NUCLEAR TESTS CASE (SECOND PHASE)

OPENING ADDRESS BY THE ATTORNEY-GENERAL

(Transcript – Draft VI)**

 

Mr President and Members of the Court,

The Australian government is pleased to place before the Court its oral argument on the two questions referred to in the Court’s Order of 22 June, 1973. As you have indicated, Mr. President, the first is the question of the jurisdiction of the Court to entertain the dispute. The second it referred to as the question of the admissibility of the Australian Application.

That Application asks the Court –

(1)

To adjudge and declare that the carrying out of further atmospheric nuclear tests in the South Pacific Ocean is not consistent with applicable rules of international law; and

(2)

To order that the French Government shall not carry out any further such tests.

Our basic propositions at this stage of the proceedings are that the Court has undoubted competence to hear the merits of the case and that we are entitled as a matter of law to such a hearing. The Court, we respectfully submit should so rule at this stage of the proceedings. However, there are certain introductory matters to which I should refer before I develop these propositions.

It is a matter of regret for all who are taking part in these proceedings that the French Government has continued to refrain from participating. For the Australian Government’s part, it is a matter of particular regret as Australia and France have long been friends and allies. The Prime Minister of Australia said recently in a public statement on 17 June that he had sent a message to the new French President expressing the sincere desire to develop relations between our two Governments and peoples. Mr Whitlam also said that he had hoped that the French Government would be prepared to co-operate in having this continuing dispute resolved in a responsible manner by the International Court in accordance with international law. We continue to believe that the dispute that undoubtedly exists between our two countries as to the legality of atmospheric testing in the South Pacific can best be settled by this Court, which is the principal judicial organ of the United Nations.

Also, the absence of any French representative in these proceedings has I would respectfully suggest, inevitably caused difficulties for the Court in relation to certain fundamental procedural considerations relating to the rule of law and due process. The non-appearance of the French Government has meant that the Court has not had the benefit of written and oral arguments by the French Government presented regularly in accordance with the Rules, nor has the Court had any opportunity to direct questions to the French Government in relation to the general position it takes or in relation to arguments which have been handed to the Registry by the French Ambassador to the Netherlands.

Thus the Court is left to ascertain from its own resources, aided by the assistance Australia is able to provide, those relevant changes and circumstances which have occurred since the hearing by the Court on the question of interim protection. The Australian Government has endeavoured from time to time consistently with what it takes to be its duty to the Court by formal communication to indicate the changing events. Thus Australia has informed the Court of the fact that during 1973 the French Government conducted atmospheric nuclear tests in the Pacific notwithstanding the fact that the Court has indicated in its order that tests should not be conducted by the French Government. The tests conducted by the French Government last year resulted in the deposit on Australian soil of additional radioactive fallout and it would seem therefore in contravention of the Court’s order of 22 June 1973.

The Court will remember that the basic reason giving rise to the Australian claim is the appreciation of the fact that any addition to that radioactivity which Australia suffers is harmful to the Australian population. That fact serves but to explain the occasion why Australia does assert its legal rights. When the Court entertains its hearing on the merits of this case, compelling evidence will be advanced to the effect that orthodox scientific opinion joins with the fear that many nations have expressed as to the effect of the addition of any further radioactive fallout.

In November, 1973, UNSCEAR met once again and deliberated further. The Australian Government has lodged with the Court the result of those deliberations which indicate clearly enough that such is still orthodox scientific opinion.

Notwithstanding however the deliberations of that body and in pursuance of the obligation to inform the Court of the effects occurring since the last hearing I feel that I should formerly indicate matters which are in any event public knowledge, they are these: Even at this moment, when the Court has assembled for the purpose of hearing oral argument in this further stage of the legal proceedings, France is engaged in conducting a further series of nuclear tests in the atmosphere over the Pacific. In order to ensure the conduct of those tests, areas of the high seas and its superjacent air space have been appropriated by the French authorities by proclamations of dangerous zones and of prohibited zone along the lines described in paragraph 45 of the Australian Application and in paragraph 428 of the Australian Memorial.

The Court will further be aware that statements have recently been made by the French Government in connection with the conduct of those tests and to that statement I feel it my duty shortly to come. May I add before doing so that Australia has consistently stated it would welcome a French statement to the effect that no further atmospheric nuclear tests would be conducted. Indeed as the Court will remember such an assurance was sought of the French Government by the Australian Government by note dated 3 January, 1974, but no such assurance was given.

I should remind the Court that in paragraph 427 of its Memorial, the Australian Government made a statement, then completely accurate, to the effect that the French Government had given no indication of any intention of departing from the program of testing planned for 1974 and 1975. That statement will need now to be read in light of the matters to which I now turn and which deal with the official communications by the French Government of its present plans.

May I now turn to the official statements of the French position to which I have referred.

The two most official statements of the French position appear to be, first of all, the statement of the new French Prime Minister in the National Assembly on 5 June, 1974, affirming France’s nuclear defence policy. The Prime Minister spoke of 'the indispensable effort to dispose of an adequate military potential and in particular effective means of nuclear dissuasion'. It is reasonable to conclude from this statement that the overriding consideration concerning future nuclear testing is whether the French Government concludes that the testing is, in its view, essential for an adequate military potential.

The other official statement to which I should refer the Court is the statement issued on 8th June by the Office of the President of the French Republic; a copy of the original French text has been lodged with the Registry. I might observe in passing that the allegation made in the last sentence of the statement suggesting that UNSCEAR has confirmed the harmlessness of French atmospheric nuclear tests is not correct; UNSCEAR has never – and I repeat never – confirmed the harmlessness of French atmospheric nuclear tests is not correct: UNSCEAR has never – and I repeat never – confirmed the harmlessness of any atmospheric nuclear test as a reading of the reports of UNSCEAR will readily show.

That observation is made in passing. What I wish to direct the Court’s attention to is the fact that the statement issued by the Office of the President contains nothing approaching an undertaking not to conduct further atmospheric nuclear tests. It merely says that France will be in a position to move to the stage of underground firings as soon as this summer’s test series has been completed. It would be quite consistent with this expression of intention for underground firings to be accompanied by atmospheric firings, if that were considered to be indispensable in the view of the French Government to an adequate military potential. There may be a hitch in the program of developing the underground nuclear testing site. There may be technological developments that make further atmospheric testing desirable. I refer by way of illustration to an article that appeared in Le Monde of 13 June 1974, which speculated whether the 1974 atmospheric tests would, in fact, be the last. A copy of the article has been filed with the Registrar. It concludes by pointing out that there will be great difficulties in developing France’s nuclear programme if all post-1974 testing is held underground.

I could perhaps add for the sake of completeness that in 3 April 1973 the French Government indicated to the Australian Government, in the course of talks which took place in Paris, its then view that even should France be able to conduct underground testing, that fact would not mean that no further atmospheric nuclear tests or series of atmospheric tests would be conducted. I might perhaps be permitted in this context to refer to the public statement which is Annex 13 to Australia’s Application and in particular the sentence contained in the second paragraph which reads ‘however, the clear position was reached that the French Government would not agree to cease testing in the atmosphere of the Pacific’.

The Government of France is still reserving to itself the right to carry out atmospheric nuclear tests when in its opinion they are required for the disposition of an adequate military potential. The risk that this policy will lead to further atmospheric tests in 1975, and in subsequent years, continues to be a real one. In legal terms, Australia has nothing from the French Government which protects it against any further atmospheric tests, should the French Government decide to hold them.

It is the submission of the Australian Government that the existing situation comes squarely within the test applied by the Court in the Northern Cameroons Case (I.C.J. Report 1963, p.15) concerning the circumstances in which the Court will consider it appropriate to proceed to judicial adjudication.

In particular I refer to the Judgment of the Court at page 34 and I quote:-

‘The function of the Court is to state the law, but it may pronounce judgment only in connection with concrete cases where there exists at the time of the adjudication an actual controversy involving a conflict of legal interests between the Parties. The Court’s judgment must have some practical consequence in the sense that it can affect existing legal rights or obligations of the Parties, thus removing uncertainty from their legal relations.’

Clearly, the Government of France has not given any commitment that it will cease to carry out nuclear tests in the atmosphere. Thus, how can it be doubted that there is ‘an actual controversy involving a conflict of legal interests between the Parties at the present time'.

However, even if France were now to inform Australia, or if it were to inform the Court, that the assessment I have given is not correct, and if France were to give a clear and unequivocal undertaking to abandon atmospheric nuclear testing, we, on our side, would be glad indeed. We would welcome it and there would be no need to pursue these legal proceedings.

Mr President, I must return again to the question of the consequences that flow from the non-appearance of the French Government in these proceedings even though they have been properly and duly brought by Australia as a party to the Statute of the Court against another party to the Statute, France. One consequence is that the question of the jurisdiction of the Court in the present case has not been raised by the defendant Government in any form known to the Statute or the Rules.

