II.

CUSTOMARY INTERNATIONAL LAW

1)​ CASE: Republic v. Sandiganbayan, G.R. No. 104768, July 21, 2003

REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. SANDIGANBAYAN, MAJOR GENERAL

JOSEPHUS Q. RAMAS AND ELIZABETH DIMAANO, RESPONDENTS.

DECISION
CARPIO, J.:

The Case

Before this Court is a petition for review on certiorari seeking to set aside the Resolutions of the
Sandiganbayan (First Division)[1] dated 18 November 1991 and 25 March 1992 in Civil Case No.
0037. The first Resolution dismissed petitioner's Amended Complaint and ordered the return of
the confiscated items to respondent Elizabeth Dimaano, while the second Resolution denied
petitioner's Motion for Reconsideration. Petitioner prays for the grant of the reliefs sought in its
Amended Complaint, or in the alternative, for the remand of this case to the Sandiganbayan
(First Division) for further proceedings allowing petitioner to complete the presentation of its
evidence.

Antecedent Facts

Immediately upon her assumption to office following the successful EDSA Revolution, then
President Corazon C. Aquino issued Executive Order No. 1 ("EO No. 1") creating the
Presidential Commission on Good Government ("PCGG"). EO No. 1 primarily tasked the PCGG
to recover all ill-gotten wealth of former President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates. EO No. 1 vested the PCGG with the power "(a) to
conduct investigation as may be necessary in order to accomplish and carry out the purposes of
this order" and the power "(h) to promulgate such rules and regulations as may be necessary to
carry out the purpose of this order." Accordingly, the PCGG, through its then Chairman Jovito R.
Salonga, created an AFP Anti-Graft Board ("AFP Board") tasked to investigate reports of
unexplained wealth and corrupt practices by AFP personnel, whether in the active service or
retired.[2]

Based on its mandate, the AFP Board investigated various reports of alleged unexplained
wealth of respondent Major General Josephus Q. Ramas ("Ramas"). On 27 July 1987, the AFP
Board issued a Resolution on its findings and recommendation on the reported unexplained
wealth of Ramas. The relevant part of the Resolution reads:
III. FINDINGS and EVALUATION:

Evidence in the record showed that respondent is the owner of a house and lot located at
15-Yakan St., La Vista, Quezon City. He is also the owner of a house and lot located in Cebu
City. The lot has an area of 3,327 square meters.
 II. CUSTOMARY INTERNATIONAL LAW

The value of the property located in Quezon City may be estimated modestly at P700,000.00.

The equipment/items and communication facilities which were found in the premises of
Elizabeth Dimaano and were confiscated by elements of the PC Command of Batangas were all
covered by invoice receipt in the name of CAPT. EFREN SALIDO, RSO Command Coy, MSC,
PA. These items could not have been in the possession of Elizabeth Dimaano if not given for
her use by respondent Commanding General of the Philippine Army.

Aside from the military equipment/items and communications equipment, the raiding team was
also able to confiscate money in the amount of P2,870,000.00 and $50,000 US Dollars in the
house of Elizabeth Dimaano on 3 March 1986.

Affidavits of members of the Military Security Unit, Military Security Command, Philippine Army,
stationed at Camp Eldridge, Los Baños, Laguna, disclosed that Elizabeth Dimaano is the
mistress of respondent. That respondent usually goes and stays and sleeps in the alleged
house of Elizabeth Dimaano in Barangay Tengga, Itaas, Batangas City and when he arrives,
Elizabeth Dimaano embraces and kisses respondent. That on February 25, 1986, a person who
rode in a car went to the residence of Elizabeth Dimaano with four (4) attache cases filled with
money and owned by MGen Ramas.

Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible means of
income and is supported by respondent for she was formerly a mere secretary.

Taking in toto the evidence, Elizabeth Dimaano could not have used the military
equipment/items seized in her house on March 3, 1986 without the consent of respondent, he
being the Commanding General of the Philippine Army. It is also impossible for Elizabeth
Dimaano to claim that she owns the P2,870,000.00 and $50,000 US Dollars for she had no
visible source of income.

This money was never declared in the Statement of Assets and Liabilities of respondent. There
was an intention to cover the existence of these money because these are all ill-gotten and
unexplained wealth. Were it not for the affidavits of the members of the Military Security Unit
assigned at Camp Eldridge, Los Baños, Laguna, the existence and ownership of these money
would have never been known.

The Statement of Assets and Liabilities of respondent were also submitted for scrutiny and
analysis by the Board's consultant. Although the amount of P2,870,000.00 and $50,000 US
Dollars were not included, still it was disclosed that respondent has an unexplained wealth of
P104,134. 60.

IV. CONCLUSION:

In view of the foregoing, the Board finds that a prima facie case exists against respondent for
ill-gotten and unexplained wealth in the amount of P2,974,134.00 and $50,000 US Dollars.
 II. CUSTOMARY INTERNATIONAL LAW

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried
for violation of RA 3019, as amended, otherwise known as "Anti-Graft and Corrupt Practices
Act" and RA 1379, as amended, otherwise known as "The Act for the Forfeiture of Unlawfully
Acquired Property."[3]
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act No. 1379
("RA No. 1379") [4]against Ramas.

Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez filed an
Amended Complaint naming the Republic of the Philippines ("petitioner"), represented by the
PCGG, as plaintiff and Ramas as defendant. The Amended Complaint also impleaded Elizabeth
Dimaano ("Dimaano") as co-defendant.

The Amended Complaint alleged that Ramas was the Commanding General of the Philippine
Army until 1986. On the other hand, Dimaano was a confidential agent of the Military Security
Unit, Philippine Army, assigned as a clerk-typist at the office of Ramas from 1 January 1978 to
February 1979. The Amended Complaint further alleged that Ramas "acquired funds, assets
and properties manifestly out of proportion to his salary as an army officer and his other income
from legitimately acquired property by taking undue advantage of his public office and/or using
his power, authority and influence as such officer of the Armed Forces of the Philippines and as
a subordinate and close associate of the deposed President Ferdinand Marcos."[5]

The Amended Complaint also alleged that the AFP Board, after a previous inquiry, found
reasonable ground to believe that respondents have violated RA No. 1379.[6] The Amended
Complaint prayed for, among others, the forfeiture of respondents' properties, funds and
equipment in favor of the State.

Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory Counterclaim
to the Amended Complaint. In his Answer, Ramas contended that his property consisted only of
a residential house at La Vista Subdivision, Quezon City, valued at P700,000, which was not out
of proportion to his salary and other legitimate income. He denied ownership of any mansion in
Cebu City and the cash, communications equipment and other items confiscated from the
house of Dimaano.

Dimaano filed her own Answer to the Amended Complaint. Admitting her employment as a
clerk-typist in the office of Ramas from January-November 1978 only, Dimaano claimed
ownership of the monies, communications equipment, jewelry and land titles taken from her
house by the Philippine Constabulary raiding team.

After termination of the pre-trial,[7] the court set the case for trial on the merits on 9-11 November
1988.
 II. CUSTOMARY INTERNATIONAL LAW

On 9 November 1988, petitioner asked for a deferment of the hearing due to its lack of
preparation for trial and the absence of witnesses and vital documents to support its case. The
court reset the hearing to 17 and 18 April 1989.

On 13 April 1989, petitioner filed a motion for leave to amend the complaint in order "to charge
the delinquent properties with being subject to forfeiture as having been unlawfully acquired by
defendant Dimaano alone x x x."[8]

Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with petitioner's
presentation of evidence on the ground that the motion for leave to amend complaint did not
state when petitioner would file the amended complaint. The Sandiganbayan further stated that
the subject matter of the amended complaint was on its face vague and not related to the
existing complaint. The Sandiganbayan also held that due to the time that the case had been
pending in court, petitioner should proceed to present its evidence.

After presenting only three witnesses, petitioner asked for a postponement of the trial.

On 28 September 1989, during the continuation of the trial, petitioner manifested its inability to
proceed to trial because of the absence of other witnesses or lack of further evidence to
present. Instead, petitioner reiterated its motion to amend the complaint to conform to the
evidence already presented or to change the averments to show that Dimaano alone unlawfully
acquired the monies or properties subject of the forfeiture.

The Sandiganbayan noted that petitioner had already delayed the case for over a year mainly
because of its many postponements. Moreover, petitioner would want the case to revert to its
preliminary stage when in fact the case had long been ready for trial. The Sandiganbayan
ordered petitioner to prepare for presentation of its additional evidence, if any.

During the trial on 23 March 1990, petitioner again admitted its inability to present further
evidence. Giving petitioner one more chance to present further evidence or to amend the
complaint to conform to its evidence, the Sandiganbayan reset the trial to 18 May 1990. The
Sandiganbayan, however, hinted that the re-setting was without prejudice to any action that
private respondents might take under the circumstances.

However, on 18 May 1990, petitioner again expressed its inability to proceed to trial because it
had no further evidence to present. Again, in the interest of justice, the Sandiganbayan granted
petitioner 60 days within which to file an appropriate pleading. The Sandiganbayan, however,
warned petitioner that failure to act would constrain the court to take drastic action.

Private respondents then filed their motions to dismiss based on Republic v. Migrino.[9] The
Court held in Migrinothat the PCGG does not have jurisdiction to investigate and prosecute
military officers by reason of mere position held without a showing that they are "subordinates"
of former President Marcos.
 II. CUSTOMARY INTERNATIONAL LAW

On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive portion of

which states:
WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint, without
pronouncement as to costs. The counterclaims are likewise dismissed for lack of merit, but the
confiscated sum of money, communications equipment, jewelry and land titles are ordered
returned to Elizabeth Dimaano.

The records of this case are hereby remanded and referred to the Hon. Ombudsman, who has
primary jurisdiction over the forfeiture cases under R.A. No. 1379, for such appropriate action as
the evidence warrants. This case is also referred to the Commissioner of the Bureau of Internal
Revenue for a determination of any tax liability of respondent Elizabeth Dimaano in connection
herewith.

SO ORDERED.
On 4 December 1991, petitioner filed its Motion for Reconsideration.

In answer to the Motion for Reconsideration, private respondents filed a Joint

Comment/Opposition to which petitioner filed its Reply on 10 January 1992.

On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion for
Reconsideration.

Ruling of the Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the following grounds:

(1.) The actions taken by the PCGG are not in
accordance with the rulings of the Supreme
Court in Cruz, Jr. v. Sandiganbayan[10] and
Republic v. Migrino[11] which involve the same
issues.

(2.) No previous inquiry similar to preliminary

investigations in criminal cases was conducted
against Ramas and Dimaano.

(3.) The evidence adduced against Ramas does not

constitute a prima facie case against him.

(4.) There was an illegal search and seizure of the

items confiscated.
The Issues

Petitioner raises the following issues:

 II. CUSTOMARY INTERNATIONAL LAW

1.​ RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT

PETITIONER'S EVIDENCE CANNOT MAKE A CASE FOR FORFEITURE AND
THAT THERE WAS NO SHOWING OF CONSPIRACY, COLLUSION OR
RELATIONSHIP BY CONSANGUINITY OR AFFINITY BY AND BETWEEN
RESPONDENT RAMAS AND RESPONDENT DIMAANO NOTWITHSTANDING THE
FACT THAT SUCH CONCLUSIONS WERE CLEARLY UNFOUNDED AND
PREMATURE, HAVING BEEN RENDERED PRIOR TO THE COMPLETION OF THE
PRESENTATION OF THE EVIDENCE OF THE PETITIONER.​

2.​ RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ACTIONS

TAKEN BY THE PETITIONER, INCLUDING THE FILING OF THE ORIGINAL
COMPLAINT AND THE AMENDED COMPLAINT, SHOULD BE STRUCK OUT IN
LINE WITH THE RULINGS OF THE SUPREME COURT IN CRUZ, JR. v.
SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO, 189 SCRA 289,
NOTWITHSTANDING THE FACT THAT:​
​

1.​ The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v. Migrino,
supra, are clearly not applicable to this case;​

2.​ Any procedural defect in the institution of the complaint in Civil Case No.
0037 was cured and/or waived by respondents with the filing of their
respective answers with counterclaim; and​

3.​ The separate motions to dismiss were evidently improper considering that
they were filed after commencement of the presentation of the evidence of
the petitioner and even before the latter was allowed to formally offer its
evidence and rest its case;
3.​
4.​ RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ARTICLES
AND THINGS SUCH AS SUMS OF MONEY, COMMUNICATIONS EQUIPMENT,
JEWELRY AND LAND TITLES CONFISCATED FROM THE HOUSE OF
RESPONDENT DIMAANO WERE ILLEGALLY SEIZED AND THEREFORE
EXCLUDED AS EVIDENCE.[12]

The Court's Ruling

First Issue: PCGG's Jurisdiction to Investigate Private Respondents

This case involves a revisiting of an old issue already decided by this Court in Cruz, Jr. v.
Sandiganbayan[13] and Republic v. Migrino.[14]
 II. CUSTOMARY INTERNATIONAL LAW

The primary issue for resolution is whether the PCGG has the jurisdiction to investigate and
cause the filing of a forfeiture petition against Ramas and Dimaano for unexplained wealth
under RA No. 1379.

We hold that PCGG has no such jurisdiction.

The PCGG created the AFP Board to investigate the unexplained wealth and corrupt practices
of AFP personnel, whether in the active service or retired.[15] The PCGG tasked the AFP Board
to make the necessary recommendations to appropriate government agencies on the action to
be taken based on its findings.[16] The PCGG gave this task to the AFP Board pursuant to the
PCGG's power under Section 3 of EO No. 1 "to conduct investigation as may be necessary in
order to accomplish and to carry out the purposes of this order." EO No. 1 gave the PCGG
specific responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting the President in regard to
the following matters:

(a) The recovery of all ill-gotten wealth

accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives,
subordinates and close associates, whether
located in the Philippines or abroad, including
the takeover and sequestration of all business
enterprises and entities owned or controlled by
them, during his administration, directly or
through nominees, by taking undue advantage
of their public office and/ or using their powers,
authority, influence, connections or relationship.

(b) The investigation of such cases of graft and

corruption as the President may assign to the
Commission from time to time.

x x x.
The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt
practices of AFP personnel who fall under either of the two categories mentioned in Section 2 of
EO No. 1. These are: (1) AFP personnel who have accumulated ill-gotten wealth during the
administration of former President Marcos by being the latter's immediate family, relative,
subordinate or close associate, taking undue advantage of their public office or using their
powers, influence x x x;[17] or (2) AFP personnel involved in other cases of graft and corruption
provided the President assigns their cases to the PCGG.[18]

Petitioner, however, does not claim that the President assigned Ramas' case to the PCGG.
Therefore, Ramas' case should fall under the first category of AFP personnel before the PCGG
could exercise its jurisdiction over him. Petitioner argues that Ramas was undoubtedly a
 II. CUSTOMARY INTERNATIONAL LAW

subordinate of former President Marcos because of his position as the Commanding General of
the Philippine Army. Petitioner claims that Ramas' position enabled him to receive orders
directly from his commander-in-chief, undeniably making him a subordinate of former President
Marcos.

We hold that Ramas was not a "subordinate" of former President Marcos in the sense
contemplated under EO No. 1 and its amendments.

Mere position held by a military officer does not automatically make him a "subordinate" as this
term is used in EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association
with former President Marcos. Migrinodiscussed this issue in this wise:
A close reading of EO No. 1 and related executive orders will readily show what is contemplated
within the term `subordinate.' The Whereas Clauses of EO No. 1 express the urgent need to
recover the ill-gotten wealth amassed by former President Ferdinand E. Marcos, his immediate
family, relatives, and close associates both here and abroad.

EO No. 2 freezes `all assets and properties in the Philippines in which former President Marcos
and/or his wife, Mrs. Imelda Marcos, their close relatives, subordinates, business associates,
dummies, agents, or nominees have any interest or participation.'

Applying the rule in statutory construction known as ejusdem generis that is-
`[W]here general words follow an enumeration of persons or things by words of a particular and
specific meaning, such general words are not to be construed in their widest extent, but are to
be held as applying only to persons or things of the same kind or class as those specifically
mentioned [Smith, Bell & Co, Ltd. vs. Register of Deeds of Davao, 96 Phil. 53, 58, citing Black
on Interpretation of Laws, 2nd Ed., 203].'
[T]he term "subordinate" as used in EO Nos. 1 & 2 refers to one who enjoys a close association
with former President Marcos and/or his wife, similar to the immediate family member,
relative, and close associate in EO No. 1 and the close relative, business associate,
dummy, agent, or nominee in EO No. 2.

xxx

It does not suffice, as in this case, that the respondent is or was a government official or
employee during the administration of former President Marcos. There must be a prima facie
showing that the respondent unlawfully accumulated wealth by virtue of his close
association or relation with former Pres. Marcos and/or his wife. (Emphasis supplied)
Ramas' position alone as Commanding General of the Philippine Army with the rank of Major
General[19] does not suffice to make him a "subordinate" of former President Marcos for
purposes of EO No. 1 and its amendments. The PCGG has to provide a prima facie showing
that Ramas was a close associate of former President Marcos, in the same manner that
business associates, dummies, agents or nominees of former President Marcos were close to
him. Such close association is manifested either by Ramas' complicity with former President
 II. CUSTOMARY INTERNATIONAL LAW

Marcos in the accumulation of ill-gotten wealth by the deposed President or by former President
Marcos' acquiescence in Ramas' own accumulation of ill-gotten wealth if any.

This, the PCGG failed to do.

Petitioner's attempt to differentiate the instant case from Migrino does not convince us.
Petitioner argues that unlike in Migrino, the AFP Board Resolution in the instant case states
that the AFP Board conducted the investigation pursuant to EO Nos. 1, 2, 14 and 14-A in
relation to RA No. 1379. Petitioner asserts that there is a presumption that the PCGG was
acting within its jurisdiction of investigating crony-related cases of graft and corruption and that
Ramas was truly a subordinate of the former President. However, the same AFP Board
Resolution belies this contention. Although the Resolution begins with such statement, it ends
with the following recommendation:
V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried
for violation of RA 3019, as amended, otherwise known as "Anti-Graft and Corrupt Practices
Act" and RA 1379, as amended, otherwise known as "The Act for the Forfeiture of Unlawfully
Acquired Property."[20]
Thus, although the PCGG sought to investigate and prosecute private respondents under EO
Nos. 1, 2, 14 and 14-A, the result yielded a finding of violation of Republic Acts Nos. 3019 and
1379 without any relation to EO Nos. 1, 2, 14 and 14-A. This absence of relation to EO No. 1
and its amendments proves fatal to petitioner's case. EO No. 1 created the PCGG for a specific
and limited purpose, and necessarily its powers must be construed to address such specific and
limited purpose.

Moreover, the resolution of the AFP Board and even the Amended Complaint do not show that
the properties Ramas allegedly owned were accumulated by him in his capacity as a
"subordinate" of his commander-in-chief. Petitioner merely enumerated the properties Ramas
allegedly owned and suggested that these properties were disproportionate to his salary and
other legitimate income without showing that Ramas amassed them because of his close
association with former President Marcos. Petitioner, in fact, admits that the AFP Board
resolution does not contain a finding that Ramas accumulated his wealth because of his close
association with former President Marcos, thus:
10.​While it is true that the resolution of the Anti-Graft Board of the New Armed
Forces of the Philippines did not categorically find a prima facie evidence
showing that respondent Ramas unlawfully accumulated wealth by virtue of his
close association or relation with former President Marcos and/or his wife, it is
submitted that such omission was not fatal. The resolution of the Anti-Graft Board
should be read in the context of the law creating the same and the objective of the
investigation which was, as stated in the above, pursuant to Republic Act Nos. 3019
and 1379 in relation to Executive Order Nos. 1, 2, 14 and 14-a;[21](Emphasis supplied)
 II. CUSTOMARY INTERNATIONAL LAW

Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing that the
ill-gotten wealth was accumulated by a "subordinate" of former President Marcos that vests
jurisdiction on PCGG. EO No. 1[22] clearly premises the creation of the PCGG on the urgent
need to recover all ill-gotten wealth amassed by former President Marcos, his immediate family,
relatives, subordinates and close associates. Therefore, to say that such omission was not fatal
is clearly contrary to the intent behind the creation of the PCGG.

In Cruz, Jr. v. Sandiganbayan,[23] the Court outlined the cases that fall under the jurisdiction of
the PCGG pursuant to EO Nos. 1, 2,[24] 14,[25] 14-A:[26]
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with Sections 1, 2
and 3 of Executive Order No. 14, shows what the authority of the respondent PCGG to
investigate and prosecute covers:
(a) the investigation and prosecution of the civil
action for the recovery of ill-gotten wealth under
Republic Act No. 1379, accumulated by
former President Marcos, his immediate
family, relatives, subordinates and close
associates, whether located in the Philippines
or abroad, including the take-over or
sequestration of all business enterprises and
entities owned or controlled by them, during his
administration, directly or through his nominees,
by taking undue advantage of their public
office and/or using their powers, authority
and influence, connections or relationships;
and

(b) the investigation and prosecution of such

offenses committed in the acquisition of said
ill-gotten wealth as contemplated under Section
2(a) of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling
under the foregoing categories, require a previous authority of the President for the
respondent PCGG to investigate and prosecute in accordance with Section 2 (b) of
Executive Order No. 1. Otherwise, jurisdiction over such cases is vested in the
Ombudsman and other duly authorized investigating agencies such as the provincial and
city prosecutors, their assistants, the Chief State Prosecutor and his assistants and the
state prosecutors. (Emphasis supplied)
The proper government agencies, and not the PCGG, should investigate and prosecute
forfeiture petitions not falling under EO No. 1 and its amendments. The preliminary investigation
of unexplained wealth amassed on or before 25 February 1986 falls under the jurisdiction of the
Ombudsman, while the authority to file the corresponding forfeiture petition rests with the
Solicitor General.[27] The Ombudsman Act or Republic Act No. 6770 ("RA No. 6770") vests in the
 II. CUSTOMARY INTERNATIONAL LAW

Ombudsman the power to conduct preliminary investigation and to file forfeiture proceedings
involving unexplained wealth amassed after 25 February 1986.[28]

After the pronouncements of the Court in Cruz, the PCGG still pursued this case despite the
absence of a prima facie finding that Ramas was a "subordinate" of former President Marcos.
The petition for forfeiture filed with the Sandiganbayan should be dismissed for lack of authority
by the PCGG to investigate respondents since there is no prima facie showing that EO No. 1
and its amendments apply to respondents. The AFP Board Resolution and even the Amended
Complaint state that there are violations of RA Nos. 3019 and 1379. Thus, the PCGG should
have recommended Ramas' case to the Ombudsman who has jurisdiction to conduct the
preliminary investigation of ordinary unexplained wealth and graft cases. As stated in Migrino:
[But] in view of the patent lack of authority of the PCGG to investigate and cause the
prosecution of private respondent for violation of Rep. Acts Nos. 3019 and 1379, the PCGG
must also be enjoined from proceeding with the case, without prejudice to any action that may
be taken by the proper prosecutory agency. The rule of law mandates that an agency of
government be allowed to exercise only the powers granted to it.
Petitioner's argument that private respondents have waived any defect in the filing of the
forfeiture petition by submitting their respective Answers with counterclaim deserves no merit as
well.

Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction to waive in
the first place. The PCGG cannot exercise investigative or prosecutorial powers never granted
to it. PCGG's powers are specific and limited. Unless given additional assignment by the
President, PCGG's sole task is only to recover the ill-gotten wealth of the Marcoses, their
relatives and cronies.[29] Without these elements, the PCGG cannot claim jurisdiction over a
case.

Private respondents questioned the authority and jurisdiction of the PCGG to investigate and
prosecute their cases by filing their Motion to Dismiss as soon as they learned of the
pronouncement of the Court in Migrino. This case was decided on 30 August 1990, which
explains why private respondents only filed their Motion to Dismiss on 8 October 1990.
Nevertheless, we have held that the parties may raise lack of jurisdiction at any stage of the
proceeding.[30] Thus, we hold that there was no waiver of jurisdiction in this case. Jurisdiction is
vested by law and not by the parties to an action.[31]

Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to conduct
the preliminary investigation. The Ombudsman may still conduct the proper preliminary
investigation for violation of RA No. 1379, and if warranted, the Solicitor General may file the
forfeiture petition with the Sandiganbayan.[32] The right of the State to forfeit unexplained wealth
under RA No. 1379 is not subject to prescription, laches or estoppel.[33]

Second Issue: Propriety of Dismissal of Case

Before Completion of Presentation of Evidence
 II. CUSTOMARY INTERNATIONAL LAW

Petitioner also contends that the Sandiganbayan erred in dismissing the case before completion
of the presentation of petitioner's evidence.

We disagree.

Based on the findings of the Sandiganbayan and the records of this case, we find that petitioner
has only itself to blame for non-completion of the presentation of its evidence. First, this case
has been pending for four years before the Sandiganbayan dismissed it. Petitioner filed its
Amended Complaint on 11 August 1987, and only began to present its evidence on 17 April
1989. Petitioner had almost two years to prepare its evidence. However, despite this sufficient
time, petitioner still delayed the presentation of the rest of its evidence by filing numerous
motions for postponements and extensions. Even before the date set for the presentation of its
evidence, petitioner filed, on 13 April 1989, a Motion for Leave to Amend the Complaint.[34] The
motion sought "to charge the delinquent properties (which comprise most of petitioner's
evidence) with being subject to forfeiture as having been unlawfully acquired by defendant
Dimaano alone x x x."

The Sandiganbayan, however, refused to defer the presentation of petitioner's evidence since
petitioner did not state when it would file the amended complaint. On 18 April 1989, the
Sandiganbayan set the continuation of the presentation of evidence on 28-29 September and
9-11 October 1989, giving petitioner ample time to prepare its evidence. Still, on 28 September
1989, petitioner manifested its inability to proceed with the presentation of its evidence. The
Sandiganbayan issued an Order expressing its view on the matter, to wit:
The Court has gone through extended inquiry and a narration of the above events because this
case has been ready for trial for over a year and much of the delay hereon has been due to the
inability of the government to produce on scheduled dates for pre-trial and for trial documents
and witnesses, allegedly upon the failure of the military to supply them for the preparation of the
presentation of evidence thereon. Of equal interest is the fact that this Court has been held to
task in public about its alleged failure to move cases such as this one beyond the preliminary
stage, when, in view of the developments such as those of today, this Court is now faced with a
situation where a case already in progress will revert back to the preliminary stage, despite a
five-month pause where appropriate action could have been undertaken by the plaintiff
Republic.[35]
On 9 October 1989, the PCGG manifested in court that it was conducting a preliminary
investigation on the unexplained wealth of private respondents as mandated by RA No. 1379.[36]
The PCGG prayed for an additional four months to conduct the preliminary investigation. The
Sandiganbayan granted this request and scheduled the presentation of evidence on 26-29
March 1990. However, on the scheduled date, petitioner failed to inform the court of the result of
the preliminary investigation the PCGG supposedly conducted. Again, the Sandiganbayan gave
petitioner until 18 May 1990 to continue with the presentation of its evidence and to inform the
court of "what lies ahead insofar as the status of the case is concerned x x x."[37] Still on the date
set, petitioner failed to present its evidence. Finally, on 11 July 1990, petitioner filed its
Re-Amended Complaint.[38] The Sandiganbayan correctly observed that a case already pending
 II. CUSTOMARY INTERNATIONAL LAW

for years would revert to its preliminary stage if the court were to accept the Re-Amended
Complaint.

Based on these circumstances, obviously petitioner has only itself to blame for failure to
complete the presentation of its evidence. The Sandiganbayan gave petitioner more than
sufficient time to finish the presentation of its evidence. The Sandiganbayan overlooked
petitioner's delays and yet petitioner ended the long-string of delays with the filing of a
Re-Amended Complaint, which would only prolong even more the disposition of the case.

Moreover, the pronouncements of the Court in Migrino and Cruz prompted the Sandiganbayan
to dismiss the case since the PCGG has no jurisdiction to investigate and prosecute the case
against private respondents. This alone would have been sufficient legal basis for the
Sandiganbayan to dismiss the forfeiture case against private respondents.

Thus, we hold that the Sandiganbayan did not err in dismissing the case before completion of
the presentation of petitioner's evidence.

Third Issue: Legality of the Search and Seizure

Petitioner claims that the Sandiganbayan erred in declaring the properties confiscated from
Dimaano's house as illegally seized and therefore inadmissible in evidence. This issue bears a
significant effect on petitioner's case since these properties comprise most of petitioner's
evidence against private respondents. Petitioner will not have much evidence to support its case
against private respondents if these properties are inadmissible in evidence.

On 3 March 1986, the Constabulary raiding team served at Dimaano's residence a search
warrant captioned "Illegal Possession of Firearms and Ammunition." Dimaano was not present
during the raid but Dimaano's cousins witnessed the raid. The raiding team seized the items
detailed in the seizure receipt together with other items notincluded in the search warrant. The
raiding team seized these items: one baby armalite rifle with two magazines; 40 rounds of 5.56
ammunition; one pistol, caliber .45; communications equipment, cash consisting of P2,870,000
and US$50,000, jewelry, and land titles.

Petitioner wants the Court to take judicial notice that the raiding team conducted the search and
seizure "on March 3, 1986 or five days after the successful EDSA revolution."[39] Petitioner
argues that a revolutionary government was operative at that time by virtue of Proclamation No.
1 announcing that President Aquino and Vice President Laurel were "taking power in the name
and by the will of the Filipino people."[40] Petitioner asserts that the revolutionary government
effectively withheld the operation of the 1973 Constitution which guaranteed private
respondents' exclusionary right.

Moreover, petitioner argues that the exclusionary right arising from an illegal search applies only
beginning 2 February 1987, the date of ratification of the 1987 Constitution. Petitioner contends
that all rights under the Bill of Rights had already reverted to its embryonic stage at the time of
 II. CUSTOMARY INTERNATIONAL LAW

the search. Therefore, the government may confiscate the monies and items taken from
Dimaano and use the same in evidence against her since at the time of their seizure, private
respondents did not enjoy any constitutional right.

Petitioner is partly right in its arguments.

The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President
Aquino's Proclamation No. 3 dated 25 March 1986, the EDSA Revolution was "done in
defiance of the provisions of the 1973 Constitution."[41] The resulting government was
indisputably a revolutionary government bound by no constitution or legal limitations except
treaty obligations that the revolutionary government, as the de jure government in the
Philippines, assumed under international law.

The correct issues are: (1) whether the revolutionary government was bound by the Bill of
Rights of the 1973 Constitution during the interregnum, that is, after the actual and effective
take-over of power by the revolutionary government following the cessation of resistance by
loyalist forces up to 24 March 1986 (immediately before the adoption of the Provisional
Constitution); and (2) whether the protection accorded to individuals under the International
Covenant on Civil and Political Rights ("Covenant") and the Universal Declaration of Human
Rights ("Declaration") remained in effect during the interregnum.

We hold that the Bill of Rights under the 1973 Constitution was not operative during the
interregnum. However, we rule that the protection accorded to individuals under the Covenant
and the Declaration remained in effect during the interregnum.

During the interregnum, the directives and orders of the revolutionary government were the
supreme law because no constitution limited the extent and scope of such directives and orders.
With the abrogation of the 1973 Constitution by the successful revolution, there was no
municipal law higher than the directives and orders of the revolutionary government. Thus,
during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights
because there was neither a constitution nor a Bill of Rights during the interregnum. As the
Court explained in Letter of Associate Justice Reynato S. Puno:[42]
A revolution has been defined as "the complete overthrow of the established government in any
country or state by those who were previously subject to it" or as "a sudden, radical and
fundamental change in the government or political system, usually effected with violence or at
least some acts of violence." In Kelsen's book, General Theory of Law and State, it is defined as
that which "occurs whenever the legal order of a community is nullified and replaced by a new
order . . . a way not prescribed by the first order itself."

It was through the February 1986 revolution, a relatively peaceful one, and more popularly
known as the "people power revolution" that the Filipino people tore themselves away from an
existing regime. This revolution also saw the unprecedented rise to power of the Aquino
government.
 II. CUSTOMARY INTERNATIONAL LAW

From the natural law point of view, the right of revolution has been defined as "an inherent right
of a people to cast out their rulers, change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the legal and constitutional
methods of making such change have proved inadequate or are so obstructed as to be
unavailable." It has been said that "the locus of positive law-making power lies with the people
of the state" and from there is derived "the right of the people to abolish, to reform and to alter
any existing form of government without regard to the existing constitution."

xxx

It is widely known that Mrs. Aquino's rise to the presidency was not due to constitutional
processes; in fact, it was achieved in violation of the provisions of the 1973 Constitution
as a Batasang Pambansa resolution had earlier declared Mr. Marcos as the winner in the
1986 presidential election. Thus it can be said that the organization of Mrs. Aquino's
Government which was met by little resistance and her control of the state evidenced by the
appointment of the Cabinet and other key officers of the administration, the departure of the
Marcos Cabinet officials, revamp of the Judiciary and the Military signaled the point where the
legal system then in effect, had ceased to be obeyed by the Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution remained operative during the
interregnum would render void all sequestration orders issued by the Philippine Commission on
Good Government ("PCGG") before the adoption of the Freedom Constitution. The
sequestration orders, which direct the freezing and even the take-over of private property by
mere executive issuance without judicial action, would violate the due process and search and
seizure clauses of the Bill of Rights.

During the interregnum, the government in power was concededly a revolutionary government
bound by no constitution. No one could validly question the sequestration orders as violative of
the Bill of Rights because there was no Bill of Rights during the interregnum. However, upon the
adoption of the Freedom Constitution, the sequestered companies assailed the sequestration
orders as contrary to the Bill of Rights of the Freedom Constitution.

In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on Good
Government,[43] petitioner Baseco, while conceding there was no Bill of Rights during the
interregnum, questioned the continued validity of the sequestration orders upon adoption of the
Freedom Constitution in view of the due process clause in its Bill of Rights. The Court ruled that
the Freedom Constitution, and later the 1987 Constitution, expressly recognized the validity of
sequestration orders, thus:
If any doubt should still persist in the face of the foregoing considerations as to the validity and
propriety of sequestration, freeze and takeover orders, it should be dispelled by the fact that
these particular remedies and the authority of the PCGG to issue them have received
constitutional approbation and sanction. As already mentioned, the Provisional or "Freedom"
Constitution recognizes the power and duty of the President to enact "measures to achieve the
mandate of the people to . . . (r)ecover ill-gotten properties amassed by the leaders and
supporters of the previous regime and protect the interest of the people through orders of
 II. CUSTOMARY INTERNATIONAL LAW

sequestration or freezing of assets or accounts." And as also already adverted to, Section 26,
Article XVIII of the 1987 Constitution treats of, and ratifies the "authority to issue sequestration
or freeze orders under Proclamation No. 3 dated March 25, 1986."
The framers of both the Freedom Constitution and the 1987 Constitution were fully aware that
the sequestration orders would clash with the Bill of Rights. Thus, the framers of both
constitutions had to include specific language recognizing the validity of the sequestration
orders. The following discourse by Commissioner Joaquin G. Bernas during the deliberations of
the Constitutional Commission is instructive:
FR. BERNAS: Madam President, there is something schizophrenic about the arguments in
defense of the present amendment.

For instance, I have carefully studied Minister Salonga's lecture in the Gregorio Araneta
University Foundation, of which all of us have been given a copy. On the one hand, he argues
that everything the Commission is doing is traditionally legal. This is repeated by Commissioner
Romulo also. Minister Salonga spends a major portion of his lecture developing that argument.
On the other hand, almost as an afterthought, he says that in the end what matters are the
results and not the legal niceties, thus suggesting that the PCGG should be allowed to make
some legal shortcuts, another word for niceties or exceptions.

Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for special
protection? The answer is clear. What they are doing will not stand the test of ordinary due
process, hence they are asking for protection, for exceptions. Grandes malos, grandes
remedios, fine, as the saying stands, but let us not say grandes malos, grande y malos
remedios. That is not an allowable extrapolation. Hence, we should not give the exceptions
asked for, and let me elaborate and give three reasons:

First, the whole point of the February Revolution and of the work of the CONCOM is to hasten
constitutional normalization. Very much at the heart of the constitutional normalization is the full
effectivity of the Bill of Rights. We cannot, in one breath, ask for constitutional normalization and
at the same time ask for a temporary halt to the full functioning of what is at the heart of
constitutionalism. That would be hypocritical; that would be a repetition of Marcosian
protestation of due process and rule of law. The New Society word for that is "backsliding." It is
tragic when we begin to backslide even before we get there.

Second, this is really a corollary of the first. Habits tend to become ingrained. The committee
report asks for extraordinary exceptions from the Bill of Rights for six months after the
convening of Congress, and Congress may even extend this longer.

Good deeds repeated ripen into virtue; bad deeds repeated become vice. What the committee
report is asking for is that we should allow the new government to acquire the vice of
disregarding the Bill of Rights.
 II. CUSTOMARY INTERNATIONAL LAW

Vices, once they become ingrained, become difficult to shed. The practitioners of the vice begin
to think that they have a vested right to its practice, and they will fight tooth and nail to keep the
franchise. That would be an unhealthy way of consolidating the gains of a democratic revolution.

Third, the argument that what matters are the results and not the legal niceties is an argument
that is very disturbing. When it comes from a staunch Christian like Commissioner Salonga, a
Minister, and repeated verbatim by another staunch Christian like Commissioner Tingson, it
becomes doubly disturbing and even discombobulating. The argument makes the PCGG an
auctioneer, placing the Bill of Rights on the auction block. If the price is right, the search and
seizure clause will be sold. "Open your Swiss bank account to us and we will award you the
search and seizure clause. You can keep it in your private safe."

Alternatively, the argument looks on the present government as hostage to the hoarders of
hidden wealth. The hoarders will release the hidden health if the ransom price is paid and the
ransom price is the Bill of Rights, specifically the due process in the search and seizure clauses.
So, there is something positively revolving about either argument. The Bill of Rights is not for
sale to the highest bidder nor can it be used to ransom captive dollars. This nation will survive
and grow strong, only if it would become convinced of the values enshrined in the Constitution
of a price that is beyond monetary estimation.

For these reasons, the honorable course for the Constitutional Commission is to delete all of
Section 8 of the committee report and allow the new Constitution to take effect in full vigor. If
Section 8 is deleted, the PCGG has two options. First, it can pursue the Salonga and the
Romulo argument -- that what the PCGG has been doing has been completely within the pale of
the law. If sustained, the PCGG can go on and should be able to go on, even without the
support of Section 8. If not sustained, however, the PCGG has only one honorable option, it
must bow to the majesty of the Bill of Rights.

The PCGG extrapolation of the law is defended by staunch Christians. Let me conclude with
what another Christian replied when asked to toy around with the law. From his prison cell,
Thomas More said, "I'll give the devil benefit of law for my nation's safety sake." I ask the
Commission to give the devil benefit of law for our nation's sake. And we should delete Section
8.

Thank you, Madam President. (Emphasis supplied)

Despite the impassioned plea by Commissioner Bernas against the amendment excepting
sequestration orders from the Bill of Rights, the Constitutional Commission still adopted the
amendment as Section 26,[44] Article XVIII of the 1987 Constitution. The framers of the
Constitution were fully aware that absent Section 26, sequestration orders would not stand the
test of due process under the Bill of Rights.

Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the
interregnum, absent a constitutional provision excepting sequestration orders from such Bill of
Rights, would clearly render all sequestration orders void during the interregnum. Nevertheless,
 II. CUSTOMARY INTERNATIONAL LAW

even during the interregnum the Filipino people continued to enjoy, under the Covenant and the
Declaration, almost the same rights found in the Bill of Rights of the 1973 Constitution.

The revolutionary government, after installing itself as the de jure government, assumed
responsibility for the State's good faith compliance with the Covenant to which the Philippines is
a signatory. Article 2(1) of the Covenant requires each signatory State "to respect and to ensure
to all individuals within its territory and subject to its jurisdiction the rights[45] recognized in the
present Covenant." Under Article 17(1) of the Covenant, the revolutionary government had the
duty to insure that "[n]o one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence."

The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that
"[n]o one shall be arbitrarily deprived of his property." Although the signatories to the Declaration
did not intend it as a legally binding document, being only a declaration, the Court has
interpreted the Declaration as part of the generally accepted principles of international law and
binding on the State.[46] Thus, the revolutionary government was also obligated under
international law to observe the rights[47] of individuals under the Declaration.

The revolutionary government did not repudiate the Covenant or the Declaration during the
interregnum. Whether the revolutionary government could have repudiated all its obligations
under the Covenant or the Declaration is another matter and is not the issue here. Suffice it to
say that the Court considers the Declaration as part of customary international law, and that
Filipinos as human beings are proper subjects of the rules of international law laid down in the
Covenant. The fact is the revolutionary government did not repudiate the Covenant or the
Declaration in the same way it repudiated the 1973 Constitution. As the de jure government, the
revolutionary government could not escape responsibility for the State's good faith compliance
with its treaty obligations under international law.

It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the
directives and orders of the revolutionary government became subject to a higher municipal law
that, if contravened, rendered such directives and orders void. The Provisional Constitution
adopted verbatim the Bill of Rights of the 1973 Constitution.[48] The Provisional Constitution
served as a self-limitation by the revolutionary government to avoid abuses of the absolute
powers entrusted to it by the people.

During the interregnum when no constitution or Bill of Rights existed, directives and orders
issued by government officers were valid so long as these officers did not exceed the authority
granted them by the revolutionary government. The directives and orders should not have also
violated the Covenant or the Declaration. In this case, the revolutionary government
presumptively sanctioned the warrant since the revolutionary government did not repudiate it.
The warrant, issued by a judge upon proper application, specified the items to be searched and
seized. The warrant is thus valid with respect to the items specifically described in the warrant.
 II. CUSTOMARY INTERNATIONAL LAW

However, the Constabulary raiding team seized items not included in the warrant. As admitted
by petitioner's witnesses, the raiding team confiscated items not included in the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES

Q. According to the search warrant, you are

supposed to seize only for weapons. What else,
aside from the weapons, were seized from the
house of Miss Elizabeth Dimaano?

A. The communications equipment, money in

Philippine currency and US dollars, some
jewelries, land titles, sir.

Q. Now, the search warrant speaks only of

weapons to be seized from the house of
Elizabeth Dimaano. Do you know the reason
why your team also seized other properties not
mentioned in said search warrant?
A. During the conversation right after the conduct
of said raid, I was informed that the reason why
they also brought the other items not included
in the search warrant was because the money
and other jewelries were contained in attaché
cases and cartons with markings "Sony
Trinitron", and I think three (3) vaults or steel
safes. Believing that the attaché cases and the
steel safes were containing firearms, they
forced open these containers only to find out
that they contained money.

xxx

Q. You said you found money instead of weapons,

do you know the reason why your team seized
this money instead of weapons?

A. I think the overall team leader and the other two

officers assisting him decided to bring along
also the money because at that time it was
already dark and they felt most secured if they
will bring that because they might be suspected
 II. CUSTOMARY INTERNATIONAL LAW

also of taking money out of those items, your

Honor.[49]

Cross-examination
Atty. Banaag

Q. Were you present when the search warrant in

connection with this case was applied before
the Municipal Trial Court of Batangas, Branch
1?
A. Yes, sir.

Q. And the search warrant applied for by you was

for the search and seizure of five (5) baby
armalite rifles M-16 and five (5) boxes of
ammunition?
A. Yes, sir.

xxx

AJ AMORES

Q. Before you applied for a search warrant, did

you conduct surveillance in the house of Miss
Elizabeth Dimaano?
A. The Intelligence Operatives conducted
surveillance together with the MSU elements,
your Honor.

Q. And this party believed there were weapons

deposited in the house of Miss Elizabeth
Dimaano?
A. Yes, your Honor.

Q. And they so swore before the Municipal Trial

Judge?
A. Yes, your Honor.

Q. But they did not mention to you, the applicant

for the search warrant, any other properties or
contraband which could be found in the
residence of Miss Elizabeth Dimaano?
A. They just gave us still unconfirmed report about
some hidden items, for instance, the
 II. CUSTOMARY INTERNATIONAL LAW

communications equipment and money.

However, I did not include that in the application
for search warrant considering that we have not
established concrete evidence about that. So
when...

Q. So that when you applied for search warrant,

you had reason to believe that only weapons
were in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.[50]

xxx

Q. You stated that a .45 caliber pistol was seized

along with one armalite rifle M-16 and how
many ammunition?
A. Forty, sir.

Q. And this became the subject of your complaint

with the issuing Court, with the fiscal's office
who charged Elizabeth Dimaano for Illegal
Possession of Firearms and Ammunition?
A. Yes, sir.

Q. Do you know what happened to that case?

A. I think it was dismissed, sir.

Q. In the fiscal's office?

A. Yes, sir.

Q. Because the armalite rifle you seized, as well

as the .45 caliber pistol had a Memorandum
Receipt in the name of Felino Melegrito, is that
not correct?
A. I think that was the reason, sir.

Q. There were other articles seized which were not

included in the search warrant, like for instance,
jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team
leader and his assistant to bring along also the
jewelries and other items, sir. I do not really
know where it was taken but they brought along
also these articles. I do not really know their
 II. CUSTOMARY INTERNATIONAL LAW

reason for bringing the same, but I just learned

that these were taken because they might get
lost if they will just leave this behind.

xxx

Q. How about the money seized by your raiding

team, they were not also included in the search
warrant?
A. Yes sir, but I believe they were also taken
considering that the money was discovered to
be contained in attaché cases. These attaché
cases were suspected to be containing pistols
or other high powered firearms, but in the
course of the search the contents turned out to
be money. So the team leader also decided to
take this considering that they believed that if
they will just leave the money behind, it might
get lost also.

Q. That holds true also with respect to the other

articles that were seized by your raiding team,
like Transfer Certificates of Title of lands?
A. Yes, sir. I think they were contained in one of
the vaults that were opened.[51]
It is obvious from the testimony of Captain Sebastian that the warrant did not include the
monies, communications equipment, jewelry and land titles that the raiding team confiscated.
The search warrant did not particularly describe these items and the raiding team confiscated
them on its own authority. The raiding team had no legal basis to seize these items without
showing that these items could be the subject of warrantless search and seizure.[52] Clearly, the
raiding team exceeded its authority when it seized these items.

The seizure of these items was therefore void, and unless these items are contraband per se,[53]
and they are not, they must be returned to the person from whom the raiding seized them.
However, we do not declare that such person is the lawful owner of these items, merely that the
search and seizure warrant could not be used as basis to seize and withhold these items from
the possessor. We thus hold that these items should be returned immediately to Dimaano.

WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the
Sandiganbayan dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037,
remanding the records of this case to the Ombudsman for such appropriate action as the
evidence may warrant, and referring this case to the Commissioner of the Bureau of Internal
Revenue for a determination of any tax liability of respondent Elizabeth Dimaano, are
AFFIRMED.
 II. CUSTOMARY INTERNATIONAL LAW

SO ORDERED.

Bellosillo, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.
Davide, Jr., C.J., in the result. I concur with Mr. Justice Vitug in his concurring opinion.
Puno and Vitug, JJ., see separate opinion
Panganiban, J., in the result.
Quisumbing and Sandoval-Gutierrez, JJ., on official leave.
Ynares-Santiago, J., in the result. I concur in the separate opinion of J. Reynato Puno.
Tinga, J., separate opinion reserved.
 II. CUSTOMARY INTERNATIONAL LAW

2)​ CASE: The Asylum Case (Colombia v. Peru, 17 I.L.R. 28; I.C.J. Reports, 1950)
ASYLUM CASE
THE COURT, delivers the following Judgment:
On August 31st, 1949, an agreement called the "Act of Lima" was signed at Lima in the name of
the Colombian Government and of the Peruvian Government. This Act is as follows:
"His Excellency Monsieur Víctor Andrés, Belaunde, Ambassador Extraordinary and
Plenipotentiary ad hoc of the Peruvian Republic, and His Excellency Monsieur Eduardo Zuleta
Angel, Ambassador Extraordinary and Plenipotentiary ad hoc of Colombia, duly designated by
their respective Governments to negotiate and draw up the terms of an agreement to refer to
the International Court of Justice a dispute which arose following a request by the Colombian
Embassy in Lima for delivery of a safe-conduct for Monsieur Víctor Raúl Haya de la Torre, have
met in the Ministry of Foreign Affairs and Public Worship in Lima and, having exchanged their
respective credentials, make the following declaration in the spirit of cordial friendship, which
characterizes the relations between the two countries:

First:
They have examined in a spirit of understanding the existing dispute which they agree to refer
for decision to the International Court of Justice, in accordance with the agreement by the two
Governments.

Second:
The Plenipotentiaries of Peru and Colombia having been unable to reach an agreement on the
terms in which they might refer the dispute jointly to the International Court of Justice, agree that
proceedings before the recognized jurisdiction of the Court may be instituted on the application
of either of the Parties without this being regarded as an unfriendly act toward the other, or as
an act likely to affect the good relations between the two countries. The Party exercising this
right shall, with reasonable advance notice, announce in a friendly way to the other Party the
date on which the application is to be made.
Third:
They agree, here and now: (a) that the procedure in this case shall be the ordinary procedure;
(b) that, in accordance with Article 31, paragraph 3, of the Statute of the Court, each of the
Parties may exercise its right to choose a judge of its nationality; (c) that the case shall be
conducted in French.
Fourth:
This document, after it has been signed, shall be communicated to the Court by the Parties"
On October 15th, 1949, an Application, referring to the Act of Lima of August 31st, 1949, was
filed in the Registry of the Court in the name of the Colombian Government. After stating that
Colombia asserts:
"(A) ​ that she is entitled in the case of persons who have claimed asylum in her embassies,
legations, warships, military camps or military aircraft, to qualify the refugees, either as
offenders for common crimes or deserters from the army or navy, or as political offenders;
(B) ​ that the territorial State, namely, in this case, Peru, is bound to give 'the guarantees
necessary for the departure of the refugee, with due regard to the inviolability of his person,
from the country'"
 II. CUSTOMARY INTERNATIONAL LAW

The Application concludes by requesting the Court:

"To pass judgment on and answer, whether the Government of the Republic of Peru enters an
appearance or not, and after such time-limits as the Court may fix in the absence of an
agreement between the Parties, the following questions:
First Question. - Within the limits of the obligations resulting in particular from the Bolivarian
Agreement on Extradition of July 18th, 1911, and the Convention on Asylum of February 20th,
1928, both in force between Colombia and Peru, and in general from American international
law, was Colombia competent, as the country granting asylum, to qualify the offence for the
purposes of said asylum?
Second Question. - In the specific case under consideration, was Peru, as the territorial State,
bound to give the guarantees necessary for the departure of the refugee from the country, with
due regard to the inviolability of his person?"
Together with the Application, the Agent of the Colombian Government filed in the Registry a
certified true copy of the original in Spanish, accompanied by a French translation, of the Act of
Lima. By letter of October 15th, 1949, received by the Registry on the same day, the Agent of
the Peruvian Government also deposited a certified true translation of the Act of Lima.
The Application was notified, under Article 40, paragraph 3, of the Statute of the Court, to the
States entitled to appear before the Court. It was also transmitted to the Secretary-General of
the United Nations.
As the Application was based upon the Convention on Asylum signed at Havana on February
20th, 1928, and upon the Agreement on Extradition signed at Caracas on July 18th, 1911, the
notification prescribed by Article 63, paragraph 1, of the Statute of the Court was addressed to
the States other than those concerned in the case which were parties to the foregoing
Conventions.
The Pleadings having been deposited within the time-limits prescribed in the Order of October
20th, 1949, as extended by Orders of December 17th, 1949, and May 9th, 1950, the case was
ready for hearing on June 15th, 1950.
As the Court did not include upon the Bench any judge of the nationality of the Parties, the latter
availed themselves of the right provided by Article 31, paragraph 3, of the Statute. The judges
ad hoc designated were M. José Joaquín Caicedo Castilla, Doctor of Law, Professor, former
Deputy and former President of the Senate, Ambassador, for the Government of Colombia, and
M. Luis Alayza y Paz Soldán, Doctor of Law, Professor, former Minister, Ambassador, for the
Government of Peru.
The opening of the oral proceedings was fixed for September 26th, 1950. Public sittings were
held by the Court on September 26th, 27th, 28th and 29th and on October 2nd; 3rd, 6th and 9th,
1950.
In the course of the sittings, the Court heard statements by M. J. M. Yepes, Agent, and M.
Alfredo Vasquez, Advocate, on behalf of the Republic of Colombia, and by M. Carlos Sayán
Alvarez, Agent, and M. Georges Scelle, Counsel, on behalf of the Republic of Peru.
At the end of the written proceedings the Parties had presented the following submissions:
On behalf of Colombia (submissions contained in the Reply):
"MAY IT PLEASE THE COURT
To dismiss the submissions of the Government of the Republic of Peru,
TO ADJUDGE AND DECLARE:
 II. CUSTOMARY INTERNATIONAL LAW

In accordance with the submissions presented by the Government of the Republic of Colombia
in its Memorial of January 10th, 1950, which was submitted to the Court on the same date, and
Rejecting all contrary submissions,
I. ​ That the Republic of Colombia, as the country granting asylum, is competent to qualify
the offence for the purpose of the said asylum, within the limits of the obligations resulting in
particular from the Bolivarian Agreement on Extradition of July 18th, 1911 and the Convention
on Asylum of February 20th, 1928, and of American international law in general;
II.​ That the Republic of Peru, as the territorial State, is bound in the case now before the
Court to give the guarantees necessary, for the departure of M. Víctor Raúl Haya de la Torre
from the country, with due regard to the inviolability of his person."
On behalf of Peru (submissions contained in the Rejoinder):
"MAY IT PLEASE THE COURT
To set aside the submissions of the Government of the Republic of Colombia;
TO ADJUDGE AND DECLARE:
As a counter-claim, under Article 63 of the Rules of Court, and in the same decision, that the
grant of asylum by the Colombian Ambassador at Lima to Víctor Raúl Haya de la Torre was
made in violation of Article 1, paragraph 1, and Article 2, paragraph 2, item 1 (inciso primero), of
the Convention on Asylum signed at Havana in 1928."
At the end of the oral statements, the Agent for the Government of Peru having made an
addition to the submissions in the Pleadings, the following final submissions were presented to
the Court orally and confirmed in writing:
On behalf of Colombia: (on the claim)
"MAY IT PLEASE THE COURT
TO ADJUDGE AND DECLARE:
I.- That the Republic of Colombia, as the country granting asylum, is competent to qualify the
offence for the purpose of the said asylum, within the limits of the obligations resulting in
particular from the Bolivarian Agreement on Extradition of July 18th, 1911, and the Havana
Convention on Asylum of February 20th, 1928, and of American international law in general;
II.- That the Republic of Peru, as the territorial State, is bound in the case now before the Court
to give the guarantees necessary for the departure of M. Víctor Raúl Haya de la Torre from the
country, with due regard to the inviolability of his person."
(On the counter-claim)
"1. ​ That the counter-claim presented by the Peruvian Government on March 21st, 1950, is
not admissible because of its lack of direct connexion with the Application of the Colombian
Government;
2. ​ That the new counter-claim, irregularly presented on October 3rd, 1950, in the form of a
submission upon allegations made during the oral debate, is not admissible on the grounds that:
(A) ​ It was presented in violation of Article 63 of the Rules of Court;
(B) ​ The Court has no jurisdiction to take. cognizance of it;
(C) ​ It has no direct connexion with the Application of the Colombian Government."
On behalf of Peru:
"MAY IT PLEASE THE COURT
To set aside submissions I and II of the Colombian Memorial. To set aside the submissions
which were presented by the Agent of the Colombian Government at the end of his oral
 II. CUSTOMARY INTERNATIONAL LAW

statement on October 6th, 1950, in regard to the counter-claim of the Government of Peru, and
which were repeated in his letter of October 7th, 1950.
TO ADJUDGE AND DECLARE,
As a counter-claim, under Article 63 of the Rules of Court and in the same decision, that the
grant of asylum by the Colombian Ambassador at Lima to Víctor Raúl Haya de la Torre was
made in violation of Article 1 paragraph 1 and of Article 2, paragraph 2, item 1 (inciso primero),
of the Convention on Asylum signed in 1928, and that in any case the maintenance of the
asylum constitutes at the present time a violation of that treaty."
On October 3rd, 1948, a military rebellion broke out in Peru. It was suppressed on the same day
and investigations were at once opened.
On October 4th, the President of the Republic issued a decree in the recitals of which a political
party, the American People's Revolutionary Alliance, was charged with having organized and
directed the rebellion. The decree consequently enacted that this party had placed itself outside
the law, that it would henceforth not be permitted to exercise any kind of activity, and that its
leaders would be brought to justice in the national courts as instigators of the rebellion.
Simultaneously, the head of the Judicial Department of the Navy issued an order requiring the
Examining Magistrate to open at once an enquiry as to the facts constituting the crime of military
rebellion.
On October 5th, the Minister of the Interior addressed to the Minister for the Navy a "note of
denunciation" against the leader the American People's Revolutionary Alliance, Víctor Raúl
Haya de la Torre, and other members of the party as responsible for the rebellion. This
denunciation was approved on the same day, by the Minister for the Navy and on October 10th
by the Public Prosecutor, who stated that the subject-matter of the proceedings was the crime of
military rebellion.
On October 11th, the Examining Magistrate issued an order for the opening of judicial
proceedings against Haya de la Torre and others "in respect of the crime of military rebellion
with which they are charged in the 'denunciation'", and on October 25th he ordered the arrest of
the persons "denounced" who had not yet been detained.
On October 27th, a Military Junta made a coup d'état and seized the supreme power. This
Military Junta of the Government issued on November 4th a decree providing for Courts-Martial
for summary procedure in cases of rebellion, sedition and rioting, fixing short time-limits and
severe punishment without appeal.
This decree was not applied to the judicial proceedings against Haya de la Torre and others.
These proceedings continued under the same jurisdiction as theretofore. This is shown by a
note of November 8th from the Examining Magistrate requesting the production of certain
documents, by a note of November 13th from the Head of the Investigation and Surveillance
Service to the Examining Magistrate stating that Haya de la Torre and others were not arrested
as they could not be found, and by an Order by the Examining Magistrate of the same date
requiring the defaulters to be cited by public summons. On November 16th and the two
subsequent days, the summons was published in the official gazette El Peruano, requiring "the
accused persons who are in default" - Haya de la Torre and others - to report to the office of the
Examining Magistrate to answer the accusation brought against them "for the crime of military
rebellion". Haya de, 14 Torre did not report, and the facts brought to the knowledge of the Court
not show that any further measures were taken against him.
 II. CUSTOMARY INTERNATIONAL LAW

On October 4th, the day after the military rebellion, a state of siege was declared, suspending
certain constitutional rights; it was renewed on November 2nd and December 2nd, 1948, and on
January 2nd, 1949.
On January 3rd, 1949, Haya de la Torre sought asylum in the Colombian Embassy in Lima. On
the next day, the Colombian Ambassador sent the following note to the Peruvian Minister for
Foreign Affairs and Public Worship:
"I have the honour to inform Your Excellency, in accordance with what is provided in Article 2,
paragraph 2, of the Convention on Asylum signed by our two countries in the city of Havana in
the year 1928, that Señor Víctor Raúl Haya de la Torre has been given asylum at the seat of this
mission as from 9 p.m. yesterday. In view of the foregoing, and in view of the desire of this
Embassy that Senor Haya de la Torre should leave Peru as early as possible, I request Your
Excellency to be good enough to give orders for the requisite safe-conduct to be issued, so that
Señor Haya de la Torre may leave the country with the usual facilities attaching to the right of
diplomatic asylum."
On January 14th, the Ambassador sent to the Minister a further note as follows:
"Pursuant to instructions received from the Chancellery of my country, I have the honour to
inform Your Excellency that the Government of Colombia, in accordance with the' right'
conferred upon it by Article 2 of the Convention on Political Asylum signed by our two countries
in the city of Montevideo on December 26th, 1933, has qualified Señor Víctor Raúl Haya de la
Torre as a political refugee."
A diplomatic correspondence followed, leading up to the Act of Lima of August 31st, 1949,
whereby the dispute which had arisen between the two Governments was referred to the Court.
The Colombian Government has presented two submissions, of which the first asks the Court to
adjudge and declare
"That the Republic of Colombia, as the country granting asylum, is competent to qualify the
offence for the purpose of the said asylum, within the limits of the obligations resulting in
particular from the Bolivarian Agreement on Extradition of July 18th, 1911, and the Convention
on Asylum of February 20th, 1928, and of American international law in general."
If the Colombian Government by this submission intended to allege that Colombia, as the State
granting asylum, is competent to qualify the offence only provisionally and without binding effect
for Peru, the solution would not remain a matter of doubt. It is evident that the diplomatic
representative who has to determine whether a refugee is to be granted asylum or not must the
competence to make such a provisional qualification of any offence alleged to have been
committed by the refugee. He must in fact examine the question whether the conditions required
for granting asylum are fulfilled. The territorial State would not thereby be deprived of its right to
contest the qualification. In case of disagreement between the two States, a dispute would arise
which might be settled by the methods provided by the Parties for the settlement of their
disputes.
This is not, however, the meaning which the Colombian government has put on its submission.
It has not claimed the right of qualification for the sole purpose of determining its own conduct.
The written and oral arguments submitted on behalf of that Government show that its claim
must be understood in the sense that Colombia, as the State granting asylum, is competent to
qualify the nature of the offence by a unilateral and definitive decision binding on Peru.
 II. CUSTOMARY INTERNATIONAL LAW

Colombia has based this submission partly on rules resulting from agreement, partly on an
alleged custom.
The Colombian government has referred to the Bolivarian Agreement of 1911, Article 18, which
is framed in the following terms:
"Aside from the stipulations of the present Agreement, the signatory States recognize the
institution of asylum in conformity with the principles of international law."
In recognizing "the institution of asylum", this article merely refers to the principles of
international law do not recognize any rule of unilateral and definitive qualification by the State
granting diplomatic asylum.
The Colombian Government has also relied on Article 4 of this Agreement concerning
extradition of a criminal refugee from the territory of the State in which he has sought refuge.
The arguments submitted in this respect reveal a confusion between territorial asylum
(extradition), on the one hand, and diplomatic asylum, on the other.
In the case of extradition, the refugee is within the territory of the State of refuge. A decision with
regard to extradition implies only the normal exercise of the territorial sovereignty. The refugee
is outside the territory of the State where the offence was committed, and a decision to grant
him asylum in no way derogates from the sovereignty of that State.
In the case of diplomatic asylum, the refugee is within the territory of the State where the
offence was committed. A decision to grant diplomatic asylum involves a derogation from the
sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State
and constitutes an intervention in matters which are exclusively within the competence of that
State. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis
is established in each particular case.
For these reasons, it is not possible to deduce from the provisions of agreements concerning
extradition any conclusion which would apply to the question now under consideration.
The Colombian Government further relies on the Havana Convention on Asylum of 1928. This
Convention lays down certain rules relating to diplomatic asylum, but does not contain any
provision conferring on the State granting asylum a unilateral competence to qualify the offence
with definitive and binding force for the territorial State. The Colombian Government contends,
however, that such a competence is implied in that convention and is inherent in the institution
of asylum.
A competence of this kind is of an exceptional character. It involves a derogation from the equal
rights of qualification which, in the absence of any contrary rule, must be attributed to each of
the States concerned; it thus aggravates the derogation from territorial sovereignty constituted
by the exercise of asylum. Such a competence is not inherent in the institution of diplomatic
asylum. This institution would perhaps be more effective if a rule of unilateral and definitive
qualification were applied. But such a rule is not essential to the exercise of asylum.
These considerations show that the alleged right of unilateral and definitive qualification cannot
be regarded as recognized by implication in the Havana Convention. Moreover, this Convention,
in pursuance of the desire expressed in its preamble of "fixing the rules" which the Government
of the States of America must observe for the granting of asylum, was concluded with the
manifest intention of preventing the abuses which had arisen in the previous practice, by limiting
the grant of asylum. It did so in a number of ways and in terms which are unusually restrictive
 II. CUSTOMARY INTERNATIONAL LAW

and emphatic ("It is not permissible for States .";"Asylum may not be granted except in urgent
cases and for the period of time strictly indispensable .", etc.).
The Colombian government has invoked Article 2, paragraph 1, of the Havana Convention,
which is framed in the following terms:
"Asylum granted to political offenders in legations, warships, military camps or military aircraft,
shall be respected to the extent in which allowed as a right or through humanitarian toleration,
by the usages, the conventions or the laws of the country in which granted and in accordance
with the following provisions:"
This provision has been interpreted by that Government in the sense that the usages,
conventions and laws of Colombia relating to the qualification of the offence can be invoked
against Peru. This interpretation, which, would mean that the extent of the obligation of one of
the signatory States would, depend upon any modifications which might occur in the law of
another, cannot be accepted. The provision must be regarded as-a limitation of the extent to
which asylum shall be respected. What the provision says in effect is that the State of refuge
shall not exercise asylum to a larger extent than is warranted by its own usages, conventions or
laws and that the asylum granted must be respected by the territorial State only where such
asylum, would be permitted according to the usages, conventions or laws of the State of refuge.
Nothing therefore can be deduced from this provision in so far as qualification is concerned.
The Colombian government has further referred to the Montevideo Convention on Political
Asylum of 1933. It was in fact this Convention which was invoked in the note of January 14th,
1949, from the Colombian Ambassador to the Peruvian Minister for Foreign Affairs. It is argued
that, by Article 2 of that Convention, the Havana Convention of 1928 is interpreted in the sense
that the qualification of a political offence appertains to the State granting asylum. Articles 6 and
7 of the Montevideo Convention provide that it shall be ratified and will enter into force as and
when the ratifications are deposited. The Montevideo Convention has not been ratified by Peru,
and cannot be invoked against that State. The fact that it was considered necessary to
incorporate in that Convention an article accepting the right of unilateral qualification, seems to
indicate that this solution was regarded as a new rule not recognized by the Havana
Convention. Moreover, the preamble of the Montevideo Convention states in its Spanish,
French and Portuguese texts that it modifies the Havana Convention. It cannot therefore be
considered as representing merely an interpretation of that Convention.
The Colombian Government has finally invoked "American international law in general". In
addition to the rules arising from agreements which have already been considered, it has relied
on an alleged regional or local custom peculiar to Latin-American States.
The Party which relies on a custom of this kind must prove that this custom is established in
such a manner that it has become binding on the other Party. The Colombian Government must
prove that the rule invoked by it is in accordance with a constant and uniform usage practiced
by the States in question, and that this usage is the expression of a right appertaining to the
State granting asylum and a duty incumbent on the territorial State. This follows from Article 38
of the Statute of the Court, which refers to international custom "as evidence a general practice
accepted as law"
In support of its contention concerning the existence of such a custom, the Colombian
Government has referred to a large number of extradition treaties which, as already explained
can have no bearing on the question now under consideration. It has cited conventions and
 II. CUSTOMARY INTERNATIONAL LAW

agreements which do not contain any provision concerning the alleged rule of unilateral and
definitive qualification such as the Montevideo Convention of 1889 on international penal law,
the Bolivarian Agreement of 1911 and the Havana Convention of 1928. It has invoked
conventions which have not been ratified by Montevideo Conventions of 1933 and 1939. The
Peru, such as the Convention of 1933 has, in fact, been ratified by not more than, eleven States
and the Convention of 1939 by two States only.
It is particularly the Montevideo Convention of 1933 which Counsel for the Colombian
Government has also relied on in this connexion. It is contended that this Convention has
merely codified principles which were already recognized by Latin-American custom, and that it
is valid against Peru as a proof of customary law. The limited number of States which have
ratified this Convention reveals the weakness of this argument, and furthermore it is the
invalidated by the preamble which states that this Convention modifies the Havana Convention.
Finally, the Colombian Government has referred to a large number of particular cases in which
diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule
of unilateral and definitive qualification was invoked or - if in some cases it was in fact invoked -
that it was, apart from conventional stipulations, exercised by the States granting asylum as a
right appertaining to them and respected by the territorial States as a duty incumbent on them
and not reason expediency. The facts brought to the knowledge of the Court disclose so much
uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic
asylum and in the official views expressed on various occasions, there has been so much
inconsistency in the rapid succession of conventions on asylum, ratified by some States and
rejected by others, and the practice has been so much influenced by considerations of political
expediency in the various cases, that it is not possible to discern in all this any constant and
uniform usage, accepted as law, with regard to the alleged rule of unilateral and definitive
qualification of the offence.
The Court cannot therefore find that the Colombian Government has proved the existence of
such a custom. But even if it could be supposed that such a custom existed between certain
Latin-American States only, it could not be invoked against Peru which, far from having by its
attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the
Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the
qualification of the offence in matters of diplomatic asylum.
In the written Pleadings and during the oral proceedings, the Government of Colombia relied
upon official communiqués published by the Peruvian Ministry of Foreign Affairs on October
13th and 26th, 1948, and the Government of Peru relied upon a Report of the Advisory
Committee of the Ministry of Foreign Affairs of Colombia dated September 2nd, 1937; on the
question of qualification, these documents state views which are contrary to those now
maintained by these Governments. The Court, whose duty it is to apply international law in
deciding the present case, cannot attach decisive importance to any of these documents.
For these reasons, the Court has arrived at the conclusion that Colombia, as the State granting
asylum, is not competent to qualify the offence by a unilateral and definitive decision, binding on
Peru.
In its second submission, the Colombian Government asks the Court to adjudge and declare:
 II. CUSTOMARY INTERNATIONAL LAW

