Non-Identification of the Majority and Minority in the Practice of the International Court of Justice
On 9 May 1973 separate applications were filed by Australia and New Zealand, instituting proceedings against France in respect of the holding of atmospheric nuclear tests by France in the Pacific Ocean. The Court was asked to declare such testing contrary to international law and to prohibit any further tests. Australia on 9 May 1973 and New Zealand on 14 May 1973 asked the Court, pending a final decision, to grant interim measures of protection. These would require France to desist from any further atmospheric nuclear tests pending the judgment of the Court. On 16 May 1973 France informed the Registrar by letter that the Court was manifestly not competent and that the French government could not accept its jurisdiction. Nor would it appoint an agent in the case. It is not our purpose here to examine the claims, in so far as they are related to the competence of the Court to indicate provisional measures, of Australia, New Zealand or France; 1 or the response of the Court. Rather, we note that the Court, by a vote of 8-6, indicated certain measures including an instruction to France to avoid nuclear tests causing the deposit of radioactive fall out on Australia, New Zealand or its dependencies. The Court also decided that in the next phase written proceedings should first be addressed to the questions of the jurisdiction of the Court to entertain the dispute, and of the admissibility of the applications. Dissenting opinions were attached by Judges Forster, Gros, Petrén and Ignacio Pinto. These judges were four in number, whereas the interim awards record a vote of six dissenting judges. The Orders of the Court were, as is customary, collegiate and anonymous. Declarations were attached by Judges Jiménez de Aréchaga, Waldock, and Singh, and by Judge ad hoc Sir Garfield Barwick. It will readily be noted that it is not possible to see from Orders of 22 June 1973, granting interim measures, the full Composition of the majority and minarity in the Court.
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- H. Lauterpacht, The Development of International Law by the International Court 67 (1958)Google Scholar