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DISSENTING OPINION OF JUDGE SIR GEOFFREY PALMER

TABLE OF CONTENTS

INTRODUCTION
Tue NATURE OF THE PROCEEDINGS

Some BACKGROUND IssuES

A history of consistent opposition
Intervenors

THE CENTRAL LEGAL ISSUES

Paragraph 63

The New Zealand argument

The argument of France

Weighing the arguments

Resolution of the issue

In accordance with the provisions of the Statute

THE FACTUAL ENVIRONMENTAL ARGUMENT

The prima facie standard
New Zealand’s argument on the facts
The calculus of environmental risk

THE LEGAL ENVIRONMENTAL ISSUES

The development of international environmental law
International law on radioactive hazards
Environmental Impact Assessment

Precautionary principle

Conclusion

THE NATURE OF THE JUDICIAL CHOICE

The Order of the Court
Wider issues

CONCLUDING OBSERVATIONS

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INTRODUCTION

1. The application before the Court appears to be unique. No pre-
cedent has been referred to that resembles it in fact or law. It is not easy
to grapple with a case which is both so novel in legal terms and of such
moment in substantive terms. In the end the result depends upon the
approach to be adopted to the legal interpretation of the Judgment ren-
dered by the Court in the same case in 1974. Absent the usual legal navi-
gation lights which guide this Court in its judicial work, we are thrown
back to the basic elements of legal reasoning that should be applied to
the task. I differ from the approach to legal analysis adopted by the
majority of the Court, so I respectfully dissent from the Judgment of the
Court.

THE NATURE OF THE PROCEEDINGS

2. On 21 August 1995 the Government of New Zealand filed in the
Registry of this Court two documents:

(a) Request for an Examination of the Situation in accordance with para-
graph 63 of the Court’s 1974 Judgment in the Nuclear Tests (New
Zealand v. France) case;

(6) Further Request for the Indication of Provisional Measures.

3. The full text of paragraph 63 of the 1974 Judgment is as follows:

“Once the Court has found that a State has entered into a com-
mitment concerning its future conduct it is not the Court’s function
to contemplate that it will not comply with it. However, the Court
observes that if the basis of this Judgment were to be affected, the
Applicant could request an examination of the situation in accord-
ance with the provisions of the Statute; the denunciation by France,
by letter dated 2 January 1974, of the General Act for the Pacific
Settlement of International Disputes, which is relied on as a basis
of jurisdiction in the present case, cannot constitute by itself an
obstacle to the presentation of such a request.” (C.J. Reports
1974, p. 477.)

4, On 9 May 1973 the New Zealand Government instituted proceed-
ings against France with the purpose of obtaining a determination that
the conduct by the French Government of nuclear tests in the South
Pacific region that gave rise to radioactive fallout constituted a violation
of New Zealand’s rights under international law and that those rights
would be violated by any further such tests (1C.J. Pleadings, Nuclear
Tests, Vol. IL, p. 3).

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5. In 1973 the Court’s jurisdiction was invoked under two heads:

(a) Articles 36 (1) and 37 of the Statute of the International Court of
Justice and Article 17 of the General Act for the Pacific Settlement
of International Disputes to which New Zealand and France both
had acceded; and

(b) Article 36 (2) and (5) of the Statute of the Court.

France ceased atmospheric testing in the South Pacific while this case was
before the Court in 1974 in circumstances that will be analysed later in
this opinion.

6. In 1995 this Court scheduled a public sitting in order to enable New
Zealand and France to inform it of their views on an issue framed by the
Court:

“Do the Requests submitted to the Court by the Government of
New Zealand on 21 August 1995 fall within the provisions of para-
graph 63 of the Judgment of the Court of 20 December 1974 in the
case concerning Nuclear Tests (New Zealand v. France)?”

It is a procedural issue far removed from the merits of the case. Is there
a sufficient link between the case as it was pleaded and decided in 1974
and the effects of the French nuclear tests that are continuing under-
ground in the South Pacific to allow further consideration to be given to
the New Zealand Request? It was described in the oral argument by
France as a prior question to a later preliminary one. New Zealand said
it was to determine whether New Zealand could in the circumstances
exercise the right reserved to it in 1974 to return and pursue its 1973 case.
Cases in this Court, because of the peculiar nature of its jurisdiction, may
go through three phases with distinct proceedings in each — preliminary
objections to jurisdiction, preliminary objections to admissibility and the
merits of the case. But this 1995 proceeding was not any of those. It was
of a procedural species not seen before and its novelty may have given
rise to misunderstandings. It led among other things to the Court side-
stepping New Zealand’s Further Request for the Indication of Provi-
sional Measures and dealing with the Request itself in a somewhat sum-
mary manner. Both the procedural posture of the case and the substantive
issues are novel; but novelty is no reason to dismiss the case or not con-
sider it fully.

7. It should be noted that France filed no pleadings in the case in 1974,
was not represented at the oral proceedings and at all times maintained
the attitude as expressed in a letter of 16 May 1973 from the Ambassador
of France to the Netherlands which was placed before the Court. That
letter expressed France’s view that the Court was manifestly not compe-
tent in the case; that it could not accept the Court’s jurisdiction and that

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accordingly the French Government did not intend to appoint an agent
and requested the Court to remove the case from the list (Z C.J. Reports
1974, p. 458).

8. A slightly different approach to the present application has been
taken by the Government of France in 1995. The same position taken in
1973 was expressed by France in the letter dated 28 August 1995 to the
Registrar at the Court by the Ambassador of the French Republic to the
Netherlands in which it is argued that “no basis exists which might
found, even if only prima facie, the jurisdiction of the Court to entertain
the New Zealand Requests”. In 1995, however, the French Government
was represented by its Director of Legal Affairs at the Ministry of
Foreign Affairs at the meeting scheduled by the President of the Court on
30 August 1995. As a result of that meeting France filed with the Court
an aide-mémoire containing 14 pages of closely reasoned legal argument
as to why New Zealand’s application could not be entertained by the
Court. In 1995 France was represented by counsel before the Court. It
fully participated in oral hearings on 11 and 12 September 1995.

9. In dealing with the present application it is necessary to ascertain
exactly what was decided and what was not decided by the Court in 1974.
The President of France issued a communiqué on 8 June 1974 and other
official statements were made to the effect that atmospheric tests would
cease, giving way to underground testing. The Court in its 1974 decision
decided that the case before the Court had been rendered moot since
New Zealand had secured what it sought. The Court went on to state
that the statements by France that atmospheric tests would cease were
statements upon which other nations were bound to rely. The Court held
the statements “constitute an undertaking possessing legal effect” (1. C.J.
Reports 1974, p. 474, para. 53). Thus the Court reasoned that the “dis-
pute having disappeared, the claim advanced by New Zealand no longer
has any object” (Z C.J. Reports 1974, p. 476, para. 59).

10. In its Request of 14 May 1973 New Zealand did not restrict itself
to concern with atmospheric nuclear testing. In its submission the rights
to be protected by the Court were:

“G) the rights of all members of the international community, includ-
ing New Zealand, that no nuclear tests that give rise to radio-
active fall-out be conducted;

(ii) that the rights of all members of the international community,
including New Zealand, to the preservation from unjustified
artificial radio-active contamination of the terrestrial, maritime
and aerial environment and, in particular, of the environment
of the region in which the tests are conducted and in which New
Zealand, the Cook Islands, Niue and the Tokelau Islands are
situated ;

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(iii) the right of New Zealand that no radio-active material enter the
territory of New Zealand, the Cook Islands, Niue or the Toke-
lau Islands, including their air space and territorial waters, as a
result of nuclear testing;

(iv) the right of New Zealand that no radio-active material, having
entered the territory of New Zealand, the Cook Islands, Niue
or the Tokelau Islands, including their airspace and territorial
waters, as a result of nuclear testing, cause harm, including
apprehension, anxiety and concern to the people and Govern-
ment of New Zealand, and of the Cook Islands, Niue and the
Tokelau Islands;

(v) the right of New Zealand to freedom of the high seas, including
freedom of navigation and overflight and the freedom to explore
and exploit the resources of the sea and the sea-bed, without
interference or detriment resulting from nuclear testing.” (1 CJ.
Pleadings, Nuclear Tests, Vol. If, Request for the Indication of
Interim Measures of Protection, p. 49, compare with Applica-
tion, ibid., p. 8.)

11. The elements of the request relevant to the present application are:

— the maritime environment,

— the terrestrial environment,

— unjustified artificial radioactive contamination,

— the effects on the environment of the region,

— freedom to explore and exploit the resources of the sea-bed without
detriment from nuclear testing,

— the dangers to territorial waters.

12. It is against that background that paragraph 63 of the Court’s
Judgment falls to be considered. In the written proceedings and oral
hearings before this Court the paragraph has been subjected to a remark-
able range of interpretations and it is a passage with some delphic quali-
ties. It hangs in a tantalizing fashion over the whole case.

13. The paragraph appears alone in the Judgment plainly separated
from the passages which both precede it and follow it. What was its pur-
pose? What is its proper interpretation? These are the questions upon
which the result of the case depends. But before discussing those issues some
context needs to be set out to allow a more ample appreciation of them.

SOME BACKGROUND ISSUES

A History of Consistent Opposition

14. This case concerning French nuclear testing in the South Pacific
has a long history. It began in this Court in 1973. Diplomatic correspon-
dence between New Zealand and France revealed serious concern about

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the subject for a decade earlier (Z C.J. Reports 1974, p. 464, para. 26).
Before that France had tested nuclear devices in Algeria. Two factors
which favoured a change of venue for testing were the fact that Algeria
secured its independence from France in 1963 and there was concern that
the Saharan winds carried radioactive debris into Europe. (See generally
“Note, French Testing and International Law”, 24 Rutgers Law
Review 144 (1969).) While the Pacific may have been more expansive
in spatial terms, the reception to the tests there, first atmospheric and
later underground, reinforced the old adage of environmental law:
not-in-my-backyard.

15. But it would be wrong to attribute New Zealand’s opposition to
nuclear testing to the French movement of testing to the Pacific. France
conducted 19 tests in Algeria between February 1960 and February 1966.
At the time the official order to proceed with testing was given in 1958
there was a General Assembly resolution expressly condemning French
testing, not only for the threat that it posed to the then moratorium
but also for “causing anxiety among all peoples, and more particularly
those of Africa”. New Zealand voted for that resolution in the General
Assembly (resolution 1379 (XIV), 20 November 1959).

