317

DISSENTING OPINION OF JUDGE WEERAMANTRY

TABLE OF CONTENTS

INTRODUCTION

Unusual nature of New Zealand’s Request
Background to the Court’s Judgment in 1974
Questions of jurisdiction and admissibility

SOME PRELIMINARY QUESTIONS

Is the 1974 case dead?
Is paragraph 63 self-contradictory?
Can New Zealand’s Request be disposed of administratively?

CoRRESPONDENCE BETWEEN NEW ZEALAND’S COMPLAINTS IN 1973 AND 1995

New Zealand’s complaints in 1973
The state of knowledge in 1974
New Zealand’s present grievances

INTERPRETATION OF PARAGRAPH 63

The terms of paragraph 63

The Court’s formulation of the bases of the 1974 Judgment

The concentration in 1974 upon atmospheric tests

The substance of the grievance and the means by which it is caused
Some principles of interpretation

Significance of opening sentence of paragraph 63

Significance of the last sentence of paragraph 63

The special need for a precautionary clause

INTERIM MEASURES

The grant of interim measures
The approach of the Court to preliminary measures in 1973

SOME RELEVANT LEGAL PRINCIPLES

The inter-temporal principle

The concept of intergenerational rights

The precautionary principle

Environmental Impact Assessment (EIA)

The illegality of introducing radioactive waste into the marine environ-
ment

The principle that damage must not be caused to other nations

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318 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

Has New ZEALAND Mabe Out A Prima FACIE Case? 347
The approach to the question of proof 347
The scientific fact-finding missions 348

The nature of underground nuclear tests 350
The structure of Mururoa and Fangataufa atolls 351
The impact upon the atolls of previous explosions 352

The impact upon Mururoa of the proposed new series of explosions 352

The internationally accepted safety standards for the storage of radio-

active wastes 353

The danger to marine life of the release of radioactive substances
into the ocean 355
The possibility of accident 357
The position of the intervenors 358
CONCLUDING REMARKS 359

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319 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

This is a Request by which New Zealand seeks the continuation of the
proceedings it filed in 1973. New Zealand is not entitled to commence
fresh proceedings against France in view of the steps taken by France,
since the institution of the case in 1973, to withdraw the bases of jurisdic-
tion under which that case was filed. New Zealand’s Request for an
Examination of the Situation can only be entertained by the Court if it
constitutes another phase of those earlier proceedings. The burden lies
upon New Zealand to demonstrate this.

The fundamental question before the Court in this Request is whether
the “basis of this Judgment” of this Court in 1974 has been “affected”,
for the Court in that Judgment left open to New Zealand the right to
approach this Court again in that event. That question can only be
decided by a two-fold process — an examination of the meaning of the
term “basis of this Judgment” and an examination of such factual
material as New Zealand places before the Court to show that that
“basis” has been “affected”.

I regret that the Court has chosen to determine the entire Request,
involving, though it does, matters of profound moment to the entire glo-
bal community, upon what seems to me to be an unduly limited construc-
tion of the phrase “basis of this Judgment”, without a determination on
the second question essential to its decision, namely, whether New Zea-
land has made out a prima facie case on the facts that such basis has been
affected. It seems to me the two questions are integrally linked. As is so
often the case with questions affecting the competence of the Court, a
decision in this case can only be arrived at through an interaction of the
legal and factual elements involved (see Ibrahim F. I. Shihata, The Power
of the International Court to Determine Its Own Jurisdiction, 1965,
p. 299).

The phrase “basis of this Judgment” necessitates an enquiry into the
grievance which brought New Zealand to the Court, the object of the
proceedings, the remedies contained in the Judgment, the basis of facts
and knowledge underlying the Judgment, the reasoning or ratio decidendi
of the Judgment and, in short, the overall context in which the operative
words are set. My conclusion, having regard to all these matters, is fun-
damentally different from that of the majority of my colleagues. The dif-
ference between the two approaches touches the fundamentals of the
judicial process as I understand it, and this opinion contains some
necessary observations in this regard.

The ensuing opinion is an attempt to describe what I conceive to be the
correct approach to the momentous question which New Zealand’s
Request brings before the Court. In making these observations, I bear in
mind of course that the scope of New Zealand’s present Request is cir-
cumscribed within the limits of the initial pleadings on which that case
commenced and that New Zealand can claim no more now than it
claimed then. No grievances, no reliefs, no orders can be pleaded or

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320 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

sought other than those which are strictly within the limits of that origi-
nal Application.

INTRODUCTION

Unusual Nature of New Zealand’s Request

This Request for an Examination of the Situation is probably without
precedent in the annals of the Court. It does not fit within any of the
standard applications recognized by the Court’s rules for the revision or
interpretation of a judgment rendered by the Court. It is an unusual
request generated by an unusual provision contained in the Court’s Judg-
ment of 1974.

Paragraph 63 of that Judgment reads 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.” (Nuclear Tests (New
Zealand v. France), I C.J. Reports 1974, p. 477.)

Paragraph 63 was a precautionary provision which the Court included
in its Judgment when it decided to act upon a unilateral declaration by
France that it would discontinue atmospheric testing of nuclear weapons
— a declaration which it considered to be legally binding. The Court
used its undoubted powers of regulating its own procedure to devise a
procedure sui generis.

This procedure went beyond the provision for interpretation of a judg-
ment contained in Article 60 of the Court’s Statute and the provision for
revision contained in Article 61. The Court no doubt considered that in
the circumstances before it, it needed to go beyond either of those pro-
visions. It was seeking to meet a need different from the need for inter-
pretation or for revision of the Judgment. It was also opening the door to
New Zealand in a manner which reached beyond the period of limitation
attached to applications for revision.

The rationale of the Court’s action was totally different from the
rationale underlying revision, for revision involves an alteration or modi-
fication of the Judgment, whereas the Court’s action was aimed at
preserving the Judgment in its full integrity, in the event that some event
had occurred which undermined the basis of the Judgment. Moreover, had

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revision been its intention, there was no necessity for the Court to make
any special provision as the Statute would have operated automatically.
J therefore see no merit in the submission that an application under
paragraph 63 is an application for revision under another guise. The two
procedures are totally different in conception, nature and operation.

In devising a special provision dealing with a situation that could
arise in the future and affect the basis of the Judgment, the Court was
demonstrating its anxiety to preserve intact the basic assumptions on
which the Judgment was constructed. We must conclude that the Court
considered the matter too important to be left unprovided for.

The Court, well aware of the provisions in its established procedure
relating to interpretation and revision, was not indulging in an exercise in
tautology. It was devising an unprecedented procedure to meet an un-
precedented situation.

Background to the Court’s Judgment in 1974

The Court accepted the French declaration as reducing New Zealand’s
claim to one which no longer had any object. Indeed, in the Court’s view,
it had caused the dispute to disappear.

One can be in no doubt that the Court’s understanding — and indeed
New Zealand’s — at the time was that the damage complained of by New
Zealand would come to an end in view of the undertaking by France.
Atmospheric tests were the only tests then being conducted by France in
the Pacific. An unequivocal indication was given that they would be
ended. To all appearances the dispute was therefore at an end.

Yet the Court was dealing with a matter of the utmost importance to
the fundamental rights of the people of New Zealand. It did not leave
open any possibilities for circumstances yet unseen to undermine the
basis of its Judgment, nor did it leave New Zealand defenceless in the
protection of the very rights whose protection had brought it before the
Court in the first instance. Though fully satisfied that the objective of
New Zealand had been attained and the threats to its rights overcome, it
still took the precaution of introducing into its Judgment this clause of its
own devising.

It is under that clause that New Zealand requests the Court to consider
the situation in the light of its assertion that the current underground
nuclear tests produce the same kind of radioactive contamination of its
environment as it complained of in 1973.

Questions of Jurisdiction and Admissibility

In the case instituted in 1973, the Court did not proceed to a finding on
questions of jurisdiction and admissibility. The Order of 22 June 1973

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indicating certain provisional measures against the Parties was made on
the basis that:

“it cannot be assumed a priori that such claims fall completely out-
side the purview of the Court’s jurisdiction, or that the Government
of New Zealand may not be able to establish a legal interest in
respect of these claims entitling the Court to admit the Application”
(Nuclear Tests (New Zealand v. France), Interim Protection, I.C_J.
Reports 1973, p. 140, para. 24).

There was thus no determination on questions of admissibility or juris-
diction prior to that Order, nor was there a finding on these matters at
any subsequent stage.

For the reasons set out above, this opinion does not in any way touch
upon the merits of New Zealand’s claim. It will confine itself initially to
examining whether the basis of the 1974 Judgment has been in any way
affected. It will be necessary for a determination of this question to refer
to some matters of fact set out in New Zealand’s Request and Applica-
tion. But if these are referred to, they are only for an examination of the
question whether there is prima facie a situation which reactivates the
1973 case through the key provided by paragraph 63 of the 1974 Judg-
ment. It is impossible to determine whether the basis of that Judgment
has been affected without some reference to such questions of fact.

SOME PRELIMINARY QUESTIONS

Is the 1974 Case Dead?

One of the basic positions of France is that the Judgment of 1974 is
res judicata and that the case instituted in 1973 is dead. In the picturesque
language of its counsel, this was no legal Lazarus and no one could
revive it.

France also calls in aid, in support of this view, the fact that no aca-
demic writing and no publication of the Court lists New Zealand’s case
against France as a case that is pending. Rather, it is listed even in official
Court publications among cases that have been disposed of.

In addressing this question, certain incontrovertible propositions must
first be noted:

— the Court itself has stated in the Judgment that New Zealand may
come back to the Court in certain eventualities, however one may
define them;

— the Court specially fashioned this procedure to meet the particular
needs of this case;

— this right is given without any limitation of time;

— no academic publications, nor indeed any official publications of the
Court, can prevail against the express words of the Judgment itself;

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— the Court was within its undoubted inherent powers of regulating its
own procedure in making this provision in the Judgment;

— the Court was concerned with possible future events which might
undermine the basis of the Judgment;

— the Court deliberately chose a procedure other than revision or inter-
pretation.

The argument that the case was dead is consequently one which seems
to fly in the face of the Court’s own words which kept it alive in certain
eventualities. Far from being a revisionary procedure in another form,
paragraph 63 is an independent procedure standing in its own right.
Devised by the Court and carrying the full stamp of the Court’s author-
ity, its express words contradict the contention that the case is dead.

Paragraph 63 enables the case to be reopened by New Zealand if, but
only if, the conditions it specifies be met — namely, that the basis of the
Judgment has been affected. If that paragraph comes into operation, the
case is revived, New Zealand’s Request must be entertained by the Court
and New Zealand’s request for provisional measures must be considered.
New Zealand would be approaching the Court under the very authority
of the Court itself. New Zealand’s right to approach the Court and the
validity of New Zealand’s Request to this effect cannot in these circum-
stances be in doubt. The Court would then also have to consider the
interventions by Australia, Samoa, Solomon Islands, the Marshall Islands
and the Federated States of Micronesia.

If, on the other hand, New Zealand does not have the key with which
to open the door of paragraph 63, its Request must be dismissed and the
occasion for taking the other steps specified above does not arise.

Whether New Zealand has that key — i.e., whether New Zealand is
able to show that the basis of the Judgment is affected — is the crux of
the matter before the Court.

Is Paragraph 63 Self-contradictory ?

ge

It was suggested in the course of the argument that the words “in
accordance with the provisions of the Statute” restrict New Zealand to
the specific forms of approaching the Court which are provided in the
Statute. I do not read these words so narrowly, for such a reading would
negate the right which the Court was expressly giving to New Zealand by
paragraph 63.

