Office of the Prime Minister of New Zealand

ATTORNEY-GENERAL'S OPENING SPEECH AT HEARING COMMENCING ON 11 SEPTEMBER 1995

Introduction
I. Mr President and Members of the Court, as the Attorney-General for New Zealand I feel honoured and privileged to appear before you on this occasion to represent New Zealand in a matter which is of the greatest importance to it.

2. In 1973 one of my predecessors stood here in this highest Court in support of an application made by New Zealand. The proceedings concerned French nuclear testing in the South Pacific. The Government of New Zealand is here now, as it was then, in the spirit of the rule of law amongst nations.

3 Today New Zealand seeks to continue those same proceedings.

4. I recognise that last Friday the Court decided that the purpose of this public sitting is to enable New Zealand and France to inform the Court of their views on the following question:

2 "Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v France)?”

I will confine my speech, as will those who follow me for New Zealand, to that matter. It is necessary however to put the question asked by the Court into its factual and legal context and its regional context.

5. There are currently two documents before the Court - one is the Request for an examination of the Situation (the Main Request), the other is the Further Request for the Indication of Provision Measures (the Interim Measures Request).

6. The Main Request seeks a declaration from the Court that the conduct of the proposed nuclear weapons tests will constitute a violation of international law, or alternatively a declaration that it is unlawful for France to conduct the proposed nuclear tests unless an Environmental Impact Assessment is conducted according to accepted international standards. Unless such an Environmental Impact Assessment shows that the tests will not give rise to any radio-active contamination of the marine e4nvironment the tests should not proceed.

7. In view of the fact that the French Government has shown no willingness to reconsider its decision to break the moratorium on nuclear testing which it and other nuclear weapons states agreed on in 1992 or even to postpone the proposed series of nuclear weapons tests until the Court has had an opportunity to consider the matter, New Zealand is also requesting interim measures of protection from the Court. The need for interim measures has been sharply demonstrated by the nuclear detonation which took place at Mururoa on 5 September 1995.

8. New Zealand seeks an order from the Court to direct France to refrain from carrying out any further nuclear tests in the South Pacific Region.

9. The Court will be, aware of both the urgency and the gravity of the case before it. The nuclear weapons tests which were looming when New Zealand filed its Request for an Examination of the Situation and its Further Request for Provisional Measures have now, regrettably, become a reality with the news that France exploded the first of its series of nuclear weapons tests at Murorua on 5 September 1995.

10. New Zealand wishes to express its deep sense of regret and frustration at France’s decision to proceed with its first nuclear weapons test since 1991 despite the clearly expressed views of the international community that it should not do so. It is particularly regrettable that France should begin its nuclear tests before the Court has been able to consider the New Zealand Requests. New Zealand sincerely hopes that France will not again act in a way that prejudges the outcome of this case.

11. It should not be thought that the fact that the nuclear tests have commenced in any way removes the need for the Court to consider the matter. On the contrary, France's actions in carrying out a nuclear weapons explosion on 5 September and the continuing determination of France to proceed with further tests, scheduled to take place between now and May 1996, highlights the urgency of the case and the need for provisional measures.

12. For New Zealand and other South Pacific countries this is a matter of vital importance. members of the Court will be aware of the rioting and destruction which has occurred in Tahiti following the recent nuclear detonation. The countries of the South Pacific are gravely concerned at these developments. New Zealand approaches this Court as an appropriate and responsible forum which can respond to the legal aspects of the concerns of our region. By having such matters heard in considered and judicial manner, it is hoped that much of the tension and anger which lead to the rioting can be dissipated. It is far better that the opposition to nuclear testing is presented in this way rather than by civil disobedience.

13. In just a few days the leaders of the South Pacific countries will gather in Papua New Guinea for the annual meeting of the South Pacific Forum. Their attention will be focused on French nuclear testing, which is of grave concern to the countries and peoples of the region. Their attention will also focus on these proceedings in the expectation that the due process of international law can provide early resolution.

14. My Government is therefore grateful to the Court for the steps it has taken to give New Zealand an early hearing.

15. The New Zealand Government is most gratified by the appearance of France before the Court today. This enables the serious issues at stake to be dealt with in accordance with the procedures envisaged by the founders of the United Nations and this Court.

