GENEVA MASTER OF ADVANCED STUDIES IN INTERNATIONAL DISPUTE SETTLEMENT

THE JUDICIAL
FUNCTION IN THE
NUCLEAR TESTS CASE
GRASPING PEACE AND SECURITY OR
AVOIDING EROSION OF THE JUDICIAL
AUTHORITY?
Lesther Antonio Ortega Lemus
14/12/2009

“Courts do not exist to answer legal questions just for the sake of having an answer. They
are specialized institutions. Acceptance of their judgments depends upon a subtle
complex of factors. Institutional characteristics limit the range in which they can
effectively exercise authority. If judges go beyond those limits, the result is likely to be
not vindication of the law, but erosion of judicial authority” A. Chayes
 The International Judicial Function in the ICJ’s Nuclear
Tests Case (New Zealand v. France) 1973

The International Court of Justice: characterization of its function and roles

The International Court of Justice was established as the “principal judicial organ of the United
Nations”1, successor of the Permanent Court of International Justice and one of the six
principal organs of the organization2. It started working by 1946 and since then it has handled
146 cases3.

The frame of the Court’s competence and functioning are both established by the Charter of
the United Nations (Chapter XIV, Articles 92-96) and the Statute, which “is based upon the
Statute of the Permanent Court of International Justice and forms an integral part of the present
Charter”4.

The Charter itself establishes in Article 36 a general rule whereby “…legal disputes should… be
referred by the parties to the International Court of Justice in accordance with the provisions of
the Statute of the Court”. The other side of the relationship is given by Article 38 of the
Statute when it establishes that the Court’s function is “…to decide in accordance with
international law such disputes as are submitted to it…” The logical equation then is that legal
disputes should be referred to the ICJ, which has to decide them in accordance with
international law. Consequently, the Statute establishes, by means of its Chapter II, the
competence of the judicial organ: the Court can entertain all cases which States parties to the
Statute5 refer to it and all matters specially provided for in the Charter or in treaties and
conventions in force.

The Court, while discharging its duties, faces a number of questions, not all of them legal in
nature. The high standing of the Court attaches certain value to the judgments rendered and
opinions given by it and therefore requires of the bench awareness of and subsequently
respect for the tasks endowed in it and in every one of the Judges individually. Expressions like
judicial propriety, judicial restraint, and protection of the judicial character, etcetera have
been used in connection to the latter.

It has been said that the Court, although established to adjudge on legal disputes submitted
to it by the parties, carries out a number of “roles” which are distinguishable and should be
mentioned:

 the dispute settlement role,

 the supervisory role,
 the advisory role,
 the legislator role6, and

1
Charter of the United Nations, Art. 92
2
Ibid. Art. 7.1
3
http://www.icj-cij.org/docket/index.php?p1=3
4
Supra 1.
5
Article 35 of the Statute of the Court establishes the sole exception.
6
A.S. Muller et al. (eds.) The International Court of Justice: its future role after fifty years. Martinus
Nijhoff Publishers. The Netherlands 1997

2
  the creative (?) role7.

The dispute settlement role usually refers to the discharge of its duty to deliver judgments on
contentious cases. The supervisory role, has been suggested, should pertain to the “judicial
review” of decisions and actions of other bodies (Security Council, General Assembly, other
courts and tribunals…). The advisory role refers to the discretionary power that the Court has
to give advisory opinions to authorized entities8. The legislator role points out one of the
tasks that have been taken by the Court, i.e. the development of international law through its
decisions. Finally, the creative (?) role, as pointed out by McWhinney inter alia, has to do with
the power that the Court has to adopt its own Rules, according to Article 30 of the Statute of
the Court.

It is only the first one of those “roles” and how it was discharged in the Nuclear Tests case with
respect to the so-called judicial function that falls within the scope of this paper.

A dispute settlement organ

When considering the role that the Court plays in the international arena as a dispute
settlement organ, attention must be paid to the underlying mission of the Court as part of the
United Nations Organization.

