INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

NUCLEAR TESTS CASE
(NEW ZEALAND y. FRANCE)

JUDGMENT OF 20 DECEMBER 1974

1974

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES ESSAIS NUCLEAIRES
(NOUVELLE-ZELANDE c. FRANCE)

ARRET DU 20 DECEMBRE 1974
Official citation:

Nuclear Tests (New Zealand v. France), Judgment,
LCJ. Reports 1974, p. 457.

Mode officiel de citation:

Essais nucléaires (Nouvelle-Zélande c. France), arrét,
C.L.J. Recueil 1974, p. 457.

No devant: 401

20 DECEMBER 1974

JUDGMENT

NUCLEAR TESTS CASE
(NEW ZEALAND v. FRANCE)

AFFAIRE DES ESSAIS NUCLEAIRES
(NOUVELLE-ZELANDE c. FRANCE)

20 DECEMBRE 1974
ARRET
1974
20 December
General List
No. 59

457

INTERNATIONAL COURT OF JUSTICE
YEAR 1974

20 December 1974

NUCLEAR TESTS CASE

(NEW ZEALAND ». FRANCE)

Questions of jurisdiction and admissibility—Prior examination required of
question of existence of dispute as essentially preliminary matrer—Exercise of
inherent jurisdiction of the Court.

Analysis of claim on the basis of the Application and determination of object
of claim—Significance of submissions and of statements of the Applicant for
definition of the claim—Power of Court to interpret submissions—Public
statements made on behalf of Respondent before and after oral proceedings.

Unilateral acts creative of legal obligations—Principle of good faith.

Resolution of dispute by unilateral declaration giving rise to legal obligation
—Applicant’s non-exercise of right of discontinuance of proceedings no bar to
independent finding by Court—-Disappearance of dispute resulting in claim no
longer having any object—Jurisdiction only to be exercised when dispute
genuinely exists between the Parties.

JUDGMENT

Present: President LACHS; Judges FORSTER, GROS, BENGZON, PETREN,
ONYEAMA, DILLARD, IGNACIO-PINTO, DE CASTRO, MoROZOV,
JIMENEZ DE ARECHAGA, Sir Humphrey WALDOCK, NAGENDRA
SINGH, RUDA; Judge ad hoc Sir Garfield Barwick; Registrar
AQUARONE.

In the Nuclear Tests case,
between

New Zealand,
represented by

Professor R. Q. Quentin-Baxter, of the New Zealand Bar, Professor of
International Law, Victoria University of Wellington,

as Agent and Counsel,
458 NUCLEAR TESTS (JUDGMENT)

assisted by
H.E. Mr. H. V. Roberts, Ambassador of New Zealand,

as Co-Agent,

and by

Hon. Dr. A. M. Finlay, Q.C., Attorney-General of New Zealand,

Mr. R. C. Savage, Q.C., Solicitor-General of New Zealand,

Professor K. J. Keith, of the New Zealand Bar, Professor of International
Law, Victoria University of Wellington,

Mr. C. D. Beeby, of the New Zealand Bar, Legal Adviser, New Zealand
Ministry of Foreign Affairs,

Mrs. A. B. Quentin-Baxter, of the New Zealand Bar,

as Counsel,
and

the French Republic,

THE Court,
composed as above,

delivers the following Judgment:

1. By a letter of 9 May 1973, received in the Registry of the Court the same
day, the Ambassador of New Zealand to the Netherlands transmitted to the
Registrar an Application instituting proceedings against France, in respect of
a dispute concerning the legality of atmospheric nuclear tests conducted by
the French Government in the South Pacific region. In order to found the
jurisdiction of the Court, the Application relied on Article 36, paragraph 1,
and Article 37 of the Statute of the Court and Article 17 of the General Act
for the Pacific Settlement of International Disputes done at Geneva on
26 September 1928, and, in the alternative, on Article 36, paragraphs 2 and 5,
of the Statute of the Court.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
at once communicated to the French Government. Jn accordance with para-
graph 3 of that Article, all other States entitled to appear before the Court
were notified of the Application.

3. Pursuant to Article 31, paragraph 2, of the Statute of the Court, the
Government of New Zealand chose the Right Honourable Sir Garfield
Barwick, Chief Justice of Australia, to sit as judge ad hoc in the case.

4. By a letter dated 16 May 1973 from the Ambassador of France to the
Netherlands, handed by him to the Registrar the same day, the French
Government stated that, for reasons set out in the letter and an Annex thereto,
it considered that the Court was manifestly not competent in the case; that it
could not accept the Court’s jurisdiction; and that accordingly the French
Government did not intend to appoint an agent, and requested the Court to
remove the case from its list. Nor has an agent been appointed by the French
Government.

5. On 14 May 1973, the Agent of New Zealand filed in the Registry of the
Court a request for the indication of interim measures of protection under

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459 NUCLEAR TESTS (JUDGMENT)

Article 33 of the 1928 General Act for the Pacific Settlement of International
Disputes and Articles 41 and 48 of the Statute and Article 66 of the Rules of
Court. By an Order dated 22 June 1973 the Court indicated, on the basis of
Article 41 of the Statute, certain interim measures of protection in the case.

6. By the same Order of 22 June 1973, the Court, considering that it was
necessary to resolve as soon as possible the questions of the Court’s juris-
diction and of the admissibility of the Application, decided that the written
proceedings should first be addressed to the questions of the jurisdiction of the
Court to entertain the dispute and of the admissibility of the Application and
fixed 21 September 1973 as the time-limit for the filing of a Memorial by the
Government of New Zealand and 21 December 1973 as the time-limit for a
Counter-Memorial by the French Government. The Co-Agent of New Zea-
land having requested an extension to 2 November 1973 of the time-limit
fixed for the filing of the Memorial, the time-limits fixed by the Order of 22
June 1973 were extended, by an Order dated 6 September 1973, to 2 November
1973 for the Memorial and 22 March 1974 for the Counter-Memorial. The
Memorial of the Government of New Zealand was filed within the extended
time-limit fixed therefor, and was communicated to the French Government.
No Counter-Memorial was filed by the French Government and, the written
proceedings being thus closed, the case was ready for hearing on 23 March
1974, the day following the expiration of the time-limit fixed for the Counter-
Memorial of the French Government.

7. On 18 May 1973 the Government of Fiji filed in the Registry of the
Court a request under Article 62 of the Statute to be permitted to intervene
in these proceedings. By an Order of 12 July 1973 the Court, having regard
to its Order of 22 June 1973 by which the written proceedings were first to be
addressed to the questions of the jurisdiction of the Court and of the ad-
missibility of the Application, decided to defer its consideration of the appli-
cation of the Government of Fiji for permission to intervene until the Court
should have pronounced upon these questions.

