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New Zealand's 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, Order of 22 September 19951

Published online by Cambridge University Press:  17 January 2008

Matthew C. R. Craven
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Type
International Court of Justice: Recent Cases
Information
International & Comparative Law Quarterly , Volume 45 , Issue 3 , July 1996 , pp. 725 - 734
Copyright
Copyright © British Institute of International and Comparative Law 1996

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Footnotes

*

Lecturer in Law, University of Leicester.

1.

I.C.J. Rep. 1995, 288.

References

2. Idem, para.1.

3. In favour: Bedjaoui (President), Schwebel (Vice-President), Oda, Guillaume, Shahabuddeen, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins, Against: Weeramantry, Koroma, Sir Geoffrey Palmer (Judge ad hoc). Vice-President Schwebel and Judges Oda and Ranjeva appended declarations to the order. Judge Shahabuddeen appended a separate opinion, and Weeramantry, Koroma and Sir Geoffrey Palmer dissenting opinions.

4. Keesing's. Vol.38 (1992), No.4. p.38890.Google Scholar

5. Keesing's. Vol.41 (1995),.No.6. p.40626.Google Scholar

6. Ibid.

7. 729 U.N.T.S. 161.

8. Keesing's. Vol.41 (1995). No.3. pp.40482–40483. Members of the Non-Aligned Movement (NAM) supported the renewal of the treaty for a period of 25 years: idem, No.5, p.40577.Google Scholar

9. Idem. No.7–8. p.40686.

10. E.g. Russia: idem, No.6, p.40626. The UK saw no problem with the French position. Ibid.

11. (1987) 26 I.L.M. 38.

12. (1985) 24 I.L.M. 1442. and Protocols (1989) 28 I.L.M. 1599.

13. I.C.J. Rep. 1995. 288. para.6.

14. It referred, in that respect, to the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region of 25 Nov. 1986 and customary international law: judgment, idem, para.5.

15. Idem, para.8. New Zealand also requested the ICJ President to use his powers under Art.66(3) of the 1972 Rules of Court (Art.74(4) of the current Rules of Court) to call upon France to refrain from nuclear testing until the ICJ had the opportunity to pronounce upon the New Zealand request: idem, para.9. In the event the President considered that he could not accede to the request without prejudicing the issues before the ICJ: idem, para.29. France detonated its first underground nuclear device at Mururoa on 5 Sept. 1995. six days before the hearings.

16. Idem, para.11. For most of these States, these were their first dealings with the ICJ.

17. Ibid.

18. I.C.J. Rep. 1974, 457. para.12.

19. The applications invoked, as the basis of the ICJ's jurisdiction. Art.17 of the 1928 General Act for the Pacific Settlement of Disputes, read in conjunction with Arts.36(1)and 37 of the ICJ Statute, and alternatively the parties' declarations under Art.36(2) and (5) of the Statute.

20. I.C.J. Rep. 1974, 457. para.5.

21. Order for the indication of provisional measures of 22 June 1973. I.C.J. Rep. 1973. 135. para. 18.

22. Idem, p. 142. Subsequent to the order, France carried out two further series of tests in the atmosphere in July/Aug. 1973 and June/Sept. 1974.

23. I.C.J. Rep. 1974. para.35.

24. Idem, paras.53–55.

25. Idem, para.62.

26. Idem, para.63.

27. See generally Rosenne, S.. The Law and Practice of the International Court (2nd edn, 1985). p.531.Google Scholar

28. I.C.J. Rep. 1995, 288, para. 19.

29. The ICJ has found that a request for an interpretation “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. Any other construction of Article 60 of the Statute would nullify the provision of the article that the judgment is final and without appeal.”: Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case I.C.J. Rep. 1950, 402.

30. It should be noted that Art.61(5) of the Statute excludes the possibility of revision after a lapse of ten years from the date of judgment.