16. This history of New Zealand opposition to nuclear testing is
meticulously examined in a scholarly article by J. Stephen Kos (“Interim
Relief in the International Court of Justice: New Zealand and the Nuclear
Test Cases”, 14 Victoria University of Wellington Law Review 357 (1984)).
He finds that New Zealand, unlike Australia, had “had a consistent and
outspoken record to all atmospheric testing since 1958” (p. 370). One
of the counsel in the 1973 New Zealand case, who was again counsel
before the Court on this occasion, Sir Kenneth Keith, Q.C., wrote in a
learned article,

“The diplomatic record, assembled in the documentation submit-
ted to the Court, shows a consistent and developing New Zealand
position dating from 1958 when it supported a resolution about test-
ing in the Sahara.” (K. J. Keith, “The Nuclear Tests Cases after Ten
Years”, 14 Victoria University of Wellington Law Review 350 (1984).)

17. In truth, the New Zealand opposition to nuclear tests has three
strands — concern for disarmament and an opposition to the spread of
nuclear weapons and their testing; the effects of nuclear testing on the
environment; and a regional concern. There is in fact a strong element of
consistency about New Zealand’s attitude to nuclear testing in all catego-

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ries and in this history is to be found the explanation for why New Zea-
land’s pleadings in the 1974 case are substantially wider than Australia’s
in the companion case. The New Zealand pleadings as set out earlier in
this opinion manifestly do not restrict themselves to issues of atmospheric
nuclear testing. The environmental issues are prominent.

18. It is also significant that the New Zealand official reaction to
France’s assurances, made while the case was before the Court, that
atmospheric testing would cease and give way to underground testing
was not accepted by New Zealand. France had issued a communiqué on
8 June 1974 indicating it would cease atmospheric tests. New Zealand in
a diplomatic note that was also before the 1974 Court said it had “fun-
damental opposition to all nuclear testing” (1. C.J. Reports 1974, p. 470,
para. 37).

19. Then there was the official New Zealand Government response to
the Judgment of the Court. The official statement of the New Zealand
Prime Minister, the Rt. Hon. W. E. Rowling, was made on 21 December
1974 and put before this Court on 11 September 1995. It concluded as
follows:

“Mr. Rowling concluded by recalling that New Zealand’s concern
about nuclear testing had never been confined to the particular case
of the tests conducted by France — or indeed, to the question of
testing in the atmosphere. It would continue to be the New Zealand
Government’s aim to bring about the ending of all forms of nuclear
weapons testing, by any country.”

20. Indeed it is a matter of public record that New Zealand had a seri-
ous diplomatic dispute with the United States of America over the ability
of ships from that country to bring nuclear weapons into New Zealand
harbours, a dispute which resulted in a rupturing of the Anzus Alliance
established between the United States, Australia and New Zealand
pursuant to the 1951 Anzus Treaty (131 United Nations, Treaty Series
(UNTS) 83). The dispute caused the United States to suspend its treaty
obligation towards New Zealand because New Zealand would not admit
to its ports nuclear armed or powered ships. New Zealand passed a stat-
ute that remains the law enshrining that policy: New Zealand Nuclear
Free Zone, Disarmament and Arms Control Act 1987.

21. From 1983 onwards there was a consistent pattern of official pub-
lic statements expressed by New Zealand to France’s underground nuclear
testing in the Pacific. The 1995 New Zealand Request shows that New
Zealand publicly objected on no fewer than 50 occasions.

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22. Further, New Zealand continuously sought information, or evi-
dence, from France in bilateral, regional and multilateral contexts. Those
requests include the following:

3 December 1979: request by New Zealand Minister of Foreign Affairs
during meeting in Paris with French Foreign Minister;

22 April 1980: request to France to allow visit to Mururoa test site by
New Zealand scientists;

9 December 1981: further request for information;

24 March 1982: New Zealand request for independent verification of
French safety measures;

23 August 1982: New Zealand repeated request for access to site by
New Zealand scientists (Atkinson visit allowed October-November 1983);

25 November 1986: Noumea Convention signed following negotiations
over some years involving New Zealand and France and other South
Pacific States.

There were no tests between July 1991 and September 1995. (Reply to
question by Judge Schwebel.)

23. In responding to the 1995 Request before it the Court needed to
examine here the context of this particular dispute closely. In 1973 the
burden of the complaint by New Zealand was that it was entitled to be
free from the hazards of increased nuclear radiation due to French
nuclear testing in the South Pacific. As indicated elsewhere in this opinion
the Court found it unnecessary in 1974 to address the central issue
attributing “legal effect” to France’s public undertaking to halt atmos-
pheric testing. Unhappily, this disposition of the case manifestly did not
have the effect of solving the dispute between the Parties. The state of
international law on the central issues was not decided. The reality is
that in one form or another French nuclear testing in the South Pacific
has been at the root of a series of international law issues which have
arisen between the two nations since 1974 (United Nations Secretary-
General: Ruling on the Rainbow Warrior affair between France and
New Zealand, reprinted in 26 International Legal Materials (ILM) 1346
(1987), 74 International Law Reports (ILR) 241; Rainbow Warrior
(New Zealand v. France), International Arbitration Award, 30 April
1990 (Eduardo Jiménez de Aréchaga, Professor Bredin and Sir Kenneth
Keith), 82 ZLR 499).)

Intervenors

24. That there is widespread concern about the environmental issues
raised by the French tests is obvious enough, not only from the high

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media profile the issues enjoyed at the very time of the oral hearings but
also from the fact that a number of countries sought to intervene in these
proceedings under Article 62 of the Statute and have filed the necessary
documents to do so. Those countries are:

Australia,

Samoa,

Solomon Islands,

Marshall Islands,

Federated States of Micronesia.

The Court has taken no action on the Applications made by these
countries; an omission considered by this Judge to be unfortunate. It is a
big step for the smaller of these democratic countries to attempt to come
before this Court combining as they do the interests of Polynesian, Mela-
nesian and Micronesian peoples and they are entitled to a response. They
were not permitted to be heard in the oral argument and they well may
have been able to add valuable assistance to the Court’s consideration.
The issue before the Court was one that deserved to be considered in
its regional context as well as its factual and legal context. As Paul
East, Q.C., the Attorney-General of New Zealand told the Court the
15 countries of the South Pacific Forum regard French nuclear testing
“of grave concern to the countries and peoples of the region” (CR 95/19,
p. 20, para. 13). This regional concern is exemplified by the provisions of
the South Pacific Nuclear Free Zone Treaty concluded at Rarotonga
6 August 1985, entered into force 11 December 1986 (24 ILM 1442
(1985)).

THE CENTRAL LEGAL ISSUES

Paragraph 63

25. The central legal issue in the case is how to interpret paragraph 63
of the Court’s 1974 Judgment, which for ease of reference is repeated
again:

“Once the Court has found that a State has entered into a com-
mitment concerning its future conduct it is not the Court’s function
to contemplate that it will not comply with it. However, the Court
observes that if the basis of this Judgment were to be affected, the
Applicant could request an examination of the situation in accord-
ance with the provisions of the Statute; the denunciation by France,
by letter dated 2 January 1974, of the General Act for the Pacific
Settlement of International Disputes, which is relied on as a basis of

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jurisdiction in the present case, cannot constitute by itself an obstacle
to the presentation of such a request.” (7. C.J. Reports 1974, p. 477.)

The New Zealand Argument

26. The New Zealand interpretation of the paragraph is based on its
1973 Application which was not limited to atmospheric testing and was
at its base a dispute about nuclear contamination. The prime concern
was contamination, its source was incidental or secondary (1995 New
Zealand Request, para. 64). New Zealand says its interpretation draws
strength from its prayer that the Court adjudge and declare the conduct
of nuclear tests in the South Pacific constituted a violation of New Zea-
land rights under international law. New Zealand further draws comfort
from the fact that the operative part of the Court’s Order of 22 June 1973
talks of the need to avoid “nuclear tests” and is not restricted to atmos-
pheric tests (1995 New Zealand Request, para. 65). New Zealand further
points to the scope of the 1973 Application in its concern with the living
resources of the sea.

27. New Zealand then puts its argument in this way:

“It is true that the French declarations had said that, in giving up
atmospheric testing, France would be in a position to pass to the
stage of underground testing. Thus even though the prospect of under-
ground testing was in the mind of the Court, it did not specifi-
cally rule that underground testing would end the dispute absolutely.
The crucial point to recall is that no one had any idea at that time
that the underground testing subsequently to be carried out at
Mururoa or at Fangataufa could, or would in due course, lead to
some of the results that it was thought the termination of atmos-
pheric testing would avoid, namely, pollution of the marine environ-
ment by radioactive material. If it had been so contemplated, the
Court could hardly have taken the view that the French renuncia-
tion of atmospheric testing could by itself have brought the ‘dispute’
to an end — for evidently it would not have.” (/bid., para. 67.)

28. Thus, New Zealand argues that the scope of the Court’s 1974
Judgment must be measured not by reference to atmospheric testing as
such, but rather by reference to the stated objective of the Application,
which was to secure a prohibition of testing likely to produce contami-
nation in the Pacific marine environment by any artificial radioactive
material. It was triggered by the announcement of 13 June 1995 by the
President of the French Republic announcing a series of tests after
France had previously ceased testing in July 1991. On the basis of scien-

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tific evidence, the case New Zealand now presents is that underground
nuclear testing at Mururoa and Fangataufa has already led to some
contamination of the marine environment and there appears a real risk of
its leading to further potentially significant contamination. Thus, con-
cludes the argument on this point by New Zealand, the matching made
by the Court in 1974 between atmospheric testing and the width of the
dispute between New Zealand and France is based on a presumption that
is no longer valid. By the time of the oral hearing there had occurred a
total of 135 underground nuclear explosions in the South Pacific making
up the relevant background against which the provisions in paragraph 63
of the Judgment must be examined. So, New Zealand now seeks a
resumption of the 1973 proceedings before this Court because the basis
of the 1974 Judgment has been affected by new developments and by the
cumulation of concentrations of hazardous radioactive materials which
will be a danger if they escape.

29. On the critical element upon which the view of the majority turns
the New Zealand Solicitor-General, J. J. McGrath, Q.C., made the fol-
lowing oral submission:

“Had it been the Court’s intention to confine resumption of the
case to a situation where France had reverted to atmospheric testing,
the Court would have said so. It did not. Instead it framed the test
in broad words which raised the question of whether the rationale
underlying the Judgment of 1974 continued to apply. It is argued by
France that only future atmospheric testing is covered by the right to
go back to the Court. But that, Members of the Court, is contra-
dicted by the very generality and wide scope of the words ‘if the
basis of the Judgment is affected’. Indeed, if you look at the whole of
paragraph 63, it is impossible to treat the French unilateral under-
taking to cease atmospheric testing as the only event that would
change the basis of the Judgment. The first sentence of the para-
graph says that the Court is not prepared to contemplate a breach of
its undertaking by France. How, then, can it be argued that the
second sentence contemplated solely that possibility?” (CR 95/19,
p. 50, para. 38.)