P11, 12, 13 missing

This non-compliance by the French Government with the Rules has put the Government of Australia in the anomalous situation of having had to lodge a memorial on jurisdiction, instead of being in the position of having a proper preliminary objection to jurisdiction by the French Government, setting forth with precision, as Article 67 of the Rules lays down, the facts and the law on which an objection to jurisdiction is based. But at the same time the Australian Government finds itself in the position of having to take note of arguments made outside the framework of the Court’s established process.

It is true that Article 53 of the Statute of the Court envisages that a Party may in fact not appear before the Court, and it goes on to define the position of the other party and the Court in that event. In view of its importance in these proceedings, I quote the Article in full:

           

"1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim.

2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law."

I shall return to paragraph (2) of the Article at a later point of my address. At this stage it is to paragraph (1) that I wish to refer, on the point of how the conduct of the other party comes within its terms.

We are entitled to look at the travaux preparatoires of Article 53 in order to confirm the interpretation of the Article and also to determine, where necessary, the interpretation of wording that is ambiguous or obscure. The travaux is usefully summarized in Manley O Hudson’s The Permanent Court of International Justice 1920-1942, at pp. 203-204 and the Court may be helped by my referring briefly to them.

One particularly helpful reference given by Hudson is to page 740 of minutes of the 1920 Committee of jurists that drafted the Statute of the Permanent Court; Article 53, as this Court will be aware, is derived from Article 53 of the Permanent Court’s Statute. The reference in the minutes, which really begins on the previous page – pages 739 – speaks of the Committee’s attention being called to a delicate question. It might happen that one of the parties, although duly summoned, would refuse to enter an appearance or, having appeared to denied competence, would withdraw. The Committee noted that ‘in this or some other way, it would abstain from presenting its case’.

These Minutes confirm what would, in any case, be the natural interpretation of paragraph (1) of Article 53, namely that it applies in two situations:

(a)

One is where a party does not enter an appearance. This is the situation in the present case.

(b)

The second is where a party does appear but then fails to defend his case.

The fact that neither the language of Article 53 nor the Committee of Jurists' Report dealt in so many words with a situation where a Party at one and the same time refuses to appear and transmit its arguments by letter to the Registrar of the Court is understandable. Possibly the Committee did not consider that such unusual and unjudicial procedures were likely to be followed. But that as it may, the position under the Article is that the transmission of arguments informally and irregularly to the Registrar does not remove a case from the application of Article 53. That is clear, both on the ordinary meaning of paragraph (1) and from the interpretation acted upon by this Court in the Fisheries Jurisdiction cases.

But it would be quite wrong to take the further steps of saying that, because Article 53 applies, the procedure followed by the other Party in the present case is in some way or other an approved course of procedure under the Statute and the Rules. Article 53's insertion was obviously for the purpose of dealing with an irregular situation - a 'delicate situation' where 'one of the parties, although duly summoned, would refuse to enter an appearance', to use the very words of the Committee of Jurists.

The Statute therefore gives no approval to the odd conception that a Party may at one and the same time not appear before the Court and transmit arguments to the Court. The practice undoubtedly has been followed in some recent cases, but it has only recently emerged and surely should not be encouraged.

The case is exactly comparable in this regard to the Fisheries Jurisdiction cases, where this Court said:

'It is to be regretted that the Government of Iceland has failed to appear in order to plead the objections to the Court's jurisdiction which it is understood to entertain' (I.C.J. Reports 1973, at pp? and 54).

Mr President, the Australian argument will be presented in two parts, one relating to the question of jurisdiction and the other to the question of admissibility. The Court will have noted that the memorial filed by Australia observes that the question of admissibility appears to be unconnected with the jurisdiction of the Court to entertain the dispute and that it would be proper therefore that the jurisdictional aspect of the case be treated first and disposed of independently of any question of admissibility.

From the point of view of the French Government, there is surely no difficulty in this approach since that Government has not raised any question relating to the admissibility of the claim in any form whatsoever. The points raised in the letter addressed to the Court on 16 May from the French Ambassador at the Hague (which we shall refer to as the French Note) and in the annex attached to the French Note (which we shall refer to as the French Annex) relate solely to the question of jurisdiction. It is alleged in the French Note that the Court is manifestly incompetent in this case, on the ground of lack of jurisdiction. Having regard to the position thus taken by the French Government it is necessary to resolve as soon as possible the question of the Court's jurisdiction.

I also refer, in this connection, to Article 53 of the Statute of the Court, I have already quoted its terms and suggested that it is clear that, at this stage of the case, Article 53 has to be taken into account.

In the Fisheries Jurisdiction cases the Court said - and I quote from page 54 of I.C.J. Reports 1973 dealing with the proceedings of Federal Republic of Germany v. Iceland:

 

"…According to this provision (i.e. Article 53) whenever one of the parties does not appear before the Court, or fails to defend its case, the Court, before finding upon the merits, must satisfy itself that it has jurisdiction…."

The Court went on to say, at page 66:

"Article 53 both entitles the Court and in the present proceedings, requires it to pronounce upon the question of its jurisdiction."

I also refer the Court to the views expressed by Judge Jiminez de Arechaga in his article on the 1972 Amendments to the Rules of Procedure appearing in 67 Am. Journal of International Law (1973), page 1. Judge de Arechaga observed on page 12, that the "new rules of procedure provide that the Court must make a positive finding as to its jurisdiction at the preliminary stage of the proceedings before embarking on the merits of the case". He referred in the following paragraph to Article 53 as supporting this approach.

Mr President, this is how the Court applied Article 53 in the Fisheries Jurisdiction cases and we are respectfully relying on the Court to take the same approach in the present proceedings. As the minutes of the 1920 Committee of Jurists confirms, the purpose of Article 53 was that judgment in matters between sovereign States should never be given by default. Under the Article the plaintiff State is – to use the very words of the Committee of Jurists – "called upon to show that his demands are well founded both in fact and law, with the same care as if his opponent were present in Court". The words I wish to emphasise are - "as if his opponent were present in Court". The reference is to the Minutes p.740.

Article 53 therefore requires no more and no less than this in the present proceedings – that the Court should satisfy itself up to the point that would be appropriate if the other party had not refused to appear. That is to say, Article 53 is to be applied distributively in relation to the various phases of the present case. By "distributively" we mean that under Article 53 the Court must take up seriatim three points:-

(i)

It must first of all decide whether it has jurisdiction because unless it decides that it has jurisdiction it is not competent to consider the question of admissibility that arises in this case.

(ii)

Secondly, having found that it has jurisdiction, it must then decide whether the application is admissible. The question of admissibility is one that is essentially preliminary. The Court may not in considering the question of the admissibility of the claim finally decide any question of law or fact in the case. This is emphasised by the fact that in its Order of 22 June 1973 the Court has indicated that the issue of admissibility is limited to Australia's legal interests in its claims.

 

As the Court said at the comparable stage in the Fisheries Jurisdiction cases p.54:

 

"In the present phase it (i.e. the case) concerns the competence of the Court to hear and pronounce upon this dispute. The issue being thus limited, the Court will avoid not only all expressions of opinion on matters of substance, but also any pronouncement which might prejudge or appear to prejudge any eventual decision on the merits."

(iii)

The final stage in applying Article 53 is the hearing on the merits at which stage the Court determines whether Australia's claims are well founded in fact and law.

 

"Well-founded" in Article 53 obviously means more than a prima facie case because it suggests some degree of finality. Its equivalent in the French text of the Statute is "fonde". "Well-founded" is not the same as "admissible", for admissibility" means admitting a case for the consideration of the Court. Admitting a case cannot be the same as deciding that case in favour of the applicant. It follows that the Court cannot require an applicant, under the heading of admissibility, to prove what he would have to prove in order to get final judgment; and hence Article 53 does not require, or indeed authorise, the Court, at this stage of the case, to make a final decision on issues that (and I quote) "really pertain to the merits", to use the words used by Judge Jiminez de Arechaga in his declaration of 22 June 1973. Any other approach would mean that a Party to proceedings in this Court would be in a worse position procedurally where the other Party does not appear than it would be if the other party did appear. That would be an extraordinary result.

It follows from what I have said that if the Court were to find that the question of admissibility does not possess, in the circumstances of the case, an exclusively preliminary character, it should proceed to the merits stage provided of course it is satisfied as to jurisdiction. This, as we understand it, was the point that judge Sir Humphrey Waldock was making in referring to Article 67, paragraph 7, in his separate declaration of 22 June 1973. He said that the principles set forth in that paragraph should guide the Court in giving its decision on this phase of the proceedings. Under paragraph 7, the Court may either uphold or reject an objection of inadmissibility. The equivalent in the present case would be for the Court to rule that the Australian application is or is not admissible. We submit that it clearly is. But under the paragraph the Court may also declare that an objection does not possess, in the circumstances of the case, an exclusively preliminary character. In that event the paragraph requires the Court to fix time limits for further proceedings. If in the present case the Court were to take that view of the admissibility issue - we do not think it should, but possibly it might - then obviously the guidance offered by paragraph 7 is that it should move on to the next stage of the proceedings - that is to say, the merits stage.

Mr President, I turn now to the question of the jurisdiction of the Court to entertain the dispute. The contention of the Government of Australia is that it is entitled to a declaration and judgment that the Court has jurisdiction to entertain the dispute, the subject of the Application filed by the Government of Australia on 9 May 1973.

