New Zealand v. France

NUCLEAR TESTS CASE
(New Zealand v. France)

I.C.J. Reports, 20 December 1974
FACTS:
France had carried out atmospheric tests of nuclear devices in the territory of French Polynesia in
1966-1969 and 1970-1972 which has entailed the release into the atmosphere and the consequent
dissipation of measurable quantities of radio-active matter.
On 9 May 1973, New Zealand filed an Application instituting proceedings against France with
respect to the legality of atmospheric tests conducted by the latter in the South Pacific Region
alleging that the same gave rise to radio-active fall-out which constitutes a violation of New
Zealand’s rights under international law and that these rights will be violated by any further such
tests. France stated that it could not accept the Court’s jurisdiction so it did not appear in the oral
proceedings, and requested the same to order that the case be removed from its list.
On 22 June 1973, the Court denied France’s request but granted New Zealand’s request for
interim measures of protection indicating that France should avoid nuclear tests causing the
deposit of radio-active fall-out on New Zealand territory.
New Zealand expressed that it has not been given an unqualified assurance that 1974 will see the
end of atmospheric nuclear testing in the South Pacific. True enough, two further series of
atmospheric tests had been carried out by France. As such, the Prime Minister of New Zealand
said that “Until we have an assurance that nuclear testing of this kind is finished for good, the
dispute between New Zealand and France persists”.
Since New Zealand’s statement, certain French authorities have made a number of consistent
public statements concerning future tests. Some of the statements were made by the following:
1. President of the Republic on 8 June 1974: “France will be in a position to pass on to the stage of
underground explosions as soon as the series of tests planned for this summer is completed.”
2. French Embassy in Wellington on 10 June 1974: “France will be in a position to move to the
stage of underground firings. Thus the atmospheric tests which will be carried out shortly will, in
the normal course of events, be the last of this type.”
3. President of the Republic on 1 July 1974: “It is at least gratifying for me to note the positive
reaction in your letter to the announcement in the communiqué of 8 June 1974 that we are going
over to underground tests. There is in this a new element whose importance will not, 1 trust,
escape the New Zealand Government."
4. President of the Republic on 25 July 1974: “The Prime Minister had publicly expressed that
French nuclear testing would continue. I had made it clear that this round of atmospheric tests
would be the last.”
5. Minister of Defence on 11 October 1974: “There would not be any atmospheric tests in 1975 and
France is ready to proceed to underground tests.”
New Zealand reacted on the 10 June 1974 statement saying that the same did not present an
unqualified renunciation of atmospheric testing for the future and that it hopes that France puts
an end to this activity which has been the source of grave anxiety to the people in the Pacific
region.
ISSUE:
Whether the declarations made by the French authorities meet the object of the claim by the
Applicant that no further atmospheric nuclear tests should be carried out in the South Pacific
RULING: Yes
The Court finds that the communique issued on 8 June, the French Embassy’s Note of 10 June
and the President’s letter of 1 July, 1974 conveyed to New Zealand the announcement that
France, following the conclusion of the 1974 series of tests, would cease the conduct of
atmospheric nuclear tests. The President’s statement of 25 July and the Defence Minister’s
statement of 11 October, 1974 reveal that the official statements made on behalf of France
concerning future nuclear testing are not subject to whatever proviso, if any.
It is well recognized that declarations made by way of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal obligations. Nothing in the nature of a quid pro
quo, nor any subsequent acceptance, nor even any reaction from other States is required for such
declaration to take effect. Neither is the question of form decisive. The intention of being bound
is to be ascertained by an interpretation of the act. The binding character of the undertaking
results from the terms of the act and is based on good faith; interested States are entitled to
require that the obligation be respected.
Through the unilateral declarations of certain French authorities, France has conveyed to the
world at large, including the Applicant, its intention effectively to terminate its atmospheric tests.
It was bound to assume that other States might take note of these statements and rely on their
being effective. It is true that France has not recognized that it is bound by any rule of
international law to terminate its tests, but this does not affect the legal consequences of the
statements in question; the unilateral undertaking resulting from them cannot be interpreted as
having been made in implicit reliance on an arbitrary power of reconsideration.
Two characteristics the Court found which convinced it that a binding obligation had been
incurred based on the unilateral declarations are: (1) the commitment was very specific and (2)
there was a clear intent to be bound. This, however, did not prevent France from conducting
nuclear tests in the South Pacific. After having conducted six nuclear tests, France responded to
worldwide outrage and stopped the testing at six in 1996 rather than the originally planned eight.

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NUCLEAR TESTS CASE

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