Nuclear Test Cases (Australia v. France), Request for the Indication of Interim Measures of Protection, [1973] ICJ Rep. 99

[NB– The background of this proceeding involves French atmospheric testing of nuclear devices on Muroroa Atoll as French territory in the South Pacific (which testing was eventually moved underground and continued until a voluntary moratorium in 1996). The French atomic tests were not unlike similar US tests at Bikini Atoll in the Marshall Islands 1946-1958. France’s nuclear tests were part of its development of the force de frappe, or independent nuclear deterrent capability during the Cold War. The ICJ proceedings were brought just as France moved from atmospheric to underground testing. Australia’s claim was that, because of its downwind location, it would inevitably be subjected to radioactive fall-out and thus France had no right to explode a nuclear device even on French territory without Australia’s consent because of the presumed injury to Australian interests.]

Excerpt from Diss. Op. Judge Ignacio-Pinto

There is another important point which does not seem to have been sufficiently taken into account in the arguments put forward by the French Government. I refer to its reiterated request to the Australian Government expressed in its Ambassador’s letter of 7 February 1973 to the Australian Prime Minister and Foreign Minister (Application. Annex 10. p. 57) that it be given some indication of the precise rules of international law which France is said to violate:

“But the French Government find it hard to see what is the precise rule on whose existence Australia relies. Perhaps Australia could enlighten it on this point.

In reality, it seems to the French Government that this complaint of the violation of international law on account of atomic pollution amounts to a claim that atmospheric nuclear experiments are automatically unlawful. This, in its view, is not the case. But here again the French Government would appreciate having its attention drawn to any points lending colour to the opposite opinion.”

This request for specific enlightenment has received no reply, and Australia has confined itself to presuming the existence of a right which in my view does not really exist, alleging moreover more or less hypothetical damage, the assessment of which is difficult in the extreme. Nevertheless the majority of the Court has seen fit to recognize that such damage, however uncertain or imprecise it may be, is sufficient to justify acceding to the request for the indication of provisional measures without any clear Statement of the nature of the rights which have to be protected or preserved.

Of course- Australia can invoke its sovereignty over its territory and its right to prevent pollution caused by another State. But when the French Government also claims to exercise its right of territorial sovereignty, by proceeding to carry out tests in its territory. Is it legally to deprive it of that right, on account of the mere expression of the will of Australia?

In my opinion, international law is now, and will be for some time to come, a law in process of formation and one which contains only a concept of responsibility after the fact, unlike municipal law, in which the possible range of responsibility can be determined with precision a priori. Whatever those who hold the opposite view may think, each State is free to act as it thinks fit within the limits of its sovereignty. And in the event of genuine damage or injury, if the said damage is clearly established, it owes reparation to the State having suffered that damage.

There is so far as I am aware, in international law no hierarchy in the exercise of the right of sovereignty, and the Order issued by the Court has- at least, for the moment- no legal ground for preventing the French Government from making use of its right of sovereignty and exploding an atomic device, as other States have done before it, and as one other State is still doing at the present time, in order to obtain the means of ensuring their own security.

Is Australia’s right, in the exercise of its sovereignty, to be regarded superior to the identical right possessed by France, which would thus rank second when it came to exercise of its own right?

By directing the French government to “avoid nuclear tests causing the deposit of radioactive, industrially in territory” (operative clauses of the Order: emphasis added), the Court certainly overstates the limits of its powers, and appears thereby to be innovating in declaring unlawful the exercise the right which can now has been regarded as falling within the sovereignty of a State. The Court is not in the Supreme Court as in municipal law, nor does have legislative powers, and if has no right to hand down a decision against a State which by a formal declaration excludes its jurisdiction over disputes concerning activities connected with national defense.

I entirely agree with Australia that the country runs considerable risk by seeing atomic fall-out descend upon its territory in seeing its people suffer the harmful effects thereof, and for my own part, I would like to see that risk finally exorcised, but I see no existing legal means in the present State of the law which would authorize a State to come before the Court asking it to prohibit another State from carrying out on its own territory such activities, which involve risks to its neighbors.