8. On 24 July 1973, the Registrar addressed the notification provided for
in Article 63 of the Statute to the States, other than the Parties to the case,
which were still in existence and were listed in the relevant documents of the
League of Nations as parties to the General Act for the Pacific Settlement of
International Disputes, done at Geneva on 26 September 1928, which was
invoked in the Application as a basis of jurisdiction.

9. The Governments of Argentina, Australia, Fiji and Peru requested that
the pleadings and annexed documents should be made available to them in
accordance with Article 48, paragraph 2, of the Rules of Court. The Parties
were consulted on each occasion, and the French Government having
maintained the position stated in the letter of 16 May 1973, and thus declined
to express an opinion, the Court or the President decided to accede to these
requests.

10. On 10 and 11 July 1974, after due notice to the Parties, public hearings
were held, in the course of which the Court heard the oral argument, on the
questions of the Court’s jurisdiction and of the admissibility of the Appli-
cation, advanced by Professor R. Q. Quentin-Baxter, Agent of New Zealand,
and Dr. A. M. Finlay and Mr. R. C. Savage, counsel, on behalf of the
Government of New Zealand. The French Government was not represented
at the hearings.

11. In the course of the written proceedings, the following submissions
were presented on behalf of the Government of New Zealand:

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460 NUCLEAR TESTS (JUDGMENT)

in the Application:

“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 radio-active fall-out constitutes a
violation of New Zealand’s rights under international law, and that these
rights will be violated by any further such tests.”

in the Memorial:
“... the Government of New Zealand submits to the Court that it is
entitled to a declaration and judgment that—
(a) the Court has jurisdiction to entertain the Application filed by New
Zealand and to deal with the merits of the dispute; and
(6) the Application is admissible”.

12. At the close of the oral proceedings, the following written submissions
were filed in the Registry of the Court on behalf of the Government of New
Zealand:

“The Government of New Zealand is entitled to a declaration and
judgment that:
(a} the Court has jurisdiction to entertain the Application filed by New

Zealand and to deal with the merits of the dispute; and
(b) the Application is admissible.”

13. No pleadings were filed by the French Government, and it was not
represented at the oral proceedings; no formal submissions were therefore
made by that Government. The attitude of the French Government with
regard to the question of the Court’s jurisdiction was however defined in the
above-mentioned letter of 16 May 1973 from the French Ambassador to the
Netherlands and the document annexed thereto. The said letter stated in
particular that:

‘“,,. the Government of the [French] Republic, as it has notified the
Government of New Zealand, considers that the Court is manifestly not
competent in this case and that it cannot accept its jurisdiction”’.

14. As indicated above (paragraph 4), the letter from the French
Ambassador of 16 May 1973 also stated that the French Government
“respectfully requests the Court to be so good as to order that the case
be removed from the list”. At the opening of the public hearing con-
cerning the request for interim measures of protection, held on 24 May
1973, the President announced that “‘this request . . . has been duly noted,
and the Court will deal with it in due course, in application of Article 36,
paragraph 6, of the Statute of the Court”. In its Order of 22 June 1973,
the Court stated that the considerations therein set out did not “permit
the Court to accede at the present stage of the proceedings” to that

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461 NUCLEAR TESTS (JUDGMENT)

request. Having now had the opportunity of examining the request in the
light of the subsequent proceedings, the Court finds that the present case
is not one in which the procedure of summary removal from the list would
be appropriate.

15. It is to be regretted that the French Government has failed to
appear in order to put forward its arguments on the issues arising in the
present phase of the proceedings, and the Court has thus not had the
assistance it might have derived from such arguments or from any evi-
dence adduced in support of them. The Court nevertheless has to proceed
and reach a conclusion, and in doing so must have regard not only to the
evidence brought before it and the arguments addressed to it by the
Applicant, but also to any documentary or other evidence which may be
relevant. It must on this basis satisfy itself, first that there exists no bar to
the exercise of its judicial function, and secondly, if no such bar exists,
that the Application is well founded in fact and in law.

ok

16. The present case relates to a dispute between the Government of
New Zealand and the French Government concerning the legality of
atmospheric nuclear tests conducted by the latter Government in the
South Pacific region. Since in the present phase of the proceedings the
Court has to deal only with preliminary matters, it is appropriate to
recall that its approach to a phase of this kind must be, as it was expressed
in the Fisheries Jurisdiction cases, as follows:

“The issue being thus limited, the Court will avoid not only all
expressions of opinion on matters of substance, but also any pro-
nouncement which might prejudge or appear to prejudge any even-
tual decision on the merits.” (/.C.J. Reports 1973, pp. 7 and 54.)

It will however be necessary to give a summary of the principal facts
underlying the case.

17. Prior to the filing of the Application instituting proceedings in this
case, the French Government had carried out atmospheric tests of
nuclear devices at its Centre d’expérimentations du Pacifique in the
territory of French Polynesia, in the years 1966, 1967, 1968, 1970, 197]
and 1972. The main firing site used has been Mururoa atoll, some 2,500
nautical miles from the nearest point of the North Island of New Zealand
and approximately 1,050 nautical miles from the nearest point of the

8
462 NUCLEAR TESTS (JUDGMENT)

Cook Islands, a self-governing State linked in free association with
New Zealand. The French Government has created “Prohibited Zones”
for aircraft and “Dangerous Zones” for aircraft and shipping, in order
to exclude aircraft and shipping from the area of the tests centre; these
“zones” have been put into effect during the period of testing in each
year in which tests have been carried out.

18. As the United Nations Scientific Committee on the Effects of
Atomic Radiation has recorded in its successive reports to the General
Assembly, the testing of nuclear devices in the atmosphere has entailed
the release into the atmosphere and the consequent dissipation, in varying
degrees throughout the world, of measurable quantities of radio-active
matter. It is asserted by New Zealand that the French atmospheric tests
have caused some fall-out of this kind to be deposited, inter alia, on
New Zealand territory; France has maintained, in particular, that the
radio-active matter produced by its tests has been so infinitesimal that it
may be regarded as negligible and that any fall-out on New Zealand
territory has never involved any danger to the health of the population of
New Zealand. These disputed points are clearly matters going to the
merits of the case, and the Court must therefore refrain, for the reasons
given above, from expressing any view on them.

19. By letters of 21 September 1973 and 1 November 1974, the Govern-
ment of New Zealand informed the Court that subsequent to the Court’s
Order of 22 June 1973 indicating, as interim measures under Article 41 of
the Statute, (inter alia) that the French Government should avoid nuclear
tests causing the deposit of radio-active fall-out on New Zealand territory,
two further series of atmospheric tests, in the months of July and August
1973 and June to September 1974, had been carried out at the Centre
d’expérimentations du Pacifique. The letters also stated that fall-out had
been recorded on New Zealand territory, analysis of samples of which,
according to the New Zealand Government, established conclusively the
presence of fall-out from these tests, and that it was “the view of the
New Zealand Government that there has been a clear breach by the
French Government of the Court’s Order of 22 June 1973”.

