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Home / Cases / Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminaty Objections, Judgment, I.C.J. Reports 1992, p. 240

Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminaty Objections, Judgment, I.C.J. Reports 1992, p. 240

INTERNATIONAL COURT OF JUSTICE YEAR 1992

26 June 1992

CASE CONCERNING CERTAIN PHOSPHATE LANDS IN NAURU

(NAURU v. AUSTRALIA) PRELIMINARY OBJECTIONS

Jurisdiction of the Court and admissibility.

Declaration of acceptance of compulsory jurisdiction excluding “any dispute in regard to which the Parties thereto have agreed or shall agree to have recourse to some other method ofpeaceful settlement” — Application to States alone of declar­ations under Article 36, paragraph 2, of Statute — Respondent’s declaration and exclusion for which it provides.

Alleged waiver of claims prior to independence — (1) Agreement between the local authorities of a trust territory and the Administering Authority — Absence of explicit clause operating as waiver — Absence of implicit waiver — (2) Discussions in the United Nations — Significance of statements by representative of the local authorities.

Alleged breaches of a trusteeship agreement — “Definitive legal effect” of Gen­eral Assembly resolutions terminating trusteeship agreements — Particular cir­cumstances in which the Trusteeship over Nauru was terminated — Question of discharge said to have been given by resolution.

Need to determine in each case effects of passage of time with regard to the admissibility of an application.

Applicant’s alleged inconsistency and lack of good faith ~ Absence of an abuse ofprocess.

Mandate conferred on “His Britannic Majesty ” as Sovereign of the United King­dom, Australia and New Zealand — Trusteeship granted to Australia, New Zea­land and the United Kingdom “jointly” designated as Administering Authority — Absence of international legal personality of the Administering Authority — (1) Claims based on conduct of Respondent as one of the three States making up the Administering Authority — Suing of Respondent alone a question independent of that ofpossible “joint and several” liability — Possibility of the Court’s consider­ing a claim of alleged breach by Respondent of its obligations under Trusteeship Agreement — (2) Fundamental principle of consent of States to Court’s jurisdic­tion — Possibility of the Court’s taking a decision without ruling on legal situation of non-party States — Situation different from that with which the Court had to deal in the Monetary Gold case.

Article 40, paragraph 1, of the Statute of the Court and Article 38, paragraph 2, of the Rules of Court — Claim new in both form and substance whose examination by the Court would transform the subject of the dispute originally submitted to it.

JUDGMENT

Present: President Sir Robert Jennings; Vice-President Oda; Judges Lachs, Ago, Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Ranjeva; Registrar Valencia- Ospina.

In the case concerning certain phosphate lands in Nauru,

between

the Republic of Nauru, represented by

Mr. V. S. Mani, Professor of International Law, Jawaharlal Nehru Uni­versity, New Delhi; former Chief Secretary and Secretary to Cabinet, Republic of Nauru, Mr. Leo D. Keke, Presidential Counsel of the Republic of Nauru; former Minister for Justice of the Republic of Nauru; and Member of the Bar of the Republic of Nauru and of the Australian Bar,

as Co-Agents, Counsel and Advocates;

H.E. Mr. Hammer DeRoburt, G.C.M.G., O.B.E., M.P., Head Chief and Chairman of the Nauru Local Government Council; former President and Chairman of Cabinet and former Minister for External and Internal Affairs and the Phosphate Industry, Republic of Nauru,

Mr. Ian Brownlie, Q.C., Member of the English Bar; Chichele Professor of Public International Law, University of Oxford; Fellow of All Souls Col­lege, Oxford,

Mr. Barry Connell, Associate Professor of Law, Monash University, Mel­bourne; Member of the Australian Bar; former Chief Secretary and Secre­tary to Cabinet, Republic of Nauru, Mr. James Crawford, Challis Professor of International Law and Dean of the Faculty of Law, University of Sydney; Member of the Australian Bar,

as Counsel and Advocates, and the Commonwealth of Australia, represented by

Mr. Gavan Griffith, Q.C., Solicitor-General of Australia, as Agent and Counsel;

E. Mr. Warwick Weemaes, Ambassador of Australia to the Netherlands, as Co-Agent;

Mr. Henry Burmester, Principal Adviser in International Law, Australian Attorney-General’s Department,

as Co-Agent and Counsel;

Mr. Eduardo Jimenez de Arechaga, Professor of International Law, Monte­video,

Mr. Derek W. Bowett, Q.C., emeritus Whewell Professor of International

Law, University of Cambridge, Mr. Alain Pellet, Professor of Law, University of Paris X-Nanterre and Insti­tute of Political Studies, Paris, Ms Susan Kenny, of the Australian Bar,

as Counsel;

Mr. Peter Shannon, Deputy Legal Adviser, Australian Department of

Foreign Affairs and Trade, Mr. Paul Porteous, First Secretary, Australian Embassy in the Netherlands,

as Advisers,

The Court, composed as above, after deliberation, delivers the following Judgment:

  1. On 19 May 1989, the Government of the Republic of Nauru (hereinafter called “Nauru”) filed in the Registry of the Court an Application instituting proceedings against the Commonwealth of Australia (hereinafter called “Aus­tralia”) in respect of a “dispute … over the rehabilitation of certain phosphate lands (in Nauru] worked out before Nauruan independence”. To found the jurisdiction of the Court the Application relies on the declarations made by the two States accepting the jurisdiction of the Court, as provided for in Article 36, paragraph 2, of the Statute of the Court.
  2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was communicated forthwith by the Registrar to the Government of Australia; in accordance with paragraph 3 of that Article, all other States entitled to appear before the Court were notified of the Application.
  3. Time-limits for the filing of the Memorial of Nauru and the Counter- Memorial of Australia were fixed by an Order of 18 July 1989. The Memorial was filed on 20 April 1990, within the time-limit fixed for this purpose. By a letter dated 19 September 1990, the Agent of Australia informed the Registrar that, after due consideration of the Memorial of Nauru, his Government had come to the conclusion that the Court had no jurisdiction in the case and that the Application was not admissible; he consequently informed the Registrar that Australia would raise preliminary objections in accordance with the provi­sions of Article 79 of the Rules of Court. On 16 January 1991, within the time- limit fixed for the filing of the Counter-Memorial, the Government of Australia filed Preliminary Objections submitting that the Application was inadmissible and that the Court lacked jurisdiction to hear the claims made therein. Accord­ingly, by an Order dated 8 February 1991, the Court, recording that by virtue of the provisions of Article 79, paragraph 3, of the Rules of Court, the proceedings on the merits were suspended, fixed a time-limit for the presentation by the Government of Nauru of a Written Statement of its Observations and Sub­missions on the Preliminary Objections. That statement was filed on 17 July 1991, within the prescribed time-limit, and the case became ready for hearing in respect of the preliminary objections.
  4. On 11 to 19, and 21 and 22 November 1991, public hearings were held in the course of which the Court heard the oral arguments and replies of the following:

For Australia: Mr. Gavan Griffith, Q.C.,

Mr. Eduardo Jimenez de Arechaga, Mr. Derek W. Bowett, Q.C., Mr. Henry Burmester, Mr. Alain Pellet.

For Nauru: Mr. V. S. Mani,

H.E. Mr. Hammer DeRoburt, G.C.M.G., O.B.E., M.P.,

Mr. Leo D. Keke,

Mr. Barry Connell,

Mr. Ian Brownlie, Q.C.,

Mr. James Crawford.

During the hearings, questions were put by Members of the Court to both

Parties, and replies were given either orally or in writing.

*

In the course of the written proceedings, the following submissions were presented by the Parties:

On behalf of the Government of Nauru, in the Memorial:

“On the basis of the evidence and legal argument presented in this Memorial, the Republic of Nauru

Requests the Court to adjudge and declare

that the Respondent State bears responsibility for breaches of the follow­ing legal obligations:

First: the obligations set forth in Article 76 of the United Nations Charter and Articles 3 and 5 of the Trusteeship Agreement for Nauru of 1 November 1947.

Second: the international standards generally recognized as applicable in the implementation of the principle of self-determination.

Third: the obligation to respect the right of the Nauruan people to per­manent sovereignty over their natural wealth and resources.

Fourth: the obligation of general international law not to exercise powers of administration in such a way as to produce a denial of justice lato sensu.

Fifth: the obligation of general international law not to exercise powers of administration in such a way as to constitute an abuse of rights.

Sixth: the principle of general international law that a State which is responsible for the administration of territory is under an obligation not to bring about changes in the condition of the territory which will cause irreparable damage to, or substantially prejudice, the existing or contin­gent legal interest of another State in respect of that territory.

Requests the Court to adjudge and declare further

that the Republic of Nauru has a legal entitlement to the Australian alloca­tion of the overseas assets of the British Phosphate Commissioners which were marshalled and disposed of in accordance with the trilateral Agree­ment concluded on 9 February 1987.

Requests the Court to adjudge and declare

that the Respondent State is under a duty to make appropriate reparation in respect of the loss caused to the Republic of Nauru as a result of the breaches of its legal obligations detailed above and its failure to recognize the interest of Nauru in the overseas assets of the British Phosphate Com­missioners.”

On behalf of the Government of Australia, in the Preliminary Objections:

“On the basis of the facts and law presented in these Preliminary Objec­tions, the Government of Australia requests the Court to adjudge and declare that the Application by Nauru is inadmissible and that the Court lacks jurisdiction to hear the claims made by Nauru for all or any of the reasons set out in these Preliminary Objections.”

On behalf of the Government of Nauru,

in the Written Statement of its Observations and Submissions on the Prelimi­nary Objections:

“In consideration of the foregoing the Government of Nauru requests the Court:

To reject the preliminary objections of Australia, and

To adjudge and declare:

(a)      that the Court has jurisdiction in respect of the claim presented in the Memorial of Nauru, and

(b)                                      that the claim is admissible.”

6. In the course of the oral proceedings, the following submissions were presented by the Parties:

On behalf of the Government of Australia, at the hearing of 21 November 1991:

“On the basis of the facts and law set out in its Preliminary Objections and its oral pleadings, and for all or any of the grounds and reasons set out therein, the Government of Australia requests the Court to adjudge and declare that the claims by Nauru against Australia set out in their Applica­tion and Memorial are inadmissible and that the Court lacks jurisdiction to hear the claims.”

On behalf of the Government of Nauru, at the hearing of 22 November 1991:

“In consideration of its written and oral pleadings the Government of the Republic of Nauru requests the Court:

To reject the preliminary objections raised by Australia, and

To adjudge and declare:

(a)      that the Court has jurisdiction in respect of the claims presented in the Memorial of Nauru, and

(b)                                  that the claims are admissible.

In the alternative, the Government of the Republic of Nauru requests the Court to declare that some or all of the Australian preliminary objec­tions do not possess, in the circumstances of the case, an exclusively preli­minary character, and in consequence, to join some or all of these objec­tions to the merits.”

7. The Court will first consider those of Australia’s objections which concern the circumstances in which the dispute relating to rehabilitation of the phosphate lands worked out prior to 1 July 1967 arose between Nauru and Australia. It will then turn to the objection based on the fact that New Zealand and the United Kingdom are not parties to the proceed­ings. Lastly, it will rule on the objections to Nauru’s submissions relating to the overseas assets of the British Phosphate Commissioners.

lacks jurisdiction to deal with Nauru’s Application. It recalls in that respect that Nauru, having been previously administered under a League of Nations Mandate, was placed under the Trusteeship System provided for in Chapter XII of the United Nations Charter by a Trusteeship Agree­ment approved by the General Assembly on 1 November 1947. That Agreement provided that the administration of Nauru was to be exercised by an Administering Authority made up of the Governments of Australia, New Zealand and the United Kingdom. Australia argues that any dispute which arose in the course of the Trusteeship between “the Administering Authority and the indigenous inhabitants” fell within the exclusive juris­diction of the United Nations Trusteeship Council and General Assem­bly. Those organs, kept informed about Nauruan affairs by the Visiting Missions appointed by the Trusteeship Council, by petitions from the inhabitants, and by the reports of the Administering Authority, could make recommendations with respect to such disputes, not only to that Authority, but also to the representatives of the Nauruan people; they could also prompt negotiations with a view to settlement of such disputes. But in any event, according to Australia, any dispute of that type should be regarded as having been settled by the very fact of the termination of the Trusteeship, provided that that termination was unconditional.

  1. In the present case, Australia emphasizes that the Nauru Local Government Council — an organ, created in 1951, representing the Nau­ruan community and which, from 1963 onwards, had been, in many respects, responsible for local administrative tasks — raised with the United Nations the question of rehabilitation of the worked-out phos­phate lands from 1965 onwards. That question was discussed in subse­quent years, both within the United Nations and in direct contacts. At the end of those discussions, an Agreement relating to the Nauru Island Phos­phate Industry was concluded on 14 November 1967 between the Nauru Local Government Council, on the one hand, and Australia, New Zea­land and the United Kingdom, on the other, the effect of which, in Aus­tralia’s submission, was that Nauru waived its claims to rehabilitation of the phosphate lands. Australia maintains, moreover, that on 19 December 1967, the United Nations General Assembly terminated the Trusteeship without making any reservation relating to the administration of the Terri­tory. In those circumstances, Australia contends that, with respect to the dispute presented in Nauru’s Application, Australia and Nauru had agreed “to have recourse to some other method of peaceful settlement” within the meaning of the reservation in Australia’s declaration, and that consequently the Court lacks jurisdiction to deal with that dispute.
  2. The Court does not consider it necessary to enter at this point into the details of the arguments thus advanced. Declarations made pursuant to Article 36, paragraph 2, of the Statute of the Court can only relate to disputes between States. The declaration of Australia only covers that type of dispute; it is made expressly “in relation to any other State accept­ing the same obligation …”. In these circumstances, the question that arises in this case is whether Australia and the Republic of Nauru did or did not, after 31 January 1968, when Nauru acceded to independence, conclude an agreement whereby the two States undertook to settle their dispute relating to rehabilitation of the phosphate lands by resorting to an agreed procedure other than recourse to the Court. No such agreement has been pleaded or shown to exist. That question has therefore to be answered in the negative. The Court thus considers that the objection raised by Australia on the basis of the above-mentioned reservation must be rejected.

*

12. Australia’s second objection is that the Nauruan authorities, even before acceding to independence, waived all claims relating to rehabilita­tion of the phosphate lands. This objection contains two branches. In the first place, the waiver, it is said, was the implicit but necessary result of the above-mentioned Agreement of 14 November 1967. It is also said to have resulted from the statements made in the United Nations in the autumn of 1967 by the Nauruan Head Chief on the occasion of the termination of the Trusteeship. In the view of Australia, Nauru may not go back on that two­fold waiver and its claim should accordingly be rejected as inadmissible.

13. The Court does not deem it necessary to enter into the various ques­tions of law that are raised by the foregoing argument and, in particular, to consider whether any waiver by the Nauruan authorities prior to acces­sion to independence is opposable to the Republic of Nauru. It will suf­fice to note that in fact those authorities did not at any time effect a clear and unequivocal waiver of their claims, whether one takes into considera­tion the negotiations which led to the Agreement of 14 November 1967, the Agreement itself, or the discussions at the United Nations.

14. The Parties are at one in recognizing that the Agreement of 14 November 1967 laid down the conditions under which the property in the capital assets of the phosphate industry on Nauru was to pass to the local authorities and the ways in which the phosphate would, in future, be worked and sold. They also recognize that that Agreement did not contain any express provision relating to rehabilitation of the phosphate lands previously worked out. However, the Parties disagree as to the signifi­cance of that silence. Australia maintains that “the Agreement did repre­sent a comprehensive settlement of all claims by Nauru in relation to the phosphate industry”, including rehabilitation of the lands, and that the Agreement was accordingly tantamount to a waiver by Nauru of its pre­vious claims in that regard. Nauru, on the contrary, contends that the absence of any reference to that matter in the Agreement cannot be inter­preted as implying a waiver.

15.The Court notes that during the discussions with the Administering Authority the delegation of the Nauru Local Government Council main­tained, as early as June 1965, that “there was a responsibility on the Part­ner Governments to restore at their cost the land that had been mined”. In June 1966 the delegation restated that position, noting that costs had been estimated at 91 million Australian dollars and proposing that those costs should be shared by the three Governments in proportion to the benefits they had previously derived from the mining of the phosphate. It con­cluded by adding that Nauru would be prepared to assume responsibility for the restoration of any land mined subsequently if “the full economic benefit from the phosphate” was made available to the Nauruans at a future time. No agreement was reached on that subject in 1966 and the discussions resumed in April 1967. The Administering Authority then proposed the insertion into the future agreement of a provision to the effect that:

“The Partner Governments consider that the proposed financial arrangements on phosphate cover the future needs of the Nauruan community including rehabilitation or resettlement.”

During the meeting held on 16 May 1967, the delegation of the Adminis­tering Authority asked

“would the Nauruans press their argument despite any financial arrangements made, that the Partner Governments had a responsi­bility on rehabilitation?”

The summary record of the discussions goes on to say that

“During the following discussion it emerged that the Nauruans would still maintain their claim on the Partner Governments in respect of rehabilitation of areas mined in the past, even if the Partner Governments did not press for the withdrawal of the claim in a formal manner such as in an agreement.”

There is no trace of any subsequent discussion of this question in the documents before the Court.

16.The Court notes that the Agreement of 14 November 1967 contains no clause by which the Nauruan authorities expressly waived their earlier claims. Furthermore, in the view of the Court, the text of the Agreement, read as a whole, cannot, regard being had to the circumstances set out in paragraph 15 above, be construed as implying such a waiver. The first branch of the Australian argument must be rejected.

17. Australia maintains further that the Nauruan authorities also waived their claims to rehabilitation of the lands during the debates at the United Nations that led, in the autumn of 1967, to the termination of the Trusteeship over Nauru and to its independence. Australia relies chiefly upon a statement made in the Fourth Committee of the United Nations General Assembly on 6 December 1967, by the Nauruan Head Chief, Mr. DeRoburt, in which he said:

“[the island had the] good fortune [to possess] large deposits of high- grade phosphate. That economic base, of course, presented its own problems. One which worried the Nauruans derived from the fact that land from which phosphate had been mined would be totally unusable. Consequently, although it would be an expensive opera­tion, that land would have to be rehabilitated and steps were already being taken to build up funds to be used for that purpose. That phos­phate was a wasting asset was, in itself, a problem; in about twenty- five years’ time the supply would be exhausted. The revenue which Nauru had received in the past and would receive during the next twenty-five years would, however, make it possible to solve the prob­lem. Already some of the revenue was being allocated to develop­ment projects… In addition, a much larger proportion of its income was being placed in a long-term investment fund, so that, whatever happened, future generations would be provided for. In short, the Nauruans wanted independence and were confident that they had the resources with which to sustain it.”

Australia argues that this statement amounted to an undertaking by the Nauruan authorities to finance any rehabilitation of lands worked out in the past from revenue deriving from future exploitation, and that it conse­quently constituted a waiver of any claim against the Administering Authority.

18. In order to ascertain the significance of this statement, it needs to be placed in context. As early as 1965, the Nauru Local Government Council had submitted to a Visiting Mission appointed by the United Nations Trusteeship Council a memorandum indicating that the soil on the island “must be fully rehabilitated”. Then at its thirty-third session, in the spring of 1966, the Trusteeship Council noted a statement made by the represen­tative of the people of Nauru that:

“the responsibility for rehabilitating the Island, in so far as it is the Administering Authority’s, remains with the Administering Author­ity. If it should turn out that Nauru gets its own independence in January 1968, from then on the responsibility will be ours. A rough assessment of the portions of responsibility for this rehabilitation exercise then is this: one-third is the responsibility of the Administer­ing Authority and two-thirds is the responsibility of the Nauruan people.”

In the spring of 1967, the representative of the people of Nauru again emphasized before the Trusteeship Council, at its thirty-fourth session, that “the Administering Authority should accept responsibility for the rehabilitation of the lands already mined”.

19. Lastly, on 22 November 1967, the Trusteeship Council met to con­sider the request by Australia, New Zealand and the United Kingdom for the termination of Nauru’s Trusteeship to enable the territory to accede to independence on 31 January 1968. At that meeting, Head Chief DeRoburt stated that:

“There was one subject, however, on which there was still a differ­ence of opinion — responsibility for the rehabilitation of phosphate lands. The Nauruan people fully accepted responsibility in respect of land mined subsequently to 1 July 1967, since under the new agree­ment they were receiving the net proceeds of the sale of phosphate. Prior to that date, however, they had not received the net proceeds and it was therefore their contention that the three Governments should bear responsibility for the rehabilitation of land mined prior to 1 July 1967. That was not an issue relevant to the termination of the Trusteeship Agreement, nor did the Nauruans wish to make it a mat­ter for United Nations discussion. He merely wished to place on record that the Nauruan Government would continue to seek what was, in the opinion of the Nauruan people, a just settlement of their claims.”

The Trusteeship Council then adopted a draft resolution recommend­ing the termination of the Trusteeship. Its report was submitted to the Fourth Committee of the General Assembly and it was during the pro­ceedings of the Fourth Committee that Head Chief DeRoburt made the statement quoted above which Australia contends amounted to a waiver.

20.The Court cannot share this view. The statement referred to by Aus­tralia (set out in paragraph 17 above) deals with two distinct problems, namely, on the one hand, rehabilitation of the phosphate lands, and, on the other, the future depletion of the deposits. On the first point, which is the only one of interest here to the Court, Head Chief DeRoburt confined himself to stating that measures had already been taken to set aside funds for rehabilitation of the lands. Notwithstanding some ambiguity in the wording, the statement did not imply any departure from the point of view expressed clearly and repeatedly by the representatives of the Nauruan people before various organs of the United Nations and, in particular, before the Trusteeship Council on 22 November 1967.

21.The Court concludes that the Nauruan local authorities did not, before independence, waive their claim relating to rehabilitation of the phosphate lands worked out prior to 1 July 1967. The second objection raised by Australia must in consequence be rejected.

*

22. Australia’s third objection is that Nauru’s claim is

“inadmissible on the ground that termination of the Trusteeship by the United Nations precludes allegations of breaches of the Trustee­ship Agreement from now being examined by the Court”.

Australia observes that “all the Nauruan allegations of breaches of obliga­tions” relate to “the administration of the territory” placed under Trustee­ship. Australia adds that “the competence to determine any alleged breach of the Trusteeship Agreement and Article 76 of the Charter rested exclusively with the Trusteeship Council and General Assembly”; that when the General Assembly terminates a trust, “the whole system of administrative supervision [comes] to an end”; and that

“in the absence of an express reservation recording a breach and an outstanding responsibility on the Administering Authority, termina­tion is conclusive and operates as a complete discharge from all further responsibility”.

According to Australia, Nauru therefore cannot now request the Court:

“to undertake the task of exploring again the performance of the Trusteeship in order to overrule and contradict the conclusions and decisions taken by the competent United Nations organs in the exer­cise of their functions of supervision of the trusteeship system”.

  1. The Court notes that, by resolution 2347 (XXII) of 19 December 1967, the General Assembly of the United Nations resolved

“in agreement with the Administering Authority, that the Trustee­ship Agreement for the Territory of Nauru .. . shall cease to be in force upon the accession of Nauru to independence on 31 January 1968”.

Such a resolution had “definitive legal effect” (Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 32). Consequently, the Trusteeship Agreement was “terminated” on that date and “is no longer in force” (ibid., p. 37). In the light of these considerations, it might be possible to question the admissibility of an action brought against the Administering Authority on the basis of the alleged failure by it to comply with its obliga­tions with respect to the administration of the Territory. However, the Court does not consider it necessary to enter into this debate and will con­fine itself to examining the particular circumstances in which the Trustee­ship for Nauru was terminated.

24. It is to be recalled in this respect that from 1965 to 1967 the question of rehabilitation of the worked-out lands was on several occasions dis­cussed in the various competent United Nations bodies, namely, the Trus­teeship Council, the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, the Fourth Committee of the General Assembly and the General Assembly itself.