The United Nations Charter (the Charter) and the Statute of the Court (the Statute) are the
two most relevant conventional sources to trace the above mentioned. The former deals with
international peaceful settlement of disputes and the role of the Organization in general,
through the following articles:

Article 1

The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: … to bring about
by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or
situations which might lead to a breach of the peace;

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act
in accordance with the following Principles…

3. All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.

7
McWhinney, Edward. Judicial Settlement of International Disputes: jurisdiction, justiciability and
judicial law-making on the contemporary international court. Martinus Nijhoff Publishers. The
Netherlands 1991
8
Articles 96 of the Charter & 65.1 of the Statute

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Article 1 of the Charter clearly states that one (and the first) purpose of the United Nations
(the International Court of Justice being one of the six principal organs of it, and the principal
judicial organ) is to maintain international peace and security and for that purpose it should
bring about adjustment or settlement of international disputes by peaceful means, in
conformity with the principles of JUSTICE and INTERNATIONAL LAW. Additionally, Article 2
of the said Charter states the “principles” that the Organization and its Members should
follow in pursuit of the purposes set out in Article 1, and as third principle it establishes that all
members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and JUSTICE, are not endangered.

It is generally recognized that resort to international courts is one of the options available to
sovereign States to settle their international disputes by peaceful means (as can be shown by
its inclusion in Article 33 of the Charter). Necessarily, being the International Court of Justice a
Court of Law, International Law WILL be applied (Article 38 para.1 of the Statute) and
inasmuch as possible justice shall be grasped by the Court when rendering a decision. In this
regard it should not be forgotten that the Court as an organ of the United Nations has to
comply with the Charter while discharging its functions, including the obligation to not
endanger justice and that peaceful settlement of disputes shall be made in conformity not
only with International Law but with justice as well, regardless of the fact that notoriously
there is no inclusion whatsoever of the term justice in the Statute besides when associated
with the name of the Court.

But, when facing other type of considerations (extra-legal), does the Court strictly follow the
aforementioned principles? Adjudication can combine both international law and justice in
itself; but can there be situations where the Court applies neither international law nor justice
into its handling of a dispute?

The Court has been described as a “partner in preventive and persuasive diplomacy”9 in the
sense that it can act jointly or parallel with “political” organs of the UN in solving a
circumstance that might comprise disputes of the most various natures (political, economical,
military, legal, social, etcetera). The same source points out that resort to the Court (or even
the threat to do so) might serve as a deterrent to the continuance of the dispute and actually
incentives the parties to reach a solution by negotiation, before instituting proceedings or
even while the process is taking place. Nevertheless, the author points out that the Court,
being a court of law, must act “solely to legal considerations”10.

The Judicial Function

The Court consistently signals that it has to adhere to its judicial function, more or less in all its
cases. It usually points what falls beyond its limits and what would not appertain to it. It was
only until the 1960’s that some discussion took place11 on that matter but ever since, through

9
Schwebel, S./Prager, D. The International Court of Justice as a Partner in Preventive Diplomacy. UN
Chronicle 36 (2) (1999), pp.56-58
10
Ibid.
11
The International Judicial Function: Discussion in James Crawford and Margaret Young (eds), The
Function of Law in the International Community: An Anniversary Symposium, (2008)

4
the academic writings, cases and dissenting opinions, one can trace and try to identify the
concept and nature of the so-called judicial function of the International Court of Justice.

Malcom Shaw has stated that for the Court to exercise its judicial function means “…describing
the law in an independent fashion for the purposes of the particular dispute”12. Judge
Weeramantry wrote that “[t]he judicial function in resolving disputes and other matters duly
referred to it and in deciding in accordance with international law as applied and interpreted by
the Court is the Court’s function and its very raison d’être… What pertains to the judicial function
is the proper sphere of competence of the Court…”13

Nagendra Singh, as quoted by Shaw, indicated that the “exercise of the judicial function
involves the administration of law, which is defined in terms of the application of the law to the
facts of the case; interpretation of law; the development of law within the limits prescribed to
meet new situations; the just exercise of the discretionary powers in assessment of facts to the
requirements of law and the final adjudication or settlement of the dispute at hand”14. But “[t]he
Court must exercise prudence in assuming jurisdiction and in limiting itself strictly to
administering the law”15.