20. Recently a number of authoritative statements have been made on
behalf of the French Government concerning its intentions as to future
nuclear testing in the South Pacific region. The significance of these state-
ments, and their effect for the purposes of the present proceedings, will be
examined in detail later in the present Judgment.

*
463 NUCLEAR TESTS (JUDGMENT)

21. The Application founds the jurisdiction of the Court on the follow-
ing basis:

“(a) Articles 36 (1) and 37 of the Statute of the Court and Article 17
of the General Act for the Pacific Settlement of International
Disputes, done at Geneva on 26 September 1928; and, in the
alternative,

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

22. The scope of the present phase of the proceedings was defined by
the Court’s Order of 22 June 1973, by which the Parties were called upon
to argue, in the first instance, questions of the jurisdiction of the Court
and the admissibility of the Application. For this reason, as already
indicated, not only the Parties but also the Court itself must refrain from
entering into the merits of the claim. However, while examining these
questions of a preliminary character, the Court is entitled, and in some
circumstances may be required, to go into other questions which may not
be strictly capable of classification as matters of jurisdiction or admissibi-
lity but are of such a nature as to require examination in priority to those
matters.

23. In this connection, it should be emphasized that the Court possesses
an inherent jurisdiction enabling it to take such action as may be required,
on the one hand to ensure that the exercise of its jurisdiction over the
merits, if and when established, shall not be frustrated, and on the other,
to provide for the orderly settlement of all matters in dispute, to ensure
the observance of the “‘inherent limitations on the exercise of the judicial
function” of the Court, and to ‘‘maintain its judicial character” (Northern
Cameroons, Judgment, I.C.J. Reports 1963, at p. 29). Such inherent juris-
diction, on the basis of which the Court is fully empowered to make
whatever findings may be necessary for the purposes just indicated,
derives from the mere existence of the Court as a judicial organ established
by the consent of States, and is conferred upon it in order that its basic
judicial functions may be safeguarded.

24. With these considerations in mind, the Court has therefore first
to examine a question which it finds to be essentially preliminary, namely
the existence of a dispute, for, whether or not the Court has jurisdiction
in the present case, the resolution of that question could exert a decisive
influence on the continuation of the proceedings. It will therefore be
necessary to make a detailed analysis of the claim submitted to the Court
by the Application of New Zealand. The present phase of the proceedings
having been devoted solely to preliminary questions, the Applicant has
not had the opportunity of fully expounding its contentions on the
merits. However the Application, which is required by Article 40 of the
Statute of the Court to indicate ‘‘the subject of the dispute”, must be the
point of reference for the consideration by the Court of the nature and
existence of the dispute brought before it.

25. The Court would recall that the submission made in the Applica-
tion (paragraph 11 above) is that the Court should adjudge and declare

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“that the conduct by the French Government of nuclear tests in the South
Pacific region that give rise to radio-active fall-out constitutes a violation
of New Zealand’s rights under international law’’—the alleged rights so
violated being enumerated in the Application—and “that these rights will
be violated by any further such tests’.

26. The diplomatic correspondence between New Zealand and France
over the past ten years reveals New Zealand’s preoccupation with French
nuclear tests in the atmosphere in the South Pacific region, and indicates
that its objective was to bring about their termination. Thus in a letter
from the Prime Minister of New Zealand to the French Ambassador in
Wellington dated 19 December 1972, the Prime Minister said:

“My Government is committed to working through all possible
means to bring the tests to an end, and we shall not hesitate to use
the channels available to us in concert as appropriate with like-
minded countries. It is my hope, however, Mr. Ambassador, that
you will convey to your Government while in Paris my earnest
desire to see this one element of serious contention removed from
what is in other respects an excellent relationship between our
countries. For my part, [ see no other way than a halt to further
testing.”

Furthermore in the Application of New Zealand, it is stated, in connec-
tion with discussions held in April 1973 between the two Governments
that:

“Unfortunately, however, they [the discussions] did not lead to
agreement. In particular, the French Government did not feel able
to give the Deputy Prime Minister of New Zealand the assurance
which he sought, namely that the French programme of atmospheric
nuclear testing in the South Pacific had come to an end.”

And in a letter to the President of the French Republic by the Prime
Minister of New Zealand dated 4 May 1973, following those discussions,
the Prime Minister said:

“Since France has not agreed to our request that nuclear weapons
testing in the atmosphere of the South Pacific be brought to an end,
and since the French Government does not accept New Zealand’s
view that these tests are unlawful, the New Zealand Government
sees no alternative to its proceeding with the submission of its dispute
with France to the International Court of Justice.

1 stress again that we see this as the one question at issue between
us, and that our efforts are solely directed at removing it from
contention.”

27. Further light is thrown on the nature of the New Zealand claim
by the reaction of New Zealand, both through its successive Prime
Ministers and through its representatives before the Court, to the state-

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465 NUCLEAR TESTS (JUDGMENT)

ments, referred to in paragraph 20 above, made on behalf of France and
relating to nuclear tests in the South Pacific region. In the course of the
oral proceedings, the Attorney-General of New Zealand outlined the
history of the dispute, and included in this review mention of diplomatic
correspondence exchanged between 10 June and 1 July 1974 by France
and New Zealand, which was communicated to the Court on 3 July by
the Applicant, and of a communiqué issued by the Office of the President
of the French Republic on 8 June 1974. The Attorney-General’s com-
ments on these documents, which are thus part of the record in the case,
indicated that they merited analysis as possible evidence of a certain
development in the controversy between the Parties, though at the same
time he made it clear that this development was not, in his Government’s
view, of such a nature as to resolve the dispute to its satisfaction. More
particularly, when referring to a Note of 10 June 1974 from the French
Embassy in Wellington to the New Zealand Ministry of Foreign Affairs
(quoted in paragraph 36 below) he stated: ‘New Zealand has not been
given anything in the nature of an unqualified assurance that 1974 will
see the end of atmospheric nuclear testing in the South Pacific”. The At-
torney-General continued:

“On 11 June the Prime Minister of New Zealand, Mr. Kirk, asked
the French Ambassador in Wellington to convey a letter to the
President of France. Copies of that letter have been filed with the
Registry. It urged among other things that the President should, even
at that time, weigh the implications of any further atmospheric
testing in the Pacific and resolve to put an end to an activity which
has been the source of grave anxiety to the people of the Pacific region
for more than a decade.” (Hearing of 10 July 1974.)

It is clear from these statements, read in the light of the diplomatic
correspondence referred to above, that if the Note of 10 June 1974
could have been construed by New Zealand as conveying ‘‘an unqualified
assurance that 1974 [would] see the end of atmospheric nuclear testing”
by France “in the South Pacific”, or if the President of the Republic,
following the letter of 11 June 1974, did ‘‘resolve to put an end to [that]
activity”, the applicant Government would have regarded its objective as
having been achieved.