"That the Republic of Peru, as the territorial State, is bound in the case now before the Court, to
give the guarantees necessary for the departure of M. Víctor Raúl Haya de la Torre from the
country, with due regard to the inviolability of his person."
This alleged obligation of the Peruvian Government does not entirely depend on the answer
given to the first Colombian submission relating to the unilateral and definitive qualification of
the offence. It follows from the first two articles of the Havana Convention that, even if such a
right of qualification is not admitted, the Colombian Government is entitled to request a
safe-conduct under certain conditions.
The first condition is that asylum has been regularly granted and maintained. It can be granted
only to political offenders who are not accused or condemned for common crimes and only in
urgent cases and for the time strictly indispensable for the safety of the refugee. These points
relate to the Peruvian counterclaim and will be considered later to the extent necessary for the
safety of the refugee. These points relate to the Peruvian counterclaim and will be considered
later to the extent necessary for the decision of the present case.
The second condition is laid down in Article 2 of the Havana Convention:
"Third: The Government of the State may require that the refugee be sent out of the national
territory within the shortest time possible; and the diplomatic agent of the country who has
granted asylum may in turn require the guarantees necessary for the departure of the refugee
from the country with due regard to the in violability of his person."
If regard is had, on the one hand, to the structure of this provision which indicates a successive
order, and, on the other hand, to the natural and ordinary meaning of the words "in turn", this
provision can only mean that the territorial State may require that the refugee be sent out of the
country, and that only after such a demand can the State granting asylum require the necessary
guarantees as a condition of his being sent out. The provision gives, in other words, the
territorial State an option to require the departure of the refugee, and that State becomes bound
to grant a safe-conduct only if it has exercised, this option.
A contrary interpretation would lead, in the case now before the Court, to the conclusion that
Colombia would be entitled to decide alone whether the conditions provided by Articles 1 and 2
of the Convention for the regularity of asylum are fulfilled. Such a consequence obviously would
be incompatible with the legal situation created by the Convention.
There exists undoubtedly a practice whereby the diplomatic representative who grants asylum
immediately requests a safe-conduct without awaiting a request from the territorial State, for the
departure of the refugee. This procedure meets certain requirements: the diplomatic agent is
naturally desirous that the presence of the refugee on his premises should not be prolonged and
the government of the country, for its part, desires in a great number of cases that its political
opponent who has obtained asylum should depart. This concordance of views suffices to
explain the practice which has been noted in this connexion, but this practice does not and
cannot mean that the State, to whom such a request for a safe-conduct has been addressed, is
legally bound to accede to it.
In the present case, the Peruvian Government has not requested that Haya de la Torre should
leave Peru. It has contested the legality of the asylum granted to him and has refused to deliver
a safe-conduct. In such circumstances the Colombian Government is not entitled to claim that
the Peruvian Government should give the guarantees necessary for the departure of Haya de la
Torre from the country, with due regard to the inviolability of his person.
 II. CUSTOMARY INTERNATIONAL LAW

The counter-claim of the Government of Peru was stated in its final form during the oral
statement of October 3rd, 1950, in the following terms:
"MAY IT PLEASE THE COURT:
To adjudge and declare as a counter-claim under Article 63 of the Rules of Court, and in the
same decision, that the grant of asylum by the Colombian Ambassador at Lima to Víctor Raúl
Haya de la Torre was made in violation of Article 1, paragraph 1, and Article 2, paragraph 2,
item 1 (inciso primero), of the Convention on Asylum signed in 1928, and that in any case the
maintenance of the asylum constitutes at the present time a violation of that treaty."
As has already been pointed out, the last part of this sentence: "and that in any case the
maintenance of the asylum constitutes at the present time a violation of that treaty", did not
appear in the counter-claim presented by the Government of Peru in the Counter-Memorial. The
addition was only made during the oral proceedings. The Court will first consider the
counter-claim in its original form.
This counter-claim is intended, in substance, to put an end to the dispute by requesting the
Court to declare that asylum was wrong-fully given, the grant of asylum being contrary to certain
provisions of the Havana Convention. The object of the counter-claim is simply to define for this
purpose the legal relations which that Convention has established between Colombia and Peru.
The Court observes in this connexion that the question of the possible surrender of the refugee
to the territorial authorities is in no way raised in the counter-claim. It points out that the Havana
Convention, which provides for the surrender to those authorities of persons accused of or
condemned for common crimes, contains no similar provision in respect of political offenders.
The Court notes, finally, that this question was not raised either in the diplomatic
correspondence submitted by the Parties or at any moment in the proceedings, before the
Court, and in fact the Government of Peru, has not requested that the refugee should be
surrendered.
It results from the final submissions of the Government of Colombia, as formulated before the
Court on October 6th, 1950, that that Government did not contest the jurisdiction of the Court in
respect of the original counter-claim; it did so only in respect of the addition made during the
oral proceedings. On the other hand, relying upon Article 63 of the Rules of Court, the
Government of Colombia has disputed the admissibility of the counter-claim by arguing that it is
not directly connected with the subject-matter of the Application. In its view, this lack of
connexion results from the fact that the counter-claim raises new problems and thus tends to
shift the grounds of the dispute.
The Court is unable to accept this view. It emerges clearly from the arguments of the Parties
that the second submission of the Government of Colombia, which concerns the demand for a
safe-conduct, rests largely on the alleged regularity of the asylum, which is precisely what is
disputed by the counter-claim. The connexion is so direct that certain conditions which are
required to exist before a safe-conduct can be demanded depend precisely on facts which are
raised by the counter-claim. The direct connexion being thus clearly established, the sole
objection to the admissibility of the counter-claim in its original form is therefore removed.
Before examining the question whether the counter-claim is well founded, the Court must state
in precise terms what meaning it attaches to the words "the grant of asylum" which are used
therein. The grant of asylum is not an instantaneous act which terminates with the admission, at
a given moment, of a refugee to an embassy or a legation. Any grant of asylum results in, and in
 II. CUSTOMARY INTERNATIONAL LAW

consequence logically implies, a state of protection; the asylum is granted as long as the
continued presence of the refugee in the embassy prolongs this protection. This view, which
results from the very nature of the institution of asylum, is further confirmed by the attitude of the
Parties during this case. The counter-claim, as it appears in the Counter-Memorial of the
Government of Peru, refers expressly to Article 2, paragraph 2, of the Havana Convention,
which provides that asylum may not be granted except period of time strictly indispensable".
Such has also been the view of the Government of Colombia; its Reply shows that, in its
opinion, as in that of the Government of Peru, the reference to the above mentioned provision of
the Havana Convention raises the question of "the duration of the refuge".
The Government of Peru has based its counter-claim on two different grounds which correspond
respectively to Article 1, paragraph 1, and Article 2, paragraph 2, of the Havana Convention.
Under Article 1, paragraph 1, "It is not permissible for States to grant asylum .to persons
accused or condemned for common crimes ". The onus of proving that Haya de la Torre had
been accused or condemned for common crimes before the grant of asylum rested upon Peru.
The Court has no difficulty in finding, in the present case, that the refugee was an "accused
person" within the meaning of the Havana Convention, inasmuch as the evidence presented by
the Government of Peru appears conclusive in this connexion. It can hardly be agreed that the
term "accused" occurring in a multilateral treaty such as that of Havana has a precise and
technical connotation, which would have the effect of subordinating the definition of "accused" to
the completion of certain strictly prescribed steps in procedure, which might differ from one legal
system to another.
On the other hand, the Court considers that the Government of Peru has not proved that the
acts of which the refugee was accused before January 3rd/4th, 1949, constitute common
crimes. From the point of view of the application of the Havana Convention, it is the terms of the
accusation, as formulated by the legal authorities before the grant of asylum, that must alone be
considered. As has been shown in the recital of the facts, the sole accusation contained in all
the documents emanating from the Peruvian legal authorities is that of military rebellion, and the
Government of Peru has not established that military rebellion in itself constitutes a common
crime. Article 248 of the Peruvian Code of Military Justice of 1939 even tends to prove the
contrary, for it makes a distinction between military rebellion and common crimes by providing
that: "Common crimes committed during the course of, and in connexion with, a rebellion, shall
be punishable in conformity with the laws, irrespective of the rebellion."
These considerations lead to the conclusion that the first objection made by the Government of
Peru against the asylum is not justified and that on this point the counter-claim is not well
founded and must be dismissed.
The Government of Peru relies, as a second basis for its counterclaim, upon the alleged
disregard of Article 2, paragraph 2, of the Havana Convention, which provides as follows:
"Asylum may not be granted except in urgent cases and for the period of time strictly
indispensable for the person who has sought asylum to ensure in some other way his safety."
Before proceeding to an examination of this provision, the Court considers it necessary to make
the following remark concerning the Havana Convention in general and Article 2 in particular.
The object of the Havana Convention, which is the only agreement relevant to the present case,
was, as indicated in its preamble, to fix the rules which the signatory States must observe for
the granting of asylum in their mutual relations. The intention was, as has been stated above, to
 II. CUSTOMARY INTERNATIONAL LAW

put an end to the abuses which had arisen in the practice of asylum and which were likely to
impair its credit and usefulness. This is borne out by the wording of Articles 1 and 2 of the
Convention which is at times prohibitive and at times clearly restrictive.
Article 2 refers to asylum granted to political offenders and lays down in precise terms the
conditions under which asylum granted to such offenders shall be respected by the territorial
State. It is worthy of note that all these conditions are designed to give guarantees to the
territorial State and appear, in the final analysis, as the consideration for the obligation which
that State assumes to respect asylum, that is, to accept its principle and its consequences as
long as it is regularly maintained.
At the head of the list of these conditions appears Article 2, paragraph 2, quoted above. It is
certainly the most important of them, the essential justification for asylum being in the
imminence or persistence of a danger for the person of the refugee. It was incumbent upon the
Government of Colombia to submit proof of facts to show that the above-mentioned condition
was fulfilled.
It has not been disputed by the Parties that asylum may be granted on humanitarian grounds in
order to protect political offenders against the violent and disorderly action of irresponsible
sections of the population. It has not been contended by the Government of Colombia that Haya
de la Torre was in such a situation at the time when he sought refuge in the Colombian
Embassy at Lima. At that time, three months had elapsed since the military rebellion. This long
interval gives the present case a very special character. During those three months, Haya de la
Torre had apparently been in hiding in the country, refusing to obey the summons to appear of
the legal authorities which was published on November 16th/18th, 1948, and refraining from
seeking asylum in the foreign embassies where several of his co-accused had found refuge
before these dates. It was only on January 3rd, 1949, that he sought refuge in the Colombian
Embassy. The Court considers that, prima jacie, such circumstances make it difficult to speak of
urgency.
The diplomatic correspondence between the two Governments does not indicate the nature of
the danger which was alleged to threaten the refugee. Likewise, the Memorial of the
Government of Colombia confines itself to stating that the refugee begged the Ambassador to
grant him the diplomatic protection of asylum as his freedom and life were in jeopardy. It is only
in the written Reply that the Government of Colombia described in more precise terms the
nature of the danger against which the refugee intended to request the protection of the
Ambassador. It was then claimed that this danger resulted in particular from the abnormal
political situation existing in Peru, following the state of siege proclaimed on October 4th, 1948,
and renewed successively on November 2nd, December 2nd, 1948, and January 2nd, 1949;
that it further resulted from the declaration of "a state of national crisis "made on October 25th,
1948, containing various statements against the American People's Revolutionary Alliance of
which the refugee was the head; from the outlawing of this Party by the decree of October 4th,
1948; from the Order issued by the acting Examining Magistrate for the Navy on November 13th
1948, requiring the defaulters to be cited by public summons; from the decree of November 4th,
1948, providing for Courts-Martial to judge summarily, with the option of increasing the penalties
an without appeal, the authors, accomplices and others responsible for the offences of rebellion,
sedition or mutiny.
 II. CUSTOMARY INTERNATIONAL LAW

From these facts regarded as a whole the nature of the danger now becomes clear, and it is
upon the urgent character of such a danger that the Government of Colombia seeks to justify
the asylum - the danger of political justice by reason of the subordination of the Peruvian judicial
authorities to the instructions of the Executive.
It is therefore necessary to examine whether, and, if so, to what extent, a danger of this kind can
serve as a basis for asylum.
In principle, it is inconceivable that the Havana Convention could have intended the term "urgent
cases" to include the danger of regular prosecution to which the citizens of any country lay
themselves open by attacking the institutions of that country; nor can it be admitted that in
referring to "the period of time strictly indispensable for the person who has sought asylum to
ensure in some other way his safety", the Convention envisaged protection from the operation
of regular legal proceedings.
It would be useless to seek an argument to the contrary in Article 1 of the Havana Convention
which forbids the grant of asylum to persons "accused or condemned for common crimes" and
directs that such persons shall be surrendered immediately upon request of the local
government. It is not possible to infer from that provision that, because a person is accused of
political offences and not of common crimes, he is, by that fact alone, entitled to asylum. It is
clear that such an inference would disregard the requirements laid down by Article 2, paragraph
2, for the grant of asylum to political offenders.
In principle, therefore, asylum cannot be opposed to the operation of justice. An exception to
this rule can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law.
Such would be the case if the administration of justice were corrupted by measures clearly
prompted by political aims. Asylum protects the political offender against any measures of a
manifestly extra-legal character which a government might take or attempt to take against its
political opponents. The word safety", which in Article 2, paragraph 2, determines the specific
effect of asylum granted to offenders, means that the refugee is protected against action by the
government, and that he enjoys the benefits of the law. On the other hand, the safety which
arises out of asylum cannot be construed as a protection against the regular application of the
laws and against the jurisdiction of legally constituted tribunals. Protection thus understood
would authorize the diplomatic agent to obstruct the application of the laws of the country
whereas it is his duty to respect them; it would in fact become the equivalent of an immunity,
which was evidently not within the intentions of the draftsmen of the Havana Convention.
It is true that successive decrees promulgated by the Government of Peru proclaimed and
prolonged a state of siege in that country; but it has not been shown that the existence of a state
of siege implied the subordination of justice to the executive authority, or that the suspension of
certain constitutional guarantees entailed the abolition of judicial guarantees. As for the decree
of November 4th, 1948, providing for Courts-Martial, it contained no indication which might be
taken to mean that the new provisions would apply retroactively to offences committed prior to
the publication of the said decree. In fact, this decree was not applied to the legal proceedings
against Haya de la Torre, as appears from the foregoing recital of the facts. As regards the
future, the Court places on record the following declaration made on behalf of the Peruvian
Government:
"The decree in question is dated November 4th, 1948, that is, it was enacted one month after
the events which led to the institution of proceedings against Haya de la Torre. This decree was
 II. CUSTOMARY INTERNATIONAL LAW

intended to apply to crimes occurring after its publication, and nobody in Peru would ever have
dreamed of utilizing it in the case to which the Colombian Government clumsily refers, since the
principle that laws have no retroactive affect, especially in penal matters, is broadly admitted in
that decree. If the Colombian Government's statement on this point were true, the Peruvian
Government would never have referred this case to the International Court of Justice."
This declaration, which appears in the Rejoinder, was confirmed by the Agent for the
Government of Peru in his oral statement of October 2nd, 1950.
The Court cannot admit that the States signatory to the Havana Convention intended to
substitute for the practice of the Latin American republics, in which considerations of courtesy,
good-neighbourliness and political expediency have always held a prominent place, a legal
system which would guarantee to their own nationals accused of political offences the privilege
of evading national jurisdiction. Such a conception, moreover, would come into conflict with one
of the most firmly established traditions of Latin America, namely, non-intervention. It was at the
Sixth Pan-American Conference of 1928, during which the Convention on Asylum was signed,
that the States had consented, at the very same moment, to submit to intervention in its least
acceptable form, one which implies foreign interference in the administration of domestic justice
and which could not manifest itself without casting some doubt on the impartiality of that justice.
Indeed the diplomatic correspondence between the two governments shows the constant
anxiety of Colombia to remain, in this field as elsewhere, faithful to the tradition of
non-intervention. Colombia did not depart from this attitude, even when she found herself
confronted with an emphatic declaration by the Peruvian Minister for Foreign Affairs asserting
that the tribunal before which Haya de la Torre had been summoned to appear was in
conformity with the general and permanent organization of Peruvian judicial administration and
under the control of the Supreme Court. This assertion met with no contradiction or reservation
on the part of Colombia. It was only much later, following the presentation of the Peruvian
counter-claim, that the government of Colombia chose, in the Reply and during the oral
proceedings, to transfer the defence of asylum to a plane on which the Havana Convention,
interpreted in the light of the most firmly established traditions of Latin America, could provide it
with no foundation.
​ The foregoing considerations lead us to reject the argument that the Havana Convention
was intended to afford a quite general protection of asylum to any person prosecuted for political
offences, either in the course of revolutionary events, or in the more or less troubled times that
follow, for the sole reason that it must be assumed that such events interfere with the
administration of justice. It is clear that the adoption of such a criterion would lead to foreign
interference of a particularly offensive nature in the domestic affairs of States; besides which, no
confirmation of this criterion can be found in Latin-American practice, as this practice has been
explained to the Court.
​ In thus expressing itself, the Court does not lose sight of the numerous cases of asylum
which have been cited in the Reply of the Government of Colombia and during the oral
statements. In this connexion, the following observations should be made:
In the absence of precise data, it is difficult to assess the value of such cases as precedents
tending to establish the existence of a legal obligation upon a territorial State to recognize the
validity of asylum which has been granted against proceedings instituted by local judicial
authorities. The facts which have been laid before the Court show that in a number of cases the
 II. CUSTOMARY INTERNATIONAL LAW

persons who have enjoyed asylum were not, at the moment at which asylum was granted, the
object of any accusation on the part of the judicial authorities. In a more general way,
considerations of convenience or simple political expediency seem to have led the territorial
State to recognize asylum without that decision being dictated by any feeling of legal obligation.
If these remarks tend to reduce considerably the value as precedents of the cases of asylum
cited by the Government of Colombia, they show, none the less, that asylum as practised in
Latin America is an institution which, to a very great extent owes its development to extra-legal
factors. The good-neighbour relations between the republics, the different political interests of
the governments, have favoured the mutual recognition of asylum a art from any clearly defined
juridical system. Even if the Havana Convention, in particular, represents an indisputable
reaction against certain abuses in practice, it in no way tends to limit the practice of asylum as it
may arise from agreements between interested governments inspired by mutual feelings of
toleration and goodwill.
​ In conclusion, on the basis of the foregoing observations and considerations, the Court
considers that on January 3rd/4th, 1949, there did not exist a danger constituting a case of
urgency with the meaning of Article 2, paragraph 2, of the Havana Convention. This finding
implies no criticism of the Ambassador of Colombia. His decision to receive the refugee on the
evening of January 3rd, 1949, may have been taken without the opportunity of length reflection;
it may have been influenced as much by the previous grant of safe-conducts to persons
accused together with Haya de la Torre as by the more general consideration of recent events in
Peru; these events may have led him to believe in the existence of urgency. But this subjective
appreciation is not the relevant element in the decision which the Court is called upon to take
concerning the validity of the asylum; the only important question to be considered here is the
objective existence of the facts, and it is this which must determine the decision of the Court.
The notes of the Ambassador of Colombia of January 14th and February 12th, 1949, reflect the
attitude of the Government towards the asylum granted by its Ambassador. The first of these
confirms the asylum and claims to justify its grant by a unilateral qualification of the refugee. The
second formulates a demand for a safe-conduct with a view to permitting the departure of the
refugee, and has based this demand expressly on the "international obligations" alleged to be
binding on the Government of Peru. In thus expressing itself, the Government of Colombia
definitively proclaimed its intention of protecting Haya de la Torre, in spite of the existence of
proceedings instituted against him for military rebellion. It has maintained this attitude and this
protection by continuing to insist on the grant of a safe-conduct, even when the Minister for
Foreign Affairs of Peru referred to the existence of "a judicial prosecution, instituted by the
sovereign power of the State" against the refugee (notes of the Minister for Foreign Affairs of
Peru of March 19th, 1949; of the Ambassador of Colombia of March 28th, 1949).
Thus, it is clearly apparent from this correspondence that the Court, in its appraisal of the
asylum, cannot be confined to the date of January 3rd/4th, 1949, as the date on which it was
granted. The grant, as has been stated above, is inseparable from the protection to which it
gives rise - a protection which has here assumed the form of a defence against legal
proceedings. It therefore results that asylum has been granted for as long as the Government of
Colombia has relied upon it in support of its request for a safe-conduct.
​ The Court is thus led to find that the grant of asylum from January 3rd/4th, 1949, until the
time when the two Governments agreed to submit the dispute to its jurisdiction, has been
 II. CUSTOMARY INTERNATIONAL LAW

prolonged for a reason which is not recognized by Article 2, paragraph 2, of the Havana
Convention.

​ This finding renders superfluous the addition to the counter-claim submitted during the
oral proceedings and worded as follows: "and that in any case the maintenance of the asylum
constitutes at the present time a violation of that treaty". This part of the submission, as finally
worded by the Government of Peru, was intended as a substitution for the counter-claim in its
original form if the latter were rejected: it disappears with the allowance of this counter-claim.
Hence it will not be necessary for the Court to consider either the objection on the ground of
lack of jurisdiction or the objections on the grounds of inadmissibility which the Government of
Colombia has based on an alleged disregard of Article 63 of the Rules of Court or to consider
the merits of the claim thus submitted by the Government of Peru.
For these reasons,

The Court,On the submissions of the Government of Colombia,

By fourteen votes to two,
Rejects the first submission in so far as it involves a right for Colombia, as the country granting
asylum, to qualify the nature of the offence by a unilateral and definitive decision, binding on
Peru;

By fifteen votes to one,

Rejects the second submission; On the counter-claim of the Government of Peru,

By fifteen votes to one,

Rejects it in so far as it is founded on a violation of Article 1, paragraph 1, of the Convention on
Asylum signed at Havana in 1928;

By ten votes to six, Finds that the grant of asylum by the Colombian Government to Víctor Raúl
Haya de la Torre was not made in conformity with Article 2, paragraph 2 ("First"), of that
Convention

3)​ CASE: North Sea Continental Shelf Case (I.C.J. Reports, 1969) Check PDF for full.

4)​ CASE: Nuclear Test Cases (Australia v. France; New Zealand v. France, ICJ
Reports, 1974)

[p.253]
The Court,
 II. CUSTOMARY INTERNATIONAL LAW

composed

as above,

delivers the following Judgment:

1. By a letter of 9 May 1973, received in the Registry of the Court the same day, the
Ambassador of Australia to the Netherlands transmitted to the Registrar an Application
instituting proceedings against France in respect of a dispute concerning the holding of
atmospheric tests of nuclear weapons by the French Government in the Pacific Ocean.
In order to found to the jurisdiction of the Court, the Application relied on Article 17 of
the General Act for the Pacific Settlement of International Disputes done at Geneva on
26 September 1928, read together with Articles 36, paragraph 1, and 37 of the Statute
of the Court, and alternatively on Article 36, paragraph 2, of the Statute of the Court.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was at once
communicated to the French Government. In accordance with paragraph 3 of that
Article, all other States entitled to appear before the Court were notified of the
Application. [p 255]

3. Pursuant to Article 31, paragraph 2, of the Statute of the Court, the Government of
Australia chose the Right Honourable Sir Garfield Barwick, Chief Justice of Australia, to
sit as judge
ad hoc in the case.

4. By a letter dated 16 May 1973 from the Ambassador of France to the Netherlands,
handed by him to the Registrar the same day, the French Government stated that, for
reasons set out in the letter and an Annex thereto, it considered that the Court was
manifestly not competent in the case, and that it could not accept the Court's
jurisdiction; and that accordingly the French Government did not intend to appoint an
agent, and requested the Court to remove the case from its list. Nor has an agent been
appointed by the French Government.

5. On 9 May 1973, the date of filing of the Application instituting proceedings, the Agent
of Australia also filed in the Registry of the Court a request for the indication of interim
measures of protection under Article 33 of the 1928 General Act for the Pacific
Settlement of International Disputes and Article 41 of the Statute and Article 66 of the
Rules of Court. By an Order dated 22 June 1973 the Court indicated, on the basis of
Article 41 of the Statute, certain interim measures of protection in the case.
 II. CUSTOMARY INTERNATIONAL LAW

6. By the same Order of 22 June 1973, the Court, considering that it was necessary to
resolve as soon as possible the questions of the Court's jurisdiction and of the
admissibility of the Application, decided that the written proceedings should first be
addressed to the questions of the jurisdiction of the Court to entertain the dispute and of
the admissibility of the Application, and fixed 21 September 1973 as the time-limit for
the filing of a Memorial by the Government of Australia and 21 December 1973 as the
time-limit for a Counter-Memorial by the French Government. The Co-Agent of Australia
having requested an extension to 23 November 1973 of the time-limit fixed for the filing
of the Memorial, the time-limits fixed by the Order of 22 June 1973 were extended, by
an Order dated 28 August 1973, to 23 November 1973 for the Memorial and 19 April
1974 for the Counter-Memorial. The Memorial of the Government of Australia was filed
within the extended time-limit fixed therefor, and was communicated to the French
Government. No Counter-Memorial was filed by the French Government and, the
written proceedings being thus closed, the case was ready for hearing on 20 April 1974,
the day following the expiration of the time-limit fixed for the Counter-Memorial of the
French Government.

7. On 16 May 1973 the Government of Fiji filed in the Registry of the Court a request
under Article 62 of the Statute to be permitted to intervene in these proceedings. By an
Order of 12 July 1973 the Court, having regard to its Order of 22 June 1973 by which
the written proceedings were first to be addressed to the questions of the jurisdiction of
the Court and of the admissibility of the Application, decided to defer its consideration of
the application of the Government of Fiji for permission to intervene until the Court
should have pronounced upon these questions.

8. On 24 July 1973, the Registrar addressed the notification provided for in Article 63 of
the Statute to the States, other than the Parties to the case, which were still in existence
and were listed in the relevant documents of the League of Nations as parties to the
General Act for the Pacific Settlement of International Disputes, done at Geneva on 26
September 1928, which was invoked in the Application as a basis of jurisdiction.

9. The Governments of Argentina, Fiji, New Zealand and Peru requested that the
pleadings and annexed documents should be made available to them [p 256] in
accordance with Article 48, paragraph 2, of the Rules of Court. The Parties were
consulted on each occasion, and the French Government having maintained the
position stated in the letter of 16 May 1973, and thus declined to express an opinion, the
Court or the President decided to accede to these requests.

10. On 4-6, 8-9 and 11 July 1974, after due notice to the Parties, public hearings were
held, in the course of which the Court heard the oral argument, on the questions of the
Court's jurisdiction and of the admissibility of the Application, advanced by Mr. P. Brazil,
 II. CUSTOMARY INTERNATIONAL LAW

Agent of Australia and Senator the Honourable Lionel Murphy, Q.C., Mr. M. H. Byers,
Q.C., Mr. E. Lauterpacht, Q.C., and Professor D. P. O'Connell, counsel, on behalf of the
Government of Australia. The French Government was not represented at the hearings.

11. In the course of the written proceedings, the following submissions were presented
on behalf of the Government of Australia: in the Application:

"The Government of Australia asks the Court to adjudge and declare that, for the
above-mentioned reasons or any of them or for any other reason that the Court deems
to be relevant, the carrying out of further atmospheric nuclear weapon tests in the South
Pacific Ocean is not consistent with applicable rules of international law.

And to Order

that the French Republic shall not carry out any further such tests."

in the Memorial:

"The Government of Australia submits to the Court that it is entitled to a declaration and
judgment that:

(a) the Court has jurisdiction to entertain the dispute, the subject of the Application filed
by the Government of Australia on 9 May 1973; and

(b) the Application is admissible."

12. During the oral proceedings, the following written submissions were filed in the
Registry of the Court on behalf of the Government of Australia:

"The final submissions of the Government of Australia are that:

(a) the Court has jurisdiction to entertain the dispute the subject of the Application filed
by the Government of Australia on 9 May 1973; and

(b) the Application is admissible

and that accordingly the Government of Australia is entitled to a declaration and

judgment that the Court has full competence to proceed to entertain the Application by
Australia on the Merits of the dispute."

13. No pleadings were filed by the French Government, and it was not represented at
the oral proceedings; no formal submissions were therefor made by that Government.
 II. CUSTOMARY INTERNATIONAL LAW

The attitude of the French Government with regard to the question of the Court's
jurisdiction was however defined in the above-mentioned letter of 16 May 1973 from the
French Ambassador to the [p 257] Netherlands, and the document annexed thereto.
The said letter stated in particular that:

". ..the Government of the [French] Republic, as it has notified the Australian
Government, considers that the Court is manifestly not competent in this case and that
it cannot accept its juridiction".

***

14. As indicated above (paragraph 4), the letter from the French Ambassador of 16 May
1973 also stated that the French Government "respectfully requests the Court to be so
good as to order that the case be removed from the list". At the opening of the public
hearing concerning the request for interim measures of protection, held on 21 May
1973, the President announced that "this request . . . has been duly noted, and the
Court will deal with it in due course, in application of Article 36, paragraph 6, of the
Statute of the Court". In its Order of 22 June 1973, the Court stated that the
considerations therein set out did not "permit the Court to accede at the present stage of
the proceedings" to that request. Having now had the opportunity of examining the
request in the light of the subsequent proceedings, the Court finds that the present case
is not one in which the procedure of summary removal from the list would be
appropriate.

***

15. It is to be regretted that the French Government has failed to appear in order to put
forward its arguments on the issues arising in the present phase of the proceedings,
and the Court has thus not had the assistance it might have derived from such
arguments or from any evidence adduced in support of them. The Court nevertheless
has to proceed and reach a conclusion, and in doing so must have regard not only to
the evidence brought before it and the arguments addressed to it by the Applicant, but
also to any documentary or other evidence which may be relevant. It must on this basis
satisfy itself, first that there exists no bar to the exercise of its judicial function, and
secondly, if no such bar exists, that the Application is well founded in fact and in law.

***
16. The present case relates to a dispute between the Government of Australia and the
French Government concerning the holding of atmospheric tests of nuclear weapons by
the latter Government in the South Pacific Ocean. Since in the present phase of the
 II. CUSTOMARY INTERNATIONAL LAW

proceedings the Court has to deal only with preliminary matters, it is appropriate to
recall that its approach to a phase of this kind must be, as it was expressed in the
Fisheries Jurisdiction cases, as follows: [p 258]

"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." (I.C.J. Reports 1973, pp. 7 and 54.)

It will however be necessary to give a summary of the principal facts underlying the
case.

17. Prior to the filing of the Application instituting proceedings in this case, the French
Government had carried out atmospheric tests of nuclear devices at its Centre
d'experimentations du Pacifique, in the territory of French Polynesia, in the years 1966,
1967, 1968, 1970, 1971 and 1972. The main firing site used has been Mururoa atoll
some 6, 000 kilometres to the east of the Australian mainland. The French Government
has created "Prohibited Zones" for aircraft and "Dangerous Zones" for aircraft and
shipping, in order to exclude aircraft and shipping from the area of the tests centre;
these "zones" have been put into effect during the period of testing in each year in
which tests have been carried out.

18. As the United Nations Scientific Committee on the Effects of Atomic Radiation has
recorded in its successive reports to the General Assembly, the testing of nuclear
devices in the atmosphere has entailed the release into the atmosphere, and the
consequent dissipation in varying degrees throughout the world, of measurable
quantities of radio-active matter. It is asserted by Australia that the French atmospheric
tests have caused some fall-out of this kind to be deposited on Australian territory;
France has maintained in particular that the radio-active matter produced by its tests
has been so infinitesimal that it may be regarded as negligible, and that such fall-out on
Australian territory does not constitute a danger to the health of the Australian
population. These disputed points are clearly matters going to the merits of the case,
and the Court must therefore refrain, for the reasons given above, from expressing any
view on them.

***

19. By letters of 19 September 1973, 29 August and 11 November 1974, the

Government of Australia informed the Court that subsequent to the Court's Order of 22
June 1973 indicating, as interim measures under Article 41 of the Statute. (inter alia)
that the French Government should avoid nuclear tests causing the deposit of
radio-active fall-out in Australian territory, two further series of atmospheric tests, in the
 II. CUSTOMARY INTERNATIONAL LAW

months of July and August 1973 and June to September 1974, had been carried out at
the Centre d’experimentations du Pacifique. The letters also stated that fall-out had
been recorded on Australian territory which, according to the Australian Government,
was clearly attributable to these tests, [p 259] and that "in the opinion of the
Government of Australia the conduct of the French Government constitutes a clear and
deliberate breach of the Order of the Court of 22 June 1973".

20. Recently a number of authoritative statements have been made on behalf of the
French Government concerning its intentions as to future nuclear testing in the South
Pacific Ocean. The significance of these statements, and their effect for the purposes of
the present proceedings, will be examined in detail later in the present Judgment.

***

21. The Application founds the jurisdiction of the Court on the following basis:

"(i) Article 17 of the General Act for the Pacific Settlement of International Disputes,
1928, read together with Articles 36 (1) and 37 of the Statute of the Court. Australia and
the French Republic both acceded to the General Act on 21 May 193 1 . . .

(ii) Alternatively, Article 36 (2) of the Statute of the Court. Australia and the French
Republic have both made declarations thereunder."

22. The scope of the present phase of the proceedings was defined by the Court's
Order of 22 June 1973, by which the Parties were called upon to argue, in the first
instance, questions of the jurisdiction of the Court and the admissibility of the
Application. For this reason, as already indicated, not only the Parties but also the Court
itself must refrain from entering into the merits of the claim. However, while examining
these questions of a preliminary character, the Court is entitled, and in some
circumstances may be required, to go into other questions which may not be strictly
capable of classification as matters of jurisdiction or admissibility but are of such a
nature as to require examination in priority to those matters.

23. In this connection, it should be emphasized that the Court possesses an inherent
jurisdiction enabling it to take such action as may be required, on the one hand to
ensure that the exercise of its jurisdiction over the merits, if and when established, shall
not be frustrated, and on the other, to provide for the orderly settlement of all matters in
dispute, to ensure the observance of the "inherent limitations on the exercise of the
judicial function" of the Court, and to "maintain its judicial character" (Northern
 II. CUSTOMARY INTERNATIONAL LAW

Cameroons, Judgment, I.C.J. Reports 1963, at p. 29). Such inherent jurisdiction, on the
basis of which the Court is fully empowered to make whatever findings may be
necessary for the purposes just indicated, derives from the mere existence of the Court
as a judicial [p 260] organ established by the consent of States, and is conferred upon it
in order that its basic judicial functions may be safeguarded.

24. With these considerations in mind, the Court has first to examine a question which it
finds to be essentially preliminary, namely the existence of a dispute, for, whether or not
the Court has jurisdiction in the present case, the resolution of that question could exert
a decisive influence on the continuation of the proceedings. It will therefore be
necessary to make a detailed analysis of the claim submitted to the Court by the
Application of Australia. The present phase of the proceedings having been devoted
solely to preliminary questions, the Applicant has not had the opportunity of fully
expounding its contentions on the merits. However the Application, which is required by
Article 40 of the Statute of the Court to indicate "the subject of the dispute", must be the
point of reference for the consideration by the Court of the nature and existence of the
dispute brought before it.

25. The Court would recall that the submission made in the Application (paragraph 11
above) is that the Court should adjudge and declare that "the carrying out of further
atmospheric nuclear weapon tests in the South Pacific Ocean is not consistent with
applicable rules of international law -- the Application having specified in what respect
further tests were alleged to be in violation of international law -- and should order "that
the French Republic shall not carry out any further such tests".

26. The diplomatic correspondence of recent years between Australia and France
reveals Australia's preoccupation with French nuclear atmospheric tests in the South
Pacific region, and indicates that its objective has been to bring about their termination.
Thus in a Note dated 3 January 1973 the Australian Government made it clear that it
was inviting the French Government "to refrain from any further atmospheric nuclear
tests in the Pacific area and formally to assure the Australian Government that no more
such tests will be held in the Pacific area". In the Application, the Government of
Australia observed in connection with this Note (and the French reply of 7 February
1973) that:

"It is at these Notes, of 3 January and 7 February 1973, that the Court is respectfully
invited to look most closely; for it is in them that the shape and dimensions of the
dispute which now so sadly divides the parties appear so clearly. The Government of
Australia claimed that the continuance of testing by France is illegal and called for the
 II. CUSTOMARY INTERNATIONAL LAW

cessation of tests. The Government of France asserted the legality of its conduct and
gave no indication that the tests would stop." (Para. 15 of the Application.)

That this was the object of the claim also clearly emerges from the request for the
indication of interim measures of protection, submitted to the Court by the Applicant on
9 May 1973, in which it was observed:

"As is stated in the Application, Australia has sought to obtain from the French Republic
a permanent undertaking to refrain from [p 261] further atmospheric nuclear tests in the
Pacific. However, the French Republic has expressly refused to give any such
undertaking. It was made clear in a statement in the French Parliament on 2 May 1973
by the French Secretary of State for the Armies that the French Government, regardless
of the protests made by Australia and other countries, does not envisage any
cancellation or modification of the programme of nuclear testing as originally planned."
(Para. 69.)

27. Further light is thrown on the nature of the Australian claim by the reaction of
Australia, through its Attorney-General, to statements, referred to in paragraph 20
above, made on behalf of France and relating to nuclear tests in the South Pacific
Ocean. In the course of the oral proceedings, the Attorney-General of Australia outlined
the history of the dispute subsequent to the Order of 22 June 1973, and included in this
review mention of a communique issued by the Office of the President of the French
Republic on 8 June 1974. The Attorney-General's comments on this document indicated
that it merited analysis as possible evidence of a certain development in the controversy
between the Parties, though at the same time he made it clear that this development
was not, in his Government's view, of such a nature as to resolve the dispute to its
satisfaction. More particularly he reminded the Court that "Australia has consistently
stated that it would welcome a French statement to the effect that no further
atmospheric nuclear tests would be conducted . . . but no such assurance was given".
The Attorney-General continued, with reference to the communique of 8 June:

"The concern of the Australian Government is to exclude completely atmospheric

testing. It has repeatedly sought assurances that atmospheric tests will end. It has not
received those assurances. The recent French Presidential statement cannot be read
as a firm, explicit and binding undertaking to refrain from further atmospheric tests. It
follows that the Government of France is still reserving to itself the right to carry out
atmospheric nuclear tests." (Hearing of 4 July 1974.)
 II. CUSTOMARY INTERNATIONAL LAW

It is clear from these statements that if the French Government had given what could
have been construed by Australia as "a firm, explicit and binding undertaking to refrain
from further atmospheric tests", the applicant Government would have regarded its
objective as having been achieved.

28. Subsequently, on 26 September 1974, the Attorney-General of Australia, replying to

a question put in the Australian Senate with regard to reports that France had
announced that it had finished atmospheric nuclear testing, said:

"From the reports I have received it appears that what the French Foreign Minister
actually said was 'We have now reached a stage in [p 262] our nuclear technology that
makes it possible for us to continue our program by underground testing, and we have
taken steps to do so as early as next year' . . . this statement falls far short of a
commitment or undertaking that there will be no more atmospheric tests conducted by
the French Government at its Pacific Tests Centre . . . There is a basic distinction
between an assertion that steps are being taken to continue the testing program by
underground testing as early as next year and an assurance that no further atmospheric
tests will take place. It seems that the Government of France, while apparently taking a
step in the right direction, is still reserving to itself the right to carry out atmospheric
nuclear tests. In legal terms, Australia has nothing from the French Government which
protects it against any further atmospheric tests should the French Government
subsequently decide to hold them."

Without commenting for the moment on the Attorney-General's interpretation of the

French statements brought to his notice, the Court would observe that it is clear that the
Australian Government contemplated the possibility of "an assurance that no further
atmospheric tests will take place" being sufficient to protect Australia.

29. In the light of these statements, it is essential to consider whether the Government
of Australia requests a judgment by the Court which would only state the legal
relationship between the Applicant and the Respondent with regard to the matters in
issue, or a judgment of a type which in terms requires one or both of the Parties to take,
or refrain from taking, some action. Thus it is the Court's duty to isolate the real issue in
the case and to identify the object of the claim. It has never been contested that the
Court is entitled to interpret the submissions of the parties, and in fact is bound to do so;
this is one of the attributes of its judicial functions. It is true that, when the claim is not
properly formulated because the submissions of the parties are inadequate, the Court
has no power to "substitute itself for them and formulate new submissions simply on the
basis of arguments and facts advanced" (P.C.I.J., Series A, No. 7, p. 35), but that is not
the case here, nor is it a case of the reformulation of submissions by the Court. The
 II. CUSTOMARY INTERNATIONAL LAW

Court has on the other hand repeatedly exercised the power to exclude, when
necessary, certain contentions or arguments which were advanced by a party as part of
the submissions, but which were regarded by the Court, not as indications of what the
party was asking the Court to decide, but as reasons advanced why the Court should
decide in the sense contended for by that party. Thus in the Fisheries case, the Court
said of nine of the thirteen points in the Applicant's submissions: "These are elements
which might furnish reasons in support of the Judgment, but cannot constitute the
decision" [p 263] (I.C.J. Reports 1951, p. 126). Similarly in the Minquiers and Ecrehos
case, the Court observed that:

"The Submissions reproduced above and presented by the United Kingdom

Government consist of three paragraphs, the last two being reasons underlying the first,
which must be regarded as the final Submission of that Government. The Submissions
of the French Government consist of ten paragraphs, the first nine being reasons
leading up to the last, which must be regarded as the final Submission of that
Government." (I.C.J. Reports 1953, p. 52; see also Nottebohm, Second Phase,
Judgment, I.C.J. Reports 1955, p. 16.)

30. In the circumstances of the present case, although the Applicant has in its
Application used the traditional formula of asking the Court "to adjudge and declare" (a
formula similar to those used in the cases quoted in the previous paragraph), the Court
must ascertain the true object and purpose of the claim and in doing so it cannot confine
itself to the ordinary meaning of the words used; it must take into account the
Application as a whole, the arguments of the Applicant before the Court, the diplomatic
exchanges brought to the Court's attention, and public statements made on behalf of
the applicant Government. If these clearly circumscribe the object of the claim, the
interpretation of the submissions must necessarily be affected. In the present case, it is
evident that the fons et origo of the case was the atmospheric nuclear tests conducted
by France in the South Pacific region, and that the original and ultimate objective of the
Applicant was and has remained to obtain a termination of those tests; thus its claim
cannot be regarded as being a claim for a declaratory judgment. While the judgment of
the Court which Australia seeks to obtain would in its view have been based on a
finding by the Court on questions of law, such finding would be only a means to an end,
and not an end in itself. The Court is of course aware of the role of declaratory
judgments, but the present case is not one in which such a judgment is requested.

31. In view of the object of the Applicant's claim, namely to prevent further tests, the
Court has to take account of any developments, since the filing of the Application,
bearing upon the conduct of the Respondent. Moreover, as already mentioned, the
Applicant itself impliedly recognized the possible relevance of events subsequent to the
Application, by drawing the Court's attention to the communique of 8 June 1974, and
 II. CUSTOMARY INTERNATIONAL LAW

making observations thereon. In these circumstances the Court is bound to take note of
further developments, both prior to and subsequent to the close of the oral proceedings
in view of the non-appearance of the Respondent, it is especially incumbent upon the
Court to satisfy itself that it is in possession of all the available facts.

32. At the hearing of 4 July 1974, in the course of a review of developments in relation
to the proceedings since counsel for Australia had [p 264] previously addressed the
Court in May 1973, the Attorney-General of Australia made the following statement:

"You will recall 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 1973, 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 programme
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."

He devoted considerable attention to a communique dated 8 June 1974 from the Office
of the President of the French Republic, and submitted to the Court the Australian
Government's interpretation of that document. Since that time, certain French
authorities have made a number of consistent public statements concerning future tests,
which provide material facilitating the Court's task of assessing the Applicant's
interpretation of the earlier documents, and which indeed require to be examined in
order to discern whether they embody any modification of intention as to France's future
conduct. It is true that these statements have not been made before the Court, but they
are in the public domain, and are known to the Australian Government, and one of them
was commented on by the Attorney-General in the Australian Senate on 26 September
1974. It will clearly be necessary to consider all these statements, both that drawn to the
Court's attention in July 1974 and those subsequently made.

33. It would no doubt have been possible for the Court, had it considered that the
interests of justice so required, to have afforded the Parties the opportunity, e.g., by
reopening the oral proceedings, of addressing to the Court comments on the statements
made since the close of those proceedings. Such a course however would have been
fully justified only if the matter dealt with in those statements had been completely new,
 II. CUSTOMARY INTERNATIONAL LAW

had not been raised during the proceedings, or was unknown to the Parties. This is
manifestly not the case. The essential material which the Court must examine was
introduced into the proceedings by the Applicant itself, by no means incidentally, during
the course of the hearings, when it drew the Court's attention to a statement by the
French authorities made prior to that date, submitted the documents containing it and
presented an interpretation of its character, touching particularly upon the question
whether it contained a firm assurance. Thus both the statement and the Australian
interpretation of it are before [p 265] the Court pursuant to action by the Applicant.
Moreover, the Applicant subsequently publicly expressed its comments (see paragraph
28 above) on statements made by the French authorities since the closure of the oral
proceedings. The Court is therefore in possession not only of the statements made by
French authorities concerning the cessation of atmospheric nuclear testing, but also of
the views of the Applicant on them. Although as a judicial body the Court is conscious of
the importance of the principle expressed in the maxim audi alteram partem, it does not
consider that this principle precludes the Court from taking account of statements made
subsequently to the oral proceedings, and which merely supplement and reinforce
matters already discussed in the course of the proceedings, statements with which the
Applicant must be familiar. Thus the Applicant, having commented on the statements of
the French authorities, both that made prior to the oral proceedings and those made
subsequently, could reasonably expect that the Court would deal with the matter and
come to its own conclusion on the meaning and effect of those statements. The Court,
having taken note of the Applicant's comments, and feeling no obligation to consult the
Parties on the basis for its decision finds that the reopening of the oral proceedings
would serve no useful purpose.

34. It will be convenient to take the statements referred to above in chronological order.
The first statement is contained in the communique issued by the Office of the President
of the French Republic on 8 June 1974, shortly before the commencement of the 1974
series of French nuclear tests:

"The Decree reintroducing the security measures in the South Pacific nuclear test zone
has been published in the Official Journal of 8 June 1974.

The Office of the President of the Republic takes this opportunity of stating that in view
of the stage reached in carrying out the French nuclear defence programme 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."

A copy of the communique was transmitted with a Note dated 11 June 1974 from the
French Embassy in Canberra to the Australian Department of Foreign Affairs, and as
 II. CUSTOMARY INTERNATIONAL LAW

already mentioned, the text of the communique was brought to the attention of the Court
in the course of the oral proceedings.

35. In addition to this, the Court cannot fail to take note of a reference to a document
made by counsel at a public hearing in the proceedings, parallel to this case, instituted
by New Zealand against France on 9 May 1973. At the hearing of 10 July 1974 in that
case, the Attorney-General of New Zealand, after referring to the communique of 8 June
1974, mentioned above, stated that on 10 June 1974 the French Embassy in Wellington
sent a Note to the New Zealand Ministry of Foreign Affairs, containing a passage which
the Attorney General read out, and which, in the translation used by New Zealand, runs
as follows: [p 266]

"France, at the point which has been reached in the execution of its programme of
defence by nuclear means, will be in a position to move to the stage of underground
tests, as soon as the test series planned for this summer is completed.

Thus the atmospheric tests which are soon to be carried out will, in the normal course of
events, be the last of this type."

36. The Court will also have to consider the relevant statements made by the French
authorities subsequently to the oral proceedings: on 25 July 1974 by the President of
the Republic; on 16 August 1974 by the Minister of Defence; on 25 September 1974 by
the Minister for Foreign Affairs in the United Nations General Assembly; and on 11
October 1974 by the Minister of Defence.

37. The next statement to be considered, therefore, will be that made on 25 July at a
press conference given by the President of the Republic, when he said:

". . . on this question of nuclear tests, you know that the Prime Minister had publicly
expressed himself in the National Assembly in his speech introducing the Government's
programme. He had indicated that French nuclear testing would continue. I had myself
made it clear that this round of atmospheric tests would be the last, and so the
members of the Government were completely informed of our intentions in this respect .
. ."

38. On 16 August 1974, in the course of an interview on French television, the Minister
of Defence said that the French Government had done its best to ensure that the 1974
nuclear tests would be the last atmospheric tests.

39. On 25 September 1974, the French Minister for Foreign Affairs, addressing the
United Nations General Assembly, said:
 II. CUSTOMARY INTERNATIONAL LAW

"We have now reached a stage in our nuclear technology that makes it possible for us
to continue our programme by underground testing, and we have taken steps to do so
as early as next year."

40. On 11 October 1974, the Minister of Defence held a press conference during which
he stated twice, in almost identical terms, that there would not be any atmospheric tests
in 1975 and that France was ready to proceed to underground tests. When the
comment was made that he had not added "in the normal course of events", he agreed
that he had not. This latter point is relevant in view of the passage from the Note of 10
June 1974 from the French Embassy in Wellington to the Ministry of Foreign Affairs of
New Zealand, quoted in paragraph 35 above, to the effect that the atmospheric tests
contemplated "will, in the normal course of events, be the last of this type". The Minister
also mentioned that, whether or not other governments had been officially advised of
the [p 267] decision, they could become aware of it through the press and by reading
the communiques issued by the Office of the President of the Republic.

41. In view of the foregoing, the Court finds that France made public its intention to
cease the conduct of atmospheric nuclear tests following the conclusion of the 1974
series of tests. The Court must in particular take into consideration the President's
statement of 25 July 1974 (paragraph 37 above) followed by the Defence Minister's
statement on 11 October 1974 (paragraph 40). These reveal that the official statements
made on behalf of France concerning future nuclear testing are not subject to whatever
proviso, if any, was implied by the expression "in the normal course of events
[normalement]".

***

42. Before considering 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, it is first necessary to determine the status and
scope on the international plane of these declarations.

43. 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. Declarations
of this kind may be, and often are, very specific. When it is the intention of the State
making the declaration that it should become bound according to its terms, that intention
confers on the declaration the character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct consistent with the declaration.
An undertaking of this kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations, is binding. In these
 II. CUSTOMARY INTERNATIONAL LAW

circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance
of the declaration, nor even any reply or reaction from other States, is required for the
declaration to take effect, since such a requirement would be inconsistent with the
strictly unilateral nature of the juridical act by which the pronouncement by the State
was made.

44. Of course, not all unilateral acts imply obligation; but a State may choose to take up
a certain position in relation to a particular matter with the intention of being bound -- the
intention is to be ascertained by interpretation of the act. When States make statements
by which their freedom of action is to be limited, a restrictive interpretation is called for.

45. With regard to the question of form, it should be observed that this is not a domain
in which international law imposes any special or strict requirements. Whether a
statement is made orally or in writing makes no essential difference, for such statements
made in particular circumstances may create commitments in international law, which
does not require that they should be couched in written form. Thus the ques-[p 268] tion
of form is not decisive. As the Court said in its Judgment on the preliminary objections in
the case concerning the Temple of Preah Vihear:

"Where . . . as is generally the case in international law, which places the principal
emphasis on the intentions of the parties, the law prescribes no particular form, parties
are free to choose what form they please provided their intention clearly results from it."
(I.C.J. Reports 1961, p. 31 .)

The Court further stated in the same case: ". . . the sole relevant question is whether the
language employed in any given declaration does reveal a clear intention. . ." (ibid., p.
32).

46. One of the basic principles governing the creation and performance of legal
obligations, whatever their source, is the principle of good faith. Trust and confidence
are inherent in international co-operation, in particular in an age when this co-operation
in many fields is becoming increasingly essential. Just as the very rule of pacta sunt
servanda in the law of treaties is based on good faith, so also is the binding character of
an international obligation assumed by unilateral declaration. Thus interested States
may take cognizance of unilateral declarations and place confidence in them, and are
entitled to require that the obligation thus created be respected.

***
 II. CUSTOMARY INTERNATIONAL LAW

47. Having examined the legal principles involved, the Court will now turn to the
particular statements made by the French Government. The Government of Australia
has made known to the Court at the oral proceedings its own interpretation of the first
such statement (paragraph 27 above). As to subsequent statements, reference may be
made to what was said in the Australian Senate by the Attorney-General on 26
September 1974 (paragraph 28 above). In reply to a question concerning reports that
France had announced that it had finished atmospheric nuclear testing, he said that the
statement of the French Foreign Minister on 25 September (paragraph 39 above) "falls
far short of an undertaking that there will be no more atmospheric tests conducted by
the French Government at its Pacific Tests Centre" and that France was "still reserving
to itself the right to carry out atmospheric nuclear tests" so that "In legal terms, Australia
has nothing from the French Government which protects it against any further
atmospheric tests".

48. It will be observed that Australia has recognized the possibility of the dispute being
resolved by a unilateral declaration, of the kind specified above, on the part of France,
and its conclusion that in fact no "commitment" or "firm, explicit and binding
undertaking" had been given is based on the view that the assurance is not absolute in
its terms, [p 269] that there is a "distinction between an assertion that tests will go
underground and an assurance that no further atmospheric tests will take place", that
"the possibility of further atmospheric testing taking place after the commencement of
underground tests cannot be excluded" and that thus "the Government of France is still
reserving to itself the right to carry out atmospheric nuclear tests". The Court must
however form its own view of the meaning and scope intended by the author of a
unilateral declaration which may create a legal obligation, and cannot in this respect be
bound by the view expressed by another State which is in no way a party to the text.

49. Of the statements by the French Government now before the Court, the most
essential are clearly those made by the President of the Republic. There can be no
doubt, in view of his functions, that his public communications or statements oral or
written, as Head of State, are in international relations acts of the French State. His
statements, and those of members of the French Government acting under his
authority, up to the last statement made by the Minister of Defence (of 11 October
1974), constitute a whole. Thus, in whatever form these statements were expressed,
they must be held to constitute an engagement of the State, having regard to their
intention and to the circumstances in which they were made.

50. The unilateral statements of the French authorities were made outside the Court,
publicly and erga omnes, even though the first of them was communicated to the
Government of Australia. As was observed above, to have legal effect, there was no
need for these statements to be addressed to a particular State, nor was acceptance by
 II. CUSTOMARY INTERNATIONAL LAW

any other State required. The general nature and characteristics of these statements
are decisive for the evaluation of the legal implications, and it is to the interpretation of
the statements that the Court must now proceed. The Court is entitled to presume, at
the outset, that these statements were not made in vacuo, but in relation to the tests
which constitute the very object of the present proceedings, although France has not
appeared in the case.

51. In announcing that the 1974 series of atmospheric tests would be the last, the
French Government conveyed to the world at large, including the Applicant, its intention
effectively to terminate these tests. It was bound to assume that other States might take
note of these statements and rely on their being effective. The validity of these
statements and their legal consequences must be considered within the general
frame-work of the security of international intercourse, and the confidence and trust
which are so essential in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The objects of these statements are
clear and they were addressed to the international community as a whole, and the Court
holds that they constitute an undertaking possessing legal effect. The Court considers
[p 270] that the President of the Republic, in deciding upon the effective cessation of
atmospheric tests, gave an undertaking to the international community to which his
words were addressed. It is true that the French Government has consistently
maintained, for example in a Note dated 7 February 1973 from the French Ambassador
in Canberra to the Prime Minister and Minister for Foreign Affairs of Australia, that it
"has the conviction that its nuclear experiments have not violated any rule of
international law", nor did France recognize that it was bound by any rule of
international law to terminate its tests, but this does not affect the legal consequences of
the statements examined above. The Court finds that the unilateral undertaking
resulting from these statements cannot be interpreted as having been made in implicit
reliance on an arbitrary power of reconsideration. The Court finds further that the
French Government has undertaken an obligation the precise nature and limits of which
must be understood in accordance with the actual terms in which they have been
publicly expressed.

52. Thus the Court faces a situation in which the objective of the Applicant has in effect
been accomplished, inasmuch as the Court finds that France has undertaken the
obligation to hold no further nuclear tests in the atmosphere in the South Pacific.

53. The Court finds that no question of damages arises in the present case, since no
such claim has been raised by the Applicant either prior to or during the proceedings,
and the original and ultimate objective of Applicant has been to seek protection "against
any further atmospheric test" (see paragraph 28 above).
 II. CUSTOMARY INTERNATIONAL LAW

54. It would of course have been open to Australia, if it had considered that the case
had in effect been concluded, to discontinue the proceedings in accordance with the
Rules of Court. If it has not done so, this does not prevent the Court from making its
own independent finding on the subject. It is true that "the Court cannot take into
account declarations, admissions or proposals which the Parties may have made during
direct negotiations between themselves, when such negotiations have not led to a
complete agreement" (Factory at Chorzów (Merits), P.C.I.J., Series A, No. 17, p. 51).
However, in the present case, that is not the situation before the Court. The Applicant
has clearly indicated what would satisfy its claim, and the Respondent has
independently taken action; the question for the Court is thus one of interpretation of the
conduct of each of the Parties. The conclusion at which the Court has arrived as a result
of such interpretation does not mean that it is itself effecting a compromise of the claim;
the Court is merely ascertaining the object of the claim and the effect of the
Respondent's action, and this it is obliged to do. Any suggestion that the dispute would
not be capable of being terminated by statements made on behalf of France would run
counter to the unequivocally expressed views of the Applicant both before the Court and
elsewhere.

55. The Court, as a court of law, is called upon to resolve existing disputes between
States. Thus the existence of a dispute is the primary [p 271] condition for the Court to
exercise its judicial function; it is not sufficient for one party to assert that there is a
dispute, since "whether there exists an international dispute is a matter for objective
determination" by the Court (Interpretation of Peace Treaties with Bulgaria, Hungary
and Romania (First Phase), Advisory Opinion, I.C.J. Reports 1950, p. 74). The dispute
brought before it must therefore continue to exist at the time when the Court makes its
decision. It must not fail to take cognizance of a situation in which the dispute has
disappeared because the object of the claim has been achieved by other means. If the
declarations of France concerning the effective cessation of the nuclear tests have the
significance described by the Court, that is to say if they have caused the dispute to
disappear, all the necessary consequences must be drawn from this finding.

56. It may be argued that although France may have undertaken such an obligation, by
a unilateral declaration, not to carry out atmospheric nuclear tests in the South Pacific
Ocean, a judgment of the Court on this subject might still be of value because, if the
judgment upheld the Applicant's contentions, it would reinforce the position of the
Applicant by affirming the obligation of the Respondent. However, the Court having
found that the Respondent has assumed an obligation as to conduct, concerning the
effective cessation of nuclear tests, no further judicial action is required. The Applicant
has repeatedly sought from the Respondent an assurance that the tests would cease,
and the Respondent has, on its own initiative made a series of statements to the effect
 II. CUSTOMARY INTERNATIONAL LAW

that they will cease. Thus the Court concludes that, the dispute having disappeared, the
claim advanced by Australia no longer has any object. It follows that any further finding
would have no raison d'être.

57. This is not to say that the Court may select from the cases submitted to it those it
feels suitable for judgment while refusing to give judgment in others. Article 38 of the
Court's Statute provides that its function is "to decide in accordance with international
law such disputes as are submitted to it"; but not only Article 38 itself but other
provisions of the Statute and Rules also make it clear that the Court can exercise its
jurisdiction in contentious proceedings only when a dispute genuinely exists between
the parties. In refraining from further action in this case the Court is therefore merely
acting in accordance with the proper interpretation of its judicial function.

58. The Court has in the Dast indicated considerations which would lead it to decline to
give judgment. The present case is one in which "circumstances that have . . . arisen
render any adjudication devoid of purpose" (Northern Cameroons, Judgment, I.C.J.
Reports 1963, p. 38). The Court therefore sees no reason to allow the continuance of
proceedings which it knows are bound to be fruitless. While judicial settlement may
provide a path to international harmony in circumstances of conflict, it is none the less
true that the needless continuance of litigation is an obstacle to such harmony.

59. Thus the Court finds that no further pronouncement is required [p 272] in the
present case. It does not enter into the adjudicatory functions of the Court to deal with
issues in abstracto, once it has reached the conclusion that the merits of the case no
longer fall to be determined. The object of the claim having clearly disappeared, there is
nothing on which to give judgment.

***

60. Once the Court has found that a State has entered into a commitment concerning its
future conduct it is not the Court's function to contemplate that it will not comply with it.
However, the Court observes that if the basis of this Judgment were to be affected, the
Applicant could request an examination of the situation in accordance with the
provisions of the Statute; the denunciation by France, by letter dated 2 January 1974, of
the General Act for the Pacific Settlement of International Disputes, which is relied on as
a basis of jurisdiction in the present case, cannot by itself constitute an obstacle to the
presentation of such a request.

***
 II. CUSTOMARY INTERNATIONAL LAW

61. In its above-mentioned Order of 22 June 1973, the Court stated that the provisional
measures therein set out were indicated "pending its final decision in the proceedings
instituted on 9 May 1973 by Australia against France". It follows that such Order ceases
to be operative upon the delivery of the present Judgment, and that the provisional
measures lapse at the same time.

***

62. For these reasons,

The Court,

by nine votes to six,

finds that the claim of Australia no longer has any object and that the Court is therefore
not called upon to give a decision thereon.

Done in English and in French, the English text being authoritative, at the Peace
Palace, The Hague, this twentieth day of December, one thousand nine hundred and
seventy-four, in three copies, one of which will be placed in the archives of the Court
and the others transmitted to the Government of Australia and the Government of the
French Republic, respectively.

(Signed) Manfred Lachs,

President.

(Signed) S. Aquarone,
Registrar.

[p 273]

President Lachs makes the following declaration:

Good administration of justice and respect for the Court require that the outcome of its
deliberations be kept in strict secrecy and nothing of its decision be published until it is
officially rendered. It was therefore regrettable that in the present case, prior to the
public reading of the Court's Order of 22 June 1973, a statement was made and press
reports appeared which exceeded what is legally admissible in relation to a case sub
judice.
 II. CUSTOMARY INTERNATIONAL LAW

The Court was seriously concerned with the matter and an enquiry was ordered in the
course of which all possible avenues accessible to the Court were explored.

The Court concluded, by a resolution of 21 March 1974, that its investigations had not
enabled it to identify any specific source of the statements and reports published.

I remain satisfied that the Court had done everything possible in this respect and that it
dealt with the matter with all the seriousness for which it called.

Judges Bengzon, Onyeama, Dillard, Jimenez de Arechaga and Sir Humphrey Waldock
make the following joint declaration:

Certain criticisms have been made of the Court's handling of the matter to which the
President alludes in the preceding declaration. We wish by our declaration to make it
clear that we do not consider those criticisms to be in any way justified.

The Court undertook a lengthy examination of the matter by the several means at its
disposal: through its services, by convoking the Agent for Australia and having him
questioned, and by its own investigations and enquiries. Any suggestion that the Court
failed to treat the matter with all the seriousness and care which it required is, in our
opinion, without foundation. The seriousness with which the Court regarded the matter
is indeed reflected and emphasized in the communiques which it issued, first on 8
August 1973 and subsequently on 26 March 1974.
The examination of the matter carried out by the Court did not enable it to identify any
specific source of the information on which were based the statements and press
reports to which the President has referred. When the Court, by eleven votes to three,
decided to conclude its examination it did so for the solid reason that to pursue its
investigations and inquiries would in its view, be very unlikely to produce further useful
information. [p 274]

Judges Forster, Gros, Petren and Ignacio-Pinto append separate opinions to the
Judgment of the Court.

Judges Onyeama, Dillard, Jimenez de Arechaga and Sir Humphrey Waldock append a
joint dissenting opinion, and Judge De Castro and Judge ad hoc Sir Garfield Barwick
append dissenting opinions to the Judgment of the Court.

(Initialled) M.L.

(Initialled) S.A.
 II. CUSTOMARY INTERNATIONAL LAW

[p 275]
Separate opinion of judge Forster

[Translation]

I voted in favour of the Judgment of 20 December 1974 whereby the International Court
of Justice has brought to an end the proceedings instituted against France by Australia
on account of the French nuclear tests carried out at Mururoa, a French possession in
the Pacific.

The Court finds in this Judgment that the Australian claim "no longer has any object and
that" it "is therefore not called upon to give a decision thereon".

Thus end the proceedings.

I wish, however, to make the following clear:

That the Australian claim was without object was apparent to me from the very first, and
not merely subsequent to the recent French statements: in my view it lacked object ab
initio, and radically.

The recent French statements adduced in the reasoning of the Judgment do no more
than supplement (to useful purpose, I admit) what I conceived to be the legal arguments
for removal of the case from the Court's list. But there would be no point in rehearsing
these arguments now that the proceedings are over.

I wish, finally, to state in terms that I personally have noted nothing in the French
statements which could be interpreted as an admission of any breach of positive
international law; neither have I observed in them anything whatever bearing any
resemblance to a concession wrested from France by means of the judicial proceedings
and implying the least abandonment of that absolute sovereignty which France, like any
other State, possesses in the domain of its national defence.

As for the transition from atmospheric to underground tests, I see it simply as a

technical step forward which was due to occur; that, and no more.

(Signed) I. Forster.

[p 276]
 II. CUSTOMARY INTERNATIONAL LAW

Separate Opinion of Judge Gros

[Translation]

Although my opinion on this case is not based on the Court's reasoning as set out in the
grounds of the Judgment, I voted in favour of the operative clause because the
Judgment puts an end to the action commenced by the Applicant, and this coincides
with the views of those who took the view, as long ago as the first phase of the Court's
study of the case in June 1973, that there was no legal dispute. By finding that, today at
least, the case between the two States no longer has any object, the Court puts an end
to it by other means.

The Court has taken as legal basis of its Judgment the need to settle this question of
the existence of the object of the dispute as absolutely preliminary, even in relation to
questions concerning its jurisdiction and other questions relating to admissibility. The
Judgment only deals with the disappearance of the object of the claim, and no decision
has been taken on the questions concerning the Court's lack of jurisdiction or the
inadmissibility of the claim; it is thus inappropriate to deal with these questions. But
there remains the problem of the non-existence, from the outset of the case submitted
to the Court, of any justiciable dispute, and on this point I find it necessary to make
some observations.

