly'.
9
In its request for interim measures, on May 9, 1973, Australia stated that, as in its application, it sought to
obtain from France a permanent undertaking to refrain from nuclear tests in the Pacific; however, France had
"expressly refused to give any such undertaking".
10
The Attorney-General pointed out, in regard to this communique, that Australia had consistently stated that it
would welcome a French statement to the effect that no further atmospheric tests would be conducted, but that
no such assurance had been given. 'The concern of the Australian Government is to exclude complete
atmospheric testing. It has repeatedly sought assurances that these atmospheric tests will end. It has not received
those assurances. The recent French Presidential statement cannot be read as a firm, explicit and binding
undertaking to refrain from further atmospheric tests. It follows that the Government of France is still reserving
to itself the right to carry out atmospheric nuclear tests".
11
On September 26, 1974, in reply to a question concerning reports that France had announced that it had
finished atmospheric nuclear testing, the Australian Attorney-General said, in the Senate, that the statement of
the French Foreign Minister on September 25 'falls far short of an understanding that here will be no more
atmospheric tests conducted by the French Government at its Pacific Tests Centre". France was "still reserving
to itself the right to carry out atmospheric nuclear tests', so that, 'In legal terms, Australia has nothing from the
French Government which protects it against any further atmospheric tests.'

5
THE JUDGEMENT OF THE COURT

The chain of reasoning of the majority of the judges may be summarized under the following
points:

Jurisdiction of the court

Taking into consideration the procedural facts, the judges laid down some of the important
findings in the case. The first reasoning was regarding the jurisdiction of the court. France
claimed that the court was not competent in the case and that it would not accept the Court’s
jurisdiction; and accordingly the French Government did not intend to appoint an agent, and
requested the Court to remove the case from the list. The court in the Australian application
established the jurisdiction on the following basis:

 Article 17 of the General Act for the Pacific Settlement of International Disputes,
1928, read together with Articles 36 (1) and 37 of the Statute of the Court. Australia
and the French Republic both acceded to the General Act on 21 May 1931 . . .
 Alternatively, Article 36 (2) of the Statute of the Court. Australia and the French
Republic have both made declarations thereunder 12."

The Court established the fact that it had an inherent jurisdiction, deriving from its mere
existence as a Court, to maintain its judicial character. It held that this inherent jurisdiction
required the court to refuse to hear cases where there was no existing dispute between the
parties. Regarding above holding, the court also established the fact that there is an existing
dispute between the parties is preliminary to questions of jurisdiction and admissibility; it
should be decided first 13.

Subject of the dispute

In order to decide whether there is an existing dispute between the parties, the Court said that
it must make two determinations. First, it must determine the "object of the claim", elsewhere
referred to as the "subject of the dispute", the "real issue", the "true object and purpose of the
claim", the "original and ultimate objective of the applicant", and, the "objective of the

12
Para. 21
13
Paras. 24, 55. The 'existence of a dispute is the primary condition for the court to exercise its judicial function;
it is not sufficient for one party to assert that there is a dispute, since 'whether there exists a dispute is a matter
for objective determination' by the Court', citing the Peace Treaties Case, ICJ Reports 1950, 74.

6
applicant"14. Secondly, the Court must determine whether the object has been achieved;
whether it has "in effect been accomplished" or "has been achieved by other means". 15 The
majority of the court established the here the subject of the dispute could be defined by the
applicant’s object in the instituting proceedings, so that, in these cases the dispute was related
to the cessation of testing. the court laid down that the dispute could be defined by the
application as a whole, both by reasons and submissions, so that, in this case the dispute was
as to the legality of future testing.

Unilateral statements as legally binding undertakings

Regarding the most important issue whether the French statements constitute a unilateral
binding undertaking, the court said that in order to find that a statement imposes a binding
obligation, it is essential to find that the person making the statement intended it to do so. The
Court held that a unilateral declaration by a state is binding on the state "if given publicly,
and with intent to be bound "16. In determining whether a statement is a binding unilateral
declaration, the Court will take into account the circumstances in which it was made and the
person who made it"17. No formal requirements need be met18 . "It is from the actual
substance of these statements and from the circumstances attending their making, that the
legal implications of the unilateral act must be deduced" 19. In accordance with the usual rule,
statements limiting a state's freedom of action will be restrictively interpreted20. The
statements by French officials on June 8, June 10, July 25, August 16, September 25, and
October 11, 1974, which were considered as a whole, constituted a binding unilateral
declaration by France to the effect that, after 1974, France would conduct no further
atmospheric nuclear tests in the South Pacific 21. This undertaking was not made subject to
"an arbitrary power of reconsideration." It was therefore not revocable at the option of
France. Its precise nature and limits "must be understood in accordance with the actual terms
in which they have been expressed" 22. The following factors were cited to support this
finding:

