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Summary of the Summary of the Order of 22 June 1973NUCLEAR TESTS CASE (AUSTRALIA v . FRANCE)

(INTERIM PROTECTION)

Order of 22 June 1973

The Court, by 8 votes to 6, made an Order indicating pending its final decision in the case concerning Nuclear Tests

(Australia v. France), the following provisional measures of protection:The Governments of Australia and France should each of them ensure that no action of any kind is taken which mightaggravate or extend the dispute submitted to the Court or prejudice the rights of the other Party in respect of the carryingout of whatever decision the Court may render in the case; and, in particular, the French Government should avoidnuclear tests causing the deposit of radio-active fall-out on Australian territory.As President Lachs was for health reasons unable to participate, it was Vice-President Ammoun who, in accordance withArticle 45 of the Statute, presided and read out the Order. Judge Dillard was likewise absent for health reasons, and theCourt was therefore composed as follows:Vice-President Ammoun, Acting President, Judges Forster, Gros, Bengzon, Petrn, Onyeama, Ignacio-Pinto, de Castro,Morozov, Jimnez de Archaga, Sir Humphrey Waldock, Nagendra Singh and Ruda; Judge ad hocSir Garfield Barwick.Of the Members of the Court who voted in favour of the indication of provisional measures, Judges Jimnez deArchaga, Sir Humphrey Waldock, Nagendra Singh and Sir Garfield Barwick each appended a declaration. Of theudges who voted against the indication of the measures, Judges Forster, Gros, Petrn and Ignacio-Pinto eachappended to the Order a dissenting opinion.

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In its Order, the Court recalls that on 9 May 1973 Australia instituted proceedings against France in respect of a disputeconcerning the holding of atmospheric tests of nuclear weapons by the French Government in the Pacific Ocean. TheAustralian Government asked the Court to adjudge and declare that the carrying out of further atmospheric nuclearweapon tests in the South Pacific Ocean was not consistent with applicable rules of international law, and to order thatthe French Republic should not carry out any further such tests. On the same date the Australian Government asked theCourt to indicate interim measures of protection. In a letter from the Ambassador of France to the Netherlands, handedby him to the Registrar on 16 May 1973, the French Government stated that it considered that the Court was manifestlynot competent in the case and that it could not accept the Court's jurisdiction, and that accordingly the FrenchGovernment did not intend to appoint an agent, and requested the Court to remove the case from its list. A statement ofthe reasons which had led the French Government to these conclusions was annexed to the letter.The Court has indicated interim measures on the basis of Article 41 of its Statute and taking into account the followingconsiderations inter alia:- the material submitted to the Court leads it to the conclusion, at the present stage of the proceedings, that theprovisions invoked by the Applicant with regard to the Court's jurisdiction appear, prima facie, to afford a basis on whichthat jurisdiction might be founded;- it cannot be assumed a priorithat the claims of the Australian Government fall completely outside the purview of the

Court's jurisdiction or that that Government may not be able to establish a legal interest in respect of these claimsentitling the Court to admit the Application;- for the purpose of the present proceedings, it suffices to observe that the information submitted to theCourt does not exclude the possibility that damage to Australia might be shown to be caused by thedeposit on Australian territory of radio-active fall-out resulting from such tests and to be irreparable.

The Court then says that it is unable to accede at the present stage of the proceedings to the request made by theFrench Government that the case be removed from the list. However, the decision given today in no way prejudges thequestion of the jurisdiction of the Court to deal with the merits of the case, or any question relating to the admissibility ofthe Application, or relating to the merits themselves, and leaves unaffected the right of the French Government to submitarguments in respect of those questions.The Court further decides that the written pleadings shall first be addressed to the question of the jurisdiction of theCourt to entertain the dispute, and of the admissibility of the Application, and fixes 21 September 1973 as the time-limitfor the Memorial of the Government of Australia and 21 December 1973 as the time-limit for the Counter-Memorial of theFrench Government.

Summary of the Summary of the Judgment of 20 December 1974

NUCLEAR TESTS CASE (AUSTRALIA v . FRANCE)

Judgment of 20 December 1974

In its judgment in the case concerning Nuclear Tests (Australia v. France), the Court, by 9 votes to 6, has found thatthe claim of Australia no longer had any object and that the Court was therefore not called upon to give a decision

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thereon.In the reasoning of its Judgment, the Court adduces inter alia the following considerations: Even before turning tothe questions of jurisdiction and admissibility, the Court has first to consider the essentially preliminary question asto whether a dispute exists and to analyse the claim submitted to it (paras. 22-24 of Judgment); the proceedingsinstituted before the Court on 9 May 1973 concerned the legality of atmospheric nuclear tests conducted by Francein the South Pacific (para. 16 of Judgment); the original and ultimate objective of Australia is to obtain a terminationof those tests (paras. 25-31 of Judgment); France, by various public statements made in 1974, has announced itsintention, following the completion of the 1974 series of atmospheric tests, to cease the conduct of such tests

(paras. 33-44 of Judgment); the Court finds that the objective of Australia has in effect been accomplished,inasmuch as France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the SouthPacific (paras. 47-52 of Judgment); the dispute having thus disappeared, the claim no longer has any object andthere is nothing on which to give judgment (paras. 55-59 of Judgment).Upon the delivery of the Judgment, the Order of 22 June 1973 indicating interim measures of protection ceases tobe operative and the measures in question lapse (para. 61 of Judgment).

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For the purposes of the Judgment the Court was composed as follows: President Lachs; Judges Forster, Gros,Bengzon, Petrn, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov, Jimnez de Archaga, Sir HumphreyWaldock, Nagendra Singh and Ruda; Judge ad hocSir Garfield Barwick.The President appended a declaration to the Judgment, and Judges Bengzon, Onyeama, Dil lard, Jimnez deArchaga and Sir Humphrey Waldock a joint declaration.Of the nine Members of the Court who voted for the decision, Judges Forster, Gros, Petrn and Ignacio-Pintoappended separate opinions.

Of the six judges who voted against the decision, Judges Onyeama, Dillard, Jimnez de Archaga and SirHumphrey Waldock appended a joint dissenting opinion, and Judges de Castro and Sir Garfield Barwick dissentingopinions.These opinions make known and substantiate the positions adopted by the judges in question. (See also thefollowing summary for further analysis.)