In the Northen Cameroons case (Cameroon v. United Kingdom), the Court stated that “[t]he
function of the Court is to state the law, but it may pronounce judgment only in connection with
concrete cases where there exists at the time of the adjudication an actual controversy involving
a conflict of legal interests between the parties”16.

The Nuclear Tests Case (New Zealand v. France) 1973

In the aforementioned case, the applicant, the Government of New Zealand submitted to the
Court the following request:

“New Zealand asks the Court to adjudge and declare:

“That the conduct by the French Government of nuclear tests in the South Pacific
region that give rise to radio-active fall-out constitutes a violation of New Zealand’s
rights under international law, and that these rights will be violated by any further
such tests”17

The filing of the case followed a period of at least ten years of complains expressed by New
Zealand to the French Government related to the atmospheric nuclear explosions conducted
in the South Pacific region, without obtaining on that time frame the cessation of the tests.

France, on the other hand, as expressed by means of a letter, considered the Court to be
“manifestly not competent in the case; that it could not accept the Court’s jurisdiction; and that
accordingly the French Government did not intend to appoint an agent, and requested the Court

12
Muller et al. Op. Cit. p.248
13
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures,
Order of 14 April 1992, I.C.J. Reports 1992, p.114 Dissenting Opinion Judge Weeramantry p. 166
14
Muller et al. Op. Cit. p.246
15
Gross, Leo. Limitations upon the Judicial Function. AJIL Vol. 58 No. 2 1964 p.429
16
Ibid. p.418
17
Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p.457, Para. 11

5
to remove the case from its list”18. The Court indicated interim measures that were disregarded
by France.

After opening the questions of jurisdiction and admissibility, and those being satisfied both by
writing and in a public hearing by the Applicant, the Court dismissed the case stating as
justification that the claim of New Zealand had no object any longer and that the Court was
therefore not called upon to give a decision thereon.

The reason for this being that the French Government, through a series of declarations made
by high ranking officers (President, Minister of Defense…) had, in the view of the Court,
undertaken the obligation not to perform atmospheric nuclear tests in the region any more.
The Court interpreted the object of the claim and the conduct of each party to reach the
conclusion that the former was satisfied by means of the latter.

The judicial function vis-à-vis the Nuclear Tests Case

This case rests together with a few other emblematic examples where the Court decided not
to decide. Without stating all the facts or details of the arrêt, it is necessary to establish the
main salient features of it:

What did the Court do?

1st The Court took the task of identifying the existence of a dispute (which is not the same
question as if the Application concerned a legal dispute capable of being justiciable, but rather
if the dispute that in the beginning was identifiable in the case, still existed, arriving at the
conclusion that it didn’t) before entering into the discussion of whether it had jurisdiction or
not and if the claim was admissible or not.

2nd The Court then arrogated for itself the power of “interpreting” the submissions of the
Applicant (changing its nature and scope19), and actually giving to most of the very-clear-
submission of New Zealand the character of reasons advanced in support of the main claim
and therefore setting it aside.

3rd The Court interpreted autonomously the object and purpose of the claim (to obtain
assurance from the Respondent that no more atmospheric tests would be conducted) and
determined how it would be satisfied without referring it to any of the submissions or
assertions made or consulted to the Applicant (thus ignoring the possible desire, purpose and
uses of a declaratory judgment)

4th The Court decided that the declarations made by the Respondent gave enough assurance
to the Applicant that the tests were over and therefore the object of the claim, which
accordingly to the Court was the cessation of the tests, was achieved and consequently there
was no need to continue litigating.

