372

DISSENTING OPINION OF JUDGE DE CASTRO
[Translation ]

In its Order of 22 June 1973 the Court decided that the written pleadings
should first be addressed to the questions of the jurisdiction of the Court
to entertain the dispute and of the admissibility of the Application. The
Court ought therefore to give a decision on these two preliminary ques-
tions.

Nevertheless, the majority of the Court has now decided not to broach
them, because it considers, in view of the statements made by French
authorities on various occasions concerning the cessation of atmospheric
nuclear tests, that the dispute no longer has any object.

That may be described as a prudent course to follow, and very learned
arguments have been put forward in support of it, but I am sorry to say
that they fail to convince me. It is therefore, I feel, incumbent upon me to
set out the reasons why [ am unable to vote with the majority, and briefly
to state how, in my view, the Court ought to have pronounced upon the
questions specified in the above-mentioned Order.

I. Is THE DISPUTE Now WITHOUT OBJECT?

Attention should in my view be drawn to various points concerning
the value to be attached to the French authorities’ statements in relation
to the course of the proceedings:

1. I think the Court has done well to take these statements into con-
sideration. It is true they do not form part of the formal documentation
brought to the cognizance of the Court, but some have been cited by
the Applicant and others are matters of public knowledge; to ignore them
would be to shut one’s eyes to conspicuous reality. Given the non-
appearance of the Respondent, it is the duty of the Court to make sure
proprio motu of every fact that might be significant for the decision by
which it is to render justice in the case (Statute, Art. 53). In matters of
procedure, the Court enjoys a latitude which is not to be found in the
municipal law of States (P.C.1.J., Series A, No. 2, p. 34; Statute, Arts. 30
and 48).

As in the Northern Cameroons case, the Court may examine ex officio
the questions whether it is or is not “impossible for the Court to render a
judgment capable of effective application” U.C./. Reports 1963, p. 33),
and whether the dispute submitted to it still exists—in other words, it
may enquire whether, on account of a new fact, there is no longer any
surviving dispute.

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 373

Thus, in the case brought before the Court, there arises a ‘‘pre-prelimi-
nary” question (separate opinion of Judge Sir Gerald Fitzmaurice, ibid.,
p. 103) which must be given priority over any question of jurisdiction
(ibid., p. 105); namely whether the statements of the French authorities
have removed the legal interest of the Application, and whether they
may so be relied on as to render superfluous any judgment whereby the
Court might uphold the Applicant’s claims.

2. I am wholly aware that the vote of the majority can be viewed as a
sign of prudence. The ‘‘new fact” which the statements of the French
authorities represent is of an importance which should not be overlooked.
They are clear, formal and repeated statements, which emanate from the
highest authorities and show that those authorities seriously and deliber-
ately intend henceforth to discontinue atmospheric nuclear testing. The
French authorities are well aware of the anxiety aroused all over the world
by the tests conducted in the South Pacific region and of the sense of relief
produced by the announcement that they were going to cease and that
underground tests would hereafter be carried out. These statements are
of altogether special interest to the Applicant and to the Court.

It is true that the French Government has not appeared in the proceed-
ings but, in point of fact, it has, both directly and indirectly, made known
to the Court its views on the case, and those views have been studied and
taken into consideration in the Court’s decisions. The French Govern-
ment knows this. One must therefore suppose that the French authorities
have been able to take account of the possible effect of their statements
on the course of the proceedings.

It may be the confidence warranted by the statements of responsible
authorities which explains why the majority of the Court has thought it
desirable to terminate proceedings which it felt to be without object. An
element of conflict (/is) is endemic in any litigation, which it seems only
wise, pro pace, to regard as terminated as soon as possible; this is more-
over in line with the peacemaking function proper to an organ of the
United Nations.

3. Even so, it must be added that the Court, as a judicial organ, must
first and foremost have regard to the legal worth of the French authorities’
statements.

Upon the Court there falls the task of interpreting their meaning and
verifying their purpose. They can be viewed as the announcement of a
programme, of an intention with regard to the future, their purpose
being to enlighten all those who may be interested in the method which
the French authorities propose to follow where nuclear tests are con-
cerned. They can also be viewed as simple promises to conduct no more
nuclear tests in the atmosphere. Finally, they can be considered as
promises giving rise to a genuine legal obligation.

It is right to point out that there is not a world of difference between
the expression of an intention to do or not do something in the future and
a promise envisaged as a source of legal obligations. But the fact remains

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 374

that not every statement of intent is a promise. There is a difference
between a promise which gives rise to a moral obligation (even when
reinforced by oath or word of honour) and a promise which legally binds
the promiser. This distinction is universally prominent in municipal law
and must be accorded even greater attention in international law.

For a promise to be legally binding on a State, it is necessary that the
authorities from which it emanates should be competent so to bind the
State (a question of internal constitutional law and international law)
and that they should manifest the intention and will to bind the State
(a question of interpretation). One has therefore to ask whether the
French authorities which made the statements had the power, and were
willing, to place the French State under obligation to renounce all possi-
bility of resuming atmospheric nuclear tests, even in the event that such
tests should again prove necessary for the sake of national defence: an
obligation which, like any other obligation stemming from a unilateral
statement, cannot be presumed and must be clearly manifested if it 1s to
be reliable in law (obligatio autem non oritur nisi ex voluntate certa et
plane declarata).

The identification of the necessary conditions to render a promise
animo sibi vinculandi legally binding has always been a problem in
municipal law and, since Grotius at least, in international law also.
When an obligation arises whereby a person is bound to act, or refrain
from acting, in such and such a way, this results in a restraint upon his
freedom (alienatio cuiusdam libertatis) in favour of another, upon whom
he confers a right in respect of his own conduct (signum volendi ius
proprium alteri conferri) ; for that reason, and with the exception of those
gratuitous acts which are recognized by the law (e.g., donation, pollici-
tatio), the law generally requires that there should be a quid pro quo from
the benificiary to the promiser. Hence—and this should not be forgotten
-—any promise (with the exception of pollicitatio) can be withdrawn at any
time before its regular acceptance by the person to whom it is made (ante
acceptationem, quippe iure nondum translatum, revocari posse sine iniusti-
tia).

4. On the occasion of another unilateral statement—discontinuance—
the Court established that an act of that kind must be considered in close
relationship with the circumstances of the particular case U.C./. Reports
1964, p. 19). And it is with the circumstances of the present case in mind
that one must seek an answer to the following questions:

Do those statements of the French authorities with which the Judgment
is concerned mean anything other than the notification to the French
people—or the world at large—of the nuclear-test policy which the
Government will be following in the immediate future?

Do those statements contain a genuine promise never, in any circum-
stances, to carry out any more nuclear tests in the atmosphere?

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 375

Can those statements be said to embody the French Government’s
firm intention to bind itself to carry out no more nuclear tests in the
atmosphere?

Do these same statements possess a legal force such as to debar the
French State from changing its mind and following some other policy
in the domain of nuclear tests, such as to place it vis-à-vis other States
under an obligation to carry out no more nuclear tests in the atmosphere?

To these questions one may reply that the French Government has
made up its mind to cease atmospheric nuclear testing from now on,
and has informed the public of its intention to do so. But | do not feel
that it is possible to go farther. | see no indication warranting a presump-
tion that France wished to bring into being an international obligation,
possessing the same binding force as a treaty—and vis-à-vis whom, the
whole world?

It appears to me that, to be able to declare that the dispute brought
before it is without object, the Court requires to satisfy itself that, as a
fact evident and beyond doubt, the French State wished to bind itself,
and has legally bound itself, not to carry out any more nuclear tests in
the atmosphere. Yet in my view the attitude of the French Government
warrants rather the inference that it considers its statements on nuclear
tests to belong to the political domain and to concern a question which,
inasmuch as it relates to national defence, lies within the domain reserved
to a State’s domestic jurisdiction.

