A golden opportunity dismissed: the New Zealand v. France nuclear tests case.

• Author: Tokarz, Stephen M.

INTRODUCTION

On September 22, 1995, the International Court of Justice (ICJ) entered an order dismissing New Zealand's claims in the dispute between New Zealand and France over nuclear testing in the South Pacific.(1) This order was prompted by a request from New Zealand for an examination of the nuclear testing situation in accord with a special provision contained in a previous 1974 judgment of the ICJ(2) The original dispute between the two countries arose out of France's proposed atmospheric nuclear tests in the South Pacific and New Zealand's objection to those tests. After New Zealand received an interim order from the ICJ asking France to refrain from nuclear testing until the Court considered New Zealand's substantive claims,(3) France announced that it would halt all plans for atmospheric nuclear testing. The Court found that this action rendered the dispute between the parties moot,(4) and consequently dismissed New Zealand's claims against France in its judgment of December 20, 1974.(5) Since the case was dismissed on jurisdictional grounds, the Court never reached New Zealand's substantive international law claims. However, in an unprecedented move, the Court included within its decision a special provision in paragraph 63 of its 1974 judgment that "if the basis of this Judgment were to be affected, [New Zealand] could request an examination of the situation in accordance with the provisions of the [ICJ] Statute."(6)

France announced in 1995 that it would conduct a series of eight underground nuclear weapons tests in the territory of French Polynesia.(7) New Zealand used the paragraph 63 special provision to again protest France's proposed nuclear weapons tests. However, the Court found that the "basis" of the 1974 judgment had not been affected (as the language in paragraph 63 required) because that judgment was based solely on France's promise not to conduct any further atmospheric nuclear tests and the present situation involved underground nuclear tests.(8) Therefore, the Court again dismissed New Zealand's claims against France without reaching any of New Zealand's compelling substantive international law claims.

Part One of this article introduces the case by examining the background of the dispute. Part Two examines the Court's judgment and reasoning in the 1995 New Zealand v. France Nuclear Tests case. Part Three considers the decision of the Court and argues that by prematurily dismissing New Zealand's claims, the Court missed an opportunity to advance the development of international law.

PART ONE

The dispute between New Zealand and France that led to the Court's 1995 judgment originated with New Zealand's objection to France's proposal in 1973 to conduct a series of atmospheric nuclear tests in the South Pacific. France proposed atmospheric nuclear testing at Mururoa and Fangataufa Atolls, 600 miles from Tahiti and 2,500 miles from New Zealand.(9) Both Australia and New Zealand filed Applications in the ICJ claiming breach of legal norms in the testing of atmospheric nuclear weapons, unlawful action by allowing radioactive fallout to cause atmospheric and marine pollution in their territories, and interference with maritime and air navigation.(10) The Court's jurisdiction was originally invoked on two bases: (1) 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 [hereinafter "General Act"], to which New Zealand and France both had acceded; (2) Articles 36(2) and 36(5) of the Statute of the Court. New Zealand received an interim protection order from the Court on June 22, 1973, which stated that the French government should avoid conducting any nuclear tests in the region until the Court had rendered a decision in the case.(11)

While the case was pending before the Court, France announced that it did not plan to proceed with any atmospheric nuclear testing in the South Pacific. The Court thereafter dismissed New Zealand's case without reaching any of the substantive claims.(12) In deciding to dismiss the case, the Court noted that it is called upon "to resolve existing disputes between States"(13) and that the "circumstances that have since arisen render any adjudication devoid of purpose."(14) The Court further explained that "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."(15) However, the Court did leave the door slightly open for New Zealand to return to it in the future when it added paragraph 63 to its judgment. The court noted in paragraph 63 that it was not its function to speculate on whether France would keep its word, but 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."(16) The precise meaning of this paragraph became the focal point for New Zealand's claims some twenty-one years later.

On June 13, 1995, France announced that it would conduct a series of eight underground nuclear tests in the territory of French Polynesia in the South Pacific.(17) The announcement by French President Jacques Chirac signaled an end to a voluntary three year moratorium on underground nuclear tests,(18) The decision touched off a worldwide firestorm of controversy and opposition. Besides internal protests by the French population,(19) lawmakers from around the world gathered in Tahiti (just 600 miles from the proposed tests) to protest the French decision.(20) Consumer boycotts of French goods and services were called for in New Zealand and Australia.(21) Greenpeace dispatched a ship to protest the French decision to resume testing which was boarded by French commandos on July 9, 1995.(22) Undeterred, Greenpeace later announced it would send a flotilla of up to 30 boats to the area in a coordinated effort to stop the nuclear tests.(23)

On August 8, 1995, Prime Minister Bolger of New Zealand announced that he would attempt to stop the French nuclear tests by returning to the ICJ and resuming the New Zealand v. France Nuclear Tests case.(24) On August 21, 1995, New Zealand again instituted proceedings against France in the ICJ, basing the Court's jurisdiction on the Court's Judgment of 1974. France's subsequent nuclear test on September 5, 1995, increased the world's interest in the proceedings now underway at the Hague.(25) Shortly thereafter, the European Parliament reaffirmed its opposition to all nuclear tests and called on France to cancel the remaining planned tests.(26)

PART TWO

The jurisdiction of the ICJ in contentious cases is based on the consent of the parties.(27) The required consent, under Article 36(1) of the Statute of the Court, may be either express or implied.(28) A State may also recognize compulsory jurisdiction under Article 36(2)(29) for legal disputes when another State has made a similar declaration.(30)

Since France had denounced the General Act and withdrawn from the compulsory jurisdiction of the Court in 1974, New Zealand had no jurisdictional basis based on consent on which to bring a new case against France.(31) New Zealand's only option was to attempt to reopen the earlier case.(32) The consensus among legal commentators was that New Zealand faced a difficult legal task in its attempt to use the unusual paragraph 63 provision to provide a jurisdictional basis for the Court.(33)

Since there was no precedent for reopening a case in the way that New Zealand was attempting, New Zealand had to choose its method of proceeding very carefully.(34) New Zealand did not want to use the traditional Application, as provided for in the Statute(35) and Rules(36) of the Court, to initiate the case since this would suggest that New Zealand was attempting to open new proceedings.(37) Other options provided for in the Statute, including seeking an interpretation(38) or a revision(39) of the Judgment, were not available since...