25.The Nauru Local Government Council, in 1965, submitted to a United Nations Visiting Mission appointed by the Trusteeship Council a memorandum on the subject. The Mission stated in its report that, its members not being “experts in the matter”, it was unable to make any recommendation. The Trusteeship Council confined itself to taking note of that report on 29 June 1965. But the General Assembly, on 21 Decem­ber 1965, requested that

“immediate steps be taken by the Administering Authority towards restoring the island of Nauru for habitation by the Nauruan people as a sovereign nation” (resolution 2111 (XX)).

26. In agreement with the local authorities, the Administering Author­ity then commissioned a study by a Committee of Experts, which became known as the Davey Committee, on the possibilities of rehabilitating the phosphate lands. The Trusteeship Council, at its thirty-third session, in the spring of 1966, recalled resolution 2111 (XX) and noted that the study was being prepared. As for the General Assembly, on 20 December 1966, it again recommended that

“the administering authority . . . take immediate steps, irrespec­tive of the cost involved, towards restoring the island of Nauru for habitation by the Nauruan people as a sovereign nation” (resolu­tion 2226 (XXI)).

27. In May 1967, the report by the Davey Committee was distributed to the members of the Trusteeship Council. A number of members of the Council raised the question of rehabilitation of the lands. The representa­tive of France said he regretted that “no agreement had been reached between the Administering Authority and the Nauruan people” on the question. Liberia subsequently submitted to the Council a draft resolution stressing that it was the responsibility of the Administering Authority to restore the lands at its expense. That draft was not adopted, but the Coun­cil, “regretting that differences continue to exist on the question of rehabi­litation”, expressed the “earnest hope that it will be possible to find a solution to the satisfaction of both parties”.

28. During the discussions in the Trusteeship Council in November 1967 with a view to termination of the Trusteeship, Head Chief DeRoburt, as indicated in paragraph 19 above, reserved his position on rehabilita­tion, expressly placing on record that “the Nauruan Government would continue to seek what was, in the opinion of the Nauruan people, a just settlement of their claims”. The representative of the USSR stated that he was certain “that the legitimate demands of the Nauruan people … for the rehabilitation of the land would be fully met”. The representatives of the Administering Authority, while indicating that the agreements con­cluded were financially favourable to Nauru, made no reference in their statements to the question of rehabilitation.

During the discussions in the Fourth Committee, following the state­ment by Head Chief DeRoburt mentioned in paragraph 17 above, the representative of the USSR again referred to the problem and the repre­sentative of India recalled that

“With regard to the question of responsibility for the rehabilitation of the mined areas of the island, there was still a considerable differ­ence of opinion between the Nauruans and the Administering Authority.”

The representative of India further expressed the hope that an equitable agreement would be concluded in this respect. Again, the representatives of the Administering Authority did not react.

29.The final resolution of the General Assembly of 19 December 1967, by which it decided, in agreement with the Administering Authority, to terminate the Trusteeship, does not, unlike the earlier resolutions, contain any provision inviting the Administering Authority to rehabilitate the lands. The resolution however recalls those earlier resolutions in its preamble.

30. The facts set out above show that, when, on the recommendation of the Trusteeship Council, the General Assembly terminated the Trustee­ship over Nauru in agreement with the Administering Authority, every­one was aware of subsisting differences of opinion between the Nauru Local Government Council and the Administering Authority with regard to rehabilitation of the phosphate lands worked out before 1 July 1967. Accordingly, though General Assembly resolution 2347 (XXII) did not expressly reserve any rights which Nauru might have had in that regard, the Court cannot view that resolution as giving a discharge to the Admin­istering Authority with respect to such rights. In the opinion of the Court, the rights Nauru might have had in connection with rehabilitation of the lands remained unaffected. Regard being had to the particular circum­stances of the case, Australia’s third objection must in consequence be rejected.

*

31. Australia’s fourth objection stresses that Nauru achieved indepen­dence on 31 January 1968 and that, as regards rehabilitation of the lands, it was not until December 1988 that that State formally “raised with Aus­tralia and the other former Administering Powers its position”. Australia therefore contends that Nauru’s claim is inadmissible on the ground that it has not been submitted within a reasonable time. Nauru’s delay in making its claim is alleged to be all the more prejudicial to Australia because the documentation relating to the Mandate and the Trusteeship may have been lost or dispersed in the interval, and because developments in the law during the interval render it more difficult to determine the legal obligations incumbent on the Administering Powers at the time of the alleged breaches of those obligations.

32.The Court recognizes that, even in the absence of any applicable treaty provision, delay on the part of a claimant State may render an appli­cation inadmissible. It notes, however, that international law does not lay down any specific time-limit in that regard. It is therefore for the Court to determine in the light of the circumstances of each case whether the passage of time renders an application inadmissible.

33. In the present case, it was well known, at the time when Nauru gained its independence, that the question of rehabilitation of the phos­phate lands had not been settled. On the day of declaring independence, 31 January 1968, the Nauruan Head Chief, Mr. DeRoburt, stated, accord­ing to press reports, that

“We hold it against Britain, Australia and New Zealand to recog­nize that it is their responsibility to rehabilitate one third of the island.”

On 5 December 1968 the President of Nauru wrote to the Minister for External Affairs of Australia indicating his desire to examine a specific rehabilitation scheme for the building of a new airstrip. The Australian Minister replied on 4 February 1969 as follows:

“the Partner Governments, in the talks preceding the termination of the Trusteeship Agreement, did not accept responsibility for the rehabilitation of mined-out phosphate lands. The Partner Govern­ments remain convinced that the terms of the settlement with Your Excellency’s Government were sufficiently generous to enable it to meet its needs for rehabilitation and development.”

34.This letter did not elicit any immediate reaction. Five years later, on the occasion of a State visit to Canberra, the President of Nauru raised the question of rehabilitation with the Prime Minister of Australia. In 1974 he brought up the matter a second time, without success, on the occasion of the visit to Nauru of the Australian Acting Minister for External Affairs.

35. It was only on 6 October 1983 that the President of Nauru wrote to the Prime Minister of Australia requesting him to “seek a sympathetic re­consideration of Nauru’s position”. That request was declined by Australia on 14 March 1984. Then, on 3 December 1986, Nauru set up a three-mem- ber Commission of Inquiry to study the question and informed the three former Administering Governments of the establishment of that Commis­sion. Those Governments maintained their position and, following a series of exchanges of letters, Nauru applied to the Court on 19 May 1989.

36. The Court, in these circumstances, takes note of the fact that Nauru was officially informed, at the latest by letter of 4 February 1969, of the position of Australia on the subject of rehabilitation of the phosphate lands worked out before 1 July 1967. Nauru took issue with that position in writing only on 6 October 1983. In the meantime, however, as stated by Nauru and not contradicted by Australia, the question had on two occa­sions been raised by the President of Nauru with the competent Austral­ian authorities. The Court considers that, given the nature of relations between Australia and Nauru, as well as the steps thus taken, Nauru’s

Application was not rendered inadmissible by passage of time. Neverthe­less, it will be for the Court, in due time, to ensure that Nauru’s delay in seising it will in no way cause prejudice to Australia with regard to both the establishment of the facts and the determination of the content of the applicable law.

*

37.Australia’s fifth objection is that “Nauru has failed to act consist­ently and in good faith in relation to rehabilitation” and that therefore “the Court in exercise of its discretion, and in order to uphold judicial propriety should … decline to hear the Nauruan claims”.

38. The Court considers that the Application by Nauru has been prop­erly submitted in the framework of the remedies open to it. At the present stage, the Court is not called upon to weigh the possible consequences of the conduct of Nauru with respect to the merits of the case. It need merely note that such conduct does not amount to an abuse of process. Aus­tralia’s objection on this point must also be rejected.

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39. The Court will now consider the objection by Australia based on the fact that New Zealand and the United Kingdom are not parties to the proceedings. Australia recalls that the League of Nations Mandate relating to Nauru was conferred in 1920 upon “His Britannic Majesty” as Sovereign of the United Kingdom as well as of Australia and New Zealand. That Mandate was exercised under arrangements agreed on by the three States. Subsequently a Trusteeship over the Territory was granted in 1947 by the United Nations to the same three Governments, “jointly” designated as Administering Authority. Consequently, according to Australia:

“the claim of Nauru is, in substance, not a claim against Australia itself but a claim against the Administering Authority in relation to Nauru”.

The Court, it is argued, could therefore not pass upon the responsibility of the Respondent without adjudicating upon the responsibility of New Zea­land and the United Kingdom; these two States are in reality “parties to the dispute”; but they are not parties to the proceedings. Australia accordingly contends that

“the claims [of Nauru] are inadmissible and the Court lacks jurisdic­tion as any judgment on the question of breach of the Trusteeship Agreement would involve the responsibility of third States that have not consented to the Court’s jurisdiction in the present case”.

40. In order to assess the validity of this objection, the Court will first refer to the Mandate and Trusteeship regimes and the way in which they applied to Nauru.

41.The Mandate system, instituted by virtue of Article 22 of the Cov­enant of the League of Nations, was conceived for the benefit of the terri­tories “which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world”. In accordance with the same Article 22, “the well-being and development of such peoples form a sacred trust of civilisation”. Thus the Mandate “was created, in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an international object — a sacred trust of civilization” (International Status ofSouth West Africa, I.C.J. Reports 1950, p. 132). This ” ‘trust’ had to be exercised for the benefit of the peoples con­cerned, who were admitted to have interests of their own” (Legal Conse­quences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276(1970), I.C.J. Reports 1971, pp. 28-29, para. 46).

42. It is in that context that the Council of the League of Nations granted to His Britannic Majesty, on 17 December 1920, “full power of administration and legislation over the territory subject to the … Man­date as an integral portion of his territory”. An Agreement concluded between “His Majesty’s Government in London, His Majesty’s Govern­ment of the Commonwealth of Australia, and His Majesty’s Government of the Dominion of New Zealand” on 2 July 1919 and amended on 30 May 1923 laid down the conditions “for the exercise of the said Mandate and for the mining of the phosphate deposits on the said island”. This exploi­tation was entrusted to an enterprise managed by three “British Phos­phate Commissioners” appointed by the three Governments. Article 1 of the amended Agreement provided that

“The Administration of the Island shall be vested in an Admin­istrator. The first Administrator shall be appointed for a term of five years by the Australian Government; and thereafter the Admin­istrator shall be appointed in such manner as the three Governments decide.”

It was further provided that

“All Ordinances made by the Administrator shall be subject to confirmation or disallowance in the name of His Majesty, whose pleasure in respect of such confirmation or disallowance shall be signified by one of His Majesty’s Principal Secretaries of State, or by the Governor-General of the Commonwealth of Australia … or by the Governor-General of the Dominion of New Zealand … accord­ing as the Administrator shall have been appointed by His Majesty’s Government in London, or by the Government of the Common­wealth of Australia, or by the Government of the Dominion of New Zealand, as the case may be.”

The text added:

“The Administrator shall conform to such instructions as he shall from time to time receive from the Contracting Government by which he has been appointed.”

Provision was made finally for a system whereby decisions taken by the Administrator were communicated to the three Governments concerned.

43.As a matter of fact, the Administrator was at all times appointed by the Australian Government and was accordingly under the instructions of that Government. His “ordinances, proclamations and regulations” were subject to confirmation or rejection by the Governor-General of Australia. The other Governments, in accordance with the Agreement, received such decisions for information only.

44. On the demise of the League of Nations and with the birth of the United Nations, provisions comparable to those of the Covenant were incorporated into the Charter of the United Nations as it relates to the Trusteeship System therein established. In this connection, Article 76 of the Charter provides that:

“The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be:

(b) to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or indepen­dence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement”.

45. The system of administration applied in Nauru at the time of the League of Nations was maintained in essence when the Mandate was replaced by a Trusteeship. The Trusteeship Agreement for the Territory of Nauru, approved by the United Nations General Assembly on 1 Novem­ber 1947, provided in Article 2 that:

“The Governments of Australia, New Zealand and the United Kingdom (hereinafter called ‘the Administering Authority’) are hereby designated as the joint Authority which will exercise the administration of the Territory.”

It added in Article 4 that:

“The Administering Authority will be responsible for the peace, order, good government and defence of the Territory, and for this purpose, in pursuance of an Agreement made by the Governments of

Australia, New Zealand and the United Kingdom, the Government of Australia will, on behalf of the Administering Authority and except and until otherwise agreed by the Governments of Australia, New Zealand and the United Kingdom, continue to exercise full powers of legislation, administration and jurisdiction in and over the Territory.”

46. Under the regime thus established, the Agreements of 2 July 1919 and 30 May 1923 remained in force and the Administrator continued to be appointed in fact by Australia. The provisions of those Agreements relating to the administration of the Territory were not abrogated until 26 November 1965 by a new Agreement reached between the three Gov­ernments, providing for the establishment of a Legislative Council, an Executive Council and Nauruan Courts of Justice. It specified in Article 3 that the “administration of the Territory” was to be vested in “an Adminis­trator appointed by the Government of the Commonwealth of Australia”. It provided that the Administrator, the Governor-General of Australia and the Parliament of Australia were to have certain powers. The agree­ment to establish these new arrangements was implemented by appro­priate legislative and other steps taken by Australia. The arrangements continued to apply until Nauru attained independence.

47. In these circumstances, the Court notes that the three Governments mentioned in the Trusteeship Agreement constituted, in the very terms of that Agreement, “the Administering Authority” for Nauru; that this Authority did not have an international legal personality distinct from those of the States thus designated; and that, of those States, Australia played a very special role established by the Trusteeship Agreement of

1947, by the Agreements of 1919,1923 and 1965, and by practice.

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48. Australia’s preliminary objection in this respect appears to contain two branches, the first of which can be dealt with briefly. It is first con­tended by Australia that, in so far as Nauru’s claims are based on the con­duct of Australia as one of the three States making up the Administering Authority under the Trusteeship Agreement, the nature of the responsibi­lity in that respect is such that a claim may only be brought against the three States jointly, and not against one of them individually. In this con­nection, Australia has raised the question whether the liability of the three States would be “joint and several” (solidaire), so that any one of the three would be liable to make full reparation for damage flowing from any breach of the obligations of the Administering Authority, and not merely a one-third or some other proportionate share. This is a question which the Court must reserve for the merits; but it is independent of the question whether Australia can be sued alone. The Court does not consider that any reason has been shown why a claim brought against only one of the three States should be declared inadmissible in limine litis merely because that claim raises questions of the administration of the Territory, which was shared with two other States. It cannot be denied that Australia had obligations under the Trusteeship Agreement, in its capacity as one of the three States forming the Administering Authority, and there is nothing in the character of that Agreement which debars the Court from considering a claim of a breach of those obligations by Australia.

49. Secondly, Australia argues that, since together with itself, New Zealand and the United Kingdom made up the Administering Authority, any decision of the Court as to the alleged breach by Australia of its obli­gations under the Trusteeship Agreement would necessarily involve a finding as to the discharge by those two other States of their obligations in that respect, which would be contrary to the fundamental principle that the jurisdiction of the Court derives solely from the consent of States. The question that arises is accordingly whether, given the regime thus described, the Court may, without the consent of New Zealand and the United Kingdom, deal with an Application brought against Australia alone.

50. The Court has had to consider questions of this kind on previous occasions. In the case concerning the Monetary Gold Removed from Rome in 1943 (Preliminary Question), the first submission in the Italian Applica­tion was worded as follows:

“(1) that the Governments of the French Republic, Great Britain and Northern Ireland and the United States of America should deliver to Italy any share of the monetary gold that might be due to Albania under Part III of the Paris Act of January 14th, 1946, in par­tial satisfaction for the damage caused to Italy by the Albanian law of January 13th, 1945” (I.C.J. Reports 1954, p. 22).

In its Judgment of 15 June 1954 the Court, noting that only France, Italy, the United Kingdom and the United States of America were parties to the proceedings, found that

“To adjudicate upon the international responsibility of Albania without her consent would run counter to a well-established prin­ciple of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its con­sent.” {Ibid., p. 32.)

Noting that Albania had chosen not to intervene, the Court stated:

“In the present case, Albania’s legal interests would not only be affected by a decision, but would form the very subject-matter of the decision. In such a case, the Statute cannot be regarded, by implica­tion, as authorizing proceedings to be continued in the absence of Albania.” (Ibid.)

51. Subsequently, in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) the Court observed as follows:

“There is no doubt that in appropriate circumstances the Court will decline, as it did in the case concerning Monetary Gold Removed from Rome in 1943, to exercise the jurisdiction conferred upon it where the legal interests of a State not party to the proceedings ‘would not only be affected by a decision, but would form the very subject-matter of the decision’ (I.CJ. Reports 1954, p. 32). Where however claims of a legal nature are made by an Applicant against a Respondent in proceedings before the Court, and made the subject of submissions, the Court has in principle merely to decide upon those submissions, with binding force for the parties only, and no other State, in accordance with Article 59 of the Statute. As the Court has already indicated (paragraph 74, above) other States which con­sider that they may be affected are free to institute separate proceed­ings, or to employ the procedure of intervention. There is no trace, either in the Statute or in the practice of international tribunals, of an ‘indispensable parties’ rule of the kind argued for by the United States, which would only be conceivable in parallel to a power, which the Court does not possess, to direct that a third State be made a party to proceedings. The circumstances of the Monetary Gold case prob­ably represent the limit of the power of the Court to refuse to exercise its jurisdiction; and none of the States referred to can be regarded as in the same position as Albania in that case, so as to be truly indispen­sable to the pursuance of the proceedings.” (Judgment of 26 Novem­ber 1984, I.CJ. Reports 1984, p. 431, para. 88.)

52.That jurisprudence was applied by a Chamber of the Court in the case concerning the Land, Island and Maritime Frontier Dispute (El Sal­vador/Honduras) by a Judgment given on 13 September 1990, which examined whether the legal interests asserted by Nicaragua in support of an application for permission to intervene in the case did or did not form “part of ‘the very subject-matter of the decision'” to be taken or whether they were only affected by that decision (I.CJ. Reports 1990, p. 116, para. 56).

53. National courts, for their part, have more often than not the neces­sary power to order proprio motu the joinder of third parties who may be affected by the decision to be rendered; that solution makes it possible to settle a dispute in the presence of all the parties concerned. But on the international plane the Court has no such power. Its jurisdiction depends on the consent of States and, consequently, the Court may not compel a State to appear before it, even by way of intervention.

  1. A State, however, which is not a party to a case is free to apply for permission to intervene in accordance with Article 62 of the Statute, which provides that

“Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.”

But the absence of such a request in no way precludes the Court from adjudicating upon the claims submitted to it, provided that the legal inter­ests of the third State which may possibly be affected do not form the very subject-matter of the decision that is applied for. Where the Court is so entitled to act, the interests of the third State which is not a party to the case are protected by Article 59 of the Statute of the Court, which provides that “The decision of the Court has no binding force except between the parties and in respect of that particular case.”

55. In the present case, the interests of New Zealand and the United Kingdom do not constitute the very subject-matter of the judgment to be rendered on the merits of Nauru’s Application and the situation is in that respect different from that with which the Court had to deal in the Mon­etary Gold case. In the latter case, the determination of Albania’s respon­sibility was a prerequisite for a decision to be taken on Italy’s claims. In the present case, the determination of the responsibility of New Zealand or the United Kingdom is not a prerequisite for the determination of the responsibility of Australia, the only object of Nauru’s claim. Australia, moreover, recognizes that in this case there would not be a determination of the possible responsibility of New Zealand and the United Kingdom previous to the determination of Australia’s responsibility. It nonetheless asserts that there would be a simultaneous determination of the responsi­bility of all three States and argues that, so far as concerns New Zealand and the United Kingdom, such a determination would be equally pre­cluded by the fundamental reasons underlying the Monetary Gold decision. The Court cannot accept this contention. In the Monetary Gold case the link between, on the one hand, the necessary findings regarding Albania’s alleged responsibility and, on the other, the decision requested of the Court regarding the allocation of the gold, was not purely tem­poral but also logical; as the Court explained,

“In order… to determine whether Italy is entitled to receive the gold, it is necessary to determine whether Albania has committed any international wrong against Italy, and whether she is under an obli­gation to pay compensation to her.” (I.CJ. Reports 1954, p. 32.)

In the present case, a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia. Accordingly, the Court cannot decline to exercise its jurisdiction.

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56.The Court must however emphasize that its ruling in the present Judgment on this objection of Australia does not in any way prejudge the merits. The present Judgment does not settle the question whether repara­tion would be due from Australia, if found responsible, for the whole or only for part of the damage Nauru alleges it has suffered, regard being had to the characteristics of the Mandate and Trusteeship Systems outlined above and, in particular, the special role played by Australia in the admin­istration of the Territory. These questions are to be dealt with at the merits stage.

57. For the reasons given, the Court considers that the fact that New Zealand and the United Kingdom are not parties to the case is no bar to the proceedings brought by Nauru against Australia. The objection put

forward in this respect by Australia must be rejected.

# *

58. Finally, the Court will examine the objections addressed by Aus­tralia to the claim by Nauru concerning the overseas assets of the British Phosphate Commissioners. At the end of its Memorial on the merits, Nauru requests the Court to adjudge and declare that

“the Republic of Nauru has a legal entitlement to the Australian allo­cation of the overseas assets of the British Phosphate Commissioners which were marshalled and disposed of in accordance with the trilateral Agreement concluded on 9 February 1987”

and

“the Respondent State is under a duty to make appropriate repara­tion in respect of the loss caused to the Republic of Nauru as a result of … its failure to recognize the interest of Nauru in the overseas assets of the British Phosphate Commissioners”.

59. The British Phosphate Commissioners were established by Article 3 of the Agreement of 2 July 1919 between the United Kingdom, Australia and New Zealand (see paragraph 42 above); that Article pro­vided for the establishment of a body called “Board of Commissioners”, composed of three members, one to be appointed by each of the Partner Governments. Article 6 provided that the

“title to the phosphate deposits … and to all land, buildings, plant, and equipment on the island used in connection with the working of the deposits shall be vested in the Commissioners”;

Article 9 provided on the one hand that the deposits would “be worked and sold under the direction, management, and control of the Commis­sioners” and, on the other, that it would be the duty of the latter “to dis­pose of the phosphates for the purpose of the agricultural requirements of the United Kingdom, Australia and New Zealand, so far as those require­ments extend”; and, although in accordance with Articles 10 and 11, the sale of phosphates to third States and at market prices was to be excep­tional — it being mandatory for priority sales to the three Partner Govern­ments to be at a price close to the cost price —, Article 12 provided that any surplus funds accumulated as a result of sales to third States or other­wise would

“be credited by the Commissioners to the three Governments… and held by the Commissioners in trust for the three Governments to such uses as those Governments may direct…”.

60. The British Phosphate Commissioners conducted their activities on Nauru, in accordance with the Agreement of 2 July 1919, under the Mandate and then under the Trusteeship. The Agreement concluded on 14 November 1967 between the Nauru Local Government Council, on the one hand, and the Governments of Australia, New Zealand and the United Kingdom, on the other (see paragraph 10 above), provided for the sale to Nauru, by the Partner Governments, of the capital assets of the phosphate industry on the island, which had been vested in the Commis­sioners on behalf of those Governments (Arts. 7-11); the Agreement also provided for the transfer to Nauru of the management and supervision of phosphate operations on the island (Arts. 12-15). The assets of the British Phosphate Commissioners on Nauru were transferred to the Government of Nauru in 1970, after the final payment therefor had been made and the British Phosphate Commissioners thereupon terminated their activities on Nauru. Following the entry into force of an Agreement of 9 June 1981 between New Zealand and Australia, which put an end to the functions that the Commissioners exercised on Christmas Island, Australia, New Zealand and the United Kingdom decided to wind up the affairs of the British Phosphate Commissioners and to divide among themselves the remaining assets and liabilities of the Commissioners: to that end, they concluded on 9 February 1987 an Agreement to “terminate the Nauru Island Agreement [of] 1919”.

*

61. During 1987, there were various exchanges of correspondence between the Parties concerning the winding up of the affairs of the British Phosphate Commissioners. Having requested and obtained confirmation of the intention of the Partner Governments to proceed with the disposal of the assets of the Commissioners, and having asked to be consulted, the Department of External Affairs of Nauru, on 30 January 1987, addressed a Note to the Australian High Commission, in which it requested the said Governments

“to be good enough at least to keep the funds of the British Phosphate Commissioners intact without disbursement until the conclusion of the task of the … Commission of Inquiry (into rehabilitation set up by Nauru on 3 December 1986) [and] that the office records and other documents of the … Commissioners may kindly be kept preserved and that the said Commission of Inquiry be permitted to have access to and use of these records and documents”.