I perfectly understand the reluctance of the majority of the Court to
countenance the protraction of proceedings which from the practical
point of view have become apparently, or probably, pointless. [t is how-
ever not only the probable, but also the possible, which has to be taken
into account if rules of law are to be respected. It is thereby that the appli-
cation of the law becomes a safeguard for the liberty of States and
bestows the requisite security on international relations.

I]. JURISDICTION OF THE COURT

In its Order of 22 June 1973 the Court considered that the material
submitted to it justified the conclusion that the provisions invoked by the
Applicant appeared, prima facie, to afford a basis upon which the juris-
diction of the Court might be founded. At the present stage of the pro-
ceedings, the Court must satisfy itself that it has jurisdiction under
Articles 36 and 37 of the Statute |.

1 { believe that 1 am entitled to express my opinion on the jurisdiction of the Court
and the admissibility of the Application. It is true that, in a declaration appended to the
Judgment in the South West Africa cases (1.C.J. Reports 1966, pp. 51-57), President
Sir Percy Spender endeavoured to narrow the scope of the questions with which judges
might deal in their opinions. But he was actually going against the practice followed in
the cases upon which the Court was giving judgment at the time. It was in the following
terms that he stated his view: ‘**... such opinions should not purport to deal with matters
that fall entirely outside the range of the Court’s decision, or of the decision’s motiva-

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 376

1. Jurisdiction of the Court by Virtue of the French Government’s Declara-
tion of 20 May 1966 (Art. 36, para. 2, of the Statute)

The first objection to the jurisdiction of the Court is based on the
reservation made by the French Government as to

‘... disputes arising out of a war or international hostilities, disputes
arising out of a crisis affecting national security or any measure or
action relating thereto, and disputes concerning activities connected
with national defence’.

This reservation certainly seems to apply to the nuclear tests. It is true
that it has been contended that the nuclear tests do not fall within
activities connected with national defence, because their object is the
perfection of a weapon of mass destruction. But it must be borne in mind
that we are dealing with a unilateral declaration, an optional declaration
of adhesion to the jurisdiction of the Court. Thus the intention of the
author of the declaration is the first thing to be considered, and the terms
of the declaration and the contemporary circumstances permit of this
being ascertained. The term ‘‘national defence’’ is broad in meaning:
“Ministry of National Defence” is commonly used as corresponding to
“Ministry of the Armed Forces”. National defence also includes the
possibility of riposting to the offensive of an enemy. This is the idea
behind the ‘‘strike force”. The expression used (“concerning activities
connected with ...”) rules out any restrictive interpretation. Further-
more, it is well known that the intention of the French Government was
to cover the question of nuclear tests by this reservation; it took care to
modify reservation (3) to its declaration of 10 July 1959 ! six weeks before
the first nuclear test 2.

The Applicant contends that the French reservation is void because it
is subjective and automatic, and thus void as being incompatible with
the requirements of the Statute. This argument is not convincing. In
reservation (3) of the French declaration, it is neither stated explicitly nor
implied that the French Government reserves the power to define what
is connected with national defence. However that may be, if the reser-

tion” (ibid., p. 55). In the present case, it does not seem to me that the questions of
jurisdiction and admissibility fall outside the range of the Court’s decision. They are
the questions specified in the Court’s Order of 22 June 1973, and they are those which
have to be resolved unless the dispute is manifestly without object.

1 By adding the words ‘and disputes concerning activities connected with national
defence”.

2 In my opinion, the Court does not have to deal with the sophistical arguments of
the Applicant on this point. ingenious though they be. The objective nature of the
reservation does not require that the meaning of the expression ‘‘national defence”’, or
what the French Government meant when it used it, be proved by evidence. The
reservation should simply be interpreted as a declaration of unilateral will, should be
interpreted, that is to say, taking into account the natural meaning of the words and
the presumed intention of the declarer. What would require proof would be that it hada
meaning contrary to the natural meaning of the terms used.

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 377

vation were void as contrary to law, the result would be that the declara-
tion would be void, so that the source of the Court’s jurisdiction under
Article 36, paragraph 2, of the Statute would disappear along with the
reservation. (In this sense, cf. separate opinion of Judge Sir Hersch Lau-
terpacht, /.C.J. Reports 1957, pp. 34 and 57-59; dissenting opinion of
Judge Sir Hersch Lauterpacht, [.C./. Reports 1959, p. 101; separate
opinion of Judge Sir Percy Spender, /.C./. Reports 1959, p, 59.) The
reservation is not a statement of will which is independent and capable of
being isolated. Partial nullity, which the Applicant proposes to apply to
it, is only permissible when there is a number of terms which are entirely
distinct (‘tot sunt stipulationes, quot corpora’, D. 45, 1, 1, para. 5) and
not when the reservation is the “essential basis” of the consent (Vienna
Convention on the Law of Treaties, Art. 44, para. 3 (b)) !.

The controversy is really an academic one. The exception or reservation
in the French declaration states, in such a way as to exclude any possible
doubt, that the French Government does not confer competence on the
Court for disputes concerning activities connected with national defence.
There is no possibility in law of the Court’s jurisdiction being imposed
on a State contrary to the clearly expressed will of that State. It is not
possible to disregard both the letter and the spirit of Article 36 of the
Statute and Article 2, paragraph 7, of the United Nations Charter.

2. Jurisdiction of the Court by Virtue of the General Act of Geneva of
26 September 1928 (Art. 36, para. 1, and Art. 37 of the Statute)

The question which most particularly requires to be examined ts
whether the General Act is still in force. Article 17 thereof reads as
follows:

‘‘All disputes with regard to which the parties are in conflict as to
their respective rights shall, subject to any reservations which may
be made under Article 39, be submitted for decision to the Permanent
Court of International Justice, unless the parties agree, in the manner
hereinafter provided, to have resort to an arbitral tribunal.”

Article 37 of the Statute provides that:

“Whenever a treaty or convention in force provides for reference
of a matter to a tribunal to have been instituted by the League of
Nations, or to the Permanent Court of International Justice, the
matter shall, as between the Parties to the present Statute, be referred
to the International Court of Justice.”

The French Government has informed the Court that it considers that
the Genera! Act cannot serve as a basis for the competence of the Court.
It is therefore necessary to examine the various questions which have

1 The separability of the reservation would have to be proved. Despite its efforts, the
Applicant has not succeeded in bolstering this contention with convincing arguments.

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 378

been raised as to the efficacy of the Act of Geneva after the dissolution
of the League of Nations.

(a) The General Act, like the contemporary treaties for conciliation,
judicial settlement and arbitration, originated in the same concern for
security and the same desire to ensure peace as underlay the system
of the League of Nations. The question which arises in the present case
is whether Article 17 of the General Act is no more than a repetition
or duplication of Article 36, paragraph 2, of the Statute of the Permanent
Court. If this is so, is Article 17 of the General Act subject to the vicissi-
tudes undergone by Article 36, paragraph 2, of the Statute, and likewise
to the reservations permitted by that provision?

The two Articles certainly coincide both in objects and means, but
they are independent provisions which each have their own individual
life. This appeared to be generally recognized. For brevity’s sake, I will
simply refer to the opinion of two French writers of indisputable autho-
rity. Gallus, in his study “L’Acte général a-t-il une réelle utilité?””, reaches
the above conclusion. He points out the similarities between the Articles,
and goes on: “But it would not be correct to say that the General Act is
no more than a confirmation of the system of Article 36 of the Statute of
the Permanent Court of International Justice’ (Revue de droit inter-
national (Lapradelle), Vol. LIL, 1931, p. 390). The author is also careful
to point out the differences between the two sources of jurisdiction
(members, conditions of membership, permitted reservations, duration,
denunciation) and the complications caused by the co-existence of the
two sources (ibid., pp. 392-395). In his view, the General Act amounts
to “‘a step further than the system of Article 36 of the Statute of the Court”?
(ibid., p. 391).