28. Subsequently, on 1 November 1974, the Prime Minister of New
Zealand, Mr. W. E. Rowling, commented in a public statement on the
indications given by France of its intention to put an end to atmospheric
tests in the Pacific, and said:

“It should... be clearly understood that nothing said by the
French Government, whether to New Zealand or to the international
community at large, has amounted to an assurance that there will

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466 NUCLEAR TESTS (JUDGMENT)

be no further atmospheric nuclear tests in the South Pacific. The
option of further atmospheric tests has been left open. Until we have
an assurance that nuclear testing of this kind is finished for good, the
dispute between New Zealand and France persists...” (Emphasis
added.)

Without commenting for the moment on the Prime Minister’s inter-
pretation of the French statements, the Court would observe that the
passage italicized above clearly implies that an assurance that atmospheric
testing is “finished for good” would, in the view of New Zealand, bring
the dispute to an end.

29. The type of tests to which the proceedings relate is described in the
Application as “nuclear tests in the South Pacific region that gave rise to
radio-active fall-out’, the type of testing contemplated not being specified.
However, New Zealand’s case has been argued mainly in relation to
atmospheric tests; and the statements quoted in paragraphs 26, 27 and 28
above, particularly those of successive Prime Ministers of New Zealand,
of 11 June and | November 1974, show that an assurance ‘‘that nuclear
testing of this kind”’, that is to say, testing in the atmosphere, “is finished
for good” would meet the object of the New Zealand claim. The Court
therefore considers that, for purposes of the Application, the New Zealand
claim is to be interpreted as applying only to atmospheric tests, not to any
other form of testing, and as applying only to atmospheric tests so con-
ducted as to give rise to radio-active fall-out on New Zealand territory.

30. Inthe light of the above statements, it is essential to consider whether
the Government of New Zealand requests a judgment by the Court which
would only state the legal relationship between the Applicant and the
Respondent with regard to the matters in issue, or a judgment of a type
which in terms requires one or both of the Parties to take, or refrain from
taking, some action. Thus it is the Court’s duty to isolate the real issue in
the case and to identify the object of the claim. It has never been contested
that the Court is entitled to interpret the submissions of the parties, and
in fact is bound to do so; this is one of the attributes of its judicial func-
tions. It is true that, when the claim is not properly formulated because the
submissions of the parties are inadequate, the Court has no power to
“substitute itself for them and formulate new submissions simply on the
basis of arguments and facts advanced” (P.C.I.J., Series A, No. 7, p. 35),
but that is not the case here, nor is it a case of the reformulation of sub-
missions by the Court. The Court has on the other hand repeatedly
exercised the power to exclude, when necessary, certain contentions or
arguments which were advanced by a party as part of the submissions,
but which were regarded by the Court, not as indications of what the
party was asking the Court to decide, but as reasons advanced why the

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Court should decide in the sense contended for by that party. Thus in
the Fisheries case, the Court said of nine of the thirteen points in the
Applicant’s submissions: “These are elements which might furnish
reasons in support of the Judgment, but cannot constitute the decision”
U.C.J. Reports 1951, p. 126). Similarly in the Minquiers and Ecrehos case,
the Court observed that:

“The Submissions reproduced above and presented by the United
Kingdom Government consist of three paragraphs, the last two
being reasons underlying the first which must be regarded as the
final Submission of that Government. The Submissions of the
French Government consist of ten paragraphs, the first nine being
reasons leading up to the last, which must be regarded as the final
Submission of that Government.” (/.C./. Reports 1953, p. 52; see also
Nottebohm, Second Phase, Judgment, I.C.J. Reports 1955, p. 16.)

31. In the circumstances of the present case, as already mentioned,
the Court must ascertain the true subject of the dispute, the object and
purpose of the claim (cf. Interhandel, Judgment, 1.C.J. Reports 1959, p. 19;
Right of Passage over Indian Territory, Merits, Judgment, I.C,J. Reports
1960, pp. 33-34). In doing so it must take into account not only the
submission, but the Application as a whole, the arguments of the Appli-
cant before the Court, and other documents referred to above. If these
clearly define the object of the claim, the interpretation of the submission
must necessarily be affected. The Court is asked to adjudge and deciare
that French atmospheric nuclear tests are illegal, but at the same time it
is requested to adjudge and declare that the rights of New Zealand ‘will
be violated by any further such tests”. The Application thus contains a
submission requesting a definition of the rights and obligations of the
Parties. However, it is clear that the fons et origo of the dispute was the
atmospheric nuclear tests conducted by France in the South Pacific
region, and that the original and ultimate objective of the Applicant was
and has remained to obtain a termination of those tests. This is indeed
confirmed by the various statements made by the New Zealand Govern-
ment, and in particular by the statement made before the Court in the
oral proceedings, on 10 July 1974, when, after referring to New Zealand’s
submission, the Attorney-General stated that ‘My Government seeks
a halt to a hazardous and unlawful activity”. Thus the dispute brought
before the Court cannot be separated from the situation in which it has
arisen, and from further developments which may have affected it.

32. As already mentioned, the Applicant itself impliedly recognized
the possible relevance of events subsequent to the Application, by drawing
the Court’s attention to the communiqué of 8 June 1974 and subsequent

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diplomatic correspondence, and making observations thereon. In these
circumstances, the Court is bound to take note of further developments,
both prior to and subsequent to the close of the oral proceedings. In view
of the non-appearance of the Respondent, it is especially incumbent upon
the Court to satisfy itself that it is in possession of all the available facts.

33. At the hearing of 10 July 1974 the Court was presented by counsel
for New Zealand with an interpretation of certain expressions of inten-
tion communicated to the New Zealand Government by the French
Government and the French President. In particular he referred to a
communiqué of 8 June 1974 (paragraph 35 below) and a diplomatic
Note of 10 June 1974 (paragraph 36 below), and after quoting from that
Note, he said:

“TI emphasize two points: first, the most France is offering is that
in her own time she will cease to disregard an existing Order of the
Court; and second, even that offer is qualified by the phrase ‘in the
normal course of events’. New Zealand has not been given anything
in the nature of an unqualified assurance that 1974 will see the end
of atmospheric nuclear testing in the South Pacific.”

Since that time, certain French authorities have made a number of
consistent public statements concerning future tests which provide
material facilitating the Court’s task of assessing the A’pplicant’s inter-
pretation of the earlier documents, and which indeed require to be
examined in order to discern whether they embody any modification of
intention as to France’s future conduct. It is true that these statements
have not been made before the Court, but they are in the public domain,
are known to the New Zealand Government, and were commented on
by its Prime Minister in his statement of 1 November 1974. It will clearly
be necessary to consider all these statements, both those drawn to. the
Court’s attention in July 1974 and those subsequently made.