This is so pertinent that I find it expressed even in Moscow Treaty of 5 June 1963, the object to which is in fact the prohibition of atmospheric nuclear tests — the French government, incidentally, is not party to this Treaty — for Article IV thereof embodies a reservation which is so substantial, probably in order to satisfy the major States which hold the greatest stocks of nuclear weapons, that the prohibition becomes practically ineffective. Article IV provides that:

“This treaty shall be of unlimited duration.

Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other parties to the Treaty three months in advance.” (Emphasis added.)

Is it admissible that the reservation effected by these States should remain valid, so as to authorize them to recommence their nuclear experiments if extraordinary events should have jeopardized the supreme interests of their countries, while the Court’s Order forbids France to exercise its right to carry out its tests of the present time, no valid treaty obligation now exist to prevent it from doing so?

Does not the existence of such a treaty, containing such reservation, demonstrate the lack of legal basis whichever the Court to dismiss the Australian request for the indication of interim measures?

The point is that if the Court were to adopt the contention of the Australian request it would be near to endorsing a novel conception in international law whereby States would be forbidden to engage in any risk producing activity within the area of their own territorial sovereignty: but that would amount to granting any State the right to intervene preventively in the international affairs of other States. Yet Article 2, paragraph 7, of the Charter is categorical on that point.

In the present state of international law, the “apprehension” of a State, or “anxiety”, “the risk of atomic radiation”, do not in my view suffice to substantiate some higher law imposed on all States and limiting their sovereignty as regards atmospheric nuclear test.

Those who hold the opposite view may perhaps represent the figure heads or vanguard of a system of gradual development of international law, but it is not admissible to take their wishes into account in order to modify the present state of the law. …

Compare: Excerpt from Separate Opinion by Judge Ketron (1974) ICJ. Rptr. 297

For my part, I do not believe that it is possible as to set aside consideration of all the preliminary questions indicated in the order of 22 June 1973. More particularly, the Court ought in my view to have formed an opinion from the outset as to the true character of the dispute which was the subject to the Application; if the Court had found that the dispute did not concern a point of international law, it was for that absolutely primordial reason that it should have removed the case from its list, and not because the nonexistence of the subject to the dispute was ascertained after many months of proceedings.

It is from that angle that I believe I should consider the question of the admissibility of Australia’s application. It is still my view that, as I said in the dissenting opinion which I appended to the order of 22 June 1973, what is first and foremost necessary is to ask oneself whether atmospheric tests of nuclear weapons are, generally speaking, governed by norms of international law, or whether they belong to a highly political domain where the international norms of legality or illegality are still at the gestation stage. It is quite true that disputes concerning the interpretation or application of rules of international law may possess great political importance without thereby losing their inherent character of being legal disputes. It is nonetheless necessary to distinguish between disputes revolving on norms of international law and tensions between States caused by measures taken into domain not yet governed by international law. …

We can see a similar evolution taking place today in an Allied Field, that of the protection of the environment. Atmospheric nuclear tests, envisaged as the bearers of a particularly serious risk of environmental pollution, are a source of acute anxiety for present-day mankind, and it is only natural that efforts should be made on the international plane to erect legal barriers to can and that kind of test. In the present case the question is whether such barriers existed at the time of the filing of the Australian Application. That Application cannot be considered admissible if, at the moment when it was filed, international law had not reached the stage of applicability to the atmospheric testing of nuclear weapons. It has been argued that it is sufficient for two parties to be in dispute over a right for an application from one of them on that subject to be admissible. Such would be the situation in the present case, but to my mind the question of the admissibility of an application cannot be reduced to the observance of so simple formula. It is still necessary that the right claimed by the applicant party should belong to domain governed by international law. In the present case, the Application is based upon an allegation that France’s nuclear tests in the Pacific have given rise to radioactive fall out on the territory of Australia. The Australian government considers that its sovereignty has thereby been infringed in a manner contrary to international law. As there is no treaty between Australian and France in the matter of nuclear tests, the Application presupposes the existence of the rule of customary international law whereby States are prohibited from causing, through atmospheric nuclear test, the deposit of radioactive fall-out on the territory of other States. It is therefore the existence or nonexistence of such a customary rule which test to be determined.

