Office of the Prime Minister of New Zealand

The Court's decision and the right reserved to New Zealand

56. In 1974 the Court heard oral argument on those questions of jurisdiction and admissibility. However, both before and after that oral hearing, the French Government had made a number of statements concerning its intentions as to future nuclear testing in the South Pacific region. The Court interpreted these statements as constituting a binding undertaking on the part of the French Government to cease atmospheric tests. In paragraph 29 the, Court held that the claim of New Zealand was to be interpreted as apply to atmospheric testing only. The Court concluded that as a consequence of the undertaking by France the essential New Zealand concerns had been met.

57. Accordingly. the Court concluded that it was not at that time necessary for it to make any further pronouncement on the case. However, this conclusion was subject to the qualification reflecting the fact that the only testing then conducted m the South Pacific was atmospheric testing. The Court recognised that case was clearly decided on this basis. In reaching this conclusion, however, the Court specifically reserved to New Zealand a most important right, the right to return to the Court in the event that the basis of the Judgment were affected. In that event, New Zealand could request an examination of the situation in accordance with the provisions of the Statute. This right was specifically spelled out in Para 63 of the judgment of the Court delivered on 20 December 1974.

58. The Court also added that the denunciation by France in January 1974 of the 1928 General Act on which New Zealand relied as one of the bases of jurisdiction in the case could not "by itself constitute an obstacle to the presentation of such a request." This addition is highly significant because, for reasons which will be elaborated later, it shows clearly that the Court in adopting this unprecedented procedure had it in mind that any proceedings which might subsequently be taken would represent a continuation of the same case, not the commencement of a new one.

59. In 1974 the assumption was made by all involved that the French decision to terminate nuclear testing in the atmosphere and to shift its tests underground met the immediate concerns of New Zealand about the contamination of the environment. But New Zealand's wider concerns remained, as New Zealand's application indeed made clear. Those wider concerns related to future conduct by France. No thought was given at that time to whether underground nuclear testing might lead to some of the same environmental consequences the subject of Zealand's application. The only nuclear testing taking place in the South Pacific at this time was atmospheric testing.

60. Underground testing at the moment of the Judgment was not an issue, and the Court had before it no evidence that such testing either could or could not lead to radioactive contamination of any part of the environment.

61. The essentials of the matter are that in 1974 the Court adopted a novel device for dealing with the situation before it. In this respect the Court was using its inherent power to regulate its own procedure and to do as it thinks appropriate for the achievement of justice. The procedure adopted in 1974 was in the same line of development as the procedure which it was to adopt Later in its Judgment of I July 1994 in the case of Qatar v. Bahrain (ICJ Reports 1994, p.112). In the operative part of that Judgment the Court did not respond to the submissions of either party - on the Part of Qatar that the Court had jurisdiction in the case and on the part remitting the matter to the Parties in order to afford them the opportunity to submit to the Court the whole of the dispute. In so acting, in the absence of any specific authority in the Statute, the Court was doing no more, than exercising its inherent power to regulate its own procedure. In case of the exercise of such power it is for the Parties to bring themselves within the specific terms of the procedure laid down by the Court. This is precisely what New Zealand is seeking to do in its present Request for an Examination of the situation.

62. The Court has asked us to address the issue of whether our current Requests fall within the provisions of Paragraph 63 of the 1974 judgement. In order to answer this it is necessary to consider the circumstances in which the right reserved to New Zealand can be exercised.

1. One possibility certainly is that it might be affected by a resumption by France of atmospheric nuclear testing. If that were the sole possibility, then New Zealand would not be able to maintain the present proceedings.

64. On the other hand, it is more likely that in considering the idea that the basis of the judgment might be affected in some way the Court was concerned that the resumption by France at some future time of nuclear testing could give rise to artificial radioactive contamination of the environment. In a manner not foreseen in 1974. That, New Zealand contends, is what the Court must have had in mind. As New Zealand has pointed out in its Request and spelled out in fuller detail Aide-Memoire, is it to be imagined that when France announced its intention to terminate atmospheric testing (precisely, it may be noted, because such testing could lead to radioactive contamination), it did so subject to the following reservation? "But we reserve the right to cause radioactive contamination of the marine environment by methods other than atmospheric testing, e.g. underground testing."

65. The notion is absurd. The truth of the matter must be that when France gave up atmospheric testing and indicated that in the future underground testing would suffice for its needs, it did so because testing was at that time the sole known method of causing the contamination of which New Zealand complained, while underground testing was thought not to give rise to such risks.

66. It was not atmospheric testing that was in issue. It was testing that could cause radioactive contamination not only of the territory of other interest. When France resorted to underground testing it was not underground testing as such that it chose, but a method of testing that was at that time thought to be free of risk of causing radioactive contamination of the environment.

What has triggered New Zealand's exercise of this right - why now?

67. New developments between the Court's Judgment in 1974 and the present Request have justifiably reactivated New Zealand's original fears regarding the risk of contamination of the environment. These developments are such that the world can no longer be expected to rely upon the bare assertions that the tests are safe.

68. Accordingly New Zealand exercises the right reserved to it in the 1974 Judgment to return to the Court. It returns to the Court with the Request entitled "Request for an Examination of the Situation" - a title exactly reflecting the wording in which paragraph 63 of the 1974 Judgment expressed the object of such a return to the Court.