34. It would no doubt have been possible for the Court, had it consi-
dered that the interests of justice so required, to have afforded the Parties
the opportunity, e.g., by reopening the oral proceedings, of addressing to
the Court comments on the statements made since the close of those
proceedings. Such a course however would have been fully justified only
if the matter dealt with in those statements had been completely new,
had not been raised during the proceedings, or was unknown to the
Parties. This is manifestly not the case. The essential material which the
Court must examine was introduced into the proceedings by the Applicant
itself, by no means incidentally, during the course of the hearings, when
it drew the Court’s attention to statements by the French authorities made
prior to that date, submitted the documents containing them and presen-
ted an interpretation of their character, touching particularly upon the

15
469 NUCLEAR TESTS (JUDGMENT)

question whether they contained a firm assurance. Thus both the state-
ments and the New Zealand interpretation of them are before the Court
pursuant to action by the Applicant. Moreover, the Applicant subse-
quently publicly expressed its comments (see paragraph 28 above) on
statements made by the French authorities since the closure of the oral
proceedings. The Court is therefore in possession not only of the statements
made by French authorities concerning the cessation of atmospheric
nuclear testing, but also of the views of the Applicant on them. Although
as a judicial body the Court is conscious of the importance of the prin-
ciple expressed inthe maxim audi alteram partem, it does not consider that
this principle precludes the Court from taking account of statements made
subsequently to the oral proceedings, and which merely supplement and
reinforce matters already discussed in the course of the proceedings,
statements with which the Applicant must be familiar. Thus the Applicant,
having commented on the statements of the French authorities, both that
made prior to the oral proceedings and those made subsequently, could
reasonably expect that the Court would deal with the matter and come
to its own conclusion on the meaning and effect of those statements.
The Court, having taken note of the Applicant’s comments, and feeling
no obligation to consult the Parties on the basis for its decision, finds that
the reopening of the oral proceedings would serve no useful purpose.

35. It will be convenient to take the statements referred to above in
chronological order. The first statement is contained in the communiqué
issued by the Office of the President of the French Republic on 8 June
1974, shortly before the commencement of the 1974 series of French
nuclear tests:

“The Decree reintroducing the security measures in the South
Pacific nuclear test zone has been published in the Official Journal
of 8 June 1974.

The Office of the President of the Republic takes this opportunity
of stating that in view of the stage reached in carrying out the French
nuclear defence programme France will be in a position to pass on
to the stage of underground explosions as soon as the series of tests
planned for this summer is completed.”

36. The second is contained in a Note of 10 June 1974 from the French
Embassy in Wellington to the New Zealand Ministry of Foreign Affairs:

“It should .. . be pointed out that the decision taken by the Office
of the President of the French Republic to have the opening of the
nuclear test series preceded by a press communiqué represents a
departure from the practice of previous years. This procedure has
been chosen in view of the fact that a new element has intervened in
the development of the programme for perfecting the French
deterrent force. This new element is as follows: France, at the point
which has been reached in the execution of its programme of defence

16
470

NUCLEAR TESTS (JUDGMENT)

by nuclear means, will be in a position to move to the stage of under-
ground firings as soon as the test series planned for this summer is
completed.

Thus the atmospheric tests which will be carried out shortly will,
in the normal course of events, be the last of this type.

The French authorities express the hope that the New Zealand
Government will find this information of some interest and will wish
to take it into consideration.”

37. As indicated by counsel for the Applicant at the hearing of 10 July
1974, the reaction of the New Zealand Prime Minister to this second
statement was expressed in a letter to the President of the French Repub-
lic dated 11 June 1974, from which the following are two extracts:

“*, . Lhave noted that the terms of the announcement do not represent
an unqualified renunciation of atmospheric testing for the future.”

“I would hope that even at this stage you would be prepared to
weigh the implications of any further atmospheric testing in the
Pacific and resolve to put an end to this activity which has been the
source of grave anxiety to the people in the Pacific region for more
than a decade.”

Thus the phrase “‘in the normal course of events’? was regarded by New
Zealand as qualifying the statement made, so that it did not meet the
expectations of the Applicant, which evidently regarded those words as a
form of escape clause. This is clear from the observations of counsel for
New Zealand at the hearing of 10 July 1974. In a Note of 17 June 1974,
the New Zealand Embassy in Paris stated that it had good reason to
believe that France had carried out an atmospheric nuclear test on 16 June
and made this further comment:

“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.”

38. The third French statement is contained in a reply made on 1 July
1974 by the President of the Republic to the New Zealand Prime Minis-
ter’s letter of 11 June:

17

“In present circumstances, it is at least gratifying for me to note
the positive reaction in your letter to the announcement in the
communiqué of 8 June 1974 that we are going over to underground
471 NUCLEAR TESTS (JUDGMENT)

tests. There is in this a new element whose importance will not, I
trust, escape the New Zealand Government.”

39. These three statements were all drawn to the notice of the Court
by the Applicant at the time of the oral proceedings. As already indicated,
the Court will also have to consider the relevant statements subsequently
made by the French authorities: on 25 July 1974 by the President of the
Republic; on 16 August 1974 by the Minister of Defence; on 25 Septem-
ber 1974 by the Minister for Foreign Affairs in the United Nations
General Assembly; and on 11 October 1974 by the Minister of Defence.

40. The next statement to be considered, therefore, will be that made
on 25 July at a press conference given by the President of the Republic,
when he said:

“...on this question of nuclear tests, you know that the Prime
Minister had publicly expressed himself in the National Assembly
in his speech introducing the Government’s programme. He had
indicated that French nuclear testing would continue. I had myself
made it clear that this round of atmospheric tests would be the last,
and so the members of the Government were completely informed
of our intentions in this respect . . .”

41. On 16 August 1974, in the course of an interview on French
television, the Minister of Defence said that the French Government had
done its best to ensure that the 1974 nuclear tests would be the last
atmospheric tests.

42. On 25 September 1974, the French Minister for Foreign Affairs,
addressing the United Nations General Assembly, said:

“‘We have now reached a stage in our nuclear technology that
makes it possible for us to continue our programme by underground
testing, and we have taken steps to do so as early as next year.”

43. On 11 October 1974, the Minister of Defence held a press con-
ference during which he stated twice, in almost identical terms, that
there would not be any atmospheric tests in 1975 and that France was
ready to proceed to underground tests. When the comment was made
that he had not added ‘in the normal course of events”, he agreed that
he had not. This latter point is relevant in view of the Note of 10 June
1974 from the French Embassy in Wellington to the Ministry of Foreign
Affairs of New Zealand (paragraph 36 above), to the effect that the atmos-
pheric tests contemplated ‘will, in the normal course of events, be the
last of this type”. The Minister also mentioned that, whether or not
other governments had been officially advised of the decision, they could
become aware of it through the press and by reading the communiqués
issued by the Office of the President of the Republic.