1. In order to ascertain whether the proceedings were without foundation at the outset,
the Application instituting proceedings, dated 9 May 1973, which defines the object of
the claim, must clearly be taken as point of departure. The Applicant asked the Court to
"order that the French Republic shall not carry out any further such tests" [sc.,
atmospheric tests of nuclear weapons in the South Pacific]. This request is based on 22
lines of legal argument which makes up for its brevity by observing finally that, for these
reasons "or for any other reason that the Court deems to be relevant, the carrying out of
further ... tests is not consistent with applicable rules of international law". I have had
occasion in another case to recall that submissions, in the strict sense, have frequently
been confused with reasons in support, a practice which has been criticized by Judge
Basdevant (I.C.J. Reports 1974, pp. 137 ff.); such confusion still occurs however, and is
particularly apparent in this case. In order to have these nuclear tests prohibited for the
future, the Applicant had to base its contention, however elliptically, on rules of law
which were opposable to the Respondent, rules which in its Application it left it to the
Court to discover and select. But it is not apparent how it is possible to find in these few
lines which precede the formulation of the claim, and which are both formally and
logically distinct from it, a request for a declaratory judgment by the Court as to the
unlawfulness of the tests. The question
 II. CUSTOMARY INTERNATIONAL LAW

[p 277] raised is that of prohibition of French tests in the South Pacific region inasmuch
as all nuclear tests, wherever and by whoever conducted, are, according to the
Applicant, unlawful. Legal grounds, i.e., the unlawfulness of the tests, therefore had to
be shown in order to achieve the object of the claim, namely a judicial prohibition. The
submission, in the strict sense, was the prayer for prohibition, and the unlawfulness was
the reasoning justifying it.

2. The rule is that the Court is seised of the precise object of the claim in the way in
which this has been formulated. The present case consisted in a claim for prohibition of
atmospheric tests on the ground that they were unlawful. This is a procedure for
establishing legality (contentieux de legalite), not a procedure for establishing
responsibility (contentieux de responsabilite), with which the Application does not
concern itself. In order to succeed the Applicant had to show that its claim for prohibition
of French atmospheric tests was based on conduct by the French Government which
was contrary to rules of international law which were opposable to that Government.

But it is not sufficient to put a question to the Court, even one which as presented is
apparently a legal question, for there to be, objectively, a dispute. The situation is well
described by the words of Judge Morelli: "The mere assertion of the existence of a
dispute by one of the parties does not prove that such a dispute really exists" (J.C.J.
Reports 1962, p. 565; see also pp. 564 and 566-568), and even at the time of the Order
of 22 June 1973 I had raised this question, when I referred to "an unreal dispute" (I.C.J.
Reports 1973, p. 118) and "a dispute which [a State] alleges not to exist" (ibid., p. 120). I
then emphasized the preliminary nature, particularly in a case of failur to appear, of
examination of the question of the real existence of the dispute before a case can be
dealt with by the Court in the regular exercise of its judicial function. By deciding to
effect such preliminary examination, after many delays, and without any reference to the
voluntary absence of one of the Parties, the Court is endorsing the principle that
examination of the question of the reality of the dispute is necessarily a matter which
takes priority. This point is thus settled. There was nothing in the Court's procedure to
prevent examination in June 1973 of the question whether the dispute described to the
Court by the Applicant was, and had been from the outset, lacking in any real existence.

3. When several reasons are invoked before the Court in support of the contention that
a case may not be judged on the merits—whether these reasons concern lack of
jurisdiction or inadmissibility—the Court has always taken the greatest possible care not
to commit itself either to any sort of classification of these various grounds, any of which
may lead to dismissal of the claim, or to any sort of ranking of them in order. In the
Northern Cameroons case, the Court refused to establish any system for these
problems, or to define admissibility and interest, while analysing in detail the facts of the
case which enabled it to arrive at its decision (cf. I.C.J. Reports 1963, p. 28): [p 278]
 II. CUSTOMARY INTERNATIONAL LAW

"The arguments of the Parties have at times been at cross-purposes because of the
absence of a common meaning ascribed to such terms as 'interest' and 'admissibility'.
The Court recognizes that these words in differing contexts may have varying
connotations but it does not find it necessary in the present case to explore the meaning
of these terms. For the purposes of the present case, a factual analysis undertaken in
the light of certain guiding principles may suffice to conduce to the resolution of the
issues to which the Court directs its attention."

And further on, at page 30: "... it is always a matter for the determination of the Court
whether its judicial functions are involved."

Thus the principle which the Court applies is a common-sense one: if a finding is
sufficient in itself to settle the question of the Court's competence, in the widest sense of
the word, that is to say to lead to the conclusion that it is impossible to give judgment in
a case, there is no need to proceed to examine other grounds. For there to be any
proceedings on the merits, the litigation must have an object capable of being the
subject of a judgment consistently with the role attributed to the Court by its Statute; in
the present case, where numerous objections as to lack of jurisdiction and
inadmissibility were raised, the question of the absence of any object of the proceedings
was that which had to be settled first for this very reason, namely that if it were held to
be well founded, the case would disappear without further discussion. The concept of a
merits phase has no meaning in an unreal case, any more than has the concept of a
jurisdic-tion/admissibility phase, still less that of an interim measures phase, on the
fallacious pretext that such measures in no way prejudge the final decision (on this
point, see dissenting opinion appended to the Order of 22 June 1973, p. 123). In a case
in which everything depends on recog-nizing that an Application is unfounded and has
no raison d'être, and that there was no legal dispute of which the Court could be seised,
a marked taste for formalism is required to rely on the inviolability of the usual
categories of phases. To do so would be to erect the succession of phases in
examination of cases by the Court into a sort of ritual, totally unjustified in the general
conception of international law, which is not formalistic. These are procedural practices
of the Court, which organizes its procedure according to the requirements of the
interests of justice. Article 48 of the Statute, by entrusting the "conduct of the case" to
the Court, did not impose any limitation on the exercise of this right by subjecting it to
formalistic rules, and the institution of phases does not necessarily require successive
stages in the examination of every case, either for the parties or for the Court.

4. To wait several years—more than a year and a half has already elapsed—in order to
reach the unhurried conclusion that a court is competent merely because the two States
are formally bound by a jurisdictional clause, without examining the scope of that
 II. CUSTOMARY INTERNATIONAL LAW

clause, and then to join the questions of admissibility to the merits, only subse-[p 279]
quently to arrive (perhaps) at the conclusion on the merits that there were no merits,
would not be a good way of administering justice.

The observation that, on this view of the matter, a State which declined to appear would
more rapidly be rid of proceedings than a State which replied by raising preliminary
objections, is irrelevant; apart from the problem of non-appearance (on this point cf.
paras. 23 to 29 below), when the hypothesis arises that the case is an unreal one, with
the possible implication that there was a misuse of the right of seising the Court, there is
no obvious reason why a decision should be delayed unless from force of habit or
routine.

In the Judgment of 21 December 1962 in the South West Africa cases, (I.C.J. Reports
1962, p. 328), the Court, before examining the preliminary objections to jurisdiction and
admissibility raised by the Respondent, itself raised proprio motu the problem of the
existence of a genuine dispute between the Applicants and the Respondent (see also
the opinion of Judge Morelli on this point, I.C.J. Reports 1962, pp. 564-568).

5. The facts of the case leave no room for doubt, in my opinion, that there was no
dispute even at the time of the filing of the Application.

In the series of diplomatic Notes addressed to the French Government by the Australian
Government between 1963 and the end of 1972 (Application, pp. 34-48), at no time was
the argument of the unlawfulness of the French tests advanced to justify a claim for
cessation of such tests, based on rules of international law opposable to the French
Government. The form of protests used expresses "regrets" that the French
Government should carry out such tests, and mention is made of the "deep concern"
aroused among the peoples of the area (Application, pp. 42, 44 and 46). So little was it
thought on the Australian side that there was a rule which could be invoked against
France's tests that it is said that the Government of Australia would like "to see
universally applied and accepted" the 1963 test ban treaty (Note of 2 April 1970,
Application, p. 44; in the same terms exactly, Note of 20 April 1971, Application, p. 46,
and Note of 29 March 1972, Application, p. 48). There is no question of unlawfulness,
nor of injury caused by the tests and international responsibility, but merely of opposition
in principle to all nuclear tests by all States, with complete consistency up to the Note of
3 January 1973, in which for the first time the Australian Government invites the French
Government "to refrain from any further . . . tests", which it regards as unlawful
(Application, Ann. 9, p. 51); this, then, was the Note which, by a complete change of
attitude, paved the way to the lawsuit.
 II. CUSTOMARY INTERNATIONAL LAW

The reason for the change was given by the Australian Government in paragraph 14 of
its Application:

"In its Note [of 3 January 1973], the Australian Government indicated explicitly that in its
view the French tests were unlawful and unless the French Government could give full
assurances that no further tests would be carried out, the only course open to the
Australian Government would be the pursuit of appropriate interna-[p 280]tional legal
remedies. In thus expressing more forcefully the point of view previously expounded on
behalf of Australia, the Government was reflecting very directly the conviction of the
Australian people who had shortly before elected a Labour Administration, pledged to a
platform which contained the following statement: 'Labour opposes the development,
proliferation, possession and use of nuclear, chemical and bacteriological weapons'."
(Application, pp. 8-10.)

In the succeeding paragraph 15 the following will also be noticed: "The Government of
Australia claimed [in its Notes of 3 January and 7 February 1973] that the continuance
of testing by France is illegal and called for the cessation of tests."

6. Thus the basis of the discussion is no longer the same; it is "claimed" that the tests
are unlawful, and France is "invited" to stop them because the Labour Party is opposed
to the development, possession and use of nuclear weapons, and the Government is
bound by its electoral programme. This reason, the change of government, is totally
irrelevant; a State remains bound by its conduct in international relations, whatever
electoral promises may have been made. If for ten years Australian governments have
treated tests in the Pacific as unwelcome but not unlawful, subject to certain protests on
principle and demonstrations of concern, an electoral programme is not sufficient
argument to do away with this explicit appreciation of the legal aspects of the situation.

The Applicant, as it happens, perceived in advance that its change of attitude gave rise
to a serious problem, and it endeavoured in the Application to cover it up by saying that
it had done no more than express "more forcefully the point of view previously
expounded on behalf of Australia". It can easily be shown that the previous viewpoint
was totally different. Apart from the diplomatic Notes of the ten years prior to 1973,
which are decisive, and which show that the Government of Australia did not invoke any
legal grounds to oppose the decision of the French Government to conduct tests in the
South Pacific region, it will be sufficient to recall that Australia has associated itself with
various atmospheric explosions above or in the vicinity of its own territory, and that by its
conduct it has expressed an unequivocal view on the lawfulness of those tests and
those carried out by other States in the Pacific.
 II. CUSTOMARY INTERNATIONAL LAW

7. The first atmospheric nuclear explosion effected by the United Kingdom occurred on
3 October 1952 in the Montebello Islands, which are situated near the north-west coast
of Australia. It was the Australian Minister of Defence who announced that the test had
been successful, and the Prime Minister of Australia described it as "one further proof of
the very important fact that scientific development in the British Commonwealth is at an
extremely high level" (Keesing's Contemporary Archives, 11-18 October 1952, p.
12497). The Prime Minister of the United Kingdom sent a message of congratulation to
the Prime Minister [p 281] of Australia. The Navy and Air Force and other Australian
government departments were associated with the preparation and execution of the
test; three safety-zones were forbidden for overflight and navigation, on pain of
imprisonment and fines.

On 15 October 1953 a further British test was carried out at Woomera in Australia, with
a new forbidden zone of 80, 000 square miles. The British Minister of Supply,
addressing the House of Commons on 24 June 1953, announced the new series of
tests, which had been prepared in collaboration with the Australian Government and
with the assistance of the Australian Navy and Air Force (Keesing's Contemporary
Archives 1953, p. 13222).

Two further series of British tests took place in 1956, one in the Montebello Islands (on
16 May and 19 June), the other at Maralinga in South Australia (27 September, 4, 11
and 21 October). The acting Prime Minister of Australia, commenting on fall-out, stated
that no danger to health could arise therefrom. Australian military personnel were
present as observers during the second series of tests (Keesing's Contemporary
Archives, 1956, p. 14940). The British Government stated on 7 August 1956 that the
Australian Government had given full co-operation, and that various Australian
government departments had contributed valuable assistance under the co-ordinating
direction of the Australian Minister for Supply. The second test of this series was
observed by that Minister and members of the Australian Parliament (Keesing's
Contemporary Archives, 1956, p. 15248).

The British Prime Minister stated on 7 June 1956:

"Her Majesty's Governments in Australia and New Zealand have agreed to make
available to the task force various forms of aid and ancillary support from Australian and
New Zealand territory. We are most grateful for this." (Hansard, House of Commons,
1956, Col. 1283.)

8. Active participation in repeated atmospheric tests over several years in itself

constitutes admission that such tests were in accordance with the rules of international
law. In order to show that the present tests are not lawful, an effort has been made to
 II. CUSTOMARY INTERNATIONAL LAW

argue, first, that what is laudable on the part of some States is execrable on the part of
others and, secondly, that atmospheric tests have become unlawful since the time when
Australia itself was making its contribution to nuclear fall-out.

9. On 3 March 1962, after the Government of the United States had decided to carry out
nuclear tests in the South Pacific, the Australian Minister for External Affairs said that:

"... the Australian Government ... has already made clear its view that if the United
States should decide it was necessary for the security of the free world to carry out
nuclear tests in the atmosphere, then the United States must be free to do so"
(Application, Ann. 3, p. 36).[p 282]

A few days after this statement, on 16 March 1962, the Australian Government gave the
United States its permission to make use of Christmas Island (where more than 20 tests
were carried out between 24 April and 30 June, while tests at very high altitude were
carried out at Johnston Island from 9 July to 4 November 1962).

In an aide-memoire of 9 September 1963 the Australian Government likewise stated:

"Following the signature of the Treaty Banning Nuclear Tests in the Atmosphere, in
Outer Space and Under Water, the Australian Government also recognizes that the
United States must take such precautions as may be necessary to provide for the
possibility that tests could be carried out in the event, either of a breach of the Treaty, or
of some other States exercising their right to withdraw from the Treaty." (Ibid., p. 38.)

In contrast, five years later, with solely the French and Chinese tests in mind, the
Australian Government wrote:

"On 5 April 1968, in Wellington, New Zealand, the Australia-New Zealand-United States
(ANZUS) Council, included the following statement in the communique issued after the
meeting:

'Noting the continued atmospheric testing of nuclear weapons by Communist China and
France, the Ministers reaffirmed their opposition to all atmospheric testing of nuclear
weapons in disregard of world opinion as expressed in the Nuclear Test Ban Treaty.' "
(Ibid., Ann. 5, p. 42.)

10. On another occasion the Australian Government had already evinced the same
sense of discrimination. In 1954, in the Trusteeship Council, when certain damage
caused the Marshall Islands by the nuclear tests of the administering authority was
 II. CUSTOMARY INTERNATIONAL LAW

under consideration, the Austra-lian delegate could not go along with the views of any of
the delegations who objected to the tests in principle.

11. It is not unjust to conclude that, in the eyes of the Australian Government, what
should be applauded in the allies who might protect it is to be frowned upon in others:
Quod licet Jovi non licet bovi. It is at the time when the delegate of the United States
has been revealing to the United Nations that his Government possesses the equivalent
of 615, 385 times the original Hiroshima bomb (First Committee, 21 October 1974) that
the Australian Government seeks to require the French Government to give up the
development of atomic weapons.

It remains for me briefly to show how this constant attitude of the Australian
Government, from 1963 to the end of 1972, i.e., up to the change described in
paragraph 5 above, forms a legal bar to the Applicant's appearing before the Court to
claim that, among nuclear tests,[p 283] certain can be selected to be declared unlawful
and they alone prohibited. Indeed the Court, in June 1973, already had a choice among
numerous impediments on which it might have grounded a finding that the case was
without object. For simplicity's sake let us take the major reason: the principle of the
equality of States.

12. The Applicant's claim to impose a certain national defence policy on another State is
an intervention in that State's internal affairs in a domain where such intervention is
particularly inadmissible. The United Kingdom Government stated on this point on 2
July 1973 as follows:

"... we are not concerned ... with the question of whether France should or should not
develop her nuclear power. That is a decision entirely for France ..." (Hansard, col. 60).

In The Function of Law in the International Community (Oxford 1933, p. 188) Mr. (later
Sir) Hersch Lauterpacht wrote:

"... it means stretching judicial activity to the breaking-point to entrust it with the
determination of the question whether a dispute is political in the meaning that it
involves the independence, or the vital interests, or the honour of the State. It is
therefore doubtful whether any tribunal acting judicially can override the assertion of a
State that a dispute affects its security or vital interests. As we have seen, the interests
involved are of a nature so subjective as to exclude the possibility of applying an
objective standard not only in regard to general arbitration treaties, but also in regard to
each individual dispute."
 II. CUSTOMARY INTERNATIONAL LAW

The draft law which the French Government laid before its Parliament in 1929 to enable
its accession to the General Act of Geneva of 26 September 1928 has been drawn to
the Court's attention; this draft embodied a formal reservation excluding "disputes
connected with claims likely to impair the organization of the national defence". On 11
July 1929 the rapporteur of the parliamentary Committee on Foreign Affairs explained
that the reservation was unnecessary
:
"Moreover the very terms in which the expose des motifs presents it show how
unnecessary it is. 'In the absence of contractual provisions arising out of existing
treaties or such treaties as may be concluded at the instigation of the League of Nations
in the sphere of armaments limitation,' says the text: 'disputes connected with claims
likely to impair the organization of the national defence.' But, precisely because these
provisions do not exist, how could an arbitration tribunal rule upon a conflict of this kind
otherwise than by recognizing that each State is at present wholly free to organize its
own national defence as it thinks fit? Is it imagined that the action of some praetorian
arbitral case-law might oust or at any rate range [p 284] beyond that of Geneva? That
would seem to be a somewhat chimaerical danger." (Documents parlementaires:
Chambre des deputes, 1929, Ann. 1368, pp. 407 f.; Ann. 2031, p. 1143.)

The expose des motifs of the draft law of accession, lays strong emphasis on the
indispensability of the competence of the Council of the League of Nations for the
"appraisal of the political or moral factors likely to be relevant to the settlement of certain
conflicts not strictly legal in char-acter", disputes "which are potentially of such political
gravity as to render recourse to the Council indispensable" (ibid., p. 407). Such was the
official position of the French Government upon which the rapporteur of the Foreign
Affairs Committee likewise sheds light here when he stresses the combination of resort
to the Council and judicial settlement (ibid., p. 1142).

13. It is not unreasonable to believe that the present-day world is still persuaded of the
good sense of the observations quoted in the preceding paragraph (cf. the Luxembourg
arrangement of 29 January 1966, between the member States of the European
Economic Community, on "very important interests"). But there is more than one
negative aspect to the want of object of the Australian claim. The principle of equality
before the law is constantly invoked, reaffirmed and enshrined in the most solemn texts.
This principle would become meaningless if the attitude of "to each his rule" were to be
tolerated in the practice of States and in courts. The proper approach to this matter has
been exemplified in Sir Gerald Fitzmaurice's special report to the Institute of
International Law: "The Future of Public International Law" (1973, pp. 35-41).

In the present case the Applicant has endeavoured to present to the Court, as the
object of a legal dispute, a request for the prohibition of acts in which the Applicant has
 II. CUSTOMARY INTERNATIONAL LAW

itself engaged, or with which it has associated itself, while maintaining that such acts
were not only lawful but to be encouraged for the defence of a certain category of
States. However, the Applicant has overlooked part of the statement made by the Prime
Minister of the United Kingdom in the House of Commons on 7 June 1956, when he
expressed his thanks to Australia for its collaboration in the British tests (para. 7 above).
The Prime Minister also said:

"Certainly, I do not see any reason why this country should not make experiments
similar to those that have been carried out by both the United States and Soviet Russia.
That is all that we are doing. I have said that we are prepared to work out systems of
limitation. Personally, I think it desirable and I think it possible." (Hansard, col. 1285.)

On 2 July 1973, the position of the British Government was thus analysed by the
Attorney-General:[p 285]

"... even if France is in breach of an international obligation, that obligation is not owed
substantially to the United Kingdom, and there is no substantive legal right of the United
Kingdom which would seem to be infringed" (Hansard, col. 99).

And that despite the geographical position in the Pacific of Pitcairn Island.

The Applicant has disqualified itself by its conduct and may not submit a claim based on
a double standard of conduct and of law. What was good for Australia along with the
United Kingdom and the United States cannot be unlawful for other States. The
Permanent Court of International Justice applied the principle "allegans contraria non
audi-endus est" in the case of Diversion of Water from the Meuse, Judgment, 1937,
P.C.I.J., Series A/B, No. 70, page 25.

14. In the arguments devised in 1973 for the purposes of the present case, it was also
claimed that the difference in the Australian Government's attitude vis-à-vis the French
Government was to be explained by the fact that, at the time of the explosions with
which the Australian Government had associated itself and which it declared to be
intrinsically worthy of approval, awareness of the danger of fall-out had not yet reached
the acute stage. One has only to read the reports of the United Nations Scientific
Committee on the Effects of Atomic Radiation, a committee set up by the General
Assembly in 1955, to see that such was not the case. While it is true to say that more
abundant and accurate information has become available over the years, the reports of
this committee have constantly recalled that: "Those [tests of nuclear weapons] carried
out before 1963 still represent by far the largest series of events leading to global
radio-active contamination." (UNSCEAR Report 1972, Chap. I, p. 3.)
 II. CUSTOMARY INTERNATIONAL LAW

As for awareness of particular risks to Australia, the National Radiation Advisory

Committee was set up by the Australian Government in May 1957 for the purpose of
advising on all questions concerning the effects of radiation on the Australian
population. The Court has had cognizance of the reports of 1967 (two reports), 1969,
1971 and 1972; the report of March 1967 indicates that the previous report dated from
1965, and that it dealt in detail with the question of fall-out over the Australian
environment and the effects upon man:

"The Committee at that time was satisfied that the proposed French nuclear weapons
tests in the South Pacific Ocean were unlikely to lead to a significant hazard to the
health of the Australian population." (Report to the Prime Minister, March 1967, para. 3.)

This same form of words is repeated in paragraph 11 of the March 1967 report, in
reference to the first series of French tests, which took place in the period July-October
1966, and also in paragraph 11 of the report for December 1967, issued following a
study of the effects of the second series [286] of tests (June-July 1967) and taking
radiation doses from both series into account. The report which the Australian NRAC
addressed to the Prime Minister in March 1969 concerned the French tests of
July-September 1968 and repeated in its paragraph 12 the conclusions cited above
from paragraph 3 of the March 1967 report. The Committee's March 1971 report recalls
in its paragraph 3 that fall-out from all the French tests, in 1966, 1967 and 1968, did not
constitute a hazard to the health of the Australian population. The form of words used in
paragraph 12 of that report comes to the traditional conclusion as to the tests held in
1970. The absence of risk is again recognized in the report issued by the NRAC in July
1972 (paras. 8, 9 and 11). When, however, the new administration took office in
Australia, this scientific committee was dissolved. On 12 February 1973 the Prime
Minister requested a report of the Australian Academy of Science, the Council of which
appointed a committee to report on the biological effects of fall-out; the conclusions of
this report were considered at a joint meeting with French scientists in May 1973,
shortly before the filing of the Application instituting proceedings. It appears that the
debate over this last-mentioned report is continuing even between Australian scientists.

15. For the similar experiments of the French Government to be the subject of a dispute
with which the Court can deal, it would at all events be necessary that what used to be
lawful should have become unlawful at a certain moment in the history of the
development of nuclear weapons. What is needed to remove from the Applicant the
disqualification arising out of its conduct is proof that this change has taken place: what
Australia presented between 1963 and the end of 1972 as a conflict of interests, a clash
of political views on the problems of the preparation, development, possession and
utilization of atomic weapons, i.e., as a challenge to France's assertion of the right to the
independent development of nuclear weapons, cannot have undergone a change of
 II. CUSTOMARY INTERNATIONAL LAW

legal nature solely as a result of the alteration by a new government of the formal
presentation of the contention previously advanced. It would have to be proved that
between the pre-1963 and subsequent explosions the international community effected
a passage from non-law to law.

16. The Court's examination of this point could have taken place as early as June 1973,
because it amounts to no more than the preliminary investigation of problems entirely
separate from the merits, whatever views one may hold on the sacrosanctity of the
distinction between the different phases of the same proceedings (cf. para. 3 above).
The point is that if the Treaty of 5 August 1963 Banning Nuclear Tests in the
Atmosphere, in Outer Space and Under Water is not opposable to France, there is no
dispute which Australia can submit to the Court, and dismissal would not require any
consideration of the contents of the Treaty.

17. The multilateral form given to the Treaty of 5 August 1963 is of course only one of
several elements where the legal analysis of the extent of its opposability to States not
parties to it is concerned. One need only say that the preparation and drafting of the
text, the unequal regime as
[p 287] between the parties for the ratification of amendments, and the system of
supervision have enabled the Treaty to be classified as, constructively, a bi-polar
statute, accepted by a large number of States but not binding on those remaining
outside the Treaty. There is in fact no necessity to linger on the subject in view of the
subsequent conduct of the States assuming the principal responsibility for the Treaty.
None of the three nuclear Powers described as the "Original Parties" in Article II of the
Treaty has ever informed the other nuclear Powers, not parties thereto, that this text
imposed any obligation whatever upon them; on the contrary, the three Original Parties,
even today, call upon the Powers not parties to accede to the Treaty. The Soviet
delegate to the Disarmament Conference declared at the opening of the session on 20
February 1974 that the negotiations for the termination of nuclear tests "required the
participation of all nuclear States". On 21 October 1974, in the First Committee of the
General Assembly, the delegate of the United States said that one of the aims was to
call for the co-operation of States which had not yet ratified the 1963 Treaty. Statements
to the same effect have been made on behalf of the Government of the United
Kingdom; on 2 July 1973 the Minister of State for Foreign and Commonwealth Affairs
stated during a parliamentary debate:

"As far back as 1960, however, the French and the Chinese declined to subscribe to
any international agreement on testing. They are not bound, therefore, by the
obligations of the test ban treaty of 1963 ...
 II. CUSTOMARY INTERNATIONAL LAW

In 1963 Her Majesty's Government, as well as the United States Government, urged the
French Government to sign the partial test ban treaty.

As initiators and signatories of the treaty, we are seriously concerned at the continuation
of nuclear tests in the atmosphere, and we urge that all Governments which have not
yet done so should adhere to it. This view is well known to the French and Chinese
Govern-ments. It has been stated publicly by successive Governments." (Hansard, cols.
58 and 59.)

18. The conduct of the Original Parties which laid down the rules of the present nuclear
statute by mutual agreement shows that those nuclear States which have refused to
accede to this statute cannot be considered as subjected thereto by virtue of a doctrinal
construction contrary to the formally expressed intentions of the sponsors and
guardians of the Statute. The French Government, for its part, has always refused to
recognize the existence of a rule opposable to it, as many statements made by it show.

19. The Treaty which the United States and the Union of Soviet Socialist Republics
signed in Moscow on 3 July 1974, on the limitation of underground nuclear testing
(United Nations, General Assembly Official Records, A/9698, 9 August 1974, Ann. I)
contains the following preambular paragraph:[p 288]

"Recalling the determination expressed by the Parties to the 1963 Treaty Banning
Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water in its
preamble to seek to achieve the discontinuance of all test explosions of nuclear
weapons for all time, and to continue negotiations to this end." (Cf. the second
preambular paragraph of the 1963 Treaty.)

Like the 1963 Treaty, the Treaty of 1974 embodies the right of each party to withdraw
from the treaty if extraordinary events jeopardize "its supreme interests".

20. To determine whether a rule of international law applicable to France did or did not
exist was surely an operation on the same level as the ascertainment of the
non-existence of a justiciable dispute. To find that the Treaty of 1963 cannot be relied on
against France requires merely the determination of a legal fact established by the text
and by the consistent conduct of the authors of the legal statute in question. Similarly, to
find that no custom has come into being which is opposable to those States which
steadfastly declined to accept that statute, when moreover (as we have seen in the
foregoing paragraphs) the existence of such customary rule is disproved by the
positions adopted subsequent to the treaty supposed to give it expression, would
merely be to verify the existence of a source of obligation.
 II. CUSTOMARY INTERNATIONAL LAW

By not proceeding, as a preliminary, to verification of the existence of any source of

obligation opposable to the French Government, the Court refused to render justice to a
State which, from the very outset, manifested its categorical opposition to proceedings
which it declared to be without object and which it requested the Court to remove from
the list; an action which the Court was not to take until 20 months had elapsed.

21. The character of the quarrel between the Australian Government, and the French
Government is that of a conflict of political interests concerning a question, nuclear
tests, which is only one inseparable element in the whole range of the problems to
which the existence of nuclear weapons gives rise and which at present can be
approached and settled only by means of negotiations.

As the Court said in 1963, "it is not the function of a court merely to provide a basis for
political action if no question of actual legal rights is involved" (Northern Cameroons,
I.C.J. Reports 1963, p. 37).

In the absence of any rule which can be opposed to the French Government for the
purpose of obtaining from the Court a declaration prohibiting the French tests and those
alone, the whole case must collapse. I shall therefore say nothing as to the other
grounds on which the claim can be dismissed at the outset on account of the Applicant's
want of standing, such as the inadmissibility either of an actio popularis or of an action
erga omnes disguised as an action against a single State. The accumulation of fall-oul
is a world-wide problem; it is not merely the last straw which [p 289] breaks the camel's
back (cf. the refusal of United States courts to admit the proceedings brought by
Professor Linus Pauling and others who claimed that American nuclear tests in the
Pacific should stopFN1).

---------------------------------------------------------------------------------------------------------------------
FN1 District Court for the District of Columbia, 31 July 1958, 164 Federal Supplement,
p. 390; Court of Appeals, 12 April 1960, 278 Federal Reporter, Second Series, pp.
252-255.
---------------------------------------------------------------------------------------------------------------------

***

22. I have still certain brief observations to make as to the conduct, from the very outset,
of these proceedings before the Court, in relation to certain general principles of the
regular functioning of international adjudication, for the conduct of the proceedings gave
rise to various problems, concerning Articles 53 and 54 of the Statute of the Court,
whose existence will not be evident to the reader of the Judgment, given the adopted
grounds of decision.
 II. CUSTOMARY INTERNATIONAL LAW

23. What happened, in sum, was that a misunderstanding arose when the questions of
jurisdiction and admissibility were written into the Order of 22 June 1973 as the
prescribed subject-matter of the phase which had been decided upon "to resolve [them]
as soon as possible"; for the separate and dissenting opinions of June 1973 reveal on
the one hand that, for certain Members of the Court, the problem of the existence of the
object of the dispute should be settled in the new phase, whereas a majority of judges,
on the other hand, had made up their minds to deal in that phase solely with the
questions of the jurisdiction of the Court stricto sensu, and of the legal interest of the
Applicant, and to join all other questions to the merits, including the question whether
the proceedings had any object. At best, therefore, the jurisdiction/admissibility phase
could only result in a decision on jurisdiction and the legal interest of the Applicant, and
if that decision were positive, all the rest being joined to the merits, the real decision
would have been deferred to an extremely remote phase. A settlement would therefore
have been possible "sooner" if jurisdiction/admissibility and merits had not been
separated. The reason for this refusal in 1973 to decide on the "preliminary" character
of the question concerning the existence of a justiciable dispute is to be found in an
interpretation of Article 53 consisting of the application to a default situation of Article 67
of the Rules of Court, governing preliminary objections in adversary proceedings, the
analogy thus provoking a veritable breach of Article 53 of the Statute.

24. The misunderstanding on the scope of the phase decided on by the Order of 22
June 1973 was not without effect before the Court: the apparent contradiction between
paragraph 23 and paragraph 35 of the Order enabled the Applicant to say to the Court,
at the hearing of 6 July 1974, that the only question of admissibility was that of "legal
interest", subject to any indication to the contrary from the Court. That indication was
given by the President on 9 July: "The Court will of course appre-[p 290]ciate the
question of admissibility in all the aspects which it considers relevant."

This process of covert and contradictory allusions, in which the conflicts of views
expressed in the opinions sometimes reappear, is not without its dangers. This is
evident both as regards this Order of 22 June 1973 and as regards the attempts to
make use of paragraphs 33 and 34 of the Judgment in the Barcelona Traction case
without taking account of the existence of paragraphs inconsistent with these, i.e.,
paragraphs 89 to 91, which were in fact intended to qualify and limit the scope of the
earlier pronouncement. That pronouncement was in fact not directly related to the
subject of the judgment, and was inserted as a sort of bench-mark for subsequent use;
but all bench-marks must be observed.

25. Article 53 of the Statute has had the Court's attention from the outset of the
proceedings, i.e., ever since the receipt on 16 May 1973 of a letter from the French
 II. CUSTOMARY INTERNATIONAL LAW

Government declaring its intention not to appear and setting forth its reasons; but, in my
view, it has been wrongly applied. A further general examination of the interpretation of
the rule embodied in Article 53 is required.
To speak of two parties in proceedings in which one has failed to appear, and has on
every occasion re-affirmed that it will not have anything to do with the proceedings is to
refuse to look facts in the face. The fact is that when voluntary absence is asserted and
openly acknowledged there is no longer more than one party in the proceedings. There
is no justification for the fiction that, so long as the Court has not recognized its lack of
jurisdiction, a State which is absent is nevertheless a party in the proceedings. The truth
of the matter is that, in a case of default, three distinct interests are affected: that of the
Court, that of the applicant and that of the respondent; the system of wholly ignoring the
respondent's decision not to appear and of depriving it of effect is neither just nor
reasonable. In the present case, by its reasoned refusal to appear the Respondent has
declared that, so far as it is concerned, there are no proceedings, and this it has
repeated each time the Court has consulted it. Even if the Court refrains for a time from
recording that default, the fact remains that the Respondent has performed an act of
default from which certain legal consequences flow. Moreover, the applicant is entitled
under Article 53 to request immediately that judicial note be taken thereof and the
consequences deduced. That is what the Applicant did, in the present instance, when it
said in 1973 that the Court was under an obligation to apply its rules of procedure,
without indicating which, and to refuse to take account of views and documents alleged
by the Applicant to have been irregularly presented by the Respondent. And the Court
partially accepted this point of view, in not effecting all communications to the
Respondent which were possible.

The result of not taking account of the Respondent's default has been the granting of
time-limits for pleadings which it was known would not be forthcoming, in order to
maintain theoretical equality between the parties, whereas in fact the party which
appeared was favoured. There was [p 291] nothing to prevent the Court from fixing a
short time-limit for the presumptive Respondent—one month, for example—the
theoretical possibility being left open of a statement by the State in default during that
time, to the effect that it had changed its mind and requested a normal time-limit for the
production of a Memorial.

26. When it came to receiving or calling in the Agent of the Applicant in the course of
the proceedings in 1973, there was a veritable breach of the equality of the Parties in so
far as some of these actions or approaches made by the Applicant were unknown to the
presumptive Respondent. (On this point, cf. paras. 31 and 33 below.)

On this question of time-limits the Court has doubtless strayed into paths already
traced, but precedents should not be confused with mandatory rules; each case has its
 II. CUSTOMARY INTERNATIONAL LAW

own particular features and it is mere mechanical justice which contents itself with
reproducing the decisions of previous proceedings. In the present case the Court was
never, as in the Fisheries Jurisdiction cases, informed of negotiations between the
Parties after the filing of the Application, and the double time-limits accorded did not
even have the justification, which they might have had in the above-mentioned cases, of
enabling progress to be made in such negotiations; and there was never the slightest
doubt, from the outset, on the question of the existence of a genuine legal dispute.

27. It is not my impression that the authors of Article 53 of the Statute intended it to be
interpreted as if it had no effect of its own. It is not its purpose to enable proceedings to
be continued at leisure without regard to the positions adopted by the absent
respondent; it is true that the applicant is entitled to see the proceedings continue, but
not simply as it wishes, with the Court reliant on unilateral indications of fact and law;
the text of Article 53 was designed to avoid such an imbalance in favour of the
applicant. When the latter calls upon the Court to decide in favour of its claim, which the
present Applicant did not do explicitly on the basis of Article 53 but which resulted from
its observations and submissions both in June 1973, at the time of the request for
interim measures of protection, and in the phase which the Judgment brings to a close
today, it would be formalistic to maintain that the absence of any explicit reference to
Article 53 changes the situation. It must needs be realized that the examination of fact
and law provided for in Article 53 has never begun, since the Court held in 1973 that the
consequences of the nonappearance could be joined to the questions of jurisdiction and
admissibility, and that, in the end, the question of the effects of non-appearance will not
have been dealt with. Thus this case has come and gone as if Article 53 had no
individual significance.

28. If we return to the sources, we note that the rapporteur of the Advisory Committee of
Jurists (PV, p. 590) stated that the Committee had been guided by the examples of
English and American jurisprudence in drafting what was then Article 52 of the Statute
on default. Lord Phillimore, a member of the Committee, had had inserted the sentence
which in large measure has survived: "The Court must, before [deciding in [p 292]
favour of the claim], satisfy itself that the claim is supported by conclusive evidence and
well founded in fact and law." The words which disappeared in the course of the
consideration of the text by the Assembly of the League of Nations were regarded as
unnecessary and as merely overlapping the effect of the formula retained. The matter
was clarified in only one respect by the Court's 1922 discussion, on account of the
personality of the judges who expressed their views on a draft article proposed for the
Rules of Court by Judge Anzilotti:

"If the response to an application is confined to an objection to the jurisdiction of the

Court, or if the State affected fails to reply within the period fixed by the Court, the latter
 II. CUSTOMARY INTERNATIONAL LAW

shall give a special decision on the question of jurisdiction before proceeding further
with the case." (P.C.I.J., Series D, No. 2, p. 522.)

Judge Huber supported the text. Lord Finlay did not feel that the article was necessary,
because,

"... even if there was no rule on the subject, the Court would always consider the
question of its jurisdiction before proceeding further with the case. It would have to be
decided in each particular case whether the judgment with regard to the jurisdiction
should be delivered separately or should be included in the final judgment" (ibid., p.
214).

Judge Anzilotti's text was rejected by 7 votes to 5. The general impression given by the
influence English jurisprudence was recognized to possess, and by the observations
first of Lord Phillimore and then of Lord Finlay, is that the Court intended to apply Article
53 in a spirit of conscientious verification of all the points submitted by the applicant
when the respondent was absent from the proceedings, and that it would have regard to
the circumstances of each case. As is well known, in the British system important
precautions are taken at a wholly preliminary stage of a case to make sure that the
application stands upon a genuinely legal claim, and the task of ascertaining whether
this is so is sometimes entrusted to judges other than those who would adjudicate (cf.
Sir Gerald Fitzmaurice's opinion in the Northern Cameroons case (I.C.J. Reports 1963,
pp. 106 f.), regarding "filter" procedures whereby, as "part of the inherent powers or
jurisdiction of the Court as an international tribunal", cases warranting removal can be
eliminated at a preliminary stage).

Between this interpretation and that which the Court has given of Article 53 in the
present case, there is all the difference that lies between a pragmatic concern to hold a
genuine balance between the rights of two States and a procedural formalism that treats
the absent State as if it were a party in adversary proceedings, which it is not, by
definition.

***[p 293]

29. On 22 June 1973, before the Court's decision had been read at a public sitting, a
public statement which had been made by the Prime Minister of Australia on 21 June at
Melbourne, and which had been widely reported by the Australian pressFN1, reached
Europe; in it the Prime Minister stated that the Court had acceded by 8 votes to 6 to
Australia's request.

--------------------------------------------------------------------------------------------------------------------
 II. CUSTOMARY INTERNATIONAL LAW

FN1 A Melbourne newspaper printed on 22 June the following article:

"The Prime Minister: We've won N-test case. The Prime Minister (Mr. Whitlam) said last
night that Australia would win its appeal to the International Court of Justice by a
majority of eight votes to six. Mr. Whitlam said he had been told the Court would make a
decision within 22 hours. The Prime Minister made the prediction while addressing the
annual dinner of the Victorian Law Institute. He said: 'On the matter of the High Court, I
am told a decision will be given in about 22 hours from now. The majority in our favour
is going to be eight to six.' When asked to elaborate on his comments after the dinner,
Mr. Whitlam refused to comment, and said his remarks were off the record. The dinner
was attended by several hundred members of the Law Institute, including several
prominent judges. While making the prediction that the Court would vote eight to six, Mr.
Whitlam placed his hand over a microphone. The microphone was being monitored by
an ABC reporter."
---------------------------------------------------------------------------------------------------------------------

30. It must first be explained that, whether by inadvertence or for some other reason,
the Court was not aware of that disclosure until after its decision had been read out at
the public sitting of 22 June; it can be imagined that the Court would otherwise have
postponed the reading of the Order on 22 June. As the aftermath of this incident has
only been dealt with in two communiques, one issued on 8 August 1973 and the other
on 26 March 1974, it would be difficult to describe it if the Court had not finally decided
on 13 December 1974 that certain documents would be published in the volume of
Pleadings, Oral Arguments, Documents to be devoted to this caseFN2. Taking into
account certain press items and these public documents or communiques, I find it
necessary to explain why I voted on 21 March 1974 against the Court's decision, by 11
votes to 3, to close its investigations on the scope and origins of the public disclosure by
the Prime Minister of Australia of the decision of 22 June 1973. The Court's vote was on
a resolution reproduced in the press communique of 26 March 1974.

---------------------------------------------------------------------------------------------------------------------
FN2 Four documents are to be published in this way. Two (see para. 31 below) have
already been communicated to the French Government; the others are reports to the
Court.
---------------------------------------------------------------------------------------------------------------------

It is to be hoped that no-one will dispute the view that, if the head of government of a
State party to a case discloses a decision of the Court before it is made public, there
has been a breach of the prescriptions of Article 54, paragraph 3, of the Statute: "The
deliberations of the Court shall take place in private and remain secret." At the moment
of the disclosure, on 21 June, the decision was as yet no more than a text which [p
 II. CUSTOMARY INTERNATIONAL LAW

294]had been deliberated and adopted by the Court and was covered by the rule of
secrecy embodied in Article 54. In a letter of 27 June 1973FN1, the Prime Minister of
Australia referred to the explanations furnished on that same date by a letter from the
Co-Agent of AustraliaFN1 and expressed his regret "at any embarrassment which the
Court may have suffered as a result of my remarks". According to the Co-Agent, the
Prime Minister's statement of 21 June had been no more than a speculative comment,
inasmuch as a view had been current among Australian advisers to the effect that the
decision could be in Australia's favour, but by a small majority, while press comment
preceding the Prime Minister's remarks had speculated in some instances that Australia
would win by a narrow margin.

---------------------------------------------------------------------------------------------------------------------
FN1Communicated to the French Government, by decision of the Court, on 29 March
1974.
---------------------------------------------------------------------------------------------------------------------

31. But whatever endeavours may have been made to explain the Prime Minister's
statement, whether at the time or, subsequently, by the Agent and Co-Agent of Australia
on various occasions, the facts speak for themselves. The enquiry opened at the
request of certain Members of the Court on the very afternoon of 22 June 1973 was
closed nine months later without the Court's having given any precise indication, in its
resolution of 21 March 1974, as to the conclusions that might have been reached in
consequence. The only elements so far published, or communicated to the Government
which was constantly regarded by the Court as the Respondent and had therefore the
right to be fully informed, which was by no means the case, are: the Australian Prime
Minister's letter of 27 June 1973 and the Co-Agent's letter of the same dateFN2; the text
of a statement made by the Attorney-General of Australia on 21-22 June 1973FN2; the
communique of 8 August 1973; the reply by the Prime Minister to a question put in the
Australian House of Representatives on the circumstances in which he had been
apprised of the details of the Court's decision (Australian Hansard, 12 September 1973);
a resolution by which the Court on 24 January 1974 decided to interrogate the Agent of
Australia FN2 (the minutes of these conversations were not communicated to the
Respondent and will not be published); the communique of 26 March 1974 FN3.

---------------------------------------------------------------------------------------------------------------------
FN2 Documents communicated to the French Government with a letter of 29 March
1974.
FN3 A letter of 28 February 1974 from the Agent of Australia to the Registrar is to be
reproduced in the Pleadings, Oral Arguments, Documents volume; it is connected with
the interrogation.
---------------------------------------------------------------------------------------------------------------------
 II. CUSTOMARY INTERNATIONAL LAW

I found it contrary to the interests of the Court, in the case of so grave an incident, one
which lays its 1973 deliberation open to suspicion, to leave that suspicion intact and not
to do what is necessary to remove it. L will merely observe that the crystal-gazing
explanation relied on by the Prime Minister and the Agent's statements enlarging
thereon, with the attribution of an oracular role to the Australian advisers, brought the
Court no positive enlightenment in its enquiry and should be left to the sole
responsibility of their authors.[p 295]

32. Were it maintained that a head of government did not have to justify to the Court
any statements made out of court and that moreover, even if his statement was
regrettable, the harm was done and could not affect the case before the Court, L would
find these propositions incorrect. The statement in question concerned a decision of the
Court and could lead to a belief that persons privy to its deliberations had violated their
obligation to keep it secret, with all the consequences that supposition would have
entailed if confirmed.

33. In concluding on 21 March 1974 that it could not pursue the matter further, and in
making this publicly known, the Court stigmatized the incident and indirectly signified
that it could not accept the excuse that its decisions had been divined, but it recognized
that, according to its own assessment, it was not possible to uncover anything further as
to the origins of the disclosure.

I voted against this declaration and the closure of the enquiry because I consider that
the investigation should have been pursued, that the initial results were not
inconsequential and could be used as a basis for further enquiry, especially when not all
the means of investigation available to the Court had been made use of (Statute, Arts.
48, 49 and 50). Such was not the opinion of the Court, which decided to treat its
investigations as belonging to an internal enquiry. My understanding, on the contrary,
was that the incident of the disclosure was an element in the proceedings before the
Court—which is why the absent Respondent was kept partly informed by the Court, in
particular by a letter of 31 January 1974—and that the Court was fully competent to
resolve such an incident by judicial means, using any procedure it might decide to set
up (cf. the Court's decision on "the competence required to enable [the] functions [of the
United Nations] to be effectively discharged" (I.C.J. Reports 1949, p. 179)). How could
one suppose a priori that pursuit of the enquiry would have been ineffectual without
having attempted to organize such an enquiry? Even if circumstances suggested that
refusals to explain or evasions could be expected, to note those refusals or evasions
would not have been ineffectual and would have been a form of censure in itself.
 II. CUSTOMARY INTERNATIONAL LAW

34. Symptomatic of the hesitation to get to the bottom of the incident was the time taken
to begin looking into the disclosure: six weeks, from 22 June to 8 August 1973, were to
elapse before the issue of the mildest of communiques, palliative in effect and not
representing the unanimous views of the Court. For more than six months, all that was
produced was a single paper embodying a documented analysis of the successive
press disclosures on the progress of the proceedings before the Court up to the
dramatic public disclosure of the result and of the Court's vote by the Prime Minister on
21 June in MelbourneFN1. This analysis of facts publicly known demonstrates how the
case was accompanied by a succession of rumours whose disseminators are known
but whose source is not [p 296] unmasked. On 21 March 1974 the investigation was
stopped, and the various paths of enquiry and deduction opened up by this analysis as
also by the second report will not be pursued.

---------------------------------------------------------------------------------------------------------------------
FN1 This is one of the documents which the Court, on 13 December 1974, decided to
publish in the Pleadings, Oral Arguments, Documents volume.
---------------------------------------------------------------------------------------------------------------------

I consider that the indications and admissions that had already come to light opened the
path of enquiry instead of closing it. A succession of mistakes, forgettings, tolerations,
failures to react against uncalled-for overtures or actions, each one of which taken in
isolation could have been considered devoid of particular significance, but which
assume such significance by their accumulation and impunity; unwise conversations at
improper moments, of which no minutes exist: all this combines to create a sense of
vagueness and embarrassment, as if a refusal to acknowledge and seek to unravel the
facts could efface their reality, as if a saddened silence were the only remedy and the
sole solution.

35. The harm was done, and has been noted (report of the Court to the United Nations
1973-1974, para. 23; debate in the Sixth Committee of the General Assembly, 1
October 1974, A/C.6/SR.1466, p. 6; parliamentary answers by the French Minister for
Foreign Affairs on 26 January 1974, Journal Officiel No. 7980, and 20 July 1974,
Journal Officiel No. 11260). Even if it is not, at the present moment, possible to discover
more concerning the origin and development of the process of disclosure, as the Court
has stated in its resolution of 21 March 1974, I remain convinced that a judicially
conducted enquiry could have elucidated the channels followed by the multiple
disclosures noted in this case, the continuity and accuracy of which suggest that the
truth of the matter was not beyond the Court's reach. Such is the meaning of my refusal
of the resolution of 21 March 1974 terminating an investigation which was begun with
reluctance, conducted without persistence and concluded without reason.
 II. CUSTOMARY INTERNATIONAL LAW

***

36. Among the lessons to be learned from this case, in which a conflict of political
interests has been clothed in the form of a legal dispute, I would point to one which I
feel to merit special attention. Before these proceedings were instituted, the General
Act, ever since 1939, had been dwelling in a kind of chiaroscuro, formally in force if one
took account only of express denunciation, but somewhat dormant:

"So far as the General Act is concerned, there prevails, if truth be told, a climate of
indifference or obliviousness which casts some doubt on its continuance in force, at
least where the Act of 1928 is concerned." (H. Rolin, L'arbitrage obligatoire: une
panacee illusoire, 1959, p. 259.)

After the General Act had, with great elaboration, been presented to the Court as a
wide-open basis of possible jurisdiction, the behaviour of the States formally considered
as parties thereto is noteworthy. The French Government was the first to denounce the
General Act, on 2 January 1974, then on 6 February 1974 the Government of the
United [p 297] Kingdom did likewise. The Government of India, since June 1973, has
informed the Court and the United Nations of its opinion as to the General Act's having
lapsed (see also the new declaration by which India, on 15 September 1974, accepted
the jurisdiction of the Court under Article 36, paragraph 2, of the Statute). Thus we see
that States with substantial experience of international adjudication and arbitration have
only to note that there is some possibility of the General Act's being actually applied,
instead of declarations less unreservedly accepting the jurisdiction of the Court, to
announce either (in two cases) that they are officially putting an end to it or (in the other)
that they consider it to have lapsed. The cause of international adjudication has not
been furthered by an attempt to impose the Court's jurisdiction, apparently for a formal
reason, on States in whose eyes the General Act was, quite clearly, no longer a true
yardstick of their acceptance of international jurisdiction.

Mr. Charles De Visscher had already shown that courts should take care not to
substitute doctrinal and systematized views for the indispensable examination of the
intentions of States. This is how he defined the obligation upon the international judge to
exercise reserve:

"The man of law, naturally enough, tends to misunderstand the nature both of political
tensions and of the conflicts they engender. He is inclined to see in them only 'the object
of a dispute', to enclose within the terms of legal dialectic something which is
pre-eminently refractory to reasoning, to reduce to order something wholly consisting of
unbridled dynamism, in a word, to try to depoliticize something which is political of its
essence. Here it is not merely a question, as is all too often repeated, of a deficiency in
 II. CUSTOMARY INTERNATIONAL LAW

the mechanism of law-transformation, or of gaps in the legal regulation of things. We

are dealing with a sphere into which, a priori, it is only exceptionally that law penetrates.
Law can only intervene in the presence of elements it can assimilate, i.e., facts or
imperatives possessing a regularity and at least minimum correspondence with a given
social order that enable them to be subjected to reasoned analysis, classified within
some known category, and reduced to an objective value-judgment capable of serving
in its turn as a basis for the application of established norms." (Theories et realites en
droit international public, 1970, p. 96.)

There is a certain tendency to submit essentially political conflicts to adjudication in the

attempt to open a little door to judicial legislation and, if this tendency were to persist, it
would result in the institution, on the international plane, of government by judges; such
a notion is so opposed to the realities of the present international community that it
would undermine the very foundations of jurisdiction.

(Signed) A. Gros

[p 298]

Separate opinion of judge Petren

[Translation]

If I have been able to vote for the Judgment, it is because its operative paragraph finds
that the claim is without object and that the Court is not called upon to give a decision
thereon. As my examination of the case has led me to the same conclusion, but on
grounds which do not coincide with the reasoning of the Judgment, I append this
separate opinion.

The case which the Judgment brings to an end has not advanced beyond the
preliminary stage in which the questions of the jurisdiction of the Court and the
admissibility of the Application fall to be resolved. Australia's request for the indication of
interim measures of protection could not have had the consequence of suspending the
Court's obligation to consider the preliminary questions of jurisdiction and admissibility
as soon as possible. On the contrary, that request having been granted, it was
particularly urgent that the Court should decide whether it had been validly seised of the
case. Any delay in that respect meant the prolongation, embarrassing to the Court and
to the Parties, of uncertainty concerning the fulfilment of an absolute condition for the
justification of any indication of interim measures of protection.
 II. CUSTOMARY INTERNATIONAL LAW

In this situation, it was highly imperative that the provisions of the Rules of Court which
were revised not so long ago for the purpose of accelerating proceedings should be
strictly applied. Only recently, moreover, on 22 November 1974, the General Assembly
of the United Nations adopted, on the item concerning a review of the Court's role,
resolution 3232 (XXIX), of which one preambular paragraph recalls how the Court has
amended its Rules in order to facilitate recourse to it for the judicial settlement of
disputes, inter alia, by reducing the likelihood of delays. Among the reasons put forward
by the Court itself to justify revision of the Rules, there was the necessity of adapting its
procedure to the pace of world events (I.C.J. Yearbook 1967-1968, p. 87). Now if ever,
in this atomic age, there was a case which demanded to be settled in accordance with
the pace of world events, it is this one. The Court nevertheless, in its Order of 22 June
1973 FN1 indicating interim measures of protection, deferred the continuance of its
examination of the questions [p 299] of jurisdiction and admissibility, concerning which it
held, in one of the consideranda to the Order, that it was necessary to resolve them as
soon as possible.

--------------------------------------------------------------------------------------------------------------------
FN1 Having voted against the resolution whereby the Court, on 24 March 1974, decided
to close the enquiry into the premature disclosure of its decision, as also of the
voting-figures, before the Order of 22 June 1973 was read at a public sitting, I wish to
state my opinion that the enquiry referred to was one of a judicial character and that its
continuance on the bases already acquired should have enabled the Court to get closer
to the truth. I did not agree with the decision whereby the Court excluded from
publication, in the volume of Pleadings, Oral Arguments, Documents to be devoted to
the case, certain documents which to my mind are important for the comprehension of
the incident and the search for its origins.
---------------------------------------------------------------------------------------------------------------------

Despite the firmness of this finding, made in June 1973, it is very nearly 1975 and the
preliminary questions referred to have remained unresolved. Having voted against the
Order of 22 June 1973 because I considered that the questions of jurisdiction and
admissibility could and should have been resolved without postponement to a later
session, I have a fortiori been opposed to the delays which have characterized the
continuance of the proceedings and the upshot of which is that the Court has concluded
that Australia's Application is without object now. I must here recall the circumstances in
which certain time-limits were fixed, because it is in the light of those circumstances that
I have had to take up my position on the suggestion that consideration of the
admissibility of the Application should be deferred until some later date.

When, in the Order of 22 June 1973, the Court invited the Parties to produce written
pleadings on the questions of its jurisdiction and the admissibility of the Application, it
 II. CUSTOMARY INTERNATIONAL LAW

fixed 21 September 1973 as the time-limit for the filing of the Australian Government's
Memorial and 21 December 1973 as the time-limit for the filing of a Counter-Memorial
by the French Government. This decision was preceded by a conversation between the
Acting President and the Agent of Australia, who stated that he could agree to a
three-month time-limit for his own Government's pleading. No contact was sought with
the French Government at that same time. No reference is to be found in the Order to
the application of Article 40 of the Rules of Court or, consequently, to the consultation
which had taken place with the Agent of Australia. After the Order had been made, the
Co-Agent of Australia, on 25 June 1973, informed the Acting President that his
Government felt it would require something in the nature of a three-month extension of
time-limit on account of a new element which was bound to have important
consequences, namely that the Memorial would now have to deal not only with
jurisdiction but also with admissibility. Although the Court remained in session until 13
July 1973, this information was not conveyed to it. On 10 August 1973 the Co-Agent
was received by the President and formally requested on behalf of his Government that
the time-limit be extended to 21 December 1973, on the ground that questions of
admissibility had not been foreseen when the Agent had originally been asked to
indicate how much time he would require for the presentation of a Memorial on
jurisdiction. Following this conversation the Co-Agent, by a letter of 13 August,
requested that the time-limit should be extended to 23 November. Contrary to what had
been done in June with regard to the fixing of the original time-limits, the French
Government was invited to make known its opinion. Its reply was that, having denied
the Court's jurisdiction in the case, it was unable to express any opinion. After he had
consulted his colleagues by correspondence on the subject of the time-limits and a
majority had expressed a favourable view, the President, by an Order of 28 August,
[p 300] extended the time-limit for the filing of the Australian Government's Memorial to
23 November 1973 and the time-limit for the filing of a Counter-Memorial by the French
Government to 19 April 1974.

The circumstances in which the written proceedings on the preliminary questions were
thus prolonged until 19 April 1974 warrant several observations. In the first place, it
would have been more in conformity with the Statute and the Rules of Court not to have
consulted the Australian Government until after the Order of 22 June 1973 had been
made and to proceed at the same time to consult the French Government. Let us
suppose that this new procedure were to be put into general practice and it became
normal, before the Court's decision on a preliminary phase, to consult the Agents of the
Parties regarding the time-limits for the next phase: any Agent who happened not to be
consulted on a particular occasion would not require supernatural perspicacity to realize
that this case was not going to continue.
 II. CUSTOMARY INTERNATIONAL LAW

To return to the present case, there is every reason to think that the French
Government, if it had been consulted immediately after the making of the Order of 22
June 1973, would have given the same reply as it did two months later. It would then
have been clear at once that the French Government had no intention of participating in
the written proceedings and that there would be no necessity to allocate it a
three-month period for the production of a Counter-Memorial. In that way the case could
have been ready for hearing by the end of the summer of 1973, which would have
enabled the Court to give its judgment before that year was out. After having deprived
itself of the possibility of holding the oral proceedings during the autumn of 1973, the
Court found itself faced with a request for the extension of the time-limit for the filing of
the Memorial. It is to be regretted that this request, announced three days after the
reading of the Order of 22 June 1973, was not drawn to the Court's attention while it
was yet sitting, which would have enabled it to hold a regular deliberation on the
question of extension. As it happened, the Order of 28 August not only extended the
time-limit fixed for the filing of the Memorial of the Australian Government but also
accompanied this time-limit with a complementary time-limit of five months for the filing
of a Counter-Memorial which the French Government had no intention of presenting.
Those five months merely prolonged the period during which the Australian Government
was able to prepare for the oral proceedings, which was another unjustified favour
accorded to that Government.

But that is not all: the Order of 28 August 1973 also had the result of reversing the order
in which the present case and the Fisheries Jurisdiction cases should have become
ready for hearing. In the latter cases, the Court, after having indicated interim measures
of protection by Orders of 17 August 1972, had found, by its Judgments of 2 February
1973, that it possessed jurisdiction and, by Orders of 15 February 1973, had fixed the
time-limits for the filing of Memorials and Counter-Memorials at 1 August 1973 and 15
January 1974 respectively. If the Order of 28 [p 301] August 1973 extending the
time-limits in the present case had not inter-vened, this case would have been ready for
hearing on 22 December 1973, i.e., before the Fisheries Jurisdiction cases, and would
have had priority over them by virtue of Article 50, paragraph 1, of the 1972 Rules of
Court and Article 46, paragraph 1, of the 1946 Rules of Court which were still applicable
to the Fisheries Jurisdiction cases. After the Order of 28 August 1973 had prolonged the
written proceedings in the present case until 19 April 1974, it was the Fisheries
Jurisdiction cases which became entitled to priority on the basis of the above-mentioned
provisions of the Rules of Court in either of their versions. However, the Court could
have decided to restore the previous order of priority, a decision which Article 50,
paragraph 2, of the 1972 Rules, and Article 46, paragraph 2, of the 1946 Rules, enabled
it to take in special circumstances. The unnecessary character of the time-limit fixed for
the filing of a Counter-Memorial by the French Government was in itself a special
circumstance, but there were others even more weighty. In the Fisheries Jurisdiction
 II. CUSTOMARY INTERNATIONAL LAW

cases, there was no longer any uncertainty concerning the justification for the indication
of interim measures of protection, inasmuch as the Court had found that it possessed
jurisdiction, whereas in the present case this uncertainty had persisted for many
months. Yet France had requested the removal of the case from the list and, supposing
that attitude were justified, had an interest in seeing the proceedings brought to an end
and, with them, the numerous criticisms levelled at it for not applying interim measures
presumed to have been indicated by a Court possessing jurisdiction. Moreover, as
France might during the summer of 1974 be carrying out a new series of atmospheric
nuclear tests, Australia possessed its own interest in having the Court's jurisdiction
confirmed before then, inasmuch as that would have conferred greater authority on the
indication of interim measures.

For all those reasons, the Court could have been expected to decide to take the present
case before the Fisheries Jurisdiction cases. Nevertheless, on 12 March 1974, a
proposal in that sense was rejected by 6 votes to 2, with 6 abstentions. In that way the
Court deprived itself of the possibility of delivering a judgment in the present case
before the end of the critical period of 1974.

The proceedings having been drawn out until the end of 1974 by this series of delays,
the Court has now found that Australia's Application is without object and that it is
therefore not called upon to give a decision thereon.

It is not possible to take up any position vis-à-vis this Judgment without being clear as to
what it signifies in relation to the preliminary questions which, under the terms of the
Order of 22 June 1973, were to be considered by the Court in the present phase of the
proceedings, namely the jurisdiction of the Court to entertain the dispute and the
admissibility of the Application. As the Court has had frequent occasion to state, these
are questions between which it is not easy to distinguish. The ad-[p 302]missibility of the
Application may even be regarded as a precondition of the Court's jurisdiction. In Article
8 of Resolution concerning the Internal Judicial Practice of the Court, competence and
admissibility are placed side by side as conditions to be satisfied before the Court may
undertake the consideration of the merits. It is on that basis that the Order of 22 June
1973 was drawn up. It emerges from its consideranda that the aspects of competence
which are to be examined include, on the one hand, the effects of the reservation
concerning activities connected with national defence which France inserted when it
renewed in 1966 its acceptance of the Court's jurisdiction and, on the other hand, the
relations subsisting between France and Australia by virtue of the General Act of 1928
for the Pacific Settlement of International Disputes, supposing that instrument to be still
in force. However, the Order is not so precise regarding the aspects of the question of
the admissibility of the Application which are to be explored. On the contrary, it specifies
none, and it is therefore by a wholly general enquiry that the Court has to determine
 II. CUSTOMARY INTERNATIONAL LAW

whether it was validly seised of the case. One of the very first prerequisites is that the
dispute should concern a matter governed by international law. If this were not the case,
the dispute would have no object falling within the domain of the Court's jurisdiction,
inasmuch as the Court is only competent to deal with disputes in international law.

The Judgment alludes in paragraph 24 to the jurisdiction of the Court as viewed therein,
i.e., as limited to problems related to the jurisdictional provisions of the Statute of the
Court and of the General Act of 1928. In the words of the first sentence of that
paragraph, "the Court has first to examine a question which it finds to be essentially
preliminary, namely the existence of a dispute, for, whether or not the Court has
jurisdiction in the present case, the resolution of that question could exert a decisive
influence on the continuation of the proceedings". In other words, the Judgment, which
makes no further reference to the question of jurisdiction, indicates that the Court did
not find that there was any necessity to consider or resolve it. Neither—though this it
does not make so plain— does it deal with the question of admissibility.

For my part, I do not believe that it is possible thus to set aside consideration of all the
preliminary questions indicated in the Order of 22 June 1973. More particularly, the
Court ought in my view to have formed an opinion from the outset as to the true
character of the dispute which was the subject of the Application; if the Court had found
that the dispute did not concern a point of international law, it was for that absolutely
primordial reason that it should have removed the case from its list, and not because
the non-existence of the subject of the dispute was ascertained after many months of
proceedings.

It is from that angle that I believe I should consider the question of the admissibility of
Australia's Application. It is still my view that, as I said in the dissenting opinion which I
appended to the Order of 22 June 1973, what is first and foremost necessary is to ask
oneself whether atmospheric tests of nuclear weapons are, generally speaking,
governed by norms of
[p 303] international law, or whether they belong to a highly political domain where the
international norms of legality or illegality are still at the gestation stage. It is quite true
that disputes concerning the interpretation or application of rules of international law
may possess great political importance without thereby losing their inherent character of
being legal disputes. It is nonetheless necessary to distinguish between disputes
revolving on norms of international law and tensions between States caused by
measures taken in a domain not yet governed by international law.

In that connection, I feel it may be useful to recall what has happened in the domain of
human rights. In the relatively recent past, it was generally considered that the
treatment given by a State to its own subjects did not come within the purview of
 II. CUSTOMARY INTERNATIONAL LAW

international law. Even the most outrageous violations of human rights committed by a
State towards its own nationals could not have formed the subject of an application by
another State to an international judicial organ. Any such application would have been
declared inadmissible and could not have given rise to any consideration of the truth of
the facts alleged by the applicant State. Such would have been the situation even in
relations between States having accepted without reservation the optional clause of
Article 36 of the Statute of the Permanent Court of International Justice. The mere
discovery that the case concerned a matter not governed by international law would
have been sufficient to prevent the Permanent Court from adjudicating upon the claim.
To use the terminology of the present proceedings, that would have been a question
concerning the admissibility of the application and not the jurisdiction of the Court. It is
only an evolution subsequent to the Second World War which has made the duty of
States to respect the human rights of all, including their own nationals, an obligation
under international law towards all States members of the international community. The
Court alluded to this in its Judgment in the case concerning the Barcelona Traction,
Light and Power Company, Limited (I.C.J. Reports ¡970, p. 32). It is certainly to be
regretted that this universal recognition of human rights should not, up to now, have
been accompanied by a corresponding evolution in the jurisdiction of international
judicial organs. For want of a watertight system of appropriate jurisdictional clauses, too
many international disputes involving the protection of human rights cannot be brought
to international adjudication. This the Court also recalled in the above-mentioned
Judgment (ibid., p. 47), thus somewhat reducing the impact of its reference to human
rights and thereby leaving the impression of a self-contradiction which has not escaped
the attention of writers.

We can see a similar evolution taking place today in an allied field, that of the protection
of the environment. Atmospheric nuclear tests, envisaged as the bearers of a
particularly serious risk of environmental pollution, are a source of acute anxiety for
present-day mankind, and it is only natural that efforts should be made on the
international plane to erect legal barriers against that kind of test. In the present case,
the ques-[p 304] tion is whether such barriers existed at the time of the filing of the
Australian Application. That Application cannot be considered admissible if, at the
moment when it was filed, international law had not reached the stage of applicability to
the atmospheric testing of nuclear weapons. It has been argued that it is sufficient for
two parties to be in dispute over a right for an application from one of them on that
subject to be admissible. Such would be the situation in the present case, but to my
mind the question of the admissibility of an application cannot be reduced to the
observance of so simple a formula. It is still necessary that the right claimed by the
applicant party should belong to a domain governed by international law. In the present
case, the Application is based upon an allegation that France's nuclear tests in the
Pacific have given rise to radio-active fall-out on the territory of Australia. The Australian
 II. CUSTOMARY INTERNATIONAL LAW

Government considers that its sovereignty has thereby been infringed in a manner
contrary to international law. As there is no treaty link between Australia and France in
the matter of nuclear tests, the Application presupposes the existence of a rule of
customary international law whereby States are prohibited from causing, through
atmospheric nuclear tests, the deposit of radio-active fall-out on the territory of other
States. It is therefore the existence or non-existence of such a customary rule which has
to be determined.