30. There were in the New Zealand view two assumptions forming the
basis of the Judgment in 1974. The first was that France would comply
with its commitment to cease atmospheric testing and confine itself to
underground testing. The second assumption was that the cessation of
atmospheric testing met and matched New Zealand’s allegations and
concerns regarding nuclear contamination as they stood in 1974. Then
New Zealand went on to develop an extensive argument as to why the
second assumption was no longer valid. Thus, if the wider concerns that

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it expressed in its pleading came again into issue in the future it was at
liberty to reopen the case under paragraph 63. The words “basis of the
Judgment” were deliberately left undefined, New Zealand contends. New
Zealand went on to develop lengthy arguments as to what had changed.
In short what had changed were both the facts and the law.

31. Professor Elihu Lauterpacht put the argument for New Zealand in
this way. He suggested to the Court that if New Zealand had been asked
in 1974 the question: What is your concern — to stop atmospheric test-
ing or prevention of nuclear contamination, it would have provided the
following answer:

“Tt is ridiculous to think that we would be content with the aban-
donment of atmospheric testing if nuclear pollution were to be
allowed to continue by other means. For us it is not the means or the
medium of testing that matters. It is the consequences. The fact that
the testing is carried out in the atmosphere is only incidental to the
consequences of the testing.” (CR 95/19, p. 64, para. 5.)

The Argument of France

32. The arguments adduced by France stoutly resist all of the New
Zealand claims. One of the counsel for France, Sir Arthur Watts,
described the New Zealand Request as “curious and unprecedented”
(CR 95/21, p. 47). This submission was based on the notion that the case
no longer existed. In fact that there was no provision for such a Request
in either the Statute governing the Court or its Rules. Thus in essence the
French argument was that the Nuclear Tests (New Zealand v. France)
case no longer exists. It came to “an end in 1974, and is dead” (ibid.,
p. 52). Since it was dead it could not rise again.

33. In the aide-mémoire submitted to the Court on 6 September 1995
France submits that the Request of New Zealand does not relate to any
case and consequently no procedural steps can be taken. France submits
the case was closed by the Judgment of this Court on 20 December 1974.
France reasons that since the Court found that the claim then by New
Zealand no longer had any object, as a result of the statements made by
France, the Court was not called upon to give a decision. This, says
France, was the decision, it is res judicata and the matter is at an end.
The whole case was about atmospheric tests and only atmospheric tests.
The structure of the Court’s Judgment demonstrates it. Furthermore, the
Court and New Zealand knew that tests were going to continue under-
ground. The statements made by France and relied upon by the Court
said so. France points to passages in the Judgment saying that the New
Zealand Application should be interpreted as applying only to atmos-
pheric tests. And, France argues, none of the six dissenting Judges dis-

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puted the fundamental conclusion that the object of the New Zealand
Application related to atmospheric tests. France goes on to quote state-
ments in the New Zealand pleadings that the “core of the legal dispute”
is whether atmospheric testing involves the violation of international law.
(Aide-mémoire submitted on behalf of France, para. 16.) Thus, in the
view of France paragraph 63 is to be read against a background that the
whole case was and is restricted to atmospheric tests. France concludes
on the basis of this reasoning that the New Zealand 1995 Request is of a
“wholly artificial and unacceptable nature” (ibid., para. 19).

34. Taken as a whole the Judgment of the Court established the fol-
lowing three propositions in the view of France. First it expressly consid-
ered New Zealand’s application to relate solely to atmospheric tests and
not other types of tests. Second, the Court found France committed by
various unilateral declarations not to conduct further atmospheric tests.
Third, it held that New Zealand’s claim no longer had any object.

35. The French argument went on to contend that the public announce-
ment of France in 1974 to undertake no further atmospheric tests could
not be dissociated from its similarly announced intention to carry out
underground tests. Furthermore, says France, New Zealand understood
the decision the same way France did. It refrained from complaining
about underground tests in the South Pacific for some years and when
it did denounce the underground tests New Zealand never advanced the
decision of the International Court of Justice as a basis for doing so.

36. France went on to argue that a further objection to the New Zea-
land Request is the point that there is no provision within the Statute of
the International Court of Justice within which the Request falls. Para-
graph 63 of the Judgment, France emphasizes, said that any application
New Zealand might make pursuant to the paragraph had to be “in
accordance with the provisions of the Statute”. The present Request
could not be brought within the terms of the Statute — it was neither an
application for interpretation under Article 60 nor a request for a revi-
sion of judgment under Article 61. The conditions under which those
articles apply were absent in this case. Thus, the Request was nothing
and nothing could be done with it.

Weighing the Arguments

37. Weighing these arguments it appears to me that they demonstrate
widely divergent legal approaches. The French approach is a strict, tech-
nical legal approach. It was described by more than one of the French

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counsel as “rigorous”. I should have thought “unrealistic” may have been
a better characterization of it. Such a strict construction approach avoids
the need for the Court to address the substance of the issues. The
approach allows the Court to avoid encountering the highly controversial
issues of nuclear testing in the South Pacific by France by reading down
the language of the Court in paragraph 63 of its 1974 Judgment and
restricting its application to the matters that France no longer argues in
favour of, namely atmospheric nuclear testing. The second approach
requires the Court to grapple with the real issues that exist between
France and New Zealand about the obligations under international law
in respect to testing of the character that is currently continuing in the
South Pacific as this case proceeds.

38. The difference between the two approaches will result in important
practical consequences. The first approach produces a decision that there
is no case before the Court, nothing further to be gone into and the whole
matter will be at an end. If the second approach is adopted it causes the
Court to embark upon a consideration of further jurisdictional matters
and perhaps eventually an examination of the obligations at international
law that exist in the circumstances. It must be stressed, however, that
even if the second approach to the issue as framed by the Court prevails
there is no necessary implication to be drawn from it that France has
acted in contravention of international law. It is simply that the issue will
fall to be argued and decided before this Court. To decide the present
issue against France will simply allow further stages of the case to con-
tinue before this Court, in particular New Zealand’s Further Request for
the Indication of Provisional Measures will then come to be dealt with.

39. In the event, a majority of the Court has decided in 1995 that while
the French argument that there is nothing here fails, there is nevertheless
nothing here that the Court is prepared to take up. Since I differ from the
judgment of the Court, I set out my own reasoning in some detail in the
following paragraphs.

40. Confining the analysis for the moment to what the 1974 Court
actually said in paragraph 63, it must be accepted on any interpretation
that the Court meant that there were circumstances in which New Zea-
land could request an examination of the situation. That is what the
Court said and it must be understood to have meant it. In order to under-
line the jurisdictional significance of this utterance the Court pointed
out that the denunciation by France of the General Act for the Pacific
Settlement of International Disputes which was relied on as a basis for
jurisdiction cannot constitute an obstacle to such a request. Why did it
say that? Presumably because having decided there were circumstances in
which New Zealand could request an examination of the situation by the
Court at a later date it did not want that Request then to be met by juris-
dictional arguments that the provisions by which the Court was allegedly
seised of the dispute in the first place were now spent. For the Court to

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go to such pains to ensure that the power for New Zealand to return to
the Court should be kept open must indicate that the Court felt that nght
was an important safeguard.

41. The reasons for the 1974 Court developing its view are perhaps not
far to seek. The Court must have known New Zealand may fail to accept
the view that there was nothing left to decide after the statements made
by the French Government about a cessation of atmospheric testing.
Indeed, official statements concerning the New Zealand position on
France’s assurances were before the Court in 1974 and these were that it
rejected all forms of testing, not merely atmospheric. These are clearly set
out in the Judgment (Z C.J. Reports 1974, p. 470, para. 37). The Court
could not foresee what may happen in the future. Out of caution, there-
fore, it left the opportunity open for an examination of the situation in
the future. That was both a comfort for New Zealand and a protection
for the Court in ensuring that its authority in the matter was recognized
and continued.

42. The basis for paragraph 63 may indeed stem from the strong dis-
senting opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and
Sir Humphrey Waldock. Those Judges said:

“In accordance with the above-mentioned basic principles, the
true nature of New Zealand’s claim, and of the objectives sought by
the Applicant, ought to have been determined on the basis of the
clear and natural meaning of the text of its formal submission. The
interpretation of that submission made by the Court constitutes in
our view not an interpretation but a complete revision of the text,
which ends in eliminating what constitutes the essence of that sub-
mission, namely the request for a declaration of illegality of nuclear
tests in the South Pacific Ocean giving rise to radio-active fall-out. A
radical alteration of an applicant’s submission under the guise of
interpretation has serious consequences because it constitutes a frus-
tration of a party’s legitimate expectations that the case which it has
put before the Court will be examined and decided. In this instance
the serious consequences have an irrevocable character because the
Applicant is now prevented from resubmitting its Application and
seising the Court again by reason of France’s denunciation of the
instruments on which it is sought to base the Court’s jurisdiction in
the present dispute.” (/bid., p. 499, para. 12.)

43. The internal textual evidence to be derived from that passage
matches up closely with what was said by the Court in paragraph 63. The
Court in that paragraph included a reference to a denounced instrument,
specifically saving the request for examination from the fate predicted by

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the dissenters. In my opinion a possible explanation of paragraph 63 is
that it was adopted by the Court, after having seen the dissent circulated
in draft, in order to blunt power of the central point made by the dis-
senters and to ensure it did not come to pass. In that way the majority
may have attempted to secure more support within the Court for the
Judgment and may in fact have done so.

44, If the above reasoning is correct, it would suggest the Court had in
mind in framing paragraph 63 that New Zealand was entitled to make a
Request in terms of its original pleading. And as has been adverted to
earlier those pleadings were framed rather widely. The majority of the
Court was tacitly admitting future difficulties could arise because of the
line it was taking; assurances from France may not be enough to satisfy
all the applicant’s objectives. The Court did not therefore decide the sub-
stantive issue before the Court but left open to itself the opportunity to
do so later. New Zealand, as the dissenting Judges observed in 1974,
never filed any discontinuance of its proceedings in light of French assur-
ances. While the case was found to be moot in 1974 its status could
change if the facts that rendered it moot changed.