18
472 NUCLEAR TESTS (JUDGMENT)

44. In view of the foregoing, the Court finds that the communiqué
issued on 8 June 1974 (paragraph 35 above), the French Embassy’s Note of
10 June 1974 (paragraph 36 above) and the President’s letter of 1 July 1974
(paragraph 38) conveyed to New Zealand the announcement that France,
following the conclusion of the 1974 series of tests, would cease the
conduct of atmospheric nuclear tests. Special attention is drawn to the
hope expressed in the Note of 10 June 1974 “that the New Zealand
Government will find this information of some interest and will wish
to take it into consideration’’, and the reference in that Note and in the
letter of 1 July 1974 to “a new element” whose importance is urged upon
the New Zealand Government. The Court must consider in particular
the President’s statement of 25 July 1974 (paragraph 40 above) followed
by the Defence Minister’s statement of 11 October 1974 (paragraph 43).
These reveal that the official statements made on behalf of France con-
cerning future nuclear testing are not subject to whatever proviso, if any,
was implied by the expression ‘‘in the normal course of events /normale-
ment].

45. Before considering whether the declarations made by the French
authorities meet the object of the claim by the Applicant that no further
atmospheric nuclear tests should be carried out in the South Pacific, it is
first necessary to determine the status and scope on the international
plane of these declarations.

46. It is well recognized that declarations made by way of unilateral
acts, concerning legal or factual situations, may have the effect of creating
legal obligations. Declarations of this kind may be, and often are, very
specific. When it is the intention of the State making the declaration that
it should become bound according to its terms, that intention confers on
the declaration the character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if given publicly, and with
an intent to be bound, even though not made within the context of inter-
national negotiations, is binding. In these circumstances, nothing in
the nature of a quid pro quo, nor any subsequent acceptance of the
declaration, nor even any reply or reaction from other States, is required
for the declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by which
the pronouncement by the State was made.

47. Of course, not all unilateral acts imply obligation; but a State
may choose to take up a certain position in relation to a particular matter
with the intention of being bound—the intention is to be ascertained by

19
473 NUCLEAR TESTS (JUDGMENT)

interpretation of the act. When States make statements by which their
freedom of action is to be limited, a restrictive interpretation is called
for.

48. With regard to the question of form, it should be observed that
this is not a domain in which international law imposes any special or
strict requirements. Whether a statement is made orally or in writing
makes no essential difference, for such statements made in particular
circumstances may create commitments in international law, which
does not require that they should be couched in written form. Thus the
question of form is not decisive. As the Court said in its Judgment on the
preliminary objections in the case concerning the Temple of Preah Vihear:

“Where ...as is generally the case in international law, which
places the principal emphasis on the intention of the parties, the law
prescribes no particular form, parties are free to choose what form
they please provided their intention clearly results from it.” (1.C.J.
Reports 1961, p. 31.)

The Court further stated in the same case: “*.. . the sole relevant question
is whether the language employed in any given declaration does reveal a
clear intention .. .” (/bid., p. 32).

49. One of the basic principles governing the creation and performance
of legal obligations, whatever their source, is the principle of good faith.
Trust and confidence are inherent in international co-operation, in parti-
cular in an age when this co-operation in many fields is becoming
increasingly essential. Just as the very rule of pacta sunt servanda in the
law of treaties is based on good faith, so also is the binding character of an
international obligation assumed. by unilateral declaration. Thus inter-
ested States may take cognizance of unilateral declarations and place
confidence in them, and are entitled to require that the obligation thus
created be respected.

50. Having examined the legal principles involved, the Court will now
turn to the particular statements made by the French Government.
The Government of New Zealand has made known to the Court its own
interpretation of some of these statements at the oral proceedings (para-
graph 27 above). As to subsequent statements, reference may be made to
what was said by the Prime Minister of New Zealand on 1 November 1974
(paragraph 28 above). It will be observed that New Zealand has recog-
nized the possibility of the dispute being resolved by a unilateral declara-
tion, of the kind specified above, on the part of France. In the public
statement of ! November 1974, it is stated that ‘“‘Until we have an assur-
ance that nuclear testing of this kind is finished for good, the dispute
between New Zealand and France persists’. This is based on the view

20
474 NUCLEAR TESTS (JUDGMENT)

that ‘‘the option of further atmospheric tests has been left open”. The
Court must however form its own view of the meaning and scope intended
by the author of a unilateral declaration which may create a legal obli-
gation, and cannot in this respect be bound by the view expressed by
another State which is in no way a party to the text.

51. Of the statements by the French Government now before the
Court, the most essential are clearly those made by the President of the
Republic. There can be no doubt, in view of his functions, that his public
communications or statements, oral or written, as Head of State, are in
international relations acts of the French State. His statements, and those
of members of the French Government acting under his authority, up to
the last statement made by the Minister of Defence (of 1] October 1974),
constitute a whole. Thus, in whatever form these statements were expres-
sed, they must be held to constitute an engagement of the State, having
regard to their intention and to the circumstances in which they were
made.

52. The unilateral statements of the French authorities were made
outside the Court, publicly and erga omnes, even if some of them were
communicated to the Government of New Zealand. As was observed
above, to have legal effect, there was no need for these statements to be
addressed to a particular State, nor was acceptance by any other State
required. The general nature and characteristics of these statements are
decisive for the evaluation of the legal implications, and it is to the inter-
pretation of the statements that the Court must now proceed. The Court
is entitled to presume, at the outset, that these statements were not made
in vacuo, but in relation to the tests which constitute the very object of the
present proceedings, although France has not appeared in the case.

53. In announcing that the 1974 series of atmospheric tests would
be the last, the French Government conveyed to the world at large,
including the Applicant, its intention effectively to terminate these tests.
It was bound to assume that other States might take note of these state-
ments and rely on their being effective. The validity of these statements
and their legal consequences must be considered within the general
framework of the security of international intercourse, and the confidence
and trust which are so essential in the relations among States. It is from
the actual substance of these statements and from the circumstances
attending their making, that the legal implications of the unilateral act
must be deduced. The objects of these statements are clear and they were
addressed to the international community as a whole, and the Court
holds that they constitute an undertaking possessing legal effect. The
Court considers that the President of the Republic, in deciding upon the
effective cessation of atmospheric tests, gave an undertaking to the inter-
national community to which his words were addressed. It is true that the
French Government has consistently maintained that its nuclear experi-

21
475 NUCLEAR TESTS (JUDGMENT)

ments do not contravene any subsisting provision of international law,
nor did France recognize that it was bound by any rule of international
law to terminate its tests, but this does not affect the legal consequences of
the statements examined above. The Court finds that the unilateral under-
taking resulting from these statements cannot be interpreted as having
been made in implicit reliance on an arbitrary power of reconsideration.
The Court finds further that the French Government has undertaken an
obligation the precise nature and limits of which must be understood in
accordance with the actual terms in which they have been publicly ex-
pressed.

