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Published online by Cambridge University Press: 27 February 2017
1 Nuclear Tests (NZ v. Fr.), 1974 ICJ Rep. 457, 477, para. 63 (Dec. 20).
2 The proceedings in 1974 thus ended because the dispute between New Zealand and France had disappeared, preventing the Court from deciding questions concerning its jurisdiction and the admissibility of the New Zealand Application of May 9, 1973. The existence of a “dispute” is required by Article 38, paragraph 1 of the ICJ Statute. A dispute is “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” Mavrommaus Palestine Concessions, 1924 PCIJ (ser. A) No. 2, at 11 (Aug. 30). For literature describing the Court's decision of 1974, see Judge Weeramantry's dissenting opinion, 1995 ICJ Rep. at 360 n.1.
3 See ICJ Communique No. 95/26 (Sept. 8, 1995), announcing also that the first French underground nuclear test since the announcement of June 13, 1995, had taken place. The Court's decision implied that at that stage it would not hear the arguments of both parties on New Zealand's substantive claims set out in the Request.
4 France took the position that the case instituted by the New Zealand Application of 1973 had been definitively closed by the Court's Judgment of 1974, precluding any procedural action whatsoever by the Court, including any public hearing and any incidental proceedings. See 1995 ICJ Rep. at 294, paras. 22–24. For these reasons, France also argued that it was not required to appoint an agent, although, in contrast to the 1974 proceedings, it participated fully in 1995. This explains the absence, in paragraph 30 of the Order, of any reference to the word “agent” in the description of the French representation, as opposed to the New Zealand team, which was headed by Attorney-General Paul East as agent. In all cases, the Rules of Court require both parties to appoint an agent. See ICJ Rules of Court, Art. 40, reprinted in 73 AJIL 748, 761 (1979).
5 1995 ICJ Rep. at 302, para. 47.
6 See id. at 295, para. 23. France contended that the matter should be disposed of by means of an order without hearings, because the Court manifestly lacked a basis on which any procedural steps could be taken. It is not entirely clear in what form France cast its objections to New Zealand's action. Initially, France seems to have taken the position, in a letter dated August 28, 1995, addressed to the Registrar by the Ambassador of the French Republic to the Netherlands, both that there was no basis of jurisdiction and that “the requests of New Zealand … are … manifestly inadmissible.” This caused Vice-President Schwebel to state in his declaration appended to the Order that “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.” Id. at 309. However, in an aide-memoire submitted by France to the Court on September 6, 1995, it was stated that “[t]he problem raised by New Zealand's action is not to ascertain whether the Court has jurisdiction or whether this Request is admissible, but solely to determine whether a case has been brought pursuant to the Statute” (translation by the ICJ Registry). See Aide-mémoire of France, at 2, para. 6. But elsewhere in the same document, France referred to the Court's setded case law to demonstrate that the Court was manifestly lacking jurisdiction. See id. at 11, para. 31. As this case was not treated as one of regular incidental proceedings under the Statute or Rules of Court, however, there was no true question of “preliminary objections” of France.
7 See ICJ Statute Art. 40, para. 1.
8 See id., Art. 60.
9 See id., Art. 61.
10 1995 ICJ Rep. at 303–04, paras. 53–54.
11 Id. at 299, para. 36. At the same time, as Judge Shahabuddeen rightly pointed out in section III of his separate opinion, “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.” Id. at 315.
12 1995 ICJ Rep. at 304, paras. 56–57 (citing 1974 ICJ Rep. at 466, para. 29).
13 By contrast, New Zealand claimed that the true and stated object of its Application of 1973 was nuclear testing of whatever nature and that atmospheric tests had only been New Zealand's “primary concern.” Id. at 290, para. 4. But see id. at 304, para. 57, quoting a statement 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 …” (emphasis added). In other words, if atmospheric nuclear testing was terminated, the New Zealand Government considered the dispute finished. This statement is further evidence of the true dispute between New Zealand and France, as it stood before the ICJ, as being one over atmospheric testing only.