It is not proposed that our oral statements go over the whole ground covered by the written pleadings in relation to jurisdiction, or that they merely repeat the facts and arguments these contain. Rather, we will direct our statements to the essential issues that divide the Parties on this matter as paragraph 1 of Article 56 of the Rules requires.

The first main matter that divides the parties, namely, the question of the competence of the Court to decide its own jurisdiction is capable of only one answer.

The other Party has not only expressed the view, but it has also acted on the view, that it can decide for itself the question of jurisdiction. I refer to the French Note of 15th May 1973, which after asserting that the French Government considers that the Court is manifestly not competent in this case, states, bluntly that it - that is, the French Government cannot accept the Court's jurisdiction.

There is no principle of international judicial procedure more fundamentally and universally accepted than the one which attributes to an international tribunal the competence to determine its own jurisdiction. First clearly expressed in the Alabama arbitration, the principle has received explicit recognition in Article 36 (6) of the statute of this Court. It also received recognition in Article 41 of the 1928 General Act for the Pacific Settlement of International Disputes.

Another citation, which I add because it is so recent and therefore no doubt fresh in the minds of the Court, is the reference contained in the judgments of the Court on the jurisdictional phase of the Fisheries Jurisdiction cases. I quote from the judgment given in the proceedings brought by the Federal Republic of Germany against Iceland (I.C.J. Reports 1973, at p.66):

 

'…Furthermore, any question as to the jurisdiction of the Court, deriving from an alleged lapse through changed circumstances, is resolvable through the accepted judicial principle enshrined in Article 36, paragraph 6, of the Court's Statute, which provides that "in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court". In this case such a dispute obviously exists, as can be seen from Iceland's communications to the Court, and to the other Party, even if Iceland has chosen not to appoint an Agent, file a Counter-Memorial or submit preliminary objections to the Court's jurisdiction;…'

Mr President, need I say more on the first central issue that appears to divide the Parties.

I now proceed, Mr President, to deal with the jurisdictional basis provided by the 1928 General Act when read - as it must be - with Articles 37 and 36 (1) of the Statute of this Court.

The facts that both Australia and France have acceded to all parts of the 1923 General Act and that neither had denounced the General Act at the date of the Application need no elaboration by me at this stage of the proceedings. There is, however, one subsequent development to which I should refer.

On 10 January, 1974, the Secretary-General of the United Nations received a letter from the Minister for Foreign Affairs of France stating the following:

'In a case dealt with by the International Court of Justice, the Government of the French Republic noted that it was contended that the 1928 General Act for the Pacific Settlement of International Disputes could, in the present circumstances, justify the exercise of jurisdiction by the Court.

 

On that occasion the French Government specified the reasons why it considered that view to be unfounded.

While reaffirming that position, and, accordingly, without prejudice to it, the French Government requests you, with a view to avoiding any new controversy, to take cognizance of the fact that, with respect to any State or any institution that might contend that the General Act is still in force, the present letter constitutes denunciation of that Act in conformity with Article 45 thereof,'

Under Article 45, the denunciation would take effect on 15 August next, when the 'current period' of the General Act expires.

At the same time, the Secretary-General of the United Nations received a letter terminating France's acceptance of the compulsory jurisdiction of the Court under Article 36 (2).

I note in passing that the letter concerning the General Act demonstrates a certain lack of confidence in the position of the French Government stated in the French note that the Court is manifestly without jurisdiction in this case because the General Act has lapsed. But, in any case, the notice, in the sense that it purports to be a valid denunciation under Article 45 of the General Act, cannot, in accordance with established principle recognised by the Court, be regarded as having any direct effect on the present proceedings. The same comment applies to the action taken in relation to Article 36(2) of the Court's Statute.

Page 23 missing.

The link between Article 17 and the present Court is furnished by Articles 36(1) and 37 of the Statute of this Court. Australia and France are Parties to the Statute of the Court and they are therefore bound by the substitution of the International Court for the Permanent Court effected by Article 37. The operation of Article 37 as effecting substitution of the present Court for the Permanent Court, in those places where references to the latter are found in treaties in force between parties to the Statute, has been repeatedly acknowledged by the Court. I need do no more on this point than refer to the South West Africa cases (Preliminary Objections) (I.C.J. Reports 1962 at pp. 334-335 and to the full consideration of this matter in the Barcelona Traction case (Preliminary Objections) (I.C.J. Reports 1964, at pp.31-36).

It is very important to appreciate the nature of the obligations that were solemnly undertaken by France and Australia when they acceded to the General Act, particularly as they relate to Chapter II of the General Act relating to judicial settlement. Without wishing to anticipate later stages of our argument, I recall to the Court's mind the historical fact that at the end of the First World War a great effort was made to build up methods for the peaceful settlement of international disputes. The Covenant of the League of Nations was such an instance as also was the Statute of the Permanent Court of International Justice. But what are specially relevant for present purposes are the numerous special treaties for the pacific settlement of international disputes that were concluded in the post war period. The Hispano-Belgian treaty of 1927 considered in the Barcelona Traction case was such a treaty.

The 1928 General Act constitutes another instance; its special character was that it was multilateral in form whereas most of the other treaties were bilateral, but the multilateral form of the General Act should not be allowed to disguise the fact that it was intrinsically bilateral in nature. Under Article 44 the General Act came into force on accession by two parties only, and theoretically it might have had only two. This understanding of the basic nature of the obligations under the General Act is confirmed by M. Politis, the person who more than any other individual was responsible for the drafting of the Act, when he said that 'two adhesions would be sufficient even though they related only to the simplest part of the Act…in order to bring the General Act into force." The reference is to the League of Nations Official Journal, Special Supplement No.65, Records of the 9th Ordinary Session of the Assembly, Minutes of the First Committee, 9th meeting, 20 September, 1928, p.64. In this respect, the network of bilateral obligations created by the General Act is exactly comparable with the bilateral obligation considered by this Court in the Barcelona Traction case in relation to the Hispano-Belgian Treaty of 1927.

What in essence was the nature of the obligations undertaken by parties that acceded to all parts of the General Act? The painstaking drafting that went into its preparation resulted in an instrument containing 47 Articles. For the purposes of my remarks, I wish to confine myself to major undertakings of substance. My learned friend, Professor O’Connell, will be making a more detailed examination of the General Act for the purposes of his argument. For my purposes in this address the substantive obligations undertaken may be summed up as follows:-

(i)

Firstly, all legal disputes – defined as "all disputes as to which the parties are in conflict as to their respective rights" – shall be submitted for decision to the permanent Court of International Justice, now to be read for the purpose of these proceedings as a reference to this Court. The fundamental nature of the obligation thus undertaken by the parties is evident not only from the positive language of the first paragraph of Article 17, but also from the proviso to that paragraph and from the saving clause in the first paragraph of Article 20. Under the proviso, legal disputes are to be remitted to an arbitral tribunal only if the parties so agree. Under the saving clause it is provided that such disputes are to be subject to the procedure of conciliation only if the parties so agree.

(ii)

So much for the fundamental obligation undertaken with respect of legal disputes. Secondly, as to other disputes, parties agree to submit them first to the procedure of conciliation, in accordance with the provisions of Chapter 1 of the General Act, and, if not settled by that procedure, to an arbitral tribunal for decision in accordance with Chapter III.

 

Concerning the nature of the obligations undertaken in the General Act, we have moreover the clear guidance afforded by the Court’s Judgement in the Barcelona Traction case. Speaking of the provisions of the Hispano-Belgian Treaty that are comparable to Article 17 of the 1928 General Act, the Court said:

‘In the light of these provisions it would be difficult either to deny the seriousness of the intention to create an obligation to have recourse to compulsory adjudication – all other means of settlement failing – or to assert that this obligation was exclusively dependent on the existence of a particular forum, in such a way that it would become totally abrogated and extinguished by the disappearance of the forum. The error of such an assertion would lie in a confusion of ends with means – the end being obligatory judicial settlement, the means an indicated forum, but not necessarily the only possible one.’

(I.C.J. Reports 1964, at p38).

Mr President, the words that I would wish to emphasise for present purposes are those referring to ‘the seriousness of the intention to create an obligation to have recourse to compulsory adjudication – all other means of settlement failing’. In the case of France the seriousness of this intention in relation to the General Act was made manifest, first of all in the fact that France’s accession was authorised by a special law of the French Parliament, and secondly by the very terms used by the then French Minister for Foreign Affairs, M. Briand, in his letter of 10 April 1931 to the Secretary-General of the League of Nations to which the Court was referred in the oral proceedings on interim measures. That distinguished international statesman deposited the French accession in person to emphasise the importance French opinion attached to the General Act. The text of the letter is set forth in Annex 3 of the Memorial.

It is clear, therefore, Mr President that we are not dealing here with obligations of a fragile or temporary character liable to lapse, e.g. when the chosen forum ceases to exist. The decision of this Court in the Barcelona Traction case shows that the modification of the chosen forum is not fatal to the existence of the obligation. That case further shows that obligations of the kind now in question are to be interpreted in the light of their substantive object of securing the judicial settlement of international disputes. They are intrinsically enduring in their character and can only be terminated by action clearly authorised by the rules of the Law of Treaties.