After the conclusion of the Tripartite Agreement of 9 February 1987, the President of Nauru addressed, on 4 May 1987, a letter to the Australian Minister for Foreign Affairs in which, among other things, he stated that:

“My government takes the strong view that such assets, whose ulti­mate derivation largely arises from the very soil of Nauru Island, should be directed towards assistance in its rehabilitation, particu­larly to that one-third which was mined prior to independence.”

By a letter of 15 June 1987, the Australian Minister for Foreign Affairs replied in the following terms:

“The BPC and the Partner Governments have discharged fairly all outstanding obligations. The residual assets of the BPC were not derived from its Nauru operations.”

Lastly, a further letter addressed on 23 July 1987 to the Australian Minis­ter for Foreign Affairs by the President of Nauru contained the following passage:

“I am sure, taking into account my Government’s knowledge of the manner of accumulation of surplus funds by the BPC, that you would not be surprised if I were to say that I find it difficult to accept your statement that the residual assets of the BPC were not derived in part from its Nauru operations. I shall not, however, pursue that here but leave it perhaps for another place and another time.”

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62. Australia asserts that Nauru’s claim concerning the overseas assets of the British Phosphate Commissioners is inadmissible and that the Court has no jurisdiction in relation to that claim, on the grounds that: the claim is a new one; Nauru has not established that the claim arises out of a “legal dispute” between the Parties, within the meaning of Article 36, paragraph 2, of the Statute of the Court; Nauru cannot claim any legal title to the assets in question and has not proven a legal interest capable of justifying its claim in this regard; and each of the objections raised by Australia concerning the other claims by Nauru also applies to the claim relating to the overseas assets.

The Court will first deal with the Australian objection based on its contention that the Nauruan claim is a new one. Australia maintains that the claim in question is inadmissible on the ground that it appeared for the first time in the Nauruan Memorial; that Nauru has not proved the exis­tence of any real link between that claim, on the one hand, and its claims relating to the alleged failure to observe the Trusteeship Agreement and to the rehabilitation of the phosphate lands, on the other; and that the claim in question seeks to transform the dispute brought before the Court into a dispute that would be of a different nature. Nauru, for its part, argues that its claim concerning the overseas assets of the British Phosphate Commis­sioners does not constitute a new basis of claim and that, even if it were formally so, the Court could nevertheless entertain it; that the claim is closely related to the matrix of fact and law concerning the management of the phosphate industry during the period from 1919 until indepen­dence ; and that the claim is “implicit” in the claims relating to the viola­tions of the Trusteeship Agreement and “consequential on” them.

The Court notes in the first place that no reference to the disposal of the overseas assets of the British Phosphate Commissioners appears in Nauru’s Application, either as an independent claim or in relation to the claim for reparation submitted, and that the Application nowhere men­tions the Agreement of 9 February 1987, notwithstanding the statement contained in the letter of the President of Nauru dated 23 July 1987 that he was leaving the matter “perhaps for another place and another time” (see paragraph 61 above). On the other hand, the Court notes that, after reiterating the claims previously made in its Application, Nauru adds, at the end of its Memorial, the following submission:

“Requests the Court to adjudge and declare further

that the Republic of Nauru has a legal entitlement to the Australian allocation of the overseas assets of the British Phosphate Commis­sioners …” (Emphasis added.)

This submission is presented separately, in the form of a distinct para­graph.

Consequently, the Court notes that, from a formal point of view, the claim relating to the overseas assets of the British Phosphate Commis­sioners, as presented in the Nauruan Memorial, is a new claim in relation to the claims presented in the Application. Nevertheless, as the Per­manent Court of International Justice pointed out in the Mavrommatis Palestine Concessions case:

“The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law.” (P.C.IJ., Series A, No. 2, p. 34; cf. also Northern Cameroon, I.C.J. Reports 1963, p. 28.)

The Court will therefore consider whether, although formally a new claim, the claim in question can be considered as included in the original claim in substance.

It appears to the Court difficult to deny that links may exist between the claim made in the Memorial and the general context of the Application. What is more, Australia has acknowledged before the Court that the “assets distributed in 1987 were derived from a number of sources” and that “some of [them] may have been derived from the pro­ceeds of sale of Nauruan phosphate”; and Nauru, in its Application, has alleged that the phosphate industry on the island was carried on in such a way that the real benefit went to the three States — principally Australia —, that exploitation of the phosphate had resulted in the devastation of the land and that inadequate royalties had been paid to the Nauruan people. Moreover, the Court also notes that the diplomatic correspondence exchanged by the Parties in 1987 (see para­graph 61 above) indicates that the Nauruan Government considered that there was a link between its claim for rehabilitation of the worked-out lands and the disposal of the overseas assets of the British Phosphate Commissioners.

The Court, however, is of the view that, for the claim relating to the overseas assets of the British Phosphate Commissioners to be held to have been, as a matter of substance, included in the original claim, it is not suffi­cient that there should be links between them of a general nature. An addi­tional claim must have been implicit in the application (Temple of Preah Vihear, Merits, I.CJ. Reports 1962, p. 36) or must arise “directly out of the question which is the subject-matter of that Application” (Fisheries Juris­diction (Federal Republic of Germany v. Iceland), Merits, I.CJ. Reports 1974, p. 203, para. 72). The Court considers that these criteria are not satis­fied in the present case.

Moreover, while not seeking in any way to prejudge the question whether there existed, on the date of the filing of the Application, a dis­pute of a legal nature between the Parties as to the disposal of the overseas assets of the British Phosphate Commissioners, the Court is convinced that, if it had to entertain such a dispute on the merits, the subject of the dispute on which it would ultimately have to pass would be necessarily distinct from the subject of the dispute originally submitted to it in the Application. To settle the dispute on the overseas assets of the British Phosphate Commissioners the Court would have to consider a number of questions that appear to it to be extraneous to the original claim, such as the precise make-up and origin of the whole of these overseas assets; and the resolution of an issue of this kind would lead it to consider the activi­ties conducted by the Commissioners not only, ratione temporis, after 1 July 1967, but also, ratione loci, outside Nauru (on Ocean Island (Banaba) and Christmas Island) and, ratione materiae, in fields other than the exploitation of the phosphate (for example, shipping).

Article 40, paragraph 1, of the Statute of the Court provides that the “subject of the dispute” must be indicated in the Application; and Ar- tide 38, paragraph 2, of the Rules of Court requires “the precise nature of the claim” to be specified in the Application. These provisions are so essential from the point of view of legal security and the good administra­tion of justice that they were already, in substance, part of the text of the Statute of the Permanent Court of International Justice, adopted in 1920 (Art. 40, first paragraph), and of the text of the first Rules of that Court, adopted in 1922 (Art. 35, second paragraph), respectively. On several occasions the Permanent Court had to indicate the precise significance of these texts. Thus, in its Order of 4 February 1933 in the case concerning the Prince von Pless Administration (Preliminary Objection), it stated that:

“under Article 40 of the Statute, it is the Application which sets out the subject of the dispute, and the Case, though it may elucidate the terms of the Application, must not go beyond the limits of the claim as set out therein …” (P.C.I.J., Series A/B, No. 52, p. 14).

In the case concerning the Societe commercial de Belgique, the Permanent Court stated:

“It is to be observed that the liberty accorded to the parties to amend their submissions up to the end of the oral proceedings must be construed reasonably and without infringing the terms of Ar­ticle 40 of the Statute and Article 32, paragraph 2, of the Rules which provide that the Application must indicate the subject of the dis­pute— it is clear that the Court cannot, in principle, allow a dispute brought before it by application to be transformed by amendments in the submissions into another dispute which is different in character. A practice of this kind would be calculated to prejudice the interests of third States to which, under Article 40, paragraph 2, of the Statute, all applications must be communicated in order that they may be in a position to avail themselves of the right of intervention provided for in Articles 62 and 63 of the Statute.” (P.C.I.J., Series A/B, No. 78, p. 173; cf. Military and Paramilitary Activities in and against Nicara­gua (Nicaragua v. United States of America), Jurisdiction and Admis­sibility, I.C.J. Reports 1984, p. 427, para. 80.)

In the light of the foregoing, the Court concludes that the Nauruan claim relating to the overseas assets of the British Phosphate Commission­ers is inadmissible inasmuch as it constitutes, both in form and in sub­stance, a new claim, and the subject of the dispute originally submitted to the Court would be transformed if it entertained that claim.

The preliminary objection raised by Australia on this point is there­fore well founded. It follows that it is not necessary for the Court to con­sider here the other objections of Australia with regard to the submissions of Nauru concerning the overseas assets of the British Phosphate Com­missioners.

72. For these reasons,

The Court,

(1) (a) rejects, unanimously, the preliminary objection based on the reservation made by Australia in its declaration of acceptance of the com­pulsory jurisdiction of the Court;

(b)                                    rejects, by twelve votes to one, the preliminary objection based on the alleged waiver by Nauru, prior to accession to independence, of all claims concerning the rehabilitation of the phosphate lands worked out prior to 1 July 1967;

in favour: President Sir Robert Jennings; Judges Lachs, Ago, Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Ranjeva;

against: Vice-President Oda;

(c)                                   rejects, by twelve votes to one, the preliminary objection based on the termination of the Trusteeship over Nauru by the United Nations;

in favour: President Sir Robert Jennings; Judges Lachs, Ago, Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Ranjeva;

against: Vice-President Oda;

(d)                                     rejects, by twelve votes to one, the preliminary objection based on the effect of the passage of time on the admissibility of Nauru’s Applica­tion;

in favour: President Sir Robert Jennings; Judges Lachs, Ago, Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Ranjeva;

against: Vice-President Oda;

(e)                                   rejects, by twelve votes to one, the preliminary objection based on Nauru’s alleged lack of good faith;

in favour : President Sir Robert Jennings; Judges Lachs, Ago, Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Ranjeva;

against: Vice-President Oda;

(f)                                   rejects, by nine votes to four, the preliminary objection based on the fact that New Zealand and the United Kingdom are not parties to the pro­ceedings ;

in favour: Judges Lachs, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Ranjeva;

against: President Sir Robert Jennings; Vice-President Oda; Judges Ago, Schwebel;

(g)                                   upholds, unanimously, the preliminary objection based on the claim concerning the overseas assets of the British Phosphate Commissioners being a new one;

(2)     finds, by nine votes to four, that, on the basis of Article 36, para­graph 2, of the Statute of the Court, it has jurisdiction to entertain the Application filed by the Republic of Nauru on 19 May 1989 and that the said Application is admissible;

in favour: Judges Lachs, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Ranjeva;

against: President Sir Robert Jennings; Vice-President Oda; Judges Ago, Schwebel;

(3)     finds, unanimously, that the claim concerning the overseas assets of the British Phosphate Commissioners, made by Nauru in its Memorial of 20 April 1990, is inadmissible.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this twenty-sixth day of June, one thousand nine hundred and ninety-two, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of Nauru and the Government of the Commonwealth of Australia, respectively.

(Signed) R. Y. Jennings, President.

(Signed) Eduardo Valencia-Ospina, Registrar.

Judge Shahabuddeen appends a separate opinion to the Judgment of the Court.

President Sir Robert Jennings, Vice-President Oda, Judges Ago and Schwebel append dissenting opinions to the Judgment of the Court.

(Initialled) R.Y.J. (Initialled) E.V.O.

SEPARATE OPINION OF JUDGE SHAHABUDDEEN

A major point on which the Court has divided is whether Australia may be sued in the absence of New Zealand and the United Kingdom. I pro­pose to give my reasons for agreeing with the decision of the Court on the point. Before proceeding, there is, however, an introductory matter to which I must refer. It concerns the principle of equality of States before the Court. It arises in the following way.

Nauru is one of the smallest States in the world; Australia is one of the larger. In his opening remarks, the Solicitor-General for the Common­wealth observed:

“There is no need for emotive arguments. It is not a case of David and Goliath, or of a tiny island and a large metropolitan power… Before this Court, of course, the equality of the Parties will be preserved. Rich or poor, large or small, the Court will ensure that their legal rights have equal protection.” (CR 91/15, p. 42, Solicitor- General Gavan Griffith, Q.C.)

Counsel for Nauru in his turn referred to the contrasting sizes of the Parties and said:

“Being a small democratic State, Nauru has firm faith in the rule of law in the affairs of nations. It has firm faith in this Court as the dis­penser of international justice.” (CR 91/18, p. 31, Professor Mani.)

It seems to me that, whatever the debates relating to its precise content in other respects, the concept of equality of States has always applied as a fundamental principle to the position of States as parties to a case before the Court (Consistency of Certain Danzig Legislative Decrees with the Con­stitution of the Free City, P.C.I.J., Series A/B, No. 65, p. 66, Judge Anzilotti). In the words of President Basdevant, “Before this Court, there are no great or small States ..(I.C.J. Yearbook 1950-1951, p. 17). States of all kinds and sizes may bring their cases before the Court on a basis of perfect equality. Big States have a right to value this aspect as much as small. In the Mavrommatis Concessions case, Greece sued the United Kingdom before the Permanent Court of International Justice. At one stage in a lively debate, counsel for the United Kingdom found himself remarking that “even the great Powers are entitled to justice at the hands of this Tribunal” (P.C.I.J., Series C, No. 5-1, p. 64). So indeed they are; so are all States. TTie matter has never been in doubt.

1 o return to tne question under examination, as to wnetner Australia may be sued alone, I consider that an affirmative answer is required for three reasons. First, the obligations of the three Governments under the Trusteeship Agreement were joint and several. Second, assuming that the obligations were joint, this did not by itself prevent Australia from being sued alone. Third, a possible judgment against Australia will not amount to a judicial determination of the responsibility of New Zealand and the United Kingdom. These propositions are developed below. I begin, how­ever, with the initial question, over which the Parties also joined issue, as to whether the objection should be declared to be one which does not pos­sess an exclusively preliminary character. Similar questions arose in rela­tion to other Australian objections, but it is not proposed to deal with those. I would add, by way of general caveat, that any reference in this opinion to the obligation, or liability, or responsibility of Australia should be understood as resting on an assumption made for the purposes of argu­ment. Whether or not Australia had any obligation, or liability, or respon­sibility is a matter for the merits.

Part I. Whether the Objection Does Not Possess an Exclusively

Preliminary Character

As is shown by the Military and Paramilitary Activities in and against Nicaragua case, where the Court declares that an objection does not pos­sess, in the circumstances of the case, an exclusively preliminary charac­ter, the objection is not finally disposed of; the Court, at the merits stage, will return to the point and deal with it (see I.C.J. Reports 1984, pp. 425-426, and I.C.J. Reports 1986, pp. 29-31). That being so, a question would seem to arise as to how far Article 79, paragraph 7, of the existing Rules of Court is, in its practical operation, different from the earlier pro­visions of Article 62, paragraph 5, of the Rules of Court 1946 relating to joinder to the merits (see S. Rosenne, Procedure in the International Court, A Commentary on the 1978 Rules of the International Court ofJustice, 1983, pp. 164-166; and Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, 1986, Vol. IV, p. 617). Because of the textual changes made in the Rules in 1972, the Court no longer says in terms that it is joining a preliminary point to the merits; but, the Court’s functions not being activated by the use of formulae, the fact that the Court no longer says so does not by itself affect the substance of what it does.

Nor would it be right to suppose that prior to 1972 the Court considered that it had an unfettered discretion to order a preliminary objection to be joined to the merits. The use of the disjunctive “or” in the first sentence of Article 62, paragraph 5, of the Rules of Court 1946 conveyed no such uuuun. opcatung, ui its puwci iu matte suun an uiuei, in tyot uic uouri

expressly stated that it would

“not do so except for good cause, seeing that the object of a prelimi­nary objection is to avoid not merely a decision on, but even any dis­cussion of the merits” (Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, I.C.J. Reports 1964, p. 44; emphasis added).

That view reached back a long way (Panevezys-Saldutiskis Railway, P.C.I.J., Series A/B, No. 76, p. 24, Judges De Visscher and Rostworowski). The actual results may have been debatable in some cases, but I hesitate to imagine that the Court did not recognize that, in principle, wherever reasonably possible a preliminary objection should be determined at the preliminary stage. In the Barcelona Traction case, after reviewing the previous jurisprudence on the subject, the Court indicated the circum­stances in which it would order a joinder. It said it would do so where

“the objection is so related to the merits, or to questions of fact or law touching the merits, that it cannot be considered separately without going into the merits (which the Court cannot do while proceedings on the merits stand suspended under Article 62), or without prejudg­ing the merits before these have been fully argued” (Barcelona Trac­tion, Light and Power Company, Limited, Preliminary Objections, I.CJ. Reports 1964, p. 43).

What, however, is scarcely open to dispute is that the new Rules were intended to stress the need to decide a preliminary objection at the preli­minary stage wherever reasonably possible, the well-known object being to avoid a repetition of the kind of situation which ultimately arose in the Barcelona Traction case and the criticisms attendant thereon (Barcelona Traction, Light and Power Company, Limited, Second Phase, I.CJ. Reports 1970, p. 3). Fresh urgency has been imparted to the operation of the old criteria, particularly in respect of the Court’s earlier thinking that a join­der should not be ordered “except for good cause” (“pour des motifs serieux”). To the limited extent necessary to enable the Court to determine the objection, the merits may be explored, provided, always, that the issue raised is not so inextricably linked to the merits as to be incapable of determination without determining or prejudging the merits or some part thereof.

These considerations no doubt account for the caution observed by the Court in declaring an objection to be not exclusively preliminary in char­acter. Since the introduction of the new provisions in 1972, the Court has made such a declaration in one case only, namely, the Military and Para­military Activities in and against Nicaragua case. There, certain objections, although not presented by the respondent as preliminary objections, were

uuiisiucrcu in inc iigm ui me piuccuiuai pruvisiuiis iciainig iu pieiiiiiniaiy

objections (l.C.J. Reports 1984, p. 425, para. 76). The Court declared one of the objections to be not exclusively preliminary in character (ibid.). At the merits stage this objection, which related to jurisdiction, was upheld (I.CJ. Reports 1986, p. 38, para. 56). Had it not been for the fact that other grounds of jurisdiction existed, the result would have been a replay of the Barcelona Traction situation. Possibly, any criticisms could have been met in the circumstances of the case. In the case at bar, I am not confident that this would be so if the particular objection under consideration were declared to be not exclusively preliminary in character but ultimately came to be upheld at the merits stage. In that event (unlike the position in the Military and Paramilitary Activities in and against Nicaragua case), the consequence would be the immediate and total collapse of Nauru’s case. Unless it could be convincingly shown that the point could not have been determined at the preliminary stage, it would be difficult to parry criti­cisms about waste of time, expense and effort, not to mention evasion of the Court’s responsibilities.

Nauru’s position was that Australia’s objection did not have an exclu­sively preliminary character and could not be determined now, but that, if it had that character, it should be rejected. Australia countered that the objection did have an exclusively preliminary character and should be upheld. By implication, the Court has agreed with Australia’s contention that the objection did have an exclusively preliminary character. In my view, the Court was right.

What is Nauru’s case? Though variously stated, it comes to this: Nauru is saying that Australia was administering Nauru pursuant to the Trustee­ship Agreement; that this Agreement (read with the Charter and in the light of general international law) required Australia to use the govern­mental powers exercised by it under the Agreement to ensure the rehabili­tation of worked-out phosphate lands; but that, in administering the Territory, Australia breached this obligation.

Australia’s objection is this: the obligation to ensure rehabilitation (if it existed) was, by virtue of the terms of the Trusteeship Agreement, a joint obligation of Australia, New Zealand and the United Kingdom, with the result that Australia alone could not be sued because

(i)          a party to a joint obligation cannot be sued alone;

(ii)      a judgment against Australia in respect of the joint obligation would amount to an impermissible determination of the responsibility of New Zealand and the United Kingdom (both non-parties) in relation to the same obligation (see Judgment, para. 48).

It will be argued below that the existence of the particular obligation to ensure rehabilitation has at this stage to be assumed. Clearly also no ques­tion arises at this point as to whether there was in fact a breach of the obligation. The remaining questions are questions of law which can be answered now. They are clearly of a preliminary character.

With respect to the question whether the particular obligation under the Trusteeship Agreement was joint, it seems to me that it is open to the Court to take the position, as I think it in effect has, that whatever the precise juridical basis of the obligations of the three Governments under the Trus­teeship Agreement, Nauru is not precluded from suing Australia alone. On this approach, the Court is not called upon to say, and has not said, whether or not the particular obligation was joint, as asserted by Australia (see Judgment, para. 48).

However, if the Court were called upon to determine whether the obli­gation was joint, this determination could be made by considering the terms of the Trusteeship Agreement and those terms alone. Previous or subsequent facts could not make the obligation joint if it was not joint under the Trusteeship Agreement. Correspondingly, if the obligation was joint under the Trusteeship Agreement, previous or subsequent facts could not make it other than joint.

I do not intend to suggest that none of the facts may be considered. The facts are useful, but their utility lies in the assistance they provide in under­standing how the Trusteeship Agreement came to be constructed in the way it was and how it worked in practice. In this respect, an abundance of facts has been presented by both sides, and I shall be referring to some of these. But the facts do not themselves constitute the foundation of the par­ticular issues of law now calling for decision. The situation is materially different from one in which the question whether a case against a State is maintainable in the absence of other States may conceivably depend directly on facts which could only be explored and ascertained at the merits (cf. arguments in Military and Paramilitary Activities in and against Nicaragua, Jurisdiction and Admissibility, Memorial of Nicaragua, p. 141, Section “C”; CR 84/19, p. 47, Mr. J. N. Moore; and L. F. Damrosch, “Multilateral Disputes”, in L. F. Damrosch (ed.), The International Court of Justice at a Crossroads, 1987, pp. 391-393).

called a preliminary objection on the merits) must be one which, if decided in one way, will be decisive of the litigation or at any rate of some substantial issue in the actionThe object is, of course, to save time, effort and cost. There have been arguments (though not in this case) as to whether preliminary objections on the merits may competently be made before this Court[1]. However, while reserving my opinion on that point, I would note that the Court’s jurisprudence (including paragraphs 36, 38, 56 and 68 of today’s Judgment) has proceeded on the basis of a long­standing distinction between preliminary objections and the merits, even though one may argue as to whether the distinction, itself rather general and never easy to draw, was accurately applied in particular cases.

What are the merits ? Broadly speaking

“the merits of a dispute consist of the issues of fact and law which give rise to a cause of action, and which an applicant State must establish in order to be entitled to the relief claimed” (Anglo-Iranian Oil Co., Preliminary Objection, I.C.J. Reports 1952, p. 148, Judge Read, dissenting).

To establish its case on the merits, Nauru must prove, inter alia, first, that Australia had an obligation under the Trusteeship Agreement to ensure rehabilitation and, second, that Australia was in breach of that obligation. An argument that Australia did not have that substantive obligation would accordingly concern the merits and lack a preliminary character. It would touch the substance, as amounting to an assertion that there was no obligation under international law which Australia could have breached in relation to Nauru (see the general reasoning in Electricity Company of Sofia and Bulgaria, P.C.I.J., Series A/B, No. 77, pp. 82-83; Barcelona Traction, Light and Power Company, Limited, Preliminary Objec­tions, I.CJ. Reports 1964, pp. 44-46, and Judge Morelli, dissenting, at pp. 110-112; ibid., Second Phase, I.CJ. Reports 1970, pp. 226 ff., Judge Morelli, concurring; and South West Africa, Second Phase, I.CJ. Reports 1966, p. 19, para. 7). An argument of that kind would go not to the question whether Australia could be sued alone, but to the question whether Australia could be adjudged liable, even if it could be sued alone.

Consequently, the question whether Australia had the obligation to ensure rehabilitation cannot be determined in this phase of the proceed­ings; it can only be determined at the merits stage. The existence of the obligation has simply to be assumed at this point. This being so, the only issues now open are the issues of law referred to above, that is to say, whether the obligation (if it existed) was joint, and, if it was, whether the propositions at (i) and (ii) above are well founded. These issues can be determined now and cannot justifiably be reserved for the merits. Nothing relating to the establishment at the merits stage of the existence of the alleged obligation to ensure rehabilitation can provide a reason for not dealing with those issues now.