45. What were the circumstances in which such a Request as contem-
plated by the 1974 Court could be made? The first sentence of para-
graph 63 indicates that it is not the Court’s function to contemplate that
a State would not comply with a commitment once the Court has found
the State has made the commitment. The Court should be taken at its
word; if it is taken at its word the Court’s concerns were not restricted to
non-compliance by France of its undertakings. The concerns were wider
than that. The next sentence is critical: “However, the Court observes
that if the basis of this Judgment were to be affected, the Applicant could
request an examination of the situation in accordance with the provisions
of the Statute...” The operative words are “if the basis of this Judgment
were to be affected”. A large number of things could affect the basis of
the Judgment. Not the least of these were future developments which the
Court could not foresee in 1974 but which it knew may produce circum-
stances which could require its Judgment to be examined again. If the
basic factors underlying the Judgment changed because of France’s future
conduct then the issues could be revisited by the Court.

46. There is nothing in the language of paragraph 63 to restrict such
an examination to France’s compliance with its undertaking not to
resume atmospheric nuclear testing. France relies upon paragraph 29 of
the Judgment particularly the passage where the Court says that it con-
siders

“for purposes of the Application, the New Zealand claim is to be
interpreted as applying only to atmospheric tests, not to any other

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form of testing, and as applying only to atmospheric tests so con-
ducted as to give rise to radio-active fall-out on New Zealand terri-
tory” (LC.J. Reports 1974, p. 466).

It is true that this was the basis upon which the Court framed its Judg-
ment. But it was not a position agreed to by New Zealand and the plain
language of New Zealand’s Application was broader. Understood in that
way there is nothing inconsistent between paragraphs 29 and 63. Para-
graph 63 was a recognition by the Court of the realities of the situation
produced by its Judgment. So, if the “basis of this Judgment were to be
affected” the Applicant could request an examination of the situation.

Resolution of the Issue

47. The resolution of the first issue to be determined arising out of para-
graph 63 turns upon how the 1974 Judgment is characterized — what are
its essential elements.

The competing rationes decidendi of the case from each country’s point
of view might be stated as follows:

France: When New Zealand brought proceedings in the International
Court of Justice in 1973 in respect of nuclear tests France was then con-
ducting in the Pacific the Court decided

(1) that the New Zealand Application related solely to atmospheric test-
ing notwithstanding wider claims made in the New Zealand plead-
ings;

(2) when France committed itself by unilateral declaration not to con-
duct any further atmospheric nuclear tests the Court held that under-
taking was legally binding upon France thereby rendering the claim
without object and the Court was not called to give a decision upon
it;

(3) the Court reserved leave to New Zealand to request the Court in the
future to examine the situation if the basis of its Judgment were to be
affected, but this right is limited to a breach by France of the under-
taking in Proposition 2 because the Court decided Proposition 1.

New Zealand: When New Zealand brought proceedings in the Inter-
national Court of Justice in 1973 in respect of nuclear tests France was
then conducting in the Pacific the Court decided

(1) that the New Zealand Application related solely to atmospheric test-
ing notwithstanding wider claims made in the New Zealand plead-
ings;

(2) when France committed itself by unilateral declaration not to con-

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duct any further atmospheric nuclear tests the Court held that under-
taking was legally binding upon France thereby rendering the claim
by New Zealand without object and the Court is not called upon to
give a decision on it;

(3) the Court reserved leave to New Zealand to request the Court to
examine the situation if the basis of its Judgment were to be affected,
and this proposition is not limited by the other two.

48. Stated in that way it is apparent that the third proposition is the
pivot. It can be accepted that some version of the proposition is an essen-
tial part of the Judgment in both accounts. But is Proposition 3 a
dependent or independent variable? There is nothing in the proposition
developed by the Court itself to suggest that it is a factor which is limited
by Proposition 1. There is nothing to indicate that Proposition 3 was to
be considered a subordinate and subsidiary part of the Judgment. It
seems to me that it was of equal standing with the other two elements of
the Judgment. In fact potentially it was more potent than they. It had the
power within it to eviscerate Proposition 1. Should subsequent events
undermine that portion of the Judgment dealt with in Proposition 1 that
proposition could no longer stand. Indeed Proposition 3 could be seen as
an important element of the ratio decidendi. It is an important qualifica-
tion to paragraph 65 (the dispositif) where the Court found by nine votes
to six that “the claim of New Zealand no longer has any object and that
the Court is therefore not called upon to give a decision thereon” (I. C.J.
Reports 1974, p. 478).

49. The reason for the pertinence of Proposition 3 is that the Court
did not decide the case that was put in front of it in 1973-1974. It avoided
the issue, using the French announcements as the basis for doing so. In
order to allow itself the freedom to decide the case should subsequent
developments make that appropriate, it formulated Proposition 3. It was
thereby deliberately introducing an element which made the Judgment
less than final. This was an unusual Judgment of which it might be said
proceedings were not definitely ended. If “the basis of the Judgment were
to be affected” it could be reopened if the true subject, object and pur-
pose of New Zealand’s Application was brought into issue.

In Accordance with the Provisions of the Statute

50. I turn now to the phrase used by the Court in paragraph 63 that
the Applicant could request an examination of the situation “in accord-
ance with the provisions of the Statute”. France argues strongly that
there are no express provisions within the Statute within which the
Request falls. It is neither an application for revision nor a request for
interpretation of the 1974 Judgment in terms of the provisions of Ar-

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ticles 60 and 61 of the Court’s Statute. France argued this point in para-
graphs 24 to 26 of its aide-mémoire of 6 September 1995 and its oral
submission. With respect I find those arguments well made but they do
not in my opinion dispose of the issue.

51. In my opinion the jurisdictional foundation for the New Zealand
Request rests upon the Judgment itself, particularly paragraph 63. The
Judgment was rendered in accordance with the Statute. Indeed, France
now admits the validity of the Judgment, even though it chose to make
no appearance before this Court in 1973-1974 and did not comply with
provisional measures ordered by the Court. The Court solemnly and
clearly left it open in paragraph 63 for New Zealand to request an exami-
nation of the situation. The Court in reaching its Judgment knew what
the Statute provided. In these circumstances the reference to the Statute
must be understood as meaning in accordance with the Statute, the Rules
of the Court and the Judgment of the Court. It was not to be understood
as a reference to a particular procedure provided for by the Statute. What
the Court meant in my opinion was that if paragraph 63 was activated
the Court would use the procedures it usually uses to deal with it. It was
a commitment to procedural due process in relation to any application
for an examination of the situation. To give the phrase the meaning con-
tended for by France is to render the paragraph devoid of practical effect.
It could not have been intended by the Court to prevent a New Zealand
return to the Court if, for example, France had resumed atmospheric
testing 12 years after the Judgment.

52. In making provision in paragraph 63 in the way that it did, the
Court was acting in exercise of the inherent power it enjoys as the result
of its existence, including the Statute of the International Court of Justice
itself and the reference in Article 1 to the Court as “the principal judicial
organ of the United Nations” and the power in Article 48 to make orders
for the conduct of the case. The Court in my opinion has the power to
regulate its own procedure and to devise a procedure sui generis. It 1s,
after all, a court.

53. The French argument also relies upon the long period of time that
has elapsed since the Judgment of the Court coupled with the fact that
New Zealand refrained from protesting against the underground tests
which France carried out on occasions. But against that it should be said
that it is common in domestic jurisdictions for matters to be left open for
the parties to litigation to return to the Court consequent upon later
developments. Such a feature in international law can hardly be regarded
as unacceptable in terms of the sources of international law articulated in
Article 38 (1) of the Statute of the International Court of Justice. In such
circumstances the formal fact of the status of the case on the Court’s
formal list is irrelevant.

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54. In my opinion the Court had the power to keep open the possibil-
ity of an examination of the situation in this case and it exercised that
power. The reason the case is not dead is because the 1974 Judgment kept
it alive. Given the subsequent development of matters in the South
Pacific it might be regarded as providential that the Court had the fore-
sight to act in the way that it did.

THE FACTUAL ENVIRONMENTAL ARGUMENT

55. Having concluded that the Court is not precluded by the terms of
its 1974 Judgment from entering into an examination of it, I now come to
a discussion of the arguments of whether it should in the circumstances
exercise in 1995 the possibility left open in 1974. Such an analysis neces-
sarily requires some reference to the facts.

The Prima Facie Standard

56. New Zealand submitted that the appropriate standard was for the
Court to apply a prima facie standard as it does in provisional measures
cases and not set an absolute standard. New Zealand contended that it
could meet the more demanding standard on the facts but that it was not
the appropriate test. That was because of the jurisdictional character of
the issue and the fact that New Zealand had requested provisional meas-
ures in relation to the case.

57. The contention of France, by way of contrast, was that New Zea-
land had the burden of proof and the standard was the normal standard
of proof that applies to any State that has the burden of making good its
arguments. France denied there were jurisdictional issues in the sense
argued by New Zealand on the grounds that the issue was whether or not
the case still existed.

58. I have dealt with the issue of the whether the case still existed in
the previous segment of this opinion. Having decided that it does remain
open to make application under paragraph 63 of the Judgment of 1974
I conclude that the test proposed by New Zealand is the appropriate one,
and to be fair to France it does not appear to me that the contrary view
was strongly argued. It appears to me that what New Zealand has to
show is that there is a prima facie case to examine the Judgment. It
sought to do that by two arguments:

(a) the pertinent facts have changed increasing the risk of nuclear con-
tamination;

(b) the state of international law had rapidly developed and progressed
from the point it was at in 1974 so clarifying the standards to be
applied to the dispute.

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Either change, it was submitted, would be sufficient to trigger the process
of examination by the Court under paragraph 63. To these factual and
legal issues this opinion will now turn.

New Zealand’s Argument on the Facts

59. Coming to the environmental issues raised in the Request by New
Zealand, New Zealand asks the Court in paragraph 113

“to adjudge and declare:

(i) that the conduct of the proposed nuclear tests will constitute a
violation of the rights under international law of New Zealand,
as well as of other States;

further or in the alternative;

Gi) that it is unlawful for France to conduct such nuclear tests
before it has undertaken an Environmental Impact Assessment
according to accepted international standards. Unless such an
assessment establishes that the tests will not give rise, directly or
indirectly, to radioactive contamination of the marine environ-
ment the rights under international law of New Zealand, as well
as the rights of other States, will be violated.”