The next matter to which I refer is the question of the existence in the present case of a dispute within the meaning of Article 17 of the General Act. I think that the Court would wish me to examine this aspect even though it does not appear to be one of the central issues that divide the Parties. The long French Annex denying jurisdiction does not at any stage deny that a legal dispute exists between the parties within the meaning of Article 17.

Mr President, there is clearly a 'dispute with regard to which the Parties are in conflict as to their respective rights' within the meaning of that Article. The Government of Australia's position is that it is a case exclusively in terms of legal rights. Thus, in its note to the French government of 3 January, 1973 set forth in Annex 9 of the Application the clearest statement of the nature of the Australian Government's claim appears:

'…In the opinion of the Australian government, the conducting of such tests would not only be undesirable but would be unlawful - particularly in so far as it involves modification of the physical conditions of and over Australian territory; pollution of the atmosphere and of the resources of the seas; interference with freedom of navigation both on the high seas and in the airspace above; and infraction of legal norms concerning atmospheric testing of nuclear weapons.'

In its note of 13 February, 1973 to the French Government set forth in Annex 11 of the Application the Australian Government stated the following:-

'It is recalled that, in its Note dated 3 January 1973, the Australian Government stated its opinion that the conducting of atmospheric nuclear tests in the Pacific by the French Government would not only be undesirable but would be unlawful. In your Ambassador’s note dated 7 February 1973 it is stated that the French Government, having studie most carefully the problems raised in the Australian Note, is convinced that its nuclear tests have violated no rule of international law. The Australian Government regrets that it cannot agree with the point of view of the French government, being on the contrary convinced that the conducting of the tests violates rules of international law. It is clear that, in this regard, there exists between our two Governments a substantial legal dispute'.

The French Ambassador’s Note of 7 February, 1973 referred to is set forth in Annex 10 of the Application. The particular passage in question is translated in the Application as follows:

‘Furthermore, the French Government, which has studied with the closest attention the problems raised in the Australian Note, has the conviction that its nuclear experiments have not violated any rule of international law. It hopes to make this plain in connection with the "infractions" of this law alleged by the Australian Government in the Note cited above (i.e. the Note of 3 January 1973)’.

Paragraph 18 of the Application describes the subsequent negotiations that took place in Paris between the Australian Government and the French Government. France was not prepared to join with Australia in a joint approach to the International Court of Justice. The refusal of the French Government was not based on any withdrawal by France from its position that nuclear tests conducted in the atmosphere were lawful.

The political aspects of the dispute do not affect the matter. The fact that a particular question may have a political or military aspect does not of course prevent it from also being a legal question and the dispute about it from being a legal dispute. It ought not really to be necessary, Mr President, to elaborate that point but since there have been suggestions in this direction in the dissenting opinions to the Court’s Order of 22 June, I should comment on the matter.

The first comment is that the practice of this Court and of its predecessor indicates that the existence of a political element does not remove a dispute from the jurisdiction of the Court. From the time of the Permanent Court, one may cite the advisory opinion on the Customs Regime case between Germany and Austria, which was able to be dealt with as a legal question notwithstanding its undoubted political content. Certainly that was the view taken by the protagonists in those proceedings, including the French Government, and it was the view accepted by the Court including some Judges who entered strong separate opinions, particularly Judge Anzilotti. From the jurisprudence of this Court one may refer to the South West Africa cases, ‘ in which the exhaustive preliminary objections made by the republic of South Africa did not even advert to a possible objection to the jurisdiction of the Court on the ground that the dispute had political aspects.

Looking at the matter from the point of view of principle, it can readily be seen that there is nothing in the criticism. If the Court pleases. I would like to illustrate the matter by referring to a wise observation made by an eminent judge who was widely regarded as one of the greatest judges in the Anglo-American legal world. I refer to the late Sir Owen Dixon, former Chief Justice of the High Court of Australia, who made the following observation about a statement that certain constitutional legal doctrines were based on political rather than legal considerations. Sir Owen said:

 

 

‘The Constitution is a political instrument. It deals with government and governmental powers. The statement is, therefore, easy to make though it has a specious plausibility. But it is really meaningless. It is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described, but whether they are compelling.’

 

The reference is to the Commonwealth Law Reports Vol.74 at p.82. The analogy with international law is, I suggest, complete. International law is political since by its very nature it deals with relations between sovereign States and their powers. The statement, that the claim of one State that another State should refrain from certain conduct is political in character, is easy to make. It has a specious plausibility but it really is in the legal context meaningless. It is not a question whether the claim has political aspects as almost everything arising under international law has political aspects, but whether the legal considerations founding the claim are compelling.

This Court adopted precisely the same judicial approach in its advisory opinion on Certain Expenses of the United Nations (1962 I.C.J. Reports, at p.155) when it observed:

 

‘It has been argued that the question put to the Court is intertwined with political questions, and that for this reason the Court should refuse to give an opinion. It is true that most interpretations of the Charter of the United Nations will have political significance great or small. In the nature of things it could not be otherwise. The Court, however, cannot attribute a political character to a request which invites it to undertake an essentially judicial task, namely, the interpretation of a treaty provision.

 

May I add one more citation, from an address by the late Professor Hans Kelsen. His comment on the attempt to postulate a dichotomy between political and legal disputes was frank and to the point.

He said:

 

‘Therefore the distinction between political conflicts and legal disputes is bound to fail in the aim for which it was originally conceived, namely, to sabotage the obligatory jurisdiction of an international court.

 

The reference is to the 1941 Proceedings of the American Society of International Law, at p.84.

Mr President, I can sum up this aspect of the case very simply. The Government of Australia asserts that the conducting by the French Government of nuclear tests at its South Pacific Tests Centre is contrary to international law. It seeks, as is its right, to invoke the compromissory clause contained in Article 17 of the 1928 General Act. The attitude of the other Party is that its testing program is completely legal. It has resisted, however, the steps that have been taken to have this matter litigated and ruled upon by the Court. Many comments might be made on this position of the French Government. The only point I wish to make at this stage, Mr President, is that the obvious reluctance to have its legal propositions on substance tested in this Court does not in any way affect the proposition that the Parties are in conflict as to their respective rights.

The obligation of judicial settlement contained in Article 17 of the General Act does not apply where the Parties agree to have resort to an arbitral tribunal. There has been no agreement in the present case to resort to an arbitral tribunal.

Another precondition for the exercise of jurisdiction under Article 17 of the General Act is the inapplicability of reservations to the Court’s jurisdiction made under Article 39 of the General Act. If I could just anticipate the argument that Mr Lauterpacht will be developing at a later stage, I would like to draw the attention of the Court to the fact that Article 17 specifically provides that the jurisdiction of the Court is subject only to those reservations made under Article 39. It would thus appear that the intention of parties to the General Act was that the jurisdiction of the Court under the General Act should not be subject to reservations made by a party under other instruments such as under Article 36(2) of the Statute of the Court. But this particular issue will be fully developed by Mr Lauterpacht.

The reservations made to the General Act by Australia and France are set forth in Annexes 1 and 2 respectively to the Memorial. I do not propose to refer to the French reservations since no point is made in this regard by the French Annex. Nor is any point made in this connection by the Court or its Members in the Order and Opinions published on 22 June 1973. I need to say something, however, about the comments, to be found at pages 8 and 9 of the Registry’s revised translation of the French Annex, concerning the Australian reservations.

Thus, the French Annex refers to the reservation relating to disputes submitted to the Council of the League of Nations. Presumably the intended reference is to paragraph (2) of the Australian accession to the effect that Australia reserved the right, in relation to disputes mentioned in Article 17, to require that the procedure described in Chapter II shall be suspended in respect of any dispute which has been submitted to, and is under consideration by, the Council of the League of Nations.

We have studied carefully the comments made in the French Annex that, if the General Act were in force, there would be uncertainty as to the scope of this reservation by Australia, an uncertainty said to be entirely to the advantage of Australia and thus unacceptable. In order to demonstrate the alleged uncertainty, however, the French Annex is forced to take the position of asserting that the present effect of the reservations depends, in some way or other, upon the attitude of Australia.

Mr President, it should be a sufficient answer to this contention to say that neither the French Government nor the Australian Government has invoked the reservation, and to point out moreover that the reservation is clearly inapplicable in the present proceedings. But there are two further observations that can be made which appear to us to be also conclusive on the matter. The allegation that uncertainty in the reservation is entirely to the advantage of Australia overlooks the fact that, as explicitly stated in Article 39(3) of the General Act, if one of the parties to a dispute has made a reservation, the other party may enforce the same reservation in regard to that party. The French contention is logically and legally defective for another reason also. There will be no uncertainty because, if the reservation were to be invoked in proceedings under Chapter II, it would be the function and duty of the Court to determine its meaning.

The French Annex also refers to the Australian reservation excluding disputes with any party to the General Act which was not a member of the League of Nations. The same so-called defect of uncertainty was said to apply to this reservation after the disappearance of the League of Nations.