In my opinion, the Court acted correctly in refraining from declaring that the objection as to the absence from the proceedings of New Zealand and the United Kingdom does not possess an exclusively preliminary character. So I pass to the objection itself, beginning with a background reference to Australia’s position under the Trusteeship Agreement.

Part II. Australia’s Position under the Trusteeship Agreement

An appreciation of Australia’s position under the Trusteeship Agree­ment should take account of two factors, first, the evolution of Australia’s international personality during the Mandate period, and, second, the legal character of a trusteeship agreement.

The first factor relates to the external aspects of the constitutional evo­lution of the relations between component units of the British Empire (see, generally, Sir Ivor Jennings, Constitutional Laws of the Common­wealth,, Vol. 1, The Monarchies, 1957, pp. 18 ff.). It is probable that the underlying doctrine of the unity of the British Crown, which was then cur­rent, explains the fact that, although Nauru was in practice administered by Australia under the 1920 Mandate, the latter was conferred simply on “His Britannic Majesty”. Traces of the doctrine are perhaps discernible even in the case of the Mandate for New Guinea, in which the Mandatory was described as “His Britannic Majesty for and on behalf of the Government of the Commonwealth of Australia (hereinafter called the Mandatory)” (Art. 1 of the Mandate, 17 December 1920, Proces- Verbal of the Eleventh Session of the Council of the League of Nations, held at Geneva, p. 102; see also the second and third preambular para­graphs, and A. C. Castles, “International Law and Australia’s Overseas Territories”, in International Law in Australia, ed. D. P. O’Connell, 1965, pp. 294-295).

By contrast, Article 2 of the 1947 Trusteeship Agreement for Nauru made a separate reference to each of the three Governments when speak­ing of the “Governments of Australia, New Zealand and the United King­dom” as having been “designated as the joint Authority which will exer­cise the administration of the Territory”. Further, as will be shown below, by the Agreement itself Australia was given the leading role. The material before the Court makes it clear that during the Mandate period Australia had been moving in the direction of securing a progressively greater degree of practical control over the administration of Nauru, an aspira­tion which had been earlier manifested in the expression of a desire by Australia to annex the Island before the granting of the Mandate. Corre­spondingly, by 1947, what Chief Justice Sir Garfield Barwick elegantly called the “imperceptible and, in relative terms, the uneventful nature of the progress of Australia from a number of separate dependent colonies to a single independent and internationally significant nation” had run its full course[2].

With respect to the second factor, trusteeship agreements exhibit pecu­liarities which have left the precise legal character of such agreements open to some degree of speculation, as is evidenced by an interesting literature on the subject. Professor Clive Parry’s conclusion is this:

“As actually achieved in the form of treaties between the United Nations and the several administering authorities, the trusteeship agreements are legal acts distinct from the Charter. They possess, however, a dispositive (or conveyancing) as well as a contractual character. In their ‘dispositive’ aspect they are not independent of the Charter. Together with the relevant provisions of the Charter they constitute a quasi-statutory basis for the trusteeship system as in fact applied to specific territories. They have, as has the regime which they inaugurate and govern, an objective character. This is perhaps their most important aspect.” (Clive Parry, “The Legal Nature of the Trusteeship Agreements”, British Year Book of International Law, Vol. 27,1950, p. 164, at p. 185.)

These remarks may be borne in mind, in conjunction with the evolution of Australia’s international personality, in considering Article 4 of the Trusteeship Agreement relating to Nauru, which provided as follows:

“The Administering Authority will be responsible for the peace, order, good government and defence of the Territory, and for this purpose, in pursuance of an Agreement made by the Governments of Australia, New Zealand and the United Kingdom, the Government of Australia will, on behalf of the Administering Authority and except and until otherwise agreed by the Governments of Australia, New Zealand and the United Kingdom, continue to exercise full powers of legislation, administration and jurisdiction in and over the Territory.”

As a result of the dual contractual and “quasi-statutory” character of a trusteeship agreement, and whatever might have been the earlier implica­tions of the first factor mentioned above, it is possible to read this provi­sion, which came into force in 1947, as providing (with the approval of the General Assembly), first, for full powers of administration to be vested in the three Governments as constituting the Administering Authority, and, second, for these powers to be delegated by them to Australia. This inter­pretation is supported by other elements of the Trusteeship Agreement. It is difficult, therefore, to resist Australia’s argument that, however exten­sive was its administrative authority over Nauru, that authority fell to be regarded in law as having been exercised by it on behalf of all three Governments.

But, although form is not unimportant, international law places empha­sis on substance rather than on form (Mavrommatis Palestine Concessions, P.C.I.J., Series A, No. 2, p. 34; Interhandel, I.C.J. Reports 1959, p. 60, Judge Spender; Barcelona Traction, Light and Power Company Limited, Preliminary Objections, I.CJ. Reports 1964, pp. 62-63, Judge Koo; and, ibid., Second Phase, I.CJ. Reports 1970, p. 127, Judge Tanaka). Some notice may, therefore, be taken of the extent and exclusiveness of the powers enjoyed by Australia, and, in particular, of certain differences between its position and that of New Zealand and the United Kingdom which could have a bearing on some of the issues to be examined.

The provisions of the Trusteeship Agreement do not readily yield up the reality of the actual power structure which they laid down. The first part of Article 4 of the Agreement had the effect of vesting plenary powers of government in the three Governments as constituting the Administering Authority; but the second part of the provision made it clear that, for all practical purposes, those powers could be exercised only by Australia, which was given the right to “continue to exercise full powers of legisla­tion, administration and jurisdiction in and over the Territory”. The authority so conferred on Australia could be revoked by subsequent agreement by the three Governments, but, clearly, there could be no such revocation without the consent of Australia. In fact, there was no revoca­tion: the Agreement made by the three Governments in 1965, while pro­viding for a measure of subordinate governmental authority to be exer­cised by the Nauruans, had the effect of further diminishing the role of New Zealand and the United Kingdom in relation to that of Australia. Thus, Australia had exclusive authority to administer Nauru for all practi­cal purposes, as well as the even more significant power to prevent any diminution or withdrawal of that authority. Australia’s controlling posi­tion continued unimpaired right up to independence.

The implications for an appreciation of the real power structure established by the Trusteeship Agreement are important. Take Article 5, paragraph 1, of the Trusteeship Agreement. This recorded an under­taking by the “Administering Authority” that

“It will co-operate with the Trusteeship Council in the discharge of all the Council’s functions under Articles 87 and 88 of the Charter.”

Or, consider Article 5, paragraph 2 (b), of the Trusteeship Agreement, under which the “Administering Authority” undertook to

“Promote, as may be appropriate to the circumstances of the Territory, the economic, social, educational and cultural advance­ment of the inhabitants.”

It is not clear to me that the Administering Authority could do any of these things without an appropriate exercise by Australia of its “full powers of legislation, administration and jurisdiction in and over the Territory”. However, the Trusteeship Agreement did not reserve to the Administering Authority any competence to direct or control the way in which Australia chose to exercise its “full powers”, and the evidence does not suggest that Australia acknowledged that the Administering Authority had any such competence as of right. In so far as the Administering Authority had any functions under the Trusteeship Agreement that could be discharged without an exercise by Australia of its “full powers of legislation, adminis­tration and jurisdiction in and over the Territory” (which seems doubtful), such functions had nothing to do with the substance of the claims pre­sented by Nauru. And this is apart from the consideration that, in the first place, the Administering Authority could not act without the concurrence of Australia. The Parties to the case were agreed that the Administering Authority was not a separate subject of international law or a legal entity distinct from its three member Governments. These could act only by agreement, and there could be no agreement if Australia objected.

Australia submitted that it acted with the concurrence of New Zealand and the United Kingdom in appointing Administrators of the Trust Terri­tory (Preliminary Objections of the Government of Australia, Vol. I, paras. 36,45,334 ff., and 341). However, none of the pertinent documents suggests that New Zealand and the United Kingdom had any legal basis on which to demand to be consulted as of right, let alone demand that their concurrence be obtained. New Zealand and the United Kingdom participated in the negotiations and ensuing agreement for the transfer of the phosphate undertaking to Nauruan control; but the real basis on which they were acting there was the commercial one which they occupied as part-owners of the undertaking and future purchasers of Nauruan phosphates. In so far as the negotiations embraced the subject of rehabili­tation, this did not show that New Zealand and the United Kingdom had any control of the actual administration of the Trust Territory: under the Trusteeship Agreement their responsibility for non-rehabilitation could exist without such control. The law is familiar with situations in which a party may become contractually liable for the acts of another though hav­ing no power of direction or control over them. Possibly, the concurrence of New Zealand and the United Kingdom was legally required in respect of a proposal, such as that relating to resettlement, which premised a modification of the fundamental basis of the original arrangements, or that relating to independence, which premised the termination of the Trusteeship Agreement itself; but I am unable to see that there was any such requirement, as a matter of law, where the normal administra­tion of the Territory was concerned.

The first preamble of the Trusteeship Agreement recalled that, under the Mandate, the Territory of Nauru had “been administered … by the Government of Australia on the joint behalf of the Governments of Australia, New Zealand, and the United Kingdom of Great Britain and Northern Ireland”. Thus, the Trusteeship Agreement itself recognized that the administration of the Island had in practice been in the hands of Australia during the Mandate. This, of course, continued under the Trus­teeship (see para. 43 of the Judgment). The position was, I think, correctly summed up by counsel for Nauru as follows:

“Nauru was administered as an integral portion of Australian ter­ritory. Its administration bore no relation to the territory of any other State. As far as can be discovered, no governmental official of either New Zealand or the United Kingdom lived on Nauru during the period from 1920 to early 1968, or performed governmental acts there. Throughout the whole of that period, the government officials on Nauru, the Administrator and the persons responsible to him, were Australian public servants, answerable to other Australian public servants in Canberra, and in no sense subject to the direction or control of any other Government. Article 22 of the Covenant referred to administration ‘under the laws of the Mandatory’: in fact, those laws were Australian. No British or New Zealand law was ever applied to Nauru.” (CR 91/20, pp. 75-76, Professor Crawford.)

The international agreements which applied to Nauru were a selection of international agreements to which Australia was a party (ibid., p. 78). Although independence had been agreed to by all three Governments, the Nauru Independence Act 1967 was an Australian enactment; no counter­part legislation was enacted by New Zealand or the United Kingdom. Until independence the flag — the only one — which flew in Nauru was the Australian flag.

I am not persuaded by Australia’s argument that its governmental authority was excluded from the phosphate industry by reason of Article 13 of the Nauru Island Agreement 1919, reading:

“There shall be no interference by any of the three Governments with the direction, management, or control of the business of work­ing, shipping, or selling the phosphates, and each of the three Gov­ernments binds itself not to do or to permit any act or thing contrary to or inconsistent with the terms and purposes of this Agreement.”

Referring to this provision, in the case of Tito v. Waddell, Megarry, V-C., observed — correctly, if I may say so — that:

“This article established the independence of the British Phos­phate Commissioners as against any one or two of the three govern­ments, though not, of course, against all three acting in concert.” ([1977] 3 All ER 129, at p. 166.)

Article 13 of the Nauru Island Agreement could not apply to Australia as Administrator for the reason that, in administering Nauru under author­ity delegated by all three Governments, its acts would in substance have been the acts of all three Governments “acting in concert”, and not the acts of Australia alone.

It is not possible to conceive of the major industry of a Territory (irre­spective of ownership) being entirely beyond the competence of the legis­lative, executive and judicial powers of the Territory, in whomsoever these are vested. Consequently, to hold that the governmental powers of the Australian-appointed Administrator did not extend to the phosphate industry and that this was exclusively within the competence of the three Governments acting through the British Phosphate Commissioners (BPC) is effectively to hold that governmental powers concerning all mat­ters relating to the industry were exercisable by the three Governments acting through BPC. This in turn amounts to saying that there were two governments in Nauru, namely, an economic government administered by the three Governments acting through BPC with exclusive responsibi­lity for the Territoiy’s main industry, and another government adminis­tered by Australia with responsibility for residual matters. I cannot read the Trusteeship Agreement as meaning that the regime which it intro­duced in Nauru in 1947 consisted of two such governments. It is, I think, unquestionable that all governmental power must derive from the Trus­teeship Agreement (see, as to a mandate, International Status of South West Africa, I.CJ. Reports 1950, p. 133). BPC (whose undertaking could equally have been carried on by an ordinary commercial company as, indeed, had been earlier the case) did not profess to be exercising govern­mental powers under the Trusteeship Agreement: it simply had no stand­ing under that Agreement. On the other hand, as the legislative and other evidence shows, Australia did not consider that its Administrator was wholly without competence over the industry. The Trusteeship Agree­ment was concluded on the basis that all governmental functions in Nauru, though formally vested in all three Governments, would be exer­cised by Australia alone. It is untenable to suppose that the “full powers of legislation, administration and jurisdiction in and over the Territory”, which were conferred on Australia by the Trusteeship Agreement, were not “full” enough to extend to the overwhelming bulk of the Territory’s economy.

Part of the problem concerns the correct appreciation of Nauru’s case. There could be an impression that Nauru’s claims directly concern Aus­tralia’s part in the commercial operations of the phosphate industry. That impression would not be accurate. No doubt, Nauru’s case has many branches; but the essence of the case — whether it is well founded or not being a matter for the merits — is that Australia, while having under the Trusteeship Agreement “full powers of legislation, administration and jurisdiction in and over the Territory”, failed to exercise these compre­hensive governmental powers so as to regulate the phosphate industry in such a way as to secure the interests of the people of Nauru (CR 91/20, p. 83, and CR 91/22, p. 45, Professor Crawford). In particular, says Nauru, there was failure to institute the necessary regulatory measures to ensure the rehabilitation of worked-out areas, not in the case of mining in any country, but in the case of large-scale open-cast mining in the min­uscule area of this particular Trust Territory. The consequence, according to Nauru, was that the Territory became, or was in danger of becoming, incapable of serving as the national home of the people of Nauru, con­trary to the fundamental objectives of the Trusteeship Agreement and of the Charter of the United Nations. In this respect, the question, as I under­stand it, is not simply whether rehabilitation was required by such environmental norms as were applicable at the time; the question is whether rehabilitation was required by an implied obligation of Australia under the Trusteeship Agreement not to allow the destruction of the small national homeland of the Nauruan people, or any substantial part of it, through an unregulated industrial process which went so far as to result at one stage in the making and consideration of serious proposals for resettlement of the Nauruan people altogether outside of Nauru. That, I think, is Nauru’s case.

There is no basis for suggesting that New Zealand and the United King­dom had any capacity, as of right, to require Australia to use the govern­mental powers, which it alone could exercise, for the purpose of legally ensuring rehabilitation. No doubt, having accepted that Australia was act­ing on their behalf, with the possibility that they could in consequence be liable for its acts, New Zealand and the United Kingdom had an interest in seeing that Australia discharged the responsibilities of the Administering Authority in a satisfactory way. But “the existence of an ‘interest’ does not of itself entail that this interest is specifically juridical in character” (South West Africa, Second Phase, I.CJ. Reports 1966, p. 34, para. 50). An interest is not always a right (Barcelona Traction, Light and Power Company, Limited, Second Phase, I.CJ. Reports 1970, pp. 36,38, and Judge Morelli at pp. 235-237): in this case, given the terms of Article 4 of the Trusteeship Agreement, New Zealand and the United Kingdom had no capacity as of right to control the course of Australia’s conduct of the administration of the Island. Presumably, they had some influence; but, as Jenks remarked, even where influence is considerable, “influence is less than power” (C. W. Jenks, The World Beyond the Charter, 1969, p. 99).

Judge Hudson once warned that “[a] juristic conception must not be stretched to the breaking-point” (Lighthouses in Crete and Samos, P.C.I J., Series A/B, No. 71, p. 127). In the circumstances of that case, he had occa­sion to add that “a ghost of a hollow sovereignty cannot be permitted to obscure the realities of [the] situation” in Crete. No questions of sover­eignty arise here; nevertheless, those remarks may be borne in mind in considering the realities of the situation in Nauru. In law, Australia was acting on behalf of all three Governments; and Australia is right in saying that this circumstance was consistently reflected in the positions taken by the United Nations and by Nauru. But it would be erroneous to suppose that New Zealand and the United Kingdom were also administering Nauru in the sense of having any real say in its administration; they had none.

Part III. The Obligations of the Three Governments Were Joint and Several, with the Consequence that Australia Could

Be Sued Alone

I come now to the question whether the obligations of the three Govern­ments were joint, as contended by Australia, or whether they were joint and several, as contended by Nauru.

I understood counsel for Australia to be accepting that the international case-law does not support the Australian view that the obligations of the three Governments were joint, even if he considered that neither does it support the Nauruan view that the obligations were joint and several (CR 91/21, pp. 63-64, Professor Pellet, stating that “le match est nul”).

As regards the work produced by the International Law Commission, which was laid by either side before the Court, the statement of counsel for Australia was this:

“the International Law Commission has never expressly adopted a position on the problem under consideration, displaying great reticence as regards the very idea of joint and several liability” (ibid., p. 65).

out reticence is not resistance, ine rarues disputed ine precise meaning of paragraph 2 of the commentary on Article 27 of the Commission’s Draft Articles on State Responsibility of 1978. That paragraph states in relevant part:

“A similar conclusion is called for in cases of parallel attribution of a single course of conduct to several States, as when the conduct in question has been adopted by an organ common to a number of States. According to the principles on which the articles of chapter II of the draft are based, the conduct of the common organ cannot be considered otherwise than as an act of each of the States whose com­mon organ it is. If that conduct is not in conformity with an interna­tional obligation, then two or more States will concurrently have committed separate, although identical, internationally wrongful acts. It is self-evident that the parallel commission of identical offences by two or more States is altogether different from partici­pation by one of those States in an internationally wrongful act com­mitted by the other.” (Yearbook of the International Law Com­mission, 1978, Vol. II, Part Two, p. 99.)

It is not necessary to enter into the general aspects of the difficult ques­tion carefully examined by the Commission as to when a State is to be regarded as participating in the internationally wrongful act of another State. It suffices to note that the Commission considered that, where States act through a common organ, each State is separately answerable for the wrongful act of the common organ. That view, it seems to me, runs in the direction of supporting Nauru’s contention that each of the three States in this case is jointly and severally responsible for the way Nauru was administered on their behalf by Australia, whether or not Australia may be regarded technically as a common organ.

Judicial pronouncements are scarce. However, speaking with reference to the possibility that a non-party State had contributed to the injury in the Corfu Channel case, Judge Azevedo did have occasion to say:

“The victim retains the right to submit a claim against one only of the responsible parties, in solidum, in accordance with the choice which is always left to the discretion of the victim, in the purely econ­omic field; whereas a criminal judge cannot, in principle, pronounce an accomplice or a principal guilty without at the same time estab­lishing the guilt of the main author or the actual perpetrator of the offence.” (I.CJ. Reports 1949, p. 92.)[3]

On the facts, the Corfu Channel case allows for a number of distinctions.

However, it is to be observed tnat Juage Azeveao s basic view ot tne gen­eral law was that the right to sue “one only of the responsible parties, in solidum” was available to the injured party “in accordance with the choice which is always left to the discretion of the victim, in the purely economic field …” (emphasis added). This approach would seem to be consistent with the view that Nauru does have the right to sue Australia alone.

If domestic analogies are to be considered, the most likely area lies within the broad principles of the law of trust in English law and of cog­nate institutions in other systems. A United Nations Trusteeship must not, of course, be confused with a trust as understood in any specific system of municipal law; but, used with discretion, the principles relating to the latter are not unhelpful in elucidating the nature of the former. As Judge McNair said, in relation to Mandates, it “is primarily from the principles of the trust that help can be obtained on the side of private law” (International Status of South West Africa, I.CJ. Reports 1950, p. 151; and see, ibid., pp. 148,149,152, and the Namibia case, I.C.J. Reports 1971, p. 16, at p. 214, Judge de Castro). Now, the applicable rule in the English law of trusts has been stated thus :

“Where several trustees are implicated in a breach of trust, there is no primary liability for it between them, but they are all jointly and severally liable to a person who is entitled to sue in respect of it.” (Halsbury’s Laws of England, 4th ed., Vol. 48, p. 522, para. 939; see also, ibid., p. 539, para. 971, and ibid., Vol. 35, para. 68.)

This being so, I do not find it surprising that, in regard to Nauru, the view has been expressed “that the three countries are jointly and severally responsible under international law for the administration of the terri­tory” (A. C. Castles, “International Law and Australia’s Overseas Territo­ries”, in International Law in Australia, ed. D. P. O’Connell, 1965, p. 332). I think this view is to be preferred to the view that the responsibility was exclusively joint.

This conclusion, that the obligation to ensure rehabilitation (if it existed) was joint and several, disposes of Australia’s contention that pro­ceedings will not lie against one only of the three Governments. It should also dispose of Australia’s contention that any judgment against Australia will amount to a judgment against New Zealand and the United King­dom. But Australia does not think so; it considers that, even if the obliga­tion was joint and several, a judgment against it would still imply a determination of the responsibility of New Zealand and the United King­dom. The issue concerning the implications of a possible judgment against Australia for New Zealand and the United Kingdom is not being examined here; it will be examined in Part V. However, to anticipate the conclusion reached there, even if the obligation was joint, a judgment against Australia will not amount to a determination ot the responsibility of New Zealand and the United Kingdom. This conclusion, if correct, would apply a fortiori if the obligation was joint and several.

Part IV. Even If the Obligations of the Three Governments Were Joint, This by Itself Did Not Prevent Australia from Being Sued

Alone

Assuming that I am wrong in the foregoing, the result would be no dif­ferent, in my opinion, even if the obligations of the three Governments under the Trusteeship Agreement were joint. It is possible, as I think is recognized in paragraphs 48 and 49 of the Judgment of the Court, to see Australia’s argument as raising two questions: first, whether the fact that an obligation is joint by itself means that a suit will not lie against one co-obligor alone; and, second, whether a judgment against one co-obligor will constitute a determination of the responsibility of the other co- obligors and a resulting breach of the consensual basis of the Court’s jurisdiction. The second question is examined in Part V; the first is considered below.

On the question being considered, I agree with Australia that “there are in reality two separate and distinct issues”, namely, “whether Australia alone can be sued, and, if so, whether it can be sued for the whole damage” (Preliminary Objections of the Government of Australia, Vol. I, p. 131, para. 320). However, in my view, if the answer to the first issue is that Australia alone can be sued, the second issue, concerning the extent of the damage for which it may be sued, is a matter for the merits. The two issues being admittedly “separate and distinct”, once it is accepted that Australia alone may be sued, I do not see how the question of the exact extent of the damage for which it is responsible can be made to take the form of a plea in bar of a suit otherwise properly brought against it. I believe this approach accords with the position taken by the Court in paragraph 48 of the Judgment. Accordingly, I shall be focusing on the first of these two issues, that is to say, whether Australia alone may be sued in respect of a joint obligation.

While refraining from citing and discussing particular texts, I cannot say that I have the impression that the valuable work of the International Law Commission, which was placed before the Court by the Parties, was directed to the question of pure principle as to whether a party to an act done at one level or another of association with another party may be sued alone. In so far as the work of the Commission deals with acts of that kind, it appears to be directed to the question whether, in a suit brought against any one such party, the claim may be for the entirety of the resulting damage or only for such part as is proportionate to the extent of that party’s own participation in the causative act, done in the exercise of its separate sovereign power. If a joint obligation is conceived of as an obli­gation which in law is capable of existing only in relation to all the co-obli­gors as a group, without any one of them being individually subject to it, this would be a ground for saying that proceedings will not lie against any one of them separately. On this aspect, Australia’s pleadings are open to different interpretations (CR 91/20, p. 63, Professor Crawford, and Preli­minary Objections of the Government of Australia, Vol. I, p. 3, para. 2, penultimate sentence, and p. 131, para. 321). However, I do not think that Australia is contending that, standing by itself, it was not subject to the obligations of the Trusteeship Agreement; if it were, it would, for reasons given under Part I above, be raising an issue of the merits, since it would in effect be saying that the obligation at international law, which Nauru alleges that it breached, simply did not exist. The general tendency of doc­trinal writings, as I appreciate them, does not take the matter any further.