I read these words as meaning rather that the Court was ensuring that
New Zealand must follow the usual procedural formalities required of
any application made by any party to the Court.

J cannot subscribe to the view that the Court was giving New Zealand
a right in the earlier part of that sentence which it was immediately taking

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away by restricting New Zealand’s application to existing Court pro-
cedure which did not indeed provide for any such application. The
Court did not contradict itself in this manner, and to suggest as much
is to do little credit to the remarkable foresight exhibited by the Court
in providing New Zealand with the right which it did.

The Court’s first task therefore is to examine whether New Zealand
has brought before it circumstances which affect the basis of the 1974
Judgment. If it has, the Court must then proceed, in terms of its own
Judgment, to examine those circumstances with the greatest of care in
order to determine whether a situation has arisen which requires the
Court to grant to New Zealand the relief it seeks.

Can New Zealand’s Request Be Disposed of Administratively ?

It has been contended by France that this matter should be disposed of
administratively. It is said in support of this position that New Zealand is
bringing a fresh matter to the Court; that New Zealand is approaching
the Court on the basis of a case that is dead; that there is no legally valid
application before the Court; and that indeed the matter can be dealt
with administratively on the basis of a manifest and patent lack of juris-
diction.

France submitted that the Court should take a decision proprio motu
without any need for a public hearing. In support of its contention that
the matter should be disposed of by means of an order without hearings,
France relied upon the cases of Treatment in Hungary of Aircraft and
Crew of United States of America (LC.J. Reports 1954, pp. 101 and
105); Aerial Incident of 4 September 1954 (I. C.J. Reports 1958, pp. 160-
161); Aerial Incident of 7 November 1954 (I. C.J. Reports 1959, p. 278)!.

Those were cases of manifest and patent lack of jurisdiction where it
was not possible for the Court to take any procedural steps, and are dis-
tinguishable from the present case, where New Zealand comes to the
Court directly within the terms of an express provision of the Court’s
own Judgment. The Court needs to consider whether New Zealand is
correct in its contention that the basis of the 1974 Judgment ts affected by
the current nuclear tests. If it is not, New Zealand would have no case,
but if it is, there is a matter to be seriously considered. The decision

' In 1973, likewise, the position of France, as stated in a letter to the Court delivered on
16 May 1973, was that the Court was “manifestly not competent” to deal with the dispute,
and that the Court should drop the matter from its docket. The grounds included the
argument that the dispute concerned an activity connected with national defence and was
thus excluded from the jurisdiction of the Court by the third French reservation to its
declaration of acceptance of the compulsory jurisdiction of the Court. The Court rejected
the French contention that the absence of jurisdiction was manifest (Nuclear Tests (New
Zealand v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973,
p. 138).

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325 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

whether there is or is not such a matter is obviously one which cannot be
taken behind the closed doors of purely administrative orders, without a
public hearing.

It would be contrary to the entire scheme of the administration of jus-
tice, as conceived in its Statute and practised by the Court, for the Court
to dismiss such an application im camera, without a public hearing and
even without the benefit of an ad hoc judge from the country in question
— as France invited the Court to do. Such procedures, available in cir-
cumstances where there is a patent, complete and manifest lack of juris-
diction, are inapplicable to the present situation.

If, indeed, New Zealand makes out a prima facie case that the basis of
the 1974 Judgment has been affected by supervening events, New Zea-
land has clearly the right to approach the Court, in terms of the Court’s
own Judgment, for a judicial determination of the situation arising from
the resumption of nuclear testing. The Court will of course deny such
relief if, upon a fuller examination of the matter, it is not satisfied that
New Zealand’s case has been substantiated. But it can only do so judi-
cially. |

The matter has, happily, been heard by the Court at a public hearing,
at which both Parties have presented their submissions, and both Parties
have been afforded the opportunity of a reply. In following this pro-
cedure, the Court has given due effect to such principles as audi alteram
partem which are integral constituents of the rule of law and justice.

Moreover, under Article 79 (1) (Article 67 (1) at the time of the 1973
case) and Article 79 (7) (Article 67 (7) in 1973) of the Rules of Court,
New Zealand was clearly entitled to a judicial determination of these pre-
liminary objections to its application.

CORRESPONDENCE BETWEEN NEW ZEALAND’S
COMPLAINTS IN 1973 AND 1995

New Zealand’s Complaints in 1973

To understand the basis of the Judgment, which New Zealand claims
has been affected, it is necessary, preliminarily, to look at New Zealand’s
complaint to the Court in 1973.

New Zealand had come to the Court with a complaint that it was suf-
fering damage of five specified descriptions from the radioactive fallout
generated by French nuclear explosions i in the Pacific. That damage was
specified as follows:

“The rights to be protected are:

(i) 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;

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326 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

Gi) 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;

(iti) 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.

The fact that further nuclear tests at the French Pacific Test Centre
will aggravate and extend the dispute between New Zealand and
France is one of the grounds on which New Zealand seeks protec-
tion of the foregoing rights. In addition and independently, New
Zealand has the right to the performance by France of its undertak-
ing contained in Article 33 (3) of the General Act for the Pacific
Settlement of International Disputes to abstain from any action
whatsoever that may aggravate or extend the present dispute.” (2. C.J.
Pleadings, Nuclear Tests, Vol. II, Request for the Indication of
Interim Measures of Protection, p. 49, para. 2.)

It will be noticed that in the entirety of this paragraph, there is no
limitation to atmospheric tests, but that the reference throughout is in
general terms to nuclear tests and nuclear testing.

Of particular significance, in the light of the present Request, were the
identification of the dispute in paragraph 17 of the 1973 Application as
including the effects of fallout on the “natural resources of the sea”
(ibid., p. 6), and the reference in paragraph 22 to the freedom to exploit
the resources of the sea and the seabed, and the continued pollution of
the maritime environment of New Zealand “beyond the limits of national
jurisdiction” (ibid., p. 7; emphasis added).

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The prayer of New Zealand was no less clear in its statement of the
objectives of the proceedings, for it said that New Zealand asks the Court
to adjudge and declare:

“That the conduct by the French Government of nuclear tests in
the South Pacific region that give rise to radioactive fallout consti-
tutes a violation of New Zealand’s rights under international law,
and that these rights will be violated by any further such tests.”
(C.J. Pleadings, Nuclear Tests, Vol. IL, Application, p. 9; emphasis
added.)

So, also, paragraph 10 of New Zealand’s Application:

“The New Zealand Government will seek a declaration that the
conduct by the French Government of nuclear tests in the South
Pacific region that give rise to radioactive fallout constitutes a viola-
tion of New Zealand’s rights under international law, and that these
rights will be violated by any further such tests.” (/bid., p. 4; empha-
sis added.)

The Applicant’s Memorial in paragraph 5 describes this request for a
declaration as “the principal issue before the Court” (ibid., p. 146).

What was the gravamen of New Zealand’s complaints? Was it the
infringement of the various rights thus specified as resulting from nuclear
tests, or was it atmospheric tests and atmospheric tests alone?

It seems reasonable to conclude that New Zealand’s complaint to the
Court was in relation to the alleged infringement of its rights under
international law, which resulted from unjustified artificial radioactive
contamination of its terrestrial, maritime and aerial environment. The
means used at that stage to bring about this result was atmospheric tests
and New Zealand naturally complained against these. The means was
subsidiary to the central fact of injury. It was in the injury that the
complaint was grounded. The injury was the larger context within which
the specific act causing damage was set.

Nowhere in the pleadings, submissions or Judgment is there the slight-
est suggestion of any acceptance by New Zealand of the principle that the
same damage would be tolerated without complaint, if caused by nuclear
explosions in another medium. It seems unreasonable to suggest that
New Zealand would have been quite content to endure damage by radio-
active contamination so long as it did not occur from atmospheric tests.

Nor could the Court have endorsed the view that the dispute had dis-
appeared, or that the claim by New Zealand no longer had any object if
there was the suggestion of a possibility of radioactive contamination
resulting from the underground tests. Nor could it have viewed France’s
undertaking as a reservation, even by remotest implication, of the right

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to cause nuclear contamination of the environment provided it was not
caused by atmospheric testing.

The State of Knowledge in 1974

The state of knowledge at the time is relevant. The belief of the 1960s
that underground testing was safe is reflected in the terms of the
Partial Test Ban Treaty of 1963 (to which the United States of America,
the United Kingdom and the Union of Soviet Socialist Republics were
parties), which banned nuclear weapons tests in the atmosphere, in
outer space and underwater. Tests in these media were thought to raise
the environmental concerns uppermost in the minds of the contracting
States, but underground testing was thought to have “the potential
for essentially total confinement of the radioactive products formed”
(A. C. McEwan, “Environmental Effects of Underground Nuclear Explo-
sions”, in Goldblat and Cox (eds.), Nuclear Weapon Tests: Prohibition
or Limitation ?, 1988, p. 83).

Even two years after the 1974 Judgment, a major treaty was entered
into which displayed an international expectation that underground
nuclear explosions were safe. The Peaceful Nuclear Explosions Treaty,
signed on 28 May 1976 between the United States and the Soviet Union,
provided for underground nuclear explosions for peaceful purposes, as
this seemed to meet the need for “safe” nuclear energy for major con-
struction works. Goldblat and Cox, in the study already referred to,
observe:

“For many years, peaceful nuclear explosions (PNEs) had been
seen as potentially valuable activities for a variety of purposes. In
the United States, the so-called.Plowshare Programme set out to
explore possible uses of PNEs for digging canals or for other indus-
trial ends, such as gas stimulation or oil recovery from otherwise un-
economic deposits. However, progress was slow, given the necessity
of systematic tests using both conventional and nuclear explosives,
because the need to minimize the risks required careful experimenta-
tion. By the mid-1970s, industrial interest in the use of underground
nuclear explosions for non-military purposes had waned in the
USA, while public concern over possible environmental hazards had
increased. These hazards include — in addition to the release of
radioactive material — shock wave effects which may occur close to
the points of detonation. The programme was terminated in 1977,
shortly after the signing of the PNET.” (Jozef Goldblat and David
Cox, “Summary and Conclusions”, ibid., p. 13; emphasis added.)

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The expectations of the early 1970s that underground tests provided a
safe alternative were obviously belied by later experience. As McEwan
observes:

“Venting to the atmosphere has, however, occurred for a number
of underground tests, other than those associated with Plowshare- .
type projects, and more minor sub-surface ventings may occur more
commonly.” (Op. cit., p. 83.)

Here perhaps lies the key to understanding the readiness of the Court
and the Parties in 1974 to welcome underground tests as a means of
cessation of radioactive harm to New Zealand, and as eliminating its
grievances.

Knowledge and experience not available in 1974 are available now,
placing upon the Court the duty, in the interests not only of New Zea-
land but of the world community generally, to use the power it reserved
to itself in 1974 to re-examine the situation if the basis of its Judgment
has been affected. If what seemed safe in 1974 now reveals its hazards in
a manner not known or expected then, there is a responsibility lying upon
the Court to take note of this change in the fundamental assumptions
underlying its Judgment of 1974.

If the Court had then the knowledge we have now of the possibility of
leakage due to fissures, porosity, water seepage, subsidences and sheering
off of parts of the atoll, it would be strange indeed if the Court commit-
ted New Zealand to this danger, and considered that, despite so exposing
New Zealand, it was fully removing New Zealand’s grievance of radio-
active damage. That would be a total non sequitur. It would also lead to
the apparent absurdity of the Court endorsing radioactive contamination
so long as it was committed by means other than atmospheric testing.