In the same sense, René Cassin has said:

“Does the recent accession of France to the Protocol of the
aforesaid Article 36 not duplicate its accession to Chapter IL of the
General Act of arbitration? The answer must be that it does not.”
(“L’Acte général d'arbitrage”, Questions politiques et juridiques,
Affaires étrangères, 1931, p. 17.) |

(b) It has been said that the reservations contemplated by Article 39,
paragraph 2 (b), of the General Act, applicable between the Governments
which are Parties to this case, may be regarded as covering reservation (3)
of the French declaration of 1966.

This view is not convincing. The reservation permitted by the General
Act is for ‘‘disputes concerning questions which by international law
are solely within the domestic jurisdiction of States”. This coincides with

1 Chapter IE of the General Act, which is entitled ‘‘Judicial Settlement”, begins with
Article 17. The individual and independent value of the Act, even after the winding-up
of the League of Nations, is clear from the travaux préparatoires of resolution 268A
(ID of the United Nations General Assembly, and from the actual text of that resolu-
tion.

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 379

reservation (2) in the French declaration of 1959, concerning “‘disputes
relating to questions which by international law fall exclusively within the
domestic jurisdiction”. That reservation was retained (also as No, 2) in
the French declaration of 1966; but it was thought necessary to add, in
reservation (3), an exclusion relating to disputes concerning activities
connected with national defence.

This addition.to reservation (3) was necessary in order to modify its
scope in view of the new circumstances created by the nuclear tests. The
reserved domain of domestic jurisdiction does not include disputes
arising from acts which might cause fall-out on foreign territory. The
final phrase of reservation (3) of the French declaration of 1966 has an
entirely new content, and one which therefore differs from Article 39,
paragraph 2 (b), of the General Act.

(c) Paradoxically enough, doubt has been cast on the continuation
in force of the General Act in the light of the proceedings leading up to
General Assembly resolution 268A (IIL) on Restoration to the General
Act of its Original Efficacy, and in view also of the actual terms of the
resolution.

It is true that ambiguous expressions can be found in the records of the
preliminary discussions. It was said that the draft resolution would not
imply approval on the part of the General Assembly, and that it would
thus confine itself to allowing the States to re-establish “the validity” of
the General Act of 1928 of their own free will (Mr. Entezam of Iran,
United Nations, Official Records of the Third Session of the General
Assembly, Part I, Special Political Committee, 26th Meeting, 6 December
1948, p. 302) !. The spokesmen for the socialist republics, for their part,
vigorously criticized the General Act for political reasons, regarding it as
a worthless instrurnent that had brought forth stillborn measures.

But the signatories of the Act, when they spoke of regularizing and
modifying the Act, were contemplating the restoration of its full original
efficacy, and were not casting doubt on its existing validity. Mr. Larock
(Belgium) explained that the General Act “‘was still valid, but needed to
be brought up to date” (ibid., 28th Meeting, p. 323). Mr. Ordonneau
(France) stated that “the Interim Committee simply proposed practical
measures designed to facilitate the application of provisions of Article 33
{of the Charter]” (ibid., p. 324). Mr. Van Langenhove (Belgium) said
that “the General Act of 1928 was still in force; nevertheless its effective-
ness had diminished since some of its machinery [i.e., machinery of the
League of Nations] had disappeared” (United Nations, Official Records of
the Third Session of the General Assembly, Part IT, 198th Plenary Meeting,
28 April 1949, p. 176). Mr. Viteri Lafronte (Ecuador), the rapporteur,
explained that ‘‘there was no question of reviving the Act of 1928 or of
making adherence to it obligatory. The Act remained binding on those

1 Mr. Entezam was perhaps using the word “‘validity” in the sense of “full efficacy”.

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 380

signatories that had not denounced it” (ibid., p. 189). Mr. Lapie (France)
also said that the General Act of 1928, which it was proposed ‘to restore
to its original efficacy, was a valuable document inherited from the
League of Nations and it had only to be brought into accordance with
the new Organization” (ibid., 199th Plenary Meeting, 28 April 1949,
p. 193). To sum up, and without there being any need to burden this account
of the matter with further quotations, it would seem that no-one at that
time claimed the Act had ceased to exist as between its signatories, and
that on the contrary it was recognized to be still in force between them.
Resolution 268A (ILI) of 28 April 1949, on the Restoration to the Gen-
eral Act of its Original Efficacy, gives a clear indication of what its object
and purpose is. It considers that the Act was impaired by the fact that
the organs of the League of Nations and the Permanent Court had dis-
appeared, and that the amendments mentioned were of a nature to restore
to it its original efficacy. The resolution emphasizes that such amendments

“will only apply as between the States having acceded to the General
Act as thus amended and, as a consequence, will not affect the rights
of such States, parties to the Act as established on 26 September 1928,
as should claim to invoke it in so far as it might still be operative”.

(d) Are Articles 17, 33, 34 and 37 of the Generzul Act, which refer to
the Permanent Court of International Justice, still applicable by the
operation of Article 37 of the Statute? Solely an affirmative answer would
appear to be tenable.

The Court answered the question indirectly in the Barcelona Traction,
Light and Power Company, Limited case (Preliminary Objections stage);
Judge Armand-Ugon demonstrated that the bilateral treaties of concilia-
tion, judicial settlement and arbitration of the time were of the same nature
as the General Act, a multilateral treaty. He said of the Hispano-Belgian
treaty of 1927 that it “is nothing other than a General Act on a small
scale between two States”. That is true. He then reasoned as follows:
resolution 268A (ILL) seemed to him to show, beyond all possible doubt,
that the General Assembly did not think it could apply Article 37 of the
Statute of the Court to the provisions of the General Act relating to the
Permanent Court, because for such a transfer ‘ta new agreement [the 1949
Act] was essential. This meant that Article 37 did not operate” (dissenting
opinion, [.C.J. Reports 1964, p. 156). The Court did not accept Judge
Armand-Ugon’s reasoning as sound, and impliedly denied his interpre-
tation of the 1949 Act and found Article 37 of the Statute applicable to
the 1928 General Act!. The doctrine of the Court was that the real
object of the jurisdictional clause invoking the Permanent Court (under
Art. 37) was not “to specify one tribunal rather than another, but to
create an obligation of compulsory adjudication” (/.C.J. Reports 1964,

p. 38).

1 It held that the Hispano-Belgian treaty was still in force, because of the applica-
bility to it of Article 37 of the Statute.

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 381

(e) The question which would appear to be basic to the present dis-
cussion on the continuance in force of the General Act is whether or not
that instrument has been subjected to tacit abrogation.

International law does not look with favour on tacit abrogation of
treaties. The Vienna Convention, which may be regarded as the codifica-
tion of communis opinio in the field of treaties (.C.J. Reports 1971, p. 47),
has laid down that the “termination of a treaty” may take place only “‘as
a result of the application of the provisions of the treaty or of the present
Convention” (Art. 42, para. 2), and that the termination of a treaty under
the Convention may take place: ‘‘(a) in conformity with the provisions of
the treaty; or (b) at any time by consent of all the parties after consulta-
tion with other contracting States” (Art. 54).

The General Act laid down the minimum period for which it should
be in force, provided for automatic renewal for five-year periods, and
prescribed the form and means of denunciation (Art. 45). Like the Vienna
Convention, the Act did not contemplate tacit abrogation; and this is
as it should be. To admit tacit abrogation would be to introduce con-
fusion into the international system. Furthermore, if tacit abrogation
were recognized, it would be necessary to produce proof of the facta
concludentia which would have to be relied on to demonstrate the con-
trarius consensus of the parties, and proof of sufficient force to relieve
the parties of the obligation undertaken by them under the treaty.

(f) It seems to me to be going too far to argue from the silence
surrounding the Act that this is such as to give rise to a presumption of
lapse !. Digests and lists of treaties in force have continued to mention
the Act; legal authors have done likewise 2.

In the Court also, Judge Basdevant affirmed that the Genera] Act was
still in force and that it was therefore in force between France and
Norway, which were both signatories to it. He drew attention to the fact

{ The non-invocation of a treaty may in fact be due to its efficacy in obviating
disputes between the parties—-and thereby constitute the best evidence of its con-
tinuance in force.