The points I have already made about the reservation relating to the Council of the League of Nations apply here also. And, in addition the jurisprudence of this Court relating to the meaning to be attributed, since the termination of the League of Nations, to references in compromissory clauses to States Parties to the League of Nations provides yet another answer to this particular contention. Thus, a comparable reference to membership of the League of Nations was examined by Judge Sir Arnold McNair in his separate opinion on the International Status of South West Africa in relation to Article 7(2) of the Mandate for South West Africa. Article 7(2) provided that ‘if any dispute should arise between the mandatory and another member of the League of Nations relating to the Mandate, it should be submitted to the Permanent Court of International Justice. Judge Sir Arnold McNair, speaking in 1950, succinctly observed: ‘the expression "member of the League of Nations" is descriptive, in my opinion, not conditional and does not mean "so long as the League exists and they are members of it". (I.C.J. Reports 1950, pages 158-159).

This was precisely the approach applied by the Court itself in 1962 in the preliminary objections phase of the South West Africa cases brought by Ethiopia and Liberia, and the Court in 1966 found no reason to vary that approach. In this regard, the situation was thus one in which Liberia and Ethiopia, having been members of the League before its dissolution, were, for the purposes of the jurisdictional clause, still to be regarded as ‘members of the League of Nations’, sixteen years after its dissolution.

France and Australia were members of the League of Nations at all relevant times before 1946, when the League of Nations was dissolved. Their position is exactly comparable to the position of the other two countries considered by this Court in the South West Africa cases, and the same decision should be given.

This analysis of the Australian reservations indicates, Mr President, first, that the Australian reservations have not been invoked in the proceedings and, secondly, that each has a perfectly clear meaning excluding their application to the present proceedings. The only legal conclusion open is, it is suggested, that they do not affect the Court’s jurisdiction in this case.

Mr President, summing up at this point, our position is that each of the preconditions for the application of Article 17 of the General Act is satisfied. I have also indicated the nature of the engagement or commitment that was made by States that accepted that Article. I have referred to the words of the Court concerning the comparable provisions in the Hispano-Belgian Treaty of 1927. I spoke of ‘the seriousness of the intention to create an obligation to have recourse to compulsory adjudication’. I have dealt with the reservations to the General Act. In doing this I have sought to cover those arguments on which the French Government has put particular emphasis.

Professor O’Connell will in the following address deal with certain assertions made in the French Note and Annex that nevertheless the General Act has lost its effectiveness and become invalid after the collapse of the League of Nations. He will refer to the compelling evidence that proves that the General Act has not ceased to be in force because of the lapse of the League or because of its revision in 1949 or because of other factors like obsolescence, desuetude or fundamental change of circumstances. What I will now do in the remaining part of my address is to complement and complete that argumentation by showing positively how the jurisprudence of the Court and the practice of States confirm the continuing validity and effectiveness of the General Act.

I might say, Mr President, that French official practice has made the greatest single contribution towards demonstrating the continuing vitality of the General Act. Indeed French practice on the point is so extensive and so substantial as to indicate that the fundamental principle of good faith and consistency in treaty relations enshrined in Article 45 of the Vienna Convention on the Law of Treaties may well be applicable. Article 45 is set forth in paragraph 187 of the Australian Memorial.

It embodies the fundamental principle that a State may not invoke a ground for terminating a treaty if, after becoming aware of the facts, it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or its maintenance in force. France has again and again since 1946 asserted and relied upon the continuing validity of the General Act.

The Court could thus dispose of the French reliance on them by reference to the principle in Article 45, and I invite it to do so.

Additionally the Court should hold that the materials to which I am about to refer positively show that the General Act continues to have force and vitality. Having shown the General Act to have been a treaty in force between Australia and France it should not be necessary for us, as a matter of burden of proof, to show that it continues in force; as Professor O’Connell will show, that is to be presumed. Rather it is for France to prove the contrary. But in any case the positive evidence exists to establish its continuing vitality.

That this is the position is brought out, for example, by the proceedings in1955 to 1957 by France against Norway in the Norwegian Loans case. The significance of these proceedings has already been dealt with at length in the oral proceedings relating to interim measures (the reference is to C.R.73/4, at p.p.43-53) and in the Australian Memorial, at paragraphs 193-215. The central point that divides the Parties to the present proceedings is the interpretation of the views of the Court on the submission so clearly and so frequently made by the French Government in that case that the general Act was fully in force. I shall focus on that aspect, after recalling briefly to the mind of the Court the argumentation of the Parties in that case.

The Application of the French Government was submitted on 6 July 1955. The Claimant Government referred therein, insofar as jurisdiction was concerned, only to the declarations of acceptance of the compulsory jurisdiction of the Court, expressed, on the basis of Article 36, paragraph 2 of the Statutes, by Norway and France on 16 November 1945 and 1 March, 1949 (I.C.J. Reports of Judgements, Advisory Opinions and Orders) respectively. However, in the Observations submitted on 31 August, 1956 the French Government, in referring to the previous rejection by Norway of any form of arbitration on the issue, requested the Court to find that there had been a violation by Norway of the General Act of 26 September 1928 (I.C.J. Pleadings, Oral Arguments, Documents, 1957, Vol.I, p.180). This position was confirmed in a note addressed on 16 September 1956 (check) by the French Minister of Foreign Affairs to the Norwegian Embassy in Paris (Ibid., Vol I, p.301). In the Oral Pleading by the Agent of the French Government at the hearing of 15 May 1957 there again appears a reference to article 17 of the General Act of 26 September 1928 (Ibid., Vol II, p.60).

It should be noted that, on the other hand, the Norwegian Government in its Counter-Memorial of 20 December 1956, even though rejecting in point of fact the charge made against it by referring to the efforts it had made in favour of the development of international jurisdiction, in no way denied that the General Act of 1928 was in force between the Parties. The same thing can be said with regard to the oral Pleading on behalf of the Norwegian Government delivered on 21 May 1957 by Professor Bourquin (ibid., p.123). In two instances that distinguished lawyer referred to the General Act of 1928 with a view to pointing out that the French Government had seemed to renounce its theory of a violation on the part of the Norwegian Government of the obligations resulting from that Act. But at no time did Professor Bourquin raise any doubts whatever in connection with its being in force. The issue was very carefully gone into in detail by Judge Basdevant, in his dissenting opinion. The terms used by that distinguished jurist could not be more precise and are worth being recalled in extenso:

 

‘In the matter of compulsory jurisdiction, France and Norway are not bound only by the Declaration to which they subscribed on the basis of Article 36, paragraph 2 of the Statute of the Court. They are bound also by the General Act of 26 September, 1928 to which they have both acceded. This Act is, so far as they are concerned, one of those "treaties and conventions in force" which establish the jurisdiction of the Court and which are referred to in Article 36, paragraph 1, of the Statute. For the purposes of the application of this Act, Article 37 of the Statute has substituted the International Court of Justice for the Permanent Court of International Justice. This Act was mentioned in the Observations of the French Government and was subsequently invoked explicitly at the hearing of 14 May by the Agent of that Government. It was mentioned at the hearing of 21 May by Counsel for Norwegian Government. At no time has any doubt been raised as to the fact that this Act is binding as between France and Norway.’

There is no reason to believe that this General Act should not receive the attention of the Court. At no time did it appear that the French Government had abandoned its right to rely on it.

Even if it had maintained silence with regard to it, the Court "whose function it is to decide in accordance with international law such disputes as are submitted to it" could not ignore it. When it is a matter of determining its jurisdiction and, above all, of determining the effect of an objection to its compulsory jurisdiction, the principle of which has been admitted as between the Parties, the Court must, of itself, seek with all the means at its disposal to ascertain what is the law….’.

(Ibid., p.74)

The dissenting opinion of this distinguished French Judge thus contains the most effective assertion one could wish of the present validity of the General Act of 26 September 1928 and of the continuing force of the obligation resulting therefrom on the parties to accept the compulsory jurisdiction of the International Court of Justice in the legal disputes between them.

Need I remind the Court that Judge Basdevant was one of the most prominent authorities on matters of international law, who not only sat as Judge on the issue of the Norwegian Loans, but was over a period of many years Chief Legal Adviser to the Ministry of Foreign Affairs of France, and then President of the International Court of Justice itself, from 1949 to 1952.

Now , Mr President, the French Annex states, at p.4 of the translation that:

 

‘An examination of the positions adopted by international tribunals and the conduct of States gives further reasons for concluding that the 1928 Act lacks present validity. So far as the International Court of Justice is concerned, it had to settle this point (i.e. the continuance in force of the General Act) in the case concerning Certain Norwegian Loans.’

This statement in the French Annex is not correct. The Court did not have to settle the point whether the 1928 Act ‘lacks present validity’. It expressly avoided reaching any such conclusion. It is necessary to recall the words of the Judgment where the General Act is mentioned (I.C.J. Reports 1957):

 

On p.23: ‘the Court notes in the first place that the present case has been brought before it on the basis of Article 36, paragraph 2, of the Statute and of the corresponding Declarations made by the Parties in accordance with Article 36, paragraph 2, of the Statute on condition of reciprocity.’ At p.11 in the opening part of the Judgment the Court recounted: ‘The Application thus filed in the Registry on 6 July 1955 expressly refers to Article 36, paragraph 2, of the Statute of the Court and to the acceptance of the compulsory jurisdiction of the International Court of Justice by the Kingdom of Norway on 16 November 1946 and by the French Republic on 1 March 1949’.