14
Paras. 26, 24, 29, 30, 52
15
Paras. 52 and 55
16
Para 33
17
Para 51,49
18
Para 45
19
Para 51
20
Para 44
21
Para. 49
22
Para. 51

7
a) The statements of June and July 25 were made by the President of France, that is, by the
French head of state23.

b) The President's statement of July 25 and the Defense Minister's statements of October 11
made it clear that the commitment of France to the cessation of tests was unqualified, that is,
not subject to any proviso that might have been implied by the expression "in the normal
course of events"24 .

c) The statements were made to the world at large and in regard to a matter of international
controversy"25.

The court also remarked that binding character of unilateral declarations is based on the need
for good faith (trust and confidence) in international relations. The validity of such
declarations, and their legal consequences, "must be considered within the general framework
of the security of international intercourse, and the confidence and trust which are so essential
in the relations among states"26. Interested states may thus "take cognizance of unilateral
declarations and place confidence in them, and are entitled to require that the obligation thus
created be respected"27. Thus, the court established that the French statements were binding
one.

Object of the Application

It is submitted that to prove that an application is without object it has to fulfil four requisites
namely; when a dispute is not a justiciable dispute, when the dispute is hypothetical, when
the dispute has ceased to exist or has been resolved and lastly when the dispute is in regard to
a dead issue. Regarding the first requisite, whether the dispute is not a justiciable dispute, it is
unerringly submitted that the dispute in this case was a justiciable dispute was legality of
future testing. It was held that a dispute between the parties was a dispute as to their legal
rights and not a political or non-justiciable dispute. Regarding the second requisite, whether
the dispute was a hypothetical one or was not in regard of concrete facts, it is submitted that
if a dispute is in regard to the legality of conduct that has not occurred, or which, in all
likelihood, will not occur, it is hypothetical. Thirdly, when the dispute has ceased to exist or
has been resolved. It is submitted that, when a concrete dispute becomes hypothetical, it is

23
Para. 49.
24
Para. 41.
25
Para. 50.
26
Para. 51
27
Para. 46

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appropriate to say that the dispute has ceased to exist. It follows that, if "future tests" meant
"tests after the date of judgement", the dispute had ceased to exist: at one point there was a
real likelihood that "future tests" might be carried out, but that likelihood disappeared when
the French statements were made, even if those statements did not amount to a legal
undertaking. Lastly regarding whether it was a dead issue or not, the court while referring to
the Northern Cameroons case stated that it was not a dead issue. Accordingly, the application
of Australia was not without object: the dispute was justiciable, it was not hypothetical, it had
not ceased to exist nor been resolved, nor was it in regard to a dead issue.

It was followed that the object of the claim i.e. the termination of further atmospheric tests
had been achieved, or had been "achieved by other means" or had "in effect been
accomplished"28. The majority of the judges concluded that there was no existing dispute
between the parties and that it was therefore unnecessary for the Court to hear the case on the
merits. "The object of the claim having already disappeared, there is nothing on which to give
judgement".29

ANALYSIS

The judgement was driven by utmost professionalism but it unanswered the two main
questions of the case; its competence and the admissibility of the Applications although it had
announced in the 1973 Orders that it would deal with these issues in the next stage of the
litigation. Regarding its competence, the court provided two basis for its jurisdiction namely
Article 17 of the General Act for the Pacific Settlement of International Disputes, 1928, read
together with Articles 36(1) and 37 of the Statute of the Court and Article 36(2) of the Statute
of the Court. There is a strong argument that the Act was no longer in force. It was an integral
part of the League of Nations "in so far as the pacific settlement of international disputes had
necessarily in that system to accompany collective security and disarmament" 30 and as a
result the Act was closely linked to the structures of the League. Consequently, with the
demise of the League, the Act fell into desuetude. Another argument for the continued
validity of the Act was that the French Government invoked the Act in 1956 in an earlier case
before the ICJ, the Certain Norwegian Loans Case. Altogether the court kept its explanation
for jurisdiction quite vague and ambiguous.

28
Paras. 52, 55.
29
Para. 59.
30
Letter from the French Ambassador in the Netherlands to the Registry of the International Court of Justice,
May 16, 1973, quoted in [1974] I.C.J. at 328. Joint Dissenting Opinion.