Another strange result would be that, as New Zealand submitted, the
Court would have been building into its Judgment a massive escape
clause for France — a clause to the effect that France reserved the right
to conduct unsafe testing. It was quite clear in all the circumstances that
the assurance of underground testing which France was offering was
understood as an assurance of a safe for an unsafe method of testing. Just
as the atmospheric testing was known to be unsafe, the underground test-
ing was thought to be safe. When France gave the assurance that it would
stop the atmospheric testing and that it was ready to move to under-
ground testing, it was a statement which in all the circumstances of the
case was understood to be a shift to a procedure which obviated the
dangers of which New Zealand complained.

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New Zealand's Present Grievances

New Zealand now tells the Court that the self-same type of damage it
complained of in 1973, namely, radioactive contamination resulting from
nuclear explosions by France in the Pacific, does now occur from under-
ground testing. It says that these proposed underground tests will infringe
the rights of New Zealand in the same way as the atmospheric tests did in
1973.

According to the material placed before the Court by New Zealand,
underground tests produce all the five species of damage specified in para-
graph 2 of its Request for the Indication of Interim Measures of Protec-
tion, dated 14 May 1973: namely, (i) violation of the right to be free of
radioactive fallout!; Gi) violation of the right to the preservation from
unjustified, artificial radioactive contamination of the terrestrial, mari-
time and aerial environment; (iii) violation of the right that New Zealand
air space and territorial waters be free of the entry of radioactive
material; (iv) the apprehension, anxiety and concern resulting from such
entry; (v) violation of the right to exploitation of the resources of the sea
without interference or detriment resulting from nuclear testing.

The gist of New Zealand’s complaint in 1973 was that damage or harm
from radioactivity in the five ways it specified was being caused by
France. The only way in which it was then being caused was by atmos-
pheric testing of nuclear weapons.

The gist of New Zealand’s complaint today is that the same type of
damage or harm from radioactivity is being caused by France. It is
caused, as alleged before, by the detonation of nuclear weapons in the
Pacific, but today the venue is underground, where formerly it was
atmospheric. New Zealand’s position, however, is that the damage is the
same; the infringement of New Zealand’s rights is the same; the agency
of physical causation is the same, namely, the explosion of nuclear weap-
ons. The only difference is that that agency of causation is detonated not
above ground but underground. Hence the Request to the Court for
protection against the same damage from which it sought protection in
1973.

Hence, also, appears the wisdom of the Court’s precautionary provi-
sion in 1974 enabling New Zealand to come before the Court again.

! “Fallout” is not limited to atmospheric debris. The Oxford English Dictionary defines
“fallout” as “Radioactive refuse of a nuclear bomb explosion” (2nd ed., Vol. V, 1989,
p. 696).

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331 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)
INTERPRETATION OF PARAGRAPH 63

The Terms of Paragraph 63

How does one ascertain the “basis of a judgment”? The phrase seems
to go to the heart of the judgment, the reasoning on which it proceeds,
the foundation on which it rests. To search for the basis of a judgment,
does one look only at what the judgment expressly decrees, or does one
have regard also to such matters as the context in which the judgment
was delivered, the harm or mischief complained of, the request of parties
to which that judgment was an answer, and the object of the proceed-
ings? It seems quite clear that a proper and legally sustainable approach
to this question requires a consideration of the Court’s order or decree,
not in isolation but in context.

It is necessary now to look at the carefully drawn language used by the
Court to confer this right on New Zealand.

How would the expression “basis of the judgment” be understood
according to the ordinary significance of language? And what does it
mean in the special context of this case?

While the nature of a judgment’s commands or prohibitions are impor-
tant, so also is the basic object which it sought to achieve. It would strain
both language and juridical principle to hold that the basis of a judgment
can be found in its commands or prohibitions alone, considered apart
from its reasons, or in its reasons alone, considered apart from its com-
mands and prohibitions. As in all legal interpretation, it must be an inter-
pretation in context.

Some insights may also be gained from discussions of the meaning of
the expression ratio decidendi, which one examines in order to ascertain
the basis of a judgment. The volumes written on what constitutes the
ratio decidendi of a judgment (see, for example, Cross and Harris,
Precedent in English Law, 4th ed., 1991) contain various formulations of
its meaning, but all different versions go back to the central question of
law or principle from which the eventual orders made in the case proceed.
The orders, or in this case the means prohibited, are part of the judg-
ment, but clearly not the basis of the judgment.

What is this central question of principle in the 1974 Judgment? It
must surely be that New Zealand is entitled to protection against harm
caused by radioactivity from the explosion of nuclear weapons. It surely
cannot be that New Zealand is entitled to protection against harm caused
by radioactivity so long as such radioactivity proceeds from atmospheric
detonations, and that New Zealand is not entitled to such protection if
the harm proceeds from underground explosions.

To make this point clearer still, suppose France had moved not to
underground explosions but to underwater explosions alongside of
Mururoa. Could anyone have claimed that this was a permissible activity
within the terms of the 1974 Judgment? It would strain language and

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332 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

credibility to argue that such was the intention of the Court. The conclu-
sion appears patently clear that the basis of the Judgment was that harm
must not be caused by nuclear tests and that New Zealand was entitled
not to be exposed to radioactive contamination from French nuclear tests
in the Pacific.

Another way of analysing the phrase is to observe that an order or
directive statement contained in a judgment constitutes only a part of a
judgment. The term “judgment” goes beyond the merely operative por-
tion of a judgment. The basis of a judgment goes deeper still into the area
of the underlying principles on which it rests, rather than the external
orders used to implement it.

As I read paragraph 63, it seems clear, in the Court’s own language,
that it was not contemplating a breach by France of its undertaking, or
of the Court’s Judgment, but that it still had some concerns that the
“substratum” of the Judgment might be affected in some way not then
foreseeable. It is a tribute to the wisdom of the Court and to its foresight
that it expressly provided for this possibility. The contrary contention,
which necessarily implies that the Court was prepared to sanction similar
damage so long as it did not occur from atmospheric testing, is clearly
untenable and does little credit to the judgment and foresight of the
Court of 1974.

The Court’s Formulation of the Bases of the 1974 Judgment

These conclusions, based on ordinary rules of interpretation, are
reinforced when one has regard to the Court’s own observations in the
Judgment itself.

The Court’s recognition of this principle of contextual interpretation
appears quite clearly from paragraph 59 of the Judgment, wherein the
Court states: “Thus the Court concludes that, the dispute having dis-
appeared, the claim advanced by New Zealand no longer has any object.”
These considerations, set out in one of the paragraphs immediately pre-
ceding the operative paragraph 63, show the context which the Court
considered relevant. In fact, that paragraph posed two very definite and
specifically formulated questions:

(a) has the dispute disappeared?
(b) has the claim of New Zealand no longer any object?

One is straight away led into the questions, “What was the dispute?”
and “What was its claim?” The dispute comprised the grievances and the
claim comprised the reliefs. The grievances appear, inter alia, from New
Zealand’s Application (para. 28) of 9 May 1973, New Zealand’s Memo-
rial (para. 190) of 29 October 1973, and in the Request for the Indication
of Interim Measures of Protection (para. 2) of 14 May 1973, which spelt

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out quite clearly the rights in respect of which it sought protection. The
reliefs, read in the context of the grievances, can only mean the cessation
of those grievances. The Court was satisfied according to its knowledge
then that with France’s undertaking the grievances came to an end and
no further reliefs were necessary.

To be more specific, the Court’s view therefore was that all the five
heads of injury mentioned by New Zealand, which formed the subject of
its dispute with France, had disappeared. If such injury had disappeared
in all its five aspects, New Zealand’s claim would surely no longer have
any object. Such was the reasoning or the ratio decidendi which led the
Court to its conclusions. Yet it considered the protection of New Zea-
land’s rights to be so fundamental that it reinforced New Zealand’s pro-
tections by inserting the precautionary provision that if the basis of the
Judgment should be affected, New Zealand may approach the Court
again.

The Concentration in 1974 upon Atmospheric Tests

Much has been made in the proceedings before us of the concentration
of New Zealand’s presentation and the Court’s Judgment upon atmos-
pheric tests. From this the inference is sought to be drawn that this was
New Zealand’s only concern.

In the first place, as already pointed out, there is a liberal reference in
the pleadings and the oral presentations to radioactive damage caused by
France in explosions in the Pacific without limitation to atmospheric
explosions.

In the second place, it must be remembered that atmospheric explo-
sions were the only French explosions then taking place in the Pacific. It
was not the province of New Zealand to speculate upon the unknown
impact upon New Zealand of hypothetical underground explosions yet to
take place in the future.

Court presentations take place upon the basis of practicalities and not
upon guesses or speculations as to the likely effect of modalities of harm
which are as yet hypothetical. The presentation of the matter in Court
naturally concentrated on the practical and immediate aspect, and it
would have been strange if it had not. The Court’s attention likewise
focused on this matter and it would have been strange if it had not.

Furthermore, if such speculation were inappropriate for the Parties, it
was even more inappropriate for the Court to engage judicially in specu-
lation upon this unknown field. It was not for New Zealand nor for the
Court to engage in speculation as to the possible effects of underground
testing which had never yet been used in a manner causing danger or
damage to New Zealand, on which no material had been placed before
the Court, and which was not the cause of the immediate damage of
which New Zealand complained. Indeed, had counsel indulged in such a

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334 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

speculative exercise, they may well have been asked to address the Court
on practicalities rather than hypotheses.

Nor did New Zealand argue its case solely on the basis of atmospheric
tests. As the Court itself observes in paragraph 29 of its Judgment, New
Zealand’s case was argued mainly in relation to atmospheric tests — nor
could the case have been argued in the light of the information then
available, except on the basis of atmospheric tests.

Dr. Finlay, the Attorney-General for New Zealand, in opening New
Zealand’s case at the oral proceedings for the Request for Interim Meas-
ures of Protection on 24 May 1973, stated at the very outset of his
submissions:

“The request relates to proceedings recently instituted by New
Zealand against France asking the Court to adjudge and declare that
the conduct by the French Government in the South Pacific region
of tests that give rise to radio-active fall-out constitutes a violation
of New Zealand’s rights under international law, and that those
rights will be violated by any further such tests.” (C.J. Pleadings,
Nuclear Tests, Vol. II, p. 100; emphasis added.)

The concentration on tests in the atmosphere, for the obvious reason
that only such tests were then being conducted, did not mean a shift away
from the central core of the case to the peripheries, or from the subject of
the grievance to the particular means by which it was caused.

It is also of interest to note that both immediately before and after the
hearings in Court in July 1974, the New Zealand Government officially
indicated that its position was wider than the cessation of atmospheric
testing.

The first statement, as recounted in paragraph 37 of the Judgment of
1974, was a Note of 17 June 1974 from the New Zealand Embassy in
Paris categorically asserting that New Zealand’s position was one of fun-
damental! opposition to all nuclear testing:

“The announcement that France will proceed to underground
tests in 1975, while presenting a new development, does not affect
New Zealand’s fundamental opposition to all nuclear testing, nor
does it in any way reduce New Zealand’s opposition to the atmos-
pheric tests set down for this year: the more so since the French
Government is unable to give firm assurances that no atmospheric
testing will be undertaken after 1974.” (7 C.J. Reports 1974, p. 470;
emphasis added.)

The second statement was made on the day following the Judgment of
the Court, on 21 December 1974, when the Prime Minister of New Zea-

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335 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

land made the observation that, “The Court’s finding achieves in large
measure the immediate object for which these proceedings were brought”
(emphasis added). The cessation of atmospheric tests was thus not the
end-all of New Zealand’s request.