18
Ibid. Para. 4
19
Nuclear Tests Case. Dissenting Opinion Onyeamada et al. p.494

6
…to draw the fine line between safeguarding and abdicating the judicial function

The international judicial function, that is to adjudge in accordance with international law
disputes between international law subjects, is precisely required to do so: to give a decision.
It has been stated that one of the grounds to exercise judicial restraint is where the legal rules
to be applied to the subject-matter of the case are still non-existent or quite inadequate
causing the matter at issue to be deemed to remain in the political domain (possibly this view
would enter into conflict with Lauterpacht’s rejection of a non-liquet) . Another ground is that
the political factors involved in a case are so predominant that the judicial examination over
the case by a court is regarded as exceeding the proper bounds inherent in a judicial body20.

But returning to the first of the grounds, it has also been said that “[t]he requirement of a
decision is inherent in the judicial process” and that “[t]he whole point of submission to
jurisdiction is to gain a final and authoritative disposition of a dispute which is not dependent on
the parties’ attitudes but on the application of law”21. Therefore “[t]he parties are entitled to
expect… a purely legal decision and it is in accordance with the primary function of the Court that
it should, in the first instance, render a decision of that character…”22.

This last paragraph can exemplify why, in most of the cases, States go to the Court: usually
States go to the ICJ to end an international dispute that has found no solution through other
means. It seems to be sort of a “last resort”, a last step in a “ladder” view of methods of
pacific settlement of disputes (“…If a State has decided to resort to judicial settlement of
disputes, the normal impression that judicial settlement of disputes should be the last resort
in international relations…”23). Sometimes, almost everything else is tried before going to
Court. In some others, it is the only solution once direct negotiations are not fruitful
(sometimes negotiations are not even established or things do not move further than un-
replied or unsatisfactorily-replied diplomatic notes) or clearly show that there will be no
achievable solution.

But it is quite complex and difficult to establish in a generic way why every State goes to the
ICJ. Mainly because there are many reasons to do so: some do it to gain or maintain a certain
image among the international community (as a peace and law loving nation), some to get rid
of a problem that is creating internal conflict or do not want to decide by its political or
legislative organs due to the unpopularity of the decision, and some others say that resort to
Court comes from (in certain cases) external pressure i.e. pressure from the international
community. It has also been admitted that States institute proceedings (or announce that
they will) with the purpose of putting another State in the spotlight or under stress: a certain
threat is perceived when the divergent State in a dispute raises the warning that it will resort
to the ICJ. As stated above, the psychological effect of that “threat” might be the sole
catalyst that settlement by negotiation or other means need.

20
Muller et al. Op. Cit. p.132
21
Scobbie, Ian. The Theorist as Judge: Hersh Lauterpacht’s concept of the international judicial
function. 2 EJIL 1997 p.264-298
22
Ibid.
23
Andreas Zimmermann et. al (Eds), The Statute of the International Court of Justice: a commentary.
Pp.858

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In any case, it can be concluded at this point that while resort to the ICJ has, in the surface
level, one very clear object, being it to obtain a decision that solves a legal controversy, there
might be other objects pursued by the parties which might not belong to the law realm but of
the political one. Therefore, the use that parties may do of the judgment itself can vary
significantly.

In this sense the Court “should not concern itself ‘with the aftermath of its judgment’”24. This
stands true as much as the submission does not entail the request of a so-called execution or
mandatory judgment, or the instituting instrument opened the gate for a secondary
proceeding whereby the execution or compliance of the judgment ought to be assessed by it
(if turns into a dispute itself). In such cases the Court is called to solve a linked-but-new
dispute that arises from the compliance or execution of the judgment itself, bringing forth the
Court’s concern with what the parties do with the decision, but only by their submission25.