60. As New Zealand puts the argument the situation developed gradu-
ally, but has now reached the stage where it affects the basis of the 1974
Judgment. That is to say evidence has accumulated concerning the number
of underground tests now numbering 135 since the Court’s Judgment of
1974. Among the issues are the nature of the geomorphology of the atolls
where the tests are conducted, concern that there will be leakages of
radiation in the long run, the facts that there are now some 126 nuclear
waste “stockpiles” located within the structure of Mururoa atoll at
depths of between 500 and 1,000 metres, and eight large stockpiles at
Fangataufa. These piles consist of the longer lived isotopes of strontium,
caesium and plutonium. The half-life of some types of caesium can be as
high as 3 million years. Plutonium produced by a plutonium weapon can
have a half-life of 24,000 years.

61. If this nuclear waste or substantial parts of it was released into the
marine environment the New Zealand contention is the effect upon
marine natural living resources, especially fish and plankton, could be
significant. Radionuclides released into the water are concentrated as
they pass through the food chain to higher organisms. The effects would
be distributed through the marine ecosystem, affecting highly migratory
species including tuna. Similar concerns were stated by New Zealand in
the 1973 Application.

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62. The 1995 New Zealand Request points to increasing and recent
scientific concern about the possible environmental impacts of under-
ground nuclear testing. The article by Professor Pierre Vincent, the
French vulcanologist that appeared in Le Monde on 12 July 1995 raises
serious environmental concerns about the future of the atolls concerned.
He says increased fracturing may open up the system to gradual migra-
tion of radioactive elements into the sea. He states this to be “a very real
risk” (New Zealand Request, Ann. 5). The French scientist goes on to
suggest that the factors that are conducive to the destabilization of vol-
canoes combined with a nuclear explosion could be big enough for large
parts of the atoll to sheer away. This is described as high risk. In such
circumstances there could be a spill-out of dangerous radioactive
materials. New Zealand further referred orally to the views of Dr. Colin
Summerhayes, Director of the Institute of Oceanographic Sciences in
the United Kingdom, to the effect that volcanic islands like Mururoa
were inherently unstable and may fail given an appropriate trigger like
an earthquake or very large explosion.

63. New Zealand concludes its Request on this point in the following
way:

“There is, therefore, now reason to fear that the risks of a signifi-
cant release of radioactive material from either or both of the atolls
as a result of or consequent upon renewed testing activity are sub-
stantially higher than was previously believed to have been the case.
These risks include the possibility of a serious collapse or fissuring of
the atolls such as to release significant quantities of the radioactive
material stored therein with potentially serious consequences for the
marine environment.” (Para. 25.)

64. The Request then proceeds to evaluate what information is avail-
able about the safety of testing on the atolls and examines the three
limited investigations that have been conducted of Mururoa atoll. No
independent scientific mission has so far visited Fangataufa, the place
where the biggest explosions have occurred. The studies that have been
made of Mururoa show that radioactive material has been released into
the aerial and marine environments during even routine activities associ-
ated with testing programmes. Long-term leakage of radioactive material
into the marine environment appears to be a significant risk in the long
term. Spectacular effects on the atoll structure from the tests have been
documented in the Cousteau study:

“Underwater filming down to 230 metres by the Cousteau team
revealed spectacular fissures and collapses of rock in the atoll that

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could only have been caused by the underground explosions.” (1995
New Zealand Request, para. 43.)

These test sites, it is argued by New Zealand, are quite unsuitable for the
purpose for which they have been used and are quite unlike continental
land masses or other oceanic islands that have been used for under-
ground testing. In an atoll the boundary between land and sea is indis-
tinct. “Water passes from the ocean into the atoll, including its central
core, and from the atoll into the ocean.” (/bid., para. 51.)

65. There is also analysis in the Request of what New Zealand con-
siders to be inadequate assurances of safety by the French and details of
documented accidents are given. France, it is said, has repeatedly claimed
that the tests are safe but has limited or denied access to test sites. In my
opinion the nature of the argument put forward by New Zealand sug-
gests that if the legal issues permitted the case to proceed there would be
significant evidence available to support the view that real environmental
dangers flow from the testing done and planned by France in the South
Pacific. In arriving at that conclusion I am not making any judgment
about what the scientific evidence may ultimately show were it to be put
before this Court and adjudicated upon.

66. France who is in the best position to know of the risks has pro-
vided some evidence to the Court. France says it has followed a policy of
openness in making information available. There was little said by France
about the potential risks long term being built up by cumulations of
nuclear waste in the two atolls where testing is carried out. These wastes,
France said, were trapped in vitrified rock. Furthermore the problems of
shearing off of parts of the atoll and the development of fissures were
attractive “Hollywood scenarios” but nothing more. The French presen-
tation at the oral hearings went to some pains to make assurances about
the safety of the tests. Large graphic presentations of the geomorphologi-
cal structure of Mururoa were made. There was reference to a number of
scientific studies that were before the Court. Counsel for France, Mr. de
Brichambaut, said there was ample monitoring of the situation on a con-
tinuing basis. Precautions had been taken. France had observed its inter-
national legal obligations, he said.

The Calculus of Environmental Risk

67. The Court is not in a position to make definitive conclusions on
the scientific evidence on the basis of the material put before it. Listening
to the submissions at the oral hearings did, however, convince me that
there were real issues at large here. The true question related to the
assessment of the level of risk. The two nations appeared to have very
different approaches to that subject. It is, however, an issue which could
be determined were the Court to give it a full hearing.

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68. There are a number of factors to be weighed in deciding whether
New Zealand satisfied the prima facie standard outlined above which
would warrant a decision that the basis of the 1974 Judgment had altered
and should be examined. These factors are:

— the ultrahazardous nature of nuclear explosions and the dangerous
nature of the waste they produce;

— the length of time that some of the nuclear materials remain hazard-
ous which is measured in tens of thousands of years or longer;

— the fragile nature of the atoll structure and the cumulative effect of a
large number of nuclear explosions upon the structure;

— the fact that atolls cannot be distinguished from the marine environ-
ment and must be thought of as an inherent part of the ocean eco-
system ;

— the high number of tests which have been concentrated within a small
area;

— the proximity of the testing to the marine environment;

— the high quantities of dangerous nuclear wastes now accumulated on
the test sites;

— the risks of radiation entering the food chain through plankton, tuna
and other fish;

— the risks of further fissures and shearing off of part of the atoll struc-
ture occurring as the result of further testing.

69. It cannot be doubted that France has engaged in activities that
have substantially altered the natural environment of the test sites in the
Pacific. These actions have been intentional and they have been under
scientific scrutiny, especially by French scientists. But the unintended
repercussions of intentional human action are often the most important.
The nature of the risks inherent in the activity itself would suggest caution
to be appropriate. Some means of calculating those risks is necessary to
arrive at a determination of whether New Zealand has satisfied the test.
This calculus I suggest should contain a number of elements:

— the magnitude of the recognizable risk of harm by nuclear contami-
nation in the circumstances;

— the probability of the risk coming to pass;

— the utility and benefits of the conduct being assessed — viz. nuclear
testing by France;

— the cost of the measures needed to avert the risk.

70. In my opinion what is required under the test the Court should
apply is a risk-benefit analysis. There must be a balancing of the risks of
the activity, the probability of harm, the utility of the activity and the
measures needed to eliminate the risk. This is similar to a calculus of the

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risk analysis in the law of torts in some common law jurisdictions (see
Prosser and Keeton on the Law of Torts, Sth ed., 1984, pp. 169-173;
Richard A. Epstein, Cases and Materials on Torts, 5th ed., 1990, pp. 150-
168; Blyth v. Birmingham Water Works, 11 Exchequer 781, 156 English
Reports 1047 (1856); United States v. Carroll Towing Co., 159 Federal
Reports 2d 169 (2d Cir. 1947)). But it is submitted that it is an appropri-
ate analytical construct with some modifications for measuring the issue
here.

71. The gravity of the radiation harm if it occurs is likely to be serious
for the marine environment. The magnitude of the risk that the harm will
occur must be regarded as significant given the destructive force of
nuclear explosions and the possibility of other disturbances or abnormal
situations occurring in the course of the long life of the dangerous sub-
stances. The costs of averting the risk in this instance are low — they
consist of France providing a fully scientifically verifiable environment
impact assessment in accordance with modern environmental practice
which demonstrates that the proposed tests will not result in nuclear con-
tamination. No doubt France and New Zealand would differ greatly on
the utility of nuclear testing but it can reasonably be said that the extra
tests proposed cannot have great value given the number that have pre-
ceded them. They are of diminishing marginal value, if they have any
value at all. If the calculus of the risk analysis were applied in this way,
then on these facts a prima facie case is made out by New Zealand in my
opinion.

72. The test put forward here derives from support from the recent
work of the International Law Commission where it laid down that for
the purposes of draft Articles under its consideration “risk of causing
significant transboundary harm” an expression which refers “to the
combined effect of the probability of occurrence of an accident and the
magnitude of its injurious impact” (Report of the International Law
Commission on the work of its forty-sixth session, 2 May-22 July 1994,
Official Records of the General Assembly, Forty-ninth Session, Supple-
ment No. 10 (A/49/10), p. 400).

73. The conclusion of this segment of the opinion is as follows: judged
on the prima facie standard a case on the environmental facts has been
made out to examine the Judgment.

THE LEGAL ENVIRONMENTAL ISSUES

74. The second argument advanced by New Zealand as to why the
Court should examine the 1974 Judgment revolved around the changes in
the state of international law relating to the environment in general and
nuclear testing in particular in the period between 1974 and the 1995

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hearings. In order to evaluate that submission it is necessary to briefly
traverse those developments in the broad before becoming specific.

The Development of International Environmental Law

75. When this case began in 1973 it was shortly after the international
meeting at Stockholm which produced the Stockholm Declaration of the
United Nations Conference on the Human Environment (adopted by the
United Nations Conference on the Human Environment at Stockholm,
16 June 1972, 11 ILM 1416 (1972) (Stockholm Declaration). It was that
Conference that started the march of the new field of international envi-
ronmental law toward international legal maturity. At that time only 25
countries possessed national environmental ministries. The Declaration
advanced the development of the principles of international environmen-
tal law. It can confidently be stated that some of those principles stated in
the Declaration have received such widespread support in State practice
coupled with a sense on the part of States that they are legally binding
that they have by now entered into the framework of customary interna-
tional law. The impact of human activities on the environment in a com-
prehensive way was brought to the attention of the international commu-
nity, in effect for the first time by Stockholm. Preambular paragraph 6 of
the Stockholm Declaration said: “A point has been reached in history
when we must shape our actions throughout the world with a more pru-
dent care for their environmental consequences.” It is important to recall
that explicit reference was made by New Zealand in its 1973 Request
(LC.J. Pleadings, Nuclear Tests, Vol. I, pp. 55-56, paras. 33, 34 and 35
with explicit reliance being placed on Principles 6, 7, 21 and 26).

