French Nuclear Testing and Article 41--Another Blow to the Authority of the Court?

Authors

Jerome B. Elkind

First Page

39

Abstract

On the 23rd of July 1973, at 9:00 a.m. New Zealand time, members of the crew of the New Zealand vessel, Otago, witnessed a nuclear explosion on one of the islands in the Mururoa atoll. The blast, a small one in the low kiloton range, marked the beginning of the eighth series of French atmospheric nuclear tests, which have been conducted in the Pacific since July 1966 when France moved its nuclear test site from the Reggane Firing Ground in the Sahara. Since that time the French nuclear tests have been a perennial sore spot in the diplomatic relations between France and the nations of the Pacific. The matter has, in fact, been the subject of notes exchanged between New Zealand and France and between Australia and France since 1963 when press reports indicated France's intention to move its test sites to the Pacific.

In the period of twenty-seven years since nuclear tests have begun, atmospheric testing has been the subject of much diplomatic discussion. Nuclear testing has been the subject of five multilateral treaties and at least nineteen Resolutions of the United Nations General Assembly. Atmospheric nuclear tests have also been condemned in international forums outside the United Nations...

The Nuclear Tests Cases present some exceedingly interesting legal questions. The first one is the jurisdictional basis for the interim order itself. The second question involves the effects of France's failure to participate and to obey the order. Since France failed to appear, New Zealand and Australia may call upon the Court to decide in their favour under article 53(1). Article 53(2), however, requires the Court to first "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." In other words, the Court may not enter a default judgment based solely on the fact of nonappearance of one of the parties. Consequently, the Court has directed that the next written proceedings shall be addressed to the question of jurisdiction.

Recommended Citation

Jerome B. Elkind, French Nuclear Testing and Article 41--Another Blow to the Authority of the Court?, 8 Vanderbilt Law Review 39 (1974)
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol8/iss1/2