It was suggested in the course of the proceedings that the question of the admissibility
of the Application was not of an exclusively preliminary character and that consideration
of it could be deferred until the examination of the merits. This raises a question
regarding the application of Article 67 of the 1972 Rules of Court. The main motive for
the revision of the provisions of the Rules which are now to be found in that Article was
to avoid the situation in which the Court, having reserved its position with regard to a
preliminary question, orders lengthy proceedings on the substantive aspects of a case
only to find at the end that the answer to that preliminary question has rendered such
proceedings superfluous. It is true that Article 67 refers only to preliminary objections
put forward by the respondent, but it is obvious that the spirit of that Article ought also to
apply to the consideration of any questions touching the admissibility of an application
which the Court is to resolve ex officio. It is also plainly incumbent upon the Court,
under Article 53 of the Statute, to take special care to see that the provisions of Article
67 of the Rules are observed when the respondent is absent from the proceedings.

In sum, the Court, for the first time, has had occasion to apply the provision of its
revised Rules which replaced the former provisions enabling preliminary objections to
be joined to the merits. One may ask where the real difference between the new rule
and the old lies. For my part, I consider that the new rule, like the old, bestows upon the
Court a discretionary power to decide whether, in the initial stage of a case, such and
such a preliminary question ought to be settled before anything else. In exercising this
discretionary power the Court ought, in my view, to assess the degree of complexity of
the preliminary question in relation to [p 305] the whole of the questions going to the
merits. If the preliminary question is relatively simple, whereas consideration of the
merits would give rise to lengthy and complicated proceedings, the Court should settle
the preliminary question at once. That is what the spirit in which the new Article 67 of
the Rules was drafted requires. These considerations appear to me to be applicable to
the present case.

The Court would have done itself the greatest harm if, without resolving the question of
admissibility, it had ordered the commencement of proceedings on the merits in all their
aspects, proceedings which would necessarily have been lengthy and complicated if
only because of the scientific and medical problems involved. It should be recalled that,
 II. CUSTOMARY INTERNATIONAL LAW

in the preliminary stage from which they have not emerged, the proceedings had
already been subjected to considerable delays, which left the Australian Government
ample time to prepare its written pleadings and oral arguments on all aspects of
admissibility. How, in those circumstances, could the consideration of the question have
been postponed to some later date?

As is clear from the foregoing, the admissibility of the Application depends, in my view,
on the existence of a rule of customary international law which prohibits States from
carrying out atmospheric tests of nuclear weapons giving rise to radio-active fall-out on
the territory of other States. Now it is common knowledge, and is admitted by the
Australian Government itself, that any nuclear explosion in the atmosphere gives rise to
radio-active fall-out over the whole of the hemisphere where it takes place. Australia,
therefore, is only one of many States on whose territory France's atmospheric nuclear
tests, and likewise those of other States, have given rise to the deposit of radio-active
fall-out. Since the Second World War, certain States have conducted atmospheric
nuclear tests for the purpose of enabling them to pass from the atomic to the
thermo-nuclear stage in the field of armaments. The conduct of these States proves that
their Governments have not been of the opinion that customary international law
forbade atmospheric nuclear tests. What is more, the Treaty of 1963 whereby the first
three States to have acquired nuclear weapons mutually banned themselves from
carrying out further atmospheric tests can be denounced. By the provision in that sense
the signatories of the Treaty showed that they were still of the opinion that customary
international law did not prohibit atmospheric nuclear tests.

To ascertain whether a customary rule to that effect might have come into being, it
would appear more important to learn what attitude is taken up by States which have
not yet carried out the tests necessary for reaching the nuclear stage. For such States
the prohibition of atmospheric nuclear tests could signify the division of the international
community into two groups: States possessing nuclear weapons and States not
possessing them. If a State which does not possess nuclear arms refrains from carrying
out the atmospheric tests which would enable it to acquire them and if that abstention is
motivated not by political or economic considerations but by a conviction that such tests
are prohibited by [p 306] customary international law, the attitude of that State would
constitute an element in the formation of such a custom. But where can one find proof
that a sufficient number of States, economically and technically capable of
manufacturing nuclear weapons, refrain from carrying out atmospheric nuclear tests
because they consider that customary international law forbids them to do so? The
example recently given by China when it exploded a very powerful bomb in the
atmosphere is sufficient to demolish the contention that there exists at present a rule of
customary international law prohibiting atmospheric nuclear tests. It would be unrealistic
 II. CUSTOMARY INTERNATIONAL LAW

to close one's eyes to the attitude, in that respect, of the State with the largest
population in the world.

To complete this brief outline, one may ask what has been the attitude of the numerous
States on whose territory radio-active fall-out from the atmospheric tests of the nuclear
Powers has been deposited and continues to be desposited. Have they, generally
speaking, protested to these Powers, pointing out that their tests were in breach of
customary international law? I do not observe that such has been the case. The
resolutions passed in the General Assembly of the United Nations cannot be regarded
as equivalent to legal protests made by one State to another and concerning concrete
instances. They indicate the existence of a strong current of opinion in favour of
proscribing atmospheric nuclear tests. That is a political task of the highest urgency, but
it is one which remains to be accomplished. Thus the claim submitted to the Court by
Australia belongs to the political domain and is situated outside the framework of
international law as it exists today.

I consider, consequently, that the Application of Australia was, from the very institution
of proceedings, devoid of any object on which the Court could give a decision, whereas
the Judgment finds only that such an object is lacking now. I concur with the Judgment
so far as the outcome to be given the proceedings is concerned, i.e., that the Court is
not called upon to give a decision, but that does not enable me to associate myself with
the grounds on which the Judgment is based. The fact that I have nevertheless voted
for it is explained by the following considerations.

The method whereby the judgments of the Court are traditionally drafted implies that a
judge can vote for a judgment if he is in agreement with the essential content of the
operative part, and that he can do so even if he does not accept the grounds advanced,
a fact which he normally makes known by a separate opinion. It is true that this method
of ordering the matter is open to criticism, more particularly because it does not rule out
the adoption of judgments whose reasoning is not accepted by the majority of the
judges voting in favour of them, but such is the practice of the Court. According to this
practice, the reasoning, which represents the fruit of the first and second readings in
which all the judges participate, precedes the operative part and can no longer be
changed at the moment when the vote is taken at the end of the second reading. This
vote concerns solely the operative part and is not followed by the indi-[p 307]cation of
the reasons upheld by each judge. In such circumstances, a judge who disapproves of
the reasoning of the judgment but is in favour of the outcome achieved by the operative
clause feels himself obliged, in the interests of justice, to vote for the judgment, because
if he voted the other way he might frustrate the correct disposition of the case. The
present phase of the proceedings in this case was in reality dominated by the question
whether the Court could continue to deal with the case. On that absolutely essential
 II. CUSTOMARY INTERNATIONAL LAW

point I reached the same conclusion as the Judgment, even if my grounds for doing so
were different.

I have therefore been obliged to vote for the Judgment, even though I do not subscribe
to any of its grounds. Had I voted otherwise I would have run the risk of contributing to
the creation of a situation which would have been strange indeed for a Court whose
jurisdiction is voluntary, a situation in which the merits of a case would have been
considered even though the majority of the judges considered that they ought not to be.
It is precisely that kind of situation which Article 8 of the Resolution concerning the
Internal Judicial Practice of the Court is designed to avoid.

I have still to explain my position with regard to the question of the Court's jurisdiction, in
the sense given to that term by the Order of 22 June 1973. As the Judgment expressly
states, this many-faceted question is not examined therein. That being so, and as I
personally do not feel any need to examine it in order to conclude in favour of the
disposition of the case for which I have voted, I think that there is no place in this
separate opinion for any account of the ideas I have formed on the subject. A separate
opinion, as I conceive it, ought not to broach any questions not dealt with by the
judgment, unless it is absolutely necessary to do so in order to explain the author's vote.
I have therefore resisted the temptation to engage in an exchange of views on
jurisdiction with those of my colleagues who have gone into this question in their
dissenting opinions. A debate between judges on matters not dealt with in the judgment
is not likely to add up to anything more than a series of unrelated monologues—or
choruses. For whatever purpose it may serve, however, I must stress that my silence on
the subject does not signify consent to the proposition that the Court had jurisdiction.

(Signed) Sture Petren.

[p 308]

Separate Opinion of Judge Ignacio-Pinto

[Translation]

I concur in the Judgment delivered by the Court in the second phase of this case, but
without entirely sharing the grounds on which it has relied to reach the conclusion that
the Australian claim "no longer has any object".
 II. CUSTOMARY INTERNATIONAL LAW

Before explaining on what points my reasoning differs from that of the Court, I must
refer to the Order of 22 June 1973, by which the Court, after having acceded to
Australia's request for the indication of interim measures of protection, decided that the
proceedings would next be con-cerned with the questions of jurisdiction and
admissibility. The Court having thus defined the character which the present phase of
the proceedings was to possess, I find myself, much to my regret, impelled not to
criticize the Court's Judgment, but to present the following observations in order
unequivocally to substantiate my separate opinion in the matter.

First I wish to confirm my view, already set forth in the dissenting opinion which I
appended to the above-mentioned Order of 22 June 1973, that, considering the all too
markedly political character of this case, Australia's request for the indication of interim
measures of protection ought to have been rejected as ill founded. Now that we have
come to the end of these proceedings and before going any further, I think it useful to
recall certain statements emanating from the competent authorities of the Australian
Government which give the plainest possible illustration of the political character of this
case.

I would first draw attention to the statement made by the Prime Minister and Minister for
Foreign Affairs of Australia in a Note of 13 February 1973 to the Minister for Foreign
Affairs of the French Government (Application, Ann. 11, p. 62):

"In my discussion with your Ambassador on 8 February 1973, I referred to the strength
of public opinion in Australia about the effects of French tests in the Pacific. I explained
that the strength of public opinion was such that, whichever political party was in office,
it would be under great pressure to take action. The Australian public would consider it
intolerable if the nuclear tests proceeded during discussions to which the Australian
Government had agreed." (Emphasis added.)

Secondly I wish to recall what the Solicitor-General of Australia said at the hearing
which the Court held on 22 May 1973:

"May I conclude, Mr. President, by saying that few Orders of the Court would be more
closely scrutinized than the one which the [p 309]Court will make upon this application.
Governments and people all over the world will look behind the contents of that Order to
detect what they may presume to be the Court's attitude towards the fundamental
question of the legality of further testing of nuclear weapons in the atmosphere."
(Emphasis added.)
 II. CUSTOMARY INTERNATIONAL LAW

It appears therefore, taking into account my appreciation of the political character of the
claim, that it was from the beginning that, basing myself on this point, I had considered
the claim of Australia to be without object.

That said, I now pass to the observations for which my appraisal of the Court's
Judgment calls, together with the explanation of my affirmative vote.

First of all, I consider that the Court, having called upon the Applicant to continue the
proceedings and return before it so that it might rule upon its jurisdiction to entertain the
case and on the admissibility of the Application, ought to treat these two questions
clearly, especially as certain erroneous interpretations appear to have lent credence
among the lay public to the idea that Australia "had won its case against France", since
in the final analysis it had obtained the object of its claim, which was to have France
forbidden to continue atmospheric nuclear testing.

As I see the matter, it is extremely regrettable that the Court should have thought it
ought to omit doing this, so that unresolved problems remain with regard to the validity
of the 1928 General Act, relied on by Australia, as also to the declaration filed under
Article 36, paragraph 2, of the Statute and the express reservations made by France in
1966 so far as everything connected with its national defence was concerned. It would
likewise have been more judicious to give an unequivocal ruling on the question of
admissibility, having regard to what I consider to be the definitely political character
revealed by the Australian claim, as I have recalled above.

These, I find, are so many important elements which deserved to be taken into
consideration in order to enable the Court to give a clear pronouncement on the
admissibility of Australia's claim, more particularly as the objective of this claim is to
have the act of a sovereign State declared unlawful even though it is not possible to
point to any positive international law.

I must say in these circumstances that I personally remain unsatisfied as to the

procedure followed and certain of the grounds relied on by the Court for reaching the
conclusion that the claim no longer has any object.

I nevertheless adhere to that conclusion, which is consistent with the position which I
have maintained from the outset of the proceedings in the first phase; I shall content
myself with the Court's recognition that the Australian Application "no longer" has any
object, on the understan-ding, nevertheless, that for me it never had any object, and
ought to have [p 310] been declared inadmissible in limine litis and, therefore, removed
from the list for the reasons which I gave in the dissenting opinion to which I have
referred above.
 II. CUSTOMARY INTERNATIONAL LAW

The fact remains that, to my mind, the Court was right to take the decision it has taken
today. I gladly subscribe—at least in part—to the considerations which have led to its
doing so, for, failing the adoption by the Court of my position on the issues of jurisdiction
and the admissibility of the Australian claim, I would in any case have been of the view
that it should take into consideration, at least in the alternative, the new facts which
supervened in the course of the present proceedings and after the closure of the oral
proceedings, to wit various statements by interested States, with a view to ascertaining
whether circumstances might not have rendered the object of the Application nugatory.
Since, in the event, it emerges that the statements urbi et orbi of the competent French
authorities constitute an undertaking on the part of France to carry out no more nuclear
tests in the atmosphere, 1 can only vote in favour of the Judgment.

It is in effect evident that one could not rule otherwise than the Court has done, when
one analyses objectively the various statements emanating whether from the Applicant
or from France, which, confident in the reservations embodied in the declaration filed
under Article 36, paragraph 2, of the Statute, contested the Court's jurisdiction even
before the opening of oral proceedings.

As should be re-emphasized, it cannot be denied that the essential object of Australia's

claim is to obtain from the Court the cessation by France of the atmospheric nuclear
tests it has been conducting in the atoll of Mururoa which is situated in the South Pacific
and is under French sovereignty. Consequently, if France had changed its attitude, at
the outset of the proceedings, and had acquiesced in Australia's request that it should
no longer carry out its tests, the goal striven for by the Applicant would have been
attained and its claim would no longer have had any object. But now the Court has been
led by the course of events to take note that the President of the French Republic and
his competent ministers have made statements to the effect that the South Pacific test
centre will not be carrying out any more atmospheric nuclear tests. It follows that the
goal of the Application has been attained. That is a material finding which cannot
properly be denied, for it is manifest that the object of the Australian claim no longer has
any real existence. That being so, the Court is bound to accord this fact objective
recognition and to conclude that the proceedings ought to be closed, inasmuch as it has
acquired the conviction that, taking the circumstances in which they were made into
account, the statements of the competent French authorities are sufficient to constitute
an undertaking on the part of France which connotes a legal obligation erga omnes,
despite the unilateral character of that undertaking.

One may regret—and I do regret—that the Court, particularly at this stage, did not
devote more of its efforts to seeking a way of first settling [p 311] the questions of
jurisdiction and admissibility. Some would doubtless go so far as strongly to criticize the
 II. CUSTOMARY INTERNATIONAL LAW

grounds put forward by the Court to substantiate its decision. I could not take that
attitude, for in a case so exceptionally characterized by politico-humanitarian
considerations, and in the absence of any guiding light of positive international law, I do
not think the Court can be blamed for having chosen, for the settlement of the dispute,
the means which it considered to be the most appropriate in the circumstances, and to
have relied upon the undertaking, made urbi et orbi in official statements by the
President of the French Republic, that no more atmospheric nuclear tests will be carried
out by the French Government. Thus the Judgment rightly puts an end to a case one of
whose consequences would, in my opinion, be disastrous—I refer to the disregard of
Article 36, paragraph 2, of the Statute of the Court—and would thereby be likely to
precipitate a general flight from the jurisdiction of the Court, inasmuch as it would
demonstrate that the Court no longer respects the expression of the will of a State
which has subordinated its acceptance of the Court's compulsory jurisdiction to express
reservations.

In spite of the criticisms which some of my colleagues have expressed in their opinions,
and sharing as I do the opinion of Judge Forster, I will say, bearing in mind the old
adage that "all roads lead to Rome", that I find the Judgment just and well founded and
that there is, at all events, nothing in the French statements "which could be interpreted
as an admission of any breach of positive international law".

In conclusion, I would like to emphasize once again that I am fully in agreement with
Australia that all atmospheric nuclear tests whatever should be prohibited, in view of
their untold implications for the survival of mankind. I am nevertheless convinced that in
the present case the Court has given a proper Judgment, which meets the major
anxieties which I expressed in the dissenting opinion to which I have referred, inasmuch
as it must not appear to be flouting the principles expressed in Article 2, paragraph 7, of
the United Nations Charter (Order of 22 June 1973, I.C.J. Reports 1973, p. 130), and
indirectly inasmuch as it respects the principle of sovereign equality of the member
States of the United Nations. France must not be given treatment inferior to that given to
all other States possessing nuclear weapons, and the Court's competence would not be
well founded if it related only to the French atmospheric tests.

(Signed) L. Ignacio-Pinto .

[p312]

Joint dissenting opinion of judges Onyeama, Dillard, Jimenez de Arechaga and sir
Humphrey Waldock
 II. CUSTOMARY INTERNATIONAL LAW

1. In its Judgment the Court decides, ex proprio motu, that the claim of the Applicant no
longer has any object. We respectfully, but vigorously dissent. In registering the reasons
for our dissent we propose first to make a number of observations designed to explain
why, in our view, it is not justifiable to say that the claim of the Applicant no longer has
any object. We shall then take up the issues of jurisdiction and admissibility which are
not examined in the Judgment but which appear to us to be of cardinal importance to
the Court's treatment of the matters decided in the Judgment. It is also to these two
issues, not touched in the Judgment, to which the Applicant was specifically directed to
address itself in the Court's Order of 22 June 1973.
Part I. Reasons for Our Dissent

2. Basically, the Judgment is grounded on the premise that the sole object of the claim
of Australia is "to obtain a termination of" the "atmospheric nuclear tests conducted by
France in the South Pacific region" (para. 30). It further assumes that, although the
judgment which the Applicant seeks would have been rested on a finding that "further
tests would not be consistent with international law, such finding would be only a means
to an end, and not an end in itself" (ibid.).

3. In our view the basic premise of the Judgment, which limits the Applicant's
submissions to a single purpose, and narrowly circumscribes its objective in pursuing
the present proceedings, is untenable. In consequence the Court's chain of reasoning
leads to an erroneous conclusion. This occurs, we think, partly because the Judgment
fails to take account of the purpose and utility of a request for a declaratory judgment
and even more because its basic premise fails to correspond to and even changes the
nature and scope of Australia's formal submissions as presented in the Application.

4. In the Application Australia:

". . . Asks the Court to adjudge and declare that, for the above-mentioned reasons or
any of them or for any other reason that the Court deems to be relevant, the carrying
out of further atmospheric nuclear weapon tests in the South Pacific Ocean is not
consistent with applicable rules of international law.[p 313]

and to Order

that the French Republic shall not carry out any further such tests."

5. This submission, as observed by counsel for Australia before the Court (CR 73/3, p.
60):
 II. CUSTOMARY INTERNATIONAL LAW

". . . has asked the Court to do two things: the first is to adjudge and declare that the
conduct of further atmospheric nuclear tests is contrary to international law and to
Australia's rights; the second is to order France to refrain from further atmospheric
nuclear tests".

As appears from the initial words of the actual submission, its first part requests from
the Court a judicial declaration of the illegality of atmospheric tests conducted by France
in the South Pacific Ocean.

6. In paragraph 19 of the Application it is stated that:

"The Australian Government will seek a declaration that the holding of further
atmospheric tests by the French Government in the Pacific Ocean is not in accordance
with international law and involves an infringement of the rights of Australia. The
Australian Government will also request that, unless the French Government should
give the Court an undertaking that the French Government will treat a declaration by the
Court in the sense just stated as a sufficient ground for discontinuing further
atmospheric testing, the Court should make an order calling upon the French Republic
to refrain from any further atmospheric tests." (Emphasis added.)

In other words, the request for a declaration is the essential submission. If a declaration
of illegality were obtained from the Court which the French Government agreed to treat
as a sufficient ground for discontinuing further atmospheric tests, then Australia would
not maintain its request for an Order.

Consequently, it can hardly be said, as is done in paragraph 30 of the Judgment, that

the declaration of illegality of atmospheric tests asked for in the first part of the
Applicant's formal submission is merely a means for obtaining a Court Order for the
cessation of further tests. On the contrary, the declaration of illegality is the basic claim
submitted by Australia to the Court; and this request is indeed described in the
Memorial (para. 430) as the "main prayer in the Application".

7. The Applicant asks for a judicial declaration to the effect that atmospheric nuclear
tests are "not consistent. . . with international law". This bare assertion cannot be
described as constituting merely a reason advanced in support of the Order. The legal
reasons invoked by the Applicant both in support of the declaration and the Order relate
inter alia to the alleged violation by France of certain rules said to be generally [p 314]
accepted as customary law concerning atmospheric nuclear tests; and its alleged
infringement of rights said to be inherent in the Applicant's own territorial sovereignty
and of rights derived from the character of the high seas as res communis. These
reasons, designed to support the submissions, are clearly distinguished in the pleadings
 II. CUSTOMARY INTERNATIONAL LAW

from the decisions which the Court is asked to make. According to the terms of the
submission the Court is requested to make the declaration of illegality "for the
above-mentioned reasons or any of them or for any other reason that the Court deems
to be relevant". Isolated from those reasons or legal propositions, the declaration that
atmospheric nuclear tests are "not consistent with applicable rules of international law"
is the precise formulation of something that the Applicant is formally asking the Court to
decide in the operative part of the Judgment. While "it is no part of the judicial function
of the Court to declare in the operative part of its Judgment that any of those arguments
is or is not well founded FN1" to decide and declare that certain conduct of a State is or
is not consistent with international law is of the essence of international adjudication, the
heart of the Court's judicial function.

---------------------------------------------------------------------------------------------------------------------
FN1 Right of Passage over Indian Territory, I.C.J. Reports 1960, p. 32.
---------------------------------------------------------------------------------------------------------------------

8. The Judgment asserts in paragraph 30 that "the original and ultimate objective of the
Applicant was and has remained to obtain a termination of those tests; thus its claim
cannot be regarded as being a claim for a declaratory judgment". In our view the
premise in no way leads to the conclusion. In international litigation a request for a
declaratory judgment is normally sufficient even when the Applicant's ultimate objective
is to obtain the termination of certain conduct of the Respondent which it considers to
be illegal. As Judge Hudson said in his individual opinion in the Diversion of Water from
the Meuse case:

"In international jurisprudence, however, sanctions are of a different nature and they
play a different role, with the result that a declaratory judgment will frequently have the
same compulsive force as a mandatory judgment; States are disposed to respect the
one not less than the other." (P.C.I.J., Series A/B, No. 70, p. 79.)

And, as Charles De Visscher has stated:

"The essential task of the Court, as emerges both from the submissions of the parties
and from the operative parts of its judgments, normally amounts to no more than
defining the legal relationships between the parties, without indicating any specific
requirements of conduct. Broadly speaking, the Court refrains from pronouncing
condemnations and leaves it to the States parties to the case to draw the conclusions
flowing from its decisions FN2." [Translation.]

------------------------------------------------------------------------------------------------------------
 II. CUSTOMARY INTERNATIONAL LAW

FN2 Ch. De Visscher, Aspects recents du droit procedural de la Cour internationale de

Justice, Paris, 1966, p. 54.
------------------------------------------------------------------------------------------------------------
[p 315]

9. A dual submission, like the one presented here, comprising both a request for a
declaration of illegality and a prayer for an order or injunction to end certain measures is
not infrequent in international litigation.

This type of dual submission, when presented in other cases has been considered by
this Court and its predecessor as containing two independent formal submissions, the
first or declaratory part being treated as a true submission, as an end in itself and not
merely as part of the reasoning or as a means to obtain the cessation of the alleged
unlawful activity. (Diversion of Water from the Meuse, P.C.I.J., Series A/B, No. 70, pp. 5,
6 and 28; Right of Passage over Indian Territory, I.C.J. Reports I960, pp. 10 and 31.)

The fact that consequential requests for an Order or an equivalent injunction are made,
as they were made in the above-mentioned cases, was not then considered and cannot
be accepted as a sufficient reason to ignore or put aside the Applicant's primary
submission or to dispose of it as part of the reasoning. Nor is it justified to introduce a
conceptual dichotomy between declaratory and other judgments in order to achieve the
same effect. The fact that the Applicant's submissions are not limited to a declaration of
the legal situation but also ask for some consequential relief cannot be used to set aside
the basic submission in which the declaration of the legal situation is asked to be made
in the operative part of the Judgment.

10. In the above-mentioned cases the judges who had occasion to analyse in detail in
their individual opinions the Applicant's submissions recognized that in these basic
submissions the Applicants sought a declaratory judgment from the Court. The
individual opinion of Judge Hudson in the Diversion of Water from the Meuse case has
already been mentioned. In the Right of Passage over Indian Territory case, Judges
Winiarski and Badawi in their dissenting opinion recognized that: "What the Portuguese
Government is asking of the Court, therefore, is that it shall deliver in the first place a
declaratory judgment." They added something which is fully applicable to the present
case:

". . . although this claim is followed by the two others, complementary and contingent, it
constitutes the very essence of the case . . .
 II. CUSTOMARY INTERNATIONAL LAW

The object of the suit, as it follows from the first Portuguese submission, is to obtain
from the Court a recognition and statement of the situation at law between the Parties"
(I.C.J. Reports I960, p. 74).

Judge Armand-Ugon in his dissenting opinion also said: "The Court is asked for a
declaratory judgment as to the existence of a right of passage." (Ibid., p. 77.) And this
approach was not limited to dissenting opinions. The Court's Judgment in that case
states that the Applicant [p 316]"invoked its right of passage and asked the Court to
declare the existence of that right" (emphasis added) and also says:

"To this first claim Portugal adds two others, though these are conditional upon a reply,
wholly or partly favourable, to the first claim, and will lose their purpose if the right
alleged is not recognized." (Ibid., p. 29.)

11. In a case brought to the Court by means of an application the formal submissions of
the parties define the subject of the dispute, as is recognized in paragraph 24 of the
Judgment. Those submissions must therefore be considered as indicating the
objectives which are pursued by an applicant through the judicial proceedings.

While the Court is entitled to interpret the submissions of the parties, it is not authorized
to introduce into them radical alterations. The Permanent Court said in this respect: ". . .
though it can construe the submissions of the Parties, it cannot substitute itself for them
and formulate new submissions simply on the basis of arguments and facts advanced"
(P.C.I.J., Series A, No. 7, p. 35, case concerning Certain German Interests in Polish
Upper Silesia). The Judgment (para. 29) refers to this as a limitation on the power of the
Court to interpret the submissions "when the claim is not properly formulated because
the submissions of the parties are inadequate". If, however, the Court lacks the power to
reformulate inadequate submissions, a fortiori it cannot reformulate submissions as
clear and specific as those in this case.

12. In any event, the cases cited in paragraph 29 of the Judgment to justify the setting
aside in the present instance of the Applicant's first submission do not, in our view,
provide any warrant for such a summary disposal of the "main prayer in the
Application". In those cases the sub-missions held by the Court not to be true
submissions were specific propositions advanced merely to furnish reasons in support
of the decision requested of the Court in the "true" final submission. Thus, in the
Fisheries case the Applicant had summarized in the form of submissions a whole series
of legal propositions, some not even contested, merely as steps logically leading to its
true final submissions (I.C.J. Reports 1951, at pp. 121-123 and 126). In the Minquiers
and Ecrehos case the "true" final submission was stated first and two legal propositions
were then adduced by way of furnishing alternative grounds on which the Court might
 II. CUSTOMARY INTERNATIONAL LAW

uphold it (I.C.J. Reports 1953, at p. 52); and in the Nottebohm case a submission
regarding the naturalization of Nottebohm in Liechtenstein was considered by the Court
to be merely "a reason advanced for a decision by the Court in favour of Liechtenstein"
on the "real issue" of the admissibility of the claim (I.C.J. Reports 1955, at p. 16). In the
present case, as we have indicated, the situation is quite otherwise. The legality or
illegality of the carrying out by France of atmospheric nuclear tests in the South Pacific
Ocean is the basic issue submitted to the Court's decision, and it seems to us as wholly
unjustifiable to treat the Applicant's request [p 317] for a declaration of illegality merely
as reasoning advanced in support of its request for an Order prohibiting further tests.

13. In accordance with these basic principles, the true nature of the Australian claim,
and of the objectives sought by the Applicant ought to have been determined on the
basis of the clear and natural meaning of the text of its formal submission. The
interpretation of that submission made by the Court constitutes in our view not an
interpretation but a revision of the text, which ends in eliminating what the Applicant
stated is "the main prayer in the Application", namely the request for a declaration of
illegality of nuclear atmospheric tests in the South Pacific Ocean. A radical alteration or
mutilation of an applicant's submission under the guise of interpretation has serious
consequences because it constitutes a frustration of a party's legitimate expectations
that the case which it has put before the Court will be examined and decided. In this
instance the serious consequences have an irrevocable character because the
Applicant is now prevented from resubmitting its Application and seising the Court again
by reason of France's denunciation of the instruments on which it is sought to base the
Court's jurisdiction in the present dispute.

14. The Judgment revises, we think, the Applicant's submission by bringing in other
materials such as diplomatic communications and statements made in the course of the
hearings. These materials do not justify, however, the interpretation arrived at in the
Judgment. They refer to requests made repeatedly by the Applicant for an assurance
from France as to the cessation of tests. But these requests for an assurance cannot
have the effect attributed to them by the Judgment. While litigation is in progress an
applicant may address requests to a respondent to give an assurance that it will not
pursue the contested activity, but such requests cannot by themselves support the
inference that an unqualified assurance, if received, would satisfy all the objectives the
applicant is seeking through the judicial proceedings; still less can they restrict or
amend the claims formally submitted to the Court. According to the Rules of Court, this
can only result from a clear indication by the applicant to that effect, through a
withdrawal of the case, a modification of its submissions or an equivalent action. It is not
for nothing that the submissions are required to be presented in writing and bear the
signature of the agent. It is a non sequitur, therefore, to interpret such requests for an
assurance as constituting an implied renunciation, a modification or a withdrawal of the
 II. CUSTOMARY INTERNATIONAL LAW

claim which is still maintained before the Court, asking for a judicial declaration of
illegality of atmospheric tests. At the very least, since the Judgment attributes intentions
and implied waivers to the Applicant, that Party should have been given an opportunity
to explain its real intentions and objectives, instead of proceeding to such a
determi-nation inaudita parte.

***

[p 318]

15. The Judgment, while it reiterates that the Applicant's objective has been to bring
about the termination of atmospheric nuclear tests, fails to examine a crucial question,
namely from what date the Applicant sought to achieve this objective. To answer this
point it is necessary to take into account the date from which, according to the
Australian submission, the legality of the French atmospheric tests is brought into
question. The term "further atmospheric tests" used in the submission was also
employed in the Australian diplomatic Note of 3 January 1973 addressed to the French
Government. In that Note the claim as to the illegality of the tests and an express
request to refrain from them were raised for the first time. When a State sends a
communication asking another State "to refrain from any further acts" which are said to
be illegal, it seems obvious that this claim and request refer to all acts which may take
place after the date of the diplomatic communication. Similarly, when Australia filed its
Application it seems evident that its request to the Court to declare the illegality of
"further atmospheric nuclear weapons tests" must be understood as referring to all tests
conducted as from 9 May 1973, the date of the Application.

While an injunction or an Order from the Court on the holding of "further atmospheric
tests" could have effect only as from the date it is delivered, a judicial declaration of
illegality like the one requested would embrace not merely subsequent tests but also
those which took place in 1973 and 1974 after the Application was filed. That such was
the objective of the Applicant is confirmed by the fact that as soon as the Application
was filed Australia requested interim measures in order to protect its position with
regard to the possible continuation of atmospheric tests by France after the filing of the
Application and before the delivery of the Court's Judgment on the merits. A request for
a declaration of illegality covering the atmospheric tests which were conducted in 1973
and 1974, in disregard of the interim Order of the Court, could not be deprived of its
object by statements of intention limited to tests to be conducted in 1975 or thereafter.

16. Such a view of the matter takes no account of the possibility of Australia seeking to
claim compensation in respect of the 12 tests conducted in 1973 and 1974. It is true that
the Applicant has not asked for compensation for damage in the proceedings which are
 II. CUSTOMARY INTERNATIONAL LAW

now before the Court. However, the Australian Government has not waived its right to
claim them in the future. It has significantly stated in the Memorial (para. 435) that: "At
the present time" (emphasis added), it is not the "intention of the Australian Government
to seek pecuniary damages". The possibility cannot therefore be excluded that the
Applicant may intend to claim damages, at a later date, through the diplomatic channel
or otherwise, in the event of a favourable decision furnishing it with a declaration of
illegality. Such a procedure, which has been followed in previous cases before
international tribunals, would have been particu-[p 319]larly understandable in a case
involving radio-active fall-out in which the existence and extent of damage may not
readily be ascertained before some time has elapsed.

17. In one of the instances in which damages have been claimed in a subsequent
Application on the basis of a previous declaratory judgment, the Permanent Court
endorsed this use of the declaratory judgment, stating that it was designed:

"... to ensure recognition of a situation at law, once and for all, and with binding force as
between the Parties; so that the legal position thus established cannot again be called
in question in so far as the legal effects ensuing therefrom are concerned" (Factory at
Chorzów, P.C.I.J., Series A, No. 13, p. 20).

18. Furthermore, quite apart from any claim to compensation for damage, a request for
a declaration of the illegality of France's atmospheric nuclear weapon tests cannot be
said to be without object in relation to the numerous tests carried out in 1973 and 1974.
The declaration, if obtained, would characterize those tests as a violation of Australia's
rights under international law. As the Court's Judgment in the Corfu Channel case
clearly confirms (I.C.J. Reports 1949, at p. 35) such a declaration is a form of
"satisfaction" which the Applicant might have legitimately demanded when it presented
its final submissions in the present proceedings, independently of any claim to
compensation. Indeed, in that case the Court in the operative part of the Judgment
pronounced such a declaration as constituting "in itself appropriate satisfaction" (ibid., p.
36).

***

19. The Judgment implies that there was a dispute between the Parties, but asserts that
such a dispute has now disappeared because "the objective of the claim has been
achieved by other means" (para. 55).

We cannot agree with this finding, which is based on the premise that the sole purpose
of the Application was to obtain a cessation of tests as from the date of the Judgment.
In our view the dispute between the Parties has not disappeared since it has concerned,
 II. CUSTOMARY INTERNATIONAL LAW

from its origin, the question of the legality of the tests as from the date of the
Application. It is true that from a factual point of view the extent of the dispute is reduced
if no further atmospheric tests are conducted in 1975 and thereafter, but from a legal
point of view the question which remains in dispute is whether the atmospheric nuclear
tests which were in fact conducted in 1973 and 1974 were consistent with the rules of
international law.

There has been no change in the position of the Parties as to that issue. Australia
continues to ask the Court to declare that atmospheric nuclear [p 320] tests are
inconsistent with international law and is prepared to argue and develop that point.
France, on its part, as recognized in the Judgment (para. 51), maintains the view that
"its nuclear experiments have not violated any rule of international law". In announcing
the cessation of the tests in 1975 the French Government, according to the Judgment,
did not recognize that France was bound by any rule of international law to terminate its
tests (ibid.).

Consequently, the legal dispute between the Parties, far from having disappeared, still
persists. A judgment by the Court on the legality of nuclear atmospheric tests in the
South Pacific region would thus pronounce on a legal question in which the Parties are
in conflict as to their respective rights.

20. We cannot accept the view that the decision of such a dispute would be a judgment
in abstracto, devoid of object or having no raison d'être. On the contrary, as has been
already shown, it would affect existing legal rights and obligations of the Parties. In case
of the success of the Applicant, it would ensure for it advantages on the legal plane. In
the event, on the other hand, of the Respondent being successful, it would benefit that
Party by removing the threat of an unfounded claim. Thus a judgment on the legality of
atmospheric nuclear tests would, as stated by the Court in the Northern Cameroons
case:

". . . 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" (I.C.J.
Reports 1963, p. 34).

In the light of this statement, a declaratory judgment stating the general legal position
applicable between the Parties—as would the one pronouncing on the first part of the
Applicant's submission—would have given the Parties certainty as to their legal
relations. This desired result is not satisfied by a finding by the Court of the existence of
a unilateral engagement based on a series of declarations which are somewhat
divergent and are not accompanied by an acceptance of the Applicant's legal
contentions.
 II. CUSTOMARY INTERNATIONAL LAW

Moreover, the Court's finding as to that unilateral engagement regarding the recurrence
of atmospheric nuclear tests cannot, we think, be considered as affording the Applicant
legal security of the same kind or degree as would result from a declaration by the Court
specifying that such tests contravened general rules of international law applicable
between France and Australia. This is shown by the very fact that the Court was able to
go only so far as to find that the French Government's unilateral undertaking "cannot be
interpreted as having been made in implicit reliance on an arbitrary power of
reconsideration" (emphasis added); and that the obligation undertaken is one "the
precise nature and limits of which must be understood in accordance with the actual
terms in which they have been publicly expressed". [p 321]

21. Whatever may be thought of the Judgment in the Northern Cameroons case, the
Court in that case recognized a critically significant distinction between holding a
declaratory judgment to be "without effect" the subject of which (as in that case) was a
treaty which was no longer in force and one which "interprets a treaty that remains in
force" (emphasis added) or "expounds a rule of customary law" (emphasis added). As
to both the latter, the Court said that the declaratory judg-ment would have a "continuing
applicability" (I.C.J. Reports 1963, p. 37). In other words, according to the Northern
Cameroons case a judgment cannot be said to be "without effect" or an issue moot
when it concerns an analysis of the continuing applicability of a treaty in force or of
customary international law. That is precisely the situation in the present case.

The present case, as submitted by the Applicant, concerns the continuing applicability
of a potentially evolving customary international law, elaborated at numerous points in
the Memorial and oral arguments. Whether all or any of the contentions of the Applicant
would or would not be vindicated at the stage of the merits is irrelevant to the central
issue that they are not manifestly frivolous or vexatious but are attended by legal
consequences in which the Applicant has a legal interest. In the language of the
Northern Cameroons case, a judgment dealing with them would have "continuing
applicability". Issues of both fact and law remain to be clarified and resolved.

The distinction drawn in the Northern Cameroons case is thus in keeping with the
fundamental purpose of a declaratory judgment which is designed, in contentious
proceedings involving a genuine dispute, to clarify and stabilize the legal relations of the
parties. By foreclosing any argument on the merits in the present stage of the
proceedings the Court has precluded this possibility. Accordingly, the Court, in our view,
has not only wrongly interpreted the thrust of the Applicant's submissions, is has also
failed to recognize the valid role which a declaratory judgment may play in reducing
uncertainties in the legal relations of the parties and in composing potential discord.
 II. CUSTOMARY INTERNATIONAL LAW

***

22. In paragraph 23 the Judgment states that the Court has "inherent" jurisdiction
enabling it to take such action as may be required. It asserts that it must "ensure" the
observance of the "inherent limitations on the exercise of the judicial function of the
Court" and "maintain its judicial [p 322] character". It cites the Northern Cameroons
case in support of these very general statements.

Without pausing to analyse the meaning of the adjective "inherent", it is our view that
there is nothing whatever in the concept of the integrity of the judicial process
("inherent" or otherwise) which suggests, much less compels, the conclusion that the
present case has become "without object". Quite the contrary, due regard for the judicial
function, properly understood, dictates the reverse.

The Court, "whose function is to decide in accordance with international law such
disputes as are submitted to it" (Art. 38, para. 1, of the Statute), has the duty to hear
and determine the cases it is seised of and is competent to examine. It has not the
discretionary power of choosing those contentious cases it will decide and those it will
not. Not merely requirements of judicial propriety, but statutory provisions governing the
Court's constitution and functions impose upon it the primary obligation to adjudicate
upon cases broughl before it with respect to which it possesses jurisdiction and finds no
ground of inadmissibility. In our view, for the Court to discharge itself from carrying out
that primary obligation must be considered as highly exceptional and a step to be taken
only when the most cogent considerations of judicial propriety so require. In the present
case we are very far from thinking that any such considerations exist.

23. Furthermore, any powers which may attach to "the inherent jurisdiction" of the Court
and its duty "to maintain its judicial character" invoked in the Judgment would, in our
view, require it at least to give a hearing to the Parties or to request their written
observations on the questions dealt with and determined by the Judgment. This applies
in particular to the objectives the Applicant was pursuing in the proceedings, and to the
question of the status and scope of the French declarations concerning future tests.
Those questions could not be examined fully and substantially in the pleadings and
hearings, since the Parties had received definite directions from the Court that the
proceedings should "first be addressed to the questions of the jurisdiction of the Court to
entertain the dispute, and of the admissibility of the Application". No intimation or
suggestion was ever given to the Parties that this direction was no longer in effect or
that the Court would go into other issues which were neither pleaded nor argued but
which now form the basis for the final disposal of the case.
 II. CUSTOMARY INTERNATIONAL LAW

It is true that counsel for the Applicant alluded to the first French declaration of intention
during one of the hearings, but he did so only as a prelude to his treatment of the issues
of jurisdiction and admissibility and in the context of a review of developments in relation
to the proceedings. He was moreover then acting under formal directions from the Court
to deal exclusively with the questions of jurisdiction and admissibility of the Application.
Consequently, counsel for the Applicant could not and did not address himself to the
specific issues now decided in the Judgment, namely what were the objectives sought
by the Applicant by [p 323] the judicial proceedings and whether the French
declarations and statements had the effect of rendering the claim of Australia without
object.

The situation is in this respect entirely different from that arising in the Northern
Cameroons case where the Parties had full opportunity to plead, both orally and in
writing, the question whether the claim of the Applicant had an object or had become
"moot" before this was decided by the Court.

Accordingly, there is a basic contradiction when the Court invokes its "inherent
jurisdiction" and its "judicial character" to justify its disposal of the case, while, at the
same time, failing to accord the Applicant any opportunity whatever to present a
countervailing argument.

No-one doubts that the Court has the power in its discretion to decide certain issues ex
proprio motu. The real question is not one of power, but whether the exercise of power
in a given case is consonant with the due administration of justice. For all the reasons
noted above, we are of the view that, in the circumstances of this case, to decide the
issue of "moot-ness" without affording the Applicant any opportunity to submit
counterarguments is not consonant with the due administration of justice.

In addition, we think that the Respondent should at least have been notified that the
Court was proposing to consider the possible effect on the present proceedings of
declarations of the French Government relating to its policy in regard to the conduct of
atmospheric tests in the future. This was essential, we think, since it might, and did in
fact lead the Court to pronounce upon nothing less than France's obligations, said to
have been unilaterally undertaken, with respect to the conduct of such tests.

24. The conclusions above are reinforced when consideration is paid to the relationship
between the issue of mootness and the requirements of the judicial process.

It is worth observing that a finding that the Applicant's claim no longer has any object is
only another way of saying that the Applicant no longer has any stake in the outcome.
Located in the context of an adversary proceeding, the implication is significant.
 II. CUSTOMARY INTERNATIONAL LAW

If the Applicant no longer has a stake in the outcome, i.e., if the case is really moot, then
the judicial process tends to be weakened, inasmuch as the prime incentive for the
Applicant to argue the law and facts with sufficient vigour and thoroughness is diluted.
This is one of the reasons which justifies declaring a case moot, since the integrity of
the judicial process presupposes the existence of conflicting interests and requires not
only that the parties be accorded a full opportunity to explore and expose the law and
facts bearing on the controversy but that they have the incentive to do so.

Applied to the present case, it is immediately apparent that this reason [p 324] for
declaring a case moot or without object is totally missing, a conclusion which is not
nullified by the absence of the Respondent in this particular instance.

The Applicant, with industry and skill, has already argued the nature of its continuing
legal interest in the dispute and has urged upon the Court the need to explore the
matter more fully at the stage of the merits. The inducement to do so is hardly lacking in
light of the Applicant's submissions and the nature and purposes of a declaratory
judgment.

25. Furthermore the Applicant's continued interest is manifested by its conduct. If, as
the Judgment asserts, all the Applicant's objectives have been met, it would have been
natural for the Applicant to have requested a discontinuance of the proceedings under
Article 74 of the Rules. This it has not done. Yet this Article, together with Article 73 on
settlement, provides for the orderly regulation of the termination of proceedings once
these have been instituted. Both Articles require formal procedural actions by agents, in
writing, so as to avoid misunderstandings, protect the interests of each of the two
parties and provide the Court with the certainty and security necessary in judicial
proceedings.

***

26. Finally, we believe the Court should have proceeded, under Article 36 (6) and Article
53 of the Statute, to determine its own jurisdiction with respect to the present dispute.
This is particularly important in this case because the French Government has
challenged the existence of jurisdiction at the time the Application was filed, and,
consequently, the proper seising of the Court, alleging that the 1928 General Act is not
a treaty in force and that the French reservation concerning matters of national defence
made the Court manifestly incompetent in this dispute. In the Northern Cameroons
case, invoked in paragraph 23 of the Judgment, while the Respondent had raised
objections to the jurisdiction of the Court, it recognized that the Trusteeship Agreement
 II. CUSTOMARY INTERNATIONAL LAW

was a convention in force at the time of the filing of the Application. There was no
question then that the Court had been regularly seised by way of application.

27. In our view, for the reasons developed in the second part of this opinion, the Court
undoubtedly possesses jurisdiction in this dispute. The Judgment, however, avoids the
jurisdictional issue, asserting that questions related to the observance of "the inherent
limitations on the exercise of the Court's judicial function" require to be examined in
priority to matters of jurisdiction (paras. 22 and 23). We cannot agree with this assertion.
The existence or lack of jurisdiction with respect to a specific dispute is a basic statutory
limitation on the exercise of the Court's judicial function and should therefore have been
determined in the Judgment as Article 67, paragraph 6, of the Rules of Court seems
clearly to expect. [p 325]

28. It is difficult for us to understand the basis upon which the Court could reach
substantive findings of fact and law such as those imposing on France an international
obligation to refrain from further nuclear tests in the Pacific, from which the Court
deduces that the case "no longer has any object", without any prior finding that the
Court is properly seised of the dispute and has jurisdiction to entertain it. The present
Judgment by implication concedes that a dispute existed at the time of the Application.
That differentiates this case from those in which the issue centres on the existence ab
initio of any dispute whatever. The findings made by the Court in other cases as to the
existence of a dispute at the time of the Application were based on the Court's
jurisdiction to determine its own competence, under the Statute. But in the present case
the Judgment disclaims any exercise of that statutory jurisdiction. According to the
Judgment the dispute has disappeared or has been resolved by engagements resulting
from unilateral statements in respect of which the Court "holds that they constitute an
undertaking possessing legal effect" (para. 51) and "finds that France has undertaken
the obligation to hold no further nuclear tests in the atmosphere in the South Pacific"
(para. 52). In order to make such a series of findings the Court must possess jurisdiction
enabling it to examine and determine the legal effect of certain statements and
declarations which it deems relevant and connected to the original dispute. The
invocation of an alleged "inherent jurisdiction ... to provide for the orderly settlement of
all matters in dispute" in paragraph 23 cannot provide a basis to support the conclusions
reached in the present Judgment which pronounce upon the substantive rights and
obligations of the Parties. An extensive interpretation appears to be given in the
Judgment to that inherent jurisdiction "on the basis of which the Court is fully
empowered to make whatever findings may be necessary for the purposes of" providing
"for the orderly settlement of all matters in dispute" (para. 23). But such an extensive
interpretation of the alleged "inherent jurisdiction" would blur the line between the
jurisdiction conferred to the Court by the Statute and the jurisdiction resulting from the
agreement of States. In consequence, it would provide an easy and unacceptable way
 II. CUSTOMARY INTERNATIONAL LAW

to bypass a fundamental requirement firmly established in the jurisprudence of the

Court and international law in general, namely that the jurisdiction of the Court is based
on the consent of States.

The conclusion thus seems to us unavoidable that the Court, in the process of rendering
the present Judgment, has exercised substantive jurisdiction without having first made a
determination of its existence and the legal grounds upon which that jurisdiction rests.

29. Indeed, there seems to us to be a manifest contradiction in the jurisdictional position

taken up by the Court in the Judgment. If the so-called "inherent jurisdiction" is
considered by the Court to authorize it to decide that France is now under a legal
obligation to terminate [p 326] atmospheric nuclear tests in the South Pacific Ocean,
why does the "inherent jurisdiction" not also authorize it on the basis of that same
international obligation, to decide that the carrying out of any further such tests would
"not be consistent with applicable rules of international law" and to order that "the
French Republic shall not carry out any further such tests"? In other words, if the Court
may pronounce upon France's legal obligations with respect to atmospheric nuclear
tests, why does it not draw from this pronouncement the appropriate conclusions in
relation to the Applicant's submissions instead of finding them no longer to have any
object? The above observation is made solely with reference to the concept of "inherent
jurisdiction" developed in the Judgment and is of course not addressed to the merits of
the case, which are not before the Court at the present stage.

***

Since we consider a finding both as to the Court's jurisdiction and as to the admissibility
of the Application to be an essential basis for the conclusions reached in the Judgment
as well as for our reasons for dissenting from those conclusions, we now proceed to
examine in turn the issues of jurisdiction and admissibility which confront the Court in
the present case.

Part II. Jurisdiction

Introduction

30. At the outset of the present proceedings the French Government categorically
denied that the Court has any competence to entertain Australia's Application of 9 May
1973; and it has subsequently continued to deny that there is any legal basis for the
Court's Order of 22 June 1973 indicating provisional measures of protection or for the
exercise of any jurisdiction by the Court with respect to the matters dealt with in the
Application. The Court, in making that Order for provisional measures, stated that the
 II. CUSTOMARY INTERNATIONAL LAW

material submitted to it led to the conclusion, at that stage of the proceedings, that the
jurisdictional provisions invoked by the Applicant appeared "prima facie, to afford a
basis on which the jurisdiction of the Court might be founded". At the same time, it
directed that the questions of the jurisdiction of the Court to entertain the dispute and of
the admissibility of the Application should be the subject of the pleadings in the next
stage of the case, that is, in the proceedings with which the Court is now concerned. In
our view, these further proceedings confirm that the jurisdictional provisions invoked by
the Applicant not merely afforded a wholly sufficient basis for the Order of 22 June 1973
but also provided a valid basis for establishing the competence of the Court in the
present case.

31. The Application specifies as independent and alternative bases of the Court's
jurisdiction:

"(i) Article 17 of the General Act for the Pacific Settlement of International Disputes,
1928, read together with Articles 36 (1) and 37 of the Statute of the Court. Australia and
the French Republic both acceded to the General Act on 21 May 1931. The texts of the
conditions to which their accessions were declared to be subject are set forth in Annex
15 and Annex 16 respectively.

(ii) Alternatively, Article 36 (2) of the Statute of the Court. Australia and the French
Republic have both made declarations thereunder."

It follows that, if these are indeed two independent and alternative ways of access to the
Court and one of them is shown to be effective to confer jurisdiction in the present case,
this will suffice to establish the Court's jurisdiction irrespective of the effectiveness or
ineffectiveness of the other. As the Court stated in its Judgment on the Appeal Relating
to the Jurisdiction of the ICAO Council, if the Court is invested with jurisdiction on the
basis of one set of jurisdictional clauses "it becomes irrelevant to consider the
objections to other possible bases of jurisdiction" (I.C.J. Reports 1972, p. 60).

***

The General Act of 1928

32. Article 17 of the General Act of 1928 reads as follows:

"All disputes with regard to which the parties are in conflict as to their respective rights
shall, subject to any reservations which may be made under Article 39, be submitted for
 II. CUSTOMARY INTERNATIONAL LAW

decision to the Permanent Court of International Justice, unless the parties agree, in the
manner hereinafter provided, to have resort to an arbitral tribunal.

It is understood that the disputes referred to above include in particular those mentioned
in Article 36 of the Statute of the Permanent Court of International Justice."

The disputes "mentioned in Article 36 of the Statute of the Permanent Court" are all or
any of the classes of legal disputes concerning:

(a) the interpretation of a treaty;

(b) any question of international law;

(c) the existence of any fact which, if established, would constitute a breach of an
international obligation;

(d) the nature or extent of the reparation to be made for the breach of an international
obligation. [p 328]

33. The same four classes of legal disputes are reproduced word for word, in Article 36
(2)—the optional clause—of the Statute of the present Court which, together with the
declarations of Australia and France, constitutes the second basis of jurisdiction invoked
in the Application.

34. Accordingly, the jurisdiction conferred on the Court under Article 17 of the General
Act of 1928 and under the optional clause of the present Statute, in principle, covers the
same disputes: namely the four classes of legal disputes listed above. In the present
instance, however, the bases of jurisdiction resulting from these instruments are clearly
not co-extensive because of certain differences between the terms of the Parties'
accessions to the General Act and the terms of their declarations accepting the optional
clause. In particular, France's declaration under the optional clause excepts from the
Court's jurisdiction "disputes concerning activities connected with national defence",
whereas no such exception appears in her accession to the General Act of 1928.
Consequently, it is necessary to examine the two bases of jurisdiction separately.

***

35. The French Government, in its letter of 16 May 1973 addressed to the Registrar,
and in the Annex to that letter, put forward the view that the present status of the
General Act of 1928 and the attitude of the Parties, more especially of France, in regard
to it preclude that Act from being considered today as a clear expression of France's will
 II. CUSTOMARY INTERNATIONAL LAW

to accept the Court's jurisdiction. It maintained that, since the demise of the League of
Nations, the Act of 1928 is recognized either as no longer being in force or as having
lost its efficacy or as having fallen into desuetude. In support of this view, the French
Government agreed that the Act of 1928 was, ideologically, an integral part of the
League of Nations system "in so far as the pacific settlement of international disputes
had necessarily in that system to accompany collective security and disarmament"; that
there was correspondingly a close link between the Act and the structures of the
League, the Permanent Court of International Justice, the Council, the
Secretary-General, the States Members and the Secretariat; that these links were
emphasized in the terms of certain of the accessions to the Act, including those of
Australia, New Zealand and France; and that this was also shown by the fact that
Australia and New Zealand, in acceding to the Act, made reservations regarding
disputes with States not members of the League. It further argued that the integration of
the Act into the structure of the League of Nations was shown by the fact that, after the
latter's demise, the necessity was recognized of a revision of the Act, substituting new
terms for those of the defunct system instead merely of relying on the operation of
Article 37 of the Statute of the Court. This, according to the French Government, implied
that the demise of the [p 329] League was recognized as having rendered it impossible
for the General Act of 1928 to continue to function normally.

***

36. The fact that the text of the General Act of 1928 was drawn up and adopted within
the League of Nations does not make it a treaty of that Organization; for even a treaty
adopted within an organization remains the treaty of its parties. Furthermore, the
records of the League of Nations Assembly show that it was deliberately decided not to
make the General Act an integral part of the League of Nations structure (Ninth
Ordinary Session, Minutes of the First Committee, p. 68); that the General Act was not
intended to be regarded as a constitutional document of the League or adjunct of the
Covenant (ibid., p. 69); that the General Act was envisaged as operating parallel to, and
not as part of the League of Nations system (ibid., p. 71); and that the substantive
obligations of the parties under the General Act were deliberately made independent of
the functions of the League of Nations. Stressing the last point, Mr. Rolin of Belgium
said specifically:

"The intervention of the Council of the League was not implied as a matter of necessity
in the General Act; the latter had been regarded as being of use in connection with the
general work of the League, but it had no administrative or constitutional relationship
with it." (Ibid., p. 71 ; emphasis added.)
 II. CUSTOMARY INTERNATIONAL LAW

That the French Government also then understood the pacific settlement system
embodied in the General Act to be independent of that of the Covenant of the League of
Nations was made clear when the ratification of the Act was laid before the French
Chambre des deputes, whose Com-mission des affaires etrangères explained:

"... alors que, dans le système conçu par les fondateurs de la Societe des Nations,
l'action du Conseil, telle quelle est prevue par l'article 15, constitue un mode normal de
règlement des differends au même titre que la procedure d'arbitrage, l'Acte general, au
contraire, ignore complètement le Conseil de la Societe des Nations" (Journal officiel,
documents parlementaires, Chambre, 1929, p. 407; emphasis added).

37. Australia and France, it is true, inserted reservations in their accessions to the
General Act designed to ensure the priority of the powers of the Council of the League
over the obligations which they were assuming by acceding to the Act. But the fact that
they and some other States thought it desirable so to provide in their instruments of
accession [p 330] seems to testify to the independent and essentially autonomous
character of the General Act rather than to its integration in the League of Nations
system. Similarly, the fact that, in order to exclude disputes with non-member States
from their acceptance of obligations under the Act, Australia and some other States
inserted an express reservation of such disputes in their instruments of accession,
serves only to underline that the Covenant and the General Act were separate systems
of pacific settlement. The reservation was needed for the very reason that the General
Act was established as a universal system of pacific settlement independent of the
League of Nations and open to States not members of the Organization, as well as to
Members (cf. Report of Mr. Politis, as Rapporteur, 18th Plenary Meeting of 25
September 1928, at p. 170).

38. Nor do we find any more convincing the suggested "ideological integration" of the
General Act in the League of Nations system: i.e., the thesis of its inseparable
connection with the League's trilogy of collective security, disarmament and pacific
settlement. Any mention of a connection between those three subjects is conspicuously
absent from the General Act, which indeed makes no reference at all to security or
disarmament, unlike certain other instruments of the same era. In these circumstances,
the suggestion that the General Act was so far intertwined with the League of Nations
system of collective security and disarmament as necessarily to have vanished with that
system cannot be accepted as having any solid basis.

39. Indeed, if that suggestion had a sound basis, it would signify the extinction of
numerous other treaties of pacific settlement belonging to the same period and having
precisely the same ideological approach as the General Act of 1928. Yet these treaties,
without any steps having been taken to amend or to "confirm" them, are unquestionably
 II. CUSTOMARY INTERNATIONAL LAW

considered as having remained in force despite the dissolution of the League of Nations
in 1946. As evidence of this two examples will suffice: the Hispano-Belgian Treaty of
Conciliation, Judicial Settlement and Arbitration of 19 July 1927, Article 17 of which was
applied by this Court as the source of its jurisdiction in the Barcelona Traction, Light and
Power Company, Limited case (I.C.J. Reports 1964, at pp. 26-39); and the
Franco-Spanish Treaty of Arbitration of 10 July 1929 on the basis of which France
herself and Spain constituted the Lac Lanoux arbitration in 1956 (UNRIAA, Vol. 12, at p.
285). In truth, these treaties and the General Act itself, although largely inspired by the
League of Nations aim of promoting the peaceful settlement of disputes together with
collective security and disarmament, also took their inspiration from the movement for
the development of international arbitration and judicial settlement which had grown up
during the nineteenth century and had played a major role at the Hague Peace
Conferences of 1899 and 1907. It was, moreover, the French Government itself which in
the General Assembly in 1948 emphasized this quite separate source of the "ideology"
of the General Act of 1928. Having referred to the General Act as "a valuable [p 331]
document inherited from the League of Nations", the French delegation added that it
constituted:

"... an integral part of a long tradition of arbitration and conciliation which had proved
itself effective long before the existence of the League itself" (GA, OR, Third Session,
Plenary Meeting, 199th Meeting, p. 193).

That tradition certainly did not cease with the League of Nations.

**

40. The General Act of 1928 was, however, a creation of the League of Nations era, and
the machinery of pacific settlement which it established almost inevitably exhibited
some marks of that origin. Thus, the tribunal to which judicial settlement was to be
entrusted was the Permanent Court of International Justice (Art. 17); if difficulties arose
in agreeing upon members of a conciliation commission, the parties were empowered,
as one possible option, to entrust the appointment to the President of the Council of the
League (Art. 6); the Conciliation Commission was to meet at the seat of the League,
unless otherwise agreed by the parties or otherwise decided by the Commission's
President (Art. 9); a Conciliation Commission was also empowered in all circumstances
to request assistance from the Secretary-General of the League (Art. 9); if a deadlock
arose in effecting the appointment of members of an arbitral tribunal, the task of making
the necessary appointments was entrusted to the President of the Permanent Court of
International Justice (Art. 23); in cases submitted to the Permanent Court, it was
empowered to lay down "provisional measures" (Art. 33), and to decide upon any third
party's request to intervene (Art. 36) and its Registrar was required to notify other
 II. CUSTOMARY INTERNATIONAL LAW

parties to a multilateral convention the construction of which was in question (Art. 37);
the Permanent Court was also entrusted with a general power to determine disputes
relating to the interpretation or application of the Act (Art. 41); the power to extend
invitations to non-member States to become parties to the General Act was entrusted to
the Council of the League (Art. 43); and, finally, the depositary functions in connection
with the Act were entrusted to the Secretary-General of the League (Arts. 43-47). The
question has therefore to be considered whether these various links with the Permanent
Court and with the Council of the League of Nations and its Secretariat are of such a
character that the dissolution of these organs in 1946 had the necessary result of
rendering the General Act of 1928 unworkable and virtually a dead letter.

[p 332]

41. In answering this question, account has first to be taken of Article 37 of the Statute
of this Court, on which the Applicant specifically relies for the purpose of founding the
Court's jurisdiction on Article 17 of the 1928 Act. Article 37 of the Statute reads:

"Whenever a treaty or convention in force provides for reference of a matter ... to the
Permanent Court of International Justice, the matter shall, as between the parties to the
present Statute, be referred to the International Court of Justice."

The objects and purposes of that provision were examined at length by this Court in the
Barcelona Traction, Light and Power Company, Limited case (New Application,
Preliminary Objections, I.C.J. Reports 1964, at pp. 31-36) where, inter alia, it said:

"The intention therefore was to create a special regime which, as between the parties to
the Statute, would automatically transform references to the Permanent Court in these
jurisdictional clauses, into references to the present Court.

In these circumstances it is difficult to suppose that those who framed Article 37 would
willingly have contemplated, and would not have intended to avoid, a situation in which
the nullification of the jurisdictional clauses whose continuation it was desired to
preserve, would be brought about by the very event—the disappearance of the
Permanent Court—the effects of which Article 37 both foresaw and was intended to
parry; or that they would have viewed with equanimity the possibility that, although the
Article would preserve many jurisdictional clauses, there might be many others which it
would not; thus creating that very situation of diversification and imbalance which it was
desired to avoid." (P. 31, emphasis added.)
 II. CUSTOMARY INTERNATIONAL LAW

In a later passage the Court was careful to enter the caveat that Article 37 was not
intended "to prevent the operation of causes of extinction other than the disappearance
of the Permanent Court" (ibid., p. 34). However, it continued:

"And precisely because it was the sole object of Article 37 to prevent extinction resulting
from the particular cause which the disappearance of the Permanent Court would
represent, it cannot be admitted that this extinction should in fact proceed to follow from
this very event itself." (Ibid., emphasis added.)

42. The Court's observations in that case apply in every particular to the 1928 Act. It
follows that the dissolution of the Permanent Court in 1946 was in itself wholly
insufficient to bring about the termination of the Act. Unless some other "cause of
extinction" is shown to prevent the Act from being considered as "a treaty or convention
in force" at the date of the dissolution of the Permament Court, Article 37 of the Statute
automatically has the effect of substituting this Court for the Permanent Court as the
tribunal designated in Article 17 of the General Act for the [p 333] judicial settlement of
disputes. And Article 37, in our opinion, also has the effect of automatically substituting
this Court for the Permanent Court in Articles 33, 36, 37 and 41 of the General Act.

43. Account has further to be taken of the arrangements reached in 1946 between the
Assembly of the League and the General Assembly of the United Nations for the
transfer to the United Nations Secretariat of the depositary functions performed by the
League Secretariat with respect to treaties. Australia and France, as Members of both
organizations, were parties to these arrangements and are, therefore, clearly bound by
them. In September 1945 the League drew up a List of Conventions with Indication of
the Relevant Articles Conferring Powers on the Organs of the League of Nations, the
purpose of which was to facilitate consideration of the transfer of League functions to
the United Nations in certain fields. In this list appeared the General Act of 1928, and
there can be no doubt that when resolutions of the two Assemblies provided in 1946 for
the transfer of the depository functions of the League Secretariat to the United Nations
Secretariat, the 1928 Act was understood as, in principle, included in those resolutions.
Thus, the first list published by the Secretary-General in 1949 of multilateral treaties in
respect of which he acts as depositary contained the General Act of 1928 (Signatures,
Ratifications, Acceptances, Accessions, etc., concerning the Multilateral Conventions
and Agreements in respect of which the Secretary-General acts as Depositary, UN
Publications, 1949, Vol. 9). Moreover, in a letter of 12 June 1974, addressed to
Australia's Permanent Representative and presented by Australia to the Court, the
Secretary-General expressly confirmed that the 1928 Act was one of the "multilateral
 II. CUSTOMARY INTERNATIONAL LAW

treaties placed under the custody of the Secretary-General by virtue of General

Assembly resolution 24 (I) of 12 February 1946".

44. Consequently, on the demise of the League of Nations in 1946, the depositary
functions entrusted to the Secretary-General and Secretariat of the League of Nations
by Articles 43 to 47 of the 1928 Act were automatically transferred to the
Secretary-General and Secretariat of the United Nations. It follows that the demise of
the League of Nations could not possibly constitute "a cause of extinction" of the
General Act by reason of the references to the League Secretariat in those Articles.

45. The disappearance of the League of Nations system, it is true, did slightly impair the
full efficacy of the machinery provided for in the 1928 Act. In conciliation, recourse could
no longer be had to the President of [p 334] the Council as one of the means provided
by Article 6 of the Act for resolving disagreements in the appointment of members of the
conciliation commission; nor could the commission any longer assert the right under
Article 9 of the Act to meet at the seat of the League and to request assistance from the
Secretary-General of the League. As to arbitration, it became doubtful whether Article
37 of the Statute would suffice, in the event of the parties' disagreement, to entrust to
the President of this Court the extra-judicial function of appointing members of an
arbitral tribunal entrusted by Article 23 of the 1928 Act to the President of the
Permanent Court. In both conciliation and arbitration, however, the provisions involving
League organs concerned machinery of a merely alternative or ancillary character, the
disappearance of which could not be said to render the 1928 Act as a whole unworkable
or impossible of performance. Nor could their disappearance be considered such a
fundamental change of circumstances as might afford a ground for terminating or
withdrawing from the treaty (cf. Art. 62 of the Vienna Convention on the Law of
Treaties). Moreover, none of these provisions touched, still less impaired, the procedure
for judicial settlement laid down in Article 17 of the 1928 Act.

46. Another provision the efficacy of which was impaired by the dissolution of the
League was Article 43, under which the power to open accession to the General Act to
additional States was given to the Council of the League. The disappearance of the
Council put an end to this method of widening the operation of the 1928 Act and
prejudiced, in consequence, the achievement of a universal system of pacific settlement
founded on the Act. It did not, however, impair in any way the operation of the Act as
between its parties. Indeed, in principle, it did not preclude the parties to the Act from
agreeing among themselves to open it to accession by additional States.
 II. CUSTOMARY INTERNATIONAL LAW

47. Analysis of the relevant provisions of the General Act of 1928 thus suffices, by itself,
to show that neither the dissolution of 1946 of the Permanent Court of International
Justice nor that of the several organs of the League of Nations can be considered as "a
cause of extinction" of the Act. This conclusion is strongly reinforced by the fact, already
mentioned, that a large number of treaties for the pacific settlement of disputes, clauses
of which make reference to organs of the League, are undoubtedly accepted as still in
force; and that some of them have been applied in practice since the demise of the
League. For present purposes, it is enough to mention the application by France herself
and by Spain of their bilateral Treaty of Arbitration of 10 July 1929 as the basis for the
constitution of the Lac Lanoux Arbitral Tribunal in 1956 (UNRIAA, Vol. 12, at p. 285).
That convention was conspicuously a treaty of the League of Nations era, containing
references to the Covenant and to the Council of the League as well as to the
Permanent Court. Moreover, some of those references did not deal with the mere
machinery of peaceful settlement
[p 335] procedures, but with matters of substance. Article 20, for example, expressly
reserved to the parties, in certain events, a right of unilateral application to the Council
of the League; and Article 21, which required provisional measures to be laid down by
any tribunal dealing with a dispute under the treaty, provided that "it shall be the duty of
the Council of the League of Nations, if the question is brought before it, to ensure that
suitable provisional measures be taken". Those Articles provided for much more
substantial links with organs of the League than anything contained in the 1928 Act; yet
both France and Spain appear to have assumed that the treaty was in force in 1956
notwithstanding the demise of the League.