The Substance of the Grievance and the Means by Which It Is Caused

In an examination of a matter such as this, there could well be a ten-
dency for undue concentration on the means by which a wrong is com-
mitted, to the exclusion of the wrong itself. The means is often ancillary,
for it is the wrong or injury sustained by a party that is the core of the
complaint.

If harm to the person is threatened with a particular kind of weapon
such as a sword, it is no justification to the offender if, upon the prohibi-
tion of the use of that weapon, he proceeds to cause the same harm by
the use of another weapon, such as a club. A homely illustration could be
used to test this proposition. If X should complain to the village elder
that Y is threatening him with a sword in a manner causing reasonable
apprehension of an intention to cause grievous harm, and the village
elder orders Y to drop his sword, is that order to be construed as an
order to refrain from causing bodily harm with a sword, or as an order to
refrain from causing bodily harm, whatever the weapon used? If Y there-
after proceeds to harm X with a club, Y would surely not be able to con-
tend that the order issued on him related to the use of a sword and that
he did not violate it in any way by using a club. Clearly, a larger reason
lies behind the order than the mere prohibition against inflicting harm
with a sword. The unexpressed rationale lying behind the order, namely,
the desire to protect X from bodily harm, lies at the very heart of the
order, if it is to be construed in the light of common sense.

Another example of a slightly higher degree of sophistication is as
follows. Suppose a person should complain to a court that his neighbour
is seeking to burn his property by the act of throwing fire bombs at it.
He asks the court for an injunction restraining such conduct. The court
orders the respondent to desist from the act of throwing fire bombs and
this undertaking is accepted by the complainant. Would there not be an
undermining of the basis of this order if the neighbour, having desisted
from throwing fire bombs, commences throwing firebrands instead?
Would an objective observer, looking for the basis of the Court’s order,
confine it to fire bombs rather than look at the object of the order, the
substance of the complaint, and the interest sought to be protected? In
such a context, it would indeed be strange if an argument were set up that
the complaint regarding firebrands must be the subject of a new case
rather than a continuation of the existing one.

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336 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

In general terms, it would not harmonize with ordinary notions of
justice that an order to protect the complainant by prohibiting the use of
a given means of inflicting harm should be viewed as not comprising the
causing of similar harm by the use of another means — least of all when
that weapon is used to inflict the identical injury. In all matters of inter-
pretation, the central object of any provision must be constantly borne in
mind.

Some Principles of Interpretation

A fundamental rule of interpretation of any legal document is that it
must not be so construed as to lead to results which are unreasonable or
absurd. The interpretation that the Court was banning radioactive
contamination by atmospheric tests but giving its tacit endorsement to
radioactive contamination by underground tests seems to fall into this
category. For reasons already discussed, the Court’s order clearly did
not contemplate that the shift to underground testing, in the state of
knowledge at that time, would lead to these deleterious results. The
Court could not, even by remotest implication, have reserved the right to
France to cause similar kinds of nuclear contamination provided it was
done by non-atmospheric testing.

Another way of looking at this matter is that it was a clear implication
of the French declaration that the new procedures it was resorting to
were to be free of the harm manifestly resulting from the old procedures.

To draw an analogy from another department of law, it is a well-
known doctrine, universally recognized in the law, that there can be cer-
tain conditions not expressly specified in a document, which nevertheless
are so clearly implied by its terms that a reasonable onlooker would say,
“Of course, that is understood.” The entire body of learning on the doc-
trine of the implied term in contract rests upon this rationale.

In regard to the underground tests which were announced by the
French Government as replacing the atmospheric tests, it would surely be
the view of an objective onlooker that the clear understanding, in regard
to those tests, was that they would not affect such rights of New Zealand
as it had sought to conserve by asking the Court for relief. The basis of
the Judgment issued by the Court in answer to New Zealand’s claim to
protection was the implication that such protection ensued in conse-
quence of France’s declaration.

New Zealand’s complaint related to the radioactive contamination of
its terrestrial, maritime and aerial environment. That threat was now
apparently at an end, for how else could the Court pronounce that New
Zealand’s claim had no longer any object?

Applying all the three tests formulated by the Court, the basis of the
1974 Judgment has been affected, the dispute has not disappeared, and

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337 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

New Zealand’s claim still has an object if the identical type of harm —
namely, radioactive contamination — results from the new situation that
has arisen. On all these three counts, all specifically part of the 1974
Judgment, New Zealand has the right to ask the Court to examine the
situation in the light of paragraph 63.

Significance of Opening Sentence of Paragraph 63

There is an important aspect of paragraph 63 which is deeply relevant
to an understanding of the words “if the basis of this Judgment were to
be affected”. This aspect is reflected in the opening sentence of that para-
graph, setting the context for the operative words that follow.

In the opening sentence, the Court makes it clear beyond any doubt
that what it was contemplating was not any default by France in com-
plying with its commitment. In the Court’s own words, that was an
aspect which “it is not the Court’s function to contemplate”.

This is in line with an entrenched body of principle contained both in
its governing instruments and its settled practice, that once the Court has
delivered judgment, it is functus officio. It has discharged the duty for
which the parties approached it and resolved the dispute so far as a judg-
ment according to law can resolve it. Enforcement is not and never has
been the concern of the Court, either in terms of its Statute or in terms of
its settled jurisprudence.

In formulating paragraph 63, the Court was making it clear beyond
doubt that what it was contemplating was not a non-observance by
France of its obligations. That was assumed. In short, the cessation of
atmospheric tests was assumed.

But on the basis of compliance by France, there could still be consid-
erations affecting the basis of the Judgment which parties could not con-
template at that time, but which might nevertheless entitle a party in all
justice to ask the Court for an examination of the situation. The Court
was providing for just such an eventuality as this — that while France
complied with its undertaking, the basis of the Judgment could still in
some way be affected.

Significance of the Last Sentence of Paragraph 63

The Court provided in the same paragraph that the denunciation by
France, by letter dated 2 January 1974, of the General Act for the Pacific
Settlement of International Disputes, which was relied on as a basis of
jurisdiction in the present case, cannot constitute by itself an obstacle to
the presentation of a subsequent request by New Zealand. This sentence
is a further indication by the Court that New Zealand was to have its

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338 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

rights preserved on the basis of the existing Judgment, and that the exist-
ing case was not dead. The sentence is a clear anticipation of a possible
return by New Zealand to the Court upon the basis of a Judgment which
was still alive for this purpose.

It also demonstrates the considered and deliberate projection of the
Court’s mind into the problems of the future, without being content
to close the book, so to speak, in 1974. Future jurisdiction had dis-
appeared and New Zealand’s right to implead France afresh had been
destroyed, but this did not deter the Court from expressly empowering
New Zealand to return to the Court on the basis of the original case if
New Zealand was able to show the Court that the basis of the Judgment
was affected.

The Special Need for a Precautionary Clause

In dealing with radioactive contamination, the Court was dealing for
the first time with a force whose potential for causing damage to the
human condition was as yet imperfectly understood. It was known to be
capable of causing multiple deleterious effects to human health and envi-
ronment. It was a force whose magnitude of destructive power had been
awesomely demonstrated. The Court needed to be ultra-cautious.

The clause enabling New Zealand to approach the Court was a pro-
cedural innovation, reinforcing in a very special way the integrity of the
Judgment which the Court was rendering. It was a provision ensuring
that the Judgment would not be undermined by future acts or events
which could not then be specified. It exhibited a concern for the realities
rather than the forms of justice.

Against this background, it is significant that even in the case of
Nuclear Tests (Australia v. France), where the pleadings were more
closely geared to atmospheric tests than in the case of Nuclear Tests
(New Zealand v. France), the Court still considered it necessary to give
Australia the right to come back to the Court if circumstances should
occur which affected the basis of the Judgment (Nuclear Tests ( Australia
v. France), Judgment, I.C.J. Reports 1974, p. 272, para. 60). Even in the
context of atmospheric tests, there could possibly be some unknown
lingering after-effects which might affect the basis of the Judgment and
need correction.

A fortiori, in the case of New Zealand, where there was a shortfall
between the Judgment of the Court and the prayer of New Zealand, there
was a greater need for the interests of New Zealand to be protected.

The Court’s deep concern with the effects of French testing was indeed
demonstrated not merely at this stage of the case, but from the stage of
preliminary measures in 1973, when the Court manifested that concern
by ordering interim measures of protection before any determination of
jurisdiction and admissibility.

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339 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)
INTERIM MEASURES

The Grant of Interim Measures

New Zealand has also requested interim measures now, as it did in
1973. In view of the Court’s Order, this case does not proceed to the stage
where such measures can be ordered. It is my view, however, that New
Zealand has made out a prima facie case that it is suffering, or likely to
suffer, damage of the nature which it complained of in 1973, and has
thereby brought itself within the terms of paragraph 63. As a conse-
quence, New Zealand would have reached the stage where it was entitled
to a consideration by the Court of its request for interim measures.

New Zealand’s Request on this occasion does not go so far as a request
for an absolute declaration that nuclear tests violate the various enumer-
ated rights of New Zealand, inasmuch as New Zealand is content, in the
alternative, with a declaration that it is unlawful for France to conduct
such tests before it has undertaken an Environmental Impact Assessment
(EIA) according to accepted international standards. Such a procedure is
within the power of France and if, as France has declared, the tests are
environmentally safe, an EIA confirming this position would negate New
Zealand’s claim, and result in its dismissal.

The Approach of the Court to Preliminary Measures in 1973

It is pertinent to this discussion to refer also to the approach of the
Court in 1973 to the question of preliminary measures —- an approach
which reflected deep concern that damage of the sort complained of by
New Zealand could cause irreparable prejudice to the rights which were
the subject of dispute. The Court’s approach displayed a willingness to
act even before jurisdiction and admissibility were proved.

The Court of course made it clear that its decision in no way preju-
diced the question of the jurisdiction of the Court to deal with the merits
of the case (1. C.J. Reports 1973, p. 142, para. 34).

It seems to me that the approach of the Court in the present case, when
radioactive contamination by nuclear explosions is again complained of,
might well have been on similar lines.

SOME RELEVANT LEGAL PRINCIPLES

The Inter-Temporal Principle

It is a truism that scientific knowledge increases exponentially. The
knowledge of 1995 is not the knowledge of 1974. Nor was the knowledge

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340 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

of 1974 the knowledge of the 1950s. There is perhaps as much of a dif-
ferential between the knowledge relating to such matters between the
1970s and the 1950s as there is between the knowledge of the 1990s and
the 1970s. The nature and effects of nuclear activity and radioactive
contamination are matters of popular knowledge, having regard to such
episodes as Chernobyl, which have demonstrated even to the layman how
much more widespread the damaging effects of radioactive contamina-
tion are than was once believed. Elsewhere in this opinion reference has
been made to the better understanding of the effects of underground
nuclear explosions since 1974, when they were considered safe.

The Court is seised of the present Request at this point of time and
must bring to bear upon it the scientific knowledge now available. A
court, faced with a science-oriented problem of present and future dam-
age in 1995, cannot resolve it by ignoring the knowledge acquired between
1974 and 1995, and by applying to the problem in hand the knowledge of
1974. That would be an exercise in unreality.

