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Legal Aspects of the French Nuclear Tests

Published online by Cambridge University Press:  28 March 2017

Anthony A. D’Amato
Anthony A. D’Amato*
Affiliation:
Wellesley College
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Extract

The question of the legality of France’s nuclear test series, commenced on July 2, 1966, in French Polynesia, will probably stop short of any definitive third-party determination and be subjected only to general community appraisal. Yet even at the level of scholarly or diplomatic argumentation it is important to inquire into the competing interests and legal factors involved in the atmospheric tests. This is true not only because differing political expectations or even measures might depend on the consensus as to the legality or illegality of the French tests, but also because the precedential value of the tests will be of greater or less force depending upon whether there is agreement at the time of the tests that France was or was not acting within her international legal rights.

Type
Research Article
Information
American Journal of International Law , Volume 61 , Issue 1 , January 1967 , pp. 66 - 77
Copyright
Copyright © American Society of International Law 1967

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References

1 Jacobs, “Tahiti Learns About the Bomb,” 46 N. Y. Times Magazine 172 (Dec. 5, 1965).

2 Ibid

3 Christian Science Monitor, Dec. 1, 1964, p. 13, col. 5.

4 See Capet, “Death for Tahiti,” 212 Atlantic Monthly 73 (July, 1963).

5 McDougal and Schlei, “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” in McDougal and Associates, Studies in World Public Order 763 (1960).

6 See Fliess, , ‘ ‘ The Legality of Atmospheric Nuclear Tests—A Critical View of International Law in the Cold War,” 15 U. Florida Law Bev. 21 (1962).Google Scholar

7 Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, [1963] U. 8. Treaties 1313; T.I.A.S., No. 5433 (effective Oct. 10, 1963); 57 A.J.I.L. 1026 (1963).

8 U.N. General Assembly res. 1762 A (XVII).

9 See, e.g., New York Times, April 21, 1966, p. 1, col. 6.

10 E.g., Gallois, The Balance of Terror (1961); see also Aron, The Great Debate (1965).

11 The foregoing considerations do not rely on “state of the art “ factors which, from a military and technological point of view, are even more compelling. For example, super-Power anti-missile (ABM) defense technology has at least a ten-year lead time over France's and the gap is widening. As between the United States and the Soviet Union, ABM systems would probably not be interpreted by decision-makers as sufficiently effective or reliable, due to concurrent anti-anti-missile technology and the advancing art of decoys. But as between a super-Power and a minor nuclear Power such as France, the super-Power's ABM system would constitute such an effective defense that the minor nuclear Power's nuclear capability would never even rise to the status of a limited credible deterrent.

12 See 1 Oppenheim, International Law 119-123 (Lauterpacht, 8th ed.).

13 Reflected in General Assembly Res. 1514 (XV) on the Granting of Independence to Colonial Countries and Peoples.

14 Journal Official de la Republique Franchise 9177-9179 (Oct. 5, 1958).

15 Omitting Guinea.

16 United Nations Non-Self-Governing Territories, Summaries of Information Transmitted to the Secretary-General During 1946 (1947).

17 U.N. General Assembly res. 66 (I).

18 See General Assembly res. 742 (VIII). 19 See Hydeman and Berman, International Control of Nuclear Maritime Activities 17-24 (1960).

20 Report of the United Nations Visiting Mission to Trust Territories in the Pacific 1956, U.N. Trusteeship Council, Official Records, 18th Sess., Supp. No. 3 (T/1278), at 45, 26-28. The scientific controversy concerning the measurable damage of nuclear weapons tests in the atmosphere is at present unresolved. The statements in the text were designed to represent a minimal consensus as to the dangers of these tests.

21 McDougal and Schlei, note 5 above, at 824-841.

22 See Margolis, , “ The Hydrogen Bomb Experiments and International Law, “ 64 Yale Law J. 629 (1955)Google Scholar; Reiff, The United States and the Treaty Law of the Sea (1959); Taubenfeld, , “Nuclear Testing and International Law, “ 16 Southwestern Law J. 365 (1963).Google Scholar

24 See Taubenfeld, note 22 above, at 401-402; Trail Smelter Case, 3 Int. Arb. Awards 1905; 33 A.J.I.L. 182 (1939).

24 See Fliess, note 6 above.

25 See Schwarzenberger, The Legality of Nuclear Weapons 48 (1958).

26 78 U. N. Treaty Series 278 (No. 1021).

27 For the various committee reports, see U.N. General Assembly, Official Records, Docs. Nos. A/3838, A/5216, and A/5814.

28 Cited note 7 above.

29 See D'Amato, “Treaties as a Source of General Rules of International Law,” 3 Harvard Int. Law Club Journal 1 (1962). Some or all of these reasons may have been behind the comment by the United States Department of State that the explosion of Communist China's second nuclear device was “in total disregard of the test-ban treaty,” a comment made despite the fact that China was not a party to the Test-Ban Treaty. New York Times, May 15, 1965, p. 1, col. 7; p.2, col. 4.