14 Id. at 305, para. 60 (quoting 1974 ICJ Rep. at 469, para. 35).
15 Id., para. 61 (quoting 1974 ICJ Rep. at 475, para. 55 and 477, para. 62).
16 Id., para. 62. Consequently, the Court implied that, by virtue of paragraph 63 of the Judgment of 1974, the case was not dead as to atmospheric nuclear testing and could be reopened if France had resumed atmospheric testing after the Judgment, but that die case was dead, or inapplicable, as to underground nuclear testing. Apparently, New Zealand itself had acknowledged this fact in its Request, when it stated that “the Court considered it appropriate to include paragraph 63 as a reservation to its Judgment in order to cover the possibility that France might subsequently cease to comply with its undertakings regarding atmospheric testing.” See Request at 2, para. 5 (Aug. 21, 1995).
17 1995 ICJ Rep. at 306, para. 65. On die basis of die dismissal of die Request, the Court also dismissed, in paragraph 67, the Further Request for die Indication of Provisional Measures submitted by New Zealand on August 21, 1995, the Application for Permission to Intervene pursuant to Article 62 of die ICJ Statute submitted by Australia on August 23, 1995, and the Applications for Permission to Intervene pursuant to die same provision and Declarations of Intervention under Article 63 of the Statute submitted by Samoa and the Solomon Islands on August 24, 1995, and by die Marshall Islands and die Federated States of Micronesia on August 25, 1995, widiout consideration and wiuiout having offered any hearings on these various documents.
18 Judge ad hoc Palmer, who was appointed by New Zealand, described the Court's reasoning as “laconic” and as “the austerity of tabulated legalism”; its consequence, he predicted, will be “to retard progress in the development of international law.” 1995 ICJ Rep. at 414, paras. 96–97, and 418, para. 108.
19 1995 ICJ Rep. at 309. In his dissenting opinion, Judge ad hoc Palmer characterized the proceedings of 1995 as “a procedural species not seen before.” 1995 ICJ Rep. at 383, para. 6.
20 1995 ICJ Rep. at 293, para. 15.
21 Moreover, the Order states that during the public hearings on September 11–12, 1995, the two parties “essentially confirmed the views they had already expressed in writing,” underscoring the similarity of the proceedings in this case to those followed in a regular case. Id. at 297, para. 31.
22 This course of action avoided decisions on various incidental requests. See supra note 17. The Court also did not decide whether the Rules of Court of 1972, applicable at the time of the Judgment of 1974, would continue to apply, as argued by New Zealand, or whether the current 1978 Rules would apply. See 1995 ICJ Rep. at 292, para. 9 and 294, para. 19.
23 Id. at 303, paras. 50–52. As France convincingly argued in its Aide-memoire of September 6, 1995, at 8–9, paras. 24–26, the Court's Statute and jurisprudence prohibit the New Zealand Request from being regarded as an application for interpretation or revision. Had New Zealand itself brought a request for interpretation under Article 60 of the Statute, the Court would have had to find that request inadmissible by pointing out, as it had in Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, that a request for interpretation under Article 60 must be “solely to obtain clarification of the meaning and scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided.” 1950 ICJ Rep. 395, 402 (Nov. 27). The Court, as an international tribunal, has the power to interpret the instrument that governs its jurisdiction for the purpose of deciding as to its own jurisdiction. See Nottebohm (Preliminary Objection), 1953 ICJ Rep. III, 119 (Nov. 18). In this case, the Judgment of 1974 may be said to constitute that instrument. The Court might also have exercised some form of inherent jurisdiction to deal with what the late Judge Sir Gerald Fitzmaurice once called “pre-preliminary” questions. See his separate opinion in Northern Cameroons, 1963 ICJ Rep. 15, 103 (Dec. 2). See also Nuclear Tests, 1974 ICJ Rep. at 259–60, paras. 22–23. In any event, the Court diplomatically avoided the word “interpretation” in its Order and instead employed the term “analysis” in relation to its consideration of the Judgment of 1974. 1995 ICJ Rep. at 304, para. 55, at 305, para. 59 and at 306, para. 63.