***

The So-Called Revision of the General Act

48. In the case of the 1928 Act, the French Government maintains that the so-called
revision of the General Act undertaken by the General Assembly in 1948 implies that
the demise of the League was recognized as having rendered it impossible for the 1928
Act to continue to function normally. This interpretation of the proceedings of the
General Assembly and the Interim Committee regarding the "revision" of the Act does
not seem to us sustainable. Belgium introduced her proposal for the revision of the 1928
Act in the Interim Committee at a time when the General Assembly was engaged in
revising a number of treaties of the League of Nations era in order to bring their
institutional machinery and their terminology into line with the then new United Nations
system. It is therefore understandable that, notwithstanding the automatic transfers of
functions already effected by Article 37 of the Statute and General Assembly resolution
24 (I), the Interim Committee and the General Assembly should have concerned
themselves with the replacement of the references in the General Act to the Permanent
 II. CUSTOMARY INTERNATIONAL LAW

Court, the Council of the League and the League Secretariat by references to their
appropriate counterparts in the United Nations system.

49. In any event, what began as a proposal for the revision of the 1928 General Act was
converted in the Interim Committee into the preparation of a text of a new Revised
General Act which was to be opened for accession as an entirely independent treaty.
This was to avoid the difficulty that certain of the parties to the 1928 Act, whose
agreement was necessary for its revision, were not members of the United Nations and
not taking part in the revision (cf. Arts. 39 and 40 of the Vienna Convention on the Law
of Treaties). As the Belgian delegation explained to the Interim Committee, the consent
of the parties to the 1928 Act would now be unnecessary "since in its final form their
proposal did not suppress or [p 336] modify the General Act, as established in 1928, but
left it intact as also, therefore, whatever rights the parties to that Act might still derive
from it" (emphasis added). This explanation was included in the Committee's report to
the General Assembly and, in our opinion, clearly implies that the 1928 Act was
recognized to be a treaty still in force in 1948. Moreover, the records of the debates
contain a number of statements by individual delegations indicating that the 1928 Act
was then understood by them to be in force; and those statements did not meet with
contradiction from any quarter.

50. Equally, the mere fact that the General Assembly drew up and opened for accession
a new Revised General Act could not have the effect of putting an end to, or
undermining the validity of, the 1928 Act. In the case of the amendment of multilateral
treaties, the principle is well settled that the amending treaty exists side by side with the
original treaty, the latter remaining in force unamended as between those of its parties
which have not established their consent to be bound by the amending treaty (cf. Art. 40
of the Vienna Convention on the Law of Treaties). Numerous examples of the
application of this principle are to be found precisely in the practice of the United
Nations regarding the amendment of League of Nations Treaties; and it was this
principle to which the General Assembly gave expression in the preamble to its
resolution 268A (III), by which it instructed the Secretary-General to prepare and open
to accession the text of the Revised Act. The preamble to the resolution, inter alia,
declared:

"Whereas the General Act, thus amended, will only apply as between States having
acceded thereto, and, as a consequence, will not affect the rights of such States, parties
to the Act as established on 26 September 1928, as should claim to invoke it in so far
as it might still be operative." (Emphasis added.)

It is therefore evident that the General Assembly neither intended that the Revised
General Act should put an end to its predecessor, the 1928 Act, nor understood that this
 II. CUSTOMARY INTERNATIONAL LAW

would be the result of its adoption of the Revised Act. Such an intention in the General
Assembly would indeed have been surprising when it is recalled that the "revision" of
the General Act was undertaken in the context of a programme for encouraging the
development of methods for the pacific settlement of disputes.

51. In the above-quoted clause of the preamble, it is true, resolution 268A (III) qualifies
the statement that the amendments would not affect rights of parties to the 1928 Act by
the words "in so far as it might still be operative". Moreover, in another clause of the
preamble the resolution also speaks of its being "expedient to restore to the General Act
its original efficacy, impaired by the fact that the organs of the League of Nations and
the Permanent Court of International Justice to which it refers have now disappeared".
We cannot, however, accept the suggestion that by these phrases the General
Assembly implied that the 1928 Act [p 337] was no longer capable of functioning
normally. These phrases find a sufficient explanation in the fact, which we have already
mentioned, that the disappearance of the League organs and the Permanent Court
would affect certain provisions regarding alternative methods for setting up conciliation
commissions or arbitral tribunals, which might in the event of disagreements impair the
efficacy of the procedures provided by the Act.

52. But there was also another reason for including those words in the preamble to
which the Interim Committee drew attention in its report (UN doc. A/605, para. 46):

"Thanks to a few alterations, the new General Act would, for the benefit of those States
acceding thereto, restore the original effectiveness of the machinery provided in the Act
of 1928, an Act which, though still theoretically in existence, has largely become
inapplicable.

It was noted, for example, that the provisions of the Act relating to the Permanent Court
of International Justice had lost much of their effectiveness in respect of parlies which
are not members of the United Nations or parties to the Statute of the International
Court of Justice." (Emphasis added.)

In 1948 several parties to the 1928 Act were neither members of the United Nations nor
parties to the Statute of this Court so that, even with the aid of Article 37 of the Statute,
the provisions in the 1928 Act on judicial settlement were not "operative" as between
them and other parties to the Act. Therefore, in this respect also it could properly be
said that the original efficacy of the 1928 Act had been impaired. On the other hand, the
clear implication, a contrario, of the Interim Committee's report was that the provisions
of the 1928 Act concerning judicial settlement—Article 17—had not lost their efficacy as
between those of its parties who were parties to the Statute of this Court.
 II. CUSTOMARY INTERNATIONAL LAW

***

The Question of the Continued Force of the 1928 Act

53. Equally, we do not find convincing the thesis put forward by the French Government
that the 1928 Act cannot serve as a basis for the competence of the Court because of
"the desuetude into which it has fallen since the demise of the League of Nations
system". Desuetude is not mentioned in the Vienna Convention on the Law of Treaties
as one of the grounds for termination of treaties, and this omission was deli-[p 338]
berate. As the International Law Commission explained in its report on the Law of
Treaties:

". . . while 'obsolescence' or 'desuetude' may be a factual cause of the termination of a

treaty, the legal basis of such termination, when it occurs, is the consent of the parties to
abandon the treaty, which is to be implied from their conduct in relation to the treaty"
(Yearbook of the International Law Commission, 1966, Vol. II, p. 237).

In the present instance, however, we find it impossible to imply from the conduct of the
parties in relation to the 1928 Act, and more especially from that of France prior to the
filing of the Application in this case, their consent to abandon the Act.

54. Admittedly, until recently the Secretary-General was not called upon to register any
new accession or other notification in relation to the 1928 Act. But this cannot be
considered as evidence of a tacit agreement to abandon the treaty, since multilateral
treaties not infrequently remain in force for long periods without any changes in regard
to their parties.

55. Nor is such evidence to be found in the fact, referred to in the Annex to the French
Government's letter of 16 May 1973, that "Australia and Canada did not feel, in regard
to the Act, any need to regularize their reservations of 1939 as they did those expressed
with regard to their optional declarations". The reservations in question, made by both
countries four days after the outbreak of the Second World War, notified the depositary
that they would not regard their accessions to the 1928 Act as "covering or relating to
any dispute arising out of events occurring during the present crisis". These
reservations were not in accord with Article 45 of the 1928 Act, which permitted
modification of the terms of an accession only at the end of each successive five-year
period for which the Act runs unless denounced. But both countries justified the
reservations on the basis of the breakdown of collective security under the League and
the resulting fundamental changes in the circumstances existing when they acceded to
the Act; and if that justification was well founded there was no pressing need to
"regularize" their reservations in 1944 when the current five-year period was due to
 II. CUSTOMARY INTERNATIONAL LAW

expire. Nor would it be surprising if in that year of raging war all over the globe they
should not have had their attention turned to this question. Moreover, the parallelism
suggested between the position of these two countries under the 1928 Act and under
the optional clause is in any case inexact. Their declarations under the optional clause
expired in 1940, so that they were called upon to re-examine their declarations; under
Article 45 of the 1928 Act, on the other hand, their accessions remained in force
inde-finitely unless denounced.

56. A more general argument in the Annex to the letter of 16 May 1973, regarding a lack
of parallelism in States' acceptance respectively of the 1928 Act and the optional
clause, also appears to us unconvincing.[p 339] The desuetude of the 1928 Act, it is
said, ought to be inferred from the following facts: up to 1940 reservations made to the
1928 Act and to the optional clause were always similar but after that date the
parallelism ceased; reservations to the optional clause then became more restrictive
and yet the same States appeared unconcerned with the very broad jurisdiction to
which they are said to have consented under the Act.

57. Even before 1940, however, the suggested parallelism was by no means complete.
Thus, France's declaration of 19 September 1929, accepting the optional clause, did not
contain the reservation of matters of domestic jurisdiction which appeared in her
accession to the 1928 Act; and the declarations made in that period by Australia,
Canada, New Zealand and the United Kingdom did not exclude disputes with
non-member States, as did their accessions to the 1928 Act. The provisions of Articles
39 and 45 of the Act in any case meant that there were material differences in the
conditions under which compulsory jurisdiction was accepted under the two
instruments. Moreover, even granting that greater divergencies appear in the two
systems after 1940, this is open to other explanations than the supposed desuetude of
the 1928 Act. The more striking of these divergencies arise from reservations to the
optional clause directed to specific disputes either already existing or imminently
expected. Whereas under the optional clause many States have placed themselves in a
position to change the terms of their declarations in any manner they may wish, without
notice and with immediate effect, their position under the 1928 General Act is very
different by reason of the provisions of Articles 39 and 45 regulating the making and
taking effect of reservations. Because of these provisions a new reservation to the 1928
Act directed to a specific matter of dispute may serve only to alert the attention of the
other party to the State's obligations under the Act and hasten a decision to institute
proceedings before the reservation becomes effective under Article 45. In short, any
parallelism between the optional clause and the 1928 Act is in this respect an illusion.

58. As to the further suggestion in the above-mentioned letter that if the 1928 Act were
still in force the refusal of Australia, New Zealand and France to become parties to the
 II. CUSTOMARY INTERNATIONAL LAW

Revised General Act would be difficult to explain, this does not appear to us to bear a
moment's examination. Since 1946, the 1928 Act has had a limited number of existing
parties and has been open to accession only by a small and finite group of other States,
while the Revised General Act is open to accession by a much wider and still expanding
group of States. Accordingly, it is no matter for surprise that parties to the 1928 General
Act should have been ready simply to continue as such, while not prepared to take the
new step of assuming more wide-ranging commitments under the Revised Act. Even
more decisive is the fact that, of the six parties to the 1928 Act which have
[p 340] become parties to the Revised Act, at least four are on record as formally
recognizing that the 1928 Act is also still in force for them.

59. It follows that, in our opinion, the various considerations advanced in the French
Government's letter and Annex of 16 May 1973 fall far short of establishing its thesis
that the 1928 Act must now be considered as having fallen into desuetude. Even if this
were not the case, the State practice in relation to the Act in the post-war period, more
especially that of France herself, appears to us to render that thesis manifestly
untenable.

***

Evidence of the 1928 Act's Continuance in Force

60. Between the dissolution of the League of Nations in April 1946 and Australia's
invocation of the 1928 Act in her Application of 9 May 1973 there occurred a number of
examples of State practice which confirm that, so far from abandoning the Act, its
parties continued to recognize it as a treaty in force. The first was the conclusion of the
Franco-Siamese Settlement Agreement on 17 November 1946 for the purpose of
re-establishing the pre-war territorial situation on Siam's borders and renewing friendly
relations between the two countries. Siam was not a party to the General Act of 1928,
but in the Franco-Siamese Treaty of Friendship of 1937 she had agreed to apply the
provisions of the Act for the settlement of any disputes with France. Under the
Settlement Agreement of 1946 France and Siam agreed to constitute immediately "a
Conciliation Commission, composed of the representatives of the Parties and three
neutrals, in accordance with the General Act of Geneva of 26 September 1928 for the
Pacific Settlement of International Disputes, which governs the constitution and working
of the Commission". The 1928 Act, it is true, applied between France and Siam, not as
such, but only through being incorporated by reference into the 1937 Treaty of
Friendship. But it is difficult to imagine that in November 1946, a few months after she
had participated in the dissolution of the League, France should have revived the
 II. CUSTOMARY INTERNATIONAL LAW

operation of the provisions of the 1928 Act in her relations with Siam if she had believed
the dissolution of the League to have rendered that Act virtually defunct.

61. In 1948-1949, as we have already pointed out, a number of member States in the
debates and the General Assembly in resolution 268A (III) referred to the 1928 Act, as
still in force, and met with no contradiction. In 1948 also the 1928 Act was included in
New Zealand's official treaty list published in that year. Again, in 1949, the Norwegian
Foreign Minister, in reporting to parliament on the Revised Act, stated that the 1928 Act
was still in force, and in 1950 the Swedish Government did likewise in referring the
Revised Act to the Swedish parliament. Similarly, [p 341] in announcing Denmark's
accession to the Revised Act in 1952, the Danish Government referred to the 1928 Act
as still in force.

**

62. Accordingly, France was doing no more than conform to the general opinion when in
1956 and 1957 she made the 1928 Act one of the bases of her claim against Norway
before this Court in the Certain Norwegian Loans case (I.C.J. Reports 1957, p. 9). In
three separate passages of her written pleadings France invoked the 1928 Act as a
living, applicable, treaty imposing an obligation upon Norway to submit the dispute to
arbitration; for in each of these passages she characterized Norway's refusal to accept
arbitration as a violation, inter alia, of the General Act of 1928 (I.C.J. Pleadings, Certain
Norwegian Loans case, Vol. I, at pp. 172, 173 and 180). She did so again in a
diplomatic Note of 17 September 1956, addressed to the Norwegian Government during
the course of the proceedings and brought to the attention of the Court (ibid., p. 211),
and also at the oral hearings (ibid., Vol. II, p. 60). The reason was that Norway's refusal
to arbitrate was a specific element in the French claim that Norway was not entitled
unilaterally to modify the conditions of the loans in question "without negotiation with the
holders, with the French State which has adopted the cause of its nationals, or without
arbitration . . ." (I.C.J. Reports 1957, at. p 18, emphasis added). Consequently, the
explanation given in the Annex to the French Government's letter of 16 May 1973 that it
had confined itself in the Certain Norwegian Loans case "to a very brief reference to the
General Act, without relying on it expressly as a basis of its claim", is not one which it is
possible to accept.

63. Nor do we find the further explanation given by the French Government in that
Annex any more convincing. In effect this is that, if the 1928 Act had been considered
by France to be valid at the time of the Certain Norwegian Loans case, she would have
used it to found the jurisdiction of the Court in that case so as to "parry the objection
which Norway was to base upon the reciprocity clause operating with reference to the
French Declaration"; and that her failure to found the Court's jurisdiction on the 1928 Act
 II. CUSTOMARY INTERNATIONAL LAW

"is only explicable by the conviction that in 1955 it had fallen into desuetude". This
explanation does not hold water for two reasons. First, it does not account for the
French Government's repeated references to the 1928 Act as imposing an obligation on
Norway in 1955 to arbitrate, one of which included a specific mention of Chapter II of
the Act relating to judicial settlement. Secondly, it is not correct that France, by founding
the Court's jurisdiction on the Act, would have been able to escape the objection to
jurisdiction under the optional clause raised by Norway on [p 342] the basis of a
reservation in France's declaration; and it is unnecessary to look further than to Article
31, paragraph 1, of the 1928 Act for the reason why France did not invoke the Act as a
basis for the Court's jurisdiction. This paragraph reads:

"In the case of a dispute the occasion of which, according to the municipal law of one of
the parties, falls within the competence of its judicial or administrative authorities, the
party in question may object to the matter in dispute being submitted for settlement by
the different methods laid down in the present General Act until a decision with final
effect has been pronounced . . ." (Emphasis added.)

Since the French bond holders had deliberately abstained from taking any action in the
Norwegian tribunals, the above clear and specific provision of Article 31 constituted a
formidable obstacle to establishing the Court's jurisdiction on the basis of the 1928 Act.

64. Thus, the position taken by France in the Certain Norwegian Loans case, so far
from being explicable only on the basis of a conviction of the desuetude of the Act,
provides evidence of the most positive kind of her belief in its continued validity and
efficacy at that date. As to Norway, it is enough to recall her Government's statement in
Parliament in 1949 that the 1928 Act remained in force, and to add that at no point in
the Certain Norwegian Loans case did Norway question either the validity or the efficacy
of the Act as an instrument applicable between herself and France at that date.

65. Furthermore, the interpretation placed in the Annex on the treatment of the 1928 Act
by the Court and Judge Basdevant in the Certain Norwegian Loans case does not seem
to us to be sustained by the record of the case. The Court did not, as the French
Government maintains, have to decide the question of the 1928 Act. Stressing that
France had based her Application "clearly and precisely on the Norwegian and French
declarations under Article 36, paragraph 2, of the Statute", the Court held it "would not
be justified in seeking a basis for its jurisdiction different from that which the French
Government itself set out in its Application...". Having so held, it examined the question
of its jurisdiction exclusively by reference to the parties' declarations under the optional
clause and made no mention of the 1928 Act. As to Judge Basdevant, at the outset of
his dissenting opinion (p. 71) he emphasized that on the question of jurisdiction he did
not dispute the point of departure on which the Court had placed itself. In holding that
 II. CUSTOMARY INTERNATIONAL LAW

the matters in dispute did not fall within the reservation of matters of domestic
jurisdiction, on the other hand, he expressly relied on the 1928 Act as one of his
grounds for so holding. The fact that the Court did not follow him in this approach to the
interpretation of the reservation cannot, in our view, be understood as meaning that it
rejected his view as to the 1928 Act's being in force between France [p 343] and
Norway. Indeed, if that had been the case, it is almost inconceivable that Judge
Basdevant could have said, as he did, of the 1928 Act: "At no time has any doubt been
raised as to the fact that this Act is binding as between France and Norway" (I.C.J.
Reports 1957, p. 74).
66. The proceedings in the Certain Norwegian Loans case, therefore, in themselves
constitute unequivocal evidence that the 1928 Act did survive the demise of the League
and was recognized by its parties, in particular by France, as in force in the period
1955-1957. We may add that in this period statements by parties to the 1928 Act are
also to be found in the records of the proceedings of the Council of Europe leading to
the adopting of the European Convention for the Pacific Settlement of International
Disputes in 1957, which show that they considered the Act to be still in force. A Danish
delegate, for example, stated in the Consultative Assembly in 1955, without apparent
contradiction from anyone, that the 1928 Act "binds twenty States".

67. No suggestion is made in the letter of 16 May 1973 or its Annex that, if the 1928 Act
was in force in 1957, there was nevertheless some development which deprived it of
validity before Australia filed her Application; nor does the information before the Court
indicate that any such development occurred. On the contrary, the evidence consistently
and pointedly confirms the belief of the parties to the 1928 Act as to its continuance in
force. In 1966 Canada's official publication The Canada Treaty Series: 1928-1964 listed
the 1928 Act as in force; as likewise did Finland's list in the following year. In Sweden
the treaty list published by the Ministry of Foreign Affairs in 1969 included the 1928 Act,
with a footnote "still in force as regards some countries". In 1971 the Netherlands
Minister for Foreign Affairs, in submitting the Revised Act for parliamentary approval,
referred to the 1928 Act as an agreement to which the Netherlands is a party and,
again, as an Act "which is still in force for 22 States"; and Australia's own official treaty
list published in that year included the 1928 Act. In addition, the 1928 Act appears in a
number of unofficial treaty lists compiled in different countries.

68. As to France herself, there is nothing in the evidence to show any change of
position on her part regarding the 1928 Act prior to the filing of Australia's Application on
9 May 1973. Indeed, a written reply to a deputy in the National Assembly, explaining
why France was not con-templating ratification of the European Convention for the
Pacific Settlement of Disputes, gives the opposite impression. That reply stated that,
like the majority of European States, France was already bound by numerous
obligations of pacific settlement amongst which was mentioned "l'Acte general
 II. CUSTOMARY INTERNATIONAL LAW

d'arbitrage du 26 septembre 1928 revise en 1949". The [p 344] French Government, in

a footnote in the Livre blanc sur les experiences nucleaires, has drawn attention to the
confused character of the reference to the 1928 Act revised in 1949. Even so, and
however defective the formulation of the written reply, it is difficult to understand it in any
other way than as confirming the position taken up by the French Government in the
Certain Norwegian Loans case, that the 1928 Act was to be considered as a treaty in
force with respect to France ; for France had not ratified the Revised General Act and
could be referred to as bound by the General Act only in its original form, the 1928 Act.

69. Accordingly, we are bound to conclude that the 1928 Act was a treaty in force
between Australia and France on 9 May 1973 when Australia's Application in the
present case was filed. Some months after the filing of the Application, on 10 January
1974, the French Government transmitted to the Secretary-General a notification of its
denunciation of the Act, without prejudice to the position which it had taken regarding
the lack of validity of the Act. Under the settled jurisprudence of the Court, however,
such a notification could not have any retroactive effect on jurisdiction conferred upon
the Court earlier by the filing of the Application; the Nottebohm case (Preliminary
Objection, I.C.J. Reports 1953, at pp. 120-124).

70. Nor, in our view, can the conclusion that the 1928 Act was a treaty in force between
Australia and France on 9 May 1973 be in any way affected by certain action taken with
respect to the Act since that date by two other States, India and the United Kingdom. In
the case con-cerning Trial of Pakistani Prisoners of WarFN1, by a letter of 24 June 1973
India informed the Court of its view that the 1928 Act had ceased to be a treaty in force
upon the disappearance of the organs of the League of Nations. Pakistan, however,
expressed a contrary view and has since addressed to the Secretary-General a letter
from the Prime Minister of Pakistan affirming that she considers the Act as continuing in
force. Again, although the United Kingdom, in a letter of 6 February 1974, referred to
doubts having been raised as to the continued legal force of the Act and notified the
Secretary-General of its denunciation of the Act in conformity with the provisions of
paragraph 2 of Article 45, it did so in terms which do not prejudge the question of the
continuance in force of the Act. In any event, against these inconclusive elements of
State practice in relation to the 1928 Act which have occurred since the filing of
Australia's Application, we have to set the many indications of the Act's continuance in
force, some very recent, to which we have already drawn attention. Moreover, it is
axiomatic that the termination of a multilateral treaty requires the express or tacit
consent of all the parties, a requirement which is manifestly not fulfilled in the present
instance.

---------------------------------------------------------------------------------------------------------------------
FN1 I.C.J. Reports 1973, p. 348.
 II. CUSTOMARY INTERNATIONAL LAW

---------------------------------------------------------------------------------------------------------------------
[p 345]

We are therefore clearly of the opinion that Article 17 of the 1928 Act, in combination
with Article 37 of the Statute of the Court, provided Australia with a valid basis for
submitting the Nuclear Tests case to the Court on 9 May 1973, subject only to any
particular difficulty that might arise in the application of the Act between Australia and
France by reason of reservations made by either of them. This question we now
proceed to examine.

***

Applicability of the 1928 Act as Between Australia and France

71. The French Government has urged in the Annex to its letter of 16 May 1973 that,
even if the 1928 Act should be considered as not having lost its validity, it would still not
be applicable as between Australia and France by reason of two reservations made by
Australia to the Act itself and, in addition, a reservation made by France to its
Declaration under the optional clause of 20 May 1966.

72. The Australian reservations to the 1928 Act here in question are (1) a clause
allowing the temporary suspension of proceedings under the Act in the case of a
dispute that was under consideration by the Council of the League of Nations and (2)
another clause excluding from the scope of the Act disputes with any State party to the
Act but not a member of the League of Nations. The disappearance of the League of
Nations, it is said, means that there is now uncertainty as to the scope of these
reservations; and this uncertainty, it is further said, is entirely to the advantage of
Australia and unacceptable.

73. The clause concerning suspension of proceedings was designed merely to ensure
the primacy of the powers of the Council of the League in the handling of the disputes;
and the disappearance of the Council, in our opinion, left intact the general obligations
of pacific settlement undertaken in the Act itself. Indeed, a similar reservation was
contained in a number of the declarations made under the optional clause of the Statute
of the Permanent Court of International Justice, and there has never been any doubt
that those declarations remained effective notwithstanding the demise of the Council of
the League. Thus, in the Anglo-Iranian Oil Co. case the declarations of both Parties
contained such a reservation and yet it was never suggested that the demise of the
Council of the League had rendered either of them ineffective. On the contrary, Iran
invoked the reservation, and the United Kingdom contested Iran's right to do so only on
 II. CUSTOMARY INTERNATIONAL LAW

the ground that the merits of the dispute were not [p 346] under consideration by the
Security Council (I.C.J. Pleadings, Anglo-Iranian Oil Co. case, pp. 282 and 367-368).
Furthermore, France's own accession to the 1928 Act contained a reservation in much
the same terms and yet in the Certain Norwegian Loans case she does not seem to
have regarded this fact as any obstacle to the application of the Act between herself
and Norway.

74. Equally, the disappearance of the League of Nations cannot be considered as

having rendered the general obligations of pacific settlement embodied in the 1928 Act
inapplicable by reason of Australia's reservation excluding disputes with States not
members of the League. This Court has not hesitated to apply the term Member of the
League of Nations in connection with the Mandate of South West Africa (I.C.J. Reports
1950, pp. 138, 158-159 and 169; South West Africa cases, I.C.J. Reports 1962, pp.
335-338); nor has the Secretary-General in discharging his functions as depositary of
the League of Nations multilateral treaties open to participation by States "Members of
the League of Nations".

75. Should any question arise in a case today concerning the application of either of the
two reservations found in Australia's accession to the 1928 Act, it would be for the Court
to determine the status of the reservation and to appreciate its meaning and effect.
Even if the Court were to hold that one or other reservation was no longer capable of
application, that would not detract from the essential validity of Australia's accession to
the 1928 Act. Moreover, owing to the well-settled principle of reciprocity in the
application of reservations, any uncertainty that might exist as to the scope of
reservations could not possibly work entirely to the advantage of Australia. It may be
added that France has not suggested that the present case itself falls within the
operation of either reservation.

76. In the light of the foregoing considerations, we are unable to see in Australia's
reservations any obstacle to the applicability of the 1928 Act as between her and
France.

***

77. Another and quite different ground is, however, advanced by the French
Government for considering the 1928 Act inapplicable between France and Australia
with respect to the present dispute. The terms of the declarations of the two countries
under the optional clause, it is said, must be regarded as prevailing over the terms of
their accessions to the 1928 Act. In consequence, even on the hypothesis of the validity
of the 1928 Act, the reservations in France's declaration of 1966 under the optional
clause are, she maintains, to be treated as applicable. Those reservations include the
 II. CUSTOMARY INTERNATIONAL LAW

one which excepts from France's acceptance [p 347] of jurisdiction under the optional
clause "disputes concerning activities connected with national defence"; and according
to the French Government that reservation necessarily covers the present dispute
regarding atmospheric nuclear weapon tests conducted by France.

*
78. One argument advanced in support of that contention is that, the Statute of the
Court being an integral part of the Charter of the United Nations, the obligations of
Members undertaken on the basis of the optional clause of the Statute must in virtue of
Article 103 of the Charter be regarded as prevailing over their obligations under the
1928 Act. This argument appears to us to be based on a misconception. The Charter
itself places no obligation on member States to submit their disputes to judicial
settlement, and any such obligation assumed by a Member under the optional clause of
the Statute is therefore undertaken as a voluntary and additional obligation which does
not fall within the purview of Article 103. The argument is, in any case, self-defeating
because it could just as plausibly be argued that the obligations undertaken by parties
to the 1928 Act are obligations under Article 36 (1) of the Statute and thus also
obligations under the Charter.

79. The French Government, however, also rests the contention on the ground that the
situation here is analogous to one where there is "a later treaty relating to the same
subject-matter as a treaty concluded earlier in the relations between the same
countries". In short, according to the French Government, the declarations of the Parties
under the optional clause are to be considered as equivalent to a later treaty concerning
acceptance of compulsory jurisdiction which, being a later expression of the wills of the
Parties, should prevail over the earlier Act of 1928, relating to the same subject-matter.
In developing this argument, we should add, the French Government stresses that it
does not wish to be understood as saying that, whenever any treaty contains a clause
conferring jurisdiction on the Court, a party may release itself from its obligations under
that clause by an appropriate reservation inserted in a subsequent declaration under the
optional clause. The argument applies only to the case of a treaty, like the General Act,
"the exclusive object of which is the peaceful settlement of disputes, and in particular
judicial settlement".

80. This argument appears to us to meet with a number of objections, [p 348] not the
least of which is the fact that "treaties and conventions in force" and declarations under
the optional clause have always been regarded as two different sources of the Court's
compulsory jurisdiction. Jurisdiction provided for in treaties is covered in paragraph 1 of
Article 36 and jurisdiction under declarations accepting the optional clause in paragraph
 II. CUSTOMARY INTERNATIONAL LAW

2; and the two paragraphs deal with them as quite separate categories. The paragraphs
reproduce corresponding provisions in Article 36 of the Statute of the Permanent Court,
which were adopted to give effect to the compromise reached between the Council and
other Members of the League on the question of compulsory jurisdiction. The
compromise consisted in the addition, in paragraph 2, of an optional clause allowing the
establishment of the Court's compulsory jurisdiction over legal disputes between any
States ready to accept such an obligation by making a unilateral declaration to that
effect. Thus, the optional clause was from the first conceived of as an independent
source of the Court's jurisdiction.

81. The separate and independent character of the two sources of the Court's
jurisdiction—treaties and unilateral declarations under the optional clause—is reflected
in the special provisions inserted in the present Statute for the purpose of preserving the
compulsory jurisdiction attaching to the Permanent Court at the time of its dissolution.
Two different provisions were considered necessary to achieve this purpose: Article 36
(5) dealing with jurisdiction under the optional clause, and Article 37 with jurisdiction
under "treaties and conventions in force". The separate and independent character of
the two sources is also reflected in the jurisprudence of both Courts. The Permanent
Court in its Order refusing provisional measures in the Legal Status of the
South-Eastern Territory of Greenland case and with reference specifically to a clause in
the 1928 Act regarding provisional measures, underlined that a legal remedy would be
available "even independently of the acceptance by the Parties of the optional clause"
(P.C.I.J., Series A/B, No. 48, at p. 289). Again, in the Electricity Company of Sofia and
Bulgaria case the Permanent Court held expressly that a bilateral treaty of conciliation,
arbitration and judicial settlement and the Parties' declarations under the optional clause
opened up separate and cumulative ways of access to the Court; and that if
examination of one of these sources of jurisdiction produced a negative result, this did
not dispense the Court from considering "the other source of jurisdiction invoked
separately and independently from the first" (P.C.I.J., Series A/B, No. 77, at pp. 76 and
80). As to this Court, in the Barcelona Traction, Light and Power Company, Limited case
it laid particular emphasis on the fact that the provisions of Article 37 of the Statute
concerning "treaties and conventions in force" deal with "a different category of
instrument" from the unilateral declarations to which Article 36 (5) relates (I.C.J. Reports
1964, at p. 29). More recently, in the Appeal Relating to the Jurisdiction of the ICAO
Council case the Court based one of its conclusions specifi-[p 349] cally on the
independent and autonomous character of these two sources of its jurisdiction (I.C.J.
Reports 1972, at pp. 53 and 60).

*
 II. CUSTOMARY INTERNATIONAL LAW

82. In the present instance, this objection is reinforced by the fact that the 1928 Act
contains a strict code of rules regulating the making of reservations, whereas no such
rules govern the making of reservations to acceptances of the Court's jurisdiction under
the optional clause. These rules, which are to be found in Articles 39, 40, 41, 43 and 45
of the Act, impose restrictions, inter alia, on the kinds of reservations that are admissible
and the times at which they may be made and at which they will take effect. In addition,
a State accepting jurisdiction under the optional clause may fix for itself the period for
which its declaration is to run and may even make it terminable at any time by giving
notice, whereas Article 45 (1) of the Act prescribes that the Act is to remain in force for
successive fixed periods of five years unless denounced at least six months before the
expiry of the current period. That the framers of the 1928 Act deliberately differentiated
its regime in regard to reservations from that of the optional clause is clear; for the
Assembly of the League, when adopting the Act, simultaneously in another resolution
drew the attention of States to the wide possibilities of limiting the extent of
commitments under the optional clause "both as regards duration and as regards
scope". Consequently, to admit that reservations made by a State under the
uncontrolled and extremely flexible system of the optional clause may automatically
modify the conditions under which it accepted jurisdiction under the 1928 Act would run
directly counter to the strict system of reservations deliberately provided for in the Act.

83. The French Government evidently feels the force of that objection; for it suggests
that its contention may be reconciled with Article 45 (2) of the Act, which requires any
changes in reservations to be notified at least six months before the end of the current
five-year period of the Act's duration, by treating France's reservations made in her
1966 declaration as having taken effect only at the end of the then current period,
namely in September 1969. This suggestion appears, however, to disregard the
essential nature of a reservation. A reservation, as Article 2, paragraph 1 (d), of the
Vienna Convention on the Law of Treaties records, is:

"... a unilateral statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or
to modify the legal effect [p 350] of certain provisions of the treaty in their application to
that State".

Thus, in principle, a reservation relates exclusively to a State's expression of consent to

be bound by a particular treaty or instrument and to the obligations assumed by that
expression of consent. Consequently, the notion that a reservation attached to one
international agreement, by some unspecified process, is to be superimposed upon or
transferred to another international instrument is alien to the very concept of a
reservation in international law; and also cuts across the rules governing the notification,
acceptance and rejection of reservations. The mere fact that it never seems to have
 II. CUSTOMARY INTERNATIONAL LAW

occurred to the Secretary-General of the League or of the United Nations that

reservations made in declarations under the optional clause are of any concern
whatever to parties to the General Act shows how novel is this suggestion.

84. The novelty is further underlined by the fact that, whenever States have desired to
establish a link between reservations to jurisdiction under the optional clause and
jurisdiction under a treaty, this has been done by an express provision to that effect.
Thus, the parties to the Brussels Treaty of 17 March 1948 agreed in Article VIII to refer
to the Court all disputes falling within the scope of the optional clause subject only, in
the case of each of them, to any reservation already made by that party when accepting
that clause. Even in that treaty, we observe, the parties envisaged the application to
jurisdiction under the treaty only of optional clause reservations "already made". Article
35, paragraph 4, of the European Convention for the Peaceful Settlement of Disputes
goes further in that it empowers a party at any time, by simple declaration, to make the
same reservations to the Convention as it may make to the optional clause. But under
this Article a specific declaration, made with particular reference to the European
Convention, is needed in order to incorporate reservations contained in a party's
declaration under the optional clause into its acceptance of jurisdiction under the
Convention. Moreover, the power thus given by Article 35, paragraph 4, of the
Convention is expressly subjected to the general restrictions on the making of
reservations laid down in paragraph 1 of that Article, which confine them to reservations
excluding "disputes concerning particular cases or clearly specified special matters,
such as territorial disputes, or disputes falling within clearly defined categories"
(language taken directly from Art. 39, para. 2 (c), of the 1928 Act). It therefore seems to
us abundantly clear that the European States which framed these two European treaties
assumed that declarations under the optional clause, whether prior or subsequent to the
treaty, would not have any effect on the jurisdictional obligations of the parties under the
treaty, unless they inserted an express [p 351] provision to that effect; and that this they
were only prepared to agree to under conditions specially stipulated in the treaty in
question.

85. The question of the relation between reservations made under the optional clause
and jurisdiction accepted under treaties has received particular attention in the United
States in connection with the so-called "Connally Amendment", the adoption of which by
the Senate resulted in the United States inserting in its declaration under the optional
clause its well-known "self-judging" form of reservation with regard to matters of
domestic jurisdiction. Two years later, the United States signed the Pact of Bogota, a
general inter-American treaty of pacific settlement which conferred jurisdiction on the
Court for the settlement of legal disputes "in conformity with Article 36 (2) of the
 II. CUSTOMARY INTERNATIONAL LAW

Statute". The United States, however, made its signature subject to the reservation that
its acceptance of compulsory jurisdiction under the Pact is to be limited by "any
jurisdictional or other limitations contained in any declaration deposited by the United
States under the optional clause and in force at the time of the submission of any case".
It thus appears to have recognized that its reservations to the optional clause would not
be applicable unless it made provision for this specially by an appropriate reservation to
the Pact of Bogota itself. This is confirmed by the facts that, whenever it has desired the
Connally reservation to apply to jurisdiction conferred by treaty, the United States has
insisted on the inclusion of a specific provision to that effect, and that the Department of
State has consistently advised that, without such a provision, the Connally reservation
will not apply (cf. American Journal of International Law, 1960, pp. 941-942, and, ibid.,
1961, pp. 135-141). Moreover, the Department of State has taken this position not
merely with reference to jurisdictional clauses attached to treaties dealing with a
particular subject-matter, but also with reference to optional protocols, the sole purpose
of which was to provide for the judicial settlement of certain categories of legal disputes
(cf. Whiteman's Digest of International Law, Vol. 12, p. 1333). On this point, the United
States appears clearly to recognize that any jurisdiction conferred by treaty on the Court
under Article 36 (1) of the Statute is both separate from and independent of jurisdiction
conferred on it under Article 36 (2) by accepting the optional clause. Thus, in a report on
ratification of the Supplementary Slavery Convention, the Foreign Relations Committee
of the Senate said: "Inasmuch as the Connally amendment applies to cases referred to
the Court under Article 36 (2), it does not apply to cases referred under Article 36 (1)
which would include cases arising out of this Convention." (US Senate, 90 Congress,
1st Session, Executive Report No. 17, p. 5.) [p 352]

86. In our opinion, therefore, the suggestion that the reservation made by France in her
optional clause declaration of 1966 ought to be considered as applicable to the Court's
jurisdiction under the 1928 Act does not accord with either principle or practice.

***

87. It remains to consider the French Government's main thesis that the terms of its
1966 declaration must be held to prevail over those of the 1928 Act on the ground that
the optional clause declarations of France and Australia are equivalent to a later treaty
relating to the same subject-matter as the 1928 Act. This proposition seems probably to
take its inspiration from the dissenting opinions of four judges in the Electricity Company
of Sofia and Bulgaria case (P.C.I.J., Series A/B, No. 77), although the case itself is not
mentioned in the French Government's letter of 16 May 1973. These judges, although
their individual reasoning differed in some respects, were at one in considering that a
bilateral treaty of conciliation, arbitration and judicial settlement concluded between
Belgium and Bulgaria in 1931 should prevail over the declarations of the two
 II. CUSTOMARY INTERNATIONAL LAW

Governments under the optional clause, as being the later agreement between them.
Quite apart, however, from any criticisms that may be made of the actual reasoning of
the opinions, they provide very doubtful support for the proposition advanced by the
French Government. This is because the situation in that case was the reverse of the
situation in the present case; for there the bilateral treaty was the more recent
"agreement". It is one thing to say that a subsequent treaty, mutually negotiated and
agreed, should prevail over an earlier agreement resulting from separate unilateral acts;
it is quite another to say that a State, by its own unilateral declaration alone, may alter
its obligations under an existing treaty.

88. In any event, the thesis conflicts with the Judgment of the Permanent Court in that
case; and is diametrically opposed to the position taken by France and by Judge
Basdevant on this question in the Certain Norwegian Loans case as well as with that
taken by this Court in the Appeal Relating to the Jurisdiction of the ICAO Council case.
In the Electricity Company of Sofia and Bulgaria case, while regarding the two optional
clause declarations as amounting to an agreement, the Permanent Court held that they
and the 1931 treaty constituted independent and alternative ways of access to the Court
both of which, and each under its own conditions, could be used cumulatively by the
Applicant in trying to establish the Court's jurisdiction. It based its decision on what it [p
353] found was the intention of the Parties in entering into the multiplicity of
agreements:

"... the multiplicity of agreements concluded accepting the compulsory jurisdiction is

evidence that the contracting Parties intended to open up new ways of access to the
Court rather than to close old ways or allow them to cancel each other out with the
ultimate result that no jurisdiction would remain" (emphasis added; P.C.I. J., Series A/B,
No. 77, p. 76).

Moreover, as indications of this intention, it underlined that both Parties had argued their
cases "in light of the conditions independently laid down by each of these two
agreements"; and that:

"Neither the Bulgarian nor the Belgian Government at any time considered the
possibility that either of these agreements might have imposed some restriction on the
normal operation of the other during the period for which they were both in force." (Ibid.,
p. 75; emphasis added.)

89. In the Certain Norwegian Loans case, as we have already indicated in paragraphs
62-65 of this opinion, France sought to found the jurisdiction of the Court upon the
optional clause declarations alone; and she invoked the 1928 Act, together with an
Arbitration Convention of 1904 and Hague Convention No. II of 1907, for the purpose of
 II. CUSTOMARY INTERNATIONAL LAW

establishing that Norway was subject to an obligation to submit the matters in dispute to
arbitration. In that case, therefore, the issue of the relation between the respective
jurisdictional obligations of the Parties under the optional clause and under treaties did
not arise with reference to the Court's own jurisdiction. It was raised, however, by
France herself in the context of the relation between the obligations of the Parties to
accept compulsory jurisdiction under the optional clause and their obligations
compulsorily to accept arbitration under the three treaties. Moreover, in this context the
temporal relation between the acceptances of jurisdiction under the optional clause and
under the treaties was the same as in the present case, the three treaties all antedating
the Parties' declarations under the optional clause. In its observations on Norway's
preliminary objections, after referring to the General Act of 1928 and the other two
treaties, the French Government invoked with every apparent approval the
pronouncement of the Permanent Court in the Electricity Company of Sofia and
Bulgaria case that:

"... the multiplicity of agreements concluded accepting the compulsory jurisdiction is

evidence that the contracting Parties intended to open up new ways of access to the
Court rather than to close old ways or to allow them to cancel each other out with the
result that no jurisdiction would remain". [p 354]

Again at the oral hearing of 14 May 1957, after referring specifically to Article 17 of the
1928 Act, the French Government said:

"Pour que, de cette multiplicite d'engagements d'arbitrage et de juridiction, decoule

l'incompetence de la Cour, malgre la règle contraire de l'arrêt Compagnie d'Electricite
de Sofia, il faudrait que la Cour estime qu'il n'y a aucun differend d'ordre juridique ..."
(I.C.J. Pleadings, Certain Norwegian Loans, Vol. II, at pp. 60-61; emphasis added.)

And in its oral reply—this time in connection with Hague Convention No. II of 1907—the
French Government yet again reminded the Court of that passage in the Judgment in
the Electricity Company of Sofia and Bulgaria case (ibid., at p. 197).

90. The Court, in the Certain Norwegian Loans case, for the reasons which have
already been recalled, found it unnecessary to deal with this question. Judge
Basdevant, on the other hand, did refer to it and his observations touch very directly the
issue raised by the French Government in the present case. Having pointed out that the
French declaration under the optional clause limited "the sphere of compulsory
jurisdiction more than did the General Act in relations between France and Norway",
Judge Basdevant observed :
 II. CUSTOMARY INTERNATIONAL LAW

"Now, it is clear that this unilateral Declaration by the French Government could not
modify, in this limitative sense, the law that was then in force between France and
Norway.

In a case in which it had been contended that not a unilateral declaration but a treaty
between two States had limited the scope as between them of their previous
declarations accepting compulsory jurisdiction, the Permanent Court rejected this
contention . . ." (I.C.J. Reports 1957, p. 75.)

He then quoted the passage from the Electricity Company of Sofia and Bulgaria case
about "multiplicity of agreements" and proceeded to apply it to the Certain Norwegian
Loans case as follows:

"A way of access to the Court was opened up by the accession of the two Parties to the
General Act of 1928. It could not be closed or cancelled out by the restrictive clause
which the French Government, and not the Norwegian Government, added to its fresh
acceptance of compulsory jurisdiction stated in its Declaration of 1949. This restrictive
clause, emanating from only one of them, does not constitute the law as between
France and Norway. The clause is not sufficient to set aside the juridical system existing
between them on this point. It cannot close the way of access to the Court that was [p
355] formerly open, or cancel it out with the result that no jurisdiction would remain."
(I.C.J. Reports 1957, pp. 75 and 76; emphasis added.)

It is difficult to imagine a more forcible rejection of the thesis that a unilateral declaration
may modify the terms on which compulsory jurisdiction has been accepted under an
earlier treaty than that of Judge Basdevant on the Certain Norwegian Loans case.

91. The issue did arise directly with reference to the Court's jurisdiction in the Appeal
Relating to the Jurisdiction of the ICAO Council case (I.C.J. Reports 1972, p. 46), where
India in her Application had founded the jurisdiction of the Court on certain provisions of
the Convention on International Civil Aviation and of the International Air Services
Transit Agreement, together with Articles 36 and 37 of the Statute of the Court.
Pakistan, in addition to raising certain preliminary objections to jurisdiction on the basis
of provisions in the treaties themselves, had argued that the Court must in any event
hold itself to lack jurisdiction by reason of the effect of one of India's reservations to her
acceptance of compulsory jurisdiction under the optional clause (ibid., p. 53, and I.C.J.
Pleadings, Appeal Relating to the Jurisdiction of the ICAO Council, p. 379). In short,
Pakistan had specifically advanced in that case the very argument now put forward by
the French Government in the Annex to its letter of 16 May 1973. Furthermore, India's
declaration containing the reservation in question had been made subsequently to the
conclusion of the two treaties, so that the case was on all fours with the present case.
 II. CUSTOMARY INTERNATIONAL LAW

The Court, the Judgment shows, dealt with the treaties and the optional clause
declarations as two separate and wholly independent sources of jurisdiction. Speaking,
inter alia, of Pakistan's reliance on the reservation in India's declaration, the Court
observed:

"In any event, such matters would become material only if it should appear that the
Treaties and their jurisdictional clauses did not suffice, and that the Court's jurisdiction
must be sought outside them, which, for reasons now to be stated, the Court does not
find to be the case." (I.C.J. Reports 1972, p. 53.)

Having then stated these reasons, which were that the Court rejected Pakistan's
preliminary objections relating to the jurisdictional clauses of the Treaties and upheld its
jurisdiction under those clauses, the Court summarily disposed of the objection based
on the reservation in India's declaration:

"Since therefore the Court is invested with jurisdiction under those clauses and, in
consequence . . . under Article 36, paragraph 1, and under Article 37, of its Statute, it
becomes irrelevant to consider the objections to other possible bases of jurisdiction."
(Ibid., p. 60; emphasis added.) [p 356]

Thus the Court expressly held the reservation in India's subsequent declaration under
the optional clause to be of no relevance whatever in determining the Court's jurisdiction
under the earlier treaties.

***

Australia's Alleged Breach of the 1928 Act in 1939

92. Finally, one further argument put forward in the Annex to the letter of 16 May 1973
for considering the 1928 Act inapplicable between France and Australia needs to be
mentioned. In connection with another contention of the French Government, we have
already referred to the notification addressed by Australia to the Secretary-General of
the League of Nations four days after the outbreak of the Second World War to the
effect that she would not regard her accession to the Act as "covering or relating to any
dispute arising out of events occurring during present crisis" (para. 27). The further
argument now requiring our attention is that this notification was not in accord with the
provision in Article 45 concerning modification of reservations; that Australia refrained
from regularizing her position with regard to this provision when it could have done so in
1944; and that, although France never protested against the supposed breach of the
Act, the French Government is not bound to respect a treaty which Australia herself has
"ceased to respect since a date now long past". We have already pointed out that
 II. CUSTOMARY INTERNATIONAL LAW

Australia, as also Canada, justified her notification of the new reservation on the basis
of the breakdown of collective security under the League and the resulting fundamental
change in the situation obtaining when she acceded to the Act, and that if that
justification was well founded, there was no pressing need to "regularize" her position
under the Act in 1944. Reference to the historical context in which the Australian
notification was made shows also that this further argument lacks all plausibility.

93. In February 1939 France, the United Kingdom, India and New Zealand each notified
the Secretary-General of their reservation from the 1928 Act of "disputes arising out of
any war in which they might be engaged". These notifications were all made expressly
under Article 45 of the Act, and were accompanied by explanations referring to the
withdrawal of some Members of the League and the reinterpretation by others of their
collective security obligations. Having regard to the similarity of the terms of the four
notifications and the fact that they were deposited almost simultaneously (on 14 and 15
February 1939), it seems evident that the four States acted together. Similar action was
not, however, taken by either Australia or Canada with reference to the 1928 Act at that
date. [p 358]

Conclusions on the Question of Jurisdiction

94. In our view, therefore, close examination of the various objections to the Court's
assuming jurisdiction on the basis of the General Act of 1928, which are developed in
the French Government's letter and Annex of 16 May 1973, show them all to be without
any sound foundation. Nor has our own examination of the matter, proprio motu,
revealed any other objection calling for consideration. We accordingly conclude that
Article 17 of the 1928 Act provides in itself a valid and sufficient basis for the Applicant
to establish the jurisdiction of the Court in the present case.

95. It follows that, as was said by the Court in the Appeal Relating to the Jurisdiction of
the ICAO Council case, "it becomes irrelevant to consider the objections to other
possible bases of jurisdiction". We do not, therefore, find it necessary to examine the
alternative basis of jurisdiction invoked by the Applicant, i.e., the two declarations of the
Parties under the optional clause, or any problems which the reservations to those
declarations may raise.

***

Part III. The Requirements of Article 17 of the 1928 Act and the Admissibility of the
Application
 II. CUSTOMARY INTERNATIONAL LAW

96. In our view, it is clear that there are no grounds on which the Applicant's claim might
be considered inadmissible. The extent to which any such proposed grounds are linked
to the jurisdictional issue or are considered apart from that issue will be developed in
this part of our opinion. At the outset we affirm that there is nothing in the concept of
admissibility which should have precluded the Applicant from being given the
opportunity of proceeding to the merits. This observation applies, in particular, to the
contention that the claim of the Applicant reveals no legal dispute or, put differently, that
the dispute is exclusively of a political character and thus non-justiciable.

97. Under the terms of Article 17 of the 1928 Act, the jurisdiction which it confers on the
Court is over "all disputes with regard to which the parties are in conflict as to their
respective rights" (subject, of course, to any reservations made under Article 39 of the
Act). Article 17 goes on to provide: "It is understood that the disputes referred to above
include in particular those mentioned in Article 36 of the Statute of the Permanent Court.
. ." The disputes "mentioned in Article 36 of the Statute of the Permanent Court" are the
four classes of legal disputes listed [p 359] in the optional clause of that Statute and of
the present Statute. Moreover, subject to one possible point which does not arise in the
present caseFN1, it is generally accepted that these four classes of "legal disputes" and
the earlier expression in Article 17 "all disputes with regard to which the parties are in
conflict as to their respective rights" have to all intents and purposes the same scope. It
follows that what is a dispute "with regard to which the parties are in conflict as to their
respective rights" will also be a dispute which falls within one of the four categories of
legal disputes mentioned in the optional clause and vice versa.

---------------------------------------------------------------------------------------------------------------------
FN1 Cf. the different opinions of Judges Badawi and Lauterpacht in the Certain
Norwegian Loans case on the question whether a dispute essentially concerning the
application of municipal law falls within the classes of legal disputes listed in Article 36
(2) of the Statute; I.C.J. Reports 1957, at pp. 29-33 and 36-38.
---------------------------------------------------------------------------------------------------------------------

98. In the present proceedings, Australia has described the subject of the dispute in
paragraphs 2-20 of her Application. Inter alia, she there states that in a series of
diplomatic Notes beginning in 1963 she repeatedly voiced to the French Government
her opposition to France's conduct of atmospheric nuclear tests in the South Pacific
region; and she identifies the legal dispute as having taken shape in diplomatic Notes of
3 January, 7 February and 13 February 1973 which she annexed to her Application. In
the first of these three Notes, the Australian Government made clear its opinion that the
conducting of such tests would:
 II. CUSTOMARY INTERNATIONAL LAW

". . . 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".

This opinion was challenged by the French Government in its reply of 7 February 1973,
in which it expressed its conviction that "its nuclear experiments have not violated any
rule of international law" and controverted Australia's legal contentions point by point. In
a further Note of 13 February, however, the Australian Government expressed its
disagreement with the French Government's views, repeated its opinion that the
conducting of the tests violates rules of international law, and said it was clear that "in
this regard there exists between our two Govern-ments a substantial legal dispute".
Then, after extensive observations on the consequences of nuclear explosions, the
growth of the awareness of the danger of nuclear testing and of the particular aspects
and specific consequences of the French tests, Australia set out seriatim, in paragraph
49 of her Application, three separate categories of Australia's rights which she contends
have been, are, and will be violated by the French atmospheric tests. [p 360]

99. Prima facie, it is difficult to imagine a dispute which in its subject-matter and in its
formulation is more clearly a "legal dispute" than the one submitted to the Court in the
Application. The French Government itself does not seem in the diplomatic exchanges
to have challenged the Australian Government's characterization of the dispute as a
"substantial legal dispute", even although in the above-mentioned Note of 7 February
1973 it expressed a certain scepticism regarding the legal considerations invoked by
Australia. Moreover, neither in its letter of 16 May 1973 addressed to the Court nor in
the Annex enclosed with that letter did the French Government for a moment suggest
that the dispute is not a dispute "with regard to which the parties are in conflict as to
their respective rights" or that it is not a "legal dispute". Although in that letter and
Annex, the French Government advanced a whole series of arguments for the purpose
of justifying its contention that the jurisdiction of the Court cannot be founded in the
present case on the General Act of 1928, it did not question the character of the dispute
as a "legal dispute" for the purposes of Article 17 of the Act.

100. In the Livre blanc sur les experiences nucleaires published in June 1973, however,
the French Government did take the stand that the dispute is not a legal dispute.
Chapter II, entitled "Questions juridiques" concludes with a section on the question of
the Court's jurisdiction, the final paragraph of which reads :

"La Cour n'est pas competente, enfin, parce que l'affaire qui lui est soumise n'est pas
fondamentalement un differend d'ordre juridique. Elle se trouve, en fait et par divers
 II. CUSTOMARY INTERNATIONAL LAW

biais, invitee à prendre position sur un problème purement politique et militaire. Ce

n'est, selon le Gouvernement français, ni son rôle ni sa vocation." (P. 23.)

This clearly is an assertion that the dispute is one concerned with matters other than
legal and, therefore, not justiciable by the Court.

101. Complying with the Court's Order of 22 June 1973, Australia submitted her
observations on the questions of the jurisdiction of the Court and the admissibility of the
Application. Under the rubric of "jurisdiction" she expressed her views, inter alia, on the
question of the political or legal nature of the dispute; and under the rubric of
"admissibility" she furnished further explanations of the three categories of rights which
she claims to be violated by France's conduct of nuclear atmospheric tests in the South
Pacific region. These rights, as set out in paragraph 49 of the Application and
developed in her pleadings, may be broadly described as follows:

(1) A right said to be possessed by every State, including Australia, to be free from
atmospheric nuclear weapon tests, conducted by any State, in virtue of what Australia
maintains is now a generally accepted rule of customary international law prohibiting all
such tests. As support for the alleged right, the Australian Government invoked a variety
of [p 361] considerations, including the development from 1955 onwards of a public
opinion strongly opposed to atmospheric tests, the conclusion of the Moscow Test Ban
Treaty in 1963, the fact that some 106 States have since become parties to that Treaty,
diplomatic and other expressions of protests by numerous States in regard to
atmospheric tests, rejected resolutions of the General Assembly condemning such tests
as well as pronouncements of the Stockholm Conference on the Human Environment,
Articles 55 and 56 of the Charter, provisions of the Universal Declaration of Human
Rights and of the International Covenant on Economic, Social and Cultural Rights and
other pronouncements on human rights in relation to the environment.

(2) A right, said to be inherent in Australia's own territorial sovereignty, to be free from
the deposit on her territory and dispersion in her air space, without her consent, of
radio-active fall-out from the French nuclear tests. The mere fact of the trespass of the
fall-out, the harmful effects which flow from such fall-out and the impairment of her
independent right to determine what acts shall take place within her territory (which she
terms her "decisional sovereignty") all constitute, she maintains, violations of this right.
As support for this alleged right, the Australian Government invoked a variety of legal
material, including pronouncements of this Court in the Corfu Channel case (I.C.J.
Reports 1949, at pp. 22 and 35), of Mr. Huber in the Island of Palmas Arbitration
(UNRIAA, Vol. II, p. 839) and of the Permanent Court of International Justice in the
Customs Union case (P.C.I.J., Series A/B, No. 41, at p. 39), the General Assembly's
Declaration on Principles of International Law concerning Friendly Relations and
 II. CUSTOMARY INTERNATIONAL LAW

Co-operation, the Charter of the Organization of African Unity, and Declarations of the
General Assembly and of Unesco regarding satellite broadcasting, and opinions of
writers.

(3) A right, said to be derived from the character of the high seas as res communis and
to be possessed by Australia in common with all other maritime States, to have the
freedoms of the high seas respected by France; and, in particular, to require her to
refrain from (a) interference with the ships and aircraft of other States on the high seas
and in the superjacent air space, and (b) the pollution of the high seas by radio-active
fall-out. As support for this alleged right, the Australian Government referred to Articles
2 and 25 of the Geneva Convention of 1958 on the High Seas, the commentaries of the
International Law Commission on the corresponding provisions of its draft Articles on
the Law of the Sea and to other legal material, including the records of the debates in
the International Law Commis- [p 362] sion, passages in this Court's Judgment in the
Anglo-Norwegian Fisheries case, various declarations and treaty provisions relating to
marine pollution, and opinions of writers.

In response to a question put by a Member of the Court, the Australian Government

also furnished certain explanations regarding (i) the distinction which it draws between
the transmission of chemical or other matter from one State's territory to that of another
as a result of a normal and natural use of the former's territory and one which does not
result from a normal and natural use; and (ii) the relevance or otherwise of harm or
potential harm as an element in the legal cause of action in such cases.

102. In regard to each of the above-mentioned categories of legal rights, Australia

maintained that there is a correlative legal obligation resting upon France, the breach of
which would involve the latter in international responsibility towards Australia. In
addition, she developed a general argument by which she sought to engage the
international responsibility of France on the basis of the doctrine of "abuse of rights" in
the event that France should be considered as, in principle, invested with a right to carry
out atmospheric nuclear tests. In this connection, she referred to a dictum of Judge
Alvarez in the Anglo-Iranian Oil Co. case, the Report of the Asian-African Legal
Consultative Committee in 1964 on the Legality of Nuclear Tests, Article 74 of the
Charter, the opinions of certain jurists and other legal materials.

103. Under the rubric of "admissibility", Australia also presented her views on the
question, mentioned in paragraph 23 of the Order of 22 June 1973, of her "legal
interest" in respect of the claims put forward in her Application. She commented, in
particular, on the question whether, in the case of a right possessed by the international
community as a whole, an individual State, independently of material damage to itself, is
entitled to seek the respect of that right by another State. She maintained in regard to
 II. CUSTOMARY INTERNATIONAL LAW

certain categories of obligations owed erga omnes that every State may have a legal
interest in their performance, citing certain pronouncements of the Permanent Court and
of this Court and more especially the pronouncement of this Court on the matter in the
Barcelona Traction Light and Power Company case (Second Phase, I.C.J. Reports
1970, at p. 32). With regard to the right said to be inherent in Australia's own territorial
sovereignty, she considered it obvious that a State possesses a legal interest "in the
protection of its territory from any form of external harmful action as well as in the
defence of the well-being of its population and in the protection of national integrity and
independence". With regard to the right said to be derived from the character of the high
seas as res communis, Australia maintained that "every State has a legal interest in
safeguarding the respect by other States of the freedom of the seas", that the practice
of States demonstrates the irrelevance of the possession of a specific material interest
on the part of the individual State, and that this general legal interest of all States in
safeguarding the freedom of the [p 363] seas has received express recognition in
connection with nuclear tests. As support for the above proposition she cited a variety of
legal material.

***

104. In giving this very summary account of the legal contentions of the Australian
Government, we are not to be taken to express any view as to whether any of them are
well or ill founded. We give it for the sole purpose of indicating the context in which
Article 17 of the 1928 Act has to be applied and the admissibility of Australia's
Application determined. Before we draw any conclusions, however, from that account of
Australia's legal contentions, we must also indicate our understanding of the principles
which should govern our determination of these matters at the present stage of the
proceedings.

**

105. The matters raised by the issues of "legal or political dispute" and "legal interest",
although intrinsically matters of admissibility, are at the same time matters which, under
the terms of Article 17 of the 1928 Act, also go to the Court's jurisdiction in the present
case. Accordingly, it would be pointless for us to characterize any particular issue as
one of jurisdiction or of admissibility, more especially as the practice neither of the
Permanent Court nor of this Court supports the drawing of a sharp distinction between
preliminary objections to jurisdiction and admissibility. In the Court's practice the
emphasis has been laid on the essentially preliminary or non-preliminary character of
the particular objection rather than on its classification as a matter of jurisdiction or
admissibility (cf. Art. 62 of the Rules of the Permanent Court, Art. 62 of the old Rules of
this Court and Art. 67 of the new Rules). This is because, owing to the consensual
 II. CUSTOMARY INTERNATIONAL LAW

nature of the jurisdiction of an international tribunal, an objection to jurisdiction no less

than an objection to admissibility may involve matters which relate to the merits; and
then the critical question is whether the objection can or cannot properly be decided in
the preliminary proceedings without pleadings affording the parties the opportunity to
plead to the merits. The answer to this question necessarily depends on whether the
Objection is genuinely of a preliminary character or whether it is too closely linked to the
merits to be susceptible of a just decision without first having pleadings on the merits.
So it is that, in specifying the task of the Court when disposing of preliminary objections,
Article 67, paragraph 7, of the Rules expressly provides, as one possibility, that the
Court should "declare that the objection does not possess, in the circumstances of the
case, an exclusively preliminary character". These principles clearly apply in the present
case even although, owing to the absence of France from the proceedings, the issues
of jurisdiction [p 364] and admissibility now before the Court have not been raised in the
form of objections stricto sensu.

106. The French Government's assertion that the dispute is not fundamentally of a legal
character and concerns a purely political and military question is, in essence, a
contention that it is not a dispute in which the Parties are in conflict as to their legal
rights; or that it does not fall within the categories of legal disputes mentioned in Article
36 (2) of the Statute. Or, again, the assertion may be viewed as a contention that
international law imposes no legal obligations upon France in regard to the matters in
dispute which, therefore, are to be considered as matters left by inter-national law
exclusively within her national jurisdiction; or, more simply, as a contention that France's
nuclear experiments do not violate any existing rule of international law, as the point
was put by the French Government in its diplomatic Note to the Australian Government
of 7 February 1973. Yet, however the contention is framed, it is manifestly and directly
related to the legal merits of the Applicant's case. Indeed, in whatever way it is framed,
such a contention, as was said of similar pleas by the Permanent Court in the Electricity
Company of Sofia and Bulgaria case, "forms a part of the actual merits of the dispute"
and "amounts not only to encroaching on the merits, but to coming to a decision in
regard to one of the fundamental factors of the case" (P.C.I.J., Series A\B, No. 77, at pp.
78 and 82-83). In principle, therefore, such a contention cannot be considered as raising
a truly preliminary question.

107. We say "in principle" because we recognize that, if an applicant were to dress up
as a legal claim a case which to any informed legal mind could not be said to have any
rational, that is, reasonably arguable, legal basis, an objection contesting the legal
character of the dispute might be susceptible of decision in limine as a preliminary
question. This means that in the preliminary phase of proceedings, the Court may have
to make a summary survey of the merits to the extent necessary to satisfy itself that the
case discloses claims that are reasonably arguable or issues that are reasonably
 II. CUSTOMARY INTERNATIONAL LAW

contestable; in other words, that these claims or issues are rationally grounded on one
or more principles of law, the application of which may resolve the dispute. The essence
of this preliminary survey of the merits is that the question of jurisdiction or admissibility
under consideration is to be determined not on the basis of whether the applicant's
claim is right but exclusively on the basis whether it discloses a right to have the claim
adjudicated. An indication of the merits of the applicant's case may be necessary to
disclose the rational and arguable character of the claim. But neither such a preliminary
indication of the merits nor any finding of jurisdiction or admissibility made upon it may
be taken to prejudge the merits. It is for this reason that, in investigating the merits for
the purpose of deciding preliminary issues, the Court has always been careful to draw
the line at the point [p 365] where the investigation may begin to encroach upon the
decision of the merits. This applies to disputed questions of law no less than to disputed
questions of fact; the maxim jura novit curia does not mean that the Court may
adjudicate on points of law in a case without hearing the legal arguments of the parties.

108. The precise test to be applied may not be easy to state in a single combination of
words. But the consistent jurisprudence of the Permanent Court and of this Court seems
to us clearly to show that, the moment a preliminary survey of the merits indicates that
issues raised in preliminary proceedings cannot be determined without encroaching
upon and prejudging the merits, they are not issues which may be decided without first
having pleadings on the merits (cf. Nationality Decrees Issued in Tunis and Morocco,
Advisory Opinion, P.C.I.J., Series B, No. 4; Right of Passage over Indian Territory case,
I.C.J. Reports 1957, at pp. 133-134; the Interhandel case, I.C.J. Reports 1959, pp.
23-25). We take as our general guide the observations of this Court in the Interhandel
case when rejecting a plea of domestic jurisdiction which had been raised as a
preliminary objection:

"In order to determine whether the examination of the grounds thus invoked is excluded
from the jurisdiction of the Court for the reason alleged by the United States, the Court
will base itself on the course followed by the Permanent Court of International Justice in
its Advisory Opinion concerning Nationality Decrees Issued in Tunis and Morocco
(Series B, No. 4), when dealing with a similar divergence of view. Accordingly, the Court
does not, at the present stage of the proceedings, intend to assess the validity of the
grounds invoked by the Swiss Government or to give an opinion on their interpretation,
since that would be to enter upon the merits of the dispute. The Court will confine itself
to considering whether the grounds invoked by the Swiss Government are such as to
justify the provisional conclusion that they may be of relevance in this case and if so,
whether questions relating to the validity and interpretation of those grounds are
questions of international law." (Emphasis added.)
 II. CUSTOMARY INTERNATIONAL LAW

In the Interhandel case, after a summary consideration of the grounds invoked by

Switzerland, the Court concluded that they both involved questions of international law
and therefore declined to entertain the preliminary objection.

109. The summary account which we have given above of the grounds invoked by
Australia in support of her claims appears to us amply sufficient, in the language of the
Court in the Interhandel case, "to justify the provisional conclusion that they may be of
relevance in this case" and that "questions relating to the validity and interpretation of
those grounds [p 366] are questions of international law". It is not for us "to assess the
validity of those grounds" at the present stage of the proceedings since that would be to
"enter upon the merits of the dispute". But our summary examination of them satisfies
us that they cannot fairly be regarded as frivolous or vexatious or as a mere attorney's
mantle artfully displayed to cover an essentially political dispute. On the contrary, the
claims submitted to the Court in the present case and the legal contentions advanced in
support of them appear to us to be based on rational and reasonably arguable grounds.
Those claims and legal contentions are rejected by the French Government on legal
grounds. In our view, these circumstances in themselves suffice to qualify the present
dispute as a "dispute in regard to which the parties are in conflict as to their legal rights"
and as a "legal dispute" within the meaning of Article 17 of the 1928 Act.

110. The conclusion just stated conforms to what we believe to be the accepted view of
the distinction between disputes as to rights and disputes as to so-called conflicts of
interests. According to that view, a dispute is political, and therefore non-justiciable,
where the claim is demonstrably rested on other than legal considerations, e.g., on
political, economic or military considerations. In such disputes one, at least, of the
parties is not content to demand its legal rights, but asks for the satisfaction of some
interest of its own even although this may require a change in the legal situation existing
between them. In the present case, however, the Applicant invokes legal rights and
does not merely pursue its political interest; it expressly asks the Court to determine and
apply what it contends are existing rules of international law. In short, it asks for the
settlement of the dispute "on the basis of respect for law", which is the very hall-mark of
a request for judicial, not political settlement of an international dispute (cf. Interpretation
of Article 3, paragraph 2, of the Treaty of Lausanne, P.C.I.J., Series B, No. 12, p. 26).
France also, in contesting the Applicant's claims, is not merely invoking its vital political
or military interests but is alleging that the rules of international law invoked by the
Applicant do not exist or do not warrant the import given to them by the Applicant. The
attitudes of the Parties with reference to the dispute, therefore, appear to us to show
conclusively its character as a "legal" and justiciable dispute.