A similar question arose when New Zealand was asked at the time of
the 1974 case why it did not protest against the larger and more danger-
ous nuclear explosions of the 1950s, just as today it is asked why it did
not object to France’s underground testing in the 1970s. The answer of
Dr. Finlay, the New Zealand Attorney-General, offers an interesting per-
spective on the inter-temporal principle. He observed:

“The plain answer is that an inter-temporal rule applies to fact as
well as to law. In the world of the 1950s shoe shops in my country
and in many others had X-ray machines through which the customer
could see the bones of his feet in the shoes he was trying on. In the
world of the 1970s we are appalled by, and forbid, these unnecessary
exposures to the damaging effects of radiation.” (1 C.J. Pleadings,
Nuclear Tests, Vol. IL p. 255.)

So it is with the knowledge of the effects of underground explosions in
the 1970s, as compared with the knowledge of the 1990s. That which was
assumed then has been contradicted by later knowledge. The basic sup-
positions of fact on which public conduct was ordered have been under-
mined. If the basic assumption of the protection of a party’s rights in
1974 is undermined by knowledge available in 1995, and if the terms of
the protecting judgment make its reconsideration available to a party
complaining that its basis has been undermined, this Court, when
approached on the footing that the basis of the Judgment has been under-
mined, must apply to that question the knowledge it has today and not
the knowledge of 1974. The question whether the basis of the Judgment
has been affected is a question of practical reality and not of legal

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abstractions viewed apart from their practical impact upon human life
and the environment in the applicant State.

The Concept of Intergenerational Rights

The case before the Court raises, as no case ever before the Court has
done, the principle of intergenerational equity — an important and
rapidly developing principle of contemporary environmental law.

Professor Lauterpacht, on behalf of New Zealand, adverted to this
aspect when he submitted to the Court that if damage of the kind alleged
had been inflicted on the environment by the people of the Stone Age, it
would be with us today. Having regard to the information before us that
the half-life of a radioactive by-product of nuclear tests can extend to
over 20,000 years, this is an important aspect that an international tribu-
nal cannot fail to notice. In a matter of which it is duly seised, this Court
must regard itself as a trustee of those rights in the sense that a domestic
court is a trustee of the interests of an infant unable to speak for itself. If
this Court is charged with administering international law, and if this
principle is building itself into the corpus of international law, or has
already done so, this principle is one which must inevitably be a concern
of this Court. The consideration involved is too serious to be dismissed as
lacking in importance merely because there is no precedent on which it
rests.

New Zealand’s complaint that its rights are affected does not relate
only to the rights of people presently in existence. The rights of the
people of New Zealand include the rights of unborn posterity. Those are
rights which a nation is entitled, and indeed obliged, to protect. In con-
sidering whether New Zealand has made out a prima facie case of
damage to its interests sufficient to bring the processes of this Court into
operation in terms of paragraph 63, this is therefore an important aspect
not to be ignored.

In the words of an important recent work on this question:

“The starting proposition is that each generation is both a custo-
dian and a user of our common natural and cultural patrimony. As
custodians of this planet, we have certain moral obligations to future
generations which we can transform into legally enforceable norms.”
(See E. Brown Weiss, In Fairness to Future Generations: Interna-
tional Law, Common Patrimony and Intergenerational Equity, 1989,

p. 21.)

The Stockholm Declaration on the Human Environment adopted by
the United Nations Conference on the Environment at Stockholm,

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342 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

16 June 1972, formulated nearly a quarter century ago the principle of
“a solemn responsibility to protect and improve the environment for
present and future generations” (Principle 1). This guideline sufficiently
spells out the approach to this new principle which is relevant to the
problem the Court faces of assessing the likely damage to the people of
New Zealand. This Court has not thus far had occasion to make any
pronouncement on this developing field. The present case presents it with
a pre-eminent opportunity to do so, as it raises in pointed form the pos-
sibility of damage to generations yet unborn.

The Precautionary Principle

Where a party complains to the Court of possible environmental dam-
age of an irreversible nature which another party is committing or threat-
ening to commit, the proof or disproof of the matter alleged may present
difficulty to the claimant as the necessary information may largely be in
the hands of the party causing or threatening the damage.

The law cannot function in protection of the environment unless a
legal principle is evolved to meet this evidentiary difficulty, and environ-
mental law has responded with what has come to be described as the pre-
cautionary principle — a principle which is gaining increasing support as
part of the international law of the environment (see Philippe Sands,
Principles of International Environmental Law, Vol. I, pp. 208-210).

In 1990, the Ministers from 34 countries in the Economic Commission
for Europe and the Commissioner for the Environment of the European
Community, meeting at Bergen, Norway, issued the Bergen ECE Minis-
terial Declaration on Sustainable Development. Article 7 of this Declara-
tion formulated the precautionary principle in these terms:

“In order to achieve sustainable development, policies must be
based on the precautionary principle. Environmental measures must
anticipate, prevent and attack the causes of environmental degrada-
tion. Where there are threats of serious or irreversible damage, lack
of full scientific certainty should not be used as a reason for post-
poning measures to prevent environmental degradation.” (Bergen
ECE Ministerial Declaration on Sustainable Development, 15 May
1990, in Harald Hohmann (ed.), Basic Documents of International
Environmental Law, Vol. 1, 1992, pp. 558-559.)

In paragraph 16 (f), the Declaration stressed the importance of opti-
mizing democratic decision-making related to environment and develop-

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ment issues, and it identified the following need as part of what it called
the Bergen process:

“To undertake the prior assessment and public reporting of the
environmental impact of projects which are likely to have a signifi-
cant effect on the human health and the environment and, so far as
practicable, of the policies, programmes and plans which underlie
such projects and to ensure that East European and developing
countries are assisted through bilateral and multilateral channels in
evaluating the environmental impact and sustainability of their own
development projects. To develop or expand procedures to assess
the risks and potential environmental impacts of products.” (Op.
cit., p. 565.)

The precautionary principle of course went further back in time than
1990. It is a principle of relevance to New Zealand in its application to
this Court and one which inevitably calls for consideration in the context
of this case.

New Zealand has placed materials before the Court to the best of its
ability, but France is in possession of the actual information. The prin-
ciple then springs into operation to give the Court the basic rationale for
considering New Zealand’s request and not postponing the application of
such means as are available to the Court to prevent, on a provisional
basis, the threatened environmental degradation, until such time as the
full scientific evidence becomes available in refutation of the New Zea-
land contention.

Several environmental treaties have already accepted the precaution-
ary principle (see Sands, op. cit., pp. 210 et seg.). Among these are the
1992 Baltic Sea Convention and the 1992 Maastricht Treaty (Treaty on
European Union, Title XVI, Art. 1307 (2)), which states that Community
policy on the environment “shall be based on the precautionary prin-
ciple” (emphasis added). It is noteworthy that under the 1992 Conven-
tion for the Protection of the Marine Environment of the North-East
Atlantic (OSPAR Convention), the parties (France and the United King-
dom), wishing to retain the option of dumping low and intermediate level
radioactive wastes at sea, would be required to report to the OSPAR
Commission on:

“the results of scientific studies which show that any potential dump-
ing operations would not result in hazards to human health, harm to
living resources or marine ecosystems, damage to amenities or inter-
ference with other legitimate uses of the sea” (Ann. IE, Art. 3 (3) (c),
cited from Sands, op. cit., p. 212).

This last application of the precautionary principle, to which France is
a party, has particular relevance to the matter presently before the Court.

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344 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

The provision in the Maastricht Treaty, incorporating the precaution-
ary principle as the basis of European Community policy on the environ-
ment (Art. 130r (2)), would lead one to expect that the principle thus
applicable to Europe would apply also to European activity in other glo-
bal theatres.

Reference should be made finally to Principle 15 of the Rio Declara-
tion on Environment and Development, 1992, which reads:

“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.” (Report
of the United Nations Conference on Environment and Development,
Rio de Janeiro, 3-14 June 1992, Vol. I, Ann. I, p. 6.)

Environmental Impact Assessment (EIA)

This principle is ancillary to the broader principle just discussed. As
with the previous principle, this principle is gathering strength and inter-
national acceptance, and has reached the level of general recognition at
which this Court should take notice of it.

The United Nations Environment Programme (UNEP) Guidelines of
1987 on “Goals and Principles of Environmental Impact Assessment”
states in Principle 1 that:

“States (including their competent authorities) should not under-
take or authorize activities without prior consideration, at an early
stage, of their environmental effects. Where the extent, nature or
location of a proposed activity is such that it is likely to significantly
affect the environment, a comprehensive environmental impact
assessment should be undertaken in accordance with the following
principles.” (Hohmann, op. cit., p. 187.)

A proper Environmental Impact Assessment should, according to
Principle 4, include:

“(a) A description of the proposed activity;

(b) A description of the potentially affected environment, includ-
ing specific information necessary for identifying and assessing
the environmental effects of the proposed activity;

(c) A description of practical alternatives, as appropriate;

(d) An assessment of the likely or potential environmental impacts
of the proposed activity and alternatives, including the direct,
indirect, cumulative, short-term and long-term effects;

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345 REQUEST FOR AN EXAMINATION (DISS. OP, WEERAMANTRY)

(e) An identification and description of measures available to
mitigate adverse environmental impacts of the proposed acti-
vity and alternatives, and an assessment of those measures;

(f) An indication of gaps in knowledge and uncertainties which
may be encountered in compiling the required information;

(g) An indication of whether the environment of any other State
or areas beyond national jurisdiction is likely to be affected by
the proposed activity or alternatives;

(h) A brief, non-technical summary of the information provided
under the above headings.” (Hohmann, op. cit., p. 188.)

It is clear that on an issue of the magnitude of that which brings New
Zealand before this Court the principle of Environmental Impact Assess-
ment would prima facie be applicable in terms of the current state of
international environmental law.

This Court, situated as it is at the apex of international tribunals,
necessarily enjoys a position of special trust and responsibility in relation
to the principles of environmental law, especially those relating to what is
described in environmental law as the Global Commons. When a matter
is brought before it which raises serious environmental issues of global
importance, and a prima facie case is made out of the possibility of
environmental damage, the Court is entitled to take into account the
Environmental Impact Assessment principle in determining its prelimi-
nary approach.

Of course the situation may well be proved to be otherwise and fears
currently expressed may prove to be groundless. But that stage is reached
only after the Environmental Impact Assessment and not before.

The Illegality of Introducing Radioactive Waste
into the Marine Environment

This principle is too well established to need discussion. The marine
environment belongs to all, and any introduction of radioactive waste
into one’s territorial waters must necessarily raise the danger of its spread
into the wider ocean spaces that belong to all.

If such danger can be shown prima facie to exist or be within the
bounds of reasonable possibility, the burden shifts on those who claim
such action is safe to establish that this is indeed so. As observed already,
the 1992 OSPAR Convention between France and the United Kingdom
requires a report that any proposed dumping of low and intermediate
level radioactive wastes would not result in hazards to human health and
marine resources. Such is the standard observed internationally. Until

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346 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

such time, a judicial tribunal is entitled to act upon the prima facie case
that New Zealand has made out.

The Report of the Rio Conference of 1992 deals in Chapter 22 of
Agenda 21 with “Safe and Environmentally Sound Management of
Radioactive Wastes”. Paragraph 22.5 (c) deals specifically with this
problem in terms that States should:

“Not promote or allow the storage or disposal of high-level, inter-
mediate-level and low-level radioactive wastes near the marine
environment unless they determine that scientific evidence, consistent
with the applicable internationally agreed principles and guidelines,
shows that such storage or disposal poses no unacceptable risk to
people and the marine environment or does not interfere with other
legitimate uses of the sea, making, in the process of consideration,
appropriate use of the concept of the precautionary approach.”
(Report of the United Nations Conference on Environment and Devel-
opment (A/CONF.151/26/Rev.1), Vol. I, Ann. II, pp. 371-372.)