2 It has been cited as being still in force by the most qualified writers in France and in
other countries. Nonetheless, the doubts of Siorat should be noted, as to the validity of
the Act after the winding-up of the League of Nations. He raises the problem whether
the General Act might not have lapsed for a reason other than the winding-up of the
Permanent Court: impossibility of execution, as a result of the disappearance of the
machinery of the League of Nations, might be asserted. But for termination to have
occurred, it would be necessary to prove that the functions laid on the League of
Nations have not been transferred to the United Nations, and that the situation would
both make execution literally impossible and create a total, complete and permanent
impossibility. Generally accepted desuetude might also be asserted. This writer men-
tions that the attitude of the parties towards the Act is difficult to interpret, and points
out that for there to be desuetude it would be necessary to prove indisputably that
the parties had adopted a uniform attitude by acting with regard to the Act as though
it did not exist, and that they had thus, in effect, concluded a tacit agreement to regard
the Act.as having terminated (‘L'article 37 du Statut de la Cour internationale de
Justice”, Annuaire francais de droit international, 1962, pp. 321-323). It should be
observed that the data given by this writer are somewhat incomplete.

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 382

that the Act had been mentioned in the Observations of the French
Government and had later been explicitly invoked by the Agent of that
Government as a basis of the Court’s jurisdiction in the case: he likewise
pointed out that the Act had also been mentioned by counsel for the
Norwegian Government (.C.J. Reports 1957, p. 74). This is an opinion
of considerable authority. But it seems to me relevant also to observe
that, when the Court (despite Judge Basdevant’s opinion) dismissed the
French claim in the Certain Norwegian Loans case, it did not throw doubt
on the validity and efficacy of the General Act !.

The dissenting opinion of Judges Guerrero, McNair, Read and Hsu Mo,
in the case concerning Reservations to the Convention for the Prevention
and Punishment of the Crime of Genocide, also referred to the 1928
General Act and to the Revised Act U.C.J. Reports 1951, p. 37) 2.

In my view, one can only agree with the following statement, taken
from a special study of the matter:

“In conclusion it may be affirmed that the General Act of Geneva
is in force between twenty contracting States 3 which are still bound
by the Act, and not only in a purely formal way, for it retains full
efficacy for the contracting States despite the disappearance of some
organs of the League of Nations 4.”

(zg) The continuance in force of the General Act being admitted, it has
still been possible to ask whether the French declaration recognizing the
compulsory jurisdiction of the Court, with the 1966 reservation as to
national defence, might not have modified the obligations undertaken by
France when it signed the Act, in particular those contained in Chapter II.
In more general terms, the question is whether the treaties and conven-
tions in force in which acceptance of the Court’s jurisdiction is specially
provided for (the hypothesis of Art. 36, para. 1, of the Statute), are sub-

1 The Court said that the French Government had mentioned the General Act of
Geneva, but went on to say that such a reference could not be regarded as sufficient to
justify the view that the Application of the French Government was based upon the
General Act, “If the French Government had intended to proceed upon that basis it
would expressly have so stated.” The Court considered that the Application of the
French Government was based clearly and precisely on Article 36, paragraph 2, of the
Statute. For that reason, the Court felt that it would not be justified in seeking a basis
for its jurisdiction “different from that which the French Government itself set out in
its Application and by reference to which the case had been presented by both Parties
to the Court” (.C.J. Reports 1957, p. 24 f.). It seems that it would not have been in the
interest of the French Government to place emphasis on the General Act, because the
latter, in Article 31, required the exhaustion of local remedies.

2 The Act is also cited in 1.C.J. Reports 1961, p. 19. Pakistan invoked it as basis of
the Court’s jurisdiction in its Application of 11 May 1973 against India (a case which
was removed from the list by an Order of 15 December 1973 following a discontinu-
ance by Pakistan).

3 France and the United Kingdom have denounced the Act since the institution of
the present proceedings.

4 Kunzmann, “Die Generalakte von New York und Genf als Streitschlichtungs-
vertrag der Vereinten Nationen”, 56 Die Friedens-Warte (1961-1966), Basle, p. 22.

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 383

ordinate to the unilateral declarations made by States accepting the com-
pulsory jurisdiction of the Court (the hypothesis of Art. 36, para. 2), or
depend on those declarations, with the result that the abrogation of that
obligation to be subject to the Court’s jurisdiction, or its limitation by the
introduction of additional reservations, also entails the abrogation or
limitation of the obligations undertaken under a previous bilateral or
multilateral convention.

The respect due to the sovereignty of States, and the optional nature of
the Court’s jurisdiction (Art. 2, para. 7, of the Charter), would not seem
to warrant setting aside the principle of pacta sunt servanda, an essential
pillar of international law. Once submission to the Court’s jurisdiction
has been established in a treaty or convention (Art. 36, para. 1, of the
Statute), the parties to the treaty or convention cannot of their own
free will and by unilateral declaration escape the obligation undertaken
toward another State. Such declaration does not have prevailing force
simply because it provides for the jurisdiction of the Court in accordance
with Article 36, paragraph 2, of the Statute, or because it is made subject
to reservations, or enshrines a possibility of arbitrarily depriving the
Court of jurisdiction. To undo the obligation undertaken, it will always
be necessary to denounce the treaty or convention in force, in accordance
with the prescribed conditions.

Even if it be thought that a declaration filed under Article 36, para-
graph 2, of the Statute gives rise to obligations of a contractual nature,
the answer would still be that such declaration cannot free the declarant
State from all or any of the obligations which it has already undertaken
in a prior agreement, otherwise than in accordance with the conditions
laid down in that agreement. For there to be implied termination of a
treaty as a result of the conclusion of a subsequent treaty, a primary
requirement is that “all the parties to it conclude a later treaty relating to
the same subject-matter” (Vienna Convention, Art. 59).

It should also be noted that there is not such incompatibility between
declarations made by virtue of Article 36, paragraph 2, of the Statute,
and the General Act, as to give rise to tacit abrogation as a result of a new
treaty. The Act operates between the signatories thereto, a closed group
of 20 States, and imposes special conditions and limitations on the parties.
The Statute, on the contrary, according to the interpretation which has
been given of Article 36, paragraph 2, opens the door to practically all
States (Art. 93 of the Charter), and permits of conditions and reservations
of any kind whatever being laid down.

The relationship between the General Act and subsequent acceptance
of the compulsory jurisdiction of the Court has been explained in a
concise and masterly fashion by Judge Basdevant:

‘A way of access to the Court was opened up by the accession
of the two Parties to the General Act of 1928. It could not be closed
or cancelled out by the restrictive clause which the French Govern-
ment, and not the Norwegian Government, added to its fresh

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 384

acceptance of compulsory jurisdiction stated in its Declaration of
1949, This restrictive clause, emanating from only one of them, does
not constitute the law as between France and Norway. The clause
is not sufficient to set aside the juridical system existing between
them on this point. It cannot close the way of access to the Court that
was formerly open, or cancel it out with the result that no jurisdic-
tion would remain.” (/.C./. Reports 1957, pp. 75 f.)

(h) There still remains a teasing mystery: why did the French Govern-
ment not denounce the General Act at the appropriate time and in accor-
dance with the required forms, in exercise of Article 45, paragraph 3, of
the Act, at the time in 1966 when it filed its declaration recognizing the
jurisdiction of the Court subject to new reservations? It seems obvious
that the French Government was in 1966 not willing that questions
concerning national defence should be capable of being brought before
the Court, and we simply do not know why the French Government
preserved the Court’s jurisdiction herein vis-a-vis the signatories to the
Act!, But this anomalous situation cannot be regarded as sufficient to
give rise to a presumption of tacit denunciation of the General Act by
the French Government, and to confer on such denunciation legal
effectiveness in violation of the provisions of the Act itself. To admit this
would be contrary to the most respected principles of the law of treaties;
it would be contrary to legal security and even to the requirements of the
law as to presumptions.