111. This conclusion cannot, in our view, be affected by any suggestion or supposition
that, in bringing the case to the Court, the Applicant may have been activated by
 II. CUSTOMARY INTERNATIONAL LAW

political motives or considerations. Few indeed would be the cases justiciable before the
Court if a legal dispute were to be regarded as deprived of its legal character by reason
of one or both parties being also influenced by political considerations. Neither in
contentious cases nor in requests for advisory opinions has the Permanent [p 367]
Court or this Court ever at any time admitted the idea that an intrinsically legal issue
could lose its legal character by reason of political considerations surrounding it.

112. Nor is our conclusion in any way affected by the suggestion that in the present
case the Court, in order to give effect to Australia's claims, would have to modify rather
than apply the existing law. Quite apart from the fact that the Applicant explicitly asks
the Court to apply the existing law, it does not seem to us that the Court is here called
upon to do anything other than exercise its normal function of deciding the dispute by
applying the law in accordance with the express directions given to the Court in Article
38 of the Statute. We fully recognize that, as was emphasized by the Court recently in
the Fisheries Jurisdiction cases, "the Court, as a court of law, cannot render judgment
sub specie legis ferendae, or anticipate the law before the legislator has laid it down"
(I.C.J. Reports 1974, at pp. 23-24 and 192). That pronouncement was, however, made
only after full consideration of the merits in those cases. It can in no way mean that the
Court should determine in limine litis the character, as lex lata or lex ferenda, of an
alleged rule of customary law and adjudicate upon its existence or non-existence in
preliminary proceedings without having first afforded the parties the opportunity to plead
the legal merits of the case. In the present case, the Court is asked to perform its
perfectly normal function of assessing the various elements of State practice and legal
opinion adduced by the Applicant as indicating the development of a rule of customary
law. This function the Court performed in the Fisheries Jurisdiction cases, and if in the
present case the Court had proceeded to the merits and upheld the Applicant's
contentions in the present case, it could only have done so on the basis that the alleged
rule had indeed acquired the character of lex lata.

113. Quite apart from these fundamental considerations, we cannot fail to observe that,
in alleging violations of its territorial sovereignty and of rights derived from the principle
of the freedom of the high seas, the Applicant also rests its case on
long-established—indeed elemental— rights, the character of which as lex lata is
beyond question. In regard to these rights the task which the Court is called upon to
perform is that of determining their scope and limits vis-à-vis the rights of other States, a
task inherent in the function entrusted to the Court by Article 38 of the Statute.

114. These observations also apply to the suggestion that the Applicant is in no position
to claim the existence of a rule of customary international law operative against France
inasmuch as the Applicant did not object to, and even actively assisted in, the conduct
of atmospheric nuclear tests in the Pacific Ocean region prior to 1963. Clearly this is a
 II. CUSTOMARY INTERNATIONAL LAW

matter involving the whole concept of the evolutionary character of customary

international law upon which the Court should not pronounce in these prelimi-[p 368]
nary proceedings. The very basis of the Applicant's legal position, as presented to the
Court, is that in connection with and after the tests in question there developed a
growing awareness of the dangers of nuclear fall-out and a climate of public opinion
strongly opposed to atmospheric tests; and that the conclusion of the Moscow Test Ban
Treaty in 1963 led to the development of a rule of customary law prohibiting such tests.
The Applicant has also drawn attention to its own constant opposition to atmospheric
tests from 1963 onwards. Consequently, although the earlier conduct of the Applicant is
no doubt one of the elements which would have had to be taken into account by the
Court, it would have been upon the evidence of State practice as a whole that the Court
would have had to make its determination of the existence or non-existence of the
alleged rule. In short, however relevant, this point appears to us to belong essentially to
the legal merits of the case, and not to be one appropriate for determination in the
present preliminary proceedings.

115. We are also unable to see how the fact that there is a sharp conflict of view
between the Applicant and the French Government concerning the materiality of the
damage or potential risk of damage resulting from nuclear fall-out could either affect the
legal character of the dispute or call for the Application to be adjudged inadmissible
here and now. This question again appears to us to belong to the stage of the merits.
On the one side, the Australian Government has given its account of "nuclear
explosions and their consequences" in paragraphs 22-39 of the Application and, in
dealing with the growth of international concern on this matter, has cited a series of
General Assembly resolutions, the establishment of UNSCEAR in 1955 and its
subsequent reports on atomic radiation, the Test Ban Treaty itself, the Treaty for the
Prohibition of Nuclear Weapons in Latin America, and declarations and resolutions of
South Pacific States, Latin American States, African and Asian States, and a resolution
of the Twenty-sixth Assembly of the World Health Organization. It has also referred to
the psychological injury said to be caused to the Australian people through their anxiety
as to the possible effects of radio-active fall-out on the well-being of themselves and
their descendants. On the other side, there are before the Court the repeated
assurances of the French Government, in diplomatic Notes and public statements,
concerning the precautions taken by her to ensure that the nuclear tests would be
carried out "in complete security". There are also reports of various scientific bodies,
including those of the Australian National Radiation Advisory Committee in 1967, 1969,
1971 and 1972 and of the New Zealand National Radiation Laboratory in 1972, which
all concluded that the radio-active fall-out from the French tests was below the damage
level for public health purposes. In addition, the Court has before it the report of a
meeting of Australian and French scientists in May 1973 in which they arrived at
common conclusions as to the data of the [p 369] amount of fall-out but differed as to
 II. CUSTOMARY INTERNATIONAL LAW

the interpretation of the data in terms of the biological risks involved. Whatever
impressions may be gained from a prima facie reading of the evidence so far presented
to the Court, the questions of the materiality of the damage resulting from, and of the
risk of future damage from, atmospheric nuclear tests, appear to us manifestly
questions which cannot be resolved in preliminary proceedings without the parties
having had the opportunity to submit their full case to the Court.

116. The dispute as to the facts regarding damage and potential damage from
radio-active nuclear fall-out itself appears to us to be a matter which falls squarely within
the third of the categories of legal disputes listed in Article 36 (2) of the Statute: namely
a dispute concerning "the existence of any fact which, if established, would constitute a
breach of an international obligation". Such a dispute, in our view, is inextricably linked
to the merits of the case. Moreover, Australia in any event contends, in respect of each
one of the rights which she invokes, that the right is violated by France's conduct of
atmospheric tests independently of proof of damage suffered by Australia. Thus, the
whole issue of material damage appears to be inextricably linked to the merits. Just as
the question whether there exists any general rule of international law prohibiting
atmospheric tests is "a question of international law" and part of the legal merits of the
case, so also is the point whether material damage is an essential element in that
alleged rule. Similarly, just as the questions whether there exist any general rules of
international law applicable to invasion of territorial sovereignty by deposit of nuclear
fall-out and regarding violation of so-called "decisional sovereignty" by such a deposit
are "questions of international law" and part of the legal merits, so also is the point
whether material damage is an essential ele-ment in any such alleged rules. Mutatis
mutandis, the same may be said of the question whether a State claiming in respect of
an alleged violation of the freedom of the seas has to adduce material damage to its
own interests.

117. Finally, we turn to the question of Australia's legal interest in respect of the claims
which she advances. With regard to the right said to be inherent in Australia's territorial
sovereignty, we think that she is justified in considering that her legal interest in the
defence of that right is self-evident. Whether or not she can succeed in persuading the
Court that the particular right which she claims falls within the scope of the principle of
territorial sovereignty, she clearly has a legal interest to litigate that issue in defence of
her territorial sovereignty. With regard to the right to be free from atmospheric tests, said
to be possessed by Australia in common with other States, the question of "legal
interest" again appears to us to be part of the general legal merits of the case. If the
ma-[p 370] terials adduced by Australia were to convince the Court of the existence of a
general rule of international law, prohibiting atmospheric nuclear tests, the Court would
at the same time have to determine what is the precise character and content of that
rule and, in particular, whether it confers a right on every State individually to prosecute
 II. CUSTOMARY INTERNATIONAL LAW

a claim to secure respect for the rule. In short, the question of "legal interest" cannot be
separated from the substantive legal issue of the existence and scope of the alleged
rule of customary international law. Although we recognize that the existence of a
so-called actio popularis in international law is a matter of controversy, the observations
of this Court in the Barcelona Traction, Light and Power Company, Limited case FN1
suffice to show that the question is one that may be considered as capable of rational
legal argument and a proper subject of litigation before this Court.

---------------------------------------------------------------------------------------------------------------------
FN1 Second Phase, I.C.J. Reports 1970, at p. 32. 121
--------------------------------------------------------------------------------------------------------------------

118. As to the right said to be derived from the principle of the freedom of the high seas,
the question of "legal interest" once more appears clearly to belong to the general legal
merits of the case. Here, the existence of the fundamental rule, the freedom of the high
seas, is not in doubt, finding authoritative expression in Article 2 of the Geneva
Convention of 1958 on the High Seas. The issues disputed between the Parties under
this head are (i) whether the establishment of a nuclear weapon-testing zone covering
areas of the high seas and the superjacent air space are permissible under that rule or
are violations of the freedoms of navigation and fishing, and (ii) whether atmospheric
nuclear tests also themselves constitute violations of the freedom of the seas by reason
of the pollution of the waters alleged to result from the deposit of radio-active fall-out. In
regard to these issues, the Applicant contends that it not only has a general and
common interest as a user of the high seas but also that its geographical position gives
it a special interest in freedom of navigation, over-flight and fishing in the South Pacific
region. That States have in-dividual as well as common rights with respect to the
freedoms of the high seas is implicit in the very concept of such freedoms which involve
rights of user possessed by every State, as is implicit in numerous provisions of the
Geneva Convention of 1958 on the High Seas. It is, indeed, evidenced by the long
history of international disputes arising from conflicting assertions of their rights on the
high seas by individual States. Consequently, it seems to us that it would be difficult to
admit that the Applicant in the present case is not entitled even to litigate the question
whether it has a legal interest individually to institute proceedings in respect of what she
alleges to be violations of the freedoms of navigation, over-flight and fishing. This
question, as we have indicated, is an integral part of the substantive legal issues raised
under the head of the freedom [p 371] of the seas and, in our view, could only be
decided by the Court at the stage of the merits.

119. Having regard to the foregoing observations, we think it clear that none of the
questions discussed in this part of our opinion would constitute a bar to the exercise of
the Court's jurisdiction with respect to the merits of the case on the basis of Article 17 of
 II. CUSTOMARY INTERNATIONAL LAW

the 1928 Act. Whether regarded as matters of jurisdiction or of admissibility, they are all
either without substance or do "not possess, in the circumstances of the case, an
exclusively preliminary character". Dissenting, as we do, from the Court's decision that
the claim of Australia no longer has any object, we consider that the Court should have
now decided to proceed to pleadings on the merits.

Part IV. Conclusion

120. Since we are of the opinion that the Court has jurisdiction and that the case
submitted to the Court discloses no ground on which Australia's claims should be
considered inadmissible, we consider that the Applicant had a right under the Statute
and the Rules to have the case adjudicated. This right the Judgment takes away from
the Applicant by a procedure and by reasoning which, to our regret, we can only
consider as lacking any justification in the Statute and Rules or in the practice and
jurisprudence of the Court.

(Signed) Charles D. Onyeama.

(Signed) Hardy C. Dillard.

(Signed) E. Jimenez de Arechaga.

(Signed) H. Waldock.

[p 372]

Dissenting opinion of judge De Castro

[Translation]

In its Order of 22 June 1973 the Court decided that the written pleadings should first be
addressed to the questions of the jurisdiction of the Court to entertain the dispute and of
the admissibility of the Application. The Court ought therefore to give a decision on
these two preliminary questions.

Nevertheless, the majority of the Court has now decided not to broach them, because it
considers, in view of the statements made by French authorities on various occasions
concerning the cessation of atmospheric nuclear tests, that the dispute no longer has
any object.
 II. CUSTOMARY INTERNATIONAL LAW

That may be described as a prudent course to follow, and very learned arguments have
been put forward in support of it, but I am sorry to say that they fail to convince me. It is
therefore, I feel, incumbent upon me to set out the reasons why I am unable to vote with
the majority, and briefly to state how, in my view, the Court ought to have pronounced
upon the questions specified in the above-mentioned Order.

I. Is the dispute now without object?

Attention should in my view be drawn to various points concerning the value to be

attached to the French authorities' statements in relation to the course of the
proceedings:

1. I think the Court has done well to take these statements into consideration. It is true
they do not form part of the formal documentation brought to the cognizance of the
Court, but some have been cited by the Applicant and others are matters of public
knowledge; to ignore them would be to shut one's eyes to conspicuous reality. Given the
nonappearance of the Respondent, it is the duty of the Court to make sure proprio motu
of every fact that might be significant for the decision by which it is to render justice in
the case (Statute, Art. 53). In matters of procedure, the Court enjoys a latitude which is
not to be found in the municipal law of States (P.C.I.J., Series A, No. 2, p. 34; Statute,
Arts. 30 and 48).

As in the Northern Cameroons case, the Court may examine ex officio the questions
whether it is or is not "impossible for the Court to render a judgment capable of effective
application" (I.C.J. Reports 1963, p. 33), and whether the dispute submitted to it still
exists—in other words, it may enquire whether, on account of a new fact, there is no
longer any surviving dispute.
[p 373]

Thus, in the case brought before the Court, there arises a "pre-preliminary" question
(separate opinion of Judge Sir Gerald Fitzmaurice, ibid., p. 103) which must be given
priority over any question of jurisdiction (ibid., p. 105); namely whether the statements of
the French authorities have removed the legal interest of the Application, and whether
they may so be relied on as to render superfluous any judgment whereby the Court
might uphold the Applicant's claims.

2. I am wholly aware that the vote of the majority can be viewed as a sign of prudence.
The "new fact" which the statements of the French authorities represent is of an
importance which should not be overlooked. They are clear, formal and repeated
statements, which emanate from the highest authorities and show that those authorities
 II. CUSTOMARY INTERNATIONAL LAW

seriously and deliberately intend henceforth to discontinue atmospheric nuclear testing.

The French authorities are well aware of the anxiety aroused all over the world by the
tests conducted in the South Pacific region and of the sense of relief produced by the
announcement that they were going to cease and that underground tests would
hereafter be carried out. These statements are of altogether special interest to the
Applicant and to the Court.

It is true that the French Government has not appeared in the proceedings but, in point
of fact, it has, both directly and indirectly, made known to the Court its views on the
case, and those views have been studied and taken into consideration in the Court's
decisions. The French Government knows this. One must therefore suppose that the
French authorities have been able to take account of the possible effect of their
statements on the course of the proceedings.

It may be the confidence warranted by the statements of responsible authorities which

explains why the majority of the Court has thought it desirable to terminate proceedings
which it felt to be without object. An element of conflict (lis) is endemic in any litigation,
which it seems only wise, pro pace, to regard as terminated as soon as possible; this is
moreover in line with the peacemaking function proper to an organ of the United
Nations.

3. Even so, it must be added that the Court, as a judicial organ, must first and foremost
have regard to the legal worth of the French authorities' statements.
Upon the Court there falls the task of interpreting their meaning and verifying their
purpose. They can be viewed as the announcement of a programme, of an intention
with regard to the future, their purpose being to enlighten all those who may be
interested in the method which the French authorities propose to follow where nuclear
tests are concerned. They can also be viewed as simple promises to conduct no more
nuclear tests in the atmosphere. Finally, they can be considered as promises giving rise
to a genuine legal obligation.

It is right to point out that there is not a world of difference between the expression of an
intention to do or not do something in the future and a promise envisaged as a source of
legal obligations. But the fact remains [p 374] that not every statement of intent is a
promise. There is a difference between a promise which gives rise to a moral obligation
(even when reinforced by oath or word of honour) and a promise which legally binds the
promiser. This distinction is universally prominent in municipal law and must be
accorded even greater attention in international law.

For a promise to be legally binding on a State, it is necessary that the authorities from
which it emanates should be competent so to bind the State (a question of internal
 II. CUSTOMARY INTERNATIONAL LAW

constitutional law and international law) and that they should manifest the intention and
will to bind the State (a question of interpretation). One has therefore to ask whether the
French authorities which made the statements had the power, and were willing, to place
the French State under obligation to renounce all possibility of resuming atmospheric
nuclear tests, even in the event that such tests should again prove necessary for the
sake of national defence: an obligation which, like any other obligation stemming from a
unilateral statement, cannot be presumed and must be clearly manifested if it is to be
reliable in law (obligatio autem non oritur nisi ex voluntate certa et plane declarata).

The identification of the necessary conditions to render a promise animo sibi vinculandi
legally binding has always been a problem in municipal law and, since Grotius at least,
in international law also. When an obligation arises whereby a person is bound to act, or
refrain from acting, in such and such a way, this results in a restraint upon his freedom
(alienatio cuiusdam libertatis) in favour of another, upon whom he confers a right in
respect of his own conduct (signum volendi ius proprium alteri conferri); for that reason,
and with the exception of those gratuitous acts which are recognized by the law (e.g.,
donation, pollicitatio), the law generally requires that there should be a quid pro quo
from the benificiary to the promiser. Hence—and this should not be forgotten —any
promise (with the exception of pollicitatio) can be withdrawn at any time before its
regular acceptance by the person to whom it is made (ante acceptationem, quippe iure
nondum translatum, revocari posse sine iniust-tia).

4. On the occasion of another unilateral statement—discontinuance— the Court

established that an act of that kind must be considered in close relationship with the
circumstances of the particular case (I.C.J. Reports 1964, p. 19). And it is with the
circumstances of the present case in mind that one must seek an answer to the
following questions:

Do those statements of the French authorities with which the Judgment is concerned
mean anything other than the notification to the French people—or the world at
large—of the nuclear-test policy which the Government will be following in the
immediate future?

Do those statements contain a genuine promise never, in any circumstances, to carry

out any more nuclear tests in the atmosphere?[p 375]

Can those statements be said to embody the French Government's firm intention to bind
itself to carry out no more nuclear tests in the atmosphere?

Do these same statements possess a legal force such as to debar the French State
from changing its mind and following some other policy in the domain of nuclear tests,
 II. CUSTOMARY INTERNATIONAL LAW

such as to place it vis-à-vis other States under an obligation to carry out no more
nuclear tests in the atmosphere?

To these questions one may reply that the French Government has made up its mind to
cease atmospheric nuclear testing from now on, and has informed the public of its
intention to do so. But I do not feel that it is possible to go farther. I see no indication
warranting a presumption that France wished to bring into being an international
obligation, possessing the same binding force as a treaty—and vis-à-vis whom, the
whole world?

It appears to me that, to be able to declare that the dispute brought before it is without
object, the Court requires to satisfy itself that, as a fact evident and beyond doubt, the
French State wished to bind itself, and has legally bound itself, not to carry out any
more nuclear tests in the atmosphere. Yet in my view the attitude of the French
Government warrants rather the inference that it considers its statements on nuclear
tests to belong to the political domain and to concern a question which, inasmuch as it
relates to national defence, lies within the domain reserved to a State's domestic
jurisdiction.

I perfectly understand the reluctance of the majority of the Court to countenance the
protraction of proceedings which from the practical point of view have become
apparently, or probably, pointless. It is however not only the probable, but also the
possible, which has to be taken into account if rules of law are to be respected. It is
thereby that the application of the law becomes a safeguard for the liberty of States and
bestows the requisite security on international relations
.
II. Jurisdiction of the court

In its Order of 22 June 1973 the Court considered that the material submitted to it
justified the conclusion that the provisions invoked by the Applicant appeared, prima
facie, to afford a basis upon which the jurisdiction of the Court might be founded. At the
present stage of the pro-ceedings, the Court must satisfy itself that it has jurisdiction
under Articles 36 and 37 of the StatuteFN1

---------------------------------------------------------------------------------------------------------------------
FN1 I believe that 1 am entitled to express my opinion on the jurisdiction of the Court
and the admissibility of the Application. It is true that, in a declaration appended to the
Judgment in the South West Africa cases (I.C.J. Reports 1966, pp. 51-57), President Sir
Percy Spender endeavoured to narrow the scope of the questions with which judges
might deal in their opinions. But he was actually going against the practice followed in
the cases upon which the Court was giving judgment at the time. It was in the following
 II. CUSTOMARY INTERNATIONAL LAW

terms that he stated his view: "... such opinions should not purport to deal with matters
that fall entirely outside the range of the Court's decision, or of the decision's motivation"
(ibid., p. 55). In the present case, it does not seem to me that the questions of
jurisdiction and admissibility fall outside the range of the Court's decision. They are the
questions specified in the Court's Order of 22 June 1973, and they are those which
have to be resolved unless the dispute is manifestly without object.
---------------------------------------------------------------------------------------------------------------------
[p 376]

Jurisdiction of the Court by Virtue of the French Government's Declaration of 20 May

1966 (Art. 36, para. 2, of the Statute)

The first objection to the jurisdiction of the Court is based on the reservation made by
the French Government as to

". . . disputes arising out of a war or international hostilities, disputes arising out of a
crisis affecting national security or any measure or action relating thereto, and disputes
concerning activities connected with national defence".

This reservation certainly seems to apply to the nuclear tests. It is true that it has been
contended that the nuclear tests do not fall within activities connected with national
defence, because their object is the perfection of a weapon of mass destruction. But it
must be borne in mind that we are dealing with a unilateral declaration, an optional
declaration of adhesion to the jurisdiction of the Court. Thus the intention of the author
of the declaration is the first thing to be considered, and the terms of the declaration and
the contemporary circumstances permit of this being ascertained. The term "national
defence" is broad in meaning: "Ministry of National Defence" is commonly used as
corresponding to "Ministry of the Armed Forces". National defence also includes the
possibility of riposting to the offensive of an enemy. This is the idea behind the "strike
force". The expression used ("concerning activities connected with . . .") rules out any
restrictive interpretation. Furthermore, it is well known that the intention of the French
Government was to cover the question of nuclear tests by this reservation; it took care
to modify reservation (3) to its declaration of 10 July 1959 FN1 six weeks before the first
nuclear test FN2.

---------------------------------------------------------------------------------------------------------------------
FN1 By adding the words "and disputes concerning activities connected with national
defence".
FN2 In my opinion, the Court does not have to deal with the sophistical arguments of
the Applicant on this point, ingenious though they be. The objective nature of the
reservation does not require that the meaning of the expression "national defence", or
 II. CUSTOMARY INTERNATIONAL LAW

what the French Government meant when it used it, be proved by evidence. The
reservation should simply be interpreted as a declaration of unilateral will, should be
interpreted, that is to say, taking into account the natural meaning of the words and the
presumed intention of the declarer. What would require proof would be that it had a
meaning contrary to the natural meaning of the terms used.
---------------------------------------------------------------------------------------------------------------------

The Applicant contends that the French reservation is void because it is subjective and
automatic, and thus void as being incompatible with the requirements of the Statute.
This argument is not convincing. In reservation (3) of the French declaration, it is neither
stated explicitly nor implied that the French Government reserves the power to define
what is connected with national defence. However that may be, if the reser-[p
377]vation were void as contrary to law, the result would be that the declaration would
be void, so that the source of the Court's jurisdiction under Article 36, paragraph 2, of
the Statute would disappear along with the reservation. (In this sense, cf. separate
opinion of Judge Sir Hersch Lauterpacht, I.C.J. Reports 1957, pp. 34 and 57-59;
dissenting opinion of Judge Sir Hersch Lauterpacht, I.C.J. Reports 1959, p. 101;
separate opinion of Judge Sir Percy Spender, I.C.J. Reports 1959, p. 59.) The
reservation is not a statement of will which is independent and capable of being
isolated. Partial nullity, which the Applicant proposes to apply to it, is only permissible
when there is a number of terms which are entirely distinct ("tot sunt stipulationes, quot
corpora", D. 45, 1, 1, para. 5) and not when the reservation is the "essential basis" of
the consent (Vienna Convention on the Law of Treaties, Art. 44, para. 3 (b)) FN1.

---------------------------------------------------------------------------------------------------------------------
FN1 The separability of the reservation would have to be proved. Despite its efforts, the
Applicant has not succeeded in bolstering this contention with convincing arguments.
---------------------------------------------------------------------------------------------------------------------

The controversy is really an academic one. The exception or reservation in the French
declaration states, in such a way as to exclude any possible doubt, that the French
Government does not confer competence on the Court for disputes concerning activities
connected with national defence. There is no possibility in law of the Court's jurisdiction
being imposed on a State contrary to the clearly expressed will of that State. It is not
possible to disregard both the letter and the spirit of Article 36 of the Statute and Article
2, paragraph 7, of the United Nations Charter.

2. Jurisdiction of the Court by Virtue of the General Act of Geneva of 26 September

1928 (Art. 36, para. 1, and Art. 37 of the Statute)
 II. CUSTOMARY INTERNATIONAL LAW

The question which most particularly requires to be examined is whether the General
Act is still in force. Article 17 thereof reads as follows:

"All disputes with regard to which the parties are in conflict as to their respective rights
shall, subject to any reservations which may be made under Article 39, be submitted for
decision to the Permanent Court of International Justice, unless the parties agree, in the
manner hereinafter provided, to have resort to an arbitral tribunal."

Article 37 of the Statute provides that:

"Whenever a treaty or convention in force provides for reference of a matter to a tribunal

to have been instituted by the League of Nations, or to the Permanent Court of
International Justice, the matter shall, as between the Parties to the present Statute, be
referred to the International Court of Justice."

The French Government has informed the Court that it considers that the General Act
cannot serve as a basis for the competence of the Court. It is therefore necessary to
examine the various questions which have [p 378] been raised as to the efficacy of the
Act of Geneva after the dissolution of the League of Nations.

(a) The General Act, like the contemporary treaties for conciliation, judicial settlement
and arbitration, originated in the same concern for security and the same desire to
ensure peace as underlay the system of the League of Nations. The question which
arises in the present case is whether Article 17 of the General Act is no more than a
repetition or duplication of Article 36, paragraph 2, of the Statute of the Permanent
Court. If this is so, is Article 17 of the General Act subject to the vicissitudes undergone
by Article 36, paragraph 2, of the Statute, and likewise to the reservations permitted by
that provision?

The two Articles certainly coincide both in objects and means, but they are independent
provisions which each have their own individual life. This appeared to be generally
recognized. For brevity's sake, I will simply refer to the opinion of two French writers of
indisputable autho-rity. Gallus, in his study "L'Acte general a-t-il une reelle utilite?",
reaches the above conclusion. He points out the similarities between the Articles, and
goes on: "But it would not be correct to say that the General Act is no more than a
confirmation of the system of Article 36 of the Statute of the Permanent Court of
International Justice" (Revue de droit international (Lapradelle), Vol. III, 1931, p. 390).
The author is also careful to point out the differences between the two sources of
jurisdiction (members, conditions of membership, permitted reservations, duration,
denunciation) and the complications caused by the co-existence of the two sources
 II. CUSTOMARY INTERNATIONAL LAW

(ibid., pp. 392-395). In his view, the General Act amounts to "a step further than the
system of Article 36 of the Statute of the Court" (ibid., p. 391).

In the same sense, Rene Cassin has said:

"Does the recent accession of France to the Protocol of the aforesaid Article 36 not
duplicate its accession to Chapter II of the General Act of arbitration? The answer must
be that it does not." ("L'Acte general d'arbitrage", Questions politiques et juridiques,
Affaires etrangères, 1931, p. 17.) FN1

------------------------------------------------------------------------------------------------------------
FN1 Chapter II of the General Act, which is entitled "Judicial Settlement", begins with
Article 17. The individual and independent value of the Act, even after the winding-up of
the League of Nations, is clear from the travaux preparatoires of resolution 268A (III) of
the United Nations General Assembly, and from the actual text of that resolution.
------------------------------------------------------------------------------------------------------------

(b) It has been said that the reservations contemplated by Article 39, paragraph 2(b), of
the General Act, applicable between the Governments which are Parties to this case,
may be regarded as covering reservation (3) of the French declaration of 1966.

This view is not convincing. The reservation permitted by the General Act is for
"disputes concerning questions which by international law are solely within the domestic
jurisdiction of States". This coincides with [p 379] reservation (2) in the French
declaration of 1959, concerning "disputes relating to questions which by international
law fall exclusively within the domestic jurisdiction". That reservation was retained (also
as No. 2) in the French declaration of 1966; but it was thought necessary to add, in
reservation (3), an exclusion relating to disputes concerning activities connected with
national defence.

This addition to reservation (3) was necessary in order to modify its scope in view of the
new circumstances created by the nuclear tests. The reserved domain of domestic
jurisdiction does not include disputes arising from acts which might cause fall-out on
foreign territory. The final phrase of reservation (3) of the French declaration of 1966
has an entirely new content, and one which therefore differs from Article 39, paragraph
2 (b), of the General Act.
(c) Paradoxically enough, doubt has been cast on the continuation in force of the
General Act in the light of the proceedings leading up to General Assembly resolution
268A (III) on Restoration to the General Act of its Original Efficacy, and in view also of
the actual terms of the resolution.
 II. CUSTOMARY INTERNATIONAL LAW

It is true that ambiguous expressions can be found in the records of the preliminary
discussions. It was said that the draft resolution would not imply approval on the part of
the General Assembly, and that it would thus confine itself to allowing the States to
re-establish "the validity" of the General Act of 1928 of their own free will (Mr. Entezam
of Iran, United Nations, Official Records of the Third Session of the General Assembly,
Part I, Special Political Committee, 26th Meeting, 6 December 1948, p. 302) FN1. The
spokesmen for the socialist republics, for their part, vigorously criticized the General Act
for political reasons, regarding it as a worthless instrument that had brought forth
stillborn measures.

---------------------------------------------------------------------------------------------------------------------
FN1 Mr. Entezam was perhaps using the word "validity" in the sense of "full efficacy".
---------------------------------------------------------------------------------------------------------------------

But the signatories of the Act, when they spoke of regularizing and modifying the Act,
were contemplating the restoration of its full original efficacy, and were not casting doubt
on its existing validity. Mr. Larock (Belgium) explained that the General Act "was still
valid, but needed to be brought up to date" (ibid., 28th Meeting, p. 323). Mr. Ordonneau
(France) stated that "the Interim Committee simply proposed practical measures
designed to facilitate the application of provisions of Article 33 [of the Charter]" (ibid., p.
324). Mr. Van Langenhove (Belgium) said that "the General Act of 1928 was still in
force; nevertheless its effectiveness had diminished since some of its machinery [i.e.,
machinery of the League of Nations] had disappeared" (United Nations, Official Records
of the Third Session of the General Assembly, Part II, 198th Plenary Meeting, 28 April
1949, p. 176). Mr. Viteri Lafronte (Ecuador), the rapporteur, explained that "there was no
question of reviving the Act of 1928 or of making adherence to it obligatory. The Act
remained binding on those [p 380] signatories that had not denounced it" (ibid., p. 189).
Mr. Lapie (France) also said that the General Act of 1928, which it was proposed "to
restore to its original efficacy, was a valuable document inherited from the League of
Nations and it had only to be brought into accordance with the new Organization" (ibid.,
199th Plenary Meeting, 28 April 1949, p. 193). To sum up, and without there being any
need to burden this account of the matter with further quotations, it would seem that
no-one at that time claimed the Act had ceased to exist as between its signatories, and
that on the contrary it was recognized to be still in force between them.

Resolution 268A (III) of 28 April 1949, on the Restoration to the General Act of its
Original Efficacy, gives a clear indication of what its object and purpose is. It considers
that the Act was impaired by the fact that the organs of the League of Nations and the
Permanent Court had dis-appeared, and that the amendments mentioned were of a
 II. CUSTOMARY INTERNATIONAL LAW

nature to restore to it its original efficacy. The resolution emphasizes that such
amendments

"will only apply as between the States having acceded to the General Act as thus
amended and, as a consequence, will not affect the rights of such States, parties to the
Act as established on 26 September 1928, as should claim to invoke it in so far as it
might still be operative".

(d) Are Articles 17, 33, 34 and 37 of the General Act, which refer to the Permanent
Court of International Justice, still applicable by the operation of Article 37 of the
Statute? Solely an affirmative answer would appear to be tenable.

The Court answered the question indirectly in the Barcelona Traction, Light and Power
Company, Limited case (Preliminary Objections stage); Judge Armand-Ugon
demonstrated that the bilateral treaties of conciliation, judicial settlement and arbitration
of the time were of the same nature as the General Act, a multilateral treaty. He said of
the Hispano-Belgian treaty of 1927 that it "is nothing other than a General Act on a
small scale between two States". That is true. He then reasoned as follows: resolution
268A (III) seemed to him to show, beyond all possible doubt, that the General Assembly
did not think it could apply Article 37 of the Statute of the Court to the provisions of the
General Act relating to the Permanent Court, because for such a transfer "a new
agreement [the 1949 Act] was essential. This meant that Article 37 did not operate"
(dissenting opinion, I.C.J. Reports 1964, p. 156). The Court did not accept Judge
Armand-Ugon's reasoning as sound, and impliedly denied his interpretation of the 1949
Act and found Article 37 of the Statute applicable to the 1928 General ActFN1. The
doctrine of the Court was that the real object of the jurisdictional clause invoking the
Permanent Court (under Art. 37) was not "to specify one tribunal rather than another,
but to create an obligation of compulsory adjudication" (I.C.J. Reports 1964, p. 38).

---------------------------------------------------------------------------------------------------------------------
FN1 It held that the Hispano-Belgian treaty was still in force, because of the applicability
to it of Article 37 of the Statute.
---------------------------------------------------------------------------------------------------------------------
[p 381]

(e) The question which would appear to be basic to the present discussion on the
continuance in force of the General Act is whether or not that instrument has been
subjected to tacit abrogation.

International law does not look with favour on tacit abrogation of treaties. The Vienna
Convention, which may be regarded as the codification of communis opinio in the field
 II. CUSTOMARY INTERNATIONAL LAW

of treaties (I.C.J. Reports 1971, p. 47), has laid down that the "termination of a treaty"
may take place only "as a result of the application of the provisions of the treaty or of the
present Convention" (Art. 42, para. 2), and that the termination of a treaty under the
Convention may take place:''(a) in conformity with the provisions of the treaty; or (b) at
any time by consent of all the parties after consultation with other contracting States"
(Art. 54).

The General Act laid down the minimum period for which it should be in force, provided
for automatic renewal for five-year periods, and prescribed the form and means of
denunciation (Art. 45). Like the Vienna Convention, the Act did not contemplate tacit
abrogation; and this is as it should be. To admit tacit abrogation would be to introduce
confusion into the international system. Furthermore, if tacit abrogation were
recognized, it would be necessary to produce proof of the facta concludentia which
would have to be relied on to demonstrate the con-trarius consensus of the parties, and
proof of sufficient force to relieve the parties of the obligation undertaken by them under
the treaty.

(f) It seems to me to be going too far to argue from the silence surrounding the Act that
this is such as to give rise to a presumption of lapse FN1. Digests and lists of treaties in
force have continued to mention the Act; legal authors have done likewise FN2.

---------------------------------------------------------------------------------------------------------------------
FN1 The non-invocation of a treaty may in fact be due to its efficacy in obviating
disputes between the parties—and thereby constitute the best evidence of its
continuance in force.
FN2 It has been cited as being still in force by the most qualified writers in France and in
other countries. Nonetheless, the doubts of Siorat should be noted, as to the validity of
the Act after the winding-up of the League of Nations. He raises the problem whether
the General Act might not have lapsed for a reason other than the winding-up of the
Permanent Court: impossibility of execution, as a result of the disappearance of the
machinery of the League of Nations, might be asserted. But for termination to have
occurred, it would be necessary to prove that the functions laid on the League of
Nations have not been transferred to the United Nations, and that the situation would
both make execution literally impossible and create a total, complete and permanent
impossibility. Generally accepted desuetude might also be asserted. This writer
men-tions that the attitude of the parties towards the Act is difficult to interpret, and
points out that for there to be desuetude it would be necessary to prove indisputably
that the parties had adopted a uniform attitude by acting with regard to the Act as
though it did not exist, and that they had thus, in effect, concluded a tacit agreement to
regard the Act as having terminated ("L'article 37 du Statut de la Cour internationale de
 II. CUSTOMARY INTERNATIONAL LAW

Justice", Annuaire français de droit international, 1962, pp. 321-323). It should be

observed that the data given by this writer are somewhat incomplete.
---------------------------------------------------------------------------------------------------------------------

In the Court also, Judge Basdevant affirmed that the General Act was still in force and
that it was therefore in force between France and Norway, which were both signatories
to it. He drew attention to the fact [p 382] that the Act had been mentioned in the
Observations of the French Government and had later been explicitly invoked by the
Agent of that Government as a basis of the Court's jurisdiction in the case: he likewise
pointed out that the Act had also been mentioned by counsel for the Norwegian
Government (I.C.J. Reports 1957, p. 74). This is an opinion of considerable authority.
But it seems to me relevant also to observe that, when the Court (despite Judge
Basdevant's opinion) dismissed the French claim in the Certain Norwegian Loans case,
it did not throw doubt on the validity and efficacy of the General ActFN1

---------------------------------------------------------------------------------------------------------------------
FN1 The Court said that the French Government had mentioned the General Act of
Geneva, but went on to say that such a reference could not be regarded as sufficient to
justify the view that the Application of the French Government was based upon the
General Act. "If the French Government had intended to proceed upon that basis it
would expressly have so stated." The Court considered that the Application of the
French Government was based clearly and precisely on Article 36, paragraph 2, of the
Statute. For that reason, the Court felt that it 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 had been presented by both Parties to
the Court" (I.C.J. Reports 1957, p. 24 f.). It seems that it would not have been in the
interest of the French Government to place emphasis on the General Act, because the
latter, in Article 31, required the exhaustion of local remedies.
---------------------------------------------------------------------------------------------------------------------

The dissenting opinion of Judges Guerrero, McNair, Read and Hsu Mo, in the case
concerning Reservations to the Convention for the Prevention and Punishment of the
Crime of Genocide, also referred to the 1928 General Act and to the Revised Act (I.C.J.
Reports 1951, p. 37) FN2.

------------------------------------------------------------------------------------------------------------
FN2 The Act is also cited in I.C.J. Reports 1961, p. 19. Pakistan invoked it as basis of
the Court's jurisdiction in its Application of 11 May 1973 against India (a case which was
removed from the list by an Order of 15 December 1973 following a discontinuance by
Pakistan).
---------------------------------------------------------------------------------------------------------------------
 II. CUSTOMARY INTERNATIONAL LAW

In my view, one can only agree with the following statement, taken from a special study
of the matter:

"In conclusion it may be affirmed that the General Act of Geneva is in force between
twenty contracting States FN3 which are still bound by the Act, and not only in a purely
formal way, for it retains full efficacy for the contracting States despite the
disappearance of some organs of the League of Nations FN4."

------------------------------------------------------------------------------------------------------------
FN3 France and the United Kingdom have denounced the Act since the institution of the
present proceedings.
FN4 Kunzmann, "Die Generalakte von New York und Genf als Streitschlichtungsvertrag
der Vereinten Nationen", 56 Die Friedens-Warte (1961-1966), Basle, p. 22.
------------------------------------------------------------------------------------------------------------

(g) The continuance in force of the General Act being admitted, it has still been possible
to ask whether the French declaration recognizing the compulsory jurisdiction of the
Court, with the 1966 reservation as to national defence, might not have modified the
obligations undertaken by France when it signed the Act, in particular those contained in
Chapter II. In more general terms, the question is whether the treaties and conventions
in force in which acceptance of the Court's jurisdiction is specially provided for (the
hypothesis of Art. 36, para. 1, of the Statute), are sub-[p 383]ordinate to the unilateral
declarations made by States accepting the compulsory jurisdiction of the Court (the
hypothesis of Art. 36, para. 2), or depend on those declarations, with the result that the
abrogation of that obligation to be subject to the Court's jurisdiction, or its limitation by
the introduction of additional reservations, also entails the abrogation or limitation of the
obligations undertaken under a previous bilateral or multilateral convention.

The respect due to the sovereignty of States, and the optional nature of the Court's
jurisdiction (Art. 2, para. 7, of the Charter), would not seem to warrant setting aside the
principle of pacta sunt servanda, an essential pillar of international law. Once
submission to the Court's jurisdiction has been established in a treaty or convention
(Art. 36, para. 1, of the Statute), the parties to the treaty or convention cannot of their
own free will and by unilateral declaration escape the obligation undertaken toward
another State. Such declaration does not have prevailing force simply because it
provides for the jurisdiction of the Court in accordance with Article 36, paragraph 2, of
the Statute, or because it is made subject to reservations, or enshrines a possibility of
arbitrarily depriving the Court of jurisdiction. To undo the obligation undertaken, it will
always be necessary to denounce the treaty or convention in force, in accordance with
the prescribed conditions.
 II. CUSTOMARY INTERNATIONAL LAW

Even if it be thought that a declaration filed under Article 36, paragraph 2, of the Statute
gives rise to obligations of a contractual nature, the answer would still be that such
declaration cannot free the declarant State from all or any of the obligations which it has
already undertaken in a prior agreement, otherwise than in accordance with the
conditions laid down in that agreement. For there to be implied termination of a treaty as
a result of the conclusion of a subsequent treaty, a primary requirement is that "all the
parties to it conclude a later treaty relating to the same subject-matter" (Vienna
Convention, Art. 59).

It should also be noted that there is not such incompatibility between declarations made
by virtue of Article 36, paragraph 2, of the Statute, and the General Act, as to give rise
to tacit abrogation as a result of a new treaty. The Act operates between the signatories
thereto, a closed group of 20 States, and imposes special conditions and limitations on
the parties. The Statute, on the contrary, according to the interpretation which has been
given of Article 36, paragraph 2, opens the door to practically all States (Art. 93 of the
Charter), and permits of conditions and reservations of any kind whatever being laid
down.

The relationship between the General Act and subsequent acceptance of the
compulsory jurisdiction of the Court has been explained in a concise and masterly
fashion by Judge Basdevant:

"A way of access to the Court was opened up by the accession of the two Parties to the
General Act of 1928. It could not be closed or cancelled out by the restrictive clause
which the French Government, and not the Norwegian Government, added to its fresh
[p 384] acceptance of compulsory jurisdiction stated in its Declaration of 1949. This
restrictive clause, emanating from only one of them, does not constitute the law as
between France and Norway. The clause is not sufficient to set aside the juridical
system existing between them on this point. It cannot close the way of access to the
Court that was formerly open, or cancel it out with the result that no jurisdiction would
remain." (I.C.J. Reports 1957, pp. 75 f.)

(h) There still remains a teasing mystery: why did the French Government not denounce
the General Act at the appropriate time and in accordance with the required forms, in
exercise of Article 45, paragraph 3, of the Act, at the time in 1966 when it filed its
declaration recognizing the jurisdiction of the Court subject to new reservations? It
seems obvious that the French Government was in 1966 not willing that questions
concerning national defence should be capable of being brought before the Court, and
we simply do not know why the French Government preserved the Court's jurisdiction
herein vis-à-vis the signatories to the ActFN1. But this anomalous situation cannot be
 II. CUSTOMARY INTERNATIONAL LAW

regarded as sufficient to give rise to a presumption of tacit denunciation of the General

Act by the French Government, and to confer on such denunciation legal effectiveness
in violation of the provisions of the Act itself. To admit this would be contrary to the most
respected principles of the law of treaties; it would be contrary to legal security and even
to the requirements of the law as to presumptions.

---------------------------------------------------------------------------------------------------------------------
FN1 Though various hypotheses have been put forward to explain this apparently
contradictory conduct.
---------------------------------------------------------------------------------------------------------------------

III. The Admissibility of the application

1. The Order of 22 June 1973 decided that the written pleadings should be addressed
both to the question of the Court's jurisdiction to entertain the dispute and to that of the
admissibility of the Application. The Court has thus followed Article 67 of its Rules.

The term "admissibility" is a very wide one, but the Order, in paragraph 23, throws some
light on the meaning in which it uses it, by stating that it cannot be assumed a priori that
the Applicant "may not be able to establish a legal interest in respect of these claims
entitling the Court to admit the Application".

The question is whether the Applicant, in its submissions, has or has not asserted a
legal interest as basis of its action. At the preliminary stage contemplated by the Order,
the Court has first to consider whether the Applicant is entitled to open the proceedings
(legitimatio ad processum, Rechtsschutzanspruch), to set the procedural machinery in
motion, before turning to examination of the merits of the case. Subsequently the
question would arise as to whether the interest alleged was, in fact and in law, [p 385]
worthy of legal protection FN1 But that would belong to the merits of the case, and it
therefore does not fall to be considered here.

---------------------------------------------------------------------------------------------------------------------
FN1 Judge Morelli once pointed out that the distinction between a right of action and a
substantive interest is proper to municipal law, whereas it is necessary in international
law to ascertain whether there is a dispute (separate opinion, I.C.J. Reports 1963, pp.
132 f.). I do not find this observation particularly useful. To hold an application
inadmissible because of the applicant's want of legal interest, or to reach the same
conclusion because for want of such interest there is no dispute, conies to one and the
same thing. Judge Morelli felt bound to criticize the 1962 South West Africa Judgment
because in his view it confused "the right to institute proceedings" (which has to be
examined as a preliminary question) and the existence of "a legal right or interest" or "a
 II. CUSTOMARY INTERNATIONAL LAW

substantive right vested in the Applicants" (which has to be regarded as a question

touching the merits) (separate opinion, I.C.J. Reports 1966, p. 61).
---------------------------------------------------------------------------------------------------------------------

The Applicant refers to violations by France of several legal rules, and endeavours to
show that it has a legal interest to complain of each of these violations. It will therefore
be necessary to examine the interest thus invoked in each case of alleged violation, but
it would be as well for me first of all to devote some attention to the meaning of the
expression "legal interest".

2.The idea of legal interest is at the very heart of the rules of procedure (cf. the maxim
"no interest, no action"). It must therefore be used with the exactitude required by its
judicial function. The General Act affords a good guide in this respect: it distinguishes
between "disputes of every kind" which may be submitted to the procedure of
conciliation (Art. 1), the case of "an interest of a legal nature" in a dispute for purposes
of intervention (Art. 36), and "all disputes with regard to which the Parties are in conflict
as to their respective rights" (Art. 17); only the latter are disputes appropriate to judicial
settlement, and capable of being submitted for decision to the Permanent Court of
International Justice in accordance with the General Act FN2.

---------------------------------------------------------------------------------------------------------------------
FN2 Sir Gerald Fitzmaurice has shed light on the meaning to be given to the term
"dispute". He says that a legal dispute exists

"only if its outcome or result, in the form of a decision of the Court, is capable of
affecting the legal interests or relations of the parties, in the sense of conferring or
imposing upon (or confirming for) one or other of them, a legal right or obligation, or of
operating as an injunction or a prohibition for the future, or as a ruling material to a still
subsisting legal situation" (separate opinion, I.C.J. Reports 1963, p. 110).

The point thus made is not upset by the fact that proceedings can be instituted to
secure a declaratory ruling, but in that connection it must be noted that what may
properly fall to be determined in contentious proceedings is the existence or
nonexistence of a right vested in a party thereto, or of a concrete or specific obligation.
The Court cannot be called upon to make a declaratory finding of an abstract or general
character as to the existence or non-existence of an objective rule of law, or of a general
or non-specific obligation. That kind of declaration may be sought by means of a
request for an advisory opinion.
---------------------------------------------------------------------------------------------------------------------
 II. CUSTOMARY INTERNATIONAL LAW

As is apparent, Article 17 of the General Act does not permit of an extensive

interpretation of the "legal interest" which may be asserted before the Court. What is
contemplated is a right specific to the Applicant which is at the heart of a dispute,
because it is the subject of conflicting claims between the Applicant and the
Respondent. Thus it is a [p 386] right in the proper sense of that term (ius dominativum),
the nature of which is that it belongs to one or another State, that State being entitled to
negotiate in respect thereof, and to renounce it.

The Applicant however seems to overlook Article 17, and considers that it is sufficient
for it to have a collective or general interest. It has cited several authorities to support its
view that international law recognizes that every State has an interest of a legal nature
in the observation by other countries of the obligations imposed upon them by
international law, and to the effect also that law recognizes an interest of all States with
regard to general humanitarian causes.

If the texts which have been cited are closely examined, a different conclusion emerges.
In South West Africa (Preliminary Objections) Judge Jessup showed how international
law has recognized that States may have interests in matters which do not affect their
"material" or, say, "physical" or "tangible" interests. But Judge Jessup also observes that
"States have asserted such legal interests on the basis of some treaty"; in support of
this observation he mentions the minorities treaties, the Convention for the Prevention
and Punishment of the Crime of Genocide, conventions sponsored by the International
Labour Organisation, and the mandates system (separate opinion, I.C.J. Reports 1962,
pp. 425 ff.). Judge Jessup's opinion in the second phase of the South West Africa
cases, in which he criticizes the Court's Judgment, which did not recognize that the
Applicants or any State had a right of a recourse to a tribunal when the Applicant does
not allege its own legal interest relative to the merits, is very subtly argued. Judge
Jessup took into account the fact that it was a question of "fulfilment of fundamental
treaty obligations contained in a treaty which has what may fairly be called constitutional
characteristics" (dissenting opinion, I.C.J. Reports 1966, p. 386). More specifically, he
added: "There is no generally established actio popularis in international law" (ibid., p.
387). In the same case Judge Tanaka stated:

"We consider that in these treaties and organizations common and humanitarian
interests are incorporated. By being given organizational form, these interests take the
nature of 'legal interest' and require to be protected by specific procedural means."
(Dissenting opinion, I.C.J. Reports 1966, p. 252).

In reply to the argument that it should allow "the equivalent of an actio popularis, or right
resident in any member of a community to take legal action in vindication of a public
interest", the Court stated:
 II. CUSTOMARY INTERNATIONAL LAW

". . . although a right of this kind may be known to certain municipal systems of law, it is
not known to international law as it stands at present: nor is the Court able to regard it
as imported by the 'general principles of law' referred to in Article 38, paragraph 1 (c), of
its Statute" (I.C.J. Reports 1966, p. 47, para. 88). [p 387]

On the other hand the Court has also said that:

"In particular, an essential distinction should be drawn between the obligations of a

State towards the international community as a whole, and those arising vis-a-vis
another State in the field of diplomatic protection. By their very nature the former are the
concern of all States. In view of the importance of the rights involved, all States can be
held to have a legal interest in their protection; they are obligations erga omnes." (I.C.J.
Reports 1970, p. 32, para. 33.)

These remarks, which have been described as progressive and have been regarded as
worthy of sympathetic consideration, should be taken cum grano salis. It seems to me
that the obiter reasoning expressed therein should not be regarded as amounting to
recognition of the actio popularis in international law; it should be interpreted more in
conformity with the general practice accepted as law. I am unable to believe that by
virtue of this dictum the Court would regard as admissible, for example, a claim by State
A against State B that B was not applying "principles and rules concerning the basic
rights of the human person" (I.C.J. Reports 1970, p. 32, para. 34) with regard to the
subjects of State B or even State C. Perhaps in drafting the paragraph in question the
Court was thinking of the case where State B injured subjects of State A by violating the
fundamental rights of the human person. It should also be borne in mind that the Court
appears to restrict its dictum on the same lines as Judges Jessup and Tanaka when
referring to "international instruments of a universal or quasi-universal character" (I.C.J.
Reports 1970, p. 32, para. 34) FN1.

---------------------------------------------------------------------------------------------------------------------
FN1 The expression "obligations erga omnes" calls to mind the principle of municipal
law to the effect that ownership imposes an obligation erga omnes; but this obligation
gives rise to a legal right or interest to assert ownership before a tribunal for the benefit
of the owner who has been injured in respect of his right or interest, or whose right or
interest has been disregarded. Even in the case of theft, one cannot speak of an actio
popularis—which is something different from capacity to report the theft to the
authorities. It should also be borne in mind that a decision of the Court is not binding
erga omnes: it has no binding force except between the parties to the proceedings and
in respect of the particular case decided (Statute, Art. 59).
---------------------------------------------------------------------------------------------------------------------
 II. CUSTOMARY INTERNATIONAL LAW

In any event, if, as appears to me to be the case, the Court's jurisdiction in the present
case is based upon Article 17 of the General Act and not on the French declaration of
1966, the Application is not admissible unless the Applicant shows the existence of a
right of its own which it asserts to have been violated by the act of the Respondent.

3. The claim that the Court should declare that atmospheric nuclear tests are unlawful
by virtue of a general rule of international law, and that all States, including the
Applicant, have the right to call upon France to refrain from carrying out this sort of test,
gives rise to numerous doubts.
[p 388]

Can the question be settled in accordance with international law, or does it still fall within
the political domain? There is also the question whether this is a matter of admissibility
or one going to the merits. A distinction must be made as to whether it relates to the
political or judicial character of the case (a question of admissibility), or whether it
relates to the rule to be applied and the circumstances in which that rule can be
regarded as part of customary law (a question going to the merits) FN1 This is a
difficulty which could have been resolved by joining the question of admissibility to the
merits.

---------------------------------------------------------------------------------------------------------------------
FN1 The idea that the Moscow Treaty, by its nature, partakes of customary law or ius
cogens is laid open to some doubt by its want of universality and the reservation in its
Article IV to the effect that "Each Party shall ... have the right to withdraw from the
Treaty if it decides that extraordinary events, related to the subject-matter of this Treaty,
have jeopardized the supreme interests of its country".

On the preconditions for the birth of a rule of customary law, cf. my separate opinion,
I.C.J. Reports 1974, pp. 89 ff.
---------------------------------------------------------------------------------------------------------------------

But there is no need to settle these points. In my opinion, it is clear that the Applicant is
not entitled to ask the Court to declare that atmospheric nuclear tests are unlawful. The
Applicant does not have its own material legal interest, still less a right which has been
disputed by the other Party as required by the General Act. The request that the Court
make a general and abstract declaration as to the existence of a rule of law goes
beyond the Court's judicial function. The Court has no jurisdiction to declare that all
atmospheric nuclear tests are unlawful, even if as a matter of conscience it considers
that such tests, or even all nuclear tests in general, are contrary to morality and to every
humanitarian consideration.
 II. CUSTOMARY INTERNATIONAL LAW

4. The right relied on by the Applicant with regard to the deposit of radio-active fall-out
on its territory was considered in the Order of 22 June 1973 (para. 30). We must now
consider whether reliance on this right makes the request for examination of the merits
of the case admissible. The Applicant's complaint against France of violation of its
sovereignty by introducing harmful matter into its territory without its permission is
based on a legal interest which has been well known since the time of Roman law. The
prohibition of immissio (of water, smoke, fragments of stone) into a neighbouring
property was a feature of Roman law (D. 8, 5, 8, para. 5). The principle sic utere tuo ut
aliaenum non laedas is a feature of law both ancient and modern. It is well known that
the owner of a property is liable for intolerable smoke or smells, "because he oversteps
[the physical limits of his property], because there is immissio over the neighbouring
properties, because he causes injury FN2".

---------------------------------------------------------------------------------------------------------------------
FN2 Mazeaud, Traite theorique et pratique de la responsabilite civile, 3rd ed., 1938, Vol.
I, pp. 647 f., para. 597.
---------------------------------------------------------------------------------------------------------------------

In international law, the duty of each State not to use its territory for acts contrary to the
rights of other States might be mentioned (I.C.J. Reports 1949, p. 22). The arbitral
awards of 16 April 1938 and 11 March [p 389] 1941 given in a dispute between the
United States and Canada mention the lack of precedents as to pollution of the air, but
also the analogy with pollution of water, and the Swiss litigation between the cantons of
Solo-thurn and Aargau FN1. The conflict between the United States and Canada with
regard to the Trail Smelter was decided on the basis of the following rule:

---------------------------------------------------------------------------------------------------------------------
FN1 The Swiss Federal Tribunal laid down that, according to the rules of international
law, a State may freely exercise its sovereignty provided it does not infringe rights
derived from the sovereignty of another State; the presence of certain shooting-butts in
Aargau endangered areas of Solothurn, and the Tribunal forbade use of the butts until
adequate protective measures had been introduced (Judgments of the Swiss Federal
Tribunal, Vol. XXVI, Part I, pp. 449-451, Recital 3, quoted in Roulet, Le caractère
artificiel de la theorie de l'abus de droit en droit international public, Neuchâtel 1958, p.
121).
---------------------------------------------------------------------------------------------------------------------

"No State has the right to use or permit the use of its territory in such a manner as to
cause injury by fumes in or to the territory of another . . . when the case is of serious
consequence and the injury is established by clear and convincing evidence." (Trail
 II. CUSTOMARY INTERNATIONAL LAW

Smelter arbitration, 1938-1941, United States of America v. Canada, UNRIAA, Vol. III, p.
1965 FN2.)

------------------------------------------------------------------------------------------------------------
FN2 The Award reaches that conclusion "under the principles of international law, as
well as of the law of the United States". The award has been regarded as "basic for the
whole problem of interference. Its bases are now part of customary international law", A.
Randelzhofer, B. Simma, "Das Kernkraftwerk an der Grenze—Ein 'ultra-hazardous
activity' im Schnittpunkt von internationalem Nachbarrecht und Umweltschutz",
Festschrift für Friedrich Berber, Munich, 1973, p. 405. This award marks the
abandon-ment of the theory of Harmon (absolute sovereignty of each State in its
territory with regard to all others); Krakan, Die Harmon Doktrin: Eine These der
Vereinigten Staaten zum internationalen Flussrecht, Hamburg, 1966, p. 9.
------------------------------------------------------------------------------------------------------------

If it is admitted as a general rule that there is a right to demand prohibition of the

emission by neighbouring properties of noxious fumes FN3, the consequence must be
drawn, by an obvious analogy, that the Applicant is entitled to ask the Court to uphold its
claim that France should put an end to the deposit of radio-active fall-out on its territory.

---------------------------------------------------------------------------------------------------------------------
FN3 I.e., the continuance of the emission of harmful fumes, or the renewed emission of
fumes if it is to be feared (ad metuendum) that harm will result. Damnum infectum est
damnum nondum factum, quod futurum veremur, D. 39, 2, 2.
---------------------------------------------------------------------------------------------------------------------

The question whether the deposit of radio-active substances on the Applicant's territory
as a result of the French nuclear tests is harmful to the Applicant should only be settled
in the course of proceedings on the merits in which the Court would consider whether
intrusion or trespass into the territory of another is unlawful in itself or only if it gives rise
to damage; in the latter hypothesis, it would still have to consider the nature of the
alleged damage FN4, its existence FN5 and its relative import [p 390] anceFN1 in order
to pronounce on the claim for prohibition of the French nuclear tests FN2.

---------------------------------------------------------------------------------------------------------------------
FN4 It would have to say, for example, whether or not account should be taken of the
fact that continuation of the nuclear tests causes injury, in particular by way of
apprehension, anxiety and concern, to the inhabitants and Government of Australia.
FN5 This raises the question of evidence (Arts. 48 and 50 of the Statute; Art. 62 of the
Rules).
 II. CUSTOMARY INTERNATIONAL LAW

FN1The relative importance of the interests of the Parties must be assessed, and the
possibility of reconciling them (question of proximity and innocent usage).
FN2 In its Order of 22 June 1973, the Court alluded to the possibility that the tests might
cause "irreparable damage" to the Applicant; this is a possibility which should be kept in
mind in relation to the indication of interim measures (in view notably of their urgent
character) but not where admissibility is concerned.
--------------------------------------------------------------------------------------------------------------------

5. A third complaint against France is based upon infringement of the principle of

freedom of the high seas as the result of restrictions on navigation and flying due to the
establishment of forbidden zones. This raises delicate legal questions.

Is the carrying-out of nuclear tests over the sea, and the establishment of forbidden
zones, part of the other freedoms "which are recognized by the general principles of
international law" or is it contrary to the freedoms of other States? Are we dealing with a
case analogous to that of the establishment of forbidden zones for firing practice or
naval manoeuvres? The interpretation of Article 2, paragraph 2, of the Convention on
the High Seas requires that in each case reasonable regard be had to the interests of
other States in their exercise of their freedom of the high seas; the nature and the
importance of the interests involved must be considered, as must the principle of
non-harmful use (prodesse enim sibi unusquisque, dum alii non nocet, non prohibetur,
D. 39, 3, 1, para. 11), of the misuse of rights, and of good faith in the exercise of
freedoms.

The question of nuclear tests was examined by the 1958 Conference on the Law of the
Sea. A strong tendency to condemn nuclear testing was then apparent, yet the
Conference accepted India's proposal; it recognized that there was apprehension on the
part of many States that nuclear explosions might constitute an infringement of freedom
of the high seas, and referred the matter to the General Assembly for appropriate
action.

The complaint against France on this head therefore raises questions of law and
questions of fact relating to the merits of the case, which should not be examined and
dealt with at the preliminary stage of proceedings contemplated by the Order of 22 June
1973.

It seems to me that this third complaint is not admissible in the form in which it has been
presented. The Applicant is not relying on a right of its own disputed by France, and
does not base its Application on any material injury, responsibility for which it is
prepared to prove lies upon France FN3. The Applicant has no legal title authorizing it to
act as spokesman for the international community and ask the Court to condemn
 II. CUSTOMARY INTERNATIONAL LAW

France's conduct. The Court cannot go beyond its judicial functions and determine in a
general way what France's duties are with regard to the freedoms of the sea.

---------------------------------------------------------------------------------------------------------------------
FN3 Regarding the conditions on which a claim for damages can be entertained, c I.C.J.
Reports 1974, pp. 203-205, especially para. 76, and see also ibid., p. 225.
---------------------------------------------------------------------------------------------------------------------

(Signed) F. De Castro.

[p 391]

Dissenting opinion of judge sir Garfield Barwick

The Court, by its Order of 22 June 1973, separated two questions, that of its jurisdiction
to hear and determine the Application, and that of the admissibility of the Application
from all other questions in the case. It directed that "the written proceedings shall first be
addressed" to those questions. These were therefore the only questions to which the
Parties were to direct their attention. Each question related to the situation which
obtained at the date the Application was lodged with the Court, namely 9 May 1973.
The Applicant in obedience to the Court's Order has confined its Memorial and its oral
argument to those questions. Neither Memorial nor argument has been directed to any
other question.

Having read the Memorial and heard that argument, the Court has discussed those
questions but, whilst the Parties await the Court's decision upon them, the Court of its
own motion and without any notice to the Parties has decided the question whether the
Application has ceased to have any object by reason of events which have occurred
since the Application was lodged. It has taken cognizance of information as to events
said to have occurred since the close of the oral proceedings and has treated it as
evidence in the proceedings. It has not informed the Parties of the material which it has
thus introduced into evidence. By the use of it the Court has drawn a conclusion of fact.
It has also placed a particular interpretation upon the Application. Upon this conclusion
of fact and this interpretation of the Application the Court has decided the question
whether the Application has ceased to have any object. That question, in my opinion, is
not embraced within either of the two questions on which argument has been heard. It is
a separate, a different and a new question. Thus the Parties have had no opportunity of
 II. CUSTOMARY INTERNATIONAL LAW

placing before the Court their submissions as to the proper conclusion to be drawn from
events which have supervened on the lodging of the Application or upon the proper
interpretation of the Application itself in so far as each related to the question the Court
has decided or as to the propriety of deciding that question in the sense in which the
Court has decided it or at all at this stage of the proceedings: for it may have been
argued that that question if it arose was not of an exclusively preliminary character in
the circumstances of this case. The conclusion of fact and the interpretation of the
Application are clearly matters about which opinions differ. Further, the reasoning of the
Judgment involves important considerations of international law. Therefore, there was
ample room for argument and for the assistance of counsel. In any case the Applicant
must have been entitled to make submissions as to all the matters involved in the
decision of the Court. [p 392]

However, without notifying the Parties of what it was considering and without hearing
them, the Court, by a Judgment by which it decides to proceed no further in the case,
avoids deciding either of the two matters which it directed to be, and which have been
argued.

This, in my opinion, is an unjustifiable course, uncharacteristic of a court of justice. It is

a procedure which in my opinion is unjust, failing to fulfil an essential obligation of the
Court's judicial process. As a judge I can have no part in it, and for that reason, if for no
other, I could not join in the Judgment of the Court. However I am also unable to join in
that Judgment because I do not accept its reasoning or that the material on which the
Court has acted warrants the Court's conclusion. With regret therefore I dissent from the
Judgment.

It may be thought quite reasonable that if France is willing to give to Australia such an
unqualified and binding promise as Australia finds satisfactory for its protection never
again to test nuclear weapons in the atmosphere of the South Pacific, this case should
be compromised and the Application withdrawn. But that is a matter entirely for the
sovereign States. It is not a matter for this Court. The Rules of Court provide the means
whereby the proceedings can be discontinued at the will of the Parties (see Arts. 73 and
74 of the Rules of Court). It is no part of the Court's function to place any pressure on a
State to compromise its claim or itself to effect a compromise.

It may be that a layman, with no loyalty to the law might quite reasonably think that a
political decision by France no longer to exercise what it claims to be its right of testing
nuclear weapons in the atmosphere, when formally publicized, might be treated as the
end of the matter between Australia and France. But this is a court of justice, with a
loyalty to the law and its administration. It is unable to take the layman's view and must
confine itself to legal principles and to their application.
 II. CUSTOMARY INTERNATIONAL LAW

The Court has decided that the Application has become "without object" and that
therefore the Court is not called upon to give a decision upon it. The term "without
object" in this universe of discourse when applied to an application or claim, so far as
relevant to the circumstances of this case, I understand to imply that no dispute exists
between the Parties which is capable of resolution by the Court by the application of
legal norms available to the Court or that the relief which is sought is incapable of being
granted by the Court or that in the circumstances which obtain or would obtain at the
time the Court is called upon to grant the relief claimed, no order productive of effect
upon the Parties or their rights could properly be made by the Court in exercising its
judicial function.

To apply the expression "has become without object" to the present circumstances,
means in my opinion, that this Judgment can only be valid if the dispute between
France and Australia as to their respective rights has been resolved; has ceased to
exist or if the Court, in the circumstances
[p 393]now prevailing, cannot with propriety, within its judicial function, make any
declaration or Order having effect between the Parties.

It should be observed that I have described the dispute between France and Australia
as a dispute as to their respective rights. I shall at a later stage express my reasons for
my opinion that that is the nature of their dispute. But it is proper to point out
immediately that if the Parties were not in dispute as to their respective rights the
Application would have been "without object" when lodged, and no question of its
having no longer any object could arise. On the other hand if the Parties were in dispute
as to their respective rights, it is that dispute which is relevant in any consideration of
the question whether or not the Application no longer has any object.

Of course, if the Court lacked jurisdiction or if the Application as lodged was

inadmissible because the Parties were never in dispute as to their legal rights, the Court
would be not required to go any further in the matter. But the Court has not expressed
itself on those matters. The Judgment is not founded either on a lack of jurisdiction or
on the inadmissibility of the Application when lodged, though it seems to concede
inferentially that the Application was admissible when lodged.

In order to make my view in this matter as clear as I am able, it will be necessary for me
in the first place to discuss the only two questions on which the Court has heard
argument. Thereafter I shall express my reasons for dissenting from the Court's
Judgment (see p. 439 of this opinion). I shall first state my conclusions and later
develop my reasons for them.
 II. CUSTOMARY INTERNATIONAL LAW

In my opinion, the Court has jurisdiction to hear a dispute between France and Australia
as to their respective rights by virtue of Articles 36 (1) and 37 of the Statute of the Court
and Article 17 of the General Act of Geneva of 26 September 1928. Further, I am of
opinion that at the date the Application was lodged with the Court, France and Australia
were, and in my opinion still are, in dispute as to their respective rights in relation to the
consequences in the Australian territory and environment of the explosion by France in
the South Pacific of nuclear devices.