It then refers to two substantive grounds for the claim against Norway. At p.24:

 

‘The French Government also referred to the Franco-Norwegian Arbitration Convention of 1904 and to the General Act of Geneva of 26 September 1928 to which both France and Norway are parties, as showing that the two Governments have agreed to submit their disputes to arbitration or judicial settlement in certain circumstances which it is unnecessary here to relate.

These engagements were referred to in the Observations and Submissions of the French Government on the Preliminary Objections and subsequently and more explicitly in the oral presentations of the French Agent. Neither of these references, however, can be regarded as sufficient to justify the view that the Application of the French Government was, so far as the question of jurisdiction is concerned, based upon the Convention or the General Act. If the French Government had intended to proceed upon that basis, it would expressly have so stated.

As already shown, the Application of the French Government is based clearly and precisely on the Norwegian and French Declarations under Article 36, paragraph 2, of the Statute. In these circumstances the Court would not be justified in seeking a basis for its jurisdiction different from that which the French Government itself set out in its Application and by reference to which the case has been presented by both Parties to the Court.

At p.26 the Court quotes Counsel for Norway:

 

‘… the Court has jurisdiction only in so far as undertakings prior to the origin of disputes have conferred upon it the power of adjudicating on such disputes as might arise between France and Norway.

What are these undertakings?

They are the undertakings resulting from the Declarations made by the two Governments on the basis of Article 36, paragraph 2, of the Statute of the Court.

That is the only basis on which the other Party can rely to show that its Application falls within the limits of the jurisdictional competence of the Court.’

Mr President, in the light of these passages in the Court’s judgment, the assertion that the Court ‘had to settle’ the question whether the General Act ‘lacks present validity’ falls to the ground. The Court made it plain that it did not have to settle the point.

The French Annex also refers to Judge Sir Hersch Lauterpacht’s ‘Dissenting Opinion’ in this case, but Sir Hersch says expressly (at p.66) that his is a ‘Separate Opinion’ and not a ‘Dissenting Opinion’. The French Annex refers to p.61 of Sir Hersch’s opinion as if he there endorsed the opinion of Judge Basdevant that the Court should have rested on the General Act. This is not so. A reading of the passage shows that Sir Hersch was making a quite separate point, namely that the Court should examine proprio motu the validity of the French declaration under Article 36(2) which had been specifically invoked as one of the grounds of jurisdiction. Indeed, Sir Hersch does mention the General Act on p.62 of the report, but not in any way to express a view about the position of Judge Basdevant.

Judge Badawi in his separate opinion does not discuss the General Act or Judge Basdevant’s opinion. Judge Guerrero, in his dissenting opinion says (at p.67):

 

‘I share the view of the Court when it recognizes that, in the present case, the jurisdiction of the Court depended upon the Declarations made by the Parties in accordance with Article 36, paragraph 2, of the Statute.’

He does not mention the General Act. Judge Read, in his comprehensive dissenting opinion, dealt both with the merits and with jurisdiction but did not find it necessary to mention the General Act.

Judge Basdevant explains, at p.77, ‘the source of my dissent’, namely that the Judgment interprets the Norwegian Government’s intention in a different way from that in which I have felt it proper to interpret it.’ He adds that it was thus not necessary for the Court to consider points with which he deals in his dissenting opinion. He concludes (at p.78):

 

‘Having regard to the sense that I attach to the Norwegian Government’s intention in invoking the French reservation, and having regard to the nature of the questions actually submitted to the Court, I do not think that Norway is justified, in this case, in declining the jurisdiction of the Court on the ground of the reservation concerning its national jurisdiction.

 

It is fair to conclude, that, had the Court interpreted the intention of the Norwegian Government as Judge Basdevant interpreted it, it would have examined the applicability and efficacy of the General Act, and, given the great deserved prestige of Judge Basdevant, would have given the greatest weight to the conclusion he had reached.

It is therefore incorrect for the French Annex to continue by saying (at the top of p.5) that ‘the Applications of Australia and New Zealand against France present a similar problem: that of the relationship between the broad acceptance of the P.C.I.J. by the 1928 Act and the subsequent more limited acceptance of the jurisdiction of the International Court of Justice on the basis of Article 36, paragraph 2 – the only differences deriving from the fact that the General Act is formally invoked by the Applicants, but also from the nigh-on twenty additional years that now aggravate the desuetude of the 1928 Act;.’

Of ‘the only differences’, the crucial one is the intention to rely on one basis for the Court’s jurisdiction – interpretation of the intention of the parties, which as Mr Lauterpacht has shown in his analysis of Judge Anzilotti’s opinion in Electricity Company of Sofia, in the oral proceedings on interim measures, is a key note, just as it was the key point in Judge Basdevant’s mind.

The French Annex at p.4 suggests that Judge Basdevant must have put his arguments before his colleagues but that his thesis ‘does not appear even to have merited being discussed in any of his colleagues’ separate or dissenting opinions’. The implied disparagement of so distinguished a jurist is remarkable. In the practice of the Court, it has not been usual for Judges to comment on the views in a separate or dissenting opinion, although this was sometimes done. In the Norwegian Loans case, I do not find that Judge Badawi, or Judge Lauterpacht, or Judge Guerrero or Judge Read, in their separate or dissenting opinions referred to any of their colleagues’ separate views. The Resolution Concerning the Judicial Practice of the Court which was in force in 1957 when Norwegian Loans was decided had no provision about the exchange of separate or dissenting opinions. This omission was met in the Revision of 5 July 1968, in Article 7 of the Resolution, which requires separate and dissenting opinions to be made available to the Court. In the Barcelona Traction case (1970) it will be seen that some of the individual opinions do refer to the opinions of other Judges in the same case.

Summing up, Judge Basdevant’s judgement must therefore be regarded as a distinct, and undisturbed, judicial authority on the subject.

I turn now to the evidence that exists of the continuing vitality of the General Act to be found in the practice of States. Almost all this practice belongs to the period after the demise of the League of Nations in 1946. It is interesting to reflect on that fact. It means that the incontrovertible evidence provided by this practice negates, in the clearest way, the attitude taken in the French Annex that, in some way or the other, the General Act lapsed with the League of Nations.

The main instances of State practice may be itemised as follows:

(a)

First I refer to the Settlement Agreement of 17 November 1946 between France and Thailand. The League of Nations was wound up on 18 April 1946. Article 3 of the Agreement is set forth as page 53 of the Memorial. Not only does the article speak of the General Act as if it was then in force, but it seems highly unlikely that the parties would have incorporated such a reference to a treaty which either of them considered to be no longer in force.

 

(b)

Secondly, I refer the Court to the Special Conciliation Committee constituted by France and Thailand pursuant to Article 3 which was actually sat in Washington in May-June 1947. The meeting is referred to in paragraph 230 of the Memorial, which sets forth the statement made by the Commission that ‘in accordance with Article 10 of the General Act of Geneva, it was decided that the Commission would not be public’. I would stress that it was a French-Siamese Commission and that the French Government was represented by senior French diplomats. It is not really credible that these experienced diplomats would have invoked the General Act in 1947 in those terms if their Government considered that the Act was a dead-letter because of the lapse of the League of Nations or desuetude.

(c)

Thirdly, I mention the several references that were made to the 1928 General Act during the drafting of the European Convention for the Pacific Settlement of International Disputes. They are summarized in paragraphs 221-225 of the Memorial. Thus a representative of Denmark, M. Lannung, specifically referred in the course of debates to the General Act as being in force for twenty States. His statement made in 1955, in the context of expert juridical discussion of instruments relating to peaceful settlement, constitutes clear evidence of the continuing vitality of the General Act.

(d)

Fourthly, I cite the repeated submissions by the French Government invoking the General Act as a treaty in force in the course of the proceedings in the Norwegian Loans case. The proceedings occupied the years 1955 to 1957. I have already referred to those submissions and I shall not discuss them at this point, except to say that in their context they provide the most powerful and uncontradicted testimony that the General Act continued in force.

 

(e)

Fifthly, I cite the attitude of the States involved in the Temple of Preah Vihear case. These indicate that Cambodia and Thailand in 1959 to 1961 considered the General Act is in force. When the application of the General Act was opposed by Thailand it was only on the assumption that neither Cambodia nor Thailand was party to it. There was not even the slightest suggestion that the General Act may have fallen into desuetude. Counsel for Cambodia was Professor Reuter, at present a distinguished member of the International Law Commission. Professor Reuter has appeared as Counsel and even Deputy Agent for the Government of France on a number of occasions. He is on record in the Temple of Preah Vihear case as saying categorically that the General Act is ‘in force’. The details are set forth in paragraphs 227-232 of the Memorial.