While properly acknowledging the need for caution in transposing legal concepts from domestic societies to the international community, both Parties presented municipal law materials and sought some support from them for their respective contentions. I am not acquainted with non- Anglo-Saxon legal systems but, subject to the same need for circumspec­tion — a need that I emphasize — I will consider briefly the position in English law, as I understand it.

In the case of a joint tort, in English law the plaintiff can always sue any or all of the tortfeasors, because, as it was said over two hundred years ago, “a tort is in its nature the separate act of each individual” (Egger v. Viscount Chelmsford [1964] 3 All ER 412 CA; and Clerk and Lindsell on Torts, 16th ed., p. 179, para. 2.53). This rule applies also to torts committed by partners (Halsbury’s Laws of England, 4th ed., Vol. 35, para. 67). The real problem was different; it was this, that “recovery of judgment against one of a number of joint tortfeasors operated as a bar to any further action against the others, even though the judgment remained unsatisfied” (Clerk and Lindsell on Torts, 16th ed., p. 180, para. 2.54). This bar was removed by Section 6 of the Law Reform (Married Women and Tortfea­sors) Act 1935 (replaced by the Civil Liability (Contribution) Act 1978), under which judgment against one joint tortfeasor is no bar to action against others, subject to considerations of aggregation and costs. Clearly, however, even before the 1935 enactment, there was nothing in principle to prevent the plaintiff from suing one only of a number of joint tort­feasors.

In the case of joint contractors the procedural position in 1967 was stated thus:

“A defendant has a prima facie right to have his co-contractor

joined as defendant and in the absence of special circumstances showing that [an] order [staying the proceedings until joinder was effected] should not be made, it is the practice to make it;… But if it is shown that there is any good reason to the contrary, e.g., that the new party is out of the jurisdiction (Wilson v. Balcarres, etc., Co. [ 1893] 1 QB 422), or that every effort has been made to serve him without success, then the action may be allowed to proceed without joinder (.Robinson v. Geisel [1894] 2 QB 685, CA).” (The Supreme Court Practice 1967, Vol. 1, p. 154, Order 15/4/10; and see Chitty on Con­tracts, 26th ed., Vol. 1, pp. 807-808, para. 1303, and G. H. Treitel, The Law of Contract, 6th ed., p. 444.)

The related common law rule was that “an action against a joint contrac­tor served to bar any other proceedings against another joint contractor” (Chitty on Contracts, 26th ed., Vol. 1, p. 807, para. 1303). This rule was later abolished by Section 3 of the Civil Liability (Contribution) Act 1978, under which a plaintiff may sue one of several joint contractors without prejudice to his right to sue others later (ibid., p. 809, para. 1306, and The Supreme Court Practice, 1991, Vol. 1, London, 1990, p. 185, Order 15/4/10).

Nauru argues persuasively that

“the Court is not competent in the present proceedings to interpret any provisions in the Optional Clause declarations of the United Kingdom and New Zealand that they might seek to rely on if they were parties to proceedings commenced by Nauru” (CR 91 /20, p. 90, Professor Crawford);

and certainly the position under the two declarations is not equally clear. But, if the Court may not make any interpretation of its own, it may never­theless notice that it is Australia, the proponent of the preliminary objec­tion, which is itself affirming that the Court would not have jurisdiction under those declarations against New Zealand and the United Kingdom if Nauru were to sue them (CR 91/17, pp. 20, 21, 26, 46, 48, Professor Pellet; and Preliminary Objections of the Government of Australia, Vol. I, p. 138, para. 346). In my view, the possibility, insisted on by Australia itself, that there would be no jurisdiction in respect of New Zealand and the United Kingdom constitutes a reasonable approximation to the exception in English law (even as it stood before 1978) which permitted of an action being brought against one of a number of joint contractors if, for reasons of jurisdiction or service, it was not practicable to join the others. That possibility also serves to attract attention to the Court’s statement in 1984 to the effect that, in the absence of any system of compulsory intervention, and barring the operation of the Monetary Gold principle (an aspect dealt with in the following Part), “it must be open to the Court, and indeed its duty, to give the fullest decision it may in the circumstances of each case” (Continental Shelf (Libyan Arab Jamahiriya/Malta), Applica­tion for Permission to Intervene, I.C.J. Reports 1984, p. 25, para. 40).

One of the books cited by Australia, and relied on by it, in its survey of domestic legal systems, was Glanville Williams, Joint Obligations, Lon­don, 1949 (Preliminary Objections of the Government of Australia, Vol. I, p. 128, para. 309). The particular reference was to page 35, paragraph 2. Two pages earlier, speaking of joint promises, that learned author expressed the view that “Bowen L.J. stated the rule clearly” when he said :

“There is in the cases of joint contract and joint debt as distin­guished from the cases of joint and several contract and joint and several debt, only one cause of action. The party injured may sue at law all the joint contractors or he may sue one, subject in the latter case to the right of the single defendant to plead in abatement; but whether an action in the case of a joint debt is brought against one debtor or against all the debtors … it is for the same cause of action — there is only one cause of action. This rule, though the advantage or disadvantage of it may have been questioned in times long past, has now passed into the law of this country.” (Glanville Williams, op. cit., pp. 33-34, citing Re Hodgson, Beckett v. Ramsdale, (1885) 31 Ch. D. 177, at p. 188, CA; emphasis added.)

Subject to the right to plead in abatement, Glanville Williams did not appear to think that the fact that a contractual obligation is joint operates in principle to preclude the plaintiff from suing one only of the joint con­tractors.

It does not appear to me that recourse to municipal law, in so far as I have been able to explore it, yields any satisfactory analogies supportive of the suggested existence of any rule of international law precluding the present action on the ground that the obligation was joint. On balance, the general trend of the references given by the Parties to non-Anglo-Saxon legal systems is not, I believe, at variance with this conclusion (see, also, the authorities cited in the Memorial of the United States of America of 2 December 1958 in I.C.J. Pleadings, Aerial Incident of 27 July 1955, pp. 229 ff.).

As has often been remarked, to overestimate the relevance of private law analogies is to overlook significant differences between the legal framework of national societies and that of the international community, as well as differences between the jurisdictional basis and powers of the Court and those of national courts; “lock, stock and barrel” borrowings would of course be wrong (International Status of South West Africa, I.C.J. Reports 1950, p. 148, Judge McNair). On the other hand, nothing in those differences requires mechanical disregard of the situation at munici­pal law; to speak of a joint obligation is necessarily to speak of a munici­pal law concept. The compulsory or involuntary character of municipal jurisdiction, with its facilities for enforcing contribution among co-obli­gors, does not, I think, wholly account for the fact that, at municipal law, a suit may be competently brought against one co-obligor in respect of a joint obligation. If for any reason it is impossible to enforce or obtain con­tribution among the co-obligors, this does not absolve an available co- obligor from liability to the obligee. The obligee is not entitled to collect the full amount repetitively from each of the co-obligors; but he is entitled to collect the full amount by suing any or all of them. Possibly, at interna­tional law, there could be a question as to whether a suit against one co- obligor may be for the full amount; but I am unable to see how this could affect his liability in principle to separate suit.

Further, any question whether there is a right of contribution would constitute a separate dispute between co-obligors to be separately resolved by any appropriate means of peaceful settlement. As indicated above, international judicial settlement differs from municipal judicial settlement in important ways; though it is in a real sense the ultimate method of peaceful settlement of international disputes, it does not enjoy the jurisdictional primacy enjoyed by municipal judicial settlement among other settlement mechanisms. The fact that recourse to the Court may not be open to a party seeking contribution is not decisive (cf. J. H. RaynerLtd. v. Department ofTrade[1990] 2 AC 418 HL, at p. 480, letter F). The claim to contribution may be pursued in other ways. This perspective is not, I believe, very different in principle from that adopted by counsel for Australia when he argued, as I understood him, to the effect that a decision of the Court upholding Australia’s preliminary objection as to the absence of New Zealand and the United Kingdom would result in Nauru not obtaining any legal ruling on the merits, but would not deprive Nauru of the opportunity of pursuing its claim in other ways (CR 91/21, p. 68). In international law a right may well exist even in the absence of any juridical method of enforcing it (Eugene Borel, “Les voies de recours contre les sentences arbitrales”, Recueil des cours de I’Academie de droit international de La Haye, Vol. 52 (1935-11), pp. 39-40). Thus, whether there is a right to contribution does not neces­sarily depend on whether there exists a juridical method of enforcing contribution.

In considering whether the legal rule contended for by Australia exists, I would remind myself of the following statement by Charles De Visscher:

“The temptation to formalism, and the proneness to generalization by abstract concepts and to premature systematization, represent one of the most serious dangers to which international-law doctrine is still exposed. It escapes only by constant return to respect for facts and by exact observation of the concrete and very special conditions which in the international domain contribute to forming the legal rule and govern its applications. Of course the legal rule never embraces social reality in all its fullness and complexity. Attempting to do so, law would risk compromising its proper ends as well as over­shooting its possibilities. If abstraction carried to an extreme degen­erates into unreality, individualization pushed to excess leads to the destruction of the rule. International justice especially must maintain a proper relationship between social data and the rules designed to govern them.” (Charles De Visscher, Theory and Reality in Public International Law, trans. P. E. Corbett, 1968, p. 143.)

Possibly, these words could offer comfort to both of the competing points of view on the question whether there is a legal rule precluding an action against one only of a number of joint actors. The implications of holding that there is such a rule can only be grasped and evaluated by reference to concrete cases exemplifying its operation.

In this case, Australia (which is before the Court) accepts that it “exer­cised actual administration of the territory of Nauru” (Preliminary Objections of the Government of Australia, Vol. I, p. 136, para. 339); its argument is that it was doing so on behalf of itself, New Zealand and the United Kingdom as together constituting the Administering Authority. I do not understand it to be saying that in law there is no conceivable basis on which it could be individually subject to the obligations of the Trustee­ship Agreement; it contends that the issue whether it was in breach of those obligations can only be determined in a suit brought against itself, New Zealand and the United Kingdom. So the substance of the matter is this: it is not a question of Nauru proposing a technical device for attach­ing responsibility to Australia for something which Australia did not itself do or for breach of an obligation which Australia could not conceivably have in law, but rather a question of Australia proposing a formula pre­cluding the Court from adjudicating on the issue whether Australia’s own acts were in breach of its trusteeship obligations, on the ground that these obligations were jointly shared by Australia with two other States on whose behalf Australia was acting but which are not parties to the pro­ceedings.

It seems to me that to hold, in such circumstances, that there exists a rule of law, as asserted by Australia, which has the effect of barring these pro­ceedings in the absence of New Zealand and the United Kingdom on the ground that the obligation was joint is to import a level of formalism and abstraction that is incompatible with the “proper relationship between social data and the rules designed to govern them” — a relationship which Judge De Visscher tells us it is the duty of international justice especially to maintain.

Part V. A Judgment against Australia Will Not Amount to a Judicial Determination of the Responsibility of New Zealand and the United Kingdom

I come finally to Australia’s argument that a judgment against it will amount to a determination of the responsibility of New Zealand and the United Kingdom, and that, consequently, Nauru’s action is really against all three Governments, two of which, however, are absent and have not accepted the jurisdiction of the Court in the case.

Australia emphasized that the argument was not that New Zealand and the United Kingdom were “indispensable parties”. In litigation before the Court there are, indeed, two elements which advise caution in adopting an “indispensable parties” rule. These elements, which are interrelated, are, first, that the jurisdiction of the Court is consensual, and, second, that the Court has no power to order joinder of third parties. There are circum­stances in which it may be incompetent or improper for the Court to hear a case in the absence of a third party: the case of the Monetary Gold Removedfrom Rome in 1943shows that (I.CJ. Reports 1954, p. 32). But, as was indicated by that case and emphasized in later cases expounding it, the Court would only decline to exercise its jurisdiction where the legal interests of a State not party to the proceedings “would not only be affected by a decision, but would form the very subject-matter of the deci­sion” (ibid.). That this was the position in that case is shown by the follow­ing part of the Judgment:

“The first Submission in the Application centres around a claim by Italy against Albania, a claim to indemnification for an alleged wrong. Italy believes that she possesses a right against Albania for the redress of an international wrong which, according to Italy, Albania has committed against her. In order, therefore, to determine whether Italy is entitled to receive the gold, it is necessary to determine whether Albania has committed any international wrong against Italy, and whether she is under an obligation to pay compensation to her; and, if so, to determine also the amount of compensation. In order to decide such questions, it is necessary to determine whether the Albanian law of January 13th, 1945, was contrary to international law. In the determination of these questions — questions which relate to the lawful or unlawful character of certain actions of Alba­nia vis-a-vis Italy — only two States, Italy and Albania, are directly interested.” (Ibid.)

Thus, in that case the Court was being asked to determine whether Albania, a non-party, had by its actions engaged international responsi­bility to Italy, the Applicant, and, if so, whether, in consequence, certain monetary gold belonging to Albania should be treated as due to Italy by way of compensation. Without determining these issues as between Italy and Albania, the Court could not pass on to determine the issues pre­sented in the Application as between the parties thereto: Italy’s claims against the parties to the case depended on the outcome of a claim which it was asserting against Alabama in its Application against those parties. It was not a case in which the decision which the Court was asked to pro­nounce as between the parties before it might be based on a course of reasoning which could be extended to a non-party; the decision would constitute a direct determination of the responsibility of the non-party, with concrete and juridically dispositive effects for its admitted owner­ship of the gold. A court (including this Court) may in some circumstances give judgment against a party in absentia\but no court, not even a munici­pal court exercising jurisdiction on a non-consensual basis, can give judgment against someone who was not in some sense a party to the pro­ceedings, or to the relevant phase thereof leading to the particular judg­ment, with a corresponding entitlement to be heard. To do so would be to offend against a cardinal principle of judicial organization which forbids a court from adjudicating in violation of the audi alteram partem rule. That precept of judicial behaviour, which is of general application to all courts, would clearly have been affronted if the Court had adjudicated on Albania’s responsibility. Additionally, the requirement for consent to jurisdiction, which is specific to this particular Court, would also have been negated.

It follows that the test to be applied in deciding whether the Court may not properly act is not simply whether it would have been more con­venient to decide an issue with the presence before the Court of all the States that might be affected by the decision, but whether the absence of such a State is, in the particular circumstances, such as to make it impos­sible for the Court judicially to determine the issues presented before it even when account is taken of the protective provisions of Article 59 of the Statute.

The passage quoted above from the Monetary Gold case was cited by counsel for Nicaragua in the Military and Paramilitary Activities case (CR 84/14, p. 26, Mr. Reichler). It was cited in opposition to an argument by counsel for the United States to the effect that not only would the responsibilities of certain non-party States be necessarily determined by any decision against the United States, but that the decision would have practical effects on those States. The effects would be practical, it was argued, in the sense that, if the Court, as it was requested by Nicaragua, were to enjoin the United States from co-operating militarily with those States, the consequence would be to prevent them from obtaining any law­ful military assistance from the United States and in turn to impair their legal right of self-defence (CR 84/19, pp. 42 ff., Mr. J. N. Moore; see also CR 84/10, pp. 76-77, Mr. McGovern, and Counter-Memorial submitted by the United States of America, Part IV, Chap. I). The argument did not find favour with the Court (Military and Paramilitary Activities in and against Nicaragua, I.CJ. Reports 1984, pp. 184-186,429-431). And yet, the argument would seem to have been stronger than Australia’s contention in this case: unlike the position taken by the United States, Australia has not been able to argue that a decision against it would have the practical effect of depriving New Zealand and the United Kingdom of the ability to make use of any right which they may possess under international law. It is useful to note that the question, as the Court understood it, was not whether Nicaragua had a claim against any other State in an absolute sense (as Nauru might conceivably have against New Zealand and the United Kingdom), but whether such a claim was presented in the particu­lar proceedings before the Court. In this respect, the Court recalled that Nicaragua

“emphasizes that in the present proceedings Nicaragua asserts claims against the United States only, and not against any absent State, so that the Court is not required to exercise jurisdiction over any such State” (I.CJ. Reports 1984, p. 430, para. 86; emphasis added).

Was the conclusion reached in the Monetary Gold case overthrown by the position taken by the Court on Italy’s application to intervene in the case of the Continental Shelf (Libyan Arab Jamahiriya/MaltaP. Refusing the application, the Court said:

“The future judgment will not merely be limited in its effects by Article 59 of the Statute: it will be expressed, upon its face, to be with­out prejudice to the rights and titles of third States.” (I.CJ. Reports

1984,                                  pp. 26-27, para. 43.)

Although, strictly speaking, the second part of the statement seemed unnecessary, the substance of the statement was in keeping with the pre­viously settled jurisprudence of the Court. However, at the merits stage the Court said:

“The present decision must, as then foreshadowed [in 1984], be limited in geographical scope so as to leave the claims of Italy unaffected, that is to say that the decision of the Court must be con­fined to the area in which, as the Court has been informed by Italy, that State has no claims to continental shelf rights.” (I.CJ. Reports

1985,                                  p. 26, para. 21.)

Arguably, the position so taken by the Court went beyond, and was not really foreshadowed by, the position previously taken by it in 1984, for now the Court was not merely saying that its decision would not in law affect Italy’s interests, but was in fact refraining from adjudicating as between the parties before it with respect to any areas in relation to which Italy might have a claim. It seems to me that a point of some difficulty was raised by the argument that, if Italy’s claims had been sufficiently exten­sive, this, on the view which the Court eventually took, could well have prevented the Court from giving any judgment at all as between the parties before it {I.C.J. Reports 1985, p. 28, para. 23). Possibly, the cited dictum of the Court in its 1985 decision is to be explained by certain “spe­cial features” to which it referred (ibid.). Alternatively, it is to be explained by the particular terms of the Special Agreement, under which the Court was expected to decide

“in absolute terms, in the sense of permitting the delimitation of the areas of shelf which ‘appertain’ to the Parties, as distinct from the areas to which one of the Parties has shown a better title than the other, but which might nevertheless prove to ‘appertain’ to a third State if the Court had jurisdiction to enquire into the entitlement of that third State,…” (ibid., p. 25, para. 21).

In effect, the Special Agreement itself required the Court to refrain from adjudicating over areas which were subject to Italy’s claims and which might therefore not “appertain” in “absolute terms” to the parties to the case. In my opinion, the case did not modify the general principle laid down in the Monetary Gold case.

That principle was applied in the case concerning the Land, Island and Maritime Frontier Dispute (I.C.J. Reports 1990, p. 92). For present pur­poses, the reasoning of the Chamber, particularly on questions of opposa- bility, is to be found in the passage from its decision set out in the dissenting opinion of Judge Schwebel in the present case. The decision was closely canvassed by both sides. On a consideration of the views expressed, it seems to me that something could be said for the proposition that, ex hypothesi, a condominium of the three States (the case advanced by El Salvador), or a “community of interests” among them (the case advanced by Honduras), could not take effect in law as between two of them only. To determine that the rights of two States are governed by a condominium or by a “community of interests” of three is arguably to determine, on a basis of necessary interdependence, that the rights of the third State are also thereby governed. It is not easy to see how a declara­tion upholding the existence of either of the two suggested regimes could apply as between two of the three States save on the basis that it had the same legal effect in relation to the third State. By contrast, in the present case, any judgment against Australia can have full effect as between the two litigating States without needing to produce any legal effects in relation to the two absent States. The reasoning of the Cham­ber, in holding that it was not precluded from hearing the case before it in the absence of Nicaragua as a party, applies a fortiori to justify the hearing of the present case in the absence of New Zealand and the United

Kingdom. I have difficulty in seeing how it may be possible to reconcile the decision in that case with a different conclusion in this.

Australia accepts that, unlike the position in the Monetary Gold case, it is not necessary for the Court in this case to make a determination of responsibility against New Zealand and the United Kingdom as a pre­requisite to making a determination of responsibility against Australia. However, Australia takes the view that any determination against it would necessarily imply simultaneous determinations against New Zealand and the United Kingdom, and it considers that this would be equally barred by the ratio decidendi of the Monetary Gold case in so far as this rests on the incompetence of the Court to determine the responsibility of any State without its consent. I agree that if the Court is in fact making a determina­tion of the responsibility of a non-party, the particular stage in the deci­sion-making process at which it is doing so cannot make the decision less objectionable. But this would be so only if what was involved was a judi­cial determination purporting to produce legal effects for the absent party, as was visualized in the Monetary Gold case, and not merely an implication in the sense of an extended consequence of the reasoning of the Court. It seems to me that an approach based on simultaneity of deter­minations is likely to involve an implication of that kind, and not an adju­dication. The Court’s jurisprudence shows that such implications are not a bar to the exercise of jurisdiction.

As I read the Monetary Gold case, the test is not merely one of sameness of subject-matter, but also one of whether, in relation to the same subject- matter, the Court is making a judicial determination of the responsibility of a non-party State. Leaving aside the question of sameness of subject- matter, would a decision in this case constitute a judicial determination of the responsibility of New Zealand and the United Kingdom ? Or, if it would not technically constitute such a determination, would it be tanta­mount to such a determination in the very real sense in which the Court was asked to determine the responsibility of Albania?

In considering whether a possible judgment against Australia would amount to a determination of the responsibility of New Zealand and the United Kingdom, it is relevant, and, indeed, necessary, to consider the legal elements on which such a judgment might be based. The suit before the Court is constituted as between Nauru and Australia. Nauru is asking the Court to say that Australia is in breach of a certain obligation which Australia allegedly had to Nauru under international law. The obligation, assuming that it existed, was also the obligation of New Zealand and the United Kingdom. But Nauru does not need to rely on this fact, and the Court, while it may notice the fact, does not need to found its decision on it. That others had the same obligation does not lessen the fact that Aus­tralia had the obligation. It is only with Australia’s obligation that the Court is concerned. In contrast with the situation in the Monetary Gold case, the decision of the Court as between Nauru and Australia will not be based on the obligation of New Zealand and the United Kingdom. Also, even if the obligation was joint, the decision of the Court need not be founded on that fact: in that connection, as has been noticed in Part I, in today’s Judgment the Court has not found it necessary to say whether or not the obligation was joint (see paragraph 48 of the Judgment). If it was joint, this would not mean that it was any the less the obligation of Aus­tralia. All the Court is concerned with in these proceedings is whether the obligation, if it existed, was Australia’s obligation.

Therefore, there need be nothing in the legal elements of a possible judgment in favour of Nauru which would require the judgment to be con­strued as per se constituting or amounting to a judicial determination of the responsibility of New Zealand and the United Kingdom. On the basis of argument that the obligation was intrinsically and inseverably joint, it might be contended that the conclusion reached in the judgment could in logic be extended to New Zealand and the United Kingdom; but this would be a matter of extending the reasoning of the Court to a case to which its judgment per .redoes not apply and on a ground not relied on by the judgment itself. So far as the judgment is concerned, by itself it will not affect the rights of New Zealand or the United Kingdom in the sense in which a judgment deploys its effects, as would have been the case with Albania. New Zealand and the United Kingdom will not be deprived of any rights in the subject-matter of the case, or at all. Certainly, no property or property rights belonging to them will be transferred or otherwise affected as a result of such a decision. It is difficult to see what protection will be needed beyond that provided by Article 59 of the Statute of the Court.

In any proceedings by Nauru against them, New Zealand and the United Kingdom will be free to deny liability on any ground, whether or not it is a ground pleaded by Australia in these proceedings; in this respect, differences have been noticed in Part II above between the posi­tion of Australia, on the one hand, and that of New Zealand and the United Kingdom, on the other, under the Trusteeship Agreement, and it cannot be assumed a priori that these differences could not be reflected in the defence to any such proceedings. However strong may be the tendency of the Court to follow a possible decision given in this case in favour of Nauru in any proceedings brought by Nauru against New Zealand and the United Kingdom, that tendency still falls short of being a judicial determination made in this case of the responsibility of those two States in the sense in which the Court was asked to make a determination of the responsibility of Albania in the Monetary Gold case. A decision in this case, if, as I think, it does not per se constitute a judicial determination of the responsibility of New Zealand and the United Kingdom, can at best have only precedential value in any proceedings concerning their respon­sibility; and that value, however high one may be disposed to rate it, is only influential, not controlling. The possibility of a court deciding differ­ently on the same issues in differently constituted proceedings is not a phenomenon less known to the law than the general propensity of courts to be guided by their rulings in similar cases. To use the propensity to be guided by previous rulings to exclude the possibility of deciding dif­ferently in a later case would be even less right in international litigation than it would be in municipal.