9
Other cases where the unilateral acts of states as legally binding obligations was a question of
issue are Legal status of Eastern Greenland case ( Norway v Denmark) which was decided by
the Permanent Court of Justice in the year 1933 and European Union v USA, 1999 which was
the case concerning Sections 301-310 of the Trade Act of 1974. The former case concerned a
dispute between Denmark and Norway over sovereignty in Eastern Greenland. During
negotiations, Denmark had offered certain concessions on another matter (Spitzbergen)
important to Norway. In this context, and after careful consideration, the Norwegian Foreign
Minister had made the “Ihlen Declaration”, as to which the PCIJ stated, what Denmark
desired to obtain from Norway was that the latter should do nothing to obstruct the Danish
plans in regard to Greenland. The Declaration which the Minister for Foreign Affairs gave on
July 22nd, 1919, on behalf of the Norwegian Government, was definitely affirmative: “I told
the Danish Minister today that the Norwegian Government would not make any difficulty in
the settlement of this question”. The Court in the present case established that a reply of this
nature given by the Minister for Foreign Affairs on behalf of his Government in response to a
request by the diplomatic representative of a foreign Power, in regard to a question falling
within his province, is binding upon the country to which the Minister belongs. In the latter
case, a dispute settlement panel of the World Trade Organization addressed the legal
significance of unilateral statements made by U.S. representatives, in connection with a
complaint initiated by the European Union claiming that certain U.S. legislation was
incompatible with GATT-W.T.O. commitments. The U.S. Trade Representative had stated
that official U.S. policy was to implement the challenged legislation in a manner consistent
with W.T.O. obligations, and had reaffirmed that policy before the panel. The court held that
the statements made by the US before this Panel were a reflection of official US policy,
intended to express US understanding of its international obligations as incorporated in
domestic US law. The statements did not represent a new US policy or undertaking but the
bringing of a pre-existing US policy and undertaking made in a domestic setting into an
international forum. The court in this matter said that the statements by the representatives of
the US appearing before us were solemnly made, in a deliberative manner, for the record,
repeated in writing and confirmed in the Panel’s second hearing. There was nothing casual
about these statements nor were they made in the heat of argument and there was ample
opportunity to retract.

Talking about the aftermath of the Nuclear Test Cases w.r.t environmental considerations,
this case became one of the most celebrated one with regard to environmental concern. The

10
Peoples of the Pacific region have been caught up in the nuclear age from its beginnings as,
generally without their prior knowledge or consent, their lands and seas have been used for
and contaminated by the development, testing and deployment of nuclear weapons by distant
powers and France was one of them. This has impacted their health, their homelands and
their future. A review of the cases decided by both the Permanent Court of International
Justice and its successor, the present International Court of Justice, shows that before the
Court exercised its discretion on behalf of a petitioner and grant interim measures of
protection it ought to be satisfied that an irreparable harm to existing, as distinct from
contingent, rights would occur if the petition were not granted. In granting the applicants'
petitions in the Nuclear Tests Cases, the Court was satisfied on both counts, despite France's
scepticism as to whether Australia or New Zealand could show what quantities of radio-
active fallout were to be regarded as probably damaging, and despite the dissenters' protests
that there were no existing legal rights on which the Court's orders could be validly founded.

CONCLUSION

In this research project, a conscious effort has been made to critically analyse the case
comment on Nuclear Test Cases i.e. (Australia v. France; New Zealand v. France). This case
became one of the most important debates in International Community. It was for the first
time that the International Court of Justice was confronted with a question regarding the
question of military power and national defence. Furthermore, these cases were the first to
involve nuclear weapons officially propelled the Court into the Nuclear Age. These cases
raised one of the most important issues in the area of International Law and are of great
relevance. The main issue raised was whether declarations made through unilateral acts may
have the effect of creating legal obligations. Regarding the same, the esteemed court
explained the principle of good faith. The court discussed one of the basic principles
governing the creation and performance of legal obligations, whatever their source, is the
principle of good faith. It also said that trust and confidence are inherent in international co-
operation, in particular in an age when this cooperation in many fields is becoming
increasingly essential.

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BIBLIOGRAPHY

Articles referred:

 R. St. J. Macdonald; Barbara Hough, The Nuclear Tests Case Revisited.

 Pierre Lellouche, The Nuclear Tests Cases: Judicial Silence v Atomic Blasts
 L. L. Herman, Nuclear Tests Case: Australia v. France; New Zealand v. France

Book referred:

 International Law 7th edition By Malcolm N. Shaw

Websites referred:

 www.heinonline.org
 www.icj-cij.org

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