Nuclear Testing. Return to confront an explosive issue

When President Chirac of France announced on 13 June 1995 that he would authorise a final series of eight nuclear weapon tests in the South Pacific starting in September 1995 he can hardly have imagined the various international legal initiatives that would be set in motion by his actions.

South Pacific residents in French territories petitioned the European Commission on Human Rights and the UN Human Rights Committee, claiming that the tests would violate fundamental human rights.

The European Commission has acted to obtain information from the French government under Article 34 of the Treaty establishing the European Atomic Energy Community (Euratom). This requires any member state in whose territories particularly dangerous experiments are taking place to take additional health and safety measures, on which it shall first obtain the opinion of the commission.

And New Zealand requested the 15 judges of the International Court of Justice in The Hague to reopen a 1974 case it had brought against France over an earlier series of atmospheric tests. This was also the first case for newly-elected UK judge Dame Rosalyn Higgins.

While the human rights and Euratom initiatives remain pending, the International Court of Justice has recently dismissed the New Zealand request on jurisdictional grounds. The ICJ's order, adopted on 22 September 1995, is nevertheless of considerable interest.

To understand its genesis it is necessary to revisit the ICJ's 1974 judgment – New Zealand v France (20 December 1974).

In 1973, New Zealand applied to the court for a declaration that the conduct of nuclear tests in the South Pacific by France gave rise to radioactive fallout which would violate New Zealand's rights under international law.

In June 1974 France declared its decision to cease atmospheric testing and move on to underground testing. On the basis of this declaration, which the court considered to have legal effect upon which New Zealand could rely, a majority of the court (nine votes to six) held that New Zealand's objective had been accomplished and the merits of the case no longer fell to be determined.

However, recognising that the situation might change, the court added a precautionary paragraph 63 stating “if the basis of this judgment were to be affected, the applicant could request an examination of the situation” in accordance with the Statute of the Court. It was on the basis of this paragraph that New Zealand returned to the ICJ nearly 21 years later.

New Zealand's 1995 request was premised on a view that paragraph 63 referred not only to atmospheric testing but “to any developments that might reactivate New Zealand's concern that French testing could produce contamination of the Pacific marine environment by any artificial radioactive material” (1995 Order, para.18).

The objective of the New Zealand request was to address France's failure either to carry out an environmental impact assessment of the proposed test or to share the results of any assessment with its South Pacific neighbours. Relying on arguments based upon treaty and customary international environmental law, in particular the 1986 Noumea Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, New Zealand asked the ICJ to declare that it would be unlawful for France to conduct underground nuclear tests before it had carried out an environmental impact assessment according to international standards. This assessment should establish that the tests would not give rise to any contamination of the marine environment.

New Zealand also asked the court as a matter of urgency to indicate provisional measures (grant an injunction) pending the court's decision, as the ICJ had done 21 years earlier. Five States – Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia – sought to intervene in support of New Zealand. France opposed the request on jurisdictional grounds, arguing in particular that paragraph 63 of the 1974 judgment related only to atmospheric nuclear tests.

As widely predicted, a majority (12 votes to three) joined to dismiss New Zealand's request. The ICJ's majority found that “the basis of the [1974] judgment…was France's undertaking not to conduct any further atmospheric nuclear tests”, and consequently it could now take into consideration questions relating to underground nuclear tests (1995 Order, paras 62 and 63).

To the extent that any criticism is due, it should properly be directed at the 1974 court. By treating the original New Zealand application as relating only to atmospheric tests, not a broader interest in all nuclear tests, it left the 1995 court with little room for manoeuvre in interpreting and applying paragraph 63 of the 1974 judgment.

But the court's unwillingness to address the merits of New Zealand's 1995 request does not mean the 1995 Order and the proceedings leading to it are not without interest.

The ICJ has in a limited but notable way added to the development of international environmental law.

It referred to “the development of international law in recent decades” and indicated that its order was “without prejudice to the obligations of states to respect and protect the natural environment”, obligations to which both New Zealand and France have in the present case re-affirmed a commitment (1995 Order, para.64).

Even if the ICJ was not prepared to go as far as some may have wished, it may be recognising the existence of general rules of international environmental law for the first time. This becomes apparent if the 1995 Order is read in the context of the pleadings, in which France recognised a general obligation to prevent environmental damage, as well as obligations on environmental impact assessment and an approach based on the “precautionary principle”.

These substantive issues of international environmental law are explored in greater detail in the three dissents. The comprehensive dissenting opinion of Judge Weeramantary, in particular, will surely become a text of first reference with consequences significant beyond these proceedings.

Other aspects of the matter are also noteworthy. France's participation in the written and oral stage of proceedings was a welcome surprise; it had not taken part in the 1974 case.

Also the ICJ showed itself willing and able to respond quickly to an urgent request on a matter of global concern. And the intervention attempts by five states, which was the largest number in any case before the ICJ, reflect a growing acceptance by the wider community of states of the ICJ's important role. The ICJ will have been conscious of its efforts to establish its Environmental Chamber in the face of a number of competing international courts with competence in environmental matters.

Following its order in this case, it will be interesting to see how much further the ICJ will be willing to go to develop international environmental law. The international community may not have to wait too long for an answer.

The court is currently faced with pending disputes between Spain and Canada over the latter's fisheries conservation measures. And oral arguments are scheduled to open on 30 October in the Hague on advisory opinions requested by the World Health Assembly and the General Assembly on the legality of the use of nuclear weapons.