16. When France announced the resumption of nuclear testing on 13 June of this year the New Zealand Prime Minister immediately made a public statement in the New Zealand Parliament deploring the French decision and urging the French Government to reconsider its decision. The New Zealand Parliament then considered a resolution condemning the resumption of French nuclear testing in the South Pacific. The resolution was supported by all seven political parties represented in the New Zealand Parliament and was passed unanimously. Bringing the matter to the Court is not an attempt of the party in Government to seek political advantage. It is rather a measured and responsible action taken with the full participation and support of all political parties in Parliament including the government’s political opponents.

17. The next day on 15 June the New Zealand Permanent representative at the United Nations Conference on Disarmament made a similar announcement, stating in particular that New Zealand rejected the argument that further tests are necessary to ensure the safety of France’s nuclear arsenal. before the Comprehensive Test Ban Treaty enters into force. He also observed that there was no justification that France could advance that would be consistent with the commitment that it had undertaken that pending the entry into force of the Comprehensive Test Ban Treaty “the nuclear weapon States should exercise utmost restraint.”

18. On 4 July 1995 the New Zealand Prime Minister addressed a letter to the French President, referring to the statement made by the Prime Minister in Parliament, calling attention to the strong public reaction in New Zealand and indicating that the French decision had cast a pall over the relationship between New Zealand and France that would last so long as the nuclear tests continue. A further letter was sent by the New Zealand Prime Minister to President Chirac on 13 July 1995 stating among other things that "Small island nations dependent for their livelihood on the sea find the risk associated with testing unacceptable. Aside from the possibility of accidents there are concerns about the long-term consequences for the marine environment. Countries of the South Pacific are unanimous in their opposition to nuclear testing in the region.”

19. New Zealand hoped greatly that diplomatic representations and realisation by France of the strength of public opposition in the world, including, it may be said, 60 per cent of its own people, would lead to the abandonment of French plans to resume testing.

20. In this hope New Zealand was encouraged by its recollection of the fact President Chirac's predecessor President Mitterand had on no fewer than three occasions expressly linked the continuance of French restraint in nuclear testing to the exercise of similar restraint by the United States and Russia.

21. It was, therefore, a considerable change of position that the clearly stated and firmly held policy of one President should now be repudiated by his successor. That change in position had to be carefully considered by the New Zealand Government, the more so given the warm nature of New Zealand's relationship with France and the ties which the two countries had in common.

22. Eventually the Prime Minister of New Zealand, on 17 August 1995 had to write to the President of France in the following terms: “We have earnestly sought to appraise all the avenues of action that are open to the New Zealand Government in order to further our view-point and to protect the national and international interests that we consider important. Needless to say, in this process we seek to act moderately in a manner consistent with the bilateral relationship between our two countries which, I agree with you, is both cordial and permanently based.” The letter then went on to inform the French President that New Zealand had decided to have - urgent recourse to the opportunity afforded by the Judgment of 20 December 1974 in the Nuclear Tests Case.

23. In short, Mr President and Members of the Court New Zealand’s response to the French announcement of 13 June, as it finally emerged in legal form when we lodged our Request for an Examination of the Situation of 21 August is one which New Zealand deferred until New Zealand had thoroughly explored with France the possibility that France would change its mind.

Background
24. Mr President, as the Court will be aware New Zealand's concerns about the legality and safety of nuclear testing in the South Pacific are long-standing.

25. New Zealand is not returning to this Court on a sudden impulse. There has been continuous opposition, on New Zealand's part to nuclear testing in the region. This was not broken by France’s decision, in 1974, to stop testing in the atmosphere in the South Pacific.

26. Our opposition to nuclear testing in the region is of long standing. Amongst other things, it reflects concerns for the South Pacific environment. It has also reflected the strong attachment of New Zealand, other South Pacific countries, and most of the international community, to nuclear non-proliferation and the goal of nuclear disarmament.