How should all of the above be projected on the case under study? In the Nuclear Tests case,
the Court might have overlooked why New Zealand resorted to it (properly seisin it and
establishing valid titles of jurisdiction); in its own way the Court made up its mind on why the
Applicant instituted proceedings against the Respondent, what it was looking for and what it
expected to do with the judgment once rendered. The Court found that the goal that the
Applicant (according to the Court and the Court alone!) was pursuing had been attained by
relying on the declarations of the Respondent’s Government, and decided that there was no
point to continue the litigation any further (running the risk of leaving a dispute unsettled,
that could be later aggravated or spawn again, as it did).

Was the Applicant not entitled to a decision? Was it outside of the Court’s judicial function to
provide for satisfaction in the same sense as in the Corfu Channel decision? Why would the
Applicant be deprived of a declaratory judgment “the use of which… lies on the political and not
on the judicial plane” 26(situation recognized in Para.59 of the Judgment!)?

Why did the Court “reshape” the Applicant’s submission? Was the Court authorized to go that
far? It is admitted that in its advisory competence the Court might interpret the question
posed to it, but in contentious cases, where the basis of jurisdiction lies in the consent of the
parties, this might not be so easily understood as an “inherent” power, especially since the
New Zealand advanced its request in form of a submission: the Court had very little room to
interpret the wording, and even more so, in the light of later declarations made by the non-
appearing respondent, which were never incorporated to the case as evidence.

Did the Court perform its “dispute settlement role” in a wider scope than in the adjudicative
mode? As stated before, the Court is part of the UN system and as such must abide by its

24
Gross. Op. Cit. p.420
25
The Gabčikovo-Nagymaros Project Case of 1993, between Hungary and Slovakia gives a good example
of such a special agreement that entitles the parties to involve the ICJ in the execution of the decision
and to ask for a second judgment if the execution turns into a dispute itself.
26
Gross. Op. Cit. p.420

8
principles and purposes, one of those being the maintenance of peace and security, task
primarily vested in the Security Council, but not exclusively!

Does peace and security amount to international harmony?

“While judicial settlement may provide a path to international harmony in circumstances

of conflict, it is none the less true that the needless continuance of litigation is an
obstacle to such harmony”27.

The Court, in the paragraph quoted, states that judicial settlement may provide a path to
international harmony in circumstances of conflict. Firstly, one has to assume that the Court
recognizes the limitations of adjudication in the realm of peace and conflict, when it says that
it may lead to international harmony when in conflict. This statement must be presumed as
true on a theoretical level. Its validity proven by history is not within the scope of this paper
and therefore shall not be discussed any further. But although it could be taken as valid, at
least on “paper” the international community has stressed that resorting to and the solving of
international disputes through adjudication should not be considered as an unfriendly act.
Attention should be directed to the text laid down in the “Manila Declaration on the Peaceful
Settlement of International Disputes”:

“Recourse to judicial settlement of legal disputes, particularly referral to the International

Court of Justice, should not be considered an unfriendly act between States”28

Why would the Court decide that, if continued, that specific litigation could become an
obstacle for “international harmony”?

International harmony seems to be a rather different and non-synonymous term to

international peace, at least not to the “international peace and security” referred to in the
Charter, which context more accurately regards to situations of aggression and conflict, in
contrast to a disagreement of a legal nature as the existence of a principle of international law
would be. It appears to the undersigning writer that “international harmony” has a certain
diplomatic connotation: an ease in inter-State relations. But, as much as this concept stands
to be corrected, it is not unusual in history that this “uneasiness” leads to an international
conflict of armed aggressions’ magnitude. Therefore it might just be a difference of degree
rather than a difference of nature. Again, this conception stands to be corrected.

Is it possible to assert that the Court privileged “international harmony” (according to it

reached through the unilateral commitment of France) over the desire of one of the parties to
obtain a declaratory judgment?

