## Facts

- Australia instituted proceedings against France on May 9, 1973, challenging France’s atmospheric nuclear weapons tests in the South Pacific.
- Australia alleged the tests caused, or risked causing, radioactive fallout on Australian territory and harm to Australia’s rights under international law.
- Australia sought declarations that further atmospheric tests were inconsistent with international law and an order that France cease such tests.
- On the same day, Australia requested provisional measures under Article 41 of the ICJ Statute, asking that France desist from further atmospheric tests pending final judgment.
- France asserted the Court lacked jurisdiction and declined to appear or appoint an agent, but communicated its position by letter.
- The Court held public proceedings in May–June 1973 based on the material before it and issued an order on June 22, 1973.

## Issues

1. Whether the Court had prima facie jurisdiction sufficient to consider and indicate provisional measures despite France’s jurisdictional objections and non-appearance.
2. Whether the circumstances showed urgency and a risk of irreparable prejudice to rights claimed by Australia, warranting provisional measures under Article 41.
3. What scope of interim protection was appropriate without prejudging the merits.

## Decision

- The Court indicated provisional measures pending final decision, but in narrower form than Australia requested.
- The Court directed France to avoid nuclear tests that would cause the deposit of radioactive fallout on Australian territory.
- The Court directed both parties to act so that any eventual merits decision would be fully effective.
- The Court reserved final determinations on jurisdiction and admissibility for the merits stage, finding that jurisdiction could not be excluded on a prima facie basis.

## Legal Principles

- Provisional measures may be indicated only if the Court is satisfied that, on the instruments invoked, its jurisdiction appears prima facie possible; final jurisdiction is decided later.
- Article 41 measures are justified where there is urgency and a risk of irreparable prejudice to rights asserted that are capable of judicial protection.
- The Court may proceed and grant provisional measures notwithstanding a respondent’s non-appearance, provided procedural safeguards are respected and the Court has sufficient information to act.
- Provisional measures should be framed to preserve the parties’ rights without, in substance, deciding the merits in advance.

## Conclusion

The Court, finding prima facie jurisdiction and urgent risk of irreparable harm from potential radioactive fallout, ordered limited provisional measures requiring France to avoid tests causing fallout on Australian territory and required both states to preserve the effectiveness of any eventual merits judgment.


Nuclear Tests (Austl. v. Fr.), 1973 I.C.J. 99 (June 22)