France supported Agenda 21. Indeed, President Mitterrand gave it
such strong support as to suggest that the Secretary-General of the
United Nations should be entrusted with the task of taking stock of the
implementation of Agenda 21 every year (ibid, Vol. HI, p. 195).

The President also observed:

“Secondly, it would be useful to determine more clearly the role,
or the responsibility, of the countries of the North. I think that they
have to preserve and restore their own domain (water, air, towns,
countryside), a task which their Governments are tackling unevenly.
That they have to refrain from any action harmful to the environment
of the countries of the South. Such is the purpose of France’s very
strict laws on the export of wastes.” (Ibid., p. 194; emphasis added.)

It scarcely needs citation of authority to establish so self-evident a
principle.

The Principle that Damage Must Not Be Caused
to Other Nations

The conclusions just reached are reinforced by a fundamental principle
of modern environmental law which must here be noted. It is well
entrenched in international law and goes as far back as the Trail Smelter
case (Reports of International Arbitral Awards, 1938, Vol. III, p. 1905)
and perhaps beyond (see also Corfu Channel, Merits, Judgment, CJ.
Reports 1949, p. 4).

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347 REQUEST FOR AN EXAMINATION (DISS, OP. WEERAMANTRY)

This basic principle, that no nation is entitled by its own activities to
cause damage to the environment of any other nation, appears as Prin-
ciple 2 of the Rio Declaration on the Environment, 1992:

“States have, in accordance with the Charter of the United Nations
and the principles of international law, the sovereign right to exploit
their own resources pursuant to their own environmental and devel-
opmental policies, and the responsibility 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.” (Report of the United Nations Conference on Environ-
ment and Development (A/CONF.151/26/Rev.1), Vol. I, Ann. I, p. 3.)

Other international instruments that embody this principle are the
Stockholm Declaration on the Human Environment (1972, Principle 21)
and the 1986 Noumea Convention, Article 4 (6) of which states:

“Nothing in this Convention shall affect the sovereign right of
States to exploit, develop and manage their own natural resources
pursuant to their own policies, taking into account their duty to pro-
tect and preserve the environment. Each Party shall ensure that
activities within its jurisdiction or control do not cause damage to
the environment of other States or of areas beyond the limits of its
national jurisdiction.” (Hohmann, Basic Documents of International
Environmental Law, 1992, Vol. 2, p. 1063.)

It is in the context of such a deeply entrenched principle, grounded in
common sense, case law, international conventions, and customary inter-
national law that the Court must reach a determination as to whether a
prima facie case of danger to its rights has been made out by New Zealand.

Has NEw ZEALAND MADE OUT A PRIMA FACIE CASE?

The Approach to the Question of Proof

As stressed in this opinion, it is essential, in order to activate the pro-
cedures of the Court, that New Zealand should make out at least a prima
facie case that the dangers which brought it to Court in 1973 are now
present again in consequence of the underground nuclear tests that
France has commenced in the Pacific. There must therefore be an exami-
nation of the facts in order to decide whether the jurisdictional basis
exists for New Zealand’s present Request.

The ensuing examination is therefore undertaken as an integral part of
the preliminary jurisdictional question and is not a part of any examina-
tion of the merits.

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348 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

There are two ways of approaching this question. The first is to place
the burden of proof fairly and squarely upon New Zealand, and to ask
whether a prima facie case has been made out of the presence of such
dangers as New Zealand complains of.

The second approach is to apply the principle of environmental law
under which, where environmental damage of any sort is threatened, the
burden of proving that it will not produce the damaging consequences
complained of is placed upon the author of that damage. In this view of
the matter, the Court would hold that the environmental damage New
Zealand complains of is prima facie established in the absence of proof
by France that the proposed nuclear tests are environmentally safe.

It will be noted in this connection that all the information bearing
upon this matter is in the possession of the Respondent. The Applicant
has only indirect or secondary information, but has endeavoured to place
before the Court such information as it has been able, to the best of its
ability, to marshal for the purposes of this application.

The second approach is sufficiently well established in international
law for the Court to act upon it. Yet, it is sufficient for present purposes
to act upon the first approach, throwing the burden of proof upon New
Zealand.

What is the nature of the prima facie case that New Zealand has made
out?

The Scientific Fact-finding Missions

New Zealand has placed before the Court such scientific material as is
available to it, and has referred, in particular, to three scientific reports in
support of its submissions regarding the unreliability of Mururoa and
Fangataufa atolls as repositories of nuclear wastes. It states that the
French Government has not permitted a full scientific investigation of
Mururoa atoll, but that three limited investigations are all that have been
allowed on Mururoa, and none at all at Fangataufa where the larger
explosions have occurred.

These are the investigations of Mr. M. H. Tazieff, a noted French
vulcanologist, in 1982; that of a team of scientists led by Mr. Hugh
Atkinson, a former Director of New Zealand’s National Radiation Labo-
ratory, in 1983; and that of a scientific and film team, led by Commander
Cousteau, in 1987.

Mr. Tazieff commented that a systematic study over a number of years
was required of the most mobile radionuclides in ground water and in the
sea, for an assessment of the effectiveness of the containment of radio-
activity (Tazieff Report, p. 7, cited in New Zealand’s Request, para. 38);
while Commander Cousteau concluded that leakage could occur on a
time scale of 100-300 years, a significantly shorter period than previous
estimates (ibid., para. 40, in reliance upon the Cousteau Mission Report).
The conclusions of the Atkinson Report are dealt with later.

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349 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

France replies to New Zealand’s contentions by asserting that the New
Zealand descriptions envisaged “disasters of Hollywoodian proportions”,
while the tests are, in fact, environmentally safe (CR 95/20, p. 62).
Professor de Brichambaut, for France, stated, inter alia, that traces of
radioactivity on Mururoa are infinitesimal; that the level of radioactivity
is the same as on all the atolls in the South Pacific; that it is considerably
lower than the levels found in Paris, Darwin, Chile or Colombia. He
submitted that the level of radioactive elements (measured in micrograys
per year) is 262 in Mururoa, 463 in Tahiti, 815 in Australia and 900 in
New Zealand. He added that in Holland it is 280, just above the level in
Mururoa. He also gave the Court various statistics in relation to doses of
radioactivity measured in the Polynesian population (ibid., p. 55).

However, the main question on which the Court would need to reach a
prima facie conclusion is the question of the safety of Mururoa as a
repository of radioactive waste, both over the long term, in consequence
of natural impairment of the atoll, and in the short term in consequence
of nuclear explosions.

These matters are dealt with in the ensuing paragraphs.

The danger of radioactive contamination resulting from France’s under-
ground tests could perhaps be considered under the following heads:

(a) the nature of the nuclear tests proposed;

(6) the structure of Mururoa and Fangataufa atolls;

(c) the impact upon the atolls of the previous explosions;

(d) the impact upon Mururoa of the proposed new series of explosions;

(e) the internationally accepted safety standards for the storage of
radioactive wastes;

{f} the danger to marine life of the release of radioactive substances into
the ocean; and

(g) the possibility of accident.

If, upon a review of these matters, it can reasonably be stated that a
prima facie case has been made out of possible danger from radioactive
contamination resulting from France’s nuclear tests in the Pacific, New
Zealand would be entitled to submit that it has discharged the burden
lying upon it of showing that it comes within the terms of paragraph 63.

The possible dangers will now be outlined under the heads enumer-
ated, bearing in mind that, in a case of this magnitude, even a prima facie
finding of possible dangers is not to be lightly reached. The relevant
material must be therefore examined with the greatest care. The ensuing
discussion aims at ascertaining whether, upon an objective analysis, New
Zealand has made out a prima facie case that the dangers it complained
of in 1973 now exist in 1995, thereby activating paragraph 63 of the 1974
Judgment.

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350 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

The nature of underground nuclear tests

The information placed before the Court is to the effect that holes of a
depth of around 1,000 metres are drilled into the ground surface of the
atoll. New Zealand states that the details of location of the test shafts
have not been released by France. The structure of the atoll consists of a
coral crown over a volcanic base. Many tests have also been conducted in
the lagoon area adjacent to the coral rim.

A cylinder containing the explosive device and a large amount of
instrumentation is then dropped into the hole. The shaft is packed tight
with material, including a special kind of concrete, to stop the escape
through the shaft into the atmosphere of radioactive material from the
explosion.

Upon detonation, everything at the bottom of the shaft is vaporized
and a ball-shaped chamber forms in the structure of the surrounding
rock. For the small 10-kiloton blasts, the chamber would be approxi-
mately 50 metres in diameter and for explosions of around 100 kilotons
the chamber might be around 120 metres in diameter.

The immense heat of the explosion vitrifies the rock around it and
much of the radioactive material released by the explosion is contained
within this vitrified rock and within the explosion chamber.

New Zealand submits that another effect of the explosion is an earth-
quake shock which may measure between 4 and 6 on the Richter scale.
This may fracture some of the upper limestone layers of the atoll and
may generate landslides towards the outer flanks of the atoll.

I refer again to McEwan’s technical study on “Environmental effects
of underground nuclear explosions” :

“The greatest environmental impacts of underground tests result
from seismic and local shock wave effects. The latter include ground
movements, subsidence, collapse crater formation, cliff falls and
submarine slides which may occur within a few kilometres of the
detonation points.” (Op. cit., p. 89.)

The important question also arises of the possibility of venting, 1e.,
the escape of vapours, liquid and other by-products of the explosion
from the confined space in which the explosions occur. The Report of a
New Zealand, Australian and Papua New Guinea Scientific Mission
to Mururoa Atoll, which was headed by Mr. H. R. Atkinson, Retired
Director of the National Radiation Laboratory, Christchurch (one of the
three reports deposited along with the New Zealand Request), observes:

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REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

“Venting of gaseous and volatile fission products from the under-
ground test sites does occur at the time of detonation. The radio-
nuclides vented include ones other than the noble gases (which are
admitted by the French) and there is evidence that their magnitude is
greater than would be expected simply through the back-packing of
the placement bore being ‘less than perfect’.” (Report of a New
Zealand, Australian and Papua New Guinea Scientific Mission to
Mururoa Atoll, p. 132.)

The structure of Mururoa and Fangataufa atolls

The structure of the atoll is said to consist of a coral crown upon a
volcanic base. Water percolates through the entire rock structure.
Whether through prior explosions or otherwise, there is a network of
fissures in the structure of the atoll.

The Atkinson Report contained the following descriptions of the atoll
structure of Mururoa:

“Mururoa in common with other atolls is made up of two
sequences; the upper limestones of 180-500 m thickness, overlying
volcanics of several thousand metres thickness.” (Jbid., p. 7.)

“The limestones, comprised of superimposed successions of reefs,
are for the most part porous and permeable with many horizons of
particularly high porosity and permeability. The flanks of the atoll
however are protected by aprons of low permeability.” (Zbid., pp. 7-8.)

“The French claim that any leakage from the volcanics to the
limestones will be stopped by the impermeable transition zone is not
borne out by the data inspected.

The transition zone which occurs between the volcanics and lime-
stones is highly variable in thickness and rock type and this casts
doubt on its ability to act as an impermeable barrier to potential
radioactive leakage. The potential exists for leakage of water from
detonation cavities to the biosphere in less than 1000 years.” (Jbid.,

p. 8.)

“The claim that the transition zone acts as a barrier to long-term
leakage can, on the basis of geological evidence, be discounted. The
volcanics in their virgin state offer a poor to moderate geo-chemical
barrier and a moderate to good hydrological barrier. The testing
programme is reducing the effectiveness of both.” (Ibid., p. 9.)