76. Principle 1 of the Stockholm Declaration established that the
people bear “a solemn responsibility to protect and improve the environ-
ment for present and future generations”. Principle 2 talks of the need to
safeguard natural resources including air, land and water. Principle 6 laid
down that the discharge of toxic substances must be halted where they
were in such quantities or concentrations “to exceed the capacity of the
environment to render them harmless . . .”. Principle 7 requires States to
take all possible steps to prevent pollution to the seas by substances liable
to create hazards for human health and marine life. Principle 18 asked
for “the identification, avoidance and control of environmental risks
...”. Principle 21 required States to

“ensure that activities within their jurisdiction or control do not
cause damage to the environment of other States or of areas beyond
the limits of national jurisdiction”.

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Principle 26 dealt with the need to spare the environment and people “the
effects of nuclear weapons and all other means of mass destruction”.

77. In recent years the proliferation of international conventions and
treaties on the global environment has been considerable. There are more
than a hundred multilateral environmental instruments in force many of
which have been negotiated since the 1972 Stockholm Declaration. The
United Nations Environment Programme register listed 152 in 1991
before the significant outburst of activity at the Rio de Janeiro United
Nations Conference on Environment and Development in 1992. For
present purposes the important point about the development of interna-
tional environmental law is that its most important flowering and expan-
sion spans the period of this case — it started in earnest about the time
this case began and reached a crescendo at Rio in 1992.

78. Indeed the consensus flowing from Rio is itself significant in the
context of the arguments being advanced in the present case. The Rio
Declaration refined, advanced, sharpened and developed some of the
principles adopted at Stockholm (Rio Declaration on Environment and
Development, adopted by the United Nations Conference on Environ-
ment and Development at Rio de Janeiro, 13 June 1992, 31 ILM 874
(1992) (Rio Declaration)). Many of the principles were repeated but some
new ones make an appearance:

Principle 15:

“In order to protect the environment, the precautionary approach
shall be widely applied by States according to their capabilities.
Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation.”

Principle 17:

“Environmental impact assessment, as a national instrument, shall
be undertaken for proposed activities that are likely to have a sig-
nificant adverse impact on the environment and are subject to a deci-
sion of a competent national authority.”

79. Maurice Strong who was Secretary-General of both the Stockholm
and the Rio Conferences has summed up his view of the need to develop
the mechanisms of international environmental law still further. He said:

“To manage our common future on this planet, we will need a
new global legal regime based essentially on the extension into inter-
national life of the rule of law, together with reliable mechanisms for
accountability and enforcement that provide the basis for the effec-

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tive functioning of national societies.” (Foreword by Maurice F.
Strong to L. D. Guruswamy et al., International Environmental Law
and World Order, 1994, p. vii.)

80. This Court in this very case in 1974 made a contribution to the
growing field of international environmental law. The Nuclear Tests
cases have come to be cited as one of a quartet of cases that offer some
protection for the environment through the medium of customary inter-
national law. Others include the Corfu Channel ( United Kingdom v. Alba-
nia) (I.C.J. Reports 1949, p. 4) establishing the principle of every State’s
obligation not to allow knowingly its territory to be used for acts con-
trary to the rights of other States. The Trail Smelter (United States v.
Canada) (II Reports of International Arbitral Awards (RIAA) 1905
(1938 and 1941)) established that no State has the right to use or permit
the use of its territory in such a way as to cause injury by fumes in the
territory of another State. The Lake Lanoux Arbitration (XII RIAA 281
(1957)) turned on the interpretation of a particular treaty but it may
establish the principle that a State has the duty to give notice when its
actions may impair the environmental enjoyment of another State. To
these should now be added the contribution of this Court if only because
of the environmental degradation with which the case dealt (Certain
Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
Judgment, I.C.J. Reports 1992, p. 240). Significantly, by the Court decid-
ing to hear the case, a result was produced by way of settlement. The
principles established by these cases have been included in Principle 21 of
the Stockholm Declaration and Principle 2 of the Rio Declaration.

81. But authoritative decisions in the area of international environ-
ment law are scarce enough. They certainly lag behind the plethora of
conventional law that has sprung into existence in the more than 20 years
spanning the life of this case. The nature of some of the issues is helpfully
discussed in the Report of the International Law Commission on the
work of its forty-sixth session, 2 May-22 July 1994, on “International
Liability for Injurious Consequences Arising out of Acts Not Prohibited
by International Law” (Official Records of the General Assembly, Forty-
ninth Session, Supplement No. 10 (A/49/10), pp. 367 ff.), a subject with
which the Commission has been grappling since 1978 without definitive
result. The Commission is giving priority in its work to prevention of
activities having a risk of causing transboundary harm.

82. Indeed, following Rio and perhaps because of it, this Court on
6 August 1993 exercising its powers under Article 26 of the Statute of the

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International Court of Justice set up a Chamber of seven Judges to deal
with environmental matters. The Court in an I.C.J. communiqué (93/20,
19 July 1993) announced:

“In view of the developments in the field of environmental law
and protection which have taken place in the last few years, and con-
sidering that it should be prepared to the fullest possible extent to
deal with any environmental case falling within its jurisdiction, the
Court has now deemed it appropriate to establish a seven-member
Chamber for Environmental Matters . . .”

83. The forces that led the Court to establish a Chamber for consid-
eration of environmental cases is reflected in the quantity of work being
done by highly qualified publicists of the various nations upon the sub-
ject of international environmental law. Such works include A. Kiss and
D. Shelton, Jnternational Environmental Law, 1991; P. Birnie and
A. Boyle, International Law and the Environment, 1992; P. Sands et al.,
Principles of International Environmental Law — Documents in
International Environmental Law, 2 volumes, 1995; L. Guruswamy et al.,
International Environmental Law and World Order, 1994; J. Carroll
(ed.), International Environmental Diplomacy, 1988; E. B. Weiss, In
Fairness to Future Generations: International Law, Common Patrimony,
and Intergenerational Equity, 1989; E. B. Weiss (ed.), Environmental
Change and International Law, 1992; C. Stone, The Gnat is Older than
Man: Global Environment and Human Agenda, 1993; P. Sand, Lessons
Learned in Global Environmental Governance, 1990; G. Handl (ed.),
Yearbook of International Environmental Law, 1990, and annually. The
periodical literature is so vast on the subject that it cannot be cited.

84. The obvious and overwhelming trend of these developments from
Stockholm to Rio has been to establish a comprehensive set of norms to
protect the global environment. There is a widespread recognition now
that there are risks that threaten our common survival. We cannot permit
the onward march of technology and development without giving attention
to the environmental limits that must govern these issues.. Otherwise the
paradigm of sustainable development embraced by the world at the Rio
Conference cannot be achieved (Worid Commission on Environment and
Development, Our Common Future, 1987, p. 5; see also D. H. Meadows,
D. L. Meadows and J. Randers, Beyond the Limits, 1992).

International Law on Radioactive Hazards

85. It was against the background outlined above that Sir Kenneth
Keith, Q.C., for New Zealand sought to establish four legai propositions:

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G) States must ensure that activities within their jurisdiction or control
do not cause damage to the environment of other States or of areas
beyond the limits of their jurisdiction.

Gi) Any addition of radioactive material to the environment or exposure
of individuals to radiation must be justified. Such addition or expo-
sure must be for good reason.

Git) Any disposal or introduction of artificially created radioactive
material into the marine environment is heavily circumscribed. It
is in general forbidden.

(iv) Any introduction of radioactive material into the marine environ-
ment as a result of nuclear tests is forbidden. The world community
no longer accepts that the testing of nuclear weapons can be used to
justify marine contamination.

The law now sets higher standards in an “increasingly interdependent
world”, Sir Kenneth told the Court (CR 95/20, p. 10).

86. New Zealand in support of its propositions relied upon the
Stockholm and Rio Declarations and in particular on the 1986 Conven-
tion for the Protection of the Natural Resources and Environment of
the South Pacific Region concluded at Noumea, 25 November 1986,
entered into force 22 August 1990 (26 ILM 38 (1987)). New Zealand
and France both are parties to the Convention. These legal materials
and others cited to the Court established in the view of New Zealand
an increasingly strict attitude to the addition of radioactive material to
the general environment and the exposure of individuals to radiation.
In relation to the marine environment it was even more exacting.
Among the materials cited in support of these propositions were:
Article 14 of the Draft Articles considered in the 1994 Annual Report
of the International Law Commission mentioned above; the Interna-
tional Atomic Energy Agency, Safety Series No. 77, Principles for
Limiting Releases of Radioactive Effluents into the Environment, 1986;
Agenda 21, Chapter 22, of the Rio Declaration, “Safe and Environmen-
tally Sound Management of Radioactive Wastes”, paragraph 5 (para. 100
of the New Zealand Request); Convention on the High Seas con-
cluded at Geneva 29 April 1958, entered into force 30 September 1962
(450 UNTS 82, Art. 25); United Nations Convention on the Law of the
Sea concluded at Montego Bay, 10 December 1982, entered into force
16 November 1994 (21 ILM 1261 (1982), Part XII, Art. 194); Convention
on Biological Diversity, concluded at Rio de Janeiro 5 June 1992, entered
into force 29 December 1993 (31 ILM 818 (1992), Arts. 3 and 14); Stat-
ute of the International Atomic Energy Agency, 26 October 1956
(276 UNTS 3, Art. 34); Convention for the Protection of the Marine
Environment of the North-East Atlantic, concluded at Paris, September
1992 (32 ILM 1069 (1993), Ann. II, Art. 3 (3) (a) and (6)); Convention

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on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter, concluded at London, 19 December 1972 (11 JEM 1291 (1972)),
Annex I; Resolution of Consultative Meeting LDC 21 (9) on Dumping
Radioactive Wastes at Sea, 1985.

Environmental Impact Assessment

87. At this point, Mr. D. J. MacKay for New Zealand went on to
develop this segment of the argument by pointing to the application of
the emerging international law on environmental impact assessment (EIA)
and the precautionary principle in their. application to the facts of this
case. In both respects the law had changed dramatically, thus supporting
the view that the basis of the Court’s Judgment was affected. It was sub-
mitted that other parties likely to be affected by the risks have a right to
know what the investigations for the EJA are, have a right to propose
additional investigations and a right to verify for themselves the result of
such investigations. As the law now stands it is a matter of legal duty to
first establish before undertaking an activity that the activity does not
involve any unacceptable risk to the environment. An EJA is simply a
means of establishing a process to comply with that international legal
duty. New Zealand pointed to a number of international instruments,
including Article 205 of the United Nations Law of the Sea Convention
that make explicit reference to EIA.