It has been correctly pointed out that “[a]s interstate relationships become more complex, it is increasingly unlikely that any particular dis­pute will be strictly bilateral in character” (L. F. Damrosch, “Multilateral Disputes”, in L. F. Damrosch (ed.), The International Court of Justice at a Crossroads, 1987, p. 376). Counsel writing for Nicaragua in the Military and Paramilitary Activities case had earlier spelt out the implications of that consideration in the following way:

“The rule established in Monetary Gold is soundly grounded in the realities of contemporary international relations. Legal disputes between States are rarely purely bilateral. As in the case of delimita­tion of the continental shelf, the resolution of such disputes will often directly affect the legal interests of other States. If the Court could not adjudicate without the presence of all such States, even where the parties before it had consented fully to its jurisdiction, the result would be a severe and unwarranted constriction of the Court’s ability to carry out its functions.” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdic­tion and Admissibility, Memorial of Nicaragua, para. 248.)

I agree with Australia that the

“fact that international disputes may be increasingly multilateral in nature is no reason to ignore the fundamental international law principles of sovereignty of States and the requirement of consent to adjudication” (Preliminary Objections of the Government of Australia, Vol. I, p. 144, para. 363).

But I do not think that these principles are in danger of being violated in this case. That the wider implications of a dispute do not necessarily pre­vent adjudication in litigation between some only of the interested parties would seem to have been implicitly anticipated by the Permanent Court of International Justice as early as 1932 (Free Zones of Upper Savoy and the District of Gex, P.C.I.J., Series A/B, No. 46, p. 136). As observed above, this

Court has recognized that, unless barred by the Monetary Gold principle, it should seek “to give the fullest decision it may in the circumstances of each case” (Continental Shelf (Libyan Arab Jamahiriya/Malta), Applica­tion for Permission to Intervene, I.CJ. Reports 1984, p. 25, para. 40).

The jurisprudence of the Court is under constant review; no case, how­ever venerable, is exempt from scrutiny and re-evaluation. However, it would not appear that there has been any movement away from the stand taken by the Court when it stated in 1984 that the “circumstances of the Monetary Gold case probably represent the limit of the power of the Court to refuse to exercise its jurisdiction” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.CJ. Reports 1984, p. 431, para. 88; emphasis added). It may be that that limit has been set at a point which enables the Court to adjudicate in situations in which a municipal court would refrain from adjudicating unless there was joinder; but, if so, there are good reasons for the difference. The danger to the authority of the Court presented by any tendency to act on the basis of a low jurisdictional threshold is not something to be lightly dismissed; but I do not feel oppressed by any apprehension in the circum­stances of this case if, as I consider, it can be treated as being within the limits permitted by the Monetary Gold case and as therefore not involving the exercise of jurisdiction against non-parties.

The decision in the Monetary Gold case turned in part on the fact that the rule enunciated in Article 59 of the Statute “rests on the assumption that the Court is at least able to render a binding decision” (I.CJ. Reports 1954, p. 33). For the reasons already given, in that case the Court could not give a decision on the seminal issue concerning Albania’s international responsibility that would be “binding upon any State, either the third State, or any of the parties before it” (ibid.). A decision in this case would of course not be binding on New Zealand and the United Kingdom; but I am unable to see why it would not be binding on Australia. Australia is before the Court; even if the alleged responsibility was joint, this does not by itself mean that Australia could not ultimately share in the responsibi­lity (if any) on any basis whatsoever. It is for the Court to determine whether there is any basis on which Australia shares the responsibility. If the Court determines that there is a basis, it is difficult to see why its deci­sion would not be binding on Australia.

latter was also an advisory opinion case, but this does not affect the gen­eral proposition. A person who can give relevant evidence may be a neces­sary witness, not a necessary party1. In systems which provide for it, join­der is not justified for the sole purpose of securing or facilitating the pro­duction of evidence: evidence must be produced in the normal ways. A contention similar to Australia’s was advanced in the Military and Para­military Activities in and against Nicaragua, Jurisdiction and Admissibility case, but without success (I.CJ. Reports 1984, p. 430, para. 86; United States Counter-Memorial, para. 443; and Mr. J. N. Moore, CR 84/19, at pp. 42, 47, 48, 51). In any event, the arguments do not persuade me that Australia, having in fact been in charge of the administration of Nauru at all material times, is not, or cannot be, in possession of all the relevant evidence.

Conclusion

Australia’s arguments are worthy of consideration, and there could be more than one view of their value. For the reasons given, I have not, how­ever, been able to feel persuaded. In my opinion, the obligations of the three Governments under the Trusteeship Agreement were joint and several, and Australia could accordingly be sued alone. In the alternative, if the obligations were joint, this circumstance still did not prevent Nauru from suing Australia alone. Nor do I think that a possible judgment against Australia will amount to a determination of the responsibilities of New Zealand and the United Kingdom. Whether Australia in fact had an international obligation to ensure the rehabilitation of worked-out phos­phate lands, whether, if so, it was in breach of that obligation, and what, if so, is the extent of responsibility which it thereby engaged, are different questions.

(Signed) Mohamed Shahabuddeen.

DISSENTING OPINION OF PRESIDENT SIR ROBERT JENNINGS

I very much regret that I am unable to agree with the decision of the Court rejecting Australia’s preliminary objection based on the circum­stance that New Zealand and the United Kingdom are not also parties to the proceedings (see (1) (g) of para. 72 of the Judgment). My difficulties with this part of the Judgment may be stated very briefly.

This preliminary objection raises an important issue concerning the consensual basis of the Court’s jurisdiction where the legal interests of third States are involved in a case. Articles 62 and 63 of the Court’s Sta­tute, which allow for intervention, show that the parties to a case may have their claims adjudicated by the Court, even when the legal interests of third States may be affected by the Court’s decision. There is, however, a limit to the exercise of jurisdiction in a case affecting the legal interests of a third State, and that limit is where, according to the well-known formula of the case of the Monetary Gold Removed from Rome in 1943 (Preliminary Questionj, the third State’s “legal interests would not only be affected by a decision, but would form the very subject-matter of the decision” (I.C.J. Reports 1954, p. 32).

That the legal interests of New Zealand and the United Kingdom will form the very subject-matter of any decision in Nauru’s case against Australia is surely manifest. The Mandate for Nauru was in 1920 con­ferred upon “His Britannic Majesty”; the Trusteeship Agreement of 1947 designated

“The Governments of Australia, New Zealand and the United Kingdom (hereinafter called ‘the Administering Authority’) as the joint Authority which will exercise the administration of the Territory”;

New Zealand and the United Kingdom were two of the three members of the British Phosphate Commissioners; and they were both joint parties to the Canberra Agreement of 1967. This is to mention only the salient instances of the inextricable involvement of the legal interests of those two States in this matter.

Moreover, one must contemplate the situation that must arise if, on the merits, there should be any question of assessing the reparation that might be due from Australia (see para. 48 of the Judgment). If the obligations from which the liability arises are held to be solidary (joint and several) so that Australia is liable for the whole, or whether, alternatively, Australia is held liable only for some proportion of the whole sum, it is clear in either case that the Court will unavoidably and simultaneously be making a decision in respect of the legal interests of those two other States.

For these reasons it seems to me that the Australian preliminary objec­tion in this matter is well founded, and that the Court is without jurisdic­tion in this case.

(Signed) R. Y. Jennings.

DISSENTING OPINION OF VICE-PRESIDENT ODA

  1. The main purpose of this opinion is to set forth my reasons for cast­ing a negative vote on operative parts 1 (b)9 (c), (d) and (e) of the Judgment. The Application of Nauru was, to my mind, clearly inadmissible on those counts alone. My subsidiary purpose, which can be disposed of at once, is to state that my negative vote on operative part 1 (f) is motivated by my belief that it is premature to close the door on the objection concerned, which I find too closely connected with the merits for present decision; this particular vote on my part does not therefore signify that I necessarily accept this objection without further examination.
  2. My vote against operative part 2 resulted as the logical conclusion of my belief that so many preliminary objections ought to have been upheld.

L ite Operative Parts 1 (b) and (c): Concerning the Existence of the Claim in the Present Case

3. With regard to

“the preliminary objection based on the alleged waiver by Nauru, prior to accession to independence, of all claims concerning the rehabilitation of the phosphate lands worked out prior to 1 July 1967” (operative part 1 (b)\

the Court has held that

“[i]t will suffice to note that in fact those authorities did not at any time effect a clear and unequivocal waiver of their claims, whether one takes into consideration the negotiations which led to the Agree­ment of 14 November 1967, the Agreement itself, or the discussions at the United Nations” (Judgment, para. 13);

while, as for “the preliminary objection based on the termination of the Trusteeship over Nauru by the United Nations” (operative part 1 (c)\ the Court, “confining] itself to examining the particular circumstances in which the Trusteeship for Nauru was terminated” (Judgment, para. 23), has rejected it because

“the rights Nauru might have had in connection with rehabilitation of the lands remained unaffected. Regard being had to the particular circumstances of the case, Australia’s third objection must in conse­quence be rejected.” (Judgment, para. 30.)

4. I am unable to concur in these views of the Court. My view is differ­ent from that of the Judgment with regard to the significance of certain developments during the Trusteeship period. I have in particular some doubts whether there really existed, towards the end of that period, any Nauruan claim for land rehabilitation, and I feel unable to entertain what the Judgment refers to, without further elaboration, as the “particular cir­cumstances” (Judgment, paras. 23 and 30) prevailing at the termination of the Trusteeship. Hence I must proceed to a somewhat lengthy recital of the facts relating to “the negotiations which led to the Agreement of 14 November 1967, the Agreement itself, or the discussions at the United Nations” (Judgment, para. 13).

1. Negotiations between the Administering Authority and the Nauruan Authorities and their Agreement of November 1967

5. Under the Trusteeship Agreement of 1 November 1947 (UNTS, Vol. 10, p. 4), approved by the United Nations General Assembly, the responsibility of an Administering Authority in respect of Nauru was con­ferred upon Australia, New Zealand and the United Kingdom. Such an Authority is fully accountable to the United Nations for both the adminis­tration and the supervision of the territory under Trusteeship (cf. Arts. 75 and 81 of the Charter). Moreover, by Article 3 of the Agreement the three Governments constituting the Authority:

“undertook] to administer the Territory [Nauru] in accordance with the provisions of the Charter and in such a manner as to achieve in the Territory the basic objectives of the International Trusteeship System…”.

These basic objectives included the aim of

“promoting] the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their pro­gressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned …” (United Nations Charter, Art. 76, para. (b)).

By Article 5 of the Agreement, the Administering Authority — i.e., all three Governments — further

“undertook] that in the discharge of its obligations under article 3 of this Agreement…

2. It [would], in accordance with its established policy:

fa) … respect the rights and safeguard the interests, both present and future, of the indigenous inhabitants of the Territory [Nauru]…”.

However, by the intervening Article 4, the Australian Government was to “continue to exercise full powers of legislation, administration and juris­diction in and over the Territory”. There was thus a delegation of powers from New Zealand and the United Kingdom, though neither was thereby absolved from responsibility: indeed the same Article 4 opens with the words: “The Administering Authority will be responsible for the peace, order, good government and defence of the Territory..The 1947 Trus­teeship Agreement was later supplemented and amended by agreements between the three Governments. In particular, the Agreement relating to Nauru of 26 November 1965 (UNTS, Vol. 598, p. 81), drafted “after consultation with the Nauruan people” (Preface to the Agreement), pro­vided for the establishment of the Legislative Council and the Executive Council (Arts. 1 -2), in which the participation of the Nauruan peoples was widely recognized. Yet the administration of the Territory was to remain in the hands of an Administrator appointed by the Government of Aus­tralia (Art. 3).

6. In the early days of the Trusteeship, before the conclusion of the tri­partite 1965 Agreement, the participation of the Nauruan people in the administration or the protection of their interests was completely subordi­nate to the role of the Administrator, although the Nauruan Council of Chiefs, set up to advise the Administrator on Nauruan matters, was reorganized in 1950-1951, and in that year the Head Chief participated for the first time in the administration as a Native Affairs Officer. It is true that, under the 1965 Agreement, the Nauruan people’s right to participate in the administration of the Territory was recognized, but it is most important to note that that right was not recognized as being independent from the administration or supervision carried out by the Administrator. The responsibilities, as well as the duties and rights, of the Administering Authority were placed under the exclusive control of the United Nations, acting through the Trusteeship Council and the General Assembly or the relevant subsidiary organs. Hence, apart from any claims to relief for any damages arising out of acts of the administering organs which might have been settled by the judicial organ of Nauru itself, any claims or disputes raised by the Nauruan people as a collectivity could only have been dealt with by the United Nations mechanism. In other words, the United Nations was responsible for supervising the behaviour of the Administra­tor as the plenipotentiary of the Authority, and for ensuring that he respected the rights and safeguarded the interests of the Nauruan people.

7. The idea of a possible rehabilitation of the worked-out phosphate lands was raised for the first time at the negotiations held between the Delegation of the Nauru Local Government Council (NLGC), of which the leader was Head Chief DeRoburt, and Australian officials represent­ing the Administering Authority (Australia, New Zealand and the United Kingdom), negotiations which took place in Canberra from 31 May to 10 June 1965 (Nauru, “Record of Negotiations, 31 May-10 June 1965, between the Delegation of Nauru Local Government Council and Aus­tralian Officials Representing Administering Authority” (contained in Memorial of Nauru (hereinafter referred to as NM), Vol. 3, as Annex 2)) before the participation of the Nauruan people was widely recognized by the Agreement of November 1965. In these negotiations a paper on “Rehabilitation of Nauru (Financial and Technical Requirements)” (which had apparently been prepared by the NLGC) was submitted, some passages of which read as follows:

“In view of the lack of any other suitable alternative the Council [NLGC] has decided that it is in the best interests of the Nauruan people to remain on Nauru. The only question at issue, therefore, is how their island home can be preserved.

As a start, the CSIRO [Commonwealth Scientific and Industrial Research Organization] should be approached to advise on the tech­nical requirements for rehabilitation and the most efficient means of restoring the land. The Water Resources Council should be invited to assist in measuring the water resources of Nauru. These are all mat­ters of detail but clearly decisions as to how rehabilitation can best be accomplished must await these surveys.” (NM, Vol. 3, Ann. 2, “Record of Negotiations”, Ann. F, pp. 166 and 169.)

In the “Summary of Conclusions” of these negotiations it was stated:

“5. Rehabilitation of Nauru

The Nauruan delegation stated that it considered that there was a responsibility on the partner governments to restore at their cost the land that had been mined, since they had had the benefit of the phos­phate. The Australian delegation was not able on behalf of the part­ner governments to take any commitment regarding responsibility for any rehabilitation proposals the objectives and costs of which were unknown and the effectiveness of which was uncertain.” {Ibid., Ann. L, pp. 195-196.)

8. The demand of the Nauruan people for the rehabilitation of the worked-out phosphate lands at the 1965 Canberra meetings and its denial by Australia on behalf of the Administering Authority, which took the view that the problem should be settled by means of a resettlement of the people on another island instead of by land rehabilitation, was repeated in the 1966 talks between the delegation representing the Nauru Local Gov­ernment Council and the Joint Delegation of Officials, representing the Administering Authority, that were held at Canberra from 14 June to 1 July 1966 (Nauru Phosphate Industry, “Record of Discussions held in Canberra, 14 June-1 July 1966” (contained in NM, Vol. 3, as Annex 4)). At the fifth session, on 20 June, Head Chief DeRoburt read out a statement which in part ran:

“The Nauruan people are prepared to take over the responsibility for restoration of any land mined after we receive the full economic benefit from the phosphate.

It is consistent with the principles involved that each of the three partner Governments should bear this cost in proportion to the benefits they have already derived from the use of cheap phos­phate obtained at well below the world price.” (NM, Vol. 3, p. 356.)

The agreed Minutes on Future Arrangements for the Phosphate Industry signed by Mr. DeRoburt and the Joint Delegation on 1 July 1966, the last day of the meetings, read as follows:

“Relationship of rehabilitation or resettlement costs to financial arrangements for the phosphate industry

The Nauruan view was that rehabilitation of Nauru was a matter of primary concern for the Nauruan people. They indicated that they were pursuing the rehabilitation proposals in the absence of any acceptable proposal for resettlement. They said that they should receive the full financial benefit from the phosphate industry so that there would be funds available to rehabilitate the whole of the Island. The Joint Delegation [the Administering Authority] explained that the benefits to be received by the Nauruan community from the pro­posed phosphate arrangement would, it was envisaged, be adequate to provide for the present and long-term security of the Nauruan community including an adequate continuing income when the phosphate has been exhausted and when the costs of any resettle­ment or rehabilitation have been met. The Joint Delegation said they would be prepared to consider that, within the framework of a long- term agreement, arrangements be made for an agreed payment into the long-term investment fund, from which the costs or part of the costs of rehabilitation could be met.” {Ibid., p. 407.)

9. At the Canberra meetings in May-June 1965, as mentioned in para­graph 7 above, the representatives of Nauru and the Australian delegation had agreed to establish an expert committee to investigate the feasibility of the rehabilitation as suggested by the people of Nauru. A part of the “Summary of Conclusions”, which was quoted in paragraph 7 above (Annex L refers), continued as follows:

“It was agreed to establish at the earliest practicable date an inde­pendent technical committee of experts to examine the question of rehabilitation, the cost to be met by the Administering Authority. The terms of reference of the Committee are attached.” (NM, Vol. 3, p. 196.)

The terms of reference of the Committee of Experts thus proposed were the following:

“The Committee is to examine:

(a)         whether it would be technically feasible to refill the mined phos­phate areas with suitable soil and/or other materials from exter­nal sources or to take other steps in order to render them usable for habitation purposes and/or cultivation of any kind;

(b)         effective and reasonable ways of undertaking such restoration, including possible sources of material suitable for refilling;

(c)          estimated costs of any practicable methods of achieving restora­tion in any effective degree.” (Ibid., p. 197.)

The Committee was asked to report its findings to the Nauru Legislative Council and the Administering Authority by 30 June 1966. The Nauru Lands Rehabilitation Committee, which was thus proposed at the 1965 Canberra Meetings, was established towards the end of 1965 with Mr. G. I. Davey, Consulting Engineer in Sydney, and two other members (one of whom was the soils and land expert of the FAO). The Committee drew up a report in June 1966 and submitted it to the Australian Govern­ment and the Nauru Legislative Council (Territory of Nauru, “Report by Committee Appointed to Investigate the Possibilities of Rehabilitation of Mined Phosphate Land, 1966″ (contained in NM, Vol. 3, as Annex 3)).

” Section Two — Summary of Conclusions (a) The Committee.. .has reached the following conclusions:

(i) that while it would be technically feasible (within the narrow definition of that expression) to refill the mined phosphate areas of Nauru with suitable soil and/or other materials from external sources, the very many practical considerations involved rule out such an undertaking as impracticable;

Section Ten — Conclusions and Recommendations

The Committee has concluded that any proposal to resoil the whole of the worked-out phosphate area is unrealistic and presents serious technical difficulties because of the natural slope existing on the island. In fact it would not be in the best interest of the Nauruans to resoil large portions of the land as they are of far greater value as absorption areas for water collection.” (NM, Vol. 3, pp. 215 and 255.)

10. Upon the completion of a report of the Davey Committee, discussions between the delegation representing the Nauru Local Government Council and the Joint Delegation of Officials representing the Administering Authority were held at Canberra from 12 April to 16 June 1967 (“Nauru Talks 1967, Summary Records of Discussions and Related Papers” (contained in NM, Vol. 3, as Annex 5)). On 19 April, Mr. DeRoburt read a statement (NM, Vol. 3, p. 498), in which a refer­ence was made to the request of the Nauruan people, as follows:

“For all these reasons the Nauruans feel that the Partner Govern­ments can and should meet the costs of rehabilitating the land already mined. The fact that no money was set aside for this purpose in the past does not alter the responsibility for rehabilitation. Hence the Nauruans can accept a long-term agreement in which they will accept responsibility for rehabilitating lands mined in the future (pro­vided that they receive the full economic benefits from mining the phosphate) but they are not prepared to accept responsibility for rehabilitating lands mined in the past. We strongly believe that our views on this matter are morally and logically correct, but the Partner Governments have made no attempt to refute our arguments.” (Ibid., p. 558.)

On that same day, the Delegate of Australia stated that:

“the partner Governments would study the paper. Each side natu­rally felt that their own position was correct; as long as resettlement was a concrete proposal offering a solution this had been preferred by the partner Governments.” (Ibid., p. 498.)

The next day, 20 April, Mr. DeRoburt stated:

“As the island was to be a permanent home for the Nauruan people, rehabilitation is needed. The Nauruans could not talk about details under a cloud of denial of broad principles. The land must be rehabilitated. Once agreement on broad principles was reached technical details could be discussed.” (Ibid., p. 497.)

The problem of rehabilitation was again taken up on 16 May. The

Summary Record of that date shows that

“27. During the following discussion it emerged that the Nauruans would still maintain their claim on the Partner Governments in respect of rehabilitation of areas mined in the past, even if the Partner Governments did not press for the withdrawal of the claim in a for­mal manner such as in an agreement.

The Nauruan Delegation described how they arrived at their view on rehabilitation needs; and referred to the report of the committee of inquiry as to various levels and costs of soil replacement.

The Joint Delegation said that it did not regard the Nauruan choice of the highest level for which the committee gave figures, but which the committee did not recommend, as being realistic.

The Nauruan Delegation disagreed.

28. The Secretary [the representative of Australia] discussed the problem of re-settlement which also involved individual motives for moving, apart from the rehabilitation question, and stated that the Governments of Australia and New Zealand could offer rights of immigration to those countries for Nauruans.” (NM, Vol. 3, pp. 466-467,)

On 15 June 1967, the final day of the 1967 discussions between the Nauru Local Government Council and the Delegate of Australia, the “Nauruan Phosphate Agreement — Heads of Agreement” was signed by both parties in confirmation of an arrangement for the future operation of the phosphate industry in Nauru, in which it is stated that:

“Representatives of the Nauru Local Government Council and the Partner Governments have agreed on arrangements for the future operation of the phosphate industry on Nauru. A definitive agree­ment will be drawn up later in 1967 incorporating provisions to give effect to the undertakings set out below and appropriate action will be taken in due course to effect necessary legislative changes. Never­theless both parties will from now on act in conformity with the intention of these Heads of Agreement” (Ibid., p. 420.)

It is to be noted that no reference was made in this document to the rehabi­litation of worked-out lands.

11. Following on these Heads of Agreement, an “Agreement relating to the Nauru Island Phosphate Industry 1967” was signed on 14 November 1967 in Canberra by the Head Chief representing the Nauru Local Gov­ernment Council, and by the Minister of State for Territories of Australia and the High Commissioners of New Zealand and the United Kingdom representing the three respective Governments which constituted the Administering Authority (text contained in NM, Vol. 3, as Annex 6, and Preliminary Objections of Australia, Vol. II, p. 69). This Agree­ment, known as the Canberra Agreement, contained detailed provisions grouped under the headings of “Preliminary” (Part I), “Supply of Phos­phate” (Part II), “Capital Assets” (Part III), “Management Arrange­ments” (Part IV), “Financial Arrangements” (Part V) and “General” (Part VI), as well as three schedules; it did not contain any provisions con­cerning the responsibility of Australia for the rehabilitation of worked-out lands.