Further, they were, and still are, in difference as to the lawfulness or unlawfulness
according to customary international law of the testing of nuclear weapons in the
atmosphere. Subject to the determination of the question whether the Applicant has a
legal interest to maintain its Application in respect of this difference, I am of opinion that
the Parties were, at the date of the Application, and still are, in dispute as to their
respective rights in respect of the testing of nuclear weapons in the atmosphere.

If it be a separate question in this case, I am of opinion that the claim of the Applicant is
admissible in respect of all the bases upon which it is made, with the exception of the
basis relating to the unlawfulness of the testing of nuclear weapons in the atmosphere. I
am of opinion that the [p 394] question whether the Applicant has a legal interest to
maintain its claim in respect of that basis is not a question of an exclusively preliminary
character, and that it cannot be decided at this stage of the proceedings.

The distinctions implicit in this statement of conclusions will be developed later in this
opinion.

I approach the Court's Judgment therefore with the view that the Court is presently
seized of an Application which to the extent indicated is admissible and which the Court
is competent to hear and determine. I am of opinion that consistently under Article 38
the Court should have decided its jurisdiction and if it be a separate question the
admissibility of the Application.

I am of opinion that the dispute between the Parties as to their legal rights was not
resolved or caused to disappear by the communique and statements quoted in the
Judgment and that the Parties remained at the date of the Judgment in dispute as to
their legal rights. This is so, in my opinion, even if, contrary to the view I hold, the
communique and statements amounted to an assurance by France that it would not
again test nuclear weapons in the atmosphere. That assurance, if given, did not
concede any rights in Australia in relation to nuclear explosions or the testing of nuclear
weapons: indeed, it impliedly asserted a right in France to continue such explosions or
tests. Such an assurance would of itself in my opinion be incapable of resolving a
dispute as to legal rights.
 II. CUSTOMARY INTERNATIONAL LAW

I am further of opinion that the Judgment is not supportable on the material and grounds
on which it is based.

I now proceed to express my reasons for the several conclusions I have expressed.

Indication of Interim Measures

On 22 June 1973, the Court by a majority indicated by way of interim measures pending
the Court's final decision in the proceedings that:

"The Governments of Australia and France should each of them ensure that no action of
any kind is taken which might aggravate or extend the dispute submitted to the Court or
prejudice the rights of the other Party in respect of the carrying out of whatever decision
the Court may render in the case; and, in particular, the French Government should
avoid nuclear tests causing the deposit of radioactive fall-out on Australian territory."

In its Order the Court recited that:

"Whereas on a request for provisional measures the Court need not, before indicating
them, finally satisfy itself that it has jurisdiction on the merits of the case, and yet ought
not to indicate such [p 395] measures unless the provisions invoked by the Applicant
appear, prima facie, to afford a basis on which the jurisdiction of the Court might be
founded . . ."

After indicating in paragraph 14 of the Order that the Government of Australia (the
Applicant) claimed to found the jurisdiction of the Court to entertain its Application upon
(1) Article 17 of the General Act of Geneva of 26 September 1928, read with Articles 36
(1) and 37 of the Statute of the Court, and (2) alternatively, on Article 36 (2) of the
Statute of the Court and the respective declarations of Australia and France made
thereunder, this Court concluded that:

"Whereas the material submitted to the Court leads it to the conclusion, at the present
stage of the proceedings, that the provisions invoked by the Applicant appear, prima
facie, to afford a basis on which the jurisdiction of the Court might be founded; and
whereas the Court will accordingly proceed to examine the Applicant's request for the
indication of interim measures of protection . . ."

In indicating summarily in my declaration of 22 June 1973 my reason for joining the

majority in indicating interim measures, I said:
 II. CUSTOMARY INTERNATIONAL LAW

"I have voted for the indication of interim measures and the Order of the Court as to the
further procedure in the case because the very thorough discussions in which the Court
has engaged over the past weeks and my own researches have convinced me that the
General Act of 1928 and the French Government's declaration to the compulsory
jurisdiction of the Court with reservations each provide, prima facie, a basis on which
the Court might have jurisdiction to entertain and decide the claims made by Australia in
its Application of 9 May 1973."

I did so to emphasize the fact that the Court had at that time examined its jurisdiction in
considerable depth and that it had not acted upon any presumptions nor upon any
merely cursory considerations. Consistently with the Court's jurisprudence as a result of
this examination there appeared, prima facie, a basis on which the Court's jurisdiction
might be founded.

For my own part I felt, at that time, that it was probable that the General Act of Geneva
of 26 September 1928 (the General Act) continued at the date of the Application to be
valid as a treaty in force between Australia and France and that the dispute between
those States, as evidenced in the material lodged with the Application, fell within the
scope of Article 17 of the General Act.

Declarations by France and Australia to the compulsory jurisdiction of the Court under
Article 36 (2) of the Court's Statute with the respective [p 396] reservations, but
particularly that of France of 20 May 1966, as a source of the Court's jurisdiction raised
other questions which I had then no need to resolve but which did not ex facie, in my
opinion, necessarily deny the possibility of that jurisdiction.

In order to resolve as soon as possible the questions of its jurisdiction and the
admissibility of the Application, the Court decided that the written proceedings should
first be addressed to those questions.

Whether First to Decide Jurisdiction or Admissibility

In the reported decisions of the Court, and in the recorded opinions of individual judges,
and in the literature of international law, I do not find any definition of admissibility which
can be universally applied. A description of admissibility of great width was suggested in
the dissenting opinion of Judge Petren in this case (I.C.J. Reports 1973, p. 126); in the
dissenting opinion of Judge Gros, the suggestion was made that the lack of a justiciable
dispute, one which could be resolved by the application of legal norms, made the
Application "without object" and thus from the outset inadmissible. In his declaration
made at that time, Judge Jimenez de Arechaga pointed to the expressions in paragraph
 II. CUSTOMARY INTERNATIONAL LAW

23 of the Court's Order as indicating that the existence of a legal interest of the
Applicant in respect of its claims was one aspect of admissibility.
The Applicant confined its Memorial and its oral argument in relation to the question of
admissibility substantially to the question whether it had a legal interest to maintain its
Application. But the Court itself gave no approval to any such particular view of
admissibility. Intervention by the President during argument indicated that the Court
would decide for itself the ambit of the question of admissibility, that is to say, in
particular that it would not necessarily confine itself to the view seemingly adopted by
counsel. I shall need later to discuss the aspect of admissibility which, if it is a question
in this case separate from that of jurisdiction, is appropriate for consideration.

The question may arise at the preliminary stage of a matter whether the admissibility of
an application or reference ought first to be decided before any question of jurisdiction is
determined. Opinion appears to be divided as to whether or not in any case jurisdiction
should first be established before the admissibility of an application is considered, see
for example on the one hand the views expressed in the separate opinion of Judge Sir
Percy Spender, in the dissenting opinions of President Klaestad, Judge Armand-Ugon
and Judge Sir Hersch Lauterpacht in the Interhandel case (Switzerland v. United States
of America, I.C.J. Reports 1959, at p. 6) and, on the other hand, the views expressed by
Judge Sir Gerald Fitzmaurice in his separate opinion in the case of the Northern
Cameroons (Cameroon v. United Kingdom, I.C.J. Reports 1963, p. 15). There is no
universal rule clearly expressed in the decisions of the Court that the one question in
every case should be determined before the other. [p 397]

But granted that there can be cases in which this Court ought to decide the admissibility
of a matter before ascertaining the existence or extent of its own jurisdiction, I am of the
opinion that in this case the Court's jurisdiction ought first to be determined. There are
two reasons for my decision in this sense. First, there is said to be a question of
admissibility in this case which, even if it exists as a separate question, seems to me to
be bound up with the question of jurisdiction and which, because of the suggested
source of jurisdiction in Article 17 of the General Act, to my mind is scarcely capable of
discussion in complete isolation from that question. Second, the Court has already
indicated interim measures and emphasized the need for an early definitive resolution of
its jurisdiction to hear the Application. It would not be judicially proper, in my opinion,
now to avoid a decision as to the jurisdiction of the Court by prior concentration on the
admissibility of the Application, treating the two concepts as mutually exclusive in
relation to the present case.

The Questions to Possess an Exclusively Preliminary Character

 II. CUSTOMARY INTERNATIONAL LAW

I should at this stage make some general observations as to the nature of the
examination of jurisdiction and of admissibility which should take place in pursuance of
the Court's Order of 22 June 1973. Though not so expressly stated in the Court's Order,
these questions, as I understand the position, were conceived to be of a preliminary
nature, to be argued and decided as such. They are to be dealt with at this stage to the
extent that each possesses "an exclusively preliminary character", otherwise their
consideration must be relegated to the hearing of the merits.

In amending its Rules on 10 May 1972 and in including in them Article 67 (7) as it now
appears, the Court provided for the possibility of a two-stage hearing of a case, in the
first stage of which questions of jurisdiction and admissibility, as well as any other
preliminary question, might be decided, if those questions could be decided as matters
of an exclusively preliminary character. Textually, Article 67 as a whole depends for its
operation upon an objection to the jurisdiction of the Court or to the admissibility of the
Application by a respondent party in accordance with the Rules of Court. There has
been no objection by the Respondent to the jurisdiction of the Court or to the
admissibility of the Application in this case conformable to Article 67 of the Court's
Rules. Thus, technically it may be said that Article 67 (7) does not control the
proceedings at this stage. But though not formally controlling this stage of the case,
Article 67 (7) and its very presence in the Rules of Court must have some bearing upon
the nature of the examination which is to be made of these two questions. The Article is
emphatic of the proposition that if such questions as jurisdiction or admissibility are
separated from the hearing of the merits, they may only be decided apart from the
merits if they possess an exclusively preliminary character; that [p 398]
is to say if they can be decided without trenching on the merits of the case. The Court's
division of this case into stages by its Order of 22 June 1973 must therefore be
accommodated to the spirit of its Rules, so that only questions may be decided at this
stage which possess an exclusively preliminary character. It was apparent from the
contents of the Applicant's Memorial and from the course of the oral argument, that the
Applicant understood the decision of each question depended on it being of such a
preliminary kind. There has been no indication of any dissent from that view.

Position of Article 53

Article 53 of the Statute of the Court is in the following terms:

"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.
 II. CUSTOMARY INTERNATIONAL LAW

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."

Action pursuant to the Article may be called for by a party when the other is in default
either of appearance or of defence. When the Court is required by a party to decide its
claim notwithstanding such default of the other, the Court, before deciding the claim,
must satisfy itself both of its own jurisdiction and of the validity of the claim both in fact
and in law. Without the inclusion of this Article in the Statute of the Court, there would
surely have been power in the Court, satisfied of its own jurisdiction and of the validity of
the applicant State's claim, to give judgment for the applicant, notwithstanding the
default of appearance or of defence by the respondent party. The Article is confirmatory
of such a power and its inclusion in the Statute was doubtless prompted by the
circumstance that the litigants before the Court are sovereign States, and that the
presence of the Article would indicate consent to proceedings in default.

As expressed, the Article is dealing in my opinion exclusively with the stage of the
proceedings at which the merits of the claim are to be considered and decided. For this
reason, and because of the very nature of and of the occasion for the indication of
interim measures, Article 53, in my opinion, can have no bearing on that phase of a
case. The Court has so treated the Article when considering the indication of interim
measures in the past, as, for example, in paragraph 15 of its Order indicating interim
measures in the Fisheries Jurisdiction (United Kingdom v. Iceland) case (I.C.J. Reports
1972, p. 15) and in paragraph 13 of the Order of 22 June, made in this case (I.C.J.
Reports 1973, p. 101). The Court expressed itself in these cases as to the extent to
which it must be satisfied in relation to its own jurisdiction in a manner quite inconsistent
with the view that Article 53 controlled the stage of the proceedings in which the [p 399]
indication of interim measures was being considered. These expressions of the Court
were not inconsistent in my opinion with the views expressed by Sir Hersch Lauterpacht
at page 118 of the Reports of the Interhandel case (I.C.J. Reports 1957, p. 105); but the
Court has been unwilling to accept the exacting views of Judges Winiarski and Badawi
Pasha, expressed in the Anglo-Iranian Oil Co. case (I.C.J. Reports 1951, pp. 96-98),
views which were endorsed by Judge Padilla Nervo in the Fisheries Jurisdiction case
(I.C.J. Reports 1972, at p. 21).

Allowing the importance of the fundamental consideration that the Court is a court of
limited jurisdiction founded ultimately on the consent of States, it is essential to observe
that Article 41 of the Statute of the Court gives it express power to indicate interim
measures if it considers that circumstances so require and that, unlike Article 53, Article
41 does not hedge round that power expressly or, as I think, impliedly, with any
considerations of jurisdiction or of the merits of the case. Paragraph 2 of Article 41, in
 II. CUSTOMARY INTERNATIONAL LAW

opening with the expression "pending the final decision" makes it apparent to my mind
that Article 53 does not refer to or control consideration of the indication of interim
measures. Consequently, I am unable, with respect, to agree with those who hold a
contrary view. But although Article 41 does not refer to questions of jurisdiction or the
merits, the Court will consider its jurisdiction to the extent already expressed before
indicating interim measures, and an obvious lack of merit will no doubt be influential in
deciding whether or not to indicate interim measures.

The Applicant has not yet called upon the Court to decide its claim. Indeed, the Court's
direction of 22 June separating the two questions of jurisdiction and admissibility from
the merits has precluded any such step on the part of the Applicant. Thus Article 53 has
not been called into operation at this stage of the proceedings. The Court by its Order
has directed consideration of its jurisdiction at this stage. If the examination by the Court
of that jurisdiction results in an affirmance of its jurisdiction, that conclusion will of
course satisfy part of the requirements of Article 53 when it is called into play. No doubt,
having made its Order of 22 June, the Court, quite apart from the provisions of Article
53, could go no further in the case unless it was either satisfied of its jurisdiction and of
the admissibility of the Application or concluded that in the circumstances of the case
either of those questions failed to possess an exclusively preliminary character. In that
event, that question could be decided at the stage of the merits, which Article 53
appears to contemplate. Neither Article 53 nor any other part of the Statute of the Court
refers to the admissibility of the Application.

Jurisdiction

I turn then to the question of the Court's jurisdiction to hear and determine the
Application. It was duly filed with the Court on 9 May [p 400] 1973. This is the date by
reference to which the questions of jurisdiction and of admissibility must be determined.
The concluding paragraphs of the Application are as follows:

"Accordingly, the Government of Australia asks the Court to adjuge and declare that, for
the above-mentioned reasons or any of them or for any other reason that the Court
deems to be relevant, the carrying out of further atmospheric nuclear weapon tests in
the South Pacific Ocean is not consistent with applicable rules of international law.

And to Order

that the French Republic shall not carry out any further such tests."

It is of importance that I emphasize at the outset that the Application seeks both a
declaration and an Order. The request for the declaration is itself, in my opinion, clearly
 II. CUSTOMARY INTERNATIONAL LAW

a matter of substantive relief and not merely a recital or reason put forward for the
request for the making of the Order. Indeed, it is conceivable that in appropriate
circumstances the declaration only should be made. The full significance of this
fundamental observation as to the nature of the relief sought will be apparent at a later
stage.

The Court duly notified France by telegram of the filing of the Application, and a copy of
the Application itself was duly transmitted to the French Government in due time.

Article 38 (3) of the Rules of Court requires that when acknowledging receipt of such a
notification from the Court, the party against whom the Application is made and who is
so notified shall, when acknowledging receipt of the notification, or failing this as soon
as possible, inform the Court of the name of its Agent.

By a letter dated 16 May 1973 France, by its Ambassador to the Netherlands,

acknowledged receipt of the notification of the filing of the Application, but France did
not appoint an Agent. France informed the Court that in its view, that is to say, in
France's view, the Court was manifestly without jurisdiction to hear and determine the
Application, and that France did not propose to participate in the proceedings before the
Court. It has not done so by any formal act according to the Rules of Court. France
requested that the Application be summarily struck from the Court's General List, which
in June 1973 the Court refused to do, an attitude confirmed by its final Judgment.

It is fundamental that the Court alone is competent to determine whether or not it has
jurisdiction in any matter. This is provided by Article 36 (6) of the Statute of the Court.
No State can determine that question. In its Rules, the Court has provided machinery
whereby it can hear and consider the submissions of a State which claims that it has no
jurisdiction in a particular matter (see Art. 67 of the Rules of Court). France has made
no use of this facility. The case has proceeded without [p 401] any objection to
jurisdiction duly made according to the Rules of Court.

Attached to the Ambassador's letter of 16 May 1973 was an annex comprising some 11
pages of foolscap typescript setting out France's reasons for its conclusion that the
Court was manifestly incompetent to entertain the Application. This document, which
has come to be referred to in the proceedings as "the French Annex", has occupied an
ambiguous position throughout but has come to be treated somewhat in the light of a
submission in a pleading, which, quite clearly, it is not. As I am but judge ad hoc, I will
not express myself as to the desirability or undesirability of the reception of such a
communication as the French Annex. 1 observe however that a somewhat similar
happening occurred in connection with the Fisheries Jurisdiction case (I.C.J. Reports
 II. CUSTOMARY INTERNATIONAL LAW

1973, p. 1), but whether or not the Court allows such "submissions" to be made outside
its Rules, as a regular practice, is a matter with which naturally 1 cannot be concerned.

Of course, a court, in the absence of a party, will of its own motion search most
anxiously for reasons which might legitimately have been put forward by the absent
party in opposition to the Application. Consequently, it could not be said to be
unreasonable for the Court to view the contents of the French Annex, if and when
received, as indicative of some of such reasons. Those contents and that of the French
White Paper on Nuclear Tests, published but not communicated to the Court during the
hearing of the case, have in fact been fully considered.
I turn now to express my reasons for my conclusion that the General Act of Geneva of
26 September 1928 was a treaty in force between Australia and France at the date of
the lodging of the Application, so as to found the jurisdiction of the Court under Article
36(1) to decide a dis-pute between the Parties as to their respective rights.

The Applicant seeks to found the jurisdiction of the Court on two alternative bases; it
does not attempt to cumulate these bases, as was done by Belgium in the case of the
Electricity Company of Sofia and Bulgaria, P.C.I.J., Series C, 1938, page 64, with
respect to the two bases which it put forward for the jurisdiction of the Court in that
case. The Applicant does not attempt to make one basis assist or complement the
other. It takes them, as in my opinion they are in the Statute of the Court, as two
independent bases of jurisdiction or as may be more colourfully said, two independent
avenues of approach to the Court. The Applicant's principal reliance is on the
jurisdiction conferred on the Court by Article 36 (1) of its Statute, fulfilling that Article's
specification of a "matter specially provided for in treaties and conventions in force", by
resort to the combined operation of Article 17 of the General Act, Article 37 of the
Court's Statute, and its dispute with France.[p 402]

The alternative basis of jurisdiction is placed on Article 36 (2) of the Court's Statute,
both France and Australia having declared under that Article to the compulsory
jurisdiction of the Court, though in each case with reservations and, in particular, in the
case of France, with the reser-vation of 20 May 1966.

As I have reached a firm view as to the existence of the Court's jurisdiction in this case
under Article 36 (1) and as each basis of jurisdiction is put forward in the alternative, I
find it unnecessary to express my conclusions as to the alternative basis of jurisdiction
under Article 36 (2), which for me on that footing becomes irrelevant. I will need to deal
however with the suggestion that a declaration to the optional clause in Article 36 (2) is
inconsistent with a continuance of the obligations under the General Act and indeed
superseded it. I will also need to deal with the further alternative suggestion that the
reservation of 20 May 1966 by France to its declaration to the compulsory jurisdiction of
 II. CUSTOMARY INTERNATIONAL LAW

the Court, qualifies to the extent of the terms of that reservation, its obligations, if any
existed, under the General Act. I may properly say, however, that I would not be
prepared to accept the whole of the Applicant's submission as to the meaning and
operation of the French reservation of 20 May 1966 to its declaration to the compulsory
jurisdiction of the Court.

It is trite that the jurisdiction of the Court depends fundamentally on the consent of
States: but that consent may be given generally by a treaty as well as ad hoc. Whether
it is given by a multilateral treaty or by a compromissory clause in a bilateral treaty the
consent to jurisdiction is irrevocable and invariable except as provided by the treaty, so
long as the treaty remains in force in accordance with the law of treaties. Consent thus
given endures as provided by the treaty and does not need reaffirmation at any time in
order to be effective. Where a treaty stipulates the manner in which its obligations are to
be terminated or varied they can only be terminated or varied in accordance with those
provisions during the life of the treaty. Thus the consent given by entry into the treaty is
insusceptible of withdrawal or variation by any unilateral act of either party except in
conformity with the terms of the treaty itself. But there is the possibility of the due
termination of the treaty by any of the circumstances, such as supervening impossibility
of performance, fundamental change of circumstance, or entry into a later treaty
between the same parties, which are referred to in the Vienna Convention on the Law of
Treaties, as well as by termination by mutual consent or in conformity with the
provisions of the treaties.

The General Act it would seem is properly classified as a multilateral treaty but by
acession bilateral obligations were created. By Article 44 of the Act it was to come into
force on the ninetieth day following the accession of not less than two States. Until then,
to use an expression
[p 403] found in the travaux preparatoires it was "a convention in spe" (Records of Ninth
Ordinary Session of the Assembly, Minutes of First Committee, p. 70). In fact,
conformably to this Article, the Act came into force on 16 August 1929. It was a great
treaty, representing a most significant step forward in the cause of the pacific settlement
of disputes. It had an initial term of five years, and was automatically renewed each five
years dating from its original entry into force, unless denounced at least six months
before the expiry of the current period of five years (Art. 45 (1)). Denunciation might be
partial and consist of a notification of reservations not previously made (Art. 45 (5)).
Denunciation was to be effected by a written notification to the Secretary-General of the
League of Nations who was to inform all accessionaries to the Act (Art. 45 (3)). The Act
covered conciliation of disputes of every kind which it had not been possible to settle by
diplomacy (Chap. I), the judicial settlement of all disputes with respect to legal rights
(Chap. II), and arbitration in a dispute not being a dispute as to legal rights (Chap. III).
Accession could be to the whole Act or only to parts thereof, for example to Chapters I
 II. CUSTOMARY INTERNATIONAL LAW

and II along with appropriate portions of the general provisions in Chapter IV or to

Chapter 1 only with the appropriate portions of Chapter IV (Art. 38). The principle of
reciprocity of obligations was introduced by the concluding words of Article 38.

France and Australia acceded to the whole of the General Act on 21 May 1931. Each
attached conditions to its accession, and to these conditions I shall need later to make a
brief reference. As at the date of the Application neither France nor Australia had
denounced the General Act. France lodged with the Secretary-General of the United
Nations on 10 January 1974 a notification designed as a denunciation in conformity with
Article 45 of the General Act, but this notification is of no consequence in connection
with the present question. Article 45 (5) of the Act provides that all proceedings pending
at the expiry of the current period of the Act are to be duly completed notwithstanding
denunciation. Further, the Court's general jurisprudence would not allow its jurisdiction
to be terminated by the denunciation of the Treaty subsequent to the commencement of
the proceedings before the Court (see Nottebohm case (Liechtenstein v. Guatemala),
I.C.J. Reports 1953, p. 110 at p. 122).

Article 17 in Chapter II of the General Act provides:

"All disputes with regard to which the parties are in conflict as to their respective rights
shall, subject to any reservations which may be made under Article 39, be submitted for
decision to the Permanent Court of International Justice, unless the parties agree, in the
manner hereinafter provided, to have resort to an arbitral tribunal.

It is understood that the disputes referred to above include in particular those mentioned
in Article 36 of the Statute of the Permanent Court of International Justice." [p 404]

Both France and Australia became Members of the United Nations at its inception, thus
each was bound by the Court's Statute (see Art. 93 of the Charter). Therefore each was
bound by Article 37 of the Statute of the Court which effectively substituted this Court for
the Permanent Court of International Justice wherever a treaty in force provided for
reference of a matter to the Permanent Court of International Justice. Clearly Article 17
did provide for the reference to the Court of all disputes with regard to which the parties
are in conflict as to their respective rights. Thus the provisions of Article 17 must be
read as between France and Australia as if they referred to the International Court of
Justice and not to the Permanent Court of International Justice.

Whatever doubts might theretofore have been entertained as to the complete efficacy of
Article 37 to effect such a substitution of this Court for the Permanent Court of
International Justice as between Members of the United Nations were set at rest by the
Judgment of this Court in the Barcelona Traction, Light and Power Company, Limited
 II. CUSTOMARY INTERNATIONAL LAW

case (Belgium v. Spain, I.C.J. Reports 1964, pp. 39 and 40). So unless the treaty
obligations in Chapter II, which includes Article 17, of the General Act have been
terminated or displaced in accordance with the law of treaties, the consent of France to
the Court's jurisdiction to entertain and resolve a dispute between France and Australia
as to their respective rights, subject to the effect of any reservations which may have
been duly made under Article 39 of the General Act, would appear to be clear.

I have already mentioned that neither of the Parties had denounced the Act as of the
date of the Application. The argument in the French Annex, to the contents of which I
will need later to refer, is mainly that the General Act, by reason of matters to which the
Annex calls attention, had lost its validity, but that if it had not, France's consent to the
jurisdiction of the Court, given through Article 17 of the General Act, was withdrawn or
qualified to the extent of the terms of its reservation of 20 May 1966 made to its
declaration to the compulsory jurisdiction of the Court under Article 36 (2) of the Statute
of the Court. It is therefore appropriate at this point to make some reference to the
circumstances in which a treaty may be terminated.

The Vienna Convention on the Law of Treaties may in general be considered to reflect
customary international law in respect of treaties. Thus, although France has not ratified
this Convention, its provisions in Part V as to the invalidity, termination or suspension of
treaties may be resorted to in considering the question whether the General Act was
otherwise terminated before the commencement of these proceedings.

Taking seriatim those grounds of termination dealt with in Section 3 of Part V of the
Convention which could possibly be relevant, there has been no consent by France and
Australia to the termination of their obligations vis-à-vis one another under the General
Act. I shall later point out in connection with the suggestion that the General Act lapsed
by "desuetude" that there is no basis whatever in the material before the [p 405] Court
on which it could be held that the General Act had been terminated by mutual consent
of these Parties as at the date of the Application (Art. 54 of the Convention). No
subsequent treaty between France and Australia relating to the same subject-matter as
that of the General Act has been concluded (Art. 59 of the Convention). Neither of these
parties acceded to the amended General Act of 1949 to which I shall be making
reference in due course. No material breach of the General Act by Australia has been
invoked as a ground for terminating the General Act as between France and Australia. It
will be necessary for me at a later stage to deal briefly with a suggestion that a
purported reservation not made in due time by Australia in 1939 terminated the General
Act as between France and Australia (Art. 60 of the Convention). There has been no
supervening impossibility of performance of the General Act resulting from the
permanent disappearance of an object indispensable for the execution of the Act, nor
had any such ground of termination been invoked by France prior to the lodging of the
 II. CUSTOMARY INTERNATIONAL LAW

Application (Art. 61 of the Convention). The effect of the demise of the League of
Nations was not the disappearance of an object indispensable to the execution of the
General Act, as I shall indicate in a subsequent part of this opinion. There has been no
fundamental change of any circumstances which constituted an essential basis of the
Treaty, and no such change has radically transformed the obligations under the Act (Art.
62 of the Convention). No obligation of the General Act is in conflict witn any jus cogens
(Art. 64 of the Convention). Article 65 of the Vienna Convention indicates that if any of
these grounds of termination are to be relied upon, notification is necessary. In this case
there has been no such notification.

On these considerations it would indeed be difficult not to conclude that the General Act
was a treaty in force between France and Australia at the date of the Application and
that the Parties had consented through the operation of Article 17 of the General Act
and Article 37 of the Statute of the Court to the jurisdiction of this Court to resolve any
dispute between them as to their respective rights.

But the French Annex confidently asserts the unavailability of the General Act as a
source of this Court's jurisdiction to hear and determine the Application: it is said that
the Act lacks present validity. It will therefore be necessary for me to examine the
arguments put forward in the French Annex for this conclusion.

However, before turning to do so it is proper to point out that no jurist and no writer on
international law has suggested that the General Act ceased to be in force at any time
anterior to the lodging of the Application. Indeed, many distinguished writers expressed
themselves to the contrary. Professor O'Connell, in a footnote on page 1071 in the
second volume of the second edition of his work on international law, says as to the
General Act: "It is so connected with the machinery of the League of Nations that its
status is unclear." The Professor was alone in making this observation: it suffices to say
that the Professor's cogent [p 406] advocacy on behalf of the Applicant in the present
case seems to indicate that such a note will not appear in any further edition of his work.

No mention or discussion of the General Act in the Judgments of this Court has cast
any doubt on its continued operation. Indeed, Judge Basdevant in the Certain
Norwegian Loans case (France v. Norway, I.C.J. Reports 1957, at p. 74), refers to the
General Act as a treaty or conven-tion then in force between France and Norway. He
points out that the Act was mentioned in the observations of the French Government
and was explicitly invoked by the Agent of the French Government during the hearing.
The distinguished judge said: "At no time has any doubt been raised as to the fact that
this Act is binding as between France and Norway." No judge in that case dissented
from that view. Indeed, the Court in its Judgment does not say anything which would
 II. CUSTOMARY INTERNATIONAL LAW

suggest that the Court doubted the continued validity of the General Act. In its
Judgment the Court said:

"The French Government also referred ... to the General Act of Geneva of September
26th, 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." (Emphasis added.)

France, for evident good reason (i.e., the applicability of Article 31 of the General Act in
that case), did not seek to base the Court's jurisdiction in that case on the General Act,
and as it had not done so the Court did not seek a basis for its jurisdiction in the
General Act. The pertinent passage in the Judgment of the Court occurs at pages 24
and 25 of the Reports, where it is said:

"The French Government also referred to the Franco-Norwegian Arbitration Convention

of 1904 and to the General Act of Geneva of September 26th, 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.[p 407]

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."

In paragraph 3A of the French Annex it is said that the Court in the case of Certain
Norwegian Loans "had to settle" this point, that is to say the availability at that time of
the General Act as between Norway and France. It is however quite plain from the
Court's Judgment in that case that it did not have to settle the point but that it accepted
that the General Act was a treaty in force at that time between Norway and France. It is
not, as the French Annex suggests, "difficult to believe that the Court would have so
 II. CUSTOMARY INTERNATIONAL LAW

summarily excluded this ground of its competence if it had provided a manifest basis for
taking jurisdiction". The passage which I have quoted from the Court's Judgment clearly
expresses the reason for which the Court did not seek to place its jurisdiction upon the
General Act.

The Act was also treated as being in force in the arbitration proceedings and in the
proceedings in this Court in connection with the Temple of Preah Vihear case Cambodia
v. Thailand (see for example, I.C.J. Reports 1961, at pp. 19 and 23). The availability of
the General Act in that case was disputed by Thailand and the Court found no occasion
to pass upon that matter.

The General Act is included in numerous official and unofficial treaty lists as a treaty in
force, and is spoken of by a number of governments who are parties to it as remaining
in force. In 1964 the Foreign Minister of France, explaining in a written reply to a Deputy
in the National Assembly why France did not join the European Treaty for the Pacific
Settlement of Disputes, pointed to the existence of, amongst other instruments, the
General Act to which France was a party, though the Minister mistakenly referred to it as
the revised General Act.

However, these matters are really peripheral in the present case. The central and
compelling circumstance is that neither France nor Australia had denounced the Treaty
in accordance with its provisions at the date of the Application, nor had any other event
occurred which according to the law of treaties had brought the General Act, as
between them to an end.

The various arguments put forward in the French Annex denying the Court's
competence to entertain the Application now need consideration. It is said that the
General Act disappeared with the demise of the League of Nations because "the Act of
Geneva was an integral part of the League of Nations system in so far as the pacific
settlement of international disputes had necessarily in that system to accompany
collective security and [p 408] disarmament". If by the expression "an integral part of the
League of Nations system" it is intended to convey that the General Act constitutionally
or organically formed part of the Covenant of the League, or of any of its organs, the
statement quite clearly is incorrect. Textually the General Act is not made to depend
upon the Covenant, and the references to some of the functionaries of the League are
not organic in any sense or respects, but merely provide for the performance of acts of
an incidentally administrative kind. Contemporaneous expressions of those concerned
with the creation of the General Act leave no doubt whatever in my mind that the
General Act was not conceived as, nor intended to be, an integral or any part of the
League's system, whatever might precisely be included in the use of the word "system"
in this connection. See, for example, Records of the Ninth Ordinary Session of the
 II. CUSTOMARY INTERNATIONAL LAW

Assembly, Minutes of the First Committee (Constitutional and Legal Questions), pages
68-69 (Tenth Meeting) and pages 71 and 74 (Eleventh Meeting). At page 71 the
relationship of the Act to the League, or, as it was expressed, "the constitutional role
that that Act was going to fill under the League of Nations" was discussed. It was
pointed out by a member of the subcommittee responsible for the draft that the Act "had
been regarded as being of use in connection with the general work of the League, but it
had no administrative or constitutional relation with it". Alteration to this draft was made
to ensure that the Act was not "an internal arrangement within the League". It was said:

"Today the States were not proposing to create an organ of the League: the League was
merely going to give those which desired them facilities for completing and extending
their obligations in regard to arbitration."

If the expression "an integral part" means that the continued existence of the League
was an express condition of the continued validity of the Act, again it seems to me it
would be plainly incorrect. Nothing in the text suggests such a situation. The use of the
expression "ideological integration" in the Annex seems to suggest that, because the
desire to maintain peace through the Covenant and through collective security,
disarmament and pacific settlement of international disputes was the ideological
mainspring of the creation of the General Act, all the manifestations of that philosophy,
however expressed, must stand or fall together.

It is true that the General Act was promoted by the League, that its preparation in point
of time was related to endeavours in the fields of collective security and disarmament. It
is true that it was hoped that the cause of peace would be advanced by continuing
action in each of the various fields. But in my view, quite clearly the General Act was
conceived as a model treaty outside the Covenant of the League, available to non [p
409] members of the League and, by accession of at least two States, self-operating.

It is perhaps worth observing at this point that the Statute of the Permanent Court of
International Justice, not an organ of the League, at that time provided its own system
of pacific settlement of legal disputes by means of the optional compulsory jurisdiction in
Article 36 (2) of the Statute of the Permanent Court. No doubt, like the Covenant itself,
the inception of the General Act owed much to the pervading desire in the period after
the conclusion of World War I to prevent, if at all possible, the repetition of that event.
Though conceived at, or about the same period, and though ail stemmed from the
over-riding desire to secure international peace, these various means, the activities of
the Council of the League, disarmament, collective security and the pacific settlement of
disputes, were in truth separate paths thought to be leading to the same end, and thus
in that sense complementary; but the General Act was not dependent upon the
existence or continuance of any of the others.
 II. CUSTOMARY INTERNATIONAL LAW

Emphasis is laid in the French Annex on the use of the organs of the League by some
of the Articles of the General Act.

It seems to me that what the Court said in the Barcelona Traction, Light and Power
Company, Limited case (Belgium v. Spain) in relation to the Hispano-Belgian Treaty of
1927, a treaty comparable to the General Act, is quite applicable to the relationship of
the reference to the functionaries of the League in the General Act to its validity:

"An obligation of recourse to judicial settlement will, it is true, normally find its
expression in terms of recourse to a particular forum. But it does not follow that this is
the essence of the obligation. It was this fallacy which underlay the contention advanced
during the hearings, that the alleged lapse of Article 17 (4) was due to the
disappearance of the 'object' of that clause, namely the Permanent Court. But that Court
was never the substantive 'object' of the clause. The substantive object was compulsory
adjudication, and the Permanent Court was merely a means for achieving that object. It
was not the primary purpose to specify one tribunal rather than another, but to create an
obligation of compulsory adjudication. Such an obligation naturally entailed that a forum
would be indicated; but this was consequential.

If the obligation exists independently of the particular forum (a fact implicitly recognized
in the course of the proceedings, inasmuch as the alleged extinction was related to
Article 17 (4) rather than to Articles 2 or 17 (1)), then if it subsequently happens that the
forum goes out of existence, and no provision is made by the parties, or otherwise, for
remedying the deficiency, it will follow that the clause containing the obligation will for
the time being become (and per-[p 410]haps remain indefinitely) inoperative, i.e.,
without possibility of effective application. But if the obligation remains substantively in
existence, though not functionally capable of being implemented, it can always be
rendered operative once more, if for instance the parties agree on another tribunal, or if
another is supplied by the automatic operation of some other instrument by which both
parties are bound. The Statute is such an instrument, and its Article 37 has precisely
that effect." (I.C.J. Reports 1964, p. 38.)

I make this quotation at length at this time because we are here concerned with the
question as to the continued operation of Chapter II of the General Act. In that chapter
the only reference to the League or to any of its functionaries is the reference to the
Permanent Court of International Justice, itself not an organ of the League. But there
are references in other chapters of the General Act to functionaries of the League.
These, in my opinion, are merely in respect of incidentally administrative functions and
not in any sense basic to the validity of the General Act itself. In Chapter I of the
General Act the only references to the League or its functionaries are to be found in
 II. CUSTOMARY INTERNATIONAL LAW

Articles 6 and 9. Reference to the Acting President of the League in Article 6 is in the
alternative. Paragraph 2 of that Article provides further means of appointment of
commissions. The place of meeting of commissions was in the hands of the parties, it
not being obligatory or indispensable to sit at the seat of the League. Thus Articles 6
and 9 did not render Chapter I inoperative with the demise of the League. It should also
be observed that though accession had been to Chapters I and II, Article 20 removed
disputes as to legal rights from the operation of Chapter I.

So far as Chapter IV is concerned, the reference to the Permanent Court of

International Justice in Articles 31, 33, 34 (b), 37 and 41 would be taken up as between
France and Australia by means of Article 37 of the Statute of the Court; as far as the
Registrar of the Permanent Court is concerned, by United Nations resolution 24 (1) of
12 February 1946 and the resolution of the League of Nations of 18 April 1946. Articles
43 and 44 of the General Act have been fulfilled and denunciation under Article 45 could
always be effected by a direct communication between parties or by the use of the
Secretary-General of the United Nations relying on the resolutions to which I have just
referred, as France and the United Kingdom found no difficulty in doing in their
communications to the Secretary-General in this year.

It can, however, properly be said that for lack of the personnel of the League, Chapter III
of the General Act, relating to arbitration, may not have been capable of being fully
operated after the demise of the League.[p 411]

But this inability to operate a part of the General Act did not render even that part, in my
opinion, invalid.

The General Act itself indicates that specific parts or a combination of its parts of the Act
were intended to be severable, and to be capable of validity and operation
independently of other parts, or combinations of parts. States acceding to the General
Act were not required to accede to the Act was a whole but might accede only to parts
thereof (see Art. 38).

I can find no warrant whatever for the view that in acceding to the General Act the
States doing so conditioned their accession on the continued existence of the League,
or of any of its organs or functionaries, however much for convenience in carrying out
their major agreement as to pacific settlement of disputes it may have been found
convenient to utilize the functionaries or organs of the League for incidental purposes.

In the language of the Court in the Barcelona Traction, Light and Power Company,
Limited case (I.C.J. Reports 1964, p. 38), "the end" sought by the Parties so far as
 II. CUSTOMARY INTERNATIONAL LAW

Chapter II of the General Act was concerned was "obligatory judicial settlement"—all
else was but means of effecting that major purpose.

Chapter II thus is in no way dependent on the continued availability of the Permanent

Court of International Justice or of the Secretary or any other functionary of the League.
As between Members of the United Nations, the resolutions of the United Nations and
the League of Na-tions, to which I have previously referred, render the
Secretary-General of the United Nations available.

I now turn to the suggestion that in some way the resolution of the General Assembly of
28 April 1949, 268A (III), instructing the Secretary-General to prepare a revised text of
the General Act, including the amendments indicated in the resolution, and to hold that
text open to accession by States under the title "Revised General Act for the Pacific
Settlement of International Disputes", acknowledged the disappearance of the General
Act as at that date or caused that Act at that time to cease to be valid.

It is important, 1 think, to indicate what effect in truth the disappearance of the League
had on the General Act. In the first place, the General Act then became a closed treaty
in the sense that it had been open for accession only by Members of the League and by
such non-member States to whom the Council of the League had communicated a copy
of the Act. Accepting the view that a State which had been a Member of the League
would have been able to accede to the General Act after the demise of the League,
nonetheless the General Act could properly then be called a closed treaty. There were
many States who were either then, or could likely become, Members of the United
Nations which could not qualify for accession to the General Act. In this way it lacked
that possible universality, though not exclusivity, which had been one of its merits at the
time of its creation. Also, some of the 20-odd States who [p 412] were parties to the
General Act were not members of the United Nations and thus did not have the benefit
of Article 37 of the Court's Statute. Further, as I have already pointed out, Chapter III
(Arbitration) was not capable of being fully operated for want of the functionaries of the
League. Bearing in mind the severability of the parts of the General Act to which 1 have
already referred, the precise terms of Chapters I, II and IV of the General Act and the
effect of Article 37 of the Court's Statute, as its operative extent was fully disclosed by
the decision of the Court in the Barcelona Traction, Light and Power Company, Limited
case (supra), the demise of the League thus left the provisions for the judicial settlement
of legal disputes fully operative between those who had acceded to the General Act and
who were Members of the United Nations, but settlement of disputes by arbitration
under its terms may not have been any longer available to those States.

This state of affairs is adequately and properly described in the recitals to the General
Assembly's resolution of 28 April 1949:
 II. CUSTOMARY INTERNATIONAL LAW

"The efficacy of the General Act of 26 September 1928 for the Pacific Settlement of
International Disputes is impaired by the fact that the organs of the League of Nations
and the Permanent Court of International Justice to which it refers have now
disappeared."

This recital treats the settlement by conciliation, legal process and arbitration in the one
description without differentiation. The choice of the word "efficacy" which is in contrast
to "validity" and of the word "impaired" is accurate in the description of the effect of the
demise of the League of Nations on the General Act. The language of this recital is
closely akin to the language of this Court in the passage from the Barcelona Traction,
Light and Power Company, Limited case (supra) which I have quoted earlier in this
opinion.

It was to enable the substantive provisions of the General Act to be operated to their full
efficacy that the Revised General Act was proposed. The General Assembly could not
have destroyed the General Act: it had no authority so to do. That was a matter
exclusively for the parties to the treaty. In any case the General Assembly was hardly
likely to do so, there being more than 20 parties to the General Act and no certainty as
to the extent of the accession to a new treaty. The problem before the Assembly, I think,
was twofold. First of all, it wanted to have a General Act in the substantive terms of the
1928 Act, all the parts of which would be capable of being fully operated. Secondly, it
wanted to enable an enlargement of accession to it. It desired to restore its possible
universality whilst not making it an exclusive means of the settlement of disputes (see
Art. 29). The enlargement of the area of accession to a multilateral treaty has given
difficulty; and it has only been found possible to do so otherwise than by acts of parties
in the case of a narrow group of treaties of a non-political kind. But by producing a new
treaty, with its own accession clause, the Assembly was able to open a General Act to
all [p 413] Members of the United Nations or to such other States not members of the
United Nations to whom a copy of the General Act should be communicated. Also those
who had acceded to the General Act were enabled, if they so desired, to widen their
obligations by acceding to the Revised Act and to obtain access to a fully operable
provision as to arbitration. On the other hand, they could be content with the reduced
efficacy (which relates only to Part III) but continuing validity of the Act of 1928.

The Revised Act was a new and independent treaty, though for drafting purposes it
referentially incorporated the provisions of the Act of 1928 with the stated amendments.
These amendments included an express provision for the substitution of the
International Court of Justice for the Permanent Court of International Justice. This is
indicative of the fact that there may have been some doubt in the minds of some at the
time as to the full efficacy of Article 37 of the Court's Statute, and that the Assembly was
 II. CUSTOMARY INTERNATIONAL LAW

conscious that all the signatories to the General Act were not members of the United
Nations, having the benefit of Article 37.

In my view, the resolution of the General Assembly of 28 April 1949 affirms the validity
of the General Act of 1928 and casts no doubt upon it, though it recognizes that portion
of it may not be fully operable. It recognized that the General Act of 1928 remained
available to the parties to it in so far as it might still be operative. These words, of
course, when applied to an analysis of the General Act of 1928, clearly covered Chapter
II as being an area in respect of which the General Act remained fully operative, in the
case of Members of the United Nations, having regard to Article 37 of the Court's
Statute and the resolutions of the League of Nations and the United Nations in 1946.

The question was raised as to why so few of those who had acceded to the General Act
acceded to the Revised General Act. This consideration does not, of course, bear on
the validity of the General Act: but as a matter of interest it may well be pursued. Two
factors seem to me ade-quately to explain the circumstances without in any way casting
doubt on the validity of the General Act. As I have pointed out, the General Act of 1928,
after the demise of the League, became a closed treaty, that is to say, each State which
had acceded to the Act then knew with certainty towards whom it was bound. The
remote possibility that a former Member of the League might still accede to the General
Act does not really qualify that statement. To accede to the Revised General Act opened
up the possibility of obligations to a vastly increased and increasing number of States
under the new General Act. This feature of a treaty such as the General Act was
observed before in the travaux preparatoires (see p. 67 of the Minutes to which I have
already referred).[p 414]

The second factor was that each State party to the General Act and not acceding to the
new Act was to an extent freed of the demands of the arbitration procedure. It is one
thing to be bound to litigate legal disputes before the Court: quite another to be bound to
arbitrate other disputes on the relatively loose basis of arbitration under the General Act,
aequo et bono.

The mood of the international community in 1949 was vastly different to the mood of the
community in the immediately post-World War I period in relation to the pacific
settlement of disputes. More hope was probably seen in the United Nations itself and
the existence of the op-tional clause with its very flexible provisions as to reservations.
The latter was no doubt seen by some as preferable to the more rigid formulae of a
treaty such as the General Act.

I therefore conclude that so far from casting doubt on the continued validity of the
General Act of 1928, the resolution of the General Assembly of 28 April 1949 confirmed
 II. CUSTOMARY INTERNATIONAL LAW

the continuing validity of the General Act. The resolution did not, as the French Annex
asserts, "allow for the eventuality of the Act's operating if the parties agreed to make
use of it". It did not call for a reaffirmation of the treaty. The resolution makes it quite
clear, to my mind, that it made no impact on the General Act of 1928, but by providing a
new treaty it did afford a widened opportunity to a wider group of States to become
bound by the same substantive obligations as formed the core of the General Act of
1928.

Some point is made in the Annex of the Australian reservations to its accession to the
General Act. Of the reservations made by Australia upon its accession to the General
Act the French Annex selects first that reservation which relates to the "non-application
or suspension" of Chapter II of the General Act with respect to any dispute which has
been submitted to, or is under consideration by, the Council of the League of Nations. It
is said that with the disappearance of the League this reservation introduces such
uncertainty into the extent of Australia's obligations under the Act as to give an
advantage to Australia not enjoyed by other accession-aries to the Act. But in the first
place it seems to me that the disappearance of the possibility that there should be a
matter under the consideration of the Council of the League could have no effect, either
upon validity of the Australian accession or upon the extent of the obligations of any
other accessionary. The operation of the reservation is reciprocal and the
disappearance of the Council of the League simply meant that there could be no case
for resort to this reservation. The making of the reservation rather emphasized the
independence of the General Act from the activities of the League. Only such a
reservation would involve the one in the other: and then only to the extent of the
subject-matter of the reservation.

The other reservation made by Australia upon which the French Annex fastens is the
exclusion of disputants, parties to the General Act, [p 415] who are not members of the
League of Nations. This is said to have acquired quite an ambiguous value because no
country can be said now to be a Member of the League of Nations, but it is clear from
the decision of this Court in the South West Africa cases (Preliminary Objections,
Judgment, I.C.J. Reports 1962) that the description "Member of the League of Nations"
is adequate to describe a State which has been a Member of the League. Again the
very making of these reservations by some accessionaries to the General Act
emphasizes its independence of the League of Nations and of its "system". There can
be no uncertainty in the matter because the Court exists and by its decision can remove
any dubiety which might possibly exist, although I see none.

I find no substance in the suggestion that "unacceptable advantages" would result for
Australia from a continuance in force of the General Act, and in any case would not be
willing to agree that any such result would affect the validity of the General Act.
 II. CUSTOMARY INTERNATIONAL LAW

It is then said that Australia had patently violated the General Act by attempting in 1939
to modify its reservations otherwise than in accordance with Article 45. This objection is
based on the fact that on 7 September 1939 Australia notified the Secretary-General of
the League of Nations that "it will not regard its accession to the General Act as
covering or relating to any dispute arising out of events occurring during the present
crisis. Please inform all States Parties to the Act". This notification could not be
immediately operative because it was made at an inappropriate time; the current period
of the duration of the General Act expired in August 1940. Thus the Australian
notification would not operate instanter. It had effect if at all only at the end of the
five-year period next occurring after the date of the notification. What was thought to be
the irregularity of giving this notification at the time it was given was observed upon by
some States party to the General Act, but none, including France, made it the occasion
to attempt to terminate the Act. However, nothing turns on the circumstance that there
was no immediate operation of the notification and I cannot find any relevance to the
problem with which the Court is now faced of the fact that Australia took the course it
did in 1939.

It is next said that the conduct of the two States since the demise of the League is
indicative of the lapse of the General Act. Neither have resorted to it. In the first place it
is not shown that any occasion arose, as between France and Australia, for resort to the
provisions of the General Act until the present dispute arose. Thus it is not the case of
States having reason to resort to the provisions of the treaty and bypassing or ignoring
its provisions by mutual consent or in circumstances from which a termination by mutual
consent could be inferred. A treaty such as the General Act does not require affirmation
or use to maintain its validity. It is denunciation which is the operative factor. Also it is
not true to say that there has been utter silence on the part of States accessionary to
the General Act, in the period since the demise of the League. I have already remarked
for instance on the references to the Act by the representative of [p 416] France. Nor
upon the material produced could it be said that France and Australia at any time, by
inactivity, tacitly agreed to terminate the General Act as between themselves.

I turn now to a different matter put forward in the Annex. The French Annex suggests
either that the reservation of 20 May 1966 to the declaration by France to the optional
compulsory clause (Art. 36 (2)) operated as itself a reservation under the General Act or
that though not such a reservation it superseded and nullified France's obligations under
the General Act. These seem to be propositions alternative to the major statement in
the Annex which was that the General Act because of non-use and, as it was said,
desuetude was precluded from being allowed to prevail over the expression of France's
will in the reservation of 20 May 1966.
 II. CUSTOMARY INTERNATIONAL LAW

I need not say more as to the argument as to desuetude than that there is in my opinion
no principle that a treaty may become invalid by "desuetude" though it may be that the
conduct of the parties in relation to a treaty, including their inactivity in circumstances
where one would expect activity, may serve to found the conclusion that by the common
consent of the parties the treaty has been brought to an end. But as I have said there is
nothing whatever in the information before the Court in this case which in my opinion
could found a conclusion that France and Australia mutually agreed tacitly to abandon
the treaty. The French Annex concedes that lapse of time will not itself terminate a
treaty, for the Annex says: "the antiquity of a text was clearly not regarded in itself as an
obstacle to its (i.e., the treaty) being relied on . . ." Also I have indicated the extent to
which the treaty had in fact been called in aid by other parties including France and to
the fact that there is no evidence of an occasion when the treaty could have been used
between France and Australia and was not used.

I would now say something as to the effect claimed by France for the reservation of 20
May 1966. At the outset, it is to my mind clear that the system of optional declaration to
the compulsory jurisdiction of the Permanent Court of International Justice, and latterly
to the jurisdiction of this Court, was, and was always conceived to be, a completely
independent system or avenue of approach to the Court for the settlement of legal
disputes to that which may be provided by treaty—bilateral or multilateral. The
jurisdiction under Article 36 (1), which included treaty obligations to accept the Court's
jurisdiction, and that under Article 36 (2) are separate and independent. The General
Act was in fact promoted by the League of Nations at a time when Article 36 (2) of the
Statute of the Permanent Court was in operation. Thus the system of optional
declaration to the compulsory jurisdiction is regarded as quite separate from, and
independent of, the provisions of the General Act of 1928.

There are notable differences between the two methods of securing pacific settlement
of legal disputes: and it must always be remembered [p 417] that the General Act was
not confined to the settlement of legal disputes by the Court. The General Act had a
term or rather, recurrent terms, of years. In default of denunciation the treaty renewed
automatically: it was tacitly renewed. Reservations might only be made on accession. If
further reservations are subsequently notified, they may be treated as a denunciation or
may be accepted by other States parties to the Act. Thus they become consensually
based. Permissible reservations are exhaustively categorized and closely circumscribed
in content. Reservations might be abandoned in whole or in part. The scope of the
reservations, if in dispute, is to be determined by the Court (see Arts. 39, 40 and 41 of
the General Act).

In high contrast a declaration to Article 36 (2) of the Statute of the Court (the text and
the enumeration of the Article was the same in the Statute of the Permanent Court of
 II. CUSTOMARY INTERNATIONAL LAW

International Justice) need not be made for any term of years. No limitation is placed by
the Statute on the nature and extent of the reservations which can be made, though the
jurisprudence of the Court would seem to require them to be objective and not
subjective in content. Reservations might be made at any time and be operative
immediately even before their notification to States which had declared to the
jurisdiction under the Article (cf. Right of Passage over Indian Territory, Preliminary
Objections, Judgment, I.C.J. Reports 1957, p. 125). Further, though by declaration to
the compulsory jurisdiction under the Article, States might be brought into contractual
relationships with each other, such declarations do not create a treaty. Each declarant
State becomes bound to accept the jurisdiction of the Court if invoked by another
declarant State in a matter within the scope of Article 36 (2) and not excluded by
reservation.

The jurisdiction under Article 36 (2) could only be invoked by a Member of the United
Nations, whereas the General Act had been open to States which were not members of
the League of Nations.

In the light of these notable differences between the two methods of providing for
judicial settlement of international legal disputes, I can see many objections to the
proposition that a declaration with reservations to the optional clause could vary the
treaty obligations of States which were parties to the General Act. Bearing in mind the
readiness with which reservations to the declaration to the compulsory jurisdiction of the
Court under Article 36 (2) could be added, terminated or varied, acceptance of the
proposition that such a reservation could vary or bring to an end the obligations in a
treaty would mean that there would be little value as between Members of the United
Nations in a treaty which could be varied or terminated at the will of one of the parties
by the simple device of adding a destructive reservation operating instanter to its
declaration to the compulsory jurisdiction of the Court. This would be a [p 418]
cataclysmic inroad on the accepted view of the law of treaties which does not permit a
unilateral termination or variation of a treaty except in accordance with its terms.
Termination by occurrences which affect the mutual consent of the parties to the treaty,
which include those on which a treaty is conceived by the mutual will of the parties to
have been intended to come to an end, emphasizes the essentially consensual basis of
termination or variation.

Also, when the differences in the provisions of Article 36 and those of the General Act
relating to the making of reservations are closely observed, it will be seen that, whilst
given the same description "reservation", those for which the General Act provides
appear to be of a different order to those which are permissible under the Article. The
purpose of providing for reservations, it seems to me, is different in each case.
 II. CUSTOMARY INTERNATIONAL LAW

Reservations for which a treaty provides are essentially based on consent either
because within the treaty provisions as permissible reservations, as for example, in
Article 39 of the General Act or because they are accepted by the other party to the
treaty—see generally Part 2, section 2, of the Vienna Convention on the Law of
Treaties. In the case of the General Act, the reservation falling within one of the
classifications of Article 39, not made on accession, sought to be added by way of
partial denunciation under Article 45 (4), can only be effective with respect to any
accessionary to the General Act, if accepted by that State. It cannot in any case operate
until at least six months from its notification (see Art. 45 (2)).

Again, in high contrast, a reservation to a declaration under the optional clause, is a

unilateral act, can be made at any time, operate in-stanter, even before notification to
other declarants to the optional clause and is not limited by the Statute as to its
subject-matter, for the reason no doubt that the whole process under the article is
voluntary. The State may abstain altogether or accept the jurisdiction to any extent and
for any time. This "flexibility" of the system of optional compulsory jurisdiction may in
due course increasingly bring that system into disfavour as compared with a more
certain and secure regime of a treaty. But be that as it may, the brief comparison I have
made, which is not intended to be exhaustive, emphasizes the irrelevance to the treaty
of reservations made to a declaration under the optional clause.

I should also point out that the reservation of 20 May 1966 did not in any way conform
to the requirements of the General Act. It is worth observing that Article 17 of the
General Act requires submission to the Court of all disputes subject to any reservation
which may be made under Article 39. The reservation of 20 May 1966 was not made
under that Article: it was not made at a time when reservations could be made. It
purported to operate immediately. It was not intended to be notified [p 419] to members
bound by the General Act. I doubt whether it is a reservation of a kind within any of the
categories listed in Article 39 (2) of the General Act. It clearly could not fall within
paragraphs (a) or (b) of that subclause, and it does not seem to me that it could fall
within paragraph (c). Because of the complete independence of the two means of
providing for the resolution of international legal disputes, I can see no reason whatever
on which a reservation to a declaration to the optional compulsory jurisdiction under
Article 36 (2) could be held to operate to vary the treaty obligations of such a treaty as
the General Act.

Apparently realizing the unacceptable consequences of the proposition that the

obligations of a treaty might be supplanted by a reservation to a declaration to the
optional clause, the French Annex seeks to limit its proposition to the General Act
which, it claims, is:
 II. CUSTOMARY INTERNATIONAL LAW

". . . not a convention containing a clause conferring jurisdiction on the Court in respect
of disputes concerning the application of its provisions, but a text the exclusive object of
which is the peaceful settlement of disputes, and in particular judicial settlement".

This statement seems to have overlooked the provisions of Article 41 of the General Act
and, in any case, I am unable to see any basis upon which the position as to the effect
of a reservation to a declaration to the optional clause can be limited as proposed.

It is also said that the declaration to compulsory jurisdiction under Article 36 (2) was an
act in the nature of an agreement relating to the same matter as that of the General Act.
As I have already pointed out, a declaration to compulsory jurisdiction is not an
agreement though it can raise a consensual bond. In any case, the subject-matter of the
General Act and that of declaration to the optional clause, are not identical.

There is a suggestion in the French Annex that because States bound by the General
Act who have also declared to the optional compulsory jurisdiction of the Court from
time to time have kept the text of their respective reservations under the Act and under
the optional clause conformable to each other, a departure from this "parallelism" either
indicates a disuse of the General Act or requires the absence of a comparable
reservation to the General Act to be notionally supplied. But the suggested parallelism
did not exist in fact, as the Australian Memorial clearly indicates (see paras. 259-277).
Further, there can be no validity in the proposition that because France did not make a
partial denunciation of the General Act in the terms of its reservation to its declaration
under the optional clause, it should, by reason of former parallelism, be taken to have
done so.

In sum, I am unable to accept the proposition that the reservation in the declaration of
20 May 1966 by France had any effect on the obligation of France under the General
Act of 1928. Its consent to the Court's [p 420] jurisdiction by accession to the General
Act was untouched by the later expression of its will in relation to the optional clause.
The reservation by France under Article 36 (2) is no more relevant to the jurisdiction of
the Court under Article 36 (1) than was such a reservation in the Appeal Relating to the
Jurisdiction of the ICAO Council, India v. Pakistan (I.C.J. Reports 1972, p. 46). There an
attempt to qualify the jurisdiction derived from a treaty, by the terms of a reservation to a
declaration under the optional clause, was made. The attempt failed. The Court founded
its jurisdiction exclusively on the treaty provision and regarded the reservation to the
declaration of the optional clause as irrelevant. See the Judgment of the Court, pages
53 and 60 of the Reports.

There may well have been an explanation why there was no attempt either on the part
of France or earlier on the part of the United Kingdom to denounce the General Act
 II. CUSTOMARY INTERNATIONAL LAW

when contemplating nuclear testing in the atmosphere of the South Pacific, whilst at the
same time making what was considered an appropriate reservation to the declaration to
the optional clause. 1 remarked earlier that the General Act had become a closed treaty.
The identity of those to whom France and the United Kingdom were thereby bound was
known. No doubt as of 1966 the then attitudes of those States to nuclear testing in the
atmosphere of the South Pacific were known or at least thought to be known. On the
other hand, there were States declarant to the optional clause from whom opposition to
nuclear testing in the atmosphere at all, and particularly in the Pacific, might well have
been expected. However there is not really any need for any speculation as to why
denunciation was not attempted by France in 1966. It suffices from the point of view of
international law that it did not do so.

Article 36 (1) of the Court's Statute erects the jurisdiction of the Court in respect of all
matters specially provided for in treaties and conventions in force. I have so far reached
the conclusion that the General Act of 1928 was a treaty or convention in force between
France and Australia as at the date of the Application. 1 have already quoted Article 17
of the General Act, in Chapter II, dealing with judicial settlement. The second paragraph
of the Article incorporates the text of Article 36 (2) of the Statute of the Permanent Court
of International Justice in so far as it deals with the subject-matters of jurisdiction. Thus
all "legal disputes concerning: (a) the interpretation of a treaty; (b) any question of
international law; (c) the existence of any fact which, if established, would constitute a
breach of international obligation; ..." are included in the scope of Article 17.

The question, then, in respect of Article 36 (1) is: what are the matters specially
provided for in the General Act which are referred to the Court? They are, in my view, so
far as presently relevant, each dispute with regard to which the parties are in conflict as
to their respective rights, and [p 421] legal disputes concerning any question of
international law or the existence of any fact, which, if established, would constitute a
breach of an international obligation, subject, in any event, to, and, as I think, only to,
any reservations which may have been made under Article 39 of the General Act.

It seems to me that there are two possible views as to the elements of the Court's
jurisdiction derived under Article 36 (1) of the Court's Statute and drawn through the
General Act, Article 17 and Article 37 of the Court's Statute.

On the one hand, it may be said that the jurisdiction is complete if the General Act is a
treaty or convention in force between France and Australia at the date of the
Application. The subject-matter of the Court's jurisdiction so established would then be
described as matters referred to the Court by the General Act of 1928, that is to say,
disputes between States bound by the Act as to their respective legal rights, etc. Such
disputes are in that view treated as the general kind of matters which the Court has
 II. CUSTOMARY INTERNATIONAL LAW

authority to resolve by its judicial processes because of the continued existence of the
General Act. On that view, the question whether the dispute in fact existing now
between France and Australia at the date of the Application is of that kind, becomes a
matter of admissibility.

On the other hand, the view may be taken that the necessary elements of the Court's
jurisdiction are not satisfied merely by the establishment of the General Act as a treaty
or convention in force between France and Australia, but require the establishment of
the existence of a dispute between them as to their respective rights, etc.: that is to say
the matter referred by the General Act is not a genus of dispute but specific disputes as
to the rights of two States vis-à-vis one another. The States in that view are taken as
consenting to the jurisdiction to hear those particular disputes. To use the language
used in the case of Ambatielos (Merits), Greece v. United Kingdom (I.C.J. Reports 1953,
p. 29), the dispute must fall under "the category of differences" in respect of which there
is consent to the Court's jurisdiction. On this analysis, no separate question of
ad-missibility arises; it is all one question of jurisdiction, the existence in fact and in law
of the dispute between the two States as to their respective rights being a sine qua non
of jurisdiction in the Court. It is that dispute which the Court has jurisdiction to decide.

This is the view of the matter which I prefer. But the Court's Order of 22 June 1973 was
made, apparently, on the assumption that a distinct question of admissibility arose, or at
any rate could be said to arise. Accordingly, notwithstanding the opinion 1 have just
expressed, I am prepared for the purposes of this opinion to treat the question whether
the dispute between France and Australia is a dispute as to their respective rights as a
question of admissibility. However, I would emphasize [p 422] that, whether regarded as
a necessary element of the Court's jurisdiction or as a matter of admissibility, the
question, to my mind, is the same, and the substantial consequence of an answer to it
will be the same whichever view is taken as between the two views I have suggested of
the necessary elements of the Court's jurisdiction. That question is whether the Parties
are in dispute as to their respective rights, the word "right" connoting legal right.

There is therefore, in my opinion, jurisdiction to hear and determine a dispute between

parties bound by the General Act as to their legal rights. As indicated I shall deal with
the question of admissibility as if it were a separate question.

Admissibility

A distinction has been drawn in the jurisprudence of the Court between its jurisdiction in
a matter and the admissibility of the reference or application made to it. The Rules of
Court maintain the separateness of the two concepts (see Art. 67) but the Statute of the
Court makes no reference to admissibility. In particular the default provision, Article 53,
 II. CUSTOMARY INTERNATIONAL LAW

does not do so. This might be significant in a case such as the present where there has
been no preliminary objection to admissibility setting out the grounds upon which it is
said the Application is not admissible. The result of a strict application of Article 53 in
such a case, if there has been no special Order such as the Court's Order of 22 June
1973, may be that any question of admissibility where the respondent does not appear
is caught up in the consideration either of jurisdiction or of the merits of the Application.
However, the Court being in control of its own procedure can, as it has done in this
case, direct argument on admissibility as a separate consideration, but no doubt only to
the extent to which that question can properly be said in the circumstances to be of an
exclusively preliminary character.

It may be said that the jurisdiction of the Court relates to the capacity of the Court to
hear and determine matters of a particular nature, e.g., those listed in Article 36 (2) of
the Statute of the Court, whereas admissibility relates to the competence, receivability,
of the reference or appli-cation itself which is made to the Court.

It might be said that jurisdiction in the present case includes the right of the Court to
enter upon the enquiry whether or not a dispute of the relevant kind exists and a
jurisdiction, if the dispute exists, to grant the Applicant's claim for its resolution by
declaration and Order. If such a dispute exists, the claim is admissible.

An examination as to admissibility is itself an exercise of jurisdiction even though a

finding as to admissibility may be a foundation for the exercise of further jurisdiction in
resolving the claim. The overlapping [p 423] nature of the two concepts of jurisdiction
and admissibility is apparent, particularly where, as here, the existence of a relevant
dispute may be seen as a prerequisite to the right to adjudicate derived from Article 17
of the General Act.

I observed earlier that there is no universally applicable definition of the requirements of

admissibility. The claim may be incompetent, that is to say inadmissible, because its
subject-matter does not fall within the description of matters which the Court is
competent to hear and decide; or because the relief which the reference or application
seeks is not within the Court's power to consider or to give; or because the applicant is
not an appropriate State to make the reference or application, as it is said that the
applicant lacks standing in the matter; or the applicant may lack any legal interest in the
subject-matter of the application or it may have applied too soon or otherwise at the
wrong time, or, lastly, all preconditions to the making or granting of such a reference or
application may not have been performed, e.g., local remedies may not have been
exhausted. Indeed it is possible that there may arise other circumstances in which the
reference or application may be inadmissible or not receivable. Thus admissibility has
various manifestations.
 II. CUSTOMARY INTERNATIONAL LAW

Of course all these elements of the competence of the reference or application will not
necessarily be relevant in every case. Which form of admissibility arises in any given
case may depend a great deal on the source of the relevant jurisdiction of the Court on
which reliance is placed and on the terms in which its jurisdiction is expressed. This, in
my opinion, is the situation in this case.

Is There a Dispute Between the Parties as to Their Respective Rights?

The Court labours under the disability that it has no formal objection to admissibility,
particularizing the respect in which it is said that the Application in inadmissible. The
Annex to the Ambassador's letter of 16 May 1973 in challenging the existence of
jurisdiction in the Court under Article 36 (1) of the Statute, bases its objection on the
lapse or qualification of the General Act and not on the absence of a dispute falling
within Article 17 of the General Act. Further, there was no express reference to the
admissibility of the Application.

