NUCLEAR TESTS

(AUSTRALIA V. FRANCE)
Ruth Syra Sy
 PUBLIC INTERNATIONAL LAW

DECLARATION MADE RULE OF PACTA SUNT THE CONCEPT OF

1 THROUGH UNILATERAL 2 SERVANDA IN THE LAW 3 ERGA OMNES
ACTS MAY HAVE THE OF TREATIES IS BASED OBLIGATIONS REFERS
EFFECT OF CREATING ON GOOD FAITH, SO TO SPECIFICALLY
LEGAL OBLIGATIONS. ALSO IS THE BINDING DETERMINED
CHARACTER OF AN OBLIGATIONS THAT
INTERNATIONAL STATES HAVE
OBLIGATION ASSUMED TOWARDS THE
BY UNILATERAL INTERNATIONAL
DECLARATION. COMMUNITY AS A
WHOLE.
FACTS:
In 1972, France conducted atmospheric nuclear tests in the South Pacific.
Australia and New Zealand, in separate but identical proceedings before the
International Court of justice, claimed that the tests were inconsistent with
international law, and had caused radioactive fallout damage in their countries.
They instituted proceedings against France, founding the jurisdiction of the
Court on the 1928 General Act for the Pacific Settlement of International
Disputes, and articles 36 and 37 of the Statute of the Court.
FACTS:
In 1973, France sent a letter to the Court stating that it considered the Court
not competent and did not accept its jurisdiction.
On the request of Australia and New Zealand for interim measures of
protection, the Court indicated that the non-appearance of France could not by
itself prevent the Court from indicating interim measures.
And that, as there was a prima face ground for the Court's jurisdiction and the
possibility of uncorrectable damage to Australia and New Zealand by
radioactive fallout could not be excluded, France should, pending a final
decision, avoid nuclear tests causing the deposit of radioactive fallout on
Australian territory.
FACTS:
In 1974, the Court held that Australia and New Zealand's Claims no longer had
any object and that the Court was therefore not called upon to give a decision,
as France made a declaration that it had no intention to hold further nuclear
tests in the South Pacific, and consequently, the dispute had accordingly
disappeared.
ISSUE:
Whether a declaration made through a unilateral act has effect of creating
legal obligations?
RULING :
• Yes. 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. Declarations of this kind may be, and often are, very specific.
When it is the intention of the State making the declaration that it should
become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if given publicly, and with an
intent to be bound, even though not made within the context of international
negotiations, is binding.
RULING :
• With regard to the question of form, it should be observed that this is not a
domain in which international law imposes any special or strict
requirements. Whether a statement is made orally or in writing makes no
essential difference, for such statements made in particular circumstances
may create commitments in international law, which does not require that
they should be couched in written form.
RULING :
• One of the basic principles governing the creation and performance of
legal obligations, whatever their source, is the principle of good faith. Trust
and confidence are inherent in international cooperation, in particular in an
age when this cooperation many fields is becoming increasingly essential.
Just as the very rule of pacta sunt servanda in the law of treaties is based
on good faith, so also is the binding character of an international obligation
assumed by unilateral declaration. Thus interested States may take
cognizance of unilateral declarations and place confidence in them, and
are entitled to require that the obligation thus created be respected.
RULING :
• The unilateral statements of the French authorities were made outside the
Court, publicly and erga omnes, even though the first of them was
communicated to the Government of Australia. As was observed above, to
have legal effect, there was no need for these statements to be addressed
to a particular State, nor was acceptance by any other State required.