31. I.C.J. Rep. 1995. 288. para.36.

32. Idem, para.38.

33. Idem, paras. 13 and 40 (referring, inter alia, to para.38(5). Rules of Court).

34. It cited in this regard the Treatment in Hungary of Aircraft and Crew of the United States of America I.C.J. Rep. 1954, 101–105: Aerial Incident of 4 September 1954 I.C.J. Rep. 1958, 160–161: Aerial Incident of7 November 1954 I.C.J. Rep. 1959, 278.

35. Art.38(5) of the Rules of Court.

36. I.C.J. Rep. 1995. 288. paras. 13.24 and 40. Rather than have its participation construed as consent. France indicated that it was not raising preliminary objections under Art.79 of the ICJ Statute nor was it properly speaking a party to proceedings at all, since the question before the ICJ was essentially “anterior”, and addressed merely to the question of seisin: Ibid.

37. Idem, paras.24 and 41.

38. See dissenting opinion of Judge Weeramantry, idem, pp.320–321. According to France, the problem was “not even preliminary, but truly a prerequisite of any formal act of procedure.”: judgment, idem, para.38.

39. The ICJ had stipulated that the arrangements for hearing argument should “in no way prejudice any decision which the Court will subsequently take regarding the existence or not of a case before it.”: idem, para.27.

40. Idem, para. 15. Both New Zealand and France stressed the “non-official.” character of their aide-mémoire, paras. 16 and 21. That they were informal suggests that they were not submitted pursuant to Arts.40–43. Rules of Court.

41. Idem, para.30.

42. Idem, para.44.

43. Idem, para.27.

44. Vice-President Schwebel was of the opinion that France's reaction to the New Zealand request should have been treated as an objection as to admissibility. He argued that “the Members of the Court did not meet, Pirandello style, in search of a courtroom or a case, but conducted an oral hearing on a phase of a case.”: declaration of Vice-President Schwebel, idem, p.309.

45. Judgment, idem, para.23.

46. Idem, para.52.

47. Idem, para.53.

48. ldem, para 23.

49. See e.g. Corfu Channel Case I.C.J. Rep. 1949, 4, 26, 36, 171.

50. I.C.J. Rep. 1995. 288. para.55.

51. I.C.J. Rep. 1974. 457. para.31.

52. Idem, para.29.

53. I.C.J. Rep. 1995. 288, para.62.

54. Ibid.

55. Idem, para.65.

56. Idem, paras.63–64.

57. Idem, para.67.

58. Dissenting opinions of Judges Weeramantry, idem, p.335: Koroma, idem, p.378: and Palmer, idem, p.414.

59. Dissenting opinion of Judge Koroma, Ibid.

60. Judgment, idem, paras.4 and 33.

61. Dissenting opinions of Judges Weeramantry, idem, pp.339–341: Palmer, idem, p.412; and Koroma, idem, p.379.

62. Dissenting opinion of Judge Weeramantry, idem, pp.341–345.

63. Dissenting opinions of Judges Koroma, idem, p.379; Weeramantry, idem, pp.345–346; and Palmer, idem, p.413. para.94.

64. Dissenting opinion of Judge Palmer, Ibid.

65. Judgment, idem, para.64.

66. Separate opinion of Judge Shahabuddeen, idem, pp.312–314.

67. The original application was formulated as follows: “New Zealand asks the Court 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.”: I.C.J. Rep. 1974. 457, para.12. In this regard, the ICJ relied upon statements at hearings and diplomatic correspondence to the effect that cessation of atmospheric nuclear testing would remove the substance of the dispute: idem, para.22.

68. Judge Shahabuddeen commented in that regard: “I have not been able to find any principle of law which entitles the Court to exercise a terminated jurisdiction over fresh acts occurring after the termination, in this case some twenty-one years after the jurisdiction (if it existed) was terminated.”: I.C.J. Rep. 1995. 288.315 (separate opinion).

69. Cf. declaration of Judge Ranjeva, idem, p.311.

70. See critical remarks of Judge Palmer (dissenting opinion), idem, para.96.

71. I.C.J. Rep. 1995. 6.