27. Since 1972 New Zealand has taken a lead in tabling a resolution each year at the United Nations General Assembly calling for a comprehensive test ban treaty to be negotiated. In 1993, for the first time, and again in 1994, the resolution was adopted by consensus. The negotiations on a comprehensive test ban treaty underway in the Conference on Disarmament ,on have been very much welcomed by New Zealand. The potential impact of resumed nuclear testing in the South Pacific, on the progress towards that ban has of course heightened alarm over the French decision. There is considerable concern that renewed French nuclear testing may jeopardise these negotiations.

28. Mr President, New Zealand's opposition to nuclear testing and nuclear weapons has also been expressed in domestic legislation, the New Zealand Nuclear Free Zone, Disarmament and Arms Control Act, which was enacted by the Parliament of New Zealand in 1987. Amongst other things that Act creates a nuclear free zone within New Zealand and gives effect at the national level to our related international obligations.

29. The New Zealand Act therefore complements the South Pacific Nuclear Free Zone which was established in 1986 by the entry into force of the Treaty of Raratonga. That treaty reflects the collective will of South Pacific nations.

30. The 1973 case, under which New Zealand now seeks to return to the Court related not just to New Zealand itself but also to the Cook Islands, Niue and the Tokelau Islands (now called “Tokelau”). The same applies to the Requests before the Court today. This is because New Zealand’s acceptance of the Statute of the Court embraces these areas of the Pacific.

31. The Cook Islands and Niue are self-governing states in free association with New Zealand - having carried out acts of self determination under United Nations supervision.

32. Both governments have given their full support to New Zealand’s action in bringing the matter before the court.

33. New Zealand continues to have responsibility for the administration of Tokelau under Committee of 24 supervision. Tokelau has indicated its support for New Zealand’s stance on France’s decision to resume nuclear testing in the South Pacific in a letter from the Council of Faipule to the Administrator of Tokelau. The Council of Faipule is made up of one representative from each of the three atolls that make up Tokelau.

34. New Zealand has made available to the Court copies of each of these letters.

35. When my predecessor appeared here in 1973 in the earlier phase of this case, he told the Court that New Zealand's concerns regarding nuclear testing were strongly shared by the peoples of the South Pacific Region. He referred to a regional identity based on ethnic and cultural ties, and to the emerging collective role reflected in the recently formed South Pacific Forum, which is the annual meeting of leaders from self governing countries in the region.

36. This regional identity has grown in the intervening period. The South Pacific Forum had seven members in 1973. In 1995 the membership has grown to 15.

37. The region's leaders, speaking through the South Pacific Forum and bilaterally, have consistently opposed nuclear testing in the South Pacific, and the region's use for nuclear purposes generally. This stance has been expressed in a great number of resolutions adopted in the Forum's annual meeting.

38. Forum Communiques and resolutions over the years show not only strong political opposition to nuclear testing in the region but also serious concerns about the risks to the environment as a result of the tests. This concern for the environment is reflected in numerous requests that have been made by the region for full and open scientific access to the testing sites. Regrettably, these requests have never been satisfactorily met by France.

39. It was with great relief therefore, that the South Pacific Forum welcomed the decision of France in 1992 to cease nuclear testing in the region. The Forum’s strong wish - and, indeed its expectation given the public statements by the French President - was that this decision would lead to a permanent end to nuclear testing in the South Pacific. There is deep disappointment in the region that the moratorium on testing has now been broken.

40. Traditionally this region has been dependent on the marine environment for sustenance and survival. Many Pacific peoples five on small islands and atolls where land resources are very limited. This has lead to a strong dependence on the oceans.

41. The value placed on the maritime environment was demonstrated by the conclusion in 1986, of the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, known as the Noumea Convention. This Convention, which entered into force on 22 August 1990 reflects the collective wish of all counties in the region to take concrete steps to protect the environment and to engage in this process those nuclear powers which are in the region. Indeed, it was particular concern about radioactive contamination which triggered the negotiations on the convention. The Region welcomed France's ratification on 17 July 1990.

42. While there are many environmental conventions around the world, the Noumea Convention is perhaps unique in that it specifically addresses the issue of radioactive contamination from nuclear testing. The parties expressly obliged to “take all appropriate measures to prevent, reduce and control pollution in the Convention Area which might result from the testing of nuclear devices.” There are also other quite specific requirements including those relating to Environmental Impact Assessments.