The McEwan study, already referred to, observes that:

67

“Leakage of radioactive material from an underground testing site
may occur if there is ground water present at the emplacement depth
352 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

at the time of explosion, or if fracturing of rock subsequently allows
ground water access to the cavity.” (Op. cit., p. 85.)

Having regard to the saturation of the rock structure with water, this
seems to be, prima facie, a factor to be taken into account.

The impact upon the atolls of previous explosions

The Atkinson Report concludes:
“The integrity of the carbonate part of the atoll has been impaired.

— Fissures have formed in the limestones as a result of testing.

— Surface subsidence to the order of 1 m has affected over 1 km? of
the north-eastern region and 1.5 km? of the south-west margin.
Such subsidence is the direct result of cumulative compaction in
the limestones, and propagated by testing.

— Submarine slides, particularly along the southern margin, have
resulted from a number of tests at Mururoa. The effect of these
slides is to strip the outer rim of the atoll of its protective imper-
meable limestone.

Fissuring and removal of the apron limestone through sliding will
both serve to increase lateral and vertical water transport in the
carbonate body of the atoll.” (Op. cit., pp. 105-106.)

All three of these heads seem to be of great importance to the issue
before the Court. Fissures can conceivably widen and afford an outlet to
the sea. The subsidence to an extent of one metre of a square kilometre of
the atoll’s surface reflects a structural movement serious enough to cause
concern. The stripping of the outer rim of the atoll must also be thought,
in the absence of contrary evidence, to weaken the protective structure of
the atoll.

The impact upon Mururoa of the proposed new series of explosions

It is of course impossible to state, on the available scientific material,
how many more explosions the structure of the atoll can withstand with-
out some major structural damage such as may release the pent-up radio-
active debris of over 100 explosions contained within the atoll’s structure.
It may be that the structure could withstand one thousand more explo-
sions, or it may be that the structure is nearing the end of its endurance
of continuing explosions.

There is, according to New Zealand, an ever-present danger that the
already fissured structure of the atoll cannot be guaranteed to remain
intact and that even one more explosion could wel! be the force that can

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353 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

trigger off a major structural collapse. The structure has already been
buffeted by explosions equivalent to some 150 times the power of the
Hiroshima bomb. There are over 126 shafts drilled into a segment of an
atoll which is less than 28 km long. We do not have the benefit of an
impact assessment survey of the ability of the atoll’s structure to with-
stand these shocks.

In the words of New Zealand’s counsel, Professor Lauterpacht, New
Zealand could ask whether the world can be confident that the present
series of tests may not place upon the camel of Mururoa the straw that
breaks its back.

The internationally accepted safety standards for the storage of radio-
active wastes

At the conclusion of the hearings, I addressed a question to both
Parties as to whether there are internationally accepted criteria for the
selection of geological repositories for radioactive wastes, requesting a
brief list of such criteria, if there were any.

The French reply was:

“Jl n’existe actuellement aucune norme officielle internationale
concernant les critéres géologiques de stockage des déchets radio-
actifs. Les études scientifiques menées quant a la nature des roches
les plus appropriées aboutissent 4 un consensus sur la nécessité
d’avoir un environnement géologique stable, une faible perméabilité
des roches et un contexte propice à une rétention des radioéléments
par les roches.” !

New Zealand, however, referred to the International Atomic Energy
Agency’s Safety Standard, “Safety Principles and Technical Criteria for
the Underground Disposal of High Level Radioactive Wastes” (Safety
Series No. 99, 1989)2, a document which New Zealand states has been
superseded by more detailed studies. The criteria set out in this document
include the following:

“Criterion No. 7: Site geology

The repository shall be located at sufficient depth to protect
adequately the emplaced waste from external events and processes in

! Letter from France dated 15 September 1995, replies to the questions put by Judge
Weeramantry, No. 2:

“There is currently no official international norm relating to the geological criteria
for the storage of radioactive waste. The scientific investigations of the nature of the
most appropriate rocks lead to a consensus on the need to have a geologically stable
environment, rocks of a low permeability and a context favourable to a retention of
radioelements by the rocks.” / Translation by the Registry. ]

2 Letter from New Zealand dated 15 September 1995, replies to the questions put by
Judge Weeramantry, No. 2.

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REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

a host rock having properties that adequately restrict the deteriora-
tion of physical barriers and the transport of radionuclides from the
repository to the environment.

Criterion No. 8: Consideration of natural resources

The repository site shall be selected, to the extent practicable, to
avoid proximity to valuable natural resources or materials which are
not readily available from other sources.”

These criteria, when applied to Mururoa, raise prima facie concerns as
to its safety for purposes of storage of radioactive waste.

The International Atomic Energy Agency Safety Guide, “Safety of
Geological Disposal Facilities” (Safety Series No. 111-G-4.1, 1994) also
gives some useful indications of factors having a bearing on this question.
Guidelines 412 and 413 are particularly significant:

“412. The hydrogeological characteristics and setting of the geo-
logical environment should tend to restrict groundwater flow within
the repository and should support safe waste isolation for the
required times.

413. An evaluation of the mechanisms of groundwater move-
ment, as well as an analysis of the direction and rate of flow will be
an important input to the safety assessment of any site because the
most likely mode of radionuclide release is by groundwater flow.
Irrespective of the nature of the waste or the disposal option, a geo-
logical environment capable of restricting flow to, through and from
the repository will contribute to preventing unacceptable radio-
nuclide releases. Natural features such as aquifers or fracture zones
are potential release pathways for radionuclides. Such paths should be
limited in the repository host rock so that the protective functions of
the geological and engineered barrier system remain compatible. The
dilution capacity of the hydrogeological system may also be impor-
tant and should be evaluated. Siting should be optimised in such a
way as to favour long and slow moving groundwater pathways from
the repository to the environment.”

These are of course matters on which the Court in due course would
have received fuller information had the matter proceeded to a hearing
on the substantive question of New Zealand’s request.

Alongside of these criteria and guidelines, it would be useful to look at
some of the conclusions of the Atkinson Report. Conclusion 3 of the Atkin-
son Report states, in regard to underground testing at Mururoa, that:

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355 REQUEST FOR AN EXAMINATION (DISS. OP. WEERAMANTRY)

“The radioactive residues of underground testing can with some
justification be equated to high-level radioactive waste. It is not
expected that Mururoa would meet the generally accepted criteria
on site selection for a geologic repository for high-level radioactive
wastes.” (Atkinson Report, p. 133.)

An index to altered world perceptions of the environmentally deleteri-
ous effects of radioactive waste, whether resulting from peaceful or mili-
tary purposes, is the concern shown at the Rio Conference on Environ-
ment and Development in 1992. Chapter 22 of the Report of the
Conference is devoted to “Safe and Environmentally Sound Management
of Radioactive Wastes”. Though the wastes there referred to are those
generated from peaceful activities, the concerns expressed are relevant in
the present context.

Paragraph 22.1 of the Report observed that:

“the activity concentration, especially in sealed radiation sources,
might be high, thus justifying very stringent radiological protection
measures” (Report of the United Nations Conference on Environment
and Development, Rio de Janeiro, 3-14 June 1992 (A/CONF.151/26/
Rev.1), Vol. I, Agenda 21, Ann. I, p. 370),

and paragraph 22.8 observed that:

“States, in cooperation with international organizations, where
appropriate, should:

(a) Promote research and development of methods for the safe and
environmentally sound treatment, processing and disposal,
including deep geological disposal, of high-level radioactive
waste;

(b) Conduct research and assessment programmes concerned with
evaluating the health and environmental impact of radioactive
waste disposal.” (Ibid., p. 372.)

It seems clear therefore that whatever the source of radioactive
materials, the care with which they are stored underground is a matter
of international concern. The porous nature of Mururoa is one which
gives rise to special concern in the absence of an EIA relating to not
merely the retentive properties of the soil of Mururoa, but also in regard
to its ability to withstand repeated atomic blasts.

The danger to marine life of the release of radioactive substances into
the ocean

In the light of these circumstances, it can scarcely be said that New
Zealand has not made out at least a prima facie case that there is a
danger of a rupture of the atoll’s structure, with the possibility of release

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into the ocean of a vast quantity of pent-up radioactive materials. Such a
case can of course be rebutted by appropriate scientific evidence, but till
such time affords a sufficient basis for New Zealand to maintain its claim
that radioactive contamination from nuclear explosions affects its rights
now, as it did in 1973.

A world that has known the effects upon the food chain several
hundreds of miles away from Chernobyl may well wonder what the
effects may be upon the marine food chain of such a release of radio-
activity. Such questions may be raised even more pointedly in the absence
of an EJA by France prior to the present series of tests.

Should a radioactive leak affect the food chain in the Pacific, the rights
affected would be not only those of New Zealanders, but of all the Pacific
peoples, many of whom are dependent on fishing for their livelihood. The
danger of radioactive contamination affecting plankton and moving up
the food chain to all forms of marine life is a factor to be reckoned with,
even if it were in small quantities. Migratory species such as tuna could
carry this contamination of the food chain much further afield. Should
there be a release of pent-up radioactive waste of over a hundred explo-
sions through a major crack or fissuring of the structure of the atoll, the
consequences could well be catastrophic.

The half-life of radioactive by-products varies from 14,000 to
24,000 years. Plutonium 239 has a half-life of 24,000 years, and pluto-
nium 240 a half-life of 6,570 years, according to the responses of both
Parties to a question I asked at the oral hearings.

The question may well arise whether the French Government can
indeed offer any sort of assurance that the by-products released from
over 100 nuclear explosions would be safely contained within the fragile
structure of Mururoa for several multiples of tens of thousands of years.
The possibility of such contamination must therefore be viewed with con-
cern. The atoll has already sustained fissure cracks in consequence of
prior explosions totalling the fire power of over 150 Hiroshima-type
explosions!. A Pacific islander could indeed have serious fears as to
whether this brittle and porous island structure could withstand inter-
nally the force of even one Hiroshima-type explosion. By and large, the
Pacific islanders live in total dependence upon the sea, and it is not to be
wondered at that some of them are waiting at the door of this Court in

! See the list of French nuclear tests at Mururoa and Fangataufa in Annex 4 of the New
Zealand Request for an Examination of the Situation, reproduced from J. Bouchez and
R. Lecomte, Les atolls de Mururoa et de Fangataufa, 1995, Vol. II.

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the hope that they will be heard, by way of intervention, in a matter of
fundamental importance to their health, their way of life and their
livelihood.

Having regard to the developments of international law embracing the
principle of intergenerational rights and responsibilities, this is an envi-
ronmental risk of which, in the absence of rebutting material from
France, New Zealand and the islands covered by its Request are entitled,
prima facie, to complain. It may be that France has material with which
it can satisfy the Court on that issue, but no such material has been
offered. Having regard to the course of geological events, a guarantee of
stability of such an island formation for hundreds of thousands of years
does not seem within the bounds of likelihood or possibility.

As for New Zealand, New Zealand has from the very commencement
of this case couched its claim in terms, “including apprehension, anxiety
and concern, to the people and Government of New Zealand and of the
Cook Islands, Nive and Tokelau Islands”, and on the basis of the
violation of its rights to the exploitation of the seas. Those were New
Zealand’s concerns in 1974 and those particular concerns are redoubled
now by the current nuclear tests.

The possibility of accident

The best intentioned and regulated of human activities must always
face the possibility of an accident resulting from some unforeseen circum-
stance. The history of underground testing at Mururoa has not been free
of accident.