It is, however, possible to construct out of the White Book an argument that the
Application was "without object" in the sense that there were no legal norms by resort to
which the dispute in fact existing between the Parties could be resolved, which is to say,
though it is not expressly said, that there was no dispute between the Parties as to their
respective rights (see the terms of Art. 17 of the General Act). This, it seems to me, was
suggested in the White Book in relation to the claim that the testing of nuclear weapons
had become unlawful by the customary international law. It was not, and in my opinion
could not be, said that there were no legal norms by reference to which the claim for the
infringement of ter-[p 424]ritorial and decisional sovereignty could be
determined—though important and difficult legal considerations arise in that connection,
as was observed upon in the French Annex by its reference to a threshold of
radio-active intrusion which should not be exceeded. In relation to the claim for breach
of the freedom of the high seas and superincumbent air space, the French White Paper
refers to international practice as justifying what was proposed to be done in relation to
the area surrounding its atmospheric testing: but this contention is not related to
admissibility.

An element of admissibility is the possession by the applicant State of a legal interest in

the subject-matter of its Application. As it is, in my opinion, the existence of a dispute as
to the respective legal rights of the Parties which must be the subject-matter of the
Application in this case to satisfy Article 17, I think that upon the establishment of such a
dispute each of the disputants to such a dispute must be held to have a legal interest in
the resolution of the dispute. For my part, the matter of admissibility would end at the
point at which it was decided that there was a dispute between France and Australia as
 II. CUSTOMARY INTERNATIONAL LAW

to their respective legal rights, that is to say, that a dispute existed as to the right
claimed by Australia as its right or of an obligation of France towards Australia which
Australia claimed to be infringed. There is importance in the presence of the word their
in the formula; it is to be a dispute as to their respective rights. That possessive pronoun
embraces in my opinion the need for a legal interest in the subject-matter.

Thus, in my opinion, the question to be resolved at this stage of the case is whether the
Parties were, at the date of the Application, in dispute as to their respective rights.

That these Parties are in dispute is in my opinion beyond question. It is clear that there
were political or merely diplomatic approaches by the Applicant for a time; and there are
political aspects of the subject-matter of the correspondence which evidences their
dispute. But so to conclude does not deny that the Parties may be in dispute
nonetheless about their respective rights. That question will be determined by what in
substance they are in difference about.
The source material upon which these questions are to be resolved is the
correspondence between France and Australia set out at Annexes 2 to 14 inclusive of
the Application instituting the present proceedings, as explained and amplified in the
submissions to the Court. The contents of and the omissions from the French Annex,
which raises arguments of law in opposition to the legal propositions in the Australian
Notes, ought also to be considered in this connection. Nowhere is it suggested in the
Annex that the dispute between France and Australia is no more than a political
difference, a clash of interest incapable of resolution by judicial process, perhaps a not
unimportant circumstance.

I have found it important in reading the Notes exchanged between [p 425] France and
Australia to differentiate the conciliatory language designed to secure, if possible French
abandonment of the proposal, and the language employed when claims of right are
made. The dispute between the Governments up to the stage of the change of
language might possibly be characterized as chiefly political, the desired end being
sought to be attained by diplomacy alone, but the language does not certainly remain
so. The changed tone of the Australian Note is visible in the Note of 3 January 1973,
where it is said:

"The Australian Government, which has hitherto adopted a position of considerable

restraint in this matter, wishes to make quite clear its position with respect to proposed
atmospheric nuclear tests to be conducted in the Pacific by the French Government. 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
 II. CUSTOMARY INTERNATIONAL LAW

seas and in the airspace above; and infraction of legal norms concerning atmospheric
testing of nuclear weapons."

Having followed this statement with a request that the French Government refrain from
further testing, the Australian Note proceeds:

"The Australian Government is bound to say, however, that in the absence of full
assurances on this matter, which affects the welfare and peace of mind not only of
Australia but of the whole Pacific community, the only course open to it will be the
pursuit of appropriate international legal remedies."

The Applicant thus raised claims of legal right.

In its Note in reply, the French Government first of all applied itself to a justification of its
decision to carry out nuclear tests, and then proceeded:

"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 its Note above
cited.

The first of these are said to concern the pollution and physical modifications which the
experiments in question are supposed to involve for Australian territory, the sea, the
airspace above.

In the first place, the French Government understands that the [p 426] Australian
Government is not submitting that it has suffered damage, already ascertained, which is
attributable to the French experiments.

If it is not to be inferred from damage that has occurred, then the 'infraction' of law might
consist in the violation by France of an international legal norm concerning the threshold
of atomic pollution which should not be crossed.

But the French Government finds it hard to see what is the precise rule on whose
existence Australia relies. Perhaps Australia could enlighten it on this point.

In reality, it seems to the French Government that this complaint of the violation of
international law on account of atomic pollution amounts to a claim that atmospheric
nuclear experiments are automatically unlawful. This, in its view, is not the case. But
 II. CUSTOMARY INTERNATIONAL LAW

here again the French Government would appreciate having its attention drawn to any
points lending colour to the opposite opinion.

Finally, the French Government wishes to answer the assertion that its experiments
would unlawfully hamper the freedom of navigation on the high seas and in the airspace
above.

In this respect it will be sufficient for the French Government to observe that it is
nowadays usual for areas of the high seas to be declared dangerous to navigation on
account of explosions taking place there, including the firing of rockets. So far as
nuclear experiments are concerned, the Australian Government will not be unaware that
it was possible for such a danger-zone encroaching on the high seas to be lawfully
established at the time of previous experiments."

This note disputes those claims of legal right.

The Australian Note of 13 February 1973 contains the following passages:

"The Australian Government assures the French Government that the present situation,
caused by an activity which the French Government has undertaken and continues to
undertake and which the Australian Government and people consider not only
illegitimate but also gravely prejudicial to the future conditions of life of Australia and the
other peoples of the Pacific . . ."

and again:

"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 studied 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 [p 427] 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."

Was this conclusion of the Australian Government thus expressed warranted, and if it
was does it satisfy the question as to whether there was a dispute of the required kind,
the Application being in substance for a settlement of that dispute by means of a
 II. CUSTOMARY INTERNATIONAL LAW

declaration by the Court that the rights which were claimed do exist and that they have
been infringed?

It is quite evident from the correspondence that at the outset the hope of the Australian
Government was that France might be deterred from making or from continuing its
nuclear test experiments in the South Pacific by the pressure of international opinion
and by the importance of maintaining the undiminished goodwill and the economic
co-operation of Australia. In the period of this portion of the correspondence, and I set
that period as between 6 September 1963 and 29 March 1972, the emphasis is upon
the implications of the partial Nuclear Test Ban Treaty of 1963, the general international
opinion in opposition to nuclear atmospheric tests and the importance of harmonious
relations between Australia and France as matters of persuasion.

But in January 1973, when it is apparent that none of these endeavours have been or
are likely to be successful, and it is firmly known that a further series of tests will be
undertaken by France in the mid-year, that is to say, in the winter of the southern
hemisphere, the passages occur which I have quoted from the Note of 3 January 1973
and the response of the French Government of 7 February 1973 which respectively
raise and deny the Applicant's claim that its legal rights will be infringed by further
testing of nuclear devices in the South Pacific.

Four Bases of Claim

It is apparent from the passages which I have quoted that the various bases of illegality
which the Applicant has put before the Court in support of its present Application were
then nominated. They can be extracted and listed as follows:

(1) unlawfulness in the modification of the physical conditions of the Australian territory
and environment;

(2) unlawfulness in the pollution of the Australian atmosphere and of the resources of its
adjacent seas;

(3) unlawfulness in the interference with freedom of navigation on sea and in air; and

(4) breach of legal norms concerning atmospheric testing of nuclear weapons.

None of these were conceded by France and indeed they were disputed. [p 428]

It might be observed at this point that there is a radical distinction to be made between
the claims that violation of territorial and decisional sovereignty by the intrusion and
 II. CUSTOMARY INTERNATIONAL LAW

deposition of radio-active nuclides and of pollution of the sea and its resources thereby
is unlawful according to international law, and the claim that the testing of nuclear
weapons has become unlawful according to the customary international law, which is
expressed in the Australian Note of 3 January 1973 as "legal norms concerning
atmospheric testing of nuclear weapons".
In the first instance, it is the intrusion of the ionized particles of matter into the air, sea
and land of Australia which is said to be in breach of its rights sustained by international
law. It is not fundamentally significant in this claim that the atomic explosions from which
the ionized particles have come into the Australian environment were explosions for the
purpose of developing nuclear weapons, though in fact that is what happened.

But in the second instance the customary law is claimed now to include a prohibition on
the testing of nuclear weapons. The particular purpose of the detonations by France is
thus of the essence of the suggested prohibition. Though, as I will mention later, the
Applicant points to the resultant fall-out in Australia, these consequences are not of the
essence of the unlawfulness claimed: it is the testing itself which is claimed to be
unlawful.

It might be noticed that the objection to the testing of nuclear weapons in international
discussions is placed on a twofold basis: there is the danger to the health of this and
succeeding generations of the human race from the dissemination of radio-active
fall-out, but there is also the antipathy of the international community to the enlargement
of the destructive quality of nuclear armaments and to the proliferation of their
possession. Thus, it is not only nuclear explosions as such which are the suggested
objects of the prohibition, but the testing of nuclear weapons as an adjunct to the
increase in the extent of nuclear weaponry.

The order in which these four bases of claim were argued and the emphasis
respectively placed upon them has tended to obscure the significance of the Applicant's
claim for the infringement of its territorial and decisional sovereignty. Because of this
presentation and its emotional overtones it might be thought that the last of the
above-enumerated bases of claim which, I may say, has its own peculiar difficulties, was
the heartland of the Australian claim. But as I understand the matter, the contrary is
really the case. It is the infraction of territorial sovereignty by the intrusion and
deposition of nuclides which is the major basis of the claim.

A dispute about respective rights may be a dispute between the Parties as to whether a
right exists at all, or it may be a dispute as to the extent [p 429] of an admitted right, or it
may be a dispute as to the existence of a breach of an admitted right, or of course it
may combine all these things, or some of them, in the one dispute. The claim on the
one hand and the denial on the other that a right exists or as to its extent or as to its
 II. CUSTOMARY INTERNATIONAL LAW

breach constitute, in my opinion, a dispute as to rights. If such a dispute between the

Parties is as to their respective rights it will in my opinion satisfy the terms of Article 17
of the General Act which, in my opinion, is the touchstone of jurisdiction in this case or,
if the contrary view of jurisdiction is accepted, the touchstone of admissibility.

If the dispute is not a dispute as to the existence of a legal right, it will not satisfy Article
17 and it may be said to be a dispute "without object" because, if it is not a dispute as to
a legal right, the Court will not be able to resolve it by the application of legal norms: the
dispute will not be justiciable.

But such a situation does not arise merely because of the novelty of the claim of right or
because the claimed right is not already substantiated by decisions of the Court, or by
the opinions of learned writers, or because to determine its validity considerable
research and consideration must be undertaken.

In his separate opinion in the case of the Northern Cameroons (supra), Sir Gerald
Fitzmaurice adopted as a definition of a dispute which was necessary to found the
capacity of this Court to make a judicial Order the definition which was given by Judge
Morelli in his dissenting opinion in the South West Africa case (Jurisdiction, I.C.J.
Reports 1962, between pp. 566 and 588), Sir Gerald, adding an element thereto drawn
from the argument of the Respondent in the case of the Northern Cameroons (see pp.
109-110 of I.C.J. Reports 1963).

Sir Gerald thought that there was no dispute in that case (though the Court, including
Judge Morelli, considered there was) because the Court could not in that case make
any effective judicial Order about the matter in respect of which the Parties to the case
were in difference. On page 111 of the Reports of the case, Sir Gerald said:

"In short, a decision of the Court neither would, nor could, affect the legal rights,
obligations, interests or relations of the Parties in any way; and this situation both
derives from, and evidences, the non-existence of any dispute between the Parties to
which a judgment of the Court could attach itself in any concrete, or even potentially
realizable, form. The conclusion must be that there may be a disagreement, contention
or controversy, but that there is not, properly speaking, and as a matter of law, any
dispute.

To state the point in another way, the impossibility for a decision of the Court in favour of
the Applicant State to have any effective legal application in the present case (and
therefore the incompa-[p 430] tibility with the judicial function of the Court that would be
involved by the Court entertaining the case) is the reverse of a coin, the obverse of
which is the absence of any genuine dispute.
 II. CUSTOMARY INTERNATIONAL LAW

Since, with reference to a judicial decision sought as the outcome of a dispute said to
exist between the Parties, the dispute must essentially relate to what that decision ought
to be, it follows that if the decision (whatever it might be) must plainly be without any
possibility of effective legal application at all, the dispute becomes void of all content,
and is reduced to an empty shell."

The nub of these remarks was that, because the trusteeship agreement had come to an
end, the Court could not by a decision confer or impose any right or obligation on either
Party in respect of that agreement: and it was only this interpretation or application of
that agreement which the Application sought. The qualification of a dispute which Sir
Gerald imported into his definition is present, in my opinion, in the very formulation of
the nature of the dispute which is relevant under Article 17, that is to say, a dispute as to
the respective rights of the Parties. If the dispute is of that kind, it seems to me that the
Court must be able both to resolve it by the application of legal norms because legal
rights of the Parties are in question and to make at least a declaration as to the
existence or non-existence of the disputed right or obligation.

It is essential, in my opinion, to observe that the existence of a dispute as to legal rights

does not depend upon the validity of the disputed claim that a right exists or that it was
of a particular nature or of a particular extent. In order to establish the existence of a
dispute it is not necessary to show that the claimed right itself exists. For example, a
party who lost a contested case in a court of law on the ground that in truth he did not
have the right which he claimed to have had against the other party, was nonetheless at
the outset in dispute with that other party as to their respective rights, that is to say, the
right on the one hand and the commensurate obligation on the other. The solution of the
dispute by the court did not establish that the parties had not been in dispute as to their
rights, though it did determine that what the plaintiff party claimed to be his right was not
validly so claimed. To determine the validity of the disputed claim is to determine the
merits of the application.

It is conceivable that a person may claim a right which, being denied, gives the
appearance of a dispute, but because the claim is beyond all question and on its face
baseless, it may possibly be said that truly there is no dispute because there was in
truth quite obviously nothing to dispute about, or it may be said that the disputed claim
is patently absurd or frivolous. But these things, in my opinion, cannot be said as to any
of the bases of claim which are put forward in the Application and which were present in
the correspondence which antedated it.[p 431]

Consideration of Bases of Claim

 II. CUSTOMARY INTERNATIONAL LAW

I turn now to consider whether the several bases of claim which I have listed above are
claims as to legal rights possessed by Australia, in other words, whether these bases of
claim being disputed are capable of resolution by the application of legal norms and
whether the Applicant has a legal interest to maintain its claim in respect of those rights.

In considering these questions, it must be recalled that if they are to be decided at this
stage, they must be questions of an exclusively preliminary character. If, to resolve
either of them, it is necessary to go into the merits, then that question is not of that
character.

It is not disputed in the case that the deposition of radio-active particles of matter
(nuclides) on Australian territory and their intrusion into the Australian environment of
sea and air occurs in a short space of time after a nuclear explosion takes place in the
French Pacific territory of Mururoa, due to the inherent nature and consequences of
such explosions and the prevailing movements of air in the southern hemisphere. Thus
it may be taken that that deposition and intrusion is caused, and that it is known that it
will be caused, by those explosions.

First and Second Bases

I can take bases 1 and 2 together. Each relates to the integrity of territory and the
territorial environment. The Applicant's claim is that the deposition and intrusion of the
nuclides is an infringement of its right to territorial and, as it says, decisional sovereignty.
It is part of this claim that the mere deposition and intrusion of this particular and
potentially harmful physical matter is a breach of Australia's undoubted sovereign right
to territorial integrity, a right clearly protected by international law.

France, for its part, as I understand the French Annex, asserts that the right to territorial
integrity in relevant respects is only a right not to be subjected to actual and
demonstrable damage by matter intruded into its territory and environment. Hence the
reference to a threshold of nuclear pollution. Put another way, it is claimed that France's
right to do as she will on her own territory in exercise of her own sovereign rights is only
qualified by the obligation not thereby to cause injury to another State; that means, as I
understand the French point of view, not to do actual damage presently provable to the
Australian territory or environment of air and sea. In such a formulation it would seem
that France claims that although the nuclides were inherently dangerous, their
deposition and intrusion into the Australian territory and environment did not relevantly
cause damage to Australia or people within its territory. Damage in that [p 432] view
would not have been caused unless some presently demonstrable injury had been
caused to land or persons by the nuclear fall-out.
 II. CUSTOMARY INTERNATIONAL LAW

Such a proposition is understandable, but it is a proposition of law. It is disputed by

Australia and is itself an argument disputing the Australian claim as to the state of the
relevant law. So far as the question of French responsibility to Australia may depend
upon whether or not damage has been done by the involuntary reception in Australia of
the radio-active fall-out, it should be said that the question whether damage has in fact
been done has not yet been fully examined. Obviously such a question forms part of the
merits. Again, if there is no actual damage presently provable, the question remains
whether the nuclides would in future probably or only possibly cause injury to persons
within Australian territory; and in either case, there is a question of whether the degree
of probability or possibility, bearing in mind the nature of the injuries which the nuclides
are capable of causing, is sufficient to satisfy the concept of damage if the view of the
law put forward by the French Annex were accepted. The resolution of such questions,
which in my opinion are legal questions, partakes of the merits of the case.

The French White Book appears to me to attribute to the Applicant and to New Zealand
in its case, a proposition that:

". . . they have the right to decline to incur the risks to which nuclear atmospheric tests
would expose them, and which are not compensated for by advantages considered by
them to be adequate, and that a State disregarding this attitude infringes their
sovereignty and thus violates international law".

I do not apprehend that the Applicant did put forward that view of the law; and as
phrased by the French White Book, it is a proposition of law. My understanding of the
Applicant's argument was that the Applicant claimed that in the exercise of its
sovereignty over its territory it had to consider, in this technological age, whether it
would allow radio-active material to be introduced into and used in the country. It claims
that it alone should decide that matter. As some uses of such material can confer
benefit on some persons, it was said that Australia had established for itself a rule that it
would not allow the introduction into, or the use of radio-active material in Australia
unless a benefit, compensating for any harmful results which could come from such
introduction or use, could be seen. In assessing the benefit and the detriment, account
had to be taken of the level of radio-activity, natural and artificial, which existed at any
time in the environment. It was said, as I followed the argument, that the involuntary
receipt into the territorv and environment of radio-[p 433] active matter infringed
Australian sovereignty and compromised its capacity to decide for itself what level of
radio-activity it would permit in the territory under its sovereignty. As the introduction
was involuntary, no opportunity was afforded of considering whether the introduction of
the radio-active matter had any compensating benefits. This was the infringement of
what the Applicant called its decisional sovereignty. But if I be wrong in my
understanding of the Australian position in this respect, and the French view is the
 II. CUSTOMARY INTERNATIONAL LAW

correct one, the Parties are in dispute about a further aspect of international law
affecting their relations with one another.

Thus France and Australia are, in my opinion, in difference as to what is the relevant
international law regulating their rights and obligations in relation to the consequences
on Australian territory or in its environment of nuclear explosions taking place on French
territory. To borrow an expresion from municipal law, one, but not the only, aspect of the
dispute is whether actual and demonstrable damage is of the "gist" of the right to
territorial integrity or is the intrusion of radio-active nuclides into the environment per se
a breach of that right.

In resolving the question whether damage is of the essence of the right to territorial
integrity in relation to the intrusion of physical matter into territory, there may arise what
is a large question as to the classification of substances which may not be introduced
with impunity by one State on to and into the territory and environment of another. Is
there a possible limitation or qualification of the right to territorial and environmental
integrity which springs from the nature of the activity which generates the substance
which is deposited or intruded into the State's territory and environment? There are
doubtless uses of territory by a State which are of such a nature that the consequences
for another State and its territory and environment of such a use must be accepted by
that other State. It may very well be that a line is to be drawn between depositions and
intru-sions which are lawful and must be borne and those which are unlawful; on the
other hand it may be that because of the unique nature of nuclides and the
internationally unnecessary and internationally unprofitable activity which gives rise to
their dissemination, no more need be decided than the question whether the intrusion of
such nuclides so derived is unlawful.

It is important, in my opinion, to bear in mind throughout that we are here dealing with
the emission and deposit of radio-active substances which are in themselves inherently
dangerous. There may be differences of opinion as to how dangerous they may prove
to be, but no dissent from the view that they are intrinsically harmful and that their
harmful effect is neither capable of being prevented nor, indeed, capable of being
ascertained with any degree of certainty. I mention these possibilities merely as
indicating the scope of the legal considerations which the dispute of the Parties in
relation to territorial sovereignty evokes.

In my opinion, it cannot be claimed, and I do not read the French [p 434] Annex as
claiming, that this difference between France and Australia as to whether or not there
has been an infringement of Australian sovereignty is other than a legal dispute, a
dispute as to the law and as to the legal rights of the Parties. It is a dispute which can
 II. CUSTOMARY INTERNATIONAL LAW

be resolved according to legal norms and by judicial process. Clearly the Applicant has
a legal interest to maintain the validity of its claim in this respect.

Third Basis of Claim

The third basis of the claim is that Australia's rights of navigation and fishing on the high
seas and of oceanic flight will be infringed by the action of the French Government not
limited to the mere publication of NOTAMS and AVROMARS in connection with its
nuclear tests in the atmosphere of the South Pacific. Here there is, in my opinion, a
claim of right. The claim also involves an assertion that a situation will exist which would
be a breach of that right. It seems also to be claimed that pollution of the high seas, with
resultant effects on fish and fishing, constitutes an infringement of the Applicant's rights
in the sea.

France disputes that what it proposes to do would infringe Australia's rights in the high
seas and super-incumbent air, bearing in mind established international practice. Thus
the question arises as to the extent of the right of the unimpeded use of the high seas
and super-incumbent air, and of the nature and effect of international practice in the
closure of areas of danger during the use of the sea and air for the discharge of
weapons or for dangerous experimentation.

Again, in my opinion, there is, in connection with the third basis of claim, a dispute as to
the existence and infringement of rights according to international law: there is a dispute
as to the respective rights of the Parties. On that footing, the interest of the Applicant to
sustain the Application is, in my opinion, apparent.

Fourth Basis of Claim

The claim in relation to the testing of nuclear weapons in the atmosphere stands on a
quite different footing from the foregoing. It is a claim that Australia's rights are infringed
by the testing of nuclear weapons by France in the atmosphere of the South Pacific. I
have expressed it in that fashion, emphasizing that it is Australia's rights which are said
to be infringed, though I am bound to say that the claim is not so expressed in the
Australian Note of 3 January 1973. However, the expression of the relevant claim in
paragraph 49 of the Application is susceptible of that interpretation. The relevant portion
of that paragraph reads:

"The Australian Government contends that the conduct of the tests as described above
has violated and, if the tests are continued, [p 435] will further violate international law
and the Charter of the United Nations, and, inter alia, Australia's rights in the following
respects:
 II. CUSTOMARY INTERNATIONAL LAW

(i) The right of Australia and its people, in common with other States and their peoples,
to be free from atmospheric nuclear weapon tests by any country is and will be violated
. . ."

It is clear enough, in my opinion, that the Applicant has claimed that international law
now prohibits any State from testing nuclear weapons, at least in the atmosphere. Of
course, Australia would have no interest to complain in this case of any other form of
testing, the French tests being in the atmosphere. The claim is not that the law should
be changed on moral or political grounds, but that the law now is as the Applicant
claims it to be. France denies that there is any such prohibition. It can readily be said, in
my opinion, that this is a dispute as to the present state of international law. It is not
claimed that that law has always been so, but it is claimed that it has now become so.

It is said that there has been such a progression of general opinion amongst the
nations, evidenced in treaty, resolution and expression of international opinion, that the
stage has been reached where the prohibition of the testing of nuclear weapons is now
part of the customary international law.

It cannot be doubted that that customary law is subject to growth and to accretion as
international opinion changes and hardens into law. It should not be doubted that the
Court is called upon to play its part in the discernment of that growth and in the
authoritative declaration that in point of law that growth has taken place to the requisite
extent and that the stretch of customary law has been attained. The Court will, of
course, confine itself to declaring what the law has already become, and in doing so will
not be altering the law or deciding what the law ought to be, as distinct from declaring
what it is.

I think it must be considered that it is legally possible that at some stage the testing of
nuclear weapons could become, or could have become, prohibited by the customary
international law. Treaties, resolutions, expressions of opinion and international practice,
may all combine to produce the evidence of that customary law. The time when such a
law emerges will not necessarily be deferred until all nations have acceded to a test ban
treaty, or until opinion of the nations is universally held in the same sense. Customary
law amongst the nations does not, in my opinion, depend on universal acceptance.
Conventional law limited to the parties to the convention may become in appropriate
circumstances customary law. On the other hand, it may be that even a widely accepted
test ban treaty does not create or evidence a state of customary international law in
which the testing of nuclear weapons is unlawful, and that resolutions of the United
Nations and other expressions of international opinion, however frequent, numerous
 II. CUSTOMARY INTERNATIONAL LAW

and emphatic, are insufficient to [p 436] warrant the view that customary law now
embraces a prohibition on the testing of nuclear weapons.

The question raised by the Applicant's claim in respect of the nuclear testing of
weapons and its denial by France is whether the stage has already been reached where
it can be said as a matter of law that there is now a legal prohibition against the testing
of nuclear weapons, particularly the testing of nuclear weapons in the atmosphere. If I
might respectfully borrow Judge Petr!!!en's phrase used in his dissenting opinion at an
earlier stage in this case, the question which arises is whether:

". . . atmospheric tests of nuclear weapons are, generally speaking, already governed
by norms of international law, or whether they do not still belong to a highly political
domain where the norms concerning their international legality or illegality are still at the
gestation stage" (I.C.J. Reports 1973, p. 126),

which is, in my opinion, a description of a question of law.

The difficulties in the way of establishing such a change in the customary international
law are fairly obvious, and they are very considerable, but, as I have indicated earlier, it
is not the validity of the claim that is in question at this stage. The question is whether a
dispute as to the law exists. However much the mind may be impressed by the
difficulties in the way of accepting the view that customary international law has reached
the point of including a prohibition against the testing of nuclear weapons, it cannot, in
my opinion, be said that such a claim is absurd or frivolous, or ex facie so untenable
that it could be denied that the claim and its rejection have given rise to a dispute as to
legal rights. There is, in my opinion, no justification for dismissing this basis of the
Applicant's claim as to the present state of international law out of hand, particularly at a
stage when the Court is limited to dealing with matters of an exclusively preliminary
nature. Nor is it the case that the state of the customary law could not be determined by
the application of legal considerations.

There remains, however, another and a difficult question, namely whether Australia has
an interest to maintain an application for a declaration that the customary law has
reached the point of including a prohibition against the testing of nuclear weapons.

In expressing its claim, it is noticeable that the Applicant speaks of its right as being a
right along with all other States. It does not claim an individual right exclusive to itself. In
its Memorial, it puts the obligation not to test nuclear weapons as owed by each State to
every other State in the international community; thus it is claimed that each State can
be held to have a legal interest in the maintenance of a prohibition against the testing of
nuclear weapons. The Applicant, in support of this conclusion, relies upon the obiter
 II. CUSTOMARY INTERNATIONAL LAW

dictum in the Barcelona Traction, Light and Power Company, Limited case (Belgium v.
Spain, supra, I.C.J. Reports 1970, at p. 32): [p 437]

"When a State admits into its territory foreign investments or foreign nationals, whether
natural or juristic persons, it is bound to extend to them the protection of the law and
assumes obligations concerning the treatment to be afforded them. These obligations,
however, are neither absolute nor unqualified. In particular, an essential distinction
should be drawn between the obligations of a State towards the international community
as a whole, and those arising vis-à-vis another State in the field of diplomatic protection.
By their very nature the former are the concern of all States. In view of the importance
of the rights involved, all States can be held to have a legal interest in their protection :
they are obligations erga omnes.

Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including protection from slavery and
racial discrimination. Some of the corresponding rights of protection have entered into
the body of general international law (Reservations to the Convention on the Prevention
and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p.
23); others are conferred by international instruments of a universal or quasi-universal
character."

The Applicant says that the prohibition it claims now to exist in the customary
international law against the testing of nuclear weapons is of the same kind as the
instances of laws concerning the basic rights of the human person as are given in
paragraph 34 of the Court's Judgment in the Barcelona Traction, Light and Power
Company, Limited case, and that therefore the obligation to observe the prohibition is
erga omnes. The Applicant says that in consequence the right to observance of the
prohibition is a right of each State corresponding to the duty of each State to observe
the prohibition, a duty which the Applicant claims is owed by each State to each and
every other State.

If this submission were accepted, the Applicant would, in my opinion, have the requisite
legal interest, the locus standi to maintain this basis of its claim. The right it claims in its
dispute with France would be its right: the obligation it claims France to be under,
namely an obligation to refrain from the atmospheric testing of nuclear weapons, would
be an obligation owed to Australia. The Parties would be in dispute as to their
respective rights.

But in my opinion the question this submission raises is not a matter which ought to be
decided as a question of an exclusively preliminary character. Not only are there
 II. CUSTOMARY INTERNATIONAL LAW

substantial matters to be considered in connection with it, but, if a prohibition of the kind
suggested by the Applicant were to be found to be part of the customary international
law, the precise formulation of, and perhaps limitations upon, that pro-[p 438]hibition
may well bear on the question of the rights of individual States to seek to enforce it.
Thus the decision and question of the admissibility of the Applicant's claim in this
respect may trench upon the merits.

There is a further aspect of the possession of the requisite legal interest to maintain this
basis of the Applicant's claim which has to be considered. The Applicant claims to have
been specially affected by the breach of the prohibition against atmospheric testing of
nuclear weapons. Conformably with its other bases of claim the Applicant says that
there has been deleterious fall-out on to and into its land and environment from what it
claims to be the unlawful atmospheric testing of nuclear weapons. It may well be that
when the facts are fully examined, this basis of a legal interest to maintain the
Application in relation to the testing of nuclear weapons may be made out, both in point
of fact and in point of law, but again the matter is not, in my opinion, a question of an
exclusively preliminary nature.

In the result, I am of opinion that the Applicant's claim is admissible in relation to the first
three of the four bases which I have enumerated at an earlier part of this opinion. But I
am not able to say affirmatively at this stage that the Application is admissible, as to the
fourth of those bases of claim. In my opinion, the question whether the Application is in
that respect admissible is not a question of an exclusively preliminary nature, and for
that reason it cannot be decided at this stage of the proceedings.

I shall add that, if it were thought, contrary to my own opinion, that the question of
admissibility involved to any extent an examination of the validity of the claims of right
which are involved in the dispute between the Parties, it would be my opinion that the
question of admissibility so viewed could not be decided as a question of an exclusively
preliminary character.

To sum up my opinion to this point, I am of opinion that at the date of the lodging of the
Application the Court had jurisdiction and that it still has jurisdiction to hear and
determine the dispute between France and Australia which at that time existed as to the
claim to the unlaw-fulness, in the respects specified in the first three bases of claim in
my earlier enumeration, of the deposition and intrusion of radio-active particles of matter
on to and into Australian land, air and adjacent seas resulting from the detonation by
France in its territory at Mururoa in the South Pacific of nuclear devices, and as to the
unlawfulness of the proposed French activity in relation to the high seas and the
super-incumbent air space. I am of opinion that there is a dispute between the Parties
as to a matter of legal right in respect of the testing by France of nuclear weapons in the
 II. CUSTOMARY INTERNATIONAL LAW

atmosphere of the South Pacific. If it should be found that the Applicant has a legal right
to complain of that testing and thus a legal interest to maintain this Application in
respect of such testing, the Court has jurisdiction, in my opinion, to hear and determine
the dispute between the Parties as to the unlawfulness of the testing by France of
nuclear weapons in the atmosphere of the South Pacific. It will in that [p 439] event, in
relation to this basis of claim also, be a dispute as to their respective rights within Article
17 of the General Act.

In so far as the admissibility of the Application may be a question separate from that of
jurisdiction in this case, I am of opinion that the Application is admissible in respect of all
the bases of claim other than that basis which asserts that the customary international
law now in-cludes a prohibition against the testing of nuclear weapons. In my opinion, it
cannot be said, as a matter of an exclusively preliminary character, that the Application
in respect of this basis of claim is inadmissible, that is to say, it cannot now be said that
the Applicant certainly has no legal interest to maintain its Application in that respect. In
my opinion, the question of admissibility in respect of this basis of claim is not a
question of an exclusively preliminary character and that it ought to be decided at a later
stage of the proceedings.

Dissent from Judgment

I have already expressed myself as to the injustice of the procedure adopted by the
Court. I regret to find myself unable to agree with the substance of the Judgment, and
must comment thereon in expressing my reasons for dissenting from it.

Explanation for not Notifying and Hearing Parties

The first matter to which I direct attention in the Judgment is that part of it which
expresses the Court's reason for not having notified the Parties and for not having heard
argument (e.g., see Judgment, para. 33).

The Judgment in this connection begins with the circumstance that a communique from
the Office of the President of France dated 8 June 1974, which had been communicated
to Australia, was brought to the attention of the Court by the Applicant in the course of
the oral hearing on the preliminary questions. The Judgment then refers to a number of
statements which it designates as acts of France and which it says are "consistent" with
the communique of 8 June 1974; the Court says it would be proper to take cognizance
of these statements (paras. 31 and 32 of the Judgment). I may remark in passing that
the question is not whether these statements were matters which might properly be
considered by the Court if appropriate procedures were adopted. The question is
whether this evidentiary matter ought to be acted upon without notice to the Parties and
without hearing them. The Court in its Judgment says:
 II. CUSTOMARY INTERNATIONAL LAW

"It would no doubt have been possible for the Court, had it considered that the interests
of justice so required, to have afforded the Parties the opportunity, e.g., by reopening
the oral proceedings, [p 440] of addressing to the Court comments on the statements
made since the close of those proceedings. Such a course however would have been
fully justified only if the matter dealt with in those statements had been completely new,
had not been raised during the proceedings, or was unknown to the Parties. This is
manifestly not the case. The essential material which the Court must examine was
introduced into the proceedings by the Applicant itself, by no means incidentally, during
the course of the hearings, when it drew the Court's attention to a statement by the
French authorities made prior to that date, submitted the documents containing it and
presented an interpretation of its character, touching particularly upon the question
whether it contained a firm assurance. Thus both the statement and the Australian
interpretation of it are before the Court pursuant to action by the Applicant. Moreover,
the Applicant subsequently publicly expressed its comments (see paragraph 28 above)
on statements made by the French authorities since the closure of the oral proceedings.
The Court is therefore in possession not only of the statements made by French
authorities concerning the cessation of atmospheric nuclear testing, but also of the
views of the Applicant on them. Although as a judicial body the Court is conscious of the
importance of the principle expressed in the maxim audi alteram partem, it does not
consider that this principle precludes the Court from taking account of statements made
subsequently to the oral proceedings, and which merely supplement and reinforce
matters already discussed in the course of the proceedings, statements with which the
Applicant must be familiar. Thus the Applicant, having commented on the statements of
the French authorities, both that made prior to the oral proceedings and those made
subsequently, could reasonably expect that the Court would deal with the matter and
come to its own conclusion on the meaning and effect of those statements. The Court,
having taken note of the Applicant's comments and feeling no obligation to consult the
Parties on the basis for its decision, finds that the reopening of the oral proceedings
would serve no useful purpose." (Para. 33.)

It is true that the communique of 8 June 1974 which issued from the Office of the
President of France was brought to the Court's attention by the Applicant in the course
of the oral hearing. Indeed, I should have thought the Applicant would have been bound
to do so. But it seems to me that it was not introduced in relation to some further
question beyond the two questions mentioned in the Order of 22 June 1973. It is true
that a comment was made on the communique by the Applicant's counsel of which the
terms are recited in the Judgment. But in my opinion it cannot truly be said that the
reference to the communication was made to introduce and argue the questions the
Court has decided. Counsel for the Applicant when making his comment thereon, as
 II. CUSTOMARY INTERNATIONAL LAW

appears from the verbatim record of the proceedings, was reviewing developments in [p
441]
relation to these proceedings since he last addressed the Court, that is to say, since he
did so in connection with the indication of interim measures. He referred to the failure of
France to observe the Court's indication of interim measures and to certain further
resolutions of the General Assembly and of UNSCEAR. As indicative of what, from the
Applicant's point of view, was continued French obduracy, he referred to the
communique from the President's Office criticizing its factual inaccuracy and
emphasizing that it did not contain any firm indication that atmospheric testing was to
come to an end. He pointed out that a decision to test underground did not carry any
necessary implication that no further atmospheric testing would take place. He asserted
that the Applicant had had scientific advice that the possibility of further atmospheric
testing taking place after the commencement of underground tests could not be
excluded. He indicated that the communique had not satisfied the Applicant to the point
that the Applicant desired to discontinue the legal proceedings. On the contrary, he
indicated that the Applicant proposed to pursue its Application, as in fact it did,
continuing the argument on the two questions mentioned in the Order of 22 June 1973. I
might interpolate that that argument continued without any intervention by the Court.

But in my opinion this comment of counsel for the Applicant was in no sense a
discussion of the question as to whether the claim had become "without object", either
because the dispute as to the legal right had been settled, or because no opportunity
remained for making a judicial Order upon the Application. It was not directed to that
question at all. Nor was it directed to the question whether the communique was
intended to undertake an international obligation. In no sense did it constitute in my
opinion a submission with respect to those questions or either of them. In my opinion it
cannot be made the basis for the decision without hearing the Parties. It cannot provide
in my opinion any justification for the course the Court has taken. In my opinion it cannot
justly be said, as it is said in the Judgment, that the Applicant "could reasonably expect
that the Court would . . . come to its own conclusion" from the document of 8 June 1974
(see para. 33), i.e., as to whether or not the Application had become "without object".
Apart from all else, the Applicant was not to know that the Court would receive the
further statements and use them in its decision.

I have said that in my opinion the question whether the Application has, by reason of the
events occurring since the Application was lodged, become "without object" is not in any
sense embraced by or involved in the questions mentioned in the Order of 22 June
1973. They related, and in my opinion related exclusively, to the situation which
obtained at the date of the lodging of the Application. They could not conceivably have
related to facts and events subsequent to 22 June 1973. But, of course, events which
occurred subsequent to the lodging of the Application might provoke further questions
 II. CUSTOMARY INTERNATIONAL LAW

which might require to be dealt with in a [p 442] proper procedural manner and decided
by the Court after hearing the Parties with respect to them.

If there is a question at this stage of the proceedings whether the Application has
become "without object", either because the dispute which is before the Court had been
resolved, or because the Court cannot in the present circumstances, within its judicial
function, now make an Order having effect between the Parties, the Court ought, in my
opinion, first to have decided the questions then before it and to have fixed times for a
further hearing of the case at which the question whether the Application had become
"without object" could be examined in a public hearing at which the Parties could place
before the Court any relevant evidence which they desired the Court to consider, for it
cannot be assumed that the material of which the Court has taken cognizance is
necessarily the whole of the relevant material, and at which counsel could have been
heard.

The decision of the questions of jurisdiction and of admissibility would in no wise have
compromised the consideration and decision on the question which the Court has
decided. Indeed, as I think, to have decided what was the nature of the Parties' dispute
would have greatly clarified the question whether an admissible dispute had been
resolved. Further the failure to decide these questions really saves no time or effort. As I
have mentioned, the Memorial and argument of the Applicant have been presented and
the questions have been discussed by the Court.

It is of course for the Court to resolve all questions which come before it: the Court is
not bound by the views of one of the parties. But is this a sufficient or any reason for not
notifying the parties of an additional question which the Court proposes to consider and
for not affording the parties an opportunity to put before the Court their views as to how
the Court should decide the question, whether it be one of fact or one of law? The
Court's procedure is built on the basis that the parties will be heard in connection with
matters that are before it for decision and that the Court will follow what is commonly
called the "adversary procedure" in its consideration of such matters. See, e.g., Articles
42, 43, 46, 48 and 54 of the Statute of the Court. The Rules of Court passim are
redolent of that fact. Whilst it is true that it is for the Court to determine what the fact is
and what the law is, there is to my mind, to say the least, a degree of judicial novelty in
the proposition that, in deciding matters of fact, the Court can properly spurn the
participation of the parties. Even as to matters of law, a claim to judicial omniscience
which can derive no assistance from the submissions of learned counsel would be to
my mind an unfamiliar, indeed, a quaint but unconvincing affectation.

I find nothing in the Judgment of the Court which, in my opinion, can justify the course
the Court has taken. It could not properly be said, in my opinion, consistently with the
 II. CUSTOMARY INTERNATIONAL LAW

observance of the Court's judicial function, [p 443] that the Court could feel no obligation
to hear the Parties' oral submissions or that "the reopening of the oral proceedings
would serve no useful purpose" (see para. 33 of the Judgment).

Elements of Judgment

The Judgment is compounded of the following elements: first, an interpretation of the

claim in the Application. It is concluded that the true nature of the claim before the Court
is no more than a claim to bring about the cessation of the testing of nuclear weapons in
the South Pacific; second, a finding that the Applicant, in pursuit of its goal or objective
to bring about that cessation would have been satisfied to accept what could have been
regarded by it as a firm, explicit and binding undertaking by France no longer to test
nuclear weapons in the atmosphere of that area. Such an assurance would have been
accepted as fulfilling that purpose or objective; third, a finding that France by the
communique of 8 June 1974, when viewed in the light of the later statements which are
quoted in the Judgment intentionally gave an assurance, internationally binding, and
presumably therefore binding France to Australia, that after the conclusion of the 1974
series of tests France would not again test nuclear weapons in the atmosphere of the
South Pacific; and lastly, a conclusion that the giving of that assurance, though not
found satisfactory and accepted by Australia, ended the dispute between Australia and
France which had been brought before the Court, so that the Application lodged on 9
May 1973 no longer had any object, had become "without object".

Each of these elements of the Judgment has difficulties for me. The Judgment says that
the "objective" of the Applicant was to obtain the termination of the atmospheric tests,
"the original and ultimate objective of the Applicant was and has remained to obtain a
termination of" the atmospheric nuclear tests (see paras. 26 and 30 of the Judgment).
Paragraph 31 of the Judgment refers to "the object of the Applicant's claim" as being "to
prevent further tests". Thus the objective or object is at times said to be that of the
Applicant, at other times it is said to be the objective of the Application or of the claim.

The Judgment, in seeking what it describes as the true nature of the claim submitted by
the Applicant, ought to have regarded the Application, which by the Rules of Court must
state the subject of the dispute, as the point of reference for the consideration by the
Court of the nature and extent of the dispute before it (see Art. 35 of the Rules of Court).
The Applicant at no stage departed from the Application and the relief it claimed.

By the Application the Applicant seeks two elements in the Court's Judgment, that is to
say, a declaration of the illegality of further tests and an Order terminating such tests.
The Applicant's requests are directed to the future. But the future to which the
Application in seeking a [p 444]
 II. CUSTOMARY INTERNATIONAL LAW

declaration relates begins as from 9 May 1973, the date of the lodging of the
Application, and not, as from the date of the Judgment or from some other time in 1974.
The Judgment proceeds as I think, in direct contradiction of the language of the
Application and of its clear intent, to conclude that the request for a declaration in the
Application is no more than a basis for obtaining an Order having the effect of
terminating atmospheric tests. The Judgment further says that a finding that further
tests would not be consistent with international law would only be a means to an end
and not an end in itself (see para. 30 of the Judgment). The Judgment overlooks the
terms of paragraph 19 of the Application which is in part in the following terms:

"The Australian Government will seek a declaration that the holding of further
atmospheric tests by the French Government in the Pacific Ocean is not in accordance
with international law and involves an infringement of the rights of Australia. The
Australian Government will also request that, unless the French Government should
give the Court an undertaking that the French Government will treat a declaration by the
Court in the sense just stated as a sufficient ground for discontinuing further
atmospheric testing, the Court should make an order calling upon the French Republic
to refrain from any further atmospheric tests."

I might interpolate here the observation that it just could not be said, in my opinion, that
a declaration, made now, that the tests carried out in 1973 and 1974 (which as of 9 May
1973, were "future tests") were unlawful, would do no more than provide a reason for an
injunction to restrain the tests which might be carried out in 1975. In my opinion the
obvious incorrectness of such a statement is illustrative of the fact that the request in
the Application for a declaration was itself a request for substantive relief. Apart from a
claim for compensatory relief in relation to them—a matter to which I later refer—a
declaration of unlawfulness is all that could be done as to those tests. Obviously there
could be no order for an injunction.

In concluding that the nature of the Application was no more than that of a claim for the
cessation of the nuclear tests, two related steps are taken, the validity of neither of
which I am able to accept. First of all, the purpose with which the litigation was
commenced, the goal or objective sought thereby to be attained, is identified in the
Judgment with the nature of the claim made in the Application and the relief sought in
the proceedings. But it seems to me that they are not the same. They are quite different
things. To confuse them must lead to an erroneous con-clusion as in my opinion has
happened.

Undoubtedly, the purpose of the Applicant in commencing the litigation was to prevent
further atomic detonations in the course of testing nuclear weapons in the atmosphere
of the South Pacific as from the date [p 445] of the lodgment of its Application.
 II. CUSTOMARY INTERNATIONAL LAW

Apparently it desired to do so for two avowed reasons, first to prevent harmful fall-out
entering the Australian environment and, secondly, to prevent the proliferation of
nuclear armament. I have already called attention to the different bases of the
Applicant's claim which reflect those different reasons. Diplomatic approaches having
failed, the means of achieving that purpose was the creation of a dispute as to the legal
rights of the Parties and the commencement of a suit in this Court founded on that
dispute in which relief of two specific kinds was claimed, the principal of which in reality,
in my opinion, is the declaration as to the matter of right. The injunctive relief was in
truth consequential. The attitude of the Applicant expressed in paragraph 19 of its
Application is consistent with the practice of international tribunals which deal with
States and of municipal tribunals when dealing with governments. It is generally
considered sufficient to declare the law expecting that States and governments will
respect the Court's declaration and act accordingly. That I understand has been the
practice of this Court and of its predecessor. Thus the request for a declaration of
unlawfulness in international law is, in my opinion, not merely the primary but the
principal claim of the Application. It is appropriate to the resolution of a dispute as to
legal rights.

The second step taken by the Judgment not unrelated to the first is to identify the word
"object" or "objective" in the sense of a goal to be attained or a purpose to be pursued,
with the word "object" in the expression of art "without object" as used in the
jurisprudence of this Court. This in my opinion is to confuse two quite disparate
concepts. The one relates to motivation and the other to the substantive legal content of
an Application. Motivation, unless the claim or dispute involved some matter of good
faith, would in my opinion be of no concern to the Court when resolving a dispute as to
legal right.

It is implicit in the Judgment, in my opinion, that the Parties at the date of the lodgment
of the Application were in dispute and presumably in dispute as to their legal rights. But
the Judgment does not condescend to an express examination of the nature of the
dispute between the Parties which it decides has been resolved and has ceased to
exist. I have expressed my views of that dispute in an earlier part of this opinion. If the
Court had come to the same conclusion as I have, it would in my opinion have been
immediately apparent that the goal or objective of the Appli-cant in commencing the
litigation could not be identified with its claim to the resolution of the dispute as to the
respective legal rights of the Parties. It would further have been apparent, in my opinion,
that for a court called upon to decide whether such a dispute persisted, the motives,
purposes or objective of the Applicant in launching the litigation were irrelevant. It would
also have been seen that a voluntary promise given [p 446] without admission and
whilst maintaining the right to do so, not to test atmospherically in the future could not
resolve a dispute as to whether it had been or would be unlawful to do so. I add "had
 II. CUSTOMARY INTERNATIONAL LAW

been" because of the 1973 series of tests which had taken place before the issue of the
communique of 8 June 1974.

If, on the other hand, the Court on such an examination of the nature of the dispute, had
decided that the dispute between the Parties was not a dispute as to their respective
legal rights, the Court would have decided either that it had no jurisdiction to hear and
determine the Application or that the Application was inadmissible. In that event no
question of the dispute having been resolved would have emerged.

Although the matter receives no express discussion, and although I think it is implicit in
the Judgment that the Parties were relevantly in dispute when the Application was
lodged, the Judgment, it seems to me, treats the Parties as having then been in dispute
as to whether or not France should cease tests in the Pacific. But if the Parties had only
been in dispute as to whether or not France should do so or should give an assurance
that it would do so, the dispute would not have been justiciable; in which case, no
question as to the Application having become without object would arise. Whether the
Application when lodged was or was not justiciable was in my opinion part of the
questions to which the Order of 22 June 1973 was directed and I have so treated the
matter in what I have so far written. It seems to me that in that connection some have
thought that the dispute between France and Australia was no more than a dispute as
to whether France ought or ought not in comity to cease to test in the atmosphere of the
South Pacific. If that were the dispute the Court could have had no function in its
resolution: it could properly have been regarded as an exclusively political dispute. The
Application could properly have been said to be "without object" when lodged. I have
found myself and I find myself still unable to accept that view. The dispute which is
brought before the Court by the Application is claimed to be, and as I have said in my
opinion it is, a dispute as to the legal rights of the Parties. The question between them
which the Application brings for resolution by the Court in my opinion is not whether
France of its own volition will not, but whether lawfully it cannot, continue to do as it has
done theretofore at Mururoa with the stated consequences for Australia. The
importance of the Court first deciding whether or not the dispute between the Parties
was a dispute as to their respective rights is thus quite apparent. But in any case it
seems to me that the Applicant's purpose in commencing the litigation is irrelevant to
the question whether the claim which is made is one the Court can entertain and decide
according to legal norms, and the relief which is sought is relief which the Court
judicially can grant.

The confusion of motivation with the substance of the Application permeates the
Judgment in the discussion of the nature of the claim the [p 447] Application makes.
The Judgment refers to statements of counsel in the course of the oral hearing and
proceeds in paragraph 27:
 II. CUSTOMARY INTERNATIONAL LAW

"It is clear from these statements that if the French Government had given what could
have been construed by Australia as 'a firm, explicit and binding undertaking to refrain
from further atmospheric tests', the applicant Government would have regarded its
objective as having been achieved."

In this passage there is again implicit an identification of the Applicant's ultimate

purpose in bringing the proceedings with the claim which it makes in the Application
before the Court. If it were to be assumed that the Applicant would in fact have treated
such an undertaking as the Court describes as sufficient for its purposes in commencing
the litigation, the Applicant, in my opinion, could not have regarded that undertaking as
having resolved the matter of right which in my opinion was the basis of its claim in the
Application before the Court. It could not have regarded its dispute as to legal rights as
having been resolved. The assurance which the Court finds to have been given was in
no sense an admission of illegality of the French testing and of its consequences.
France throughout continued to maintain that its nuclear tests "do not contra-vene any
subsisting provision of international law" (French White Book). All the Applicant could
have done would have been to accept the assurance as in the nature of a settlement of
the litigation and thereupon to have withdrawn the Application in accordance with the
Rules of Court. It would not do so in my opinion, because the dispute as to the
respective rights of the Parties had been resolved, nor because its claim in the
Application "had been met", but because as a compromise the Applicant had been
prepared to accept the assurance as sufficient for its purposes.

The question whether a litigant will accept less than that which it has claimed in the
Court as a satisfaction of its purpose in commencing a litigation is essentially a matter
for the litigant. It is not a matter, in my opinion, which can be controlled by the Court
directly or indirectly. Indeed, it is not a matter into which the Court, if it confines itself to
its judicial function, ought to enter at all. Even if it be right that the Applicant would have
accepted what the Applicant regarded as a firm, explicit and binding undertaking to
refrain from further atmospheric tests, the Court is not warranted in deciding what the
Applicant ought to accept in lieu of its claim to the Court's Judgment. So to do is in
effect to compromise the claim, not to resolve the dispute as to a matter of right. There
is in any case, to my mind, obvious incongruity in regarding a voluntary assurance of
future conduct which makes no admission of any legal right as the resolution of a
dispute as to the existence of the legal right which, if upheld, would preclude that
conduct.

The departure from the language of the Application and the identification of the claim
which it makes with the object, objective or goal of the [p 448] Applicant in making the
 II. CUSTOMARY INTERNATIONAL LAW

Application thus provided, in my opinion, an erroneous base upon which to build the
Judgment.

Further, the Judgment, it seems to me, overlooks the fact that in all the references to
assurances in the correspondence and in the oral hearings the Applicant referred to an
assurance with the nature and terms of which it was satisfied. These references cannot
be read in my opinion as indi-cating such an assurance as might be regarded as
sufficient for Australia's purposes by any other judgment than its own.

The Judgment proceeds to hold that France by the communique of 8 June 1974, as
confirmed by the subsequent Presidential and Ministerial statements to the press, did
give to the international community and thus to Australia an undertaking, binding
internationally, not on any occasion subsequent to the conclusion of the 1974 series of
tests to test nuclear weapons in the atmosphere of the South Pacific.

My first observation is that this is a conclusion of fact. It is not in my opinion a

conclusion of law. The inferences to be drawn from the issuing and the terms of the
communique of 8 June 1974 are, in my opinion, inferences of fact, including the critical
fact of the intention of France in the matter. So also, in my opinion, is the meaning to be
given to the various statements which are set out in the Judgment. A decision as to
those inferences and those meanings is not in my opinion an exercise in legal
interpretation; it is an exercise in fact-finding.

But whether the conclusion be one of fact or one of law, my comments as to the judicial
impropriety of deciding the matter without notice to the Parties of the questions to be
considered, and without affording them an opportunity to make their submissions, are
equally applicable.

This is a very important conclusion purporting to impose on France an internationally

binding obligation of a far-reaching kind. Nothing is found as to the duration of the
obligation although nothing said in the Judgment would suggest that it is of a temporary
nature. There are apparently no qualifications of it related to changes in circumstances
or to the varying needs of French security. Apparently it is restricted to the South Pacific
area, a limitation implied from the fact that the source of the obligation is the
communique of 8 June 1974 issued in the context of the imminence of the 1974 series
of tests.

The purpose and intention of issuing the communique and subsequently making the
various statements is to my mind far from clear. The Judgment finds an intention to
enter into a binding legal obligation after giving the warning that statements limiting a
State's freedom of action should receive a restrictive interpretation. The Judgment
 II. CUSTOMARY INTERNATIONAL LAW

apparently finds the clear intention in the language used. I regret to say that I am unable
to do so. There seems to be nothing, either in the language used or in the
circumstances of its employment, which in my opinion would warrant, and certainly
nothing to compel, the conclusion that those [p 449] making the statements were
intending to enter into a solemn and far-reaching international obligation rather than to
announce the current intention of the French Government. I would have thought myself
that the more natural conclusion to draw from the various statements was that they
were statements of policy and not intended as undertaking to the international
community such a far-reaching obligation. The Judgment does not seem to my mind to
offer any reason why these statements should be regarded as expressing an intention
to accept an internationally binding undertaking rather than an intention to make
statements of current government policy and intention.

Further, it seems to me strange to say the least that the French Government at a time
when it had not completed its 1974 series of tests and did not know that the weather
conditions of the winter in the southern hemisphere would permit them to be carried out,
should pre-empt itself from testing again in the atmosphere, even if the 1974 series
should, apart from the effects of weather, prove inadequate for the purposes which
prompted France to undertake them. A conclusion that France has made such an
undertaking without any reservation of any kind, such, for example, as is found in the
Moscow Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and
Under Water, to which France is not a party, is quite remarkable and difficult to accept.

It is noticeable that the communique itself as sent to Australia makes no express

reference to atmospheric testing. The message sent by the French Embassy in
Wellington to the Government of New Zealand with respect to the communique, drew a
conclusion not expressed in the communique itself. Somewhat guardedly the Embassy
added the words "in the normal course of events" which tended to weaken the inference
which apparently the Embassy had drawn from the terms of the communique.

In this connection it may be observed that both the Government of Australia and the
Government of New Zealand in responding to the communique of 8 June 1974, virtually
challenged France to give to them an express undertaking that no further tests would be
carried out in the South Pacific. There has been ample opportunity for France to have
unequivocally made such a statement: but no such express statement has been
communicated to either Applicant. Without entering further into detailed criticism of the
finding of fact of which personally I am not convinced, it is enough to say that there is, in
my opinion, much room for grave doubt as to the correctness of the conclusion which
the Court has drawn. That circumstance underlines the essential need to have heard
argument before decision.
 II. CUSTOMARY INTERNATIONAL LAW

There is a further substantial matter to be mentioned in this connection. The Court has
purported to decide that France has assumed an international obligation of which
Australia has the benefit. It is this [p 450] circumstance which the Judgment holds has
resolved the dispute between France and Australia and caused it to cease to exist. But
the Court has not decided its jurisdiction as between these Parties. France has
steadfastly maintained that the Court has no jurisdiction. The Court's finding that France
has entered into an international obligation is intended to be a finding binding both
Parties to the litigation, France as well as Australia. But I am at a loss to understand
how France can be bound by the finding if the Court has not declared its jurisdiction in
the matter.

The Judgment seems to call in aid what it calls an inherent jurisdiction to provide for the
orderly settlement of all matters in dispute, to ensure the observance of the inherent
limitations on the exercise of the judicial function of the Court and to maintain its judicial
character. I do not wish to enter into a discussion of this very broadly stated and, as I
think, far-reaching claim to jurisdiction. Let it be supposed that the so-called inherent or
incidental jurisdiction as some writers call it would enable the Court to decide that it had
no jurisdiction or that an application was not admissible where this could be done
without deciding matters of fact; where the matter could be decided upon the face of an
admitted or uncontested document. In such a case the Court may be able to find a lack
of jurisdiction or of admissibility. But that is not the position here. The Judgment does
not merely deny the Applicant a hearing of the Application because of the
disappearance of the Applicant's case. The Court purports to decide a matter of fact
whereby to bind France to an international obligation. Assuming without deciding that
the claim to juris-diction made in paragraph 23 of the Judgment is properly made, that
jurisdiction could not extend in my opinion to give the Court authority to bind France,
which has stoutly and consistently denied that it has consented to the jurisdiction.

It may well be that even if the Court decided that it has jurisdiction under Article 36 (I)
and the General Act to settle a dispute between Australia and France as to their
respective rights in relation to nuclear testing, the consent of France given through
Article 17 may not extend to include or involve a consent by France to the determination
by the Court that France had accepted a binding obligation to the international
community not to test in the atmosphere again, a fact not involved in settling the dispute
as to their respective rights. But I have no need to examine that question for the Court
has not even decided that it has jurisdiction to settle the dispute between the Parties. I
am unable to accept that France is bound by the Court's finding of fact that it has
accepted an internationally binding obligation not again to test in the atmosphere of the
South Pacific. This is an additional reason why the dispute between Australia and
France should not be regarded as resolved.
 II. CUSTOMARY INTERNATIONAL LAW

For all these reasons, I am unable to accept the conclusion that, by [p 451] reason of
the communique of 8 June 1974 and the statements recited in the Judgment, the
dispute between Australia and France has been resolved and has ceased to exist.

Could the Court Properly Make an Order?

I would now consider the other reason for which a case may become "without object",
namely that in the existing circumstances no judicial Order capable of effect between
the Parties could be made.

Since the Application was lodged, France has conducted two series of atmospheric
nuclear tests in the South Pacific Ocean, one in 1973 and another in 1974. It has done
so in direct breach of this Court's indication of interim measures. It would seem to be
incontestable that as a result thereof radio-active matter, "fall-out", has entered the
Australian territory and environment. From the information conveyed by the Applicant to
the Court during the hearings, it seems that the Applicant has monitored its land and
atmosphere following upon such nuclear tests in order to determine whether they were
followed by fall-out and in order to determine the precise extent of such fall-out. I have
already indicated that these were future tests within the meaning of the Application.

Australia has not yet been required to make its final submissions in this case. These two
series of tests and their consequences were clearly not events for which the Applicant
had to make provision in its Application. It seems to me, therefore, that in the situation
that now obtains nothing said in or omitted from the Application or in its presentation to
the Court could preclude the Applicant from asking in its final submissions for some
relief appropriate to the fact that these nuclear tests, carried out in breach of the Court's
indication of interim measures, caused harm to Australia and its population and indeed
involved the expenditure of money; for though perhaps a minor matter, it can scarcely
be doubted that the monitoring to determine fall-out, if any, and its extent has involved
considerable expenditure, expenditure that would appear to me to be causally related to
the explosions carried out by France during the 1973 and 1974 series of tests.

It is observable that the request in the Application is not for a declaration that tests
which have already been carried out prior to 9 May 1973 were unlawful, though of
course in the nature of things a declaration that further tests after 9 May 1973 would be
unlawful would carry in this case the conclusion that those which had already taken
place were also unlawful. In the presentation of its case the Applicant said that "at the
present time" it did not seek any compensatory Order in the nature of damages. In truth
such a claim for damages made in the Application [p 452] would not easily have been
seen to be consistent with the nature of the claims actually made in the Application.
They, as I have pointed out, are for a declaration of right and an Order to prevent any
 II. CUSTOMARY INTERNATIONAL LAW

tests occurring after 9 May 1973; hence the request for the indication of interim
measures made immediately upon the lodging of the Application. Any claim to be paid
damages if made in the Application itself would in the circumstances necessarily have
been a claim in respect of past tests carried out by France, which were not directly
embraced in the claim made in the Application. Further, a claim for damages could
scarcely relate to tests which might yet, as of 9 May 1973, be carried out by France. If
the Applicant were to succeed there would be none, for the Applicant seeks to restrain
them as from the date of the lodgment of the Application. Further, the case was not one
in which the Applicant could ask for compensation as a substitute for an injunction, that
is to say on the assumption that the Applicant succeeded in obtaining a declaration and
failed to get an Order for injunction.

A claim, therefore, by the Applicant in its final submissions for relief appropriate to the
events of 1973 and 1974 would not be inconsistent with what has been said so far.
Indeed, such a claim would be related to the dispute on which the Application was
founded. Assuming the Applicant to be right in its contentions, the tests of 1973 and
1974 and their consequences in Australia constitute a breach of Australia's rights. Thus,
as I said earlier, it could not properly be said that a declaration made now in conformity
with the Application, would be doing no more than affording a reason for an Order of
injunction. A claim for relief related to what has occurred since the Application was
lodged and to the consequences of the tests of 1973 and 1974 would not transform the
dispute which existed at the date of the lodgment of the Application into another dispute
different in character: nor would it be a profound transformation of the character of the
case by amendment, to use the expression of the Court in the Societe Commerciale de
Belgique case (P.C.J.J., Series A/B, No. 78, at p. 173). Rather it would attract the
observations of the Court in that case to the effect that the liberty accorded to the
parties to amend their submissions up to the end of the oral proceedings must be
construed reasonably but without infringing the terms of the Statute or the Rules of
Court (op. cit.).

This ability of the Applicant to include in its final submissions to the Court a claim for
relief of the kind I have suggested indicates that a declaration by the Court in terms of
the Application, but made more specific by a reference to those nuclear tests which took
place in 1973 and 1974 and their consequences, is capable of affecting the legal
interests or relationship of the Parties. It could not properly, in my opinion, be said that
to make such a declaration would be an exercise outside the judicial function or that it
would be purposeless. It would be dealing with a matter
[p 453] of substance. The Court, in my opinion, could also make an Order for some form
of compensatory relief if such an Order were sought. Indeed, if the Applicant succeeded
on the merits of its claim, some Order with respect to the conduct and consequences of
the tests of 1973 and 1974 might well be expected.
 II. CUSTOMARY INTERNATIONAL LAW

In any case, and quite apart from any question of any additional claim for relief
contained in the Applicant's final submission, should the Applicant succeed on the
merits of its Application in respect of any of the first three bases of its claim, a
declaration by the Court in relation to that basis or those bases of claim, with possibly a
specific reference to the results in Australia of the carrying out by France of the 1973
and 1974 series of tests, would, in my opinion, be properly made within the scope of the
Court's judicial function. Quite apart from any damage caused by the 1973-1974 series
of tests, such a declaration could found subsequent claims by Australia upon France in
respect of past testing by France of nuclear weapons in the South Pacific.

It was said by the Court in the case of the Northern Cameroons (supra):

"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." (I.C.J. Reports 1963, pp. 33-34.)

The Court also said:

"Moreover the Court observes that if in a declaratory judgment it expounds a rule of

customary law or interprets a treaty which remains in force, its judgment has a
continuing applicability."

Success of the Applicant in respect of one or more of the first three bases of its claim
would establish that it had been in dispute with France as to their respective legal rights,
that its claims of right to which the Court's declaration related was or were valid, and
that France had been in breach of that right or those rights. To declare this situation, the
Judgment, in my opinion, would satisfy what the Court said in the quotations I have
made. The judgment would be stating the law in connection with a concrete case, where
the Parties remained in dispute as to their respective legal rights. The Court's
declaration would affect their existing legal rights and obligations. In addition, the Court
would be expounding a rule of customary law in relation to the territorial sovereignty of
the Applicant as a State in the international community.

A judgment affirming the Court's jurisdiction would involve a decision [p 454] that the
General Act remained in force and a decision that the Parties were in dispute as to their
respective rights within the meaning of Article 17 of the General Act. Thus an
 II. CUSTOMARY INTERNATIONAL LAW

interpretation would be placed on Article 17. Therefore a declaration could properly be

made and would have legal effect.

If the Applicant were also to succeed upon the fourth basis of its claim, again the Court
would be stating the law in a concrete case where the Parties remained in dispute, and
it would be expounding a rule of customary law, and the other comments I have made
would be applicable.

These results would follow, in my opinion, even if the Court, in its discretion, refrained
from making any immediate Order of injunction. It might do so because it was satisfied
that France would not again explode nuclear devices or test weapons in the atmosphere
of the South Pacific, either because the Court was satisfied that France had already
resolved not to do so, or because the Court was satisfied that France would respect the
declaration of right which the Court had made in the matter. But the Court, if it saw fit,
could in my opinion, with legal propriety, make an Order for injunction nonetheless. It is
a matter of discretion for a court whether or not to make an order of injunction where it
is satisfied that without the making of the order the conduct sought to be restrained will
not occur.

Lastly, for the course the Judgment takes there is no precedent. The case of the
Northern Cameroons (supra), in my opinion, cannot be called in aid to justify the
Judgment. In that case, what the Applicant claimed in its Application, the Court at the
time of giving Judgment held that it could not do. The Court was asked to declare the
breach of a trusteeship agreement which had ceased to be operative within a day or so
of the lodging of the Application. The Court held that a declaration of its breach during
the period of its operation could have no effect whatever between the Parties, there
being no claim for compensation for the breach.

Judge Sir Gerald Fitzmaurice, in his separate opinion, expressed the view that from the
outset of the case there was no justiciable dispute. Sir Gerald held that from the terms
of the Application it was clear that the Court was not able to make an Order in the case
affecting the legal relations of the Parties; therefore, in conformity with the definition he
adopted in the case, there was no relevant dispute. He expressed himself at page 111
of his opinion (I.C.J. Reports 1963) in terms which I have already quoted.

The contrast between the situation of the present case and that of the case of the
Northern Cameroons is apparent. Even for those who accept the validity of the Court's
decision in the case of the Northern Cameroons, that case affords, in my opinion, no
support for the present Judgment.
 II. CUSTOMARY INTERNATIONAL LAW

In my opinion, there is no discretion in this Court to refuse to decide a dispute submitted

to it which it has jurisdiction to decide. Article 38 of [p 455] its Statute seems to lay upon
this Court a duty to decide. The case of Northern Cameroons at best covers a very
narrow field in which no Order at all can properly be made by the Court.

Of course, if the dispute upon which it is sought to found jurisdiction has been resolved,
no Order settling it can be made. Thus, the Judgment in this case can only be justified if
the dispute between the Parties as to their legal rights has been resolved and ceased to
exist.

However, for all the reasons I have expressed, I can find no ground upon which it can
properly be held that the dispute between the Parties as to their respective rights has
been resolved or has ceased to exist, or that the Court could not, in the circumstances
of the case, properly make a judicial Order having effect between the Parties. The
Application, in my opinion, has not become "without object".

(Signed) G. E. Barwick