*

12.I have thus followed the developments in which the demands of the Nauruan people for the rehabilitation of worked-out lands were pre­sented in the talks between the Administering Authority and their repre­sentatives. It is extremely important to note that the Canberra Agreement reached by both parties (on the one hand, Australia, New Zealand and the United Kingdom; on the other, the Nauru Local Government Council) on 14 November 1967, just on the eve of the independence of Nauru, to arrange for the future operation, after independence, of the phosphate industry, did not make any mention of the issue of rehabilitation. Counsel for Nauru explained at the hearings that rehabilitation was not mentioned in the 1967 Agreement on the understanding that the issue would be dealt with separately. In fact that issue was not dealt with separately, and no suggestion seems to have been made by the Nauruan authorities to deal with this issue independently of that Agreement.

  1. The Court states in this respect as follows:

“The Court notes that the Agreement of 14 November 1967 con­tains no clause by which the Nauruan authorities expressly waived their earlier claims. Furthermore, in the view of the Court, the text of the Agreement, read as a whole, cannot, regard being had to the cir­cumstances set out in paragraph 15 above, be construed as implying such a waiver..(Judgment, para. 16,)

I am unconvinced by this reasoning, for it seems to me that, on the con­trary, it was imperative for the Nauruans to reserve the claim to rehabilita­tion in this crucial document, drawn up at a critical date, if it were not to be held abandoned. The link between the future exploitation of the phos­phates and the effect of previous exploitation was too close for it to be seriously argued that a reference to the claim would have been out of place. TTie fact that the issue of rehabilitation was not mentioned at all cannot, therefore, be dismissed as irrelevant. Hence, while it is literally true that the text of the Agreement cannot be construed to imply a waiver, the silence of the Agreement remains, in my view, open to that conclusion.

2. Discussions within the United Nations System

  1. The presentation by the Nauruan people of their demand for rehabilitation and the subsequent rejection of that demand by the Admin­istering Authority, as well as the work of the Davey Committee to assess the feasibility of rehabilitation, were all problems which were dealt with within the United Nations Trusteeship System. The Trusteeship Council and the General Assembly paid due attention to those discussions between the Nauruan people and the Administering Authority, but were not in a position to intervene in order to take up the demands of the Nau­ruan people or to determine any violation by the Administering Authority of its obligation under the Trusteeship System.
  2. In 1965 the Trusteeship Council, at its thirty-second session (28 May to 30 June 1965; meetings 1245 to 1270), took note of the work of the 1965 Canberra discussions and stated:

“[t]he Council looks forward to the report of the [Davey Committee]; it requests the FAO to consider favourably the invitation to make available a representative to serve on this committee” (United Nations, Off icial Records of the General Assembly, Twentieth Session, Supplement No. 4 (A/6004), Report of the Trusteeship Council 1964-1965p. 50, para. 431).

Several months later, the United Nations General Assembly in its resolu­tion 2111 (XX) of 21 December 1965 stated as follows:

” The General Assembly,

Noting that. . . the Administering Authority and representatives of the Nauruan people, in June 1965 at the Canberra Conference, pursued further the question of a future home for the Nauruan people which would preserve their national identity,

4. … requests that immediate steps be taken by the Administering Authority towards restoring the island of Nauru for habitation by the Nauruan people as a sovereign nation.”

Compare Judgment, paragraph 25.

16. In 1966 the Trusteeship Council at its thirty-third session (27 May to 26 July 1966; meetings 1271 to 1296) dealt with the question of rehabili­tation of the lands of Nauru. The Davey Committee had just completed its report by that time; yet the Trusteeship Council apparently did not have time to examine it at this session. The Trusteeship Council reported in its “conclusions and recommendations” of this session, as follows:

“The Council recalls that the General Assembly, by its resolution 2111 (XX), requested that immediate steps be taken by the Adminis­tering Authority towards restoring the island of Nauru for habitation by the Nauruan people as a sovereign nation and notes that an inves­tigation into the feasibility of restoring the worked-out land has been carried out by [the Davey Committee].

The Council notes the statement of the representative of the people of Nauru that ‘the responsibility for rehabilitating the island, in so far as it is the Administering Authority’s, remains with the Admini­stering Authority. If it should turn out that Nauru gets its own in­dependence in January 1968, from then on the responsibility will be ours. A rough assessment of the portions of responsibility for this rehabilitation exercise then is this: one third is the responsibility of the Administering Authority and two thirds is the responsibility of the Nauruan people.’

The Council recalls that at its thirty-second session the Special Representative gave the Council some details which outlined the magnitude and cost of replenishment of the worked-out phosphate land. It also noted that the 1962 Visiting Mission remarked that no one who had seen the wasteland pinnacles could believe that culti­vable land could be established thereon, except at prohibitive expense.

The Council… recommends that [the report of the Davey Com­mittee] be studied as soon as possible during the course of conversa­tions between the Administering Authority and the delegates of the people of Nauru.” (United Nations, Official Records of the General Assembly, Twenty-first Session, Supplement No. 4 (A/6304), Report of the Trusteeship Council 1965-1966, p. 43, para. 408.)

Some months later, the United Nations General Assembly, in its resolu­tion 2226 (XXI) of 20 December 1966, simply pursued the line which had been adopted in the previous year, apparently unaware as yet of the report of the Davey Committee, which the Trusteeship Council had not an opportunity to examine in the session of that year:

” The General Assembly,

3. Recommends … that the Administering Authority should … take immediate steps, irrespective of the cost involved, towards restoring the island of Nauru for habitation by the Nauruan people as a sovereign nation.”

Compare Judgment, paragraphs 18 and 26.

17. In 1967 the Trusteeship Council, at its thirty-fourth session (29 May to 30 June 1967; meetings 1297 to 1322), dealt with the question of rehabi­litation, having sight of the report of the Davey Committee for the first time. The Trusteeship Council was at that time composed of eight member States (Australia, New Zealand, the United Kingdom and the United

States as Administering Authorities; China, France and the USSR as Permanent Members of the Security Council; and Liberia as the only elected member). In his opening statement to that session, Mr. DeRoburt, as Adviser to the Special Representatives for the Trust Territories of Nauru and New Guinea in the Australian Delegation, stated:

“18. Mr. DeRoburt…

21. The only important point on which there was still disagree­ment with the partner Governments was the question of the rehabili­tation of worked-out land. The Nauruans felt that the partner Governments should agree to assume responsibility for rehabili­tating land worked before 1 July 1967, leaving to the Nauruans the responsibility for land worked after that date. The Nauruans would in that way be assuming two-thirds of the responsibility and the part­ner Governments one-third.” (United Nations, Official Records of the Trusteeship Council Thirty-fourth Session, 1313th meeting, para. 21.)

This statement by Mr. DeRoburt was described in the Trusteeship Coun­cil Report in slightly different terms:

“Although the Nauru Local Government Council worked in a cli­mate of understanding at Canberra with the Administering Author­ity, the only divergent views which seemed to appear not reconcilable was /sic/the question of the rehabilitation of the mined lands. The Nauru Local Government Council maintained that the Administer­ing Authority should accept responsibility for the rehabilitation of the lands already mined, while the Nauru Local Government Coun­cil would be responsible for rehabilitation of lands mined from 1 July 1967.” (United Nations, Official Records of the General Assembly, Twenty-second Session, Supplement No. 4 (A/6704), Report of the Trusteeship Council 1966-1967,\ pp. 47-48, para. 386.)

In general debates, all eight States members of the Council expressed views concerning the forthcoming independence of Nauru, but only a few of them showed some sympathy to the Nauruan people’s wish for rehabilitation. As one example, the delegate of France

“welcomed Head Chief DeRoburt’s statement that the Nauruan leaders were endeavouring to create work that could at least partially replace phosphate extraction. It regretted, however, that agreement had not yet been possible on the question of rehabilitating the worked-out land. Nevertheless, the situation was generally satisfac­tory in a Territory which had been wisely administered by Australia, and his delegation was sure that the Nauruans would soon be able to take a final decision on their future in total freedom and in complete conformity with their aspirations.” (United Nations, Official Records of the Trusteeship Council, Thirty-fourth Session, 1316th meeting, para. 9.)

The Council’s Report stated in “Conclusions and Recommendations” on the “future of the Nauruans” that:

“[t]he Council, recalling its observations adopted at its thirty-third session with regard to the resettlement of the Nauruans, notes the statement of the Head Chief Hammer DeRoburt that the Nauruans have abandoned the idea of resettlement and intend to remain on the Island. However, the Council notes the statement of the Administer­ing Authority that it remains ready to consider any Nauruan propo­sal concerning future resettlement.” (United Nations, Official Records of the General Assembly, Twenty-second Session, Supplement No. 4 (A/6704), Report of the Trusteeship Council 1966-1967,\ p. 43, para. 332.)

Compare Judgment, paragraphs 18 and 27.

18. The Trusteeship Council, which closed this session a few weeks after the signing of the Heads of Agreement by the Nauru Local Govern­ment Council and the Delegate of Australia on 15 June, in its “Conclu­sions and Recommendations” on Economic Advancement, “note[d] with satisfaction” that that Agreement was reached in the sense that “the ownership, control and management of the phosphate industry will [thereby] be transferred to the Nauruans by 1 July 1970” and that “trans­itional arrangements provide for a substantial increase in phosphate roy­alties and for the increased participation of the Nauruans in the operation of the industry” (ibid., p. 49, para. 403). The Council’s Report continued to state:

“The Council also notes that the report of the [Davey Commit­tee] … concluded, inter alia, that ‘while it would be technically feas­ible (within the narrow definition of that expression) to refill the mined phosphate areas of Nauru with suitable soil and/or other ma­terials from external sources, the very many practical considerations involved rule out such an undertaking as impracticable’. At the same time the report provides alternative means of treating the mined land. The Council further notes that the Nauruans have voiced strong reser­vations to this report and, inter alia, stated that the Nauru Local Gov­ernment Council believes that the land already worked should be restored by the Administering Authority to its original condition. The Council notes further the statement of the Administering Authority that the financial arrangements agreed upon with respect to phos­phate took into consideration all future needs of the Nauruan people, including possible rehabilitation of land already worked.

The Council, regretting that differences continue to exist on the question of rehabilitation, expresses earnest hope that it will be pos­sible to find a solution to the satisfaction of both parties.” (United Nations, Official Records of the General Assembly, Twenty-second Ses­sion, Supplement No. 4 (A/6704), Report of the Trusteeship Council 1966-1967, p. 49, para. 403.)

The Trusteeship Council did not advance any conclusion or recommen­dation regarding the alleged responsibility to be borne by Australia, New Zealand and the United Kingdom with regard to the rehabilitation of the worked-out phosphate lands. At the meetings (after the adoption of the above-mentioned “Conclusions and Recommendations”), Liberia, which was the sole elected member of the Council, introduced a draft resolution (T/L.l 132) in which the Trusteeship Council would

“4. Recommend[s] that the Administering Authority should take immediate steps towards restoring the island of Nauru for habitation by the Nauruan people as a sovereign nation.” (United Nations, Official Records of the Trusteeship Council[ Thirty-fourth Session, 1320th meeting, para. 8; text in United Nations, Official Records of the Trusteeship Council, Thirty-fourth Session, agenda item 4, Annexes.)

The meeting was strongly admonished by Australia concerning the alleged failure of Liberia “to take account of the very detailed information on conditions in Nauru that had already been submitted to the Council” {ibid., para. 38). Liberia’s draft resolution was rejected by five votes to two (Liberia and the USSR) with one abstention (China) {ibid., para. 43). Compare Judgment, paragraph 27.

19. The Trusteeship Council met for two days on 22 and 23 November 1967 to hold its thirteenth special session (meeting 1323), that is, one week after the Nauru Island Phosphate Industry Agreement of November 1967 was signed and a couple of months before the date of Nauru’s inde­pendence, to deal mainly with a letter from Australia concerning the future of the Trust Territory of Nauru (T/1669). The record of the meeting shows the following:

“7. Mr. Shaw (Australia)

13. … Australia was proud to have fulfilled its obligations under [the 1947 Trusteeship Agreement] and under the Charter of the United Nations.

16. Mr. DeRoburt (Special Adviser to the Australian delegation)

20. On all those matters, full agreement had been reached between the Administering Authority and the representatives of the Nauruan people. There was one subject, however, on which there was still a difference of opinion — responsibility for the rehabilitation of phos­phate lands. The Nauruan people fully accepted responsibility in respect of land mined subsequently to 1 July 1967, since under the new agreement they were receiving the net proceeds of the sale of phosphate. Prior to that date, however, they had not received the net proceeds and it was therefore their contention that the three Govern­ments should bear responsibility for the rehabilitation of land mined prior to 1 July 1967. That was not an issue relevant to the termination of the Trusteeship Agreement, nor did the Nauruans wish to make it a matter for United Nations discussion. He merely wished to place on record that the Nauruan Government would continue to seek what was, in the opinion of the Nauruan people, a just settlement of their claims.” (United Nations, Official Records of the Trusteeship Council, Thirteenth Special Session, 1323rd meeting, p. 1.)

The Delegate of Liberia introduced a draft resolution (T/L.l 134) which lacked any provision concerning the rehabilitation of worked-out lands similar to what had been contained in that country’s own draft resolution at the previous session of that Council (ibid., p. 7, para. 57). This draft new resolution, orally amended on minor points, was put to the vote without any discussion and unanimously adopted by the Council as Trusteeship Council resolution 2149 (S-XIII), entitled “The Future of Nauru”, which reads:

” The Trusteeship Council,

  1. Notes the formal announcement by the Administering Author­ity that, following the resumed talks between representatives of the Nauruan people and of the Administering Authority, it has been agreed that Nauru should accede to independence on 31 January 1968;
  2. Welcomes the statements made in the Trusteeship Council by representatives of the Governments of Australia, New Zealand and the United Kingdom of Great Britain and Northern Ireland as the Administering Authority, and by the representatives of the Nauruan people, that the Administering Authority has agreed to meet the request of the representatives of the Nauruan people for full and unqualified independence;
  3. Recommends that the General Assembly at its twenty-second session resolve, in agreement with the Administering Authority, that the Trusteeship Agreement for the Territory of Nauru approved by the General Assembly on 1 November 1947 shall cease to be in force upon the accession of Nauru to independence on 31 January 1968.”

While Mr. DeRoburt, as stated above, wished to place on record his view (which was not acceptable to Australia) that the Nauruan people would continue to press its claim to rehabilitation, no official position was taken by the Trusteeship Council except for its acknowledgment of the termina­tion of the Trusteeship of Nauru on 31 January 1968. Compare Judgment, paragraphs 19 and 28.

20. TTie United Nations, which had encouraged the independence of all the Trusteeship territories, certainly welcomed the willingness of the Administering Authority to promote the independence of Nauru. In the Fourth Committee (Trusteeship and Non-self-governing Territories) of the United Nations General Assembly at its twenty-second session in 1967, the following exchange took place on 6 December 1967:

“8. Mr. Rogers (Australia)

12. … Australian administrative control would cease when that Constitution came into force. Thereafter, Nauru would join that company of nations which had acceded to independence under the guidance and with the assistance of the Trusteeship Council, in accordance with the provisions and objectives of the United Nations Charter. At that time, too, the obligations assumed by the Adminis­tering Authority under the Trusteeship Agreement approved by the General Assembly on 1 November 1947 would be discharged. The Australian delegation requested the Committee to recommend to the Assembly that the Trusteeship Agreement should cease to be in force on 31 January 1968. In conclusion, he paid a tribute to Mr. Hammer DeRoburt, Head Chief of Nauru, who had amply demonstrated his devotion to the cause of his people and who would appreciate the opportunity to address the Committee, if it so wished.

With the agreement of the Committee, Head Chief Hammer DeRoburt of Nauru spoke as a member of the Australian delegation.

13. Mr. DeRoburt (Australia)

20. One [problem] which worried the Nauruans derived from the fact that land from which phosphate had been mined would be totally unusable. Consequently, althouth [sic]it would be an expen­sive operation, that land would have to be rehabilitated and steps were already being taken to build up funds to be used for that pur­pose. That phosphate was a wasting asset was, in itself, a problem; in about twenty-five years’ time the supply would be exhausted. The revenue which Nauru had received in the past and would receive dur­ing the next twenty-five years would, however, make it possible to solve the problem. Already some of the revenue was being allocated to development projects, so that Nauru would have substantial alternative sources of work and of income long before the phos­phate had been used up. In addition, a much larger proportion of its income was being placed in a long-term investment fund, so that, whatever happened, future generations would be provided for. In short, the Nauruans wanted independence and were confident that they had the resources with which to sustain it.” (United Nations, Official Records of the General Assembly, Twenty-second Session, Fourth Committee, 1739th meeting, p. 394.)

After the statements by the delegates of Australia and Mr. DeRoburt, the Delegate of Australia introduced a draft resolution on the question of the Trust Territory of Nauru (A/C.4/L.879). The draft resolution, like the one adopted by the Trusteeship Council a few weeks before, did not contain any provision concerning the alleged claim of the Nauruan people as to Australia’s responsibility for the rehabilitation of worked-out lands. This draft resolution of the General Assembly was also different from the Gen­eral Assembly resolutions of previous years, in that the issue of rehabilita­tion was not mentioned at all, even though it is true that “[t]he resolu­tion . . . recalls those earlier resolutions in its preamble” (Judgment, para. 29). When that draft was discussed, certain delegates made state­ments, some of which I quote as being relevant to the present issue:

“28. [The Delegate of the United Kingdom]… was happy to note that it had been possible to meet the wishes of the Nauruans in a satis­factory manner.

30. The Administering Authority had discharged its obligations faithfully and well,…

35. [The Delegate of China]… congratulated the Administering Authority … on having faithfully fulfilled the Agreement and for having promoted the economic and social progress of Nauru and prepared the people of the Territory for self-government.” (United Nations, Official Records of the General Assembly, Twenty-second Session, Fourth Committee, 1739th meeting, pp. 396,397.)

“17. [The Delegate of USSR]… had … listened with great inter­est to the statement made by Head Chief Hammer DeRoburt … from which he understood that no conditions or reservations would be attached to independence.

24. [The Delegate of the Philippines] congratulated the joint Administering Authority, in particular the Government of Australia, on the successful accomplishment of its obligations under the Charter of the United Nations and the Trusteeship Agreement for Nauru.” (Ibid., 1740th meeting, pp. 401,402.)

“5. [The Delegate of India] . . . With regard to the question of responsibility for the rehabilitation of the mined areas of the island, there was still considerable difference of opinion between the Nauruans and the Administering Authority. Head Chief DeRoburt maintained that the three Governments forming the Administering Authority should defray the cost of that rehabilitation. The Indian Delegation shared that view . . . and hoped that a just agreement would be reached on the subject.

9. [The Delegate of France] expressed his delegation’s satisfaction at the agreement reached between the Administering Authority and the representatives of the people of Nauru. Through that agreement the people of Nauru were gaining independence in accordance with their wishes. He congratulated the Government of Australia on the successful fulfilment of the obligations that it had assumed under the Trusteeship Agreement, and the people of Nauru on their forth­coming independence.” (United Nations, Official Records of the General Assembly, Twenty-second Session, Fourth Committee, 1741st meeting, p. 406.)

The draft resolution, as amended and further orally revised (in manners not directly relevant to the present problem), was unanimously adopted by the Fourth Committee on 7 December 1967 and was then sent to the Plenary Meeting (ibid., p. 407). Compare Judgment, paragraphs 17 and 28.

21. The General Assembly, acting on the basis of this Fourth Commit­tee recommendation, unanimously adopted on 19 December 1967 Gen­eral Assembly resolution 2347 (XXII), “Question of the Trust Territory of Nauru”, in which it was stated that:

” The General Assembly,

  1. Notes the formal announcement by the Administering Author­ity that, following the resumed talks between representatives of the Nauruan people and of the Administering Authority, it was agreed that Nauru should accede to independence on 31 January 1968;
  2. Welcomes the statement made in the Fourth Committee by the representatives of the Governments of Australia, New Zealand and the United Kingdom of Great Britain and Northern Ireland as the Administering Authority that the Administering Authority has com­plied with the request of the representatives of the Nauruan people for full and unqualified independence;
  3. Resolves accordingly, in agreement with the Administering Authority, that the Trusteeship Agreement for the Territory of Nauru approved by the General Assembly on 1 November 1947 shall cease to be in force upon the accession of Nauru to independence on 31 January 1968″.

The responsibility of the Administering Authority, as well as the rights and duties of the Administrator in Nauru, were now to be completely terminated, as is implicit in this United Nations General Assembly resolu­tion, as of 31 January 1968, when Nauru gained independence. Com­pare Judgment, paragraphs 23 and 29.

  1. In the Trusteeship Council’s Report to cover the year 1967-1968, which was submitted to the United Nations General Assembly at its twenty-third session in 1968, a simple account was given of Nauru’s acces­sion to independence on 31 January 1968 (United Nations, Official Records of the General Assembly, Twenty-third Session, Supplement No. 4 (A/7204), Report of the Trusteeship Council 1967-1968, p. 41, paras. 355- 357).

*

  1. Reciting the above development within the United Nations in a somewhat fragmentary manner, the Judgment refers to Australia’s con­tention that Mr. DeRoburt’s statement of 6 December 1967 at the Fourth Committee of the General Assembly “amounted to a waiver” and goes so far as to state that:

“[t]he Court cannot share this view… Notwithstanding some ambi­guity in the wording, the statement did not imply any departure from the point of view expressed clearly and repeatedly by the representa­tives of the Nauruan people before various organs of the United Nations and, in particular, before the Trusteeship Council on 22 November 1967.” (Judgment, para. 20.)

The Judgment refers to the statements made by the representatives of the USSR and India, and states that “the representatives of the Administering Authority did not react” (Judgment, para. 28). Bearing in mind that the statements were themselves made by those representatives in reaction to the draft resolution introduced by Australia, one is not surprised that Aus­tralia “did not react”. It seems to me that the Judgment has placed too much emphasis on the failure of Australia to react to the comments of these delegates and interprets these particular developments in the United Nations as having more importance than they actually possess. Besides, if it is possible to place such a construction on silence at this point in the story, I fail to see why the silence of the 1967 Canberra Agreement between, on the one hand, Australia, New Zealand and the United King­dom and, on the other, the Nauru Local Government Council (see para. 11 above) may not bear even greater weight.

  1. The Court states:

“[General Assembly resolution 2347 (XXII) of 19 December 1967] had ‘definitive legal effect’… Consequently, the Trusteeship Agree­ment was ‘terminated’ on that date and ‘is no longer in force’… In the light of these considerations, it might be possible to question the admissibility of an action brought against the Administering Author­ity on the basis of the alleged failure by it to comply with its obliga­tions with respect to the administration of the Territory. However, the Court does not consider it necessary to enter into this debate and will confine itself to examining the particular circumstances in which the Trusteeship for Nauru was terminated.” (Judgment, para. 23.)

I totally fail to understand this reasoning and also what the Court has in mind by speaking of “the particular circumstances in which the Trustee­ship for Nauru was terminated”. The Court eventually holds that

“when … the General Assembly terminated the Trusteeship over Nauru ..everyone was aware of subsisting differences of opinion between the Nauru Local Government Council and the Administer­ing Authority with regard to rehabilitation of the phosphate lands worked out before 1 July 1967. Accordingly, though General Assem­bly resolution 2347 (XXII) did not expressly reserve any rights which Nauru might have had in that regard, the Court cannot view that resolution as giving a discharge to the Administering Authority with respect to such rights. In the view of the Court, the rights Nauru might have had in connection with rehabilitation of the lands remained unaffected. Regard being had to the particular circum­stances of the case, Australia’s third objection must in consequence be rejected.” (Judgment, para. 30.)

I would rather consider that as the General Assembly resolution did not expressly reserve any rights which Nauru might have had in that regard, that resolution gave a discharge to the Administering Authority with respect to such rights.

25. All claims arising from the implementation of the Trusteeship could have been settled only under the United Nations mechanism. No legal dispute within the meaning of Article 36, paragraph 2, of the Statute could possibly have existed at that time with regard to the administration of Nauru under the United Nations Trusteeship on the eve of Nauru’s independence, as no sovereign State was in a position to put forward a claim based on a purported breach of the obligations entered into by Aus­tralia, New Zealand and the United Kingdom, as the Administering Authority, during the Trusteeship period. A question, however, might have been raised if there was indeed any dispute outstanding between the independent State of Nauru and Australia, New Zealand and the United Kingdom at the time of Nauru’s accession to independence. How­ever, no claim to the rehabilitation of worked-out phosphate lands addressed to the Administering Authority of the Trusteeship by the people of Nauru was taken over by the State of Nauru at the time of inde­pendence in 1968. No United Nations document under which Nauru gained independence showed any evidence of a transfer of the claim or of the creation of a fresh claim for the independent State of Nauru.