(f)

Sixthly, I cite the reliance that was placed on the General Act being in force in 1964 when the attitude of the French Government was being explained in the French National Assembly as to why it did not envisage becoming a party to the European Convention on Pacific Settlement. The Foreign Minister referred to certain obligations by which France was already bound – ‘liee’ - The references included a reference to the 1928 General Act revised in 1949. The reference to the revision can only have been descriptive since France is not a party to the revising instrument. The thrust of the statement is clear. France is already bound by the 1928 General Act. To suggest any other meaning is tantamount to suggesting that the Foreign Minister was deliberately misleading the French Parliament. The details are set forth in paragraph 233 of the Memorial.

(g)

Seventhly, I cite the evidence provided by the treaty compilations and treaty lists relating to the countries that became parties to the General Act and referred to in paragraphs 235 and 236 of the Australian Memorial. Two propositions emerge. One is that a number of officials, semi-official and unofficial treaty lists show the General Act as still being in force. To illustrate these, it may be sufficient to mention only Dr Rollet’s 1971 list of French multilateral treaties (which lists Australia and France as parties) and the Treaty List published by the Swedish Ministry of Foreign Affairs in196? The second proposition is that no treaty list which has been examined states or implies that the General Act has been terminated. The omission of the General Act from a few of the treaty lists is perfectly consistent with the non-exhaustive character of those lists.

(h)

Eighthly, I would like to cite two instances of State practice, one relating to a time shortly before the revision of the General Act in 1949 and the other to a time shortly before the institution of the present proceedings. The 1951 volume of the Official Bulletin of the U.S. Department of State contains notes on the compulsory jurisdiction of this Court and refers at some length to the Revised General Act. What is significant for present purposes is the following note which appears at page 668:

 

‘The General Act of September 26, 1928 remains in force, the current five year period beginning August 16, 1949.’

 

So much for the United States view on the matter. The Netherlands has, as recently as 1971, made an unequivocal statement that the 1928 General Act continues in force, in the very context of consideration by it of the Revised General Act. In a memorandum dated 3 March 1971 from the Netherlands Foreign Minister to the Second Chamber of the States General describing the revised General Act and explaining the reasons of the Government of the Netherlands for seeking the Parliament’s consent to ratify it, the General Act is spoken of as ‘still in force for 22 States including the Kingdom’.

It might be an appropriate point, Mr President, to also refer to the annual articles called ‘Notes of Legal Questions Concerning the United Nations’ contributed by Professor Yuen-Liang to the American Journal of International Law at the time when he was Director, Division for the Development and Codification of International Law, at the United Nations Secretariat. He was later Secretary to the International Law Commission and he is a member of the Institute de Droit Internationale. In his contribution to Volume 42 of the American Journal he describes the initial moves for the revision of the General Act. In note 40 on p.? he says: ‘this General Act is now binding upon 22 States’. In the 1949 volume, No. 43, at page 706 and the following pages, he refers to the rights of the parties under the General Act as being left intact.

(i)

Ninthly, I cite the highly qualified publicists confirming the continuing existence of the General Act referred to in paragraphs 240-258 of the Memorial. Professor O’Connell will address the Court on this part of the case.

 

Summing up on this part of our argument, Mr President, the jurisprudence of this Court, the practice of States and the opinions of authors confirm in the most convincing manner the continuing validity and effectiveness of the General Act. It is perhaps the very strength of that case that explains the rather strained character of the arguments set forth in the French note and French Annex to support the contention that the General Act has lapsed and also the extreme vagueness of some of those contentions when considered, as they must be, as legal arguments. It is to some of these contentions to which I would now like to turn in the concluding part of this address.

Thus, Mr President, the French annex places great emphasis on the parallelism which it alleges existed between reservations which countries inserted in their accessions to the General Act and their respective declarations under Article 36 of the Statute of the Permanent Court of International Justice. It also alleges that, in relation to countries which acceded to the Revised General Act, this parallelism between their accessions to that Act and their declarations under the Statute of the present Court ‘stands unbelied’.

It is really very difficult to know that to make of such an argument. There is no legal duty upon States to maintain parallelism in this area and it could in fact be inconvenient for States to do so. An instance that may be cited concerns the Australian accession to the Optional Protocol of Signature concerning the compulsory settlement of disputes arising under the 1958 Conventions on the Law of the Sea. There are no reservations to the Australian accession, which was lodged in 1963. However, the Australian declaration under Article 36(2) of the Statute of this Court lodged in 1954 and still in force contained a number of reservations, including one specifically relating to law of the sea matters.

What is the argument that is being put here? Analysed in legal terms, it seems to be that the continuance of the treaty obligations solemnly undertaken by Australia and France in 1931 in relation to the General Act depend upon the vague and uncertain test of whether or not, generally speaking, parties to the General Act maintain parallelism with their declarations under Article 36(2) of the Statute even though it is not their legal duty to do so. We cannot see how such a proposition could ever be accepted by an international legal tribunal. Moreover, the argument made elsewhere by the Government of France that the reservations under Article 36(2) override reservations made to similar instruments would, if it is correct, make it unnecessary to maintain such parallelism between separate declarations. It is not usual to advance at one and the same time an argument and its opposite, particularly when it is a matter of assessing the significant of the conduct of States in the light of whether the proposition that parallelism must exist or the contrary proposition that parallelism must exist or the contrary proposition that parallelism need not exist correctly states the legal position.

The truth of the matter is, Mr President, that it is difficult to avoid the conclusion that the argument contained in the French Annex on this point simply is another way of putting the French position on desuetude or obsolescence of the General Act. This was dealt with in the Memorial. This argument must, we submit, be rejected for the reasons stated in the Memorial, which Professor O’Connell will elaborate in his address.

It may nevertheless be of some interest to the Court to consider the extent to which the alleged parallelism referred to in the French Annex in fact existed. This is done in paragraphs 262 to 277 of the Australian Memorial. The analysis clearly indicates the inaccuracy of the French assertion that when the General Act was manifestly in force States took care to maintain an identity between their accessions to the General Act and their declarations under Article 36 and that a similar position has applied in relation to the Revised General Act where countries party to it have also filed declarations under the Optional Clause. The lack of parallelism is even more pronounced when one takes into account the differing dates of termination or possible termination of the respective declarations under Article 36 and accessions to the General Act and where relevant the Revised General Act.

Another matter dealt with in the French Annex to which I wish to refer at this stage is the argument therein that – and I quote from the Registry’s translation –

            "Australia’s most recent action with reference to that Act

            amounted to a patent violation of it."

The conclusion sought to be drawn is that the General Act is therefore inapplicable in relations between France and Australia even if it has not lost all validity.

The Government of Australia is unable to accept either the accuracy or the validity of any of these points.

The reference made by the French Annex is of course to the Australian Prime Minister’s telegram of 7 September 1939 to the Secretary-General of the League of Nations, set forth in Annex 1 of the Memorial. In that telegram, the Prime Minister made what was obviously a reference to the Second World War and notified the Secretary-General that Australia would not regard its accession to the General Act as covering or relating to any dispute arising out of the events occurring during – and I quote – the "present crisis". It is clear from this that Australia was making a statement as to its intention with regard to disputes arising out of that war. France and a number of other countries had already lodged similar communications which also indicated the disputes which were to be reserved from their accessions to the Act.

Two comments may fairly be made on the Australian instrument. One was that it was not lodged within 6 months before the expiry of the then "current period" of the General Act that terminated on 15 August 1939. It therefore could not take effect on that date. The second comment is that the language of the communication was perhaps imprecise. What was obviously mainly in mind was disputes arising out of the events connected with the Second World War.

The French Annex refers to certain so-called "protests" lodged against the Australian communication of 1939. The actual documents in question are conveniently referred to at pages 195 and 219 of the U.S. Department of State Bulletin, No 2. The Secretary-General of the League of Nations stated in a circular letter dated 17 January 1940 that the Minister for Foreign Affairs of Sweden had informed him that, while taking note of the Australian Government’s communication, the Swedish Government feels obliged to make reservations as to the "legal effect" of the telegram, more particularly as regards disputes not connected with the War. The Norwegian notification is set forth at page 219. It is similar in effect. It will be noted that the notifications are not "protests" as the French Annex suggests, but rather the countries concerned were reserving their position on the legal effect. Secondly and most importantly, it is clear that the point they had in mind was certainly not that Australia had broken its links under the General Act, but rather the opposite. Their point appeared to be that the links continued possibly without any diminution by reason of the 1939 declarations or at least diminished only in relation to disputes actually connected with the War. The reservations expressed by Sweden and Norway were not referred to, I should add, in the 1944 League of Nations list of treaties contained in the Official Journal, Special Supplement, No 193.

Mr President, in these circumstances, even if the Australian action could be regarded as a departure from the procedural requirements of the General Act, what conceivable relevance can that have today? The so-called "breach" was manifestly not intended to terminate Australia’s relationship under the General Act and it did not do so. Did it adversely affect the rights of France under the General Act? There is no suggestion that it did, and if France now belatedly chooses to say that her rights in relation to the Australian actions during the Second World War were injured by what happened in 1939, it is now completely out of time.