54. The Court will now confront the commitment entered into by
France with the claim advanced by the Applicant. Though the latter
has formally requested from the Court a finding on the rights and obliga-
tions of the Parties, it has throughout the dispute maintained as its final
objective the termination of the tests. It has sought from France an
assurance that the French programme of atmospheric nuclear testing
would come to an end. While expressing its opposition to the 1974 tests,
the Government of New Zealand made specific reference to an assurance
that “1974 will see the end of atmospheric nuclear testing in the South
Pacific” (paragraph 33 above). On more than one occasion it has indicated
that it would be ready to accept such an assurance. Since the Court now
finds that a commitment in this respect has been entered into by France,
there is no occasion for a pronouncement in respect of rights and obli-
gations of the Parties concerning the past—which in other circumstances
the Court would be entitled and even obliged to make—whatever the
date by reference to which such pronouncement might be made.

55. Thus the Court faces a situation in which the objective of the
Applicant has in effect been accomplished, inasmuch as the Court finds
that France has undertaken the obligation to hold no further nuclear
tests in the atmosphere in the South Pacific.

56. This conclusion is not affected by a reference made by the New
Zealand Government, in successive diplomatic Notes to the French
Government from 1966 to 1974, to a formal reservation of “‘the right to
hold the French Government responsible for any damage or losses
received by New Zealand ... as a result of any nuclear weapons tests
conducted by France”; for no mention of any request for damages is
_made in the Application, and at the public hearing of 10 July 1974 the
Attorney-General of New Zealand specifically stated: ‘My Government
seeks a halt to a hazardous and unlawful activity, and not compensation
for its continuance.” The Court therefore finds that no question of
damages in respect of tests already conducted arises in the present case.

57. It must be assumed that had New Zealand received an assurance,
on one of the occasions when this was requested, which, in its inter-
pretation, would have been satisfactory, it would have considered the
dispute as concluded and would have discontinued the proceedings in

22
476 NUCLEAR TESTS (JUDGMENT)

accordance with the Rules of Court. If it has not done so, this does not
prevent the Court from making its own independent finding on the sub-
ject. It is true that “the Court cannot take into account declarations,
admissions or proposals which the Parties may have made during direct
negotiations between themselves, when such negotiations have not led toa
complete agreement” (Factory at Chorzéw (Merits), P.C.I.J., Series A,
No. 17, p. 51). However, in the present case, that is not the situation
before the Court. The Applicant has clearly indicated what would satisfy
its claim, and the Respondent has independently taken action; the ques-
tion for the Court is thus one of interpretation of the conduct of each of
the Parties. The conclusion at which the Court has arrived as a result
of such interpretation does not mean that it is itself effecting a compromise
of the claim; the Court is merely ascertaining the object of the claim and
the effect of the Respondent’s action, and this it is obliged to do. Any
suggestion that the dispute would not be capable of being terminated by
statements made on behalf of France would run counter to the unequivo-
cally expressed views of the Applicant both before the Court and else-
where.

58. The Court, as a court of law, is called upon to resolve existing
disputes between States. Thus the existence of a dispute is the primary
condition for the Court to exercise its judicial function; it is not sufficient
for one party to assert that there is a dispute, since “whether there exists
an international dispute is a matter for objective determination” by the
Court (Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania (First Phase), Advisory Opinion, I.C.J. Reports 1950, p. 74).
The dispute brought before it must therefore continue to exist at the
time when the Court makes its decision. It must not fail to take cogni-
zance of a situation in which the dispute has disappeared because the final
objective which the Applicant has maintained throughout has been
achieved by other means. If the declarations of France concerning the
effective cessation of the nuclear tests have the significance described
by the Court, that is to say if they have caused the dispute to disappear, all
the necessary consequences must be drawn from this finding.

59. It may be argued that although France may have undertaken
such an obligation, by a unilateral declaration, not to carry out atmos-
pheric nuclear tests in the South Pacific region, a judgment of the Court
on this subject might still be of value because, if the Judgment upheld
the Applicant’s contentions, it would reinforce the position of the Appli-
cant by affirming the obligation of the Respondent. However, the Court
having found that the Respondent has assumed an obligation as to
conduct, concerning the effective cessation of nuclear tests, no further
judicial action is required. The Applicant has repeatedly sought from the
Respondent an assurance that the tests would cease, and the Respondent
has, on its own initiative, made a series of statements to the effect that they
will cease. Thus the Court concludes that, the dispute having disappeared,
the claim advanced by New Zealand no longer has any object. It follows
that any further finding would have no raison d’être.

23
477 NUCLEAR TESTS (JUDGMENT)

60. This is not to say that the Court may select from the cases sub-
mitted to it those it feels suitable for judgment while refusing to give
judgment in others. Article 38 of the Court’s Statute provides that its
function is ‘“‘to decide in accordance with international law such disputes
as are submitted to it’’; but not only Article 38 itself but other provisions
of the Statute and Rules also make it clear that the Court can exercise
its jurisdiction in contentious proceedings only when a dispute genuinely
exists between the parties. In refraining from further action in this case the
Court is therefore merely acting in accordance with the proper inter-
pretation of its judicial function.

61. The Court has in the past indicated considerations which would
lead it to decline to give judgment. The present case is one in which
“circumstances that have ... arisen render any adjudication devoid of
purpose” (Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 38).
The Court therefore sees no reason to allow the continuance of proceed-
ings which it knows are bound to be fruitless. While judicial settlement
may provide a path to international harmony in circumstances of con-
flict, it is none the less true that the needless continuance of litigation is
an obstacle to such harmony.

62. Thus the Court finds that no further pronouncement is required
in the present case. It does not enter into the adjudicatory functions
of the Court to deal with issues in abstracto, once it has reached the
conclusion that the merits of the case no longer fall to be determined.
The object of the claim having clearly disappeared, there is nothing
on which to give judgment.

63. Once the Court has found that a State has entered into a commit-
ment 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 accordance 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.

64. In its above-mentioned Order of 22 June 1973, the Court stated
that the provisional measures therein set out were indicated “pending
its final decision in the proceedings instituted on 9 May 1973 by New

24
478 NUCLEAR TESTS (JUDGMENT)

Zealand against France”. It follows that such Order ceases to be operative
upon the delivery of the present Judgment, and that the provisional
measures lapse at the same time.

65. For these reasons,
THE COURT,

by nine votes to six,

finds that the claim of New Zealand no longer has any object and that the
Court is therefore not called upon to give a decision thereon.

Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this twentieth day of December, one
thousand nine hundred and seventy-four, in three copies, one of which
will be placed in the archives of the Court and the others transmitted
to the Government of New Zealand and the Government of the French
Republic, respectively.

(Signed) Manfred Lacus,
President.

(Signed) S. AQUARONE,
Registrar.

Judges Forster, GROS, PETREN and IGNACIO-PINTO append separate
opinions to the Judgment of the Court.