It was suggested in the course of the proceedings that the question of the admissibility of the Application was not of an exclusively preliminary character and that consideration of it could be deferred until the examination of the merits. This raises a question regarding application of Art 67 of the 1972 Rules of Court. The main motor for the revision of the provisions of the rules which are now found in that article was to avoid the situation in which the Court, having reserved its position with regard to a preliminary question, orders lengthy proceedings on the substantive aspects of the case only to find at the end that the answer to that preliminary question has rendered such proceedings superfluous. It is true that Article 67 refers only to preliminary objections put forward by the respondent, but it is obvious that the spirit of that article ought also to apply to the consideration of any question touching the admissibility of an application, which the Court is to resolve ex officio. It is also plainly incumbent upon the Court under Art 53 of the statute, to take special care to see that the provisions of Art 67 of the rules are observed when the respondent is absent from the proceedings.

In sum, the Court, for the first time, has had occasion to apply the provision of its revised rules, which replaced the former provisions enabling preliminary objections to be joined to the merits. One may ask where the real difference between the new rule and the old lies. For my part, I consider that the new rule, like the old, this does upon the Court discretionary power to decide whether, in the initial stage of the case, such and such a preliminary question ought to be settled before anything else. In exercising this discretionary power of the Court ought, in my view, to assess the degree of complexity of the preliminary question in relation to the whole of the questions going to the merits. If the preliminary question is relatively simple, whereas consideration of the merits would give rise to lengthy and complicated proceedings, the Court should settle the preliminary question at once. That is what the spirit in which the new Art.67 of the rules was drafted requires. These considerations appear to me to be applicable to the present case.

The Court would have done itself the greatest harm if, without resolving the question of admissibility, it had ordered the commencement of proceedings on the merits in all their aspects, proceedings which would necessarily have been lengthy and complicated if only because of the scientific and medical problems involved. It should be recalled that, in the preliminary stage from which they had not emerged, the proceedings had already been subjected to considerable delays, which left the Australian government ample time to prepare its written pleadings and oral arguments on all aspects of admissibility. How, in those circumstances, could the consideration of the question had been postponed to some later date?

As is clear from the foregoing, the admissibility of the Application depends, in my view, on the existence of a rule of customary international law which prohibits States from carrying out atmospheric tests of nuclear weapons giving rise to radioactive fall out on the territory of other States. Now it is common knowledge, and is admitted by the Australian government itself, that any nuclear explosion in the atmosphere gives rise to radioactive fallout over the whole of the Hemisphere where it takes place. Australia, therefore, is only one of many States on whose territory France‘s atmospheric nuclear tests, and likewise those of other States, have given rise to deposit radioactive fallout. Since the Second World War, certain States have conducted atmospheric nuclear test for the purpose of enabling them to pass from the atomic to the thermo-nuclear stage in the field of armaments. The conduct of these States proves that their Governments have not been of the opinion that customary international law forbade atmospheric nuclear tests. What is more, the treaty of 1963 whereby the first three States to have acquired nuclear weapons mutually banned themselves from carrying out further atmospheric tests can be denounced. By the provision in that sense the signatories of the Treaty showed that they were still of the opinion that customary international law did not prohibit atmospheric nuclear tests.

To ascertain whether a customary rule to that effect might have come into being, it would appear more important to learn what attitude is taken by States which have not yet carried out the tests necessary for reaching the nuclear stage. For such States the prohibition of atmospheric nuclear tests can signify the division of international community into two groups: States possessing nuclear weapons and States not possessing them. If a State which does not possess nuclear arms refrains from carrying out the atmospheric tests which would enable it to acquire them and if that abstention is motivated not by political or economic considerations but by conviction that such tests are prohibited by customary international law, the attitude of that State would constitute an element in the formation of such custom. But where can one find proof that a sufficient number of States, economically and technically capable of manufacturing nuclear weapons, refrain from carrying out atmospheric nuclear tests because they consider that customary international law forbids them to do so? The example recently given by China when it exploded a very powerful bomb in the atmosphere is sufficient to demolish the contention that there exists at present a rule of customary international law prohibiting atmospheric nuclear tests. It would be unrealistic to close one’s eyes to the attitude, in that respect, of the State with the largest population in the world.