24 See 1995 ICJ Rep. at 297, para. 32. Even New Zealand admitted that “[t]he Court's inclination to narrow the dispute was understandable in 1974. The only mode of testing used by France in the Pacific was atmospheric.” Request at 10, para. 20. Judge ad hoc Palmer also admitted in his dissenting opinion that “[t]he Court could not foresee what may happen in the future.” 1995 ICJ Rep. at 395, para. 41.
25 1995 ICJ Rep. at 297–98, paras. 32–34. France, however, argued that the shift from atmospheric to underground testing, as announced by it in 1974, had constituted the very reason that the object of the New Zealand Application of 1973 had been found satisfied in 1974. Id. at 300, para. 39.
26 See especially 1974 ICJ Rep. at 466, para. 29. The Judgment of 1974, like any ICJ judgment, enjoys the authority of Articles 59–60 of the Statute. See also the clear and convincing arguments presented by Judge Shahabuddeen in section II of his separate opinion, 1995 ICJ Rep. at 313–14.
27 Article 61, paragraph 5 of the ICJ Statute precludes any application for revision “after the lapse of ten years from the date of the judgment.”
28 See 1974 ICJ Rep. at 466, para. 29. Even Judge ad hoc Palmer accepted in his dissenting opinion, with reference to that paragraph, that” [i]t is true that this was the basis upon which the Court framed its Judgment.” 1995 ICJ Rep. at 397, para. 46. But if this is accepted, as it should be, the Court, in interpreting the Judgment of 1974, was also bound by it. The judge ad hoc was thus wrong when he stated elsewhere in his opinion that “the Court in its 1995 judgment has chosen to draw a fundamental distinction between atmospheric testing and underground testing.” Id. at 419, para. 111. It was the 1974 Court that had already drawn this distinction and the 1995 Court was thus bound by it. Most important, none of the six dissenting judges in 1974 disputed the majority's conclusion that the dispute related to atmospheric tests.
29 See 1995 ICJ Rep. at 303, para. 50; id. at 314 (Shahabuddeen, J., sep. op.). Note, incidentally, that this is different from the operation of a rule of stare decisis, which in any event is formally absent in the World Court, because the Court was not dealing with a separate case in which it could apply the jurisprudence established by a prior separate, but similar case, but was still dealing with one and the same case, namely, Nuclear Tests (New Zealand v. France). As Judge Shahabuddeen pointed out in his separate opinion, the Court would have violated the established ne ultra petita principle of judicial procedure, both in 1974 and in 1995, had it sought to adjudicate on the legality of underground tests, which, the Court had decided, was beyond what it had been asked to do. 1995 ICJ Rep. at 316 (Shahabuddeen,J., sep. op.). Consequently, the fact that the Judgment of 1974 failed to expressly endorse France's entidement to carry out underground nuclear tests should not be used to argue, as did New Zealand in its Request, that the Court thus had not specifically ruled that underground tests would end the dispute absolutely. Request at 34, para. 67.
30 1995 ICJ Rep. at 306, para. 64.
31 Similarly to the explanation offered by Judge ad hoc Palmer of the inclusion of paragraph 63 in the Judgment of 1974, it is perhaps true that paragraph 64 of the Order of 1995
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.
Id. at 396, para. 43 (Palmer, J., dissenting).
32 Judge Shahabuddeen's statement in his separate opinion that “the case raises important questions of principle concerning the role and functions of the Court,” together with his reference to the dissenting opinions, indicates that the Court was divided over these questions. 1995 ICJ Rep. at 315.
33 With the possible exception of the Court's Judgment in Maritime Delimitation and Territorial Questions between Qatar and Bahrain, 1995 ICJ Rep. 6 (Feb. 15). For the views of two former ICJ Presidents on this issue, see Nagendra Singh, The Role and Record of the International Court of Justice 103–04, 128, 131–33 (1989) (commenting on the NudearTests Case); and Robert Y.Jennings, The International Court of Justice after Fifty Years, 89 AJIL 493, 498 (1995).