Judges ONYEAMA, DILLARD, JIMENEZ DE ARECHAGA and Sir Humphrey
WALDOCK append a joint dissenting opinion, and Judge DE CASTRO and
Judge ad hoc Sir Garfield BARWICK append dissenting opinions to the
Judgment of the Court.

(Initialled) M.L.
(UInitialled) S.A.

25


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

LEGAL CONSEQUENCES FOR STATES OF THE
CONTINUED PRESENCE OF SOUTH AFRICA IN
NAMIBIA (SOUTH WEST AFRICA)
NOTWITHSTANDING SECURITY COUNCIL
RESOLUTION 276 (1970)

(REQUEST FOR ADVISORY OPINION)

ORDER OF 28 AUGUST 1976

1970

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

CONSÉQUENCES JURIDIQUES POUR LES ÉTATS DE
LA PRESENCE CONTINUE DE L’AFRIQUE DU SUD
EN NAMIBIE (SUD-OUEST AFRICAIN)
NONOBSTANT LA RÉSOLUTION 276 (1970)

DU CONSEIL DE SÉCURITÉ

(REQUÊTE POUR AVIS CONSULTATIF)

ORDONNANCE DU 28 AOÛT 1970
Official citation:

Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council Reso-
lution 276 (1970), Order of 28 August 1970. I.C.J. Reports 1970, p. 362.

Mode officiel de citation:

Conséquences juridiques pour les Etats de la présence continue de I’ Afrique

du Sud en Namibie (Sud-Ouest africain) nonobstant la résolution 276

(1970) du Conseil de sécurité, ordonnance du 28 août 1970, C.I.J. Recueil
1970, p. 362.

Gore 342 |

362

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1970 1970
28 août
a Rôle génér

28 août 1970 n° 53

CONSÉQUENCES JURIDIQUES POUR LES ÉTATS DE
LA PRESENCE CONTINUE DE L’AFRIQUE DU SUD
EN NAMIBIE (SUD-OUEST AFRICAIN)
NONOBSTANT LA RESOLUTION 276 (1970)

DU CONSEIL DE SECURITE

(REQUETE POUR AVIS CONSULTATIF)

ORDONNANCE

Le Président de la Cour internationale de Justice,
Vu l’article 66, paragraphe 2, du Statut de la Cour et les articles 37

et 82 du Réglement de la Cour,

Vu l’ordonnance du 5 août 1970 fixant au 23 septembre 1970 la date

d’expiration du délai dans lequel des exposés écrits peuvent être présentés
conformément à l’article 66, paragraphe 2, du Statut de la Cour;

Considérant que, par lettre du 19 août 1970 remise au Greffier le

24 août 1970, le secrétaire aux Affaires étrangères de l'Afrique du Sud a,
pour les raisons par lui indiquées, demandé le report au 31 janvier 1971

de la date d’expiration du délai pour la présentation d’un exposé écrit;
Reporte au 19 novembre 1970 la date d’expiration du délai dans lequel

des exposés écrits peuvent être présentés conformément à l’article 66,
paragraphe 2, du Statut de la Cour;

4
NAMIBIE (SUD-OUEST AFRICAIN) (ORDONNANCE 28 VIII 70) 363

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au palais de
la Paix, La Haye, le vingt-huit août mil neuf cent soixante-dix.

Le Président,
(Signé) ZAFRULLA KHAN.

Le Greffier,
(Signé) S. AQUARONE.


1358

DECLARATION OF JUDGE KOROMA

While I concur with the Court’s findings in the operative paragraph of
the Judgment, I nevertheless consider it important to stress the following.

What the Court was asked to determine and has, in fact, ruled on
during this phase of the proceedings is the issue of jurisdiction.

The Applicant, the Government of Serbia and Montenegro, requested
the Court, inter alia, to adjudge and declare in respect of its jurisdiction
ratione personae.

The Government of the United Kingdom at the oral proceedings
requested the Court to remove the case from its List or, in the alternative,
to declare that it lacked jurisdiction over the claim brought against the
United Kingdom by Serbia and Montenegro.

Thus, neither Party called upon the Court to uphold its jurisdiction or
asserted that it was entitled to enter into the merits of the case, but rather
requested it to decide on its jurisdiction and to determine whether, as a
matter of law, the Applicant was entitled to bring a claim before the
Court. This Judgment is the response to the question about jurisdiction.
As the Court has stated (para. 36), the function of a decision of the Court
on its jurisdiction in a particular case is solely to determine whether or
not it may entertain the case on the merits and not to make any deter-
mination on substantive issues. The Court is obliged to discharge this
function before entering into the merits of a case. Moreover, this function
to decide on its jurisdiction is both primary and imperative. It is at one
and the same time both determined and limited by the Charter of the
United Nations and the Statute of the Court. The Court cannot emanci-
pate itself from this statutory requirement. It is therefore not only in con-
formity with the Statute of the Court but also by the force of logic that
the point of departure for the Court in responding to that question would
have to be the determination of its jurisdiction ratione personae.

It is within this paradigm that the Judgment should be understood: as
a decision by the Court on its jurisdiction, without any position being
taken on the merits of the dispute.

(Signed) Abdul G. Koroma.

55


626

DECLARATION OF JUDGE KOROMA

While I concur with the Court’s findings in the operative paragraph of
the Judgment, I nevertheless consider it important to stress the following.

What the Court was asked to determine and has, in fact, ruled on
during this phase of the proceedings is the issue of jurisdiction.

The Applicant, the Government of Serbia and Montenegro, requested
the Court, inter alia, to adjudge and declare in respect of its jurisdiction
ratione personae.

The Government of France, inter alia, asked the Court to adjudge and
declare that it lacked jurisdiction to rule on the Application filed by the
Federal Republic of Yugoslavia.

Thus, neither Party called upon the Court to uphold its jurisdiction or
asserted that it was entitled to enter into the merits of the case, but rather
requested it to decide on its jurisdiction and to determine whether, as a
matter of law, the Applicant was entitled to bring a claim before the
Court. This Judgment is the response to the question about jurisdiction.
As the Court has stated (para. 37), the function of a decision of the Court
on its jurisdiction in a particular case is solely to determine whether or
not it may entertain the case on the merits and not to make any deter-
mination on substantive issues. The Court is obliged to discharge this
function before entering into the merits of a case. Moreover, this function
to decide on its jurisdiction is both primary and imperative. It is at one
and the same time both determined and limited by the Charter of the
United Nations and the Statute of the Court. The Court cannot emanci-
pate itself from this statutory requirement. It is therefore not only in con-
formity with the Statute of the Court but also by the force of logic that
the point of departure for the Court in responding to that question would
have to be the determination of its jurisdiction ratione personae.

It is within this paradigm that the Judgment should be understood: as
a decision by the Court on its jurisdiction, without any position being
taken on the merits of the dispute.

(Signed) Abdul G. Koroma.

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