To complete this brief outline, one may ask what has been the attitude of the numerous States on whose territory radioactive fall-out from the atmospheric tests of the nuclear powers has been deposited and continues to be deposited. Have they, generally speaking, protested to these powers, pointing out their tests were in breach of customary international law? I do not observe that such has been the case. The resolutions passed in the general assembly of United Nations cannot be regarded as equivalent to legal protest made by one State to another and concerning concrete instances. They indicate the existence of strong current of opinion in favour of proscribing atmospheric nuclear tests. That is a political task of the highest urgency, but it is one which remains to be accomplished. Thus the claim submitted to the Court by Australia belongs to the political domain and is situated outside the framework of international law as it exists today. …

Compare: Excerpt from Dissenting Opinion by Judge De Castro

As is clear from the foregoing, the admissibility of the application depends, in my view, on the existence of the rule of customary international law which prohibits States from carrying out atmospheric tests of nuclear weapons giving rise to radioactive fallout on the territory of other States. Now it is common knowledge, and is admitted by the Australian government itself, that any nuclear explosion in the atmosphere gives rise to radioactive fall out over the whole of the hemisphere where it takes place. Australia, therefore, is only one of many States on whose territory France’s atmospheric nuclear test, and likewise those of other States, have given rise to deposit of radioactive fall out. Since the Second World War, certain States that conducted atmospheric nuclear tests for the purpose of enabling them to pass from the atomic to thermonuclear stage in the field of armaments. The conduct of these States proves that their governments have not been of the opinion that customary international law forbade atmospheric nuclear test. What is more, the Treaty of 1963 whereby the first three States to acquired nuclear weapons mutually banned themselves from carrying out further atmospheric test can be denounced. By the provision in that sense the signatories of the Treaty showed that they were still of the opinion that customary international law did not prohibit atmospheric nuclear tests.

To ascertain whether a customary rule to that effect might have come into being, it would appear more important to learn what attitude is taken by States which have not yet carried out the tests necessary for reaching the nuclear stage. For such States the prohibition of atmospheric nuclear test can signify the division of international community into two groups States possessing nuclear weapons and States not possessing them.

…

Can the question be settled in accordance with international law, or does it still fall within the political domain? There is also the question whether this is a matter of admissibility or one going to the merits. A distinction must be made as to whether it relates to the political or judicial character of the case (question of admissibility), whether it relates to the rule to be applied in the circumstances in which that rule can be regarded as part of customary law (question going to the merits). This is a difficulty which could have been resolved by joining the question of admissibility to the merits. But there is no need to settle these points. In my opinion, it is clear that the Applicant is not entitled to ask the Court to declare that atmospheric nuclear tests are unlawful. The Applicant does not have its own material legal interest, still less a right which has been disputed by the other party as required by the General Act. The request that the Court make a general and abstract declaration as to the existence of a rule of law goes beyond the Court’s judicial function. The Court has no jurisdiction to declare that all atmospheric nuclear tests are unlawful, even if as a matter of conscience it considers that such tests in general, or even all nuclear tests in general, are contrary to morality and to every humanitarian consideration.

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

In international law the duty of each State not to use its territory for acts contrary to the rights of other States might be mentioned (I.C.J Reports1949, p.22). The arbitral awards of 16 April 1938 and 11 March 1941 given in a dispute between United States and Canada mention the like precedents as to pollution of the air, but also the analogy with pollution of water, and the Swiss litigation between the cantons of Solothurn and Aargau. The conflict between United States and Canada with regard to the Trail Smelter was decided on the basis of the following rule:

“No State has the right the use of its permit to use its territory in such manner as to cause injury by fumes in or to the territory of another …when the case is of serious consequence and the injury is established by clear and convincing evidence”(Trail Smelter arbitration,1938–1941, United States of America v. Canada, U.N.R.I.AAA, Vol.III, p.1965.)

If it is admitted as a general rule that there is a right to demand prohibition of the emission by neighboring properties of noxious fumes, the consequence must be drawn, by an obvious analogy, that the applicant is entitled as the Court to uphold its claim that France should put an end to the deposit of radioactive fall-out on its territory.

The question whether deposit of radioactive substances on the Applicant’s territory as a result of the French nuclear test is harmful to the Applicant should only be settled in the course of proceedings on the merits in which the Court would consider whether the intrusion or trespass into the territory of another is unlawful in itself or only if it gives rise to damage: in the latter hypothesis, it would still have to consider the nature of the alleged damage, its existence in its relative importance, in order to pronounce on the claim for prohibition of the French nuclear tests. …

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