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010. New Zealand v.

France (Nuclear Test Case)


New Zealand, represented by Prof. RQ Quentin-Baxter, Professor of International
Law, Victoria University of Wellington, v. the French Republic.
Dec. 20, 1974
Court presided over by Lachs, Pres.
Recit-Ready Version:

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.

1. WON there is a dispute between the countries. (No.)


2. WON the Court has jurisdiction over the case. (Since there is no dispute, it
doesnt matter)
Ratio:
It must be remembered that the issue being limited to jurisdiction of the court and
admissibility of the application, the Court will avoid expressions of opinion on
matters of substance, as well as any pronouncement which might prejudge or
appear to prejudge any decision on the merits.
However, while examining these questions of a preliminary character, the Court is
entitled to go into other questions which may not be strictly capable of
classification as matters of jurisdiction or admissibility but are of such a nature as
to require examination prior to those matters. Here, the court possesses an
inherent jurisdiction enabling it to take such action as may be required to ensure
that the exercise of its jurisdiction shall not be frustrated, as well as to provide for
the orderly settlement of all matters in dispute.
1. Therefore, the Court must first determine the existence of a dispute. Whether or
not the Court has jurisdiction, if there is no dispute, the proceedings cannot
continue. Thus the subject of the dispute as pointed out in the Application must
be analysed.
The submission made in the Application by New Zealand is that the Court should
adjudge and declare that the conduct by the French Government of nuclear tests
in the South Pacific region that give rise to radioactive fallout constitutes a
violation of New Zealands rights under international law, and that these rights
would be violated by any further such tests.
The court here wanted to determine whether New Zealand wanted a declaration
of the relationship between it and France, or a judgment which requires one or
both of the parties to take, or refrain from taking action. Thus, the court must
ascertain the true subject of the dispute
The diplomatic correspondence between New Zealand and France reveals that the
former wished to bring the latters nuclear testing in the South Pacific to an end.
However, this correspondence did not lead to an agreement. Seeing as the French
gave no assurances that its nuclear testing would stop, the New Zealand
Government felt that the issue had not been resolved by the correspondence. The
court later limited the claim of New Zealand to atmospheric nuclear tests that
would lead to fallout on New Zealand.
In a note dated June 11, 1974, the Prime Minister of New Zealand, via the French
Ambassador in Wellington, sent a note to the French President urging the latter to
weigh the implications of further atmospheric testing and resolve to put an end to

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.