88. Under Article 12 that has been adopted by the International Law
Commission in the course of its deliberations, the Commission has decided
that before a State carries out activities which involve a risk of causing
significant transboundary harm through their physical consequences

“a State shall ensure that an assessment is undertaken of the risk of
such activity. Such an assessment shall include an evaluation of the
possible impact of that activity on persons or property as well as in
the environment of other States.”

The Noumea Convention referred to earlier also contains an explicit obli-
gation in Article 16 to conduct environmental impact assessments
before embarking upon any major project which might affect the marine
environment. A more explicit measure appears in Article 12 of that Con-
vention producing a duty to prevent, reduce and control pollution in
the Convention area which might result from the testing of nuclear
devices.

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Precautionary Principle

89. So far as the precautionary principle is concerned New Zealand
submitted that in the circumstances it required two things. First, that the
assessment must be carried out before and not after the activities are
undertaken. Second, that it is for the State contemplating these activities
to carry out the assessment and to demonstrate that there is no real risk.
It is not for potentially affected States to demonstrate that there will be
a risk.

90. I have set out these arguments in some detail because they exhibit
the issues that would have been traversed had the case gone to the next
stage. France did not address arguments on these points since it at all
times regarded the issues before the Court as threshold issues that did not
require it to meet the arguments put above. It would be wrong in these
circumstances to reach substantive conclusions on the application of the
arguments to the facts of the case. It is, however, appropriate to reach a
conclusion on what the principles of law discussed establish from the
point of view of meeting the test required to examine again the 1974 case.

Conclusion

91. What those principles of international law establish in my view are
the following propositions:

(a) international environmental law has developed rapidly and is tend-
ing to develop in a way that provides comprehensive protection for
the natural environment;

(b) international law has taken an increasingly restrictive approach to
the regulation of nuclear radiation;

(c) customary international law may have developed a norm of requir-
ing environmental impact assessment where activities may have a
significant effect on the environment;

(d) the norm involved in the precautionary principle has developed
rapidly and may now be a principle of customary international law
relating to the environment;

(e) there are obligations based on Conventions that may be applicable
here requiring environmental impact assessment and the precaution-
ary principle to be observed.

Taken together, in application to the present dispute, the legal develop-
ments are sufficient to meet a prima facie test that the legal circumstances
have altered sufficiently to favour an examination of the 1974 case. Let
me emphasize again, however, this is not to say what principles of law
may apply here in the particular circumstances or indeed what their con-
tent might be. That is for the next stage.

92. It is necessary to say something about the application of principles
of law at the stage they have reached in 1995 to a case that was pleaded

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and first dealt with in the mid 1970s. The harm complained of — nuclear
contamination — is a continuing one. It seems apparent to me that the
applicable law must be determined, in a circumstance like the present
one, at the date the Court is called on to apply it. The converse proposi-
tion cannot stand in my opinion.

93. In my view it would exert a salutary and needed influence on inter-
national environmental law for this Court to enter upon full hearings and
a serious consideration of the issues of this case, whatever ultimate result
was eventually reached. There is a pressing need to develop the law in the
area. Given the possibility left open expressly in 1974 that in appropriate
circumstances the Court could return to these issues, it would be possible
to examine the 1974 decision in light of massive changes in the legal prin-
ciples that have been developed in the period between the Court’s two
considerations of the issues. In the event, however, because a majority of
the Court has taken another view New Zealand’s effort to hold France
accountable under the principles of international environmental law will
fail.

THE NATURE OF THE JUDICIAL CHOICE

The Order of the Court

94. The formalistic approach adopted by the majority of the Court in
framing its Order makes it necessary to isolate the steps in its reasoning.
It is reasoning I cannot accept. The reasoning the Court advances for
making the Order that it can take no action on New Zealand’s request
for an examination has a number of elements:

(a) the broader designs beyond atmospheric testing that New Zealand
might have had when filing its 1973 Application cannot be the sub-
ject of the Court’s investigations now;

(b) the Court in 1974 was entitled to isolate the real issue and limit it to
atmospheric testing and did so;

(c) the language used by the Court in the companion case brought by
Australia means that the Court treated the New Zealand case as
identical with the Australian one;

(d) thus the 1974 Court was entitled to treat the matter at an end relying
on France’s unilateral declaration;

(e) it was in the event of a resumption of nuclear tests in the atmosphere
that the basis of the Judgment would have been affected;

(f) im consequence of its view in 1995 of the Judgment of 1974 it was
not open for the Court to enter into a consideration of underground
testing or the arguments on either side relating to those events and
take them into account;

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(g} for the same reasons as in {f} the Court cannot take into account
the developments in international environmental law that have taken
place since the 1974 Judgment.

95. The conclusion reached by the majority taking into account all of
the above is that the 1974 Judgment has not been affected.

96. The essence of the approach taken represents a triumph of formal-
ism over substance. The law appears as some disembodied construct that
is far removed from the concerns of the real world. The law is frozen in
time, nothing beyond 1974 has any relevance or importance in interpret-
ing paragraph 63, except a resumption of atmospheric testing. It is an
approach that depends upon reading down the plain language of para-
graph 63, and sapping it of vitality. I find such an approach to legal
reasoning arid and intellectually unsatisfying. When dealing with sub-
stantive issues of such overwhelming importance, decisions not to address
those issues need to be convincing and carry legal conviction. In this
instance, however, the reasoning is laconic.

97. The whole approach by the Court depends upon drawing a distinc-
tion between atmospheric nuclear testing and underground nuclear test-
ing and refusing to accept that they are linked by the underlying common
factor of nuclear contamination. The distinction is fundamentally
unsound in common-sense terms and that ought to be reflected in legal
terms. It is legal reasoning of a highly mechanical quality. The signifi-
cance of the basic distinction drawn by the Court is not easy to defend
except by an approach well described as the austerity of tabulated legal-
ism (Minister of Home Affairs v. Fisher [1980] Appeal Case, p. 328).
I cannot defend the distinction relied upon by the Court and therefore
respectfully dissent from it.

98. The Court also relies in its Order on the fact that the Court in the
companion case brought by Australia in 1973 employed in the Judgment
in that case a form of words identical to the one used in paragraph 63 of
the New Zealand case. The 1995 Court concludes for that reason the
1974 Court regarded the two cases as identical. With respect, the conclu-
sion does not follow. Worse, it does injustice to New Zealand.

99. One learned author has found no fewer than seven important dis-
tinctions between the Australian and New Zealand cases (J. Stephen Kos,
“Interim Relief in the International Court: New Zealand and the Nuclear
Test Cases”, 14 Victoria University of Wellington Law Review 357 (1984)).
The first observation to be made.in this respect is that the cases were
not joined in 1973 and the reasons for not joining them are plain enough.
As the New Zealand Attorney-General, Dr. A. M. Finlay, Q.C., told
the Court:

“The Governments of Australia and New Zealand do not have a

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REQUEST FOR AN EXAMINATION (DISS. OP. PALMER)

joint approach to the presentation of their respective cases against
the Government of France; nor did they bring these cases for the
purpose of supporting each other. Actions taken in their region that
may violate obligations erga omnes, or cause an identical threat to
the well-being of the citizens of both their countries, are naturally of
concern to both; but history and geography condition and differen-
tiate their individual perceptions of a common threat.” (I. C.J. Plead-
ings, Nuclear Tests, Vol. II, p. 254.)

100. The New Zealand case had a broader objective than Australia;
there were substantial differences in the submissions and in the remedies
sought. New Zealand’s case had a stronger ground in law and in fact
than Australia’s. Mr. Kés, in the article cited above, summarizes the
reason for that conclusion:

(a)

(b)

(e)

(d)
(e)

131

The equities favoured New Zealand in terms of its past diplomatic
and political record. New Zealand’s association with United King-
dom nuclear testing was very limited. New Zealand had a consistent
and outspoken record of opposition to testing since 1958. The ter-
ritory of New Zealand and that for which New Zealand was respon-
sible was closer to the test site than Australia’s. Its case at the merits
stage would have been stronger. New Zealand had legally a stronger
position on the legal issues of the application of Article 17 of the
General Act for the Pacific Settlement of International Disputes,
which Australia had allegedly violated. New Zealand, unlike
Australia, had not declared that its considered General Assembly
resolutions were not legally binding. New Zealand had a record in
the General Assembly of support for the Partial Test Ban Treaty.

New Zealand asserted different rights that it claimed were owed
erga omnes in equal measure to all States — indicating freedom
from “unjustified artificial radioactive contamination of the terres-
trial, maritime and aerial environment”. New Zealand pleaded wide
considerations of freedom from harm.

New Zealand asked for different remedies from Australia. New Zea-
land sought only a declaration that French conduct constituted a
violation of New Zealand’s rights in international law — it included
conduct past and future.

New Zealand alleged different injury from that argued by Australia.

New Zealand took a different approach to the conduct of its legal
argument.
416 REQUEST FOR AN EXAMINATION (DISS. OP. PALMER)

(f) Each country took different approaches to the French reservation to
compulsory jurisdiction of 20 May 1966.

(g) Australian concessions on the reliance on the General Act were not
shared by New Zealand.

101. The Order of the Court also relies upon the argument that France
conducted 134 underground nuclear tests without New Zealand ever
having claimed that the basis of the Judgment had been affected. New
Zealand’s record of consistent opposition to French testing in that regard
is set out at paragraphs 14-23 of this opinion. Further, it is submitted
that the argument made by New Zealand that the situation developed
gradually is persuasive in this respect. It is the cumulative effect of events
that is determinative. Paragraph 63 itself is not limited as to time. It
comes into effect only when matters which affect the basis of the Judg-
ment have crystallized.

102. For the above reasons it is suggested that the decision to treat the
New Zealand and Australian cases as identical in legal terms is unsound.
It was unsound in 1974 and it does not follow that the Court intended
then to limit paragraph 63 of its Judgment to circumstances that would
be identical to Australia’s despite the use of similar language. The context
is important.