69. Until fairly recently the evidence has been that leakage of radioactive material from the atoll has been gradual and limited. However recently and somewhat belatedly, in creasing evidence has emerged of scientific concern about the possible environmental impacts of underground testing. This includes the work of a noted French vulcanologist, Professor Pierre Vincent, whose article on the environmental risks of nuclear testing at Mururoa is included as an annex to the Main Request. Professor Vincent has written:

"All the factors now known to be conducive to the destabilisation of volcanoes - major weathering and fracturing of materials and steep sides - are present at Mururoa. In view of that fact, the shock wave produced by one of the planned new explosions, even if it were conducted beneath the lagoon, could be big enough to cause one or more of the large "pre-formatted" blocks to shear away. This situation, which has no parallel anywhere else, can only be described as high-risk."

"The immediate consequences of such a destabilisation would be a sudden spill-out of part of the radioactive "stockpile" into the sea and the formation of a tidal wave - or, more accurately speaking, a tsunami - which would threaten the lives of those living not only in Mururoa but in neighbouring archipelagoes."

An example of more scientific concern comes from Dr Colin Summerhayes the Director the Institute of Oceanographic Sciences in the United Kingdom. Research on underwater landslides is new and it is only in recent years that the potentially catastrophic results of a landslide have become known. Dr Summerhayes is quoted in the Independent Newspaper on 9 September 1995 as saying that volcanic islands like Mururoa were:

"... inherently unstable and may fail given an appropriate trigger like an earthquake or a very large explosion. Failure is likely to cause a giant submarine landslide which may demolish parts of the island and could create a tidal wave that may itself damage coastal installations on other islands nearby."

Furthermore he stated that the creation of such a tidal wave was "a general threat to coasts as far away as New Zealand and Australia."

70. The possibility that the south-western sector of Mururoa in particular may leak as a result of further testing has become apparent in the last few months and it has become apparent from documents published by the commission itself. The data they present shows that the largest tests of the 1970s and 1980s took place in a small area of the western part of Mururoa, and that some had unanticipated effects. Some tests took place closer to the outer flanks than was desirable from a safety point of view. There must now be a concern that some of these old detonation chambers could become exposed directly to the ocean if further testing generates additional fracturing in the area.

71. It has been known for many years that accidents have occurred on Mururoa. There were three submarine landslides on the outer flanks of the atoll in 1977, 1979 and 1980 as a result of large tests conducted under the rim. The largest of these landslides in which approximately one million cubic, metres of material was dislodged generated a tidal wave that swept over part of the atoll, seriously injuring 2 people.

72. In addition to these accidents, which were acknowledged shortly afterwards by France, there have been at least two accidental releases of radioactivity during post-test sampling operations. These were acknowledged by France only after their occurrence had been established independently. Furthermore, it was only in the monograph published recently by the Atomic Energy commission that the fact that a device had to be detonated at less than its planned depth in 1979 was finally admitted.

73. One of the essential complaints of the present process is that there is a reasonably founded concern that what France has already done to the two atolls may cumulatively have so weakened their structures that further tests may develop the weaknesses and fracture the structures in a way that leads to substantial escape of radioactive material and risk to the marine environment. There is now reason to fear that these risks are substantially higher than was previously believed to be the case.

74. As knowledge about the risks of radiation and nuclear testing has increased so too have the standards applied to these activities by the international community. These increased standards can be seen as a response to the increased understanding regarding the risks to the environment. A notable example of these increased standards is the development of the law on EIAs.

75. It can now be said that them is a clear legal obligation on France to conduct an EIA before carrying out any further nuclear tests at Mururoa and Fangataufa both as a consequence of France's participation in the Noumea Convention and also as a result of international law derived from widespread international practice.

76. Closely linked to this is the emergence of a very widely accepted and operative principle of international law: the precautionary principle. In the field of environmental protection it has come to be recognised that insistence that a complaint must carry the burden of proving that the conduct contemplated by the, respondent will lead to damage, could rise to situations when irremediable damage would occur.

77. The principle provides that where there are risks of serious or irreversible damage lack of scientific should not be used as a reason for postponing measures to prevent environmental degradation. The precautionary principle has been applied in a wide number of situations domestically and internationally and is contained in many international treaties. It is also, significantly, incorporated in French domestic law regarding protection of the environment Because of the potentially devastating and long lasting effects of radiation the precautionary principle is particularly applicable to nuclear matters.

78. Again I return to the question before the Court. How do these matters submitted in 1995 fall within the provisions of the 1974 Judgment? Put another way - why does Now Zealand contend that the basis of the 1974 Judgment has been affected? It must be kept in mind that in recent years France has honoured a moratorium preventing any nuclear testing. There are three new developments providing compelling reasons for New Zealand to make its Requests.

First, new evidence regarding the cumulative effect of underground testing gives foundation to the fears held by South Pacific nations.

Second, the Noumea Convention requires France to cease testing until at the least an EIA has been completed.

Third, new developments in international law particularly the precaution principle place the onus of proof on France to offer satisfactory evidence that this testing is safe.

ends