III. THE ADMISSIBILITY OF THE APPLICATION

1. The Order of 22 June 1973 decided that the written pleadings should
be addressed both to the question of the Court’s jurisdiction to entertain
the dispute and to that of the admissibility of the Application. The Court
has thus followed Article 67 of its Rules.

The term “admissibility” is a very wide one, but the Order, in para-
graph 23, throws some light on the meaning in which it uses it, by stating
that it cannot be assumed a priori that the Applicant “‘may not be able to
establish a legal interest in respect of these claims entitling the Court to
admit the Application”.

The question is whether the Applicant, in its submissions, has or has
not asserted a legal interest as basis of its action. At the preliminary stage
contemplated by the Order, the Court has first to consider whether the
Applicant is entitled to open the proceedings (legitimatio ad processum,
Rechtsschutzanspruch), to set the procedural machinery in motion, before
turning to examination of the merits of the case. Subsequently the question
would arise as to whether the interest alleged was, in fact and in law,

1 Though various hypotheses have been put forward to explain this apparently
contradictory conduct.

135
NUCLEAR TESTS (DISS. OP. DE CASTRO) 385

worthy of legal protection 1, But that would belong to the merits of the
case, and it therefore does not fall to be considered here.

The Applicant refers to violations by France of several legal rules, and
endeavours to show that it has a legal interest to complain of each of these
violations. It will therefore be necessary to examine the interest thus
invoked in each case of alleged violation, but it would be as well for me
first of all to devote some attention to the meaning of the expression
‘legal interest”.

2. The idea of legal interest is at the very heart of the rules of procedure
(cf. the maxim “‘no interest, no action”). It must therefore be used with
the exactitude required by its judicial function. The General Act affords a
good guide in this respect: it distinguishes between ‘‘disputes of every
kind‘ which may be submitted to the procedure of conciliation (Art. 1),
the case of ‘‘an interest of a legal nature” in a dispute for purposes of
intervention (Art. 36), and “‘all disputes with regard to which the Parties
are in conflict as to their respective rights” (Art. 17); only the latter are
disputes appropriate to judicial settlement, and capable of being sub-
mitted for decision to the Permanent Court of International Justice in
accordance with the General Act 2.

As is apparent, Article 17 of the General Act does not permit of an
extensive interpretation of the “legal interest’? which may be asserted
before the Court. What is contemplated is a right specific to the Appli-
cant which is at the heart of a dispute, because it is the subject of con-
flicting claims between the Applicant and the Respondent. Thus it is a

1 Judge Morelli once pointed out that the distinction between a right of action anda
substantive interest is proper to municipal law, whereas it is necessary in international
law to ascertain whether there is a dispute (separate opinion, L.C.J. Reports 1963,
pp. 132 f.). 1 do not find this observation particularly useful. To hold an application
inadmissible because of the applicant’s want of legal interest, or to reach the same con-
clusion because for want of such interest there is no dispute, comes to one and the
same thing. Judge Morelli felt bound to criticize the 1962 South West Africa Judgment
because in his view it confused “the right to institute proceedings” (which has to be
examined as a preliminary question) and the existence of “a legal right or interest” or
“a substantive right vested in the Applicants” (which has to be regarded as a question
touching the merits) (separate opinion, /.C./. Reports 1966, p. 61).

2 Sir Gerald Fitzmaurice has shed light on the meaning to be given to the term
“dispute”. He says that a legal dispute exists

“only if its outcome or result, in the form of a decision of the Court, is capable of
affecting the legal interests or relations of the parties, in the sense of conferring or
imposing upon (or confirming for) one or other of them, a legal right or obligation,
or of operating as an injunction or a prohibition for the future, or as a ruling
material to a still subsisting legal situation” (separate opinion, /.C.J. Reports 1963,
p. 110).
The point thus made is not upset by the fact that proceedings can be instituted to
secure a declaratory ruling, but in that connection it must be noted that what may
properly fall to be determined in contentious proceedings is the existence or non-
existence of a right vested in a party thereto, or of a concrete or specific obligation. The
Court cannot be called upon to make a declaratory finding of an abstract or general
character as to the existence or non-existence of an objective rule of law, or of a general
or non-specific obligation. That kind of declaration may be sought by means of a
request for an advisory opinion.

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 386

right in the proper sense of that term (ius dominativum), the nature of
which is that it belongs to one or another State, that State being entitled
to negotiate in respect thereof, and to renounce it.

The Applicant however seems to overlook Article 17, and considers
that it is sufficient for it to have a collective or general interest. It has
cited several authorities to support its view that international law recog-
nizes that every State has an interest of a legal nature in the observation
by other countries of the obligations imposed upon them by international
law, and to the effect also that law recognizes an interest of all States with
regard to general humanitarian causes.

If the texts which have been cited are closely examined, a different
conclusion emerges. In South West Africa (Preliminary Objections) Judge
Jessup showed how international law has recognized that States may
have interests in matters which do not affect their “material” or, say,
“physical” or ‘“‘tangible’’ interests. But Judge Jessup also observes that
“States have asserted such legal interests on the basis of some treaty’’;
in support of this observation he mentions the minorities treaties, the
Convention for the Prevention and Punishment of the Crime of Geno-
cide, conventions sponsored by the International Labour Organisation,
and the mandates system (separate opinion, 1.CJ. Reports 1962,
pp. 425 ff.). Judge Jessup’s opinion in the second phase of the South West
Africa cases, in which he criticizes the Court’s Judgment, which did not
recognize that the Applicants or any State had a right of a recourse to a
tribunal when the Applicant does not allege its own legal interest relative
to the merits, is very subtly argued. Judge Jessup took into account the
fact that it was a question of “fulfilment of fundamental treaty obligations
contained in a treaty which has what may fairly be called constitutional
characteristics” (dissenting opinion, /.C.J. Reports 1966, p. 386). More
specifically, he added: “There is no generally established actio popularis
in international law” (ibid., p. 387). In the same case Judge Tanaka stated:

“We consider that in these treaties and organizations common and
humanitarian interests are incorporated. By being given organiza-
tional form, these interests take the nature of ‘legal interest’ and
require to be protected by specific procedural means.” (Dissenting
opinion, 1.C.J. Reports 1966, p. 252).

In reply to the argument that it should allow “the equivalent of an
actio popularis, or right resident in any member of a community to take
legal action in vindication of a public interest”, the Court stated:

“,.. although a right of this kind may be known to certain municipal
systems of law, it is not known to international law as it stands at
present: nor is the Court able to regard it as imported by the ‘general
principles of law’ referred to in Article 38, paragraph 1 fc}, of its
Statute” U.C.J. Reports 1966, p. 47, para. 88).

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NUCLEAR TESTS (DISS. OP. DE CASTRO) 387

On the other hand the Court has also said that:

“In particular, an essential distinction should be drawn between
the obligations of a State towards the international community as a
whole, and those arising vis-a-vis another State in the field of
diplomatic protection. By their very nature the former are the
concern of all States. In view of the importance of the rights involved,
all States can be held to have a legal interest in their protection; they
are obligations erga omnes.” (1.C.J. Reports 1970, p. 32, para. 33.)

These remarks, which have been described as progressive and have been
regarded as worthy of sympathetic consideration, should be taken cum
grano salis. It seems to me that the obiter reasoning expressed therein
should not be regarded as amounting to recognition of the actio popularis
in international law; it should be interpreted more in conformity with the
general practice accepted as law. | am unable to believe that by virtue of
this dictum the Court would regard as admissible, for example, a claim
by State A against State B that B was not applying “‘principles and rules
concerning the basic rights of the human person” (/.C./. Reports 1970,
p. 32, para. 34) with regard to the subjects of State B or even State C.
Perhaps in drafting the paragraph in question the Court was thinking of
the case where State B injured subjects of State A by violating the funda-
mental rights of the human person. It should also be borne in mind that
the Court appears to restrict its dictum on the same lines as Judges Jessup
and Tanaka when referring to “international instruments of a universal
or quasi-universal character” (/.C./. Reports 1970, p. 32, para. 34) 1.