Our submission, Mr President, is that there is no substance in the French argument and nothing that can justify the Court deciding otherwise than that the General Act is of continuing force and validity and that France and Australia were parties to it at the date of the institution of these proceedings.

Mr President, after I have concluded my address, Professor O’Connell will develop the argument that the General Act has not ceased to be in force by reason of its relationship with the League of Nations system or by reason of the revision of the General Act in 1949. He will also submit that there is no basis at all for saying that the General Act has been terminated by desuetude or obsolescence or because of any fundamental change of circumstances.

Mr Lauterpacht will follow Professor O’Connell and will address the Court on the link of compulsory jurisdiction between Australia and France under Article 36(2) of the Statute of the Court. Mr Lauterpacht will also deal with the two separate and distinct sources of access to the Court: under the General Act via Article 36(1) of the Statute on the one hand and under Article 36(2) on the other. He will show that the reservation under Article 36(2) relied upon by the French Government has no bearing at all on jurisdiction pursuant to Article 36(1).

The Solicitor-General will be dealing with the question of admissibility and he will be referring in that connection to the position and task of the Government of Australia on this matter. For the convenience of the Court and especially in view of the fact that reasons of State may make it impossible for me to be present when that issue is being dealt with, I would, at this stage, briefly summarize those submissions that the Solicitor-General will be developing in his address.

It is the submission of the Government of Australia that the issue of admissibility is limited to the question of Australia’s legal interest in its claims, and that such an interest exists in each branch of its claims.

This understanding of the position and task of the Government of Australia is based upon a reading of the terms of the Court’s Order. Paragraph 23 of that Order on which this understanding is based reads:

            ‘Whereas it cannot be assumed a priori that…..

            the government of Australia may not be able

            to establish a legal interest in respect of these

            claims entitling the Court to admit the Applications.’

I would however, stress that should the Court feel that the Government of Australia has in anyway misinterpreted the Court’s Order, with regard to the necessity of resolving as soon as possible the question of admissibility, it will, in accordance with fundamental standards of due process, so inform the Government of Australia.

At the level of generality, the Australian Government has some difficulty in seeing how it could be maintained that it has not a legal interest in respect of its claims entitling the Court to admit the Application. On the one hand, it asserts that France is conducting its nuclear tests in the atmosphere at its Pacific Tests Centre violates its obligations towards Australia under international law in certain respects. France, on the other hand, contests the existence of those obligations and Australia’s right to assert that France is in breach of those obligations. Thus, how can it be contradicted that there is a dispute as to the respective rights of the parties which this Court is entitled to adjudicate upon.

Nonetheless, those arguments which substantiate Australia’s legal interest in respect of its claims will be developed to some extent at this stage of the case, in order to dispel any lingering doubts that any member of the Court may have concerning the validity of the Australian Government’s primary submissions.

However, I would emphasize that it is not necessary for the Australian Government, nor is it invited, to prove its substantive case at this stage. In the words that Judge Jimenez de Arechaga used in his declaration appended to the Order of 22 June, 1973:

 

‘It would not appear necessary to enter……..

into questions which really pertain to the merits and

constitute the heart of the eventual substantive decisions’

(I.C.J. Reports 1973 at p.108)

I will outline firstly the argument that will be put concerning the manifest legal interest of Australia to obtain a judgment that its sovereignty over and in respect of its territory is violated by the deposit on its territory and the dispersion in its airspace of radio-active fall-out from the French atmospheric nuclear tests. The violation of its sovereignty is a fundamental part of Australia’s legal case against further atmospheric testing in the South Pacific. We wish to make this perfectly clear to the Court.

Australia’s contentions based upon an infringement of its sovereign rights proceed from the undisputed and indisputable fact that radio-active fall-out is deposited on Australian soil and in its adjacent seas and is dispersed through its airspace as an inevitable concomitant of the tests at Mururoa. The Court will remember that the report of the joint meeting of French and Australian scientists held in May of last year proceeded upon the basis that such deposits had in the past occurred and as the documents we have submitted to the Court in relation to the 1973 French tests also show, it has occurred thereafter. There is, of course, no reason to doubt but that it will occur from the current series of atmospheric tests now being conducted.

The second essential fact is that matter emitting ionising radiation is inherently harmful. As to this fact there is, of course, no real dispute, and reference will be made to UNSCEAR reports to show that such is the orthodox scientific opinion.

The factual conclusion upon that, and indeed inevitable from it, is that the inherently harmful deposit may cause real damage to the Australian population, its environment, to its adjacent seas and the marine life which inhabits those seas and which is in turn consumed by the Australian people. An additional fact again attested by the reports of UNSCEAR is that the radiation so emitted may be dangerous down to the smallest dose.

Both the 1966 report of UNSCEAR and the Publication No. 9, paragraph 29 of the International Commission of Radiological Protection so state. Paragraph 31 in Chapter 3 of the UNSCEAR report to which I have referred contains the statement that "although there are insufficient data for making satisfactory estimates of risk, it is clear that, with any increase of radiation levels on earth, the amount of genetic damage will increase with the accumulated dose". And, of course, Publication No. 9 of the International Commission to which I have referred contains the statement that the assumption which it makes implies that there is no wholly safe dose of radiation.

I mention these matters only for the purpose of rendering the arguments that will be adduced more readily understandable. I do not suggest, and of course that occasion is not the one, that the Court is presently concerned with any question of the extent of any damage that Australia may have sustained.

I have mentioned the matters of fact solely to indicate that the argument proceeds from the fact of the deposit, coupled with the fact that its nature indicates that it is harmful to the country and the environment which receives it, whatever may be the difficulties in establishing the extent of that harm.

From the fact of the deposit, the argument will be advanced that established decisions of this Court indicate that that intrusion upon Australian territory of foreign matter is an infringement of Australia’s sovereignty in at least two aspects.

One aspect is the territorial aspect. The other is the decisional aspect of sovereignty, that is to say, that characteristic which the possession of sovereignty necessarily confers upon the sovereign – the right to say for itself what decisions will be made by it and, in particular, the extent to which, if at all, its population will be exposed to the risk of damage.

The argument will proceed, first of all, by suggesting that these territorial and decisional aspects of sovereignty are rights which international law recognises and which it protects as legal rights by way of imposing upon each other sovereign an obligation to respect the sovereign rights of all others.

The matter will then be looked at independently and upon the basis that one possible view is that Australia’s international legal rights may flow from the incorporation into international law of the maxim that each sovereign must so use its own territory as not to inflict damage to the rights of others. It will be submitted that on that basis and assuming that by damage is meant a positive harm, that in this case that requirement would also be met by a consideration of the nature of the deposit and the physical consequences that it may inflict on the Australian population and environment as well as the undoubted fact that the deposit and its probable repetition have subjected the Australian population to considerable mental distress.

There is, of course, the further fact that the carrying on of the tests has required that Australia should set up and maintain a substantial and effective monitoring system by which the amount of that deposit may be ascertained so that its population may be protected.

Lastly on this aspect, it will be submitted that if either of the preceding views is incorrect the conduct of the tests by France so as to lead to deposit on Australian soil, airspace and environment generally, amounts to an abuse by France of its rights and, therefore, imposes upon it international responsibility.

It will be next submitted that Australia possesses a legal interest in propounding the assertion that the conduct by France of atmospheric tests which lead to a deposit of radio-active fall-out on Australian soil conflicts with a rule of customary international law to that effect.

Australia’s legal interest in maintaining that claim will be supported by arguments tending to suggest that the rule, the existence of which, for present purposes must be assumed, is one erga omnes and that for that reason Australia possesses the necessary requisite interest, even if she has not sustained any damage.

It will further be contended and alternatively that if the relevant rules of customary international law amount to no more than general prohibitions, the fact that Australia has sustained damage in the manner outlined above, that is to say, to its population, to its environment, both territorial and marine, confers upon it a special interest which enables it to contend against France that its breach of the prohibition is one for which it is at Australia’s suit legally responsible.

The third claim in respect of which it will be contended Australia has a legal interest is that the conduct by France of nuclear tests in the South Pacific coupled with the closures of the seas necessarily involved is a breach by it of the freedom of the high seas. It will be submitted that the NOTAMS and other French formal notifications closing off the area amount to an exercise by France in breach of the international law of the freedom of the high seas because they purport to be an exercise of French sovereignty over the high seas.

It will further be submitted that the contamination of the high seas from radioactive fallout with its consequent contamination of marine life amounts to an interference with that right of fishing which Australia possesses whether exercised or not.

I will not deal in any greater detail with the question of admissibility. The Solicitor’s address will deal with this aspect of the case at some length.

Moreover, as I have mentioned earlier, the remaining jurisdictional issues will be dealt with by Professor O’Connell and Mr Lauterpacht.

But before I conclude my address, I would like to reiterate the basic position of the Australian Government at this stage of the proceedings. We submit that this Court has clear competence to proceed to a hearing of the merits of the case and that the Government of Australia is entitled as a matter of law to such a hearing.

 

**         Approximately 4 pages are missing from the original numbered version: pages 11, 12, 13, 23. These are noted in the transcript above. As soon as they can be obtained, they will be republished here.