According to New Zealand, an official publication of the French
Atomic Energy Commission acknowledged that a device which had
become stuck in the detonation shaft was exploded at a depth of approxi-
mately 987 metres, 110 metres less than planned. The test generated a
submarine landslide of about one million cubic metres of material off the
mass of the atoll which set off a tsunami which washed over part of the
atoll, seriously injuring two persons.

Other accidents cited by New Zealand are:

“{a) In June 1987 officials on Mururoa admitted to Cousteau the
accidental release of approximately 1.5 teraBecquerels of radio-
active iodine plus other volatile material.

(b) In 1992 scientists of the Combined Radiological Safety Service

on Mururoa acknowledged that 0.2 teraBecquerels of radio-
active iodine had been accidentally released in 1990 in similar

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circumstances.” (New Zealand’s Request for an Examination
of the Situation, para. 54.)

Having regard to the information furnished to the Court by New
Zealand as summarized above, and in the absence of specific scientific
material or impact assessment studies by France, the possibility of acci-
dent is another ground which goes to make out the prima facie case that
New Zealand would be obliged to present.

Among the important rights of New Zealand that are threatened are its
maritime rights. The 1973 Application of New Zealand covered radio-
active damage caused to New Zealand’s rights by French nuclear explo-
sions in the Pacific. The fear of such radioactive pollution which brought
New Zealand to the Court in 1973 is now appearing again.

The reasonableness of that fear has been proved at least prima facie,
thereby enabling New Zealand to claim that the basis of the 1974 Judg-
ment which protected New Zealand against such radioactive contamina-
tion has been affected.

New Zealand’s application should therefore, in my view, be proceeded
with by the Court to the next stage, which is the stage of enquiring
whether a case has been made out for the issue of interim measures of
protection.

All this would be done as another phase of the 1973 application filed
by New Zealand.

The Position of the Intervenors

It follows from the views expressed earlier that the Court could have
proceeded to consider whether the intervenors, Australia, Samoa,
Solomon Islands, the Marshall Islands and the Federated States of
Micronesia, should be permitted to intervene in those proceedings. Their
contention is that they have an interest of a legal nature in the present
proceedings and that they are not seeking to introduce a new dispute
before the Court, but are seeking permission to assert their legal interests
in an existing dispute in accordance with Article 62 of the Statute. They
have very real concerns in regard to their undoubted right to the preser-
vation of their own environment from the danger of radioactive contami-
nation resulting from the conduct of another State. They have quite
clearly gone to great lengths to seek legal advice, prepare substantial
materials and file carefully prepared pleadings in support of their applica-
tion for intervention.

It would, in this area as well, have served the substantial interests of
justice if, upon a different view of the preliminary question, the matter
had proceeded to further enquiry. The intervenors would then have been
heard on their right to intervene. If they were found, after a hearing, to
have had no right to intervene, they would then have left this Court

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satisfied that the Court had heard them on their right to intervention and
that procedural rules relating to intervention did not permit the Court to
grant them redress. As it is they leave the Court without even the benefit
of a hearing.

CONCLUDING REMARKS

The altogether unusual nature of this case prompts a few reflections on
the nature of the judicial process. These observations have equal relevance
to domestic and international judiciaries, for the judge, whether domestic
or international, is equally the servant of the concept of justice.

I wish to cite preliminarily a statement by Justice Cardozo, one of the
foremost thinkers on the judicial process. Substitute for the word “cases”
the words “international conventions, international custom, general prin-
ciples of law, judicial decisions and teachings of publicists”, and the
thought expressed by Cardozo holds good also for the international
judge.

Cardozo observed that the judge’s duty was not simply to match the
colours of the case at hand with the colours of the many samples spread
out upon the judicial desk:

“If that were all there was to our calling, there would be little of
intellectual interest about it. The man who had the best card index
of the cases would also be the wisest judge. It is when the colors do
not match, when the references in the index fail, when there is no
decisive precedent, that the serious business of the judge begins.”
(Benjamin N. Cardozo, The Nature of the Judicial Process, 1921,
pp. 20-21.)

This is a case for which there is no matching sample — whether in
international conventions, international custom, general principles of
law, judicial decisions or teachings of publicists. It presents a challenge to
the Court.

This is also a case in which the processes of logical reasoning can well
lead to one conclusion or the other. The processes of reasoning set out in
this dissenting opinion lead to the conclusion that the Court’s 1974 Judg-
ment left open the possibility that, in the event of similar damage occur-
ring by a means other than atmospheric testing, New Zealand should be
able to bring this before the Court. The Judgment of the Court upon this
Application proceeds, also by a logical chain of reasoning, to arrive at
the opposite conclusion, namely, that atmospheric testing and atmos-
pheric testing alone was the subject of the Judgment. The late Professor
Julius Stone, who, in addition to his considerable standing in the world
of international law, was also one of the deepest researchers into judicial
reasoning in our time, referred to such situations as “leeways of judicial

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choice” (Legal System and Lawyers’ Reasonings, 1964; see, especially,
Chapter 8 on “Reasons and Reasoning in Judicial and Juristic Argu-
ment”).

We here enter an area well traversed in legal philosophy for nearly a
century. In 1897 the great Justice Holmes gave classic expression to this
problem. He observed that the fallacy of:

“the logical method and form flatter that longing for certainty and
for repose which is in every human mind. But certainty generally is
illusion and repose is not the destiny of man. Behind the logical form
lies a judgment as to the relative worth and importance of competing
legislative grounds, often an inarticulate and unconscious judgment,
it is true, and yet the very root and nerve of the whole proceeding.
You can give any conclusion a logical form.” (“The Path of the
Law”, Harvard Law Review, 1897, Vol. X, p. 466.)

Since then a deluge of writing has illuminated this subject. In this
Court — perhaps even more so than in any domestic jurisdiction — these
reflections regarding the judicial process are more than ever relevant, for
the discipline of international law has deeper philosophical roots than
most other legal disciplines. Names such as Llewellyn, Cardozo, Perelman,
Julius Stone, not to mention numerous others, illuminate the pathway
towards an understanding that the forms of logical reasoning do not inevi-
tably lead to a one and only conclusion.

Black-letter law and legal logic do not assist us when we reach a fork in
the road. The realist and sociological schools of jurisprudence shed much
light on this problem, which is as pertinent to the judicial function before
this Court as it is in the domestic courts.

The relevance of this approach to seminal cases like the Nuclear Tests
cases has not passed unnoticed. Amidst the vast scholarly literature
generated by the decisions of 1973 and 1974! are discussions examining
the decisions in the light of the philosophical approaches of the Legal

1 See, for example, John Dugard, “The Nuclear Tests Cases and the South West Africa
Cases: Some Realism about the International Judicial Decision”, Virginia Journal of
International Law, 1975-1976, Vol. 15, pp. 463-504; Jerome B. Elkind, “Footnote to the
Nuclear Test Cases: Abuse of Right — A Blind Alley for Environmentalists”, Vanderbilt
Journal of Transnational Law, 1976, Vol. 9, pp. 57-97; Thomas M. Franck, “Word Made
Law: The Decision of the ICT in the Nuclear Test Cases”, American Journal of Interna-
tional Law, 1975, Vol. 69, pp. 612-620; Dinesh Khosla, “Nuclear Test Cases: Judicial
Valour v. Judicial Discretion”, Indian Journal of International Law, 1978, Vol. 18,
pp. 322-344; Pierre Lellouche, “The Nuclear Tests Cases: Judicial Silence v. Atomic
Blasts”, Harvard International Law Journal, 1975, Vol. 16, pp. 614-637.

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Realist and Sociological Schools of Jurisprudence!, for they have a vital
bearing upon the international judicial process. The limits of logic and
black-letter legal analysis will no doubt be similarly examined in the light
of the Court’s determination of this case.

The issues brought before the Court are momentous. They can, accord-
ing to New Zealand, affect the integrity of marine life in the Pacific for
many multiples of 24,000 years, the half-life of one of the by-products of
nuclear explosions, should they reach to the sea. A prima facie case has
been made out of the possibility of release into the ocean of the pent-up
radioactive debris of around 127 nuclear explosions on Mururoa alone.
That pent-up debris is currently confined in a medium whose stability
gives rise to serious doubts. This is a major matter to be examined and it
raises the fears of radioactive contamination that were entertained in
1973. Prima facie a case has been made out for a fuller examination of
these matters.

The Court has refused to take this step on the basis that paragraph 63
of the 1974 Judgment relates only to atmospheric tests, although the
claim was brought before the Court in general terms relating to nuclear
explosions in the Pacific. This is a strict construction which is clearly not
the only reasonable construction justifiable in logic. On the basis of this
strict and inflexible construction, matters of critical importance to the
global environment are passed by without the benefit of a preliminary
examination. A less rigid construction, which is also possible, has been
rejected. The latter course which, in my view, was not unavailable to the
Court, should have been chosen in view of the momentous issues involved.

The views of two eminent judges on this Court may be of assistance in
this regard. It was the view of Judge Lauterpacht, a view cited with evi-
dent approval by Judge Fitzmaurice, that:

“a tribunal such as the International Court has a duty, both to the
parties and in the general interests of the law, that may go consid-
erably beyond a bare decision, and may go beyond the issues the
consideration of which will technically suffice to motivate the
decision” (Sir Gerald Fitzmaurice, The Law and Procedure of the
International Court of Justice, 1986, Vol. II, p. 653).

Judge Fitzmaurice’s own view, expressed in terms of comparing a
minor tribunal with one standing at the apex of judicial organization,
was as follows:

1! See Edward McWhinney, The World Court and the Contemporary International Law-
Making Process, 1979, p. 34; see, also, Edward McWhinney, “International Law-Making
and the Judicial Process: The World Court and the French Nuclear Tests Case”, Syracuse
Journal of International Law and Commerce, 1975, Vol. 3, No. 1, p. 9.

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“The sort of bare order or finding that may suit many of the pur-
poses of the magistrate or county court judge will by no means do
for the Court of Appeal, the House of Lords or the Judicial Com-
mittee 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.” (Op. cit., p. 648.)

New Zealand has placed a strong prima facie case before the Court.
The Court is still far from the stage of reaching an affirmative finding of
fact. All it needs to know at this stage is whether a prima facie case exists
for giving the Court the ability to enquire into the grave matter brought
before it.

If two views are possible on this matter, the Court should in my view
lean towards that which does not shut out enquiry, but leaves the matter
open for definitive determination after both Parties have marshalled their
arguments and the Court is in a better position to decide. When, at this
initial stage, the Court determines that even a prima facie case has not
been made out, enabling it to view the matter in greater depth, it is in
effect giving a definitive determination prematurely on a matter of the
utmost importance, not merely to the Applicant who comes before it but
to the entire international community.

I regret that the Court has not availed itself of the opportunity to
enquire more fully into this matter and of making a contribution to some
of the seminal principles of the evolving corpus of international environ-
mental law!. The Court has too long been silent on these issues and, in
the words of ancient wisdom, one may well ask “If not now, when?”

(Signed) Christopher Gregory WEERAMANTRY.

! Apart from Certain Phosphate Lands in Nauru (Nauru v. Australia) (ILC.J. Reports
1992), Corfu Channel (I.C.J. Reports 1949) and the Nuclear Tests cases, there is no
assistance the Court has given in this most vital area of contemporary international law.
The first was only peripherally related to environmental law as it was settled after the
Court’s judgment on preliminary objections. The Corfu Channel case laid down the envi-
ronmentally important principle that, if a nation knows that harmful effects may occur to
other nations from facts within its knowledge and fails to disclose them, it will be liable to
the nation that suffers damage. In the Nuclear Tests cases of 1973, the Court did not
decide the principal environmental issue brought before it.

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