Office of the Prime Minister of New Zealand

Nuclear Weapon Testing

Mr President, as earlier indicated, I should like to begin this final part of New Zealand's presentation by referring to one particular aspect of nuclear weapons where there have recently been reprehensible developments. I refer to the nuclear tests conducted by China and France.

As this Court will be well aware from New Zealand's recent Request concerning the case filed against France in 1973, New Zealand has been especially concerned about French nuclear testing, which takes place in our region of the world, far from metropolitan France, and in a fragile and vulnerable marine environment. New Zealand recognises that all countries have the right to ensure their security. That is a fundamental fight at international law. But the right does not operate in a vacuum. It is not wholly a matter for the subjective determination of each individual state. It must be exercised within the bounds of the international legal framework.

New Zealand's attitude to nuclear weapons testing has been abundantly clear. As my predecessor, the then Attorney-General, told this Court in 1973, from the earliest days of the development of nuclear weapons, New Zealanders, along with the world community, have viewed them with the deepest apprehension. In the United Nations, New Zealand was, in 1958, associated with a number of countries in sponsoring a resolution in the General Assembly designed to promote conditions in which a comprehensive nuclear test ban could be realised. In 1959 we joined our voice to the appeal of African countries to France not to carry out its announced intention of beginning nuclear weapon tests in the Sahara. In 1961 we deplored the Soviet Union's breach of the moratorium observed since 1958 by three nuclear powers, a breach which led to the resumption of nuclear testing soon after by the United States and the United Kingdom. In 1962 New Zealand voted along with an overwhelming majority of Governments to condemn all nuclear weapon tests and to demand their cessation. That record has continued to this day.

Indeed, it has already been noted that New Zealand has taken a lead for over twenty years in tabling an annual resolution at the United Nations General Assembly, which was adopted by consensus in the last two years, calling for a comprehensive nuclear test ban treaty to be negotiated. The negotiations on a comprehensive nuclear test ban treaty under way in the Conference on Disarmament 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.

Mr President, New Zealand's opposition to nuclear testing, and nuclear weapons, has been strongly shared by other countries of the South Pacific Region. I referred to this two months ago when I appeared before this Court.

The region's fifteen 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 meetings. Forum communiqués and resolutions over the years show strong political and environmental opposition to nuclear testing in the region.

This opposition, and the fears that go with it, are solidly grounded. Traditionally, this region has been vitally dependent on the marine environment for sustenance and survival. Many Pacific peoples live on small islands and atolls where land resources are very limited. This has led to a strong dependence on the oceans. The region cannot afford to have this environment damaged.

The region's strong opposition to nuclear testing was reflected in the applications by four Pacific Island States, and Australia, to intervene in the recent proceedings which New Zealand brought before this Court. Needless to say, this support was very much welcomed by New Zealand. New Zealand also very much welcomes the participation of other states from the region in these present proceedings.

But the strong international opposition to nuclear testing is not of course confined to the South Pacific Region alone.

Mr President, I have already referred to the obligation on nuclear-weapon States under Article VI of the Nuclear Non-Proliferation Treaty and to the decision of the parties to the treaty in May 1995 to extend it indefinitely. That decision would not have been secured without agreement between the nuclear-weapon and non-nuclear-weapon States that a Comprehensive Nuclear-Test-Ban Treaty be concluded in 1996 and that the nuclear-weapon States exercise "utmost restraint" in the meantime.

Already, non-nuclear-weapon States Parties to the treaty feel a real sense of betrayal. Within a month of the compact being reached, China had conducted a nuclear test and France bad announced its intention to terminate its three-year-long moratorium on nuclear testing by recommencing nuclear tests in the South Pacific. Since then, it has conducted three nuclear explosions in the region, the third less than two weeks ago. New Zealand, and many other countries, have expressed strong opposition to the actions by France in resuming nuclear testing in our region. The two nuclear testing states have provided no justification that could support a new recourse to nuclear explosions. Their actions are contrary to favourable developments in the international security environment in recent years. They appear determined to proceed with further tests regardless of the representations of other states or the damage that their actions are causing to the nuclear non-proliferation regime. Such actions undermine the integrity and credibility of that regime. They amount to an anachronistic and retrograde step.