In any event, if, as appears to me to be the case, the Court’s jurisdiction
in the present case is based upon Article 17 of the General Act and not
on the French declaration of 1966, the Application is not admissible
unless the Applicant shows the existence of a right of its own which it
asserts to have been violated by the act of the Respondent.

3. The claim that the Court should declare that atmospheric nuclear
tests are unlawful by virtue of a general rule of international law, and
that all States, including the Applicant, have the right to call upon
France to refrain from carrying out this sort of test, gives rise to numerous
doubts.

1 The expression “obligations erga omnes” calls to mind the principle of municipal
law to the effect that ownership imposes an obligation erga omnes; but this obligation
gives rise to a legal right or interest to assert ownership before a tribunal for the benefit
of the owner who has been injured in respect of his right or interest, or whose right or
interest has been disregarded. Even in the case of theft, one cannot speak of an actio
popularis—which is something different from capacity to report the theft to the author-
ities. It should also be borne in mind that a decision of the Court is not binding erga
omnes: it has no binding force except between the parties to the proceedings and in
respect of the particular case decided (Statute, Art. 59).

138
NUCLEAR TESTS (DISS. OP. DE CASTRO) 388

Can the question be settled in accordance with international law, or
does it still fall within the political domain? There is also the question
whether this is a matter of admissibility or one going to the merits. A
distinction must be made as to whether it relates to the political or judicial
character of the case (a question of admissibility), or whether it relates to
the rule to be applied and the circumstances in which that rule can be
regarded as part of customary law (a question going to the merits) !.
This is a difficulty which could have been resolved by joining the question
of admissibility to the merits.

But there is no need to settle these points. In my opinion, it is clear that
the Applicant is not entitled to ask the Court to declare that atmospheric
nuclear tests are unlawful. The Applicant does not have its own material
legal interest, still less a right which has been disputed by the other Party
as required by the General Act. The request that the Court make a general
and abstract declaration as to the existence of a rule of law goes beyond the
Court’s judicial function. The Court has no jurisdiction to declare that
all atmospheric nuclear tests are unlawful, even if as a matter of conscience
it considers that such tests, or even all nuclear tests in general, are con-
trary to morality and to every humanitarian consideration.

4. The right relied on by the Applicant with regard to the deposit of
radio-active fall-out on its territory was considered in the Order of 22
June 1973 (para. 30). We must now consider whether reliance on this
right makes the request for examination of the merits of the case admissi-
ble. The Applicant’s complaint against France of violation of its sover-
eignty by introducing harmful matter into its territory without its permis-
sion is based on a legal interest which has been weil known since the time
of Roman law. The prohibition of immissio (of water, smoke, fragments
of stone) into a neighbouring property was a feature of Roman law
(D. 8, 5, 8, para. 5). The principle sic utere tuo ut aliaenum non laedas is a
feature of law both ancient and modern. It is well known that the owner
of a property is liable for intolerable smoke or smells, “‘because he
oversteps [the physical limits of his property], because there is immissio
over the neighbouring properties, because he causes injury 2”.

In international law, the duty of each State not to use its territory for
acts contrary to the rights of other States might be mentioned (/.C.J.
Reports 1949, p. 22). The arbitral awards of 16 April 1938 and 11 March

1 The idea that the Moscow Treaty, by its nature, partakes of customary law or ius
cogens is laid open to some doubt by its want of universality and the reservation in its
Article IV to the effect that “Each Party shall ... have the right to withdraw from the
Treaty if it decides that extraordinary events, related to the subject-matter of this
Treaty, have jeopardized the supreme interests of its country”.

On the preconditions for the birth of a rule of customary law, cf. my separate opinion,
LC.J. Reports 1974, pp. 89 ff.

2 Mazeaud, Traité théorique et pratique de la responsabilité civile, 3rd ed., 1938,
Vol. 1, pp. 647 f., para. 597.

139
NUCLEAR TESTS (DISS. OP. DE CASTRO) 389

1941 given in a dispute between the United States and Canada mention
the lack of precedents as to pollution of the air, but also the analogy with
pollution of water, and the Swiss litigation between the cantons of Solo-
thurn and Aargau !. The conflict between the United States and Canada
with regard to the Trail Smelter was decided on the basis of the following
rule:

‘No State has the right to use or permit the use of its territory in
such a manner as to cause injury by fumes in or to the territory of
another ... when the case is of serious consequence and the injury
is established by clear and convincing evidence.” (Trail Smelter
arbitration, 1938-1941, United States of America v. Canada,
UNRIAA, Vol. IL, p. 1965 2.)

If it is admitted as a general rule that there is a right to demand pro-
hibition of the emission by neighbouring properties of noxious fumes 3,
the consequence must be drawn, by an obvious analogy, that the Appli-
cant is entitled to ask the Court to uphold its claim that France should
put an end to the deposit of radio-active fall-out on its territory.

The question whether the deposit of radio-active substances on the
Applicant’s territory as a result of the French nuclear tests is harmful
to the Applicant should only be settled in the course of proceedings on the
merits in which the Court would consider whether intrusion or trespass
into the territory of another is unlawful in itself or only if it gives rise
to damage; in the latter hypothesis, it would still have to consider the
nature of the alleged damage 4, its existence 5 and its relative import-

1 The Swiss Federal Tribunal laid down that, according to the rules of international
law, a State may freely exercise its sovereignty provided it does not infringe rights
derived from the sovereignty of another State; the presence of certain shooting-butts in
Aargau endangered areas of Solothurn, and the Tribunal forbade use of the butts until
adequate protective measures had been introduced (Judgments of the Swiss Federal
Tribunal, Vol. XXVI, Part I, pp. 449-451, Recital 3, quoted in Roulet, Le caractère
artificiel de la théorie de l'abus de droit en droit international public, Neuchatel 1958,
p. 121).

2 The Award reaches that conclusion “under the principles of international law, as
well as of the law of the United States”. The award has been regarded as “basic for the
whole problem of interference. Its bases are now part of customary international law”,
A. Randelzhofer, B. Simma, ‘Das Kernkraftwerk an der Grenze—Ein ‘ultra-hazar-
dous activity’ im Schnittpunkt von internationalem Nachbarrecht und Umweltschutz”,
Festschrift für Friedrich Berber, Munich, 1973, p. 405. This award marks the abandon-
ment of the theory of Harmon (absolute sovereignty of each State in its territory with
regard to all others); Krakan, Die Harmon Doktrin: Eine These der Vereinigten Staaten
zum internationalen Flussrecht, Hamburg, 1966, p. 9.

3 J.e., the continuance of the emission of harmful fumes, or the renewed emission of
fumes if it is to be feared (ad metuendum) that harm will result. Damnum infectum est
damnum nondum factum, quod futurum veremur, D. 39, 2, 2.

4 It would have to say, for example, whether or not account should be taken of the
fact that continuation of the nuclear tests causes injury, in particular by way of appre-
hension, anxiety and concern, to the inhabitants and Government of Australia.

5 This raises the question of evidence (Arts. 48 and 50 of the Statute; Art. 62 of the
Rules).

140
NUCLEAR TESTS (DISS. OP. DE CASTRO) 390

ance !, in order to pronounce on the claim for prohibition of the French
nuclear tests 2.

5. A third complaint against France is based upon infringement of the
principle of freedom of the high seas as the result of restrictions on navi-
gation and flying due to the establishment of forbidden zones. This
raises delicate legal questions.

Is the carrying-out of nuclear tests over the sea, and the establishment
of forbidden zones, part of the other freedoms ‘‘which are recognized by
the general principles of international law” or is it contrary to the free-
doms of other States? Are we dealing with a case analogous to that of the
establishment of forbidden zones for firing practice or naval manoeuvres?
The interpretation of Article 2, paragraph 2, of the Convention on the
High Seas requires that in each case reasonable regard be had to the
interests of other States in their exercise of their freedom of the high seas;
the nature and the importance of the interests involved must be con-
sidered, as must the principle of non-harmful use (prodesse enim sibi
unusquisque, dum alii non nocet, non prohibetur, D. 39, 3, 1, para. 11), of
the misuse of rights, and of good faith in the exercise of freedoms.