27
Nuclear Tests Case. Para.61
28
Annex General Assembly Res. 37/10 para.II (5)

9
Can the Court give a higher standing to international harmony over the principle of justice?
International peace and security seem to be the main objectives of the UN as an organization,
to which the ICJ serves as its main judicial organ, and if this is held as true, then the Court
could do so. But the affirmation turns a bit uncertain when one reads the Charter’s
requirements with regards to international peace and security (outside Ch VII), since principles
of justice and international law are placed as the guidelines in achieving international peace
and security in every case.

Could the Court, being a Court of law mandated to apply international law when entertaining
cases properly to its attention, and not a political organ (which might be sensitive of other
considerations outside the law), privilege a way to achieve “international harmony” (which
the writer contends that is the same genus as international peace and security) not through
the principles of justice and international law, but by terminating litigation (which was
pursuant to a decision of law) adducing that the continuance of which could become an
obstacle to the aforementioned harmony?

Undoubtedly resorting to the Court serves more purposes in the political or sociological
aspects than the mere legal consequences of its judgments. This certainly has to be taken into
consideration, but when there is a fair perspective to expect a judgment that answers a
correctly and concisely presented submission (that contemplates a legal point) can the
primary function of the Court (to be a Court) be set aside? Or should the Court fold back its
judicial function and privilege the more general dispute settler role? Assessing such decision
is undoubtedly not an easy task when contemplating the situation from the text, principles
and purposes of the Charter, all of which have to be constantly remembered by the bench of
the Court. Or is it? The Court has stressed so many times that its judicial function is primary
and it has to safeguard it. It is dubious to affirm that adjudicatory tasks can be subsumed into
generic dispute settlement tasks.

…needless continuance of litigation

What can be understood as needless continuance of litigation?

The first answer to give, almost as a compulsion, is that it is when the litigation is not needed
any more because if it reaches a further level it will have no effect, purpose or reason or that it
has reached a level where nothing else can be expected of it.

Was that the situation in the case discussed in the above paragraphs? Was there really no
purpose in furthering the procedure and answer the submission of the Applicant? Particularly
since it advanced a genuine question regarding the existence or not of a principle of
international law that gave rights to New Zealand that, subsequently, were being violated by
France by its active conduct and could be violated in the future, not only in the specific
situation portrayed in the case, but anywhere else and between any other actors. There was a
purpose in answering the question far beyond just stopping the tests! Not asking for

10
reparations or compensation unquestionably cannot justify the uselessness of rendering a
declaratory judgment.

Or perhaps it was a question of quieta non movere?

Self-preservation could be argued as well. Avoiding confrontation with political authority in a

case where two nuclear powers (China was engaged in the same conduct) almost for sure
would have ignored any decision rendered by the Court could have been a way to protect its
dignity and high standing.

Thomas Franck argued that maybe the judgment was a display of good legal tactics for it
“produced a decision by the Court that definitively interprets the legally binding character of the
unilateral French declarations and precludes the possibility that France can later claim to have
been misunderstood” especially since “it is the Court, not the Applicants, which acted on reliance
of the French unilateral declarations, relinquishing jurisdiction and determining the case to be
moot”29. The threatening warning that the Court made in Para.63 of the judgment in case
France tried to escape its commitment should serve as evidence on that behalf…

29
Franck, Thomas. Word made Law: The Decision of the ICJ in the Nuclear Tests Cases. AJIL Vol. 69
No. 3 1975 p.618

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Table of contents
The International Court of Justice: characterization of its function and roles ............................ 2
A dispute settlement organ .......................................................................................................... 3
The Judicial Function .................................................................................................................... 4
The Nuclear Tests Case (New Zealand v. France) 1973 ................................................................ 5
The judicial function vis-à-vis the Nuclear Tests Case .................................................................. 6
What did the Court do? ............................................................................................................. 6
…to draw the fine line between safeguarding and abdicating the judicial function ............... 7
Does peace and security amount to international harmony? .................................................. 9
…needless continuance of litigation ...................................................................................... 10

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