French Nuclear Testing and the International Court of Justice

I’ve been doing a bit a research into Australia’s relationship with the World Court for a paper I delivered today at a conference on Whaling in the Antarctic Before the International Court of Justice.  I plan to put the paper up on SSRN once it is polished and has complete citations.  In the meantime, I thought I’d post some thoughts in the paper about an exercise that I led back in 1995 as a brand new law teacher at the University of Melbourne Law School.  This took place as New Zealand planned to reopen the 1974 judgement in its Nuclear Tests Case(Australia sought to intervene in New Zealand’s case in 1995, but for other reasons did not seek to reopen the separate 1974 judgment in its parallel case).  As I discussed today, here is what happened:

At the time of New Zealand’s attempt to reopen the case, Australia also pioneered a form of what might be called the “back door amicus brief” — something which has become a feature in the WTO Appellate Body.  The back door brief is a process whereby a non-state party’s written submissions are attached to the submission of a state party Appellant or Appellee in the WTO Appellate Body. It then forms an integral part of the state party submission which must be considered by the Appellate Body.

Concerned by the resumption of French nuclear testing, I drafted a letter and memorandum challenging the legality of the resumption of testing as planned by France.  This was joined by a number of well-known international lawyers including Philip Alston, Hilary Charlesworth, Ian Brownlie, Oscar Schachter, Alexandre Kiss, John Dugard, Martti Koskenniemi, Harold Koh, and so on.  This was provided to the Australian Minister for Foreign Affairs, who in early August transmitted both the letter and memo via normal diplomatic channels by DFAT to French President Jacques Chirac.  And, although neither the letter nor memo was appended to Australia’s application to intervene, the arguments they contained were reflected in Australia’s position on the legal issues contained in its application.

ChiracHere is the letter addressed to Jacques Chirac (left), as signed by an eminent cast of supporting international lawyers and environmental lawyers.  Chirac Letter – 1995.  A copy of the memo can be downloaded from SSRN.  Here is the letter from Gareth Evans (below), the Australian Minister for Foreign Affairs, agreeing with the substance of the arguments and agreeing to transmit the letter and memo to Chirac via normal diplomatic channels. Evans Letter – 1995
Evans

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