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1.

) NUCLEAR TEST CASES,


a. Australia vs France

OVERVIEW:
On 9 May 1973, Australia and New Zealand each instituted proceedings against France concerning tests of nuclear
weapons which France proposed to carry out in the atmosphere in the South Pacific region. France stated that it
considered the Court manifestly to lack jurisdiction and refrained from appearing at the public hearings or filing any
pleadings. By two Orders of 22 June 1973, the Court, at the request of Australia and New Zealand, indicated provisional
measures to the effect, inter alia , that pending judgment France should avoid nuclear tests causing radioactive fall-out
on Australian or New Zealand territory. By two Judgments delivered on 20 December 1974, the Court found that the
Applications of Australia and New Zealand no longer had any object and that it was therefore not called upon to give
any decision thereon. In so doing the Court based itself on the conclusion that the objective of Australia and New
Zealand had been achieved inasmuch as France, in various public statements, had announced its intention of carrying
out no further atmospheric nuclear tests on the completion of the 1974 series.

Brief Fact Summary. Australia and New Zealand (P) requested France (D) to put an halt to atmospheric nuclear test
in the South Pacific.

Synopsis of Rule of Law. Declaration made through unilateral acts may have the effect of creating legal obligations.

FACTS: A series of nuclear tests was completed by France (D) in the South Pacific. This action made Australia and
New Zealand (P) to apply to the I.C.J. demanding that France (D) cease testing immediately. Before the case could be
completed, France (D) announced it had completed the test and did not plan any further test. So France (D) moved for
the dismissal of the application.

ISSUE: May declaration made through unilateral act has effect of creating legal obligations?

HELD: Yes. Declaration made through unilateral acts may have the effect of creating legal obligations. In this case, the
statement made by the President of France must be held to constitute an engagement of the State in regard to the
circumstances and intention with which they were made. Therefore, these statement made by the France (D) are
relevant and legally binding. Application was dismissed.

b. New Zealand vs France

FACTS: This case was brought to the International Court of Justice on 9 May 1973 when New Zealand instituted
proceedings against France in terms of a dispute concerning the legality of atmospheric nuclear tests conducted by
France in the South Pacific region.

The government of New Zealand asked the court to declare that the nuclear tests run by the French Government in the
South Pacific which lead to radioactive fallout were a violation of New Zealand’s right under international law. The
French Government stated that the court was “manifestly not competent” in the case and that it could not accept its
jurisdiction, further requesting the removal of the case from the court list. New Zealand filed a memorial and presented
argument at public hearings supporting that the court had jurisdiction. France did not file counter-memorial and was
not represented at the hearings. The Court then rejected France’s request to remove the case from the court list and
affirmed its jurisdiction in this case. When the case was heard in 1974, France had issued numerous public statements
within that year that it planned to hold no further nuclear tests in the South Pacific.

New Zealand, the plaintiff, claimed that its rights under international law were violated by the French government’s
nuclear testing in the South Pacific.
France, the defendant, argued in the first place that the court did not have sufficient competence to hear the case.
When this was dismissed, France contended that it no longer had plans to continue testing in the South Pacific and
therefore, no further ruling on the claims of the plaintiff could take place.

ISSUES:
a) Whether or not the public statements made by the Office of the President of the French Republic created certain
legal obligations for the French Government
b) Whether or not a dispute still exists between New Zealand and France that the international court can adjudicate?

RULING:
The Court ruled that a dispute no longer existed at the time of the case hearing between New Zealand and France.
The court recognized that public statements made by the Office of the President of the French Republic and other
government officials since the case originated, conveyed an announcement of the French government to cease nuclear
testing after the completion of its 1974 series. These public statements in effect created certain legal obligations for the
French Government, the binding character of which is based on “good faith” and that “interested states are entitled to
require that the obligation be respected.”

In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the
world at large its intention to terminate these tests. It was bound to assume that other states might take note of these
statements and rely on their being effective. The validity of these statements and their legal consequences must be
considered within the general framework of the security of international intercourse, and the confidence and trust which
are so essential in the relations among states.
Thus, the court stated, in a vote of 9 to 6, that the objective of New Zealand for the total cessation of nuclear-
atmospheric testing by the French Government had been reached and there no longer existed a dispute for which the
court could contemplate and adjudicate.