The question of nuclear tests was examined by the 1958 Conference on
the Law of the Sea. A strong tendency to condemn nuclear testing was
then apparent, yet the Conference accepted India’s proposal; it recog-
nized that there was apprehension on the part of many States that
nuclear explosions might constitute an infringement of freedom of the
high seas, and referred the matter to the General Assembly for appro-
priate action.

The complaint against France on this head therefore raises questions
of law and questions of fact relating to the merits of the case, which
should not be examined and dealt with at the preliminary stage of pro-
ceedings contemplated by the Order of 22 June 1973.

It seems to me that this third complaint is not admissible in the form
in which it has been presented. The Applicant is not relying on a right of
its own disputed by France, and does not base its Application on any
material injury, responsibility for which it is prepared to prove lies upon
France 3, The Applicant has no legal title authorizing it to act as spokes-
man for the international community and ask the Court to condemn
France’s conduct. The Court cannot go beyond its judicial functions and
determine in a general way what France’s duties are with regard to the
freedoms of the sea.

(Signed) F. DE CASTRO.

1 The relative importance of the interests of the Parties must be assessed, and the
possibility of reconciling them (question of proximity and innocent usage).

2 In its Order of 22 June 1973, the Court alluded to the possibility that the tests might
cause “irreparable damage” to the Applicant; this is a possibility which should be kept
in mind in relation to the indication of interim measures (in view notably of their
urgent character) but not where admissibility is concerned.

3 Regarding the conditions on which a claim for damages can be entertained, c
LC.J. Reports 1974, pp. 203-205, especially para. 76, and see also ibid., p. 225.

141


                                                                                183

                           DECLARATION OF JUDGE AD HOC DAUDET

                [Translation]

                   Qatar’s efforts towards a judicial settlement — Second preliminary objection
                not examined by the Court — Article 22 of CERD — Role of the CERD
                Committee — Agreement with the Court’s reasoning and decision on the first
                preliminary objection — Distinction between “national origin” and “nationality” —
                Lack of jurisdiction ratione materiae — Importance of the binding nature of
                orders indicating provisional measures — Exclusively preliminary character of the
                first objection — Conciliation procedure — Diplomatic settlement of the dispute.

                   1. The Court has already had occasion to review the factual back-
                ground of the present case (see Judgment, paras. 26 et seq.), not only at
                the time of its Order on the provisional measures requested by Qatar
                (Application of the International Convention on the Elimination of All
                Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provi-
                sional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 406),
                but also in connection with its Judgments of 14 July 2020 in the cases
                concerning Appeal relating to the Jurisdiction of the ICAO Council under
                Article 84 of the Convention on International Civil Aviation (Bahrain,
                Egypt, Saudi Arabia and United Arab Emirates v. Qatar) and Appeal
                relating to the Jurisdiction of the ICAO Council under Article II, Section 2,
                of the 1944 International Air Services Transit Agreement (Bahrain, Egypt
                and United Arab Emirates v. Qatar) (I.C.J. Reports 2020, pp. 93‑95 and
                184-186, paras. 21-26). It is clear that Qatar has been committed to find-
                ing a peaceful and judicial settlement to its dispute with its Gulf neigh-
                bours, a dispute with particularly serious repercussions for it, which arose
                as a result of its neighbours’ alleged violations of the 2013 and 2014
                Riyadh Agreements, to the detriment of Qatar, and of Qatar’s purported
                support for international terrorism.
                   2. It was not possible to seise the Court by way of special agreement,
                which had evidently been ruled out by the Parties; and none of the Parties
                had made the declaration provided for under Article 36, paragraph 2, of
                the Court’s Statute. That left the option of a compromissory clause
                included in a treaty. Since Article 22 of CERD contained such a clause,
                the Convention emerged as the only possible title of jurisdiction that
                could serve as a basis for Qatar’s Application. However, its implementa-
                tion was not self-evident in this instance and the UAE did not err in filing
                preliminary objections to the Court’s jurisdiction.
                   3. The two preliminary objections presented by the UAE (which had
                originally raised three) were independent of each other. In keeping with
                the jurisprudence of the Court recalled in paragraph 114 of its Judgment,
                having upheld the first objection, the Court did not consider it necessary

                                                                                116

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                                application of the cerd (decl. daudet)                   184

                to examine the second one, relating to the procedure under Article 22 of
                CERD.
                   4. If the Court had addressed that objection, I would have voted in
                favour of its dismissal. Indeed, in light of the evidence in the case file, I
                am of the view that Qatar had pursued the prior negotiations required to
                seise the International Court of Justice to a point where their continua-
                tion appeared futile and headed towards “deadlock[]” (Application of the
                International Convention on the Elimination of All Forms of Racial Dis-
                crimination (Qatar v. United Arab Emirates), Provisional Measures, Order
                of 23 July 2018, I.C.J. Reports 2018 (II), p. 419, para. 36; Application of
                the International Convention on the Elimination of All Forms of Racial Dis-
                crimination (Georgia v. Russian Federation), Preliminary Objections,
                Judgment, I.C.J. Reports 2011 (I), p. 130, para. 150). The fulfilment of
                this precondition alone was sufficient to establish the Court’s jurisdiction,
                since the other precondition contained in Article 22, i.e. recourse to the
                procedures provided for in Articles 11 to 13 of CERD, is not cumulative
                but an alternative to the first, as recently determined by the Court (Appli-
                cation of the International Convention for the Suppression of the Financing
                of Terrorism and of the International Convention on the Elimination of All
                Forms of Racial Discrimination (Ukraine v. Russian Federation), Prelimi-
                nary Objections, Judgment, I.C.J. Reports 2019 (II), p. 600, para. 113).

                   5. Qatar did, however, have recourse to the second procedure under
                Article 22, which led to a conciliation process. It did so even before it
                seised the Court, and independently of that seisin, for which such recourse
                was not a prerequisite, the precondition for seising the Court having
                already been satisfied by the failure of negotiations; this resulted in two
                sets of proceedings — one before the Court and one before the CERD
                bodies — taking place in parallel. The UAE, which during the hearings
                withdrew its third preliminary objection that Qatar’s “abuse of process”
                should cause its “claims [to be] inadmissible” (Preliminary Objections of
                the United Arab Emirates, Vol. I, para. 238), nonetheless argued that
                Qatar should have refrained from seising the Court until the conciliation
                process under CERD had ended.
                   6. The disputes brought before the Court are never minor, and this one,
                which began on 5 June 2017, is certainly no exception. There is no doubt
                that both Parties wish it to come to an end, but it is understandable that
                Qatar in particular should want to do so as soon as possible. I thus regard
                its pursuit of parallel proceedings as a way of facilitating this, and I see
                nothing problematic, much less irregular, in this situation, since the pro-
                ceedings are taking place before two different bodies and have different
                effects. On the one hand, there is the Court, the “principal judicial organ
                of the United Nations”, which today rendered a res judicata judgment; on
                the other, there is a conciliation body which may, on the basis of interna-
                tional law, offer a solution to the dispute which the Parties are free to
                accept. While the Court found today that it lacks jurisdiction, the CERD
                Committee determined on 27 August 2019 that Qatar’s claim based on

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                                application of the cerd (decl. daudet)                    185

                Article 11 of the Convention is admissible and decided to form a Concili-
                ation Commission as provided for by Article 12. The Commission took
                up its functions on 1 May 2020, and may now, therefore, find a solution
                bearing in mind the Court’s decision.

                   7. The Court found that it lacks jurisdiction by upholding the UAE’s
                first preliminary objection. I deeply regret that it is therefore unable to
                settle this dispute and perhaps enable Qatar to recover the rights of which
                I myself believe it has been deprived by the UAE.

