[digests] Nuclear Tests Case 396n5e

AUSTRALIA v. & NEW ZEALAND v. ICJ Reports

December 20, 1974 petitioners Australia and New Zealand respondents summary New Zealand and Australia instituted proceedings against due to the latter’s conduct of nuclear testing in the South Pacific. Both were asking for a court order declaring that shall not carry out any further tests. The ICJ foundthat it need not decide on the matter due to assurances from the French government that atmospheric nuclear tests would end. 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. Nothing in the nature of a quid pro quo, nor any subsequent acceptance, nor even any reaction from other States is required for such declaration to take effect. Neither is the question of form decisive. The intention of being bound is to be ascertained from an interpretation of the act. The binding character of the undertaking results from the of the act and is based on good faith interested States are entitled to require that the obligation be respected. Once the court has found that a State has entered into a commitment concerning its future conduct, it is not the Court’s function to contemplate that it will not comply with it.

facts of the case The two disputes stemmed from ’s nuclear testing in the South Pacific, which entailed the release of radioactive matter into the atmosphere. New Zealand instituted proceedings against before the ICJ, arguing that it was affected by radioactive fallout from the atmospheric tests and that this constituted a violation of its rights under international law. It contended that the ICJ had jurisdiction based on the General Act on the Pacific Settlement of International Disputes (1928) and Articles 36 and 37 of the Statute of the Court. Likewise, Australia filed a case against on the basis that the tests caused fallout of measurable quantities of radioactive matter on Australian territory. It asked the ICJ to order that the French republic should not carry out any further tests. In its defense, insisted that the ICJ had no jurisdiction over the cases ( did not even appoint an agent to represent it in the said cases) and requested the removal of the cases from the ICJ’s list. also contended that the radioactive matters from the tests were too insignificant.

issues 1. Whether or not the cases should be removed from the ICJ’s list.NO 2. Whether or not a dispute exists between the parties. NO

ratio 1. Summary removal from the list would not be appropriate. has failed to appear before the ICJ, but the court must still proceed and reach a conclusion on the basis of the arguments and evidence presented before it by the petitioners. 2. The ICJ need not decide on the matter due to assurances from the French government that atmospheric nuclear tests would end. According to the ICJ, an assurance from that the nuclear tests would finally stop resolves the dispute. The court considered public statements made by French authorities concerning future tests: a. Statement of the French President that in view of the stage reached in carrying out the French nuclear defense program, will be in a position to on to the stage of underground explosions as soon as the series of tests is completed. 1

b. Statement by the French ambassador to New Zealand that the 1974 atmospheric tests would be the last of its kind. c. Statement by the French Minister of Defense that underground testing will commence the following year. 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. Nothing in the nature of a quid pro quo, nor any subsequent acceptance, nor even any reaction from other States is required for such declaration to take effect. Neither is the question of form decisive. The intention of being bound is to be ascertained from an interpretation of the act. The binding character of the undertaking results from the of the act and is based on good faith interested States are entitled to require that the obligation be respected. , in conveying to the world its intention to terminate its atmospheric tests, was bound to assume that other States might take note of these statements and rely on their effectivity. It is true that has not recognized that it is bound by any rule of international law to terminate its tests, but this does not affect the legal consequences of the statements in question. As a court of law, the ICJ is called upon to resolve existing disputes between States. These disputes must continue to exist at the time the court makes its decision. In these cases, the disputes having disappeared, the claim of petitioners no longer has any object and there is nothing on which to give judgment. Once the court has found that a State has entered into a commitment concerning its future conduct, it is not the Court’s function to contemplate that it will not comply with it. However, if the basis of the judgment were to be affected, the applicant could request an examination of the situation in accordance with the provisions of the Statute.

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