2.) CASE CONCERNING SECTIONS 301-310 OF THE TRADE ACT OF 1974 (EU VS USA, 1999)

FACTS:
On 25 November 1998, the EC requested consultations with the US in respect of Title III, chapter 1 (sections 301-310)
of the US Trade Act of 1974 (the Trade Act), as amended, and in particular sections 306 and 305 of this Act. The EC
alleged that:
 By imposing strict time limits within which unilateral determinations must be made and trade sanctions taken,
sections 306 and 305 of the Trade Act do not allow the US to comply with the rules of the DSU in situations where
a prior multilateral ruling under the DSU on conformity of measures taken pursuant to implementation of DSB
recommendations has not been adopted by the DSB.
 The DSU procedure resulting in a multilateral finding, even if initiated immediately after the end of the reasonable
period of time for implementation, cannot be finalised, nor can subsequent DSU procedure for seeking
compensation or suspension of concessions be complied with, within the time limits of sections 306 and 305.
 Title III, chapter 1(sections 301-310) of the Trade Act, as amended, and in particular sections 306 and 305 of the
Act, are inconsistent with Articles 3, 21, 22 and 23 of the DSU; Article XVI:4 of the WTO Agreement; and Articles
I, II, III, VIII and XI of GATT 1994.
 The Trade Act nullifies and impairs benefits accruing, directly or indirectly, to it under GATT 1994, and also impedes
the objectives of GATT 1994 and of the WTO.

On 26 January 1999, the EC requested the establishment of a panel. At its meeting on 17 February 1999, the DSB
deferred the establishment of a panel.

Panel and Appellate Body proceedings


 Further to a second request to establish a panel by the EC, the DSB established a panel at its meeting on 2 March
1999. Brazil; Canada; Colombia; Costa Rica; Cuba; Dominica; Dominican Republic; Ecuador; Hong Kong, China;
India; Israel; Jamaica; Japan; Korea; St. Lucia and Thailand reserved their third-party rights. On 24 March 1999,
the EC requested the Director-General to determine the composition of the Panel. On 31 March 1999, the Panel
was composed. The report of the panel was circulated to Members on 22 December 1999. The Panel found that
Sections 304(a)(2)(A), 305(a) and 306(b) of the US Trade Act of 1974 were not inconsistent with Article 23.2(a) or
(c) of the DSU or with any of the GATT 1994 provisions cited. The panel noted that its findings were based in full
or in part on US undertakings articulated in the Statement of Administrative Action approved by the US Congress
at the time it implemented the Uruguay Round agreements and confirmed in the statements by the US to the panel.
The panel stated therefore that should those undertakings be repudiated or in any other way removed, its findings
of conformity would no longer be warranted. The DSB adopted the panel report at its meeting on 27 January 2000.

CONCLUSIONS
 In the light of the statutory and non-statutory elements of Sections 301-310, in particular the US undertakings
articulated in the Statement of Administrative Action approved by the US Congress at the time it implemented the
Uruguay Round agreements and confirmed and amplified in the statements by the US to this Panel, we conclude
that those aspects of Sections 301-310 of the US Trade Act brought before us in this dispute are not inconsistent
with US obligations under the WTO. More specifically we conclude that
a) Section 304 (a)(2)(A) of the US Trade Act of 1974, is not inconsistent with Article 23.2(a) of the DSU;
b) Section 306 (b) of the US Trade Act of 1974, irrespective of whether we accept the US or the EC approach in
respect of Articles 21.5 and 22 of the DSU, is not inconsistent with either
o - Article 23.2(a) of the DSU; or
o - Article 23.2(c) of the DSU;
c) Section 305 (a) of the US Trade Act of 1974, is not inconsistent with Article 23.2(c) of the DSU;
d) Section 306 (b) of the US Trade Act of 1974 is not inconsistent with Articles I, II, III, VIII and XI of GATT 1994,
as they have been referred to by the EC.