Wider Issues

103. The nature of the judicial choice between the opposing legal posi-
tions in this case is stark partly because of the way the case was argued
and partly because of the unprecedented nature of the proceeding. The
answer reached depends as much upon implicit judgments concerning the
proper scope of the judicial role as upon the detailed reasoning by which the
result is reached. Law is a human contrivance designed to advance human
purposes. Public international law has traditionally been concerned with
the relations between States and States were often regarded in the past as
its only subjects. But things change and there are signs that the doctrine of
State sovereignty upon which so much of the edifice of public international
law rests is eroding: The opportunity offered in a case like the present
one is to take a wider perspective. It should be remembered that as long
ago as 1958 Dr. C. W. Jenks wrote in The Common Law of Mankind:

“International law can no longer be adequately or reasonably
defined or described as the law governing the mutual relations of
States, even if such a basic definition is accompanied by qualifica-
tions or exceptions designed to allow for modern developments; it
represents the common law of mankind in an early stage of devel-
opment, of which the law governing the relations between States is
one, but only one, major division.” (P. 58.)

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104. One of the signal weaknesses of international law is the fact that
the jurisdiction of this Court rests at bottom on the consent of the States.
Only about one-third of nations accept the compulsory jurisdiction of
this Court under Article 36 (2) of the Statute of the International Court
of Justice. In general, the most powerful nations are not among the
strongest adherents of compulsory jurisdiction for the Court. The Court
is reminded of this fact in the letter dated 28 August 1995 addressed to
the Registrar of the Court by the Ambassador of the French Republic to
the Netherlands in which the following paragraph appears:

“The jurisdiction of the International Court of Justice rests on the
consent of States. In the absence of the prior consent of France, the
requests of New Zealand both as regards the principal request and
as regards the indication of provisional measures are thus manifestly
inadmissible.”

Yet as Professor E. Lauterpacht remarks “some cracks in the edifice are
developing” (Aspects of the Administration of International Justice, 1991,
p. 23).

105. Arguments about consent and the logic of the situation in which
the Court finds itself have in my opinion caused the Court to be cautious
in the past, sometimes unnecessarily. The decision of the majority in this
case in 1995 follows the cautious approach. Against that approach it
needs to be borne in mind that notwithstanding the fundamental differ-
ences between international law and municipal law international law is
widely obeyed on the whole. So concern that the basis of the system may
be consensual is not a reason for failing to decide principles of interna-
tional law when they are presented and properly fall to be decided. As
Professor Louis Henkin wrote in How Nations Behave — Law and
Foreign Policy (2nd ed., 1979, p. 47): “It is probably the case that almost
all nations observe almost all principles of international law and almost
all of their obligations almost all of the time.”

106. But it must be accepted at once that the Court cannot go off on
frolics of its own. It must maintain its credibility in the eyes of States who
do not on the whole relish the prospect of third party adjudication which

“they..cannot control. The Court has an obligation in my opinion to
maintain itself in the tension between principle and practicality. In this it
occupies a role not unfamiliar to domestic tribunals imbued with wide
constitutional powers, such as the Supreme Court of the United States.
(See generally Alexander M. Bickel, The Least Dangerous Branch, 1962.)
Yet courts like that one choose their cases, this Court cannot. States set
the Court’s agenda, not the Court. And this Court does not have avail-
able to it the filtering devices available to the Supreme Court of the
United States.

107. The Court has a responsibility to declare, develop and uphold
international law. But it must be mindful of the limits of law. In disputes

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that involve large political elements it will need to be particularly vigilant
to avoid over-reaching itself, while at the same time facing up to the fact
that disputes between States almost always involve a high political ele-
ment. It needs to be borne in mind, however, that the fact that the testing
of nuclear weapons gives rise to big political disputes does not mean that
aspects of the dispute cannot be dealt with by the international legal
process.

108. In such circumstances as the present resort to techniques for not
deciding cases by other means may be found; to scrutinize jurisdictional
arguments and technical arguments with a favourable eye in order to
avoid making pronouncements in an area where it is suspected nations
may not observe the terms of judgments of the Court or acceptance of
the Court’s position will be imperilled. These are hard judgments to
make. But the consequences of never taking them on such matters as the
present one will be to retard progress in the development of international
law.

109. For this Judge, the range of judicial choice for this Court is well
summed up by Sir Gerald Fitzmaurice in The Law and Procedure of the
International Court of Justice:

“There are broadly two main possible approaches to the task of a
judge, whether in the international field or elsewhere. There is the
approach which conceives it to be the primary, if not the sole duty of
the judge to decide the case in hand, with the minimum of verbiage
necessary for this purpose, and to confine himself to that. The other
approach conceives it to be the proper function of the judge, while
duly deciding the case in hand, with the necessary supporting
reasoning, and while not unduly straying outside the four corners of
the case, to utilize those aspects of it which have a wider interest or
connotation, in order to make general pronouncements of law and
principle that may enrich and develop the law.

If it be asked which of these two attitudes is the better, the answer
may well be ‘both’, or at any rate that each is defensible; but clearly
much depends on the circumstances. The sort of bare order or find-
ing that may suit many of the purposes of the magistrate or county
court judge will by no means do for the Court of Appeal, the House
of Lords or the Judicial Committee of the Privy Council, and their
equivalents in other countries. International tribunals at any rate
have usually regarded it as an important part of their function, not
only to decide, but, in deciding, to expound generally the law having
a bearing on the matters decided.” (Pp. 647-648.)

110. My own approach falls clearly in the category that it is necessary
for the International Court of Justice to develop the law and expound it.
The Court should deal with all the legal issues and given the nature of
international law and the absence of a legislature, clarification and
advancement of the law is peculiarly within this Court’s responsibility.

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CONCLUDING OBSERVATIONS

111. The nature of the dispute between France and New Zealand has
been apparent for the whole period spanned by this case in this Court,
except between 1991 and 1995 when France observed a moratorium on
testing. The dispute is palpably about nuclear testing in the Pacific in all
its forms. The official citation for this case was and remains Nuclear
Tests (New Zealand v. France) case. Despite that fact, the Court in its
1995 judgment has chosen to draw a fundamental distinction between
atmospheric testing and underground testing.

112. It might have been thought by some that the present application
was an appropriate occasion upon which to push out the boat from the
shore a little towards the incoming tide of international environmental
jurisprudence. The Court failed to decide the issue in 1974 and it has
failed again in 1995.

113. The 1974 Judgment created widespread controversy in the inter-
national legal literature, some learned commentators regarding it as
imaginative and innovative, others called it a landmark of political
caution, weak in law and logic. A third group thought the decision a
lost opportunity for dealing with international environmental law.
(D. P. Verma, “The Nuclear Tests Cases: An Inquiry into the Judicial
Response of the International Court of Justice”, 8 South African Year-
book of International Law 20 (1982); Edward McWhinney, The World
Court and the Contemporary International Law-Making Process, 1979;
R. St. J. Macdonald and Barbara Hough, “The Nuclear Tests Case
Revisited”, 20 German Yearbook of International Law 337 (1977);
Jerome B. Elkind, “Footnote to the Nuclear Tests Cases: Abuse of Right
— A Blind Alley for Environmentalists”, 9 Vanderbilt Journal of Trans-
national Law 57 (1976); Thomas M. Franck, “Word Made Law: The
Decision of the I.C.J. in the Nuclear Test Cases”, 69 American Journal of
International Law 612 (1975).) A similar range of reaction to the Court’s
treatment of the present phase of the case is predictable.

114. In its essence this case has to be understood as an environmental
case. New technology has given humankind massive ability to alter the
natural environment. The consequences of these activities need to be
carefully analysed and examined unless we are to imperil those who come
after us. It is a concern well known to international law (see generally
E. B. Weiss, In Fairness to Future Generations, 1989). As Professor Edith
Brown Weiss points out:

“We, as a species, hold the natural and cultural environment of
our planet in common, both with other members of the present gen-
eration and with other generations, past and future. At any given

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time, each generation is both a custodian or trustee of the planet for
future generations and a beneficiary of its fruits. This imposes obli-
gations upon us to care for the planet and gives us certain rights to
use it.” (P. 17.)

Further, the special problems created for the law by nuclear energy and
tests flow from the ultrahazardous nature of nuclear energy and nuclear
explosions (A. Boyle, “Nuclear Energy and International Law: An Envi-
ronmental Perspective”, 60 British Year Book of International Law 257
(1989); G. Handl, “Transboundary Nuclear Accidents: The Post-
Chernobyl Multilateral Legislative Agenda”, 15 Ecology Law Quarterly
203 (1988).)

115. The issues generated for the environment by nuclear testing and
nuclear accidents demonstrate that States have been unwilling to act as
good stewards for or guardians of the environment. The experience
suggests that environmental rights ought to be established at the inter-
national level and be enforceable there.

116. If in 1995 this Court had been prepared to enter into the next
phase of the case, the dispute may at last have been put to rest. For far
too long this issue has given rise to substantial, even painful difficulties in
the relations between France and New Zealand. The two functions of this
Court as I understand it are to act as an institution to settle disputes and
to clarify and develop the law. Regrettably the dispute has not been put
to rest and the law has not been developed.

117. In this case the Court had an opportunity to make a contribution
to one of the most critical environmental issues of our time. It has
rejected the opportunity for technical legal reasons which could in my
opinion have been decided the other way, fully consonant with proper
legal reasoning. It is true that much of the jurisdiction of this Court rests
upon the consent of States. It is true that France has withdrawn the
consent that allowed the 1974 case to be heard. That is not an adequate
reason to refrain from re-opening the case, a possibility that the Judg-
ment in 1974 expressly contemplated. The case is one the Court had the
power to decide then; it has the power to decide it now. But the Court
refuses to decide it.

118. The position of an ad hoc judge on this Court is an unusual one
and the nature of the obligations imposed on such a judge have been a
source of consideration for me. The Statute provides, in Article 31 (6),
that such judges “shall take part in the decision on terms of complete
equality with their colleagues”. In this case I feel the institution served a
useful purpose of bringing to the Court a perspective of one who lives in
the region of the world with which the application deals. But I have not
felt that my position on the Court is a representative one. Its utility was
in providing another perspective and some more detailed familiarity with
the background. With respect, I adopt the formulation of an ad hoc
judge’s office put forward by Judge ad hoc Lauterpacht in Application

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of the Convention on the Prevention and Punishment of the Crime of
Genocide, Provisional Measures, Order of 13 September 1993:

“He has, I believe, the special obligation to endeavour to ensure
that, so far as is reasonable, every relevant argument in favour of the
party that has appointed him has been fully appreciated in the
course of collegial consideration and, ultimately, is reflected —
though not necessarily accepted —- in any separate or dissenting
opinion that he may write.” (C.J. Reports 1993, p. 409, para. 6.)

119. Finally, let me add that I have had the opportunity of reading the
elegant and persuasive dissenting opinion of my colleague Judge Weera-
mantry. I agree with it.

(Signed) Sir Geoffrey PALMER.

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