French nuclear tests are, moreover, contrary to international law. I need hardly remind the Court of the views that New Zealand put to it very recently that French nuclear tests are also contrary to the binding obligations on France under Article 16 of the 1986 Noumea Convention for the Protection of the Natural Resources and Environment of the South Pacific Region. France is obliged under that provision to conduct a prior Environmental Impact Assessment of the potential effects of major projects which might affect the marine environment so that appropriate measures can be taken to prevent any substantial pollution of, or significant and harmful changes within, the Convention Area. At the biennial meeting of the parties to this Convention, held in Apia in Western Samoa only last month, all the South Pacific Forum member countries present at the meeting supported a Declaration to that effect.

In paragraph 64 of its Order of 22 September 1995, the Court said that its present Order "is without prejudice to the obligations of States to respect and protect the natural environment, obligations to which both New Zealand and France have in the present instance reaffirmed their commitment". In his dissenting opinion in that case, Judge Koroma commented that: "Under contemporary international law, there is probably a duty not to cause gross or serious damage which can reasonably be avoided, together with a duty not to permit the escape of dangerous substances.... Given this trend, it can be argued that nuclear testing as such is not only prohibited, but would be considered illegal if it would cause radioactive fallout".

Judge Weeramantry, in his dissenting opinion, said that the case raised, "as no case ever before the Court has done, the principle of intergenerational equity - an important and rapidly developing principle of contemporary environmental law". He went on to refer to the evidentiary difficulty in cases of possible environmental damage and noted that: "The law cannot function in protection of the environment unless a legal principle is evolved to meet this evidentiary difficulty, and environmental law has responded with what has come to be described as the precautionary principle - a principle which is gaining increasing support as part of the international law of the environment". Mr President, it is submitted that these are matters of very great importance to the countries of the South Pacific, given the reliance of small island states on their marine environment for their livelihood and the damage that underground nuclear testing has been doing to the tiny atolls of Mururoa and Fangataufa. Countries of our region share a justified fear of further radioactive contamination from French nuclear testing.

That the tests are contrary to the wishes of the whole region also finds legal expression in the Treaty of Rarotonga of 1985 establishing the South Pacific Nuclear Free Zone. The South Pacific region, in its various institutions, operates on the basis of consensus, and cooperation is marked by the principle of good neighbourliness. As New Zealand said in this Court two months ago:

"[In] Europe...... France has accepted quite onerous obligations to carry out Environmental Impact Assessments by way of several regional treaties. ....[If] France were to conduct its nuclear testing in its European territory, would it first carry out an EIA? The answer must, of course, be "yes". It is inconceivable that France would test in Europe without first carrying out an EIA. One wonders..... why France is not prepared to accept the same obligations to its Pacific neighbours as it does to its European neighbours".

International law is founded to an important extent on the principle of the sovereign equality of states, as it is on the principle of good faith. Both principles were declared to be "basic principles of international law" by the United Nations General Assembly in 1970, on its 25th Anniversary when it adopted unanimously the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the United Nations Charter. In respect of the principle of sovereign equality of states, the Declaration provides that "Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States". In its Judgment in the Military and Paramilitary Activities case, the Court placed weight on the Declaration as evidence of the opinio juris supporting the existence of customary international law. By not complying with its international obligations in the case of nuclear testing, not least under the Noumea Convention, France is acting in bad faith and contrary to fundamental principles of international law as to the solemn and binding nature of treaty commitments. The Court would be making a major contribution to the nuclear non-proliferation regime, and to international security generally, were it now to find that any testing of nuclear weapons should be regarded as no longer permissible at international law.

As I have already noted, New Zealand welcomes the very recent joint announcement of France, the United Kingdom and the United States of their intention to become party in due course to the Protocols to the Treaty of Rarotonga. That will be a major step forward. But that decision, by itself, cannot satisfy the demands of the region that France stop its nuclear testing forthwith.

New Zealand has also welcomed the decision of France to sign the Comprehensive Nuclear Test Ban Treaty when it is adopted by the Conference on Disarmament next year, and to support a zero threshold on nuclear tests. We have noted France's explanation for resuming nuclear testing while the negotiations on the treaty continue. But again, in New Zealand's view, the actions of the two nuclear testing States are difficult to reconcile with participation in good faith in the treaty negotiations. Their actions will have been exposed as an act of bad faith were they to result in disruption to the negotiations, in particular if any of the other three nuclear-weapon States that have been respecting the moratorium on nuclear testing were to take similar action. It should be recalled that the international community has been close to securing a comprehensive nuclear test ban in the past, only to have it slip from our grasp.