43. Mr President this language was very carefully chosen. It is not intended to condone testing in the Region. But it did impose quite specific obligations on any Party which has tested in the past, and any which might fly in the face of regional wishes in testing in the future.

44. It is clear that the only way France could carry out its obligations under the Convention would be to do an Environmental Impact Assessment. I can also do no better, Mr President than to repeat the words used by the French Foreign Minister, M. Herve de Charette in an open letter to the Australian public published in the4 Sydney Morning Herald on 28 July 1995: “openness is the sole remedy against fear,” he said. France has stated many times that it is committed to a policy transparency in relation to its nuclear testing. This assurance has been given time and again at both the political and diplomatic level. But that transparency has never been fully evident, and the concerns of New Zealand and the other countries of the region have not been fully satisfied.

45. It is important to the region to have an Environmental Impact Assessment, because France is conducting its underground nuclear tests in a unique environment. Whereas other underground nuclear tests have taken place in continental land masses, France is conducting its test in the fragile marine environment of two small atolls. The atoll structure is porous, and water saturated and interacts directly with the oceans.

46. Indeed I would suggest that the reason France has chosen Mururoa and Fangataufa for its current testing sites has nothing to do with their inherent suitability for underground nuclear testing. Rather, it was because the infrastructure for conducting nuclear tests was already in place as a legacy of the atmospheric tests conducted on the atolls until 1974.

47. This quest for information about the tests has been a central feature of the regions approaches to France on the issue. In particular the region has pressed for access to the testing sites by scientific missions.

48. While some access has been allowed on three occasions, in each instance access has been strictly controlled, and the missions have been narrowly focused and of limited durations. My government would like to make clear that none of the scientific investigations permitted by France to date satisfy New Zealand or the rest of the region about the safety of the tests. Nor do they meet France's obligations under general international law or the Noumea Convention to conduct an Environmental lmpact Assessment. There has never been a comprehensive EIA carried out in accordance with contemporary environmental standards.

49. On the contrary the information which is available regarding the risk of contamination surrounding underground nuclear testing at Mururoa has further fueled the fears and legitimate concerns of states in the region.

Summary of New Zealand case on continuity
50. Mr President I turn now with your leave, to explain in summary form the nature and legal objective of the Requests that have been made to the Court. This summary will be developed by my colleagues present with me now: the Solicitor-General of New Zealand, Mr John McGrath, QC; the President of the New Zealand Law Commission, Sir Kenneth Keith QC; the Legal Advisor of the Ministry of Foreign Affairs and Trade, Mr Don MacKay; and Professor E Lauterpacht, CBE, QC.

51. The first point which will be made is that this is not a new case. Rather New Zealand is relying upon the right reserved to it by the Court in the previous phase of this case in 1974.

52 When New Zealand commenced this case France was conducting atmospheric nuclear weapons tests in the South Pacific Region. After protesting strongly against nuclear weapons tests for a period of 10 years New Zealand took the decision to bring legal proceedings against France in this Court.

53. One basis of the proceedings commenced in 1973 was that the nuclear tests were in violation of international law in that they violated the rights of all members of the international community to the preservation of the terrestrial, marine and aerial environment from unjustified artificial radio-active contamination. At that time the New Zealand Government sought from the Court a determination that the conduct of nuclear tests in the South Pacific region that gave rise to radioactive fallout constituted a violation of New Zealand’s rights under international law and that these rights would be violated by any further such tests.

54. Because of the urgency of the situation New Zealand also sought interim measures of protection from the Court in the form of an order that France refrain from conducting any further nuclear test that gave rise to radioactive fallout until the Court had decided the case.

55. This request for interim measures of protection was granted and the Court indicated that the Parties should take no action to aggravate the dispute or to prejudice the rights of the other party and that in particular the French Government should avoid nuclear tests causing the deposit of radioactive fallout on the territories of New Zealand, the Cook Islands, Niue or the Tokelau Islands. At the same time, the Court ordered that the next stage of the proceedings should be addressed to the questions of the of the jurisdiction of the Court to entertain the dispute and the admissibility of the Application. Notwithstanding the 1973 Order France conducted further atmospheric nuclear tests later in 1973 and 1974.

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