Abstract
Beginning with a brief summary of the facts of this judgment of the World Court based on a majority of 9:6, on 9 May 1973, Australia and New Zealand each brought an application before the Court instituting proceedings against France in respect of a dispute concerning the holding of atmospheric tests of nuclear weapons by the French Government in the Pacific Ocean. In accordance with the Rules of the Court, the Registry duly informed the Ambassador of France to the Netherlands and by a letter dated 16 March 1973, the French Government stated that it considered that the Court was manifestly not competent in the case, that it could not accept the jurisdiction of the Court and that, accordingly, the French Government did not intend to appoint an agent but would instead request that the Court remove the case from its list.
Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 457.
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References
See The Work of the Asian African Legal Consultative Committee,New Delhi, pp. 24–26 and Legality of Nuclear Tests,pp. 95–96, for an account of the movement to ban atmospheric nuclear tests which were regarded by the Committee as contrary to international law. Conclusions 5, 6 and 7 read as follows:
The italics are mine.
T.O. Elias, The Modern Law of Treaties, Leiden, 1974, pp. 40–45, 127–128.
Test explosions of nuclear weapons are also contrary to the principles contained in the United Nations Charter and the Declaration of Human Rights.
Test explosions of nuclear weapons carried out in the high seas and in the airspace there above also violate the principle of freedom of the seas and the freedom of flying above the high seas, as such test explosions interfere with the freedom of navigation and of flying above the high seas and result in pollution of the water and destruction of the living and other resources of the sea.
Test explosions of nuclear weapons carried out in trust territories and non-selfgoverning territories also violate Articles 73 and 74 of the United Nations Charter.
One of the earliest analytical commentaries, exposing the problems raised by this case, is to be found in J. Dugard’s article entitled “The Nuclear Tests Cases and the South West Africa Cases: Some Realism about the International Judicial Decision,” Virginia Journal of International Law, Vol, 18, No. 3, Spring 1976, pp. 463–504, which contains an instructive comparison of both cases on various points of legal principles, including procedure. Equally stimulating is Edward McWhinney’s “International LawMaking and the Judicial Process: The World Court and The French Nuclear Tests Case” in Syracuse Journal of International Law and Commerce, Vol. 3, No. 1, Spring 1975, pp. 10–46.
For a critical reception of the judgment see W.K. Ris Jr., “French Nuclear Testing: A Crisis for International Law,” Denver Journal of International Law and Policy,Vol. 4, No. 1, Spring 1974, pp. 111–132, which pointed out that on 21 July 1973, only one month after the I.C.J. Judgment. France began a new series of atmospheric nuclear tests.
See, e.g., M. Mendelson, “The Legal Character of General Assembly Resolutions: Some Considerations of Principle,” Legal Aspects of the New International Economic Order (ed. K. Hossain), 1980, p. 104, where the decision in the case was criticised.
I.C.J. Reports 1961,P. 31.
See, e.g., E. Suy, Les Actes Juridiques Unilateraux en Droit International Publique,Paris, 1962, for an assessment of the legal position of unilateral declarations in customary as well as conventional international law.
In the judgment of the Permanent Court in Legal Status of Eastern Greenland (1933) P.C.I.J. Series A/B, No. 53, p. 71, the Court held that a declaration or reply (i.e., the so-called Ihlen Declaration) given by the Norwegian Minister of Foreign Affairs, on 22 July 1919, on behalf of his Government in response to a request of the Danish Ambassador, with regard to a matter falling within his province, was binding upon Norway. In Judge Anzilotti’s dessenting opinion it was particularly stressed that the authority of a Minister of Foreign Affairs is not affected by possible internal constitutional limitation of such authority.
For an interesting study of the general problem of estoppel see J.C. MacGibbon’s “Estoppel in International Law,” 7 I.C.L.Q. 958. A useful, though limited account of the operation of estoppel will be found in D.W. Bowett’s “Estoppel Before International Tribunals and its Relation to Acquiescence,” 33 B.Y.I.L. 1957.
And see the criticism of J.D. Elkind in his article “French Nuclear Testing and Article 41 — Another Blow to the Authority of the Court”, Vanderbilt Journal of Transnational Law, Vol. 8, No. 1, 1974, pp. 38–84.
P. C.I. J. Series A, No. 17,p. 51.
As suggested by Macdonald and Hough in their article “The Nuclear Tests Case Revisited”, German Yearbook of International Law, Vol. 10, 1977, pp. 337–357, “… the majority of the Court misunderstood the concept of an application being without object…” at p. 337. See also J.J. Ruiz, “Mootness in International Adjudication: The Nuclear Tests Cases”, Ibid.,pp. 358–374, especially pp. 361–367.
See Northern Cameroons, Judgment, I.C.J. Reports 1963,p. 38.
As to the wider implications of the case as a whole, see under Editorial Comment, Word Made Law: “The Decision of the I.C.J. in the Nuclear Tests Cases:; A.J.LL.,Vol. 60, No. 3, pp. 612–620, particulary at p. 612: ”The Nuclear Test Ban case, also, is a judicial avoidance of confrontation with political authority“.
Eight-Power Declaration of March 20, 1815, and accepted by the Swiss Confederation on May 27, 1815. See also G. Schwarzenberger, A Manual of International Law, 5th ed., London, 1967, pp. 220–221.
Declaration on the Suez Canal by Egypt, 24 April 1957, 51 A.J.LL. 1957, p. 673, where the declaration is fully set out and commented upon. See also The Suez Canal: Special Supplement 5 LC.L.Q. (1956), pp. 435 ff.
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Elias, T.O. (1983). The International Court of Justice and the Nuclear Tests cases. In: The International Court of Justice and some contemporary problems. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-4865-0_6
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