Conclusions

Mr President, I would like to begin my final comments by observing that the Nuclear Non-Proliferation Treaty was the most significant of the Arms Control treaties. Twenty-five years ago, when it entered into force, people thought that the abolition of nuclear weapons was about to begin, in much the same way as they anticipated the elimination of biological weapons upon the entry into force of the Biological Weapons Convention in 1975 and as they look forward to the elimination of chemical weapons once the Chemical Weapons Convention of 1993 enters into force.

It is significant to note that the two latter treaties do not countenance any use of the weapons concerned, even those that may be judged to be proportionate or in self-defence. The intentions were clear; these weapons are different - they are weapons of mass destruction - and are to be outlawed in their entirety. The intentions of the Nuclear Non-Proliferation Treaty were no different. If those intentions had been met, there would have been no need to have negotiated a variety of other treaties to prohibit the possession, testing, deployment, threats or uses of nuclear weapons in various respects. Those treaties, which also reflect the disappointment of non-nuclear-weapon States at the failure of the Nuclear Non-Proliferation Treaty to deliver the elimination of nuclear weapons, and the fact that the nuclear-weapon States continue to maintain nuclear weapon stockpiles, do not in any way change the nature and force of the commitment on the nuclear-weapon States to fully implement the objectives of the treaty contained in Article VI. That commitment has even greater force now that the parties have decided to make the treaty permanent.

The security interests of all states are engaged in the regulation of weapons of mass destruction. All live in the nuclear shadow. It is not therefore open to the nuclear-weapon States to argue that the obligations on them in the case of nuclear weapons, whether under treaty law or customary international law, are different from or less than other states on the ground that their interests, as the possessors of nuclear weapons, are most directly affected. None of the nuclear-weapon States have expressed any wish to see nuclear weapons spread to other states, but that would be the logical corollary of any such arguments on their part.

Mr President, the large body of international law to which we have referred at some length demonstrates the extent of regulation that already exists in respect of nuclear weapons and the prohibitions of various kinds on their threat or use. There is a large amount of state practice in the area of nuclear disarmament and arms control; there are relevant prohibitions in the law on resort to force; there is all of the applicable international humanitarian law- and there are the still emerging areas of international law such as protection of the environment. Much of this law is undergoing continuing development, and the pressure continues to mount, as the New Zealand Prime Minister said in his address to the Special Commemmorative Meeting of the United Nations less than three weeks ago, "for a world without nuclear weapons". As he said on that occasion, this is not an impossible goal.

Mr President, the Nuclear Non-Proliferation Treaty, together with the range and weight of other international law that bears on this issue, leaves only one possible answer to the requests that have been put to the Court. There is only the one answer that the Court can give if it is to decide the matter in accordance with that law, and not undermine it. It is clear to New Zealand that the international community has come more and more strongly to the view that no realistic scenarios or case can any longer be mounted in support of the proposition that the threat or use of nuclear weapons under any circumstance - and their testing - would be in conformity with international law. Rather, the international community expects that nuclear weapons will now be eliminated. In short, New Zealand believes that the threat or use of nuclear weapons should be illegal. The Court should, in our view, reach a decision to that effect.

Such a declaration of illegality would serve as a powerful further step to the elimination of nuclear weapons. There are huge numbers of these weapons. We cannot wish them away. Only the countries that have them can get rid of them. We recognise that this may take time. Agreements will be required on associated steps, first the completion of the Comprehensive Nuclear Test Ban Treaty and then a ban on the production of uranium and plutonium for nuclear weapons. The Court needs to play its part in helping to set the scene for that to happen.

Mr President, over two hundred and fifty years ago, a famous French philosopher, Charles Louis de Montesquieu, wrote with considerable prescience in "Les Lettres persanes":

"Ever since the invention of gunpowder ... I continually tremble lest men should, in the end, uncover some secret which would provide a short way of abolishing mankind, of annihilating peoples and nations in their entirety".

Montesquieu's personal fear came true and several generations have come to share it, not as a possibility, but as a reality.

All states must energetically pursue their common commitment to abolish these weapons, and this High Tribunal has an important role to play in this process. The potential consequences of failure, for all humanity, are too great.