AUSTRALIA v. FRANCE & NEW ZEALAND v.

FRANCE
ICJ Reports

December 20, 1974

petitioners Australia and New Zealand
respondents France
summary New Zealand and Australia instituted proceedings against France due to the latters
conduct of nuclear testing in the South Pacific. Both were asking for a court order
declaring that France shall not carry out any further tests. The ICJ foundthat it need
not decide on the matter due to assurances from the French government that
atmospheric nuclear tests would end. It is well-recognized that declarations made by
way of unilateral acts, concerning legal or factual situations, may have the effect of
creating legal obligations. Nothing in the nature of a quid pro quo, nor any
subsequent acceptance, nor even any reaction from other States is required for such
declaration to take effect. Neither is the question of form decisive. The intention of
being bound is to be ascertained from an interpretation of the act. The binding
character of the undertaking results from the terms of the act and is based on good
faith interested States are entitled to require that the obligation be respected. Once the
court has found that a State has entered into a commitment concerning its future
conduct, it is not the Courts function to contemplate that it will not comply with it.

facts of the case

The two disputes stemmed from Frances nuclear testing in the South Pacific, which entailed the release of
radioactive matter into the atmosphere.
New Zealand instituted proceedings against France before the ICJ, arguing that it was affected by
radioactive fallout from the atmospheric tests and that this constituted a violation of its rights under
international law. It contended that the ICJ had jurisdiction based on the General Act on the Pacific Settlement
of International Disputes (1928) and Articles 36 and 37 of the Statute of the Court.
Likewise, Australia filed a case against France on the basis that the tests caused fallout of measurable
quantities of radioactive matter on Australian territory. It asked the ICJ to order that the French republic
should not carry out any further tests.
In its defense, France insisted that the ICJ had no jurisdiction over the cases (France did not even appoint
an agent to represent it in the said cases) and requested the removal of the cases from the ICJs list. France also
contended that the radioactive matters from the tests were too insignificant.

issues
1. Whether or not the cases should be removed from the ICJs list.NO
2. Whether or not a dispute exists between the parties. NO

ratio
1. Summary removal from the list would not be appropriate. France has failed to appear before the ICJ, but
the court must still proceed and reach a conclusion on the basis of the arguments and evidence presented
before it by the petitioners.
2. The ICJ need not decide on the matter due to assurances from the French government that atmospheric
nuclear tests would end.
According to the ICJ, an assurance from France that the nuclear tests would finally stop resolves the
dispute. The court considered public statements made by French authorities concerning future tests:
a. Statement of the French President that in view of the stage reached in carrying out the French nuclear
defense program, France will be in a position to pass on to the stage of underground explosions as soon as the
series of tests is completed.
1

b. Statement by the French ambassador to New Zealand that the 1974 atmospheric tests would be the last
of its kind.
c. Statement by the French Minister of Defense that underground testing will commence the following
year.
It is well-recognized that declarations made by way of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal obligations. Nothing in the nature of a quid pro quo, nor
any subsequent acceptance, nor even any reaction from other States is required for such declaration to take
effect. Neither is the question of form decisive. The intention of being bound is to be ascertained from an
interpretation of the act. The binding character of the undertaking results from the terms of the act and is
based on good faith interested States are entitled to require that the obligation be respected.
France, in conveying to the world its intention to terminate its atmospheric tests, was bound to assume that
other States might take note of these statements and rely on their effectivity. It is true that France has not
recognized that it is bound by any rule of international law to terminate its tests, but this does not affect the
legal consequences of the statements in question.
As a court of law, the ICJ is called upon to resolve existing disputes between States. These disputes must
continue to exist at the time the court makes its decision. In these cases, the disputes having disappeared, the
claim of petitioners no longer has any object and there is nothing on which to give judgment.
Once the court has found that a State has entered into a commitment concerning its future conduct, it is
not the Courts function to contemplate that it will not comply with it. However, if the basis of the judgment
were to be affected, the applicant could request an examination of the situation in accordance with the
provisions of the Statute.