                   8. Nevertheless, I voted in favour of the finding that the Court lacks
                jurisdiction, because I fully agree with the reasoning set out in the Judg-
                ment. This includes, in particular, the position expressed by the Court in
                its interpretation of Article 1, paragraph 1, of CERD, whereby it consid-
                ered that “national origin”, which appears in the Convention, is different
                from “nationality”, which does not; that national origin does not encom-
                pass nationality; and that the two notions are not equivalent or inter-
                changeable, neither in letter nor in spirit. I supported this position because
                I believed, in good conscience, that it was the correct legal interpretation
                of Article 1, paragraph 1, and that this consideration took precedence
                over any other.
                   9. I would nonetheless recall that, by its 2018 Order (Application of the
                International Convention on the Elimination of All Forms of Racial Dis-
                crimination (Qatar v. United Arab Emirates), Provisional Measures, Order
                of 23 July 2018, I.C.J. Reports 2018 (II), p. 433, para. 79), which I sup-
                ported, the Court indicated the most important of the provisional mea-
                sures requested by Qatar. Since the Court’s landmark ruling in LaGrand
                ((Germany v. United States of America), Judgment, I.C.J. Reports 2001,
                p. 506, para. 109), subsequently well established in its jurisprudence (see
                Armed Activities on the Territory of the Congo (Democratic Republic of
                the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 258, para. 263;
                Certain Activities Carried Out by Nicaragua in the Border Area (Costa
                Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011,
                I.C.J. Reports 2011 (I), pp. 26‑27, para. 84; Application of the Interna-
                tional Convention on the Elimination of All Forms of Racial Discrimination
                (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July
                2018, I.C.J. Reports 2018 (II), p. 433, para. 77), the Court’s orders on
                provisional measures have had binding effect. This situation has therefore
                enabled Qatar to recover many of its rights, subject to the proper imple-
                mentation of the Order by the UAE.

                   10. I also carefully considered the question whether the interpretation
                of Article 1, paragraph 1, possessed an exclusively preliminary character.
                It is often possible to find links of varying strength between jurisdiction
                and the merits. Interpreting what determines jurisdiction frequently
                entails analysing facts or evidence pertaining to the merits, in which event
                the question raised does not have an exclusively preliminary character.

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                                application of the cerd (decl. daudet)                   186

                That does not seem to be the case here. Nationality is a well-known con-
                cept in international law, and defining it in relation to national origin for
                the purposes of determining whether the inclusion of one term and not
                the other in Article 1, paragraph 1, of CERD should be understood as
                incorporating both, is a purely legal and abstract question which can be
                answered without any examination on the merits. I thus considered that
                it would be artificial to regard the question as not having an exclusively
                preliminary character.

                   11. In conclusion, therefore, the Court’s decision is, in my view, per-
                fectly well founded in law. Strict though it may seem, it is quite simply the
                only possible application of international law. Needless to say, I do not
                see in it a justification for the UAE’s actions against Qatar, many of
                which constitute human rights violations under several international con-
                ventions. In the present case, however, it was CERD which, without any
                reservations from either State, contained a compromissory clause allow-
                ing for the Court to be seised. It was thus CERD alone that could be
                invoked, as I mentioned above (para. 2). It might subsequently have been
                for the Conciliation Commission to propose a solution following the
                delivery of the Court’s Judgment.

                   12. Indeed, that possibility had been agreed to by the UAE, whose
                Ambassador stated at the close of the hearings: “We will engage in good
                faith with the Conciliation Commission even if you find in our favour on
                the issue of nationality” (CR 2020/8, p. 42, para. 8 (AlNaqbi)).

                  13. However, a few weeks later, a reconciliation process was initiated
                between the Gulf countries. We can take heart that all their disagree-
                ments are thus expected to be resolved peacefully even as the Court is
                delivering its Judgment, which, it should be recalled, addresses only its
                jurisdiction, without examining the merits of a dispute which the States
                themselves declare, in an atmosphere of new-found serenity, will soon be
                over.

                (Signed) Yves Daudet.

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6 Ord_1221.indb 235                                                                             4/08/22 08:26


DISSENTING OPINION OF JUDGE [GNACIO-PINTO

[Translation]

I am opposed to the Order made this day by the Court, granting New
Zealand the same interim measures of protection as were granted Aus-
tralia a few hours before on this same date, in the Jatter’s case against
France.

My opposition to the present Order is based on the same considerations
as I have already expounded at length in my dissenting opinion in the
first Nuclear Tests case (Australia v. France). | am therefore voting
against it as 1 voted against the first Order, in the case of Australia v.
France.

But before going farther, | venture to observe that the Court ought
from the beginning to have pronounced a joinder of the two cases, as
some judges had moreover requested.

For in fact, in the two requests for interim measures presented by the
two States, Australia and New Zealand, there is more than a mere
analogy between the two claims. They have indeed the same object,
namely to secure from the Court an indication that “‘the French Government
should avoid nuclear tests causing the deposit of radio-active fall-out” on
the territory (emphasis added):

(1) of Australia;
(2) of New Zealand, the Cook Islands, Niue or the Tokelau Islands.

There is therefore identity as to the object of the claim; the litigant cited
as respondent, France, is also identical; finally there is, as nearly as
makes no difference, an identity in the terms employed in the requests.

That being so, I think that there was every reason to order a joinder
and to pronounce upon the two States’ requests for the indication of
interim measures in one and the same Order.

For that reason I am also voting against the Order made today by the
Court in respect of the New Zealand request, and for the rest of the
arguments I would adduce in support of my dissenting opinion in the
present case, I will confine myself to referring to those I have already put
forward in the case of Australia v. France.

But I wish to take this opportunity of modifying somewhat, in regard
to New Zealand, what I said about the nuclear tests carried out by the
United Kingdom at Maralinga in Australia in the years 1952-1957.

The same reasoning that I followed in order to deny that Australia was
entitled to put forward its claims is likewise valid where New Zealand is

32
NUCLEAR TESTS (DISS. OP. IGNACIO-PINTO) 164

concerned. It is also necessary to refer in this connection to the tests
carried out by the United Kingdom at Christmas Island—-thermonuclear
explosions, what is more—at a distance of 1,200 miles from the Tokelau
Islands, under New Zealand administration.

If therefore New Zealand considered that the United Kingdom was
acting acceptably in carrying out tests at Christmas Island, it is not
entitled to request that the French Government be prevented from
exploding nuclear devices at a site some 1,400 miles from New Zealand.

And so far as the effects of radio-activity are concerned—a subject on
which there is such eagerness to sensitize public opinion—, it is interesting
to note the following passage, taken from page 18 of New Zealand and
Nuclear Testing in the Pacific by Nigel S. Roberts, Lecturer in Political
Science, University of Canterbury, a work published at Wellington in
1972 by the Institute of International Affairs, of which Mr. Allan Martyn
Finlay, Attorney-General of New Zealand and counsel for his country in
the present case, is the Vice-President:

“Before French testing began, a special report was presented to the
Prime Minister and then to the House of Representatives in an
attempt to assess the health hazards to New Zealand, as well as to
other Pacific areas, from the proposed French tests of nuclear
weapons. The report concluded that:

‘Testing of nuclear weapons up to the present time does not and
will not present a significant health hazard to the people of New
Zealand or the Pacific Territories with which it is associated. The
proposed French tests will add fractionally but not significantly
to the long-lived fall-out in these areas. The general levels of such
radio-active contamination in the Southern hemisphere will
remain below those already existing in the Northern hemisphere.
... For New Zealand the chance of significant levels of contamina-
tion being reached is even more unlikely than for the islands in the
Pacific.’ ” (Emphasis added.)

If that could be the unequivocal opinion of the experts in an undisputed
official report addressed to the New Zealand Prime Minister and House
of Representatives, that confirms my conviction that this second Nuclear
Tests case is also political in character. Hence I remain strongly opposed
to the Order indicating the interim measures requested by New Zealand.
In making it, the Court has exceeded its competence and it should have
rejected that request.

(Signed) L. IGNACIO-PINTO.

33