II. ite Operative Parts 1 (d) and (e): Delay in the Presentation of Nauru’s Claim and the Question of Nauru’s Good Faith

  1. With regard to “the preliminary objection based on the effect of the passage of time on the admissibility of Nauru’s Application” (operative part 1 (d)), the Court stated that

“[i]n the present case, it was well known, at the time when Nauru gained its independence, that the question of the rehabilitation of the phosphate lands had not been settled” (Judgment, para. 33),

and further stated that

“[t]he Court considers that, given the nature of relations between Australia and Nauru, as well as the steps thus taken, Nauru’s Appli­cation was not rendered inadmissible by passage of time … [I]t will be for the Court, in due time, to ensure that Nauru’s delay in seising it will in no way cause prejudice to Australia with regard to both the establishment of the facts and the determination of the content of the applicable law.” (Judgment, para. 36.)

With regard to “the preliminary objection based on Nauru’s alleged lack of good faith” (operative part 1 (e))9

“[t]he Court considers that the Application by Nauru has been prop­erly submitted in the framework of the remedies open to it. At the present stage, the Court is not called upon to weigh the possible con­sequences of the conduct of Nauru with respect to the merits of the case. It need merely note that such conduct does not amount to an abuse of process. Australia’s objection on this point must also be

rejected.” (Judgment, para. 38.)

* *

  1. As I have stated above, I hold the view that, by the time of the inde­pendence of Nauru, the claim of the Nauruan people to the rehabilitation of lands was no longer viable. I should add, in view of what the Court states, that it was well known at the time of independence that the claim of the Nauruan people had ceased to exist. The Judgment quotes Mr. DeRo­burt as stating on the day of independence that

“We hold it against Britain, Australia and New Zealand to recog­nize that it is their responsibility to rehabilitate one third of the island.” (See Judgment, para. 33.)

But this quotation is extracted simply from press reports based on sources unknown. So far as I am aware, no official document of Nauru, published at independence, asserted any claim based on a purported failure of Aus­tralia to rehabilitate the worked-out phosphate lands. The Constitution of

Nauru (contained in the Memorial of Nauru, Vol. 4, as Annex 42), which became effective on the date of the independence, provided :

“83. 1. Except as otherwise provided by law, the right to mine phosphate is vested in the Republic of Nauru.

2. Nothing in this Constitution makes the Government of Nauru responsible for the rehabilitation of land from which phosphate was mined before the first day of July, One thousand nine hundred and sixty-seven.”

This cannot be interpreted as indicating that Nauru had put forward any claim against Australia (or, for that matter, any third person) but simply meant that the Government of Nauru declined, vis-a-vis the people, to be held constitutionally responsible for the rehabilitation of land from which phosphate had been mined during the Trusteeship period. But, as is well known, absence of constitutional responsibility does not exclude the pos­sibility of responsibility on other legal grounds, including voluntary assumption or proven liability. At all events, no claim to the rehabilitation of worked-out phosphate lands was in fact put forward by Nauru against Australia at the time of independence.

  1. If, merely for the sake of argument, there did exist, at the time of independence, a claim of Nauru (as an independent State) against Aus­tralia, for the rehabilitation of the worked-out phosphate lands, then, according to the record, it was asserted at the very earliest during the talks which Nauru held with Australia in 1983. One cannot conceive that the claim which Nauru presented in its Application of 1989 or, even earlier, in its negotiations with Australia in 1983, could have been based on elements other than those which Nauru might have wished to have taken over in 1968. The fact that Nauru kept silent for more than 15 years on the subject of the alleged claim makes it inappropriate for the Court to entertain it and, if only on grounds of judicial propriety, the Court should therefore find that the Application is inadmissible.
  2. In addition, the fact is that Nauru has been fully responsible for the mining of phosphate since its independence yet has not taken any steps towards the rehabilitation of the lands it has itself worked. To my mind, equity requires the conclusion that Nauru, by this conduct, combined with lack of due diligence, has disqualified itself from pursuing any allegation of Australian responsibility for the rehabilitation of lands which Australia worked during the Trusteeship period. For Nauru to bring a claim now

can only lead one to doubt its good faith.

*

  1. By saying that the Application of Nauru in the present case should be rejected as inadmissible, I am not denying the importance of the preser­vation of an environment from any damage that may be caused by the development or exploitation of resources, particularly in the developing regions of the world. In the light of the natural and social situation in which Nauru as a relatively new independent State is placed, and the particular relations between Australia and Nauru since the time of the League of Nations, I personally am second to none in hoping that some measures may well be considered by Australia for promoting the rehabili­tation of the worked-out lands in parallel with the effort to be made by the State of Nauru itself in that direction.

(Signed) ShigeruODA.

DISSENTING OPINION OF JUDGE AGO

[Translation]
  1. I deeply regret being unable to associate myself with the Judges who have voted in favour of the present Judgment. I regret it all the more since I am certainly no less sensitive than my colleagues to the frustration felt by the Nauruans when they gaze upon the present state of their small island’s territory. I also hope with all my heart that it will be possible for this people once again to find in its country of origin conditions of life favour­able to its development.

But these perfectly justified emotional reactions should not blind us to the fact that the questions we have to consider in this preliminary phase are very specific questions of law and that it is by reference to the law, and only to the law, that they have to be answered.

  1. My reason for taking the position I have indicated and for writing this opinion is that I am compelled to take note of an insurmountable con­tradiction between two facts. There is, on the one hand, the fact that the Government of Nauru has brought proceedings, against Australia alone, for the purpose of enforcing its claims with respect to the “rehabilitation” of its territory. But it is, on the other hand, equally unquestionable that first the League of Nations and then the United Nations entrusted the task of administering Nauru jointly to three distinct sovereign entities, namely the United Kingdom, Australia and New Zealand. This authority was conferred on a basis of complete legal equality between the three Powers. To be sure, the participation of one of them, Australia, in the discharge of the tasks involved in administering the territory under the joint Trustee­ship of three States might, in point of fact, be more substantial than that of the two others. But this could in no way affect the fundamental situation of equality of rights and obligations between the three partners, a situa­tion which, in addition, was particularly guaranteed as regards the mining of phosphate deposits.
  2. It is by reason of the contradiction referred to above that, in consid­ering all the preliminary objections raised by Australia in the present case, I have felt unable to avoid ascribing decisive importance to one, namely the objection based on the fact that two of the three Powers to which Trus­teeship over Nauru had been jointly assigned were not parties to the pro­ceedings. I wish to make it perfectly clear that I am referring to that objection alone, since, in the case of all the others, I fully concur with the majority of the Court in considering that they should be rejected.
  3. I do not know for what reasons the newly independent State of Nauru elected to sue Australia alone. The Judgment to which the present opinion is appended correctly points out, in paragraph 33, that on the very day of the proclamation of the Republic, the Head Chief and future Presi­dent of Nauru, Mr. DeRoburt, told the press that:

“We hold it against Britain, Australia and New Zealand to recog­nize that it is their responsibility to rehabilitate one third of the island.”

In the same context it should also be noted that in 1968 this same Mr. DeRoburt had taken the initiative of proposing a meeting between the representatives of the three Governments that formerly had together made up the Administering Authority of the trust territory and represen­tatives of the Nauruan Government

“to work out how best [an] airstrip could be constructed as a rehabili­tation project and to determine the degree of financial and technical assistance the partner Governments would be able to offer” (Memo­rial of Nauru, Vol. 4, Ann. 76; emphasis added).

5. There was therefore every reason to think that, if an application was to be submitted to the Court, it would be directed against the three States jointly. In my opinion the prerequisites for this were duly fulfilled. New Zealand and the United Kingdom had, like Australia, accepted the com­pulsory jurisdiction of the Court. The terms of New Zealand’s acceptance were, in essence, the same as those of Australia’s. As for the United King­dom, its declaration did, it is true, diverge in certain respects from those of the two other States. But, had New Zealand as well as Australia been par­ties to the proceedings, it could fairly safely have been assumed that the United Kingdom would not have left its two former partners in the admin­istration of Nauru and the exploitation of its mineral resources on their own. It is therefore most likely that it would not, by itself, have raised insurmountable obstacles. Particularly since the clause excluding from the acceptance of the compulsory jurisdiction of the International Court of Justice disputes with States Members of the Commonwealth — a clause originally inserted in the declaration in anticipation of the establishment of a special court for the Commonwealth — could easily have been regarded as obsolete, since that expectation has never been fulfilled. Furthermore, although Nauru had been admitted to the Commonwealth, the conditions of its admission did not make it a full member.

6. Nauru would therefore, at least, have had every reason to seek to bring an action before the Court against the three States affected by the claim it intended to put forward.

But, whatever may have been the reasons that led it to proceed other­wise, the fact remains that it did so. Its Government elected to bring pro­ceedings against Australia alone in respect of the obligation it claims to exist to “rehabilitate” the part of its territory worked out, prior to its inde­pendence, by the three States that had made up the “Administering Authority”. Having taken this course, the Nauruan Government must face the consequences of that choice. It has thus placed the Court before a difficulty that is, in my opinion, insurmountable, namely that of determin­ing the possible obligations of Australia in the area in question without at the same time ipso facto determining those of the other two States that are not parties to the proceedings. For otherwise the Court would manifestly overstep the limits of its jurisdiction.

The Judgment to which this opinion is appended expressly admits that:

“In the present case, a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned …” (Para. 55.)

I welcome this admission. But surely, having made it, one cannot con­sider its consequences avoided by the mere assertion that

“no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia” (ibid.; emphasis added).

In fact, it is precisely by ruling on these claims against Australia alone that the Court will, inevitably, affect the legal situation of the two other States, namely, their rights and their obligations. If, when dealing with the merits of the case, the Court were to recognize that responsibility and accordingly seek to determine the share of the responsibility falling upon Australia, it would thereby indirectly establish that the remainder of the responsibility would fall upon the two other States. Even if the Court were to decide — on what would, incidentally, be an extremely questionable basis — that Australia was to shoulder in full the responsibility in ques­tion, that decision would, equally inevitably and just as unacceptably, affect not only the “interests” but also the legal situation of two States that are not parties to the proceedings. In either case, the exercise by the Court of its jurisdiction would be deprived of its indispensable consensual basis.

These are the reasons that have led me to conclude that the preliminary objection raised in this respect by Australia was well founded and should have been upheld by the Court.

(Signed) Roberto Ago.

DISSENTING OPINION OF JUDGE SCHWEBEL

The contentious jurisdiction of the Court has been limited from the out­set of its existence in 1922 to the cases which the parties submit to it, by whatever means. This has been the law of the matter since the Council of the League of Nations struck from the draft of the Court’s Statute the pro­vision for general compulsory jurisdiction proposed by the Advisory Committee of Jurists. In the development of that law, the Court has shown great care not to find that it has jurisdiction where jurisdiction is question­able. In its long and complex history of jurisdictional controversy, a his­tory which is unique among courts, the Court has rarely departed from this tradition of judicial caution. Its reasons have been prudential as well as constitutional. Not only is it legally not entitled to assert jurisdiction over States which have not assented to it; doing so, or appearing to do so, in questionable cases may persuade States that a measured submission to the Court’s jurisdiction may be interpreted as unmeasured, with the result that they may abstain altogether from adhering to the Court’s jurisdiction. The reality of this apprehension has been demonstrated more than once. It may be, as Elihu Lauterpacht maintains in Aspects of the Administration of International Justice (1991), that, because of developments in the juris­prudence of the Court, in the practice of the Security Council of the United Nations, and elsewhere, the time is ripe for reconsideration of the traditional position that the jurisdiction of the Court is consensual rather than compulsory. But as yet such a fundamental reconsideration has not taken place.

The jurisdictional problems posed in bilateral disputes are magnified in multilateral disputes. But, in contrast to the rich body of jurisdictional practice in bilateral disputes, the cases in which the Court has addressed situations analogous to that now before the Court are few. Where more than one State is charged with joint (or joint and several) commission of an act wrongful under international law, but only one such State is before the Court, may the Court proceed to exercise jurisdiction over that State even though its determination of the liability of that State may or will entail the effective determination of the liability of another? That is the essence of the problem which the Court must resolve if it is to find that it has jurisdic­tion in the instant case and that that case is admissible.

In dealing with that problem, private law sources and analogies are of little use. There is no doubt that, in the municipal law of States, a party may maintain suit against a joint tortfeasor or co-contractor or co-trustee in the absence of other joint tortfeasors, contractors, or trustees. But juris­diction is not consensual in national law; the situation differs fundamen­tally from that which governs international jurisdiction, from which it follows that principles and patterns of national practice in this instance have scant application to the issue before the Court.

The Corfu Channel Case

The problem might have been dealt with by the Court in the Corfu Channel case but it was not. The Memorial of the United Kingdom contended “that the Albanian Government… either caused to be laid, connived at or had knowledge of the laying of mines in certain areas of its territorial waters in the Strait of Corfu”, but it named no other alleged joint tortfeasor. In the course of the proceedings, British counsel intro­duced evidence purporting to show that the mines actually had been laid by ships of the Yugoslav Navy, with the knowledge of the Albanian Government But the Applicant’s submissions made no reference to Yugoslavia and the Court in any event found that the alleged involvement of Yugoslavia was not proved. For its part, Albania, which accepted the Court’s jurisdiction by its acceptance of a recommendation of the Secu­rity Council for the submission of the dispute to the Court, raised a preli­minary objection to the admissibility of the case, but it was not founded on the absence of an alleged joint tortfeasor. Accordingly, the most that may be gleaned from this case is that, where it appears from the facts alleged or shown that there was some unknown joint tortfeasor, the Court will not dismiss the claim against the named tortfeasor proprio motu. There would have been no good ground for its so doing, since a holding against Albania could not have entailed the effective liability of an unnamed and unknown joint tortfeasor for the very reason that it was unnamed and unknown.

Monetary Gold Case

The case of Monetary Gold Removed from Rome in 1943 is the principal precedent, although its singular circumstances — which were linked with the failure of Albania to pay compensation to the United Kingdom as ordered by the Court in the Corfu Channel case — ensure that it will not be on all fours with the current or another case. For present purposes, it is important that the Court and counsel for Nauru and Australia are agreed that the Monetary Gold case is authority for a proposition of continuing vitality, namely, that where a third State’s legal interests would not only be affected by a decision but form the very subject-matter of the decision, proceedings may not be maintained in the absence of that third State; and that they are further agreed that, unlike the Monetary Gold case, in which the question at issue in the Court could not be determined without first passing upon the actions of Albania, a State not party to those proceed­ings, “the determination of the responsibility of New Zealand or the United Kingdom is not a prerequisite for the determination of the respon­sibility of Australia…” (Judgment, para. 55).

But that is as far as their agreement goes. Australia maintains that, as the Court puts it:

“in this case there would not be a determination of the possible responsibility of New Zealand and the United Kingdom previous to the determination of Australia’s responsibility. It nonetheless asserts that there would be a simultaneous determination of the responsibi­lity of all three States and argues that, so far as concerns New Zea­land and the United Kingdom, such a determination would be equally precluded by the fundamental reasons underlying the Mon­etary Gold decision.” (Ibid.)

The Court however concludes, after observing that “the decision requested of the Court regarding the allocation of the gold, was not purely temporal but also logical”, that:

“In the present case, a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia. Accordingly, the Court cannot decline to exercise its jurisdiction.” (Ibid.)

For my part, I find the Court’s reasoning unpersuasive, in the light of the considerations set out below. The essence of my view is that, if a judg­ment of the Court against a present State will effectively determine the legal obligations of one or more States which are not before the Court, the Court should not proceed to consider rendering judgment against the present State in absence of the others. The fact that the timing of the find­ing of the responsibility of the absent party precedes such a finding in respect of the present party, or that the finding of the responsibility of the absent party is a logical prerequisite to the finding of the responsibility of the present party, is not significant. What is dispositive is whether the determination of the legal rights of the present party effectively deter­mines the legal rights of the absent party.

Before setting out why, on the facts of the instant case, I am not in agree­ment with the Court’s reasoning or conclusion, I shall discuss the two other cases on which the Court relies.

Military and Paramilitary Activities in and against Nicaragua

The Court quotes in support of its construction of the meaning of the Monetary Gold case a passage of the Court’s Judgment on jurisdiction and admissibility in Military and Paramilitary Activities in and against Nicara­gua:

“There is no doubt that in appropriate circumstances the Court will decline, as it did in the case concerning Monetary Gold Removed from Rome in 1943, to exercise the jurisdiction conferred upon it where the legal interests of a State not party to the proceedings ‘would not only be affected by a decision, but would form the very subject-matter of the decision’… Where however claims of a legal nature are made by an Applicant against a Respondent in proceed­ings before the Court, and made the subject of submissions, the Court has in principle merely to decide upon those submissions, with binding force for the parties only, and no other State, in accordance with Article 59 of the Statute. As the Court has already indicated… other States which consider that they maybe affected are free to insti­tute separate proceedings, or to employ the procedure of interven­tion. TTiere is no trace, either in the Statute or in the practice of international tribunals, of an ‘indispensable parties’ rule of the kind argued for by the United States, which would only be conceivable in parallel to a power, which the Court does not possess, to direct that a third State be made a party to proceedings. The circumstances of the Monetary Gold case probably represent the limit of the power of the Court to refuse to exercise its jurisdiction; and none of the States referred to can be regarded as in the same position as Albania in that case, so as to be truly indispensable to the pursuance of the proceed­ings. (Judgment of 26 November 1984, I.C.J. Reports 1984, p. 431, para. 88.)” (Judgment, para. 51.)

This 1984 Judgment of the Court in the foregoing as well as some other respects in my view was in error; far from reinforcing the jurisprudence of the Monetary Gold case, it obfuscated it. It is necessary to recall what was at issue in 1984 to explain why.

In its Application and argument, Nicaragua’s essential claim was that military and paramilitary activities of the United States in and against Nicaragua violated obligations of the United States under conventional and customary international law. Nicaragua brought suit against the United States alone. However, its Application and argument maintained that El Salvador, Honduras and Costa Rica all were vitally involved in the delicts of the United States, because they were lending their territory or armed forces to the indicted activities of the United States. For its part, the United States no less stressed the involvement of El Salvador, Honduras and Costa Rica; indeed, its substantive defence to Nicaragua’s charges was that its activities were conducted in the collective self-defence of those nations which were the object of Nicaraguan subversive intervention which was tantamount to armed attack, through Nicaragua’s provision of arms, training, transit, sanctuary, and command-and-control facilities particularly to insurrection in El Salvador. The Court in 1986 held against the United States on the facts and on the law. It essentially concluded, on the facts, that no responsibility could be attributed to the Government of Nicaragua for any flow of arms across its territory to insurgents in El Sal­vador; on the law, it held that in any event provision of arms to insurgents could not be tantamount to an armed attack.

Now when the Court’s Judgment on jurisdiction and admissibility of 1984 is read together with that on the merits of 1986, it appears that the articulate factual holdings of 1986 were the inarticulate factual premises of 1984. That is to say, since the Court was not disposed in 1984 at the stage of jurisdiction and admissibility provisionally to credit the charges of the United States on the facts, it then could arrive at a holding on the law that, if it were subsequently to decide in favour of Nicaragua’s submissions on the merits, El Salvador, Honduras and Costa Rica would be protected against any adverse effects of such a judgment by reason of the import of Articles 59, and 62 and 63, of the Statute. By reason of Article 59, the Judg­ment on the merits would have no binding force except between the United States and Nicaragua and in respect of that particular case. By reason of Articles 62 and 63, should El Salvador, Honduras or Costa Rica consider that their interests might be affected by the decision on the merits, or affected by the construction of a convention to which they were party, they could employ the Court’s statutory provisions for inter­vention in the case.

But, on the factual premises put forth by the United States, it is clear and should have been clear in 1984 that Article 59 could provide no meaning­ful protection to States such as El Salvador which were the objects of alleged Nicaraguan support of armed insurrection within their borders. Assuming the factual allegations of the United States (and of El Salvador) about the activities of the Nicaraguan Government to have been true, but contemplating nonetheless that the United States could be prohibited from taking measures against Nicaragua to assist El Salvador in its defence against those activities, of what use would it be to El Salvador to rely upon the Court’s legal conclusion that the Court’s Judgment against the United States was not binding upon it? If the United States were to comply with the Judgment of the Court, it would cease to act in what it and El Salvador maintained was the collective self-defence of El Salvador, with the result that the latter’s Government, far from having its interests conserved by the force of Article 59, could fall before the onslaught of the insurrection so significantly supported by Nicaragua.

And what, in truth, did the facts turn out to be? As for Nicaragua’s sworn and reiterated denials of any involvement in the material support of insurrection in El Salvador, it subsequently was authoritatively reported that an aircraft flying from Nicaragua packed with missiles was downed in El Salvador, an event which was the subject of consideration in the Secu­rity Council; and it later transpired that the Government of the Soviet Union identified, by serial number, the launch tube of a ground-to-air missile which it had supplied in 1986 to the Nicaraguan Government and which had been fired by Salvadoran insurgents in El Salvador. Indeed, in 1991 it was acknowledged by the leadership of Nicaragua that a number of Soviet-supplied missiles had been transferred to Salvadoran guerrillas by elements of the Nicaraguan Army, at least two of which were used to shoot down aircraft of the Salvadoran Government. So much for the utility of Article 59 in safeguarding the position of El Salvador. As for the possibility of its intervening in the proceedings between Nicaragua and the United States, or instituting separate proceedings, that was a route which offered no more comfort to El Salvador and similarly situated States, having regard to the facts that they had made clear that they did not wish to litigate their security before the Court and that the Court earlier in 1984 had itself summarily dismissed El Salvador’s request to intervene at the stage of jurisdiction and admissibility in exercise of its statutory “right to intervene in the proceedings” under Article 63, and had done so for reasons which were in conformity neither with the Statute nor with the Rules of Court.

Such precedential status as the Court’s holding in the case may be thought to have is further prejudiced by the fact that in 1984 Nicaragua maintained, in respect of the argument of the United States about the effect to be attributed to the absence of El Salvador, Honduras and Costa Rica, that — despite the terms of its Application and argument — it made “no claim of illegal conduct by any State other than the United States” and that it sought “no relief… from any other State”. Th^se affir­mations were belied as well, and within days of the 1986 Judgment on the merits against the United States, when Nicaragua brought intimately related claims in Court against Honduras and Costa Rica, as to which (in apparent contrast to El Salvador) it could make out a title of jurisdiction.

In the light of these considerations, my position on the Court’s reliance on the case of Military and Paramilitary Activities in and against Nicaragua comes to this. The security interests of the States in whose interest the United States claimed to be acting in collective self-defence were as close if not closer to “the very subject-matter of the case” as were the interests of Albania in the Monetary Gold case (see in this regard the analysis of Pro­fessor Lori Fisler Damrosch, “Multilateral Disputes”, in Damrosch, ed., The International Court of Justice at a Crossroads, 1987, pp. 376, 390). In their nature, those vital security interests presumably were more import­ant to them than was Albania’s financial interest to it; more to the point, by determining that the United States was not entitled to act with them in their collective self-defence, the legal as well as the practical interests of those States were no less decisively and centrally determined by the Court’s Judgment than would the interests of Albania have been deter­mined by the Court’s ruling in respect of it This conclusion is reinforced by specific prescriptions of the Court’s Judgment on the merits, which went so far as to pass upon not only the circumstances in which the absent State of El Salvador might take measures in self-defence but upon the pro­portionate counter-measures which the three absent States, El Salvador, Honduras and Costa Rica, could be permitted to take. Judgment in the “Nicaragua” case, as in the case now before the Court, was to be “simul­taneous” in its effect, but that is not the dispositive distinction. The Court there rather should have given, and in the instant case should give, weight to the intensity and not to the timing or logical derivation of the effects in question. If the legal interests of a third State will not merely be affected but effectively determined by the Court’s Judgment, the Court should not proceed to give judgment in the absence of that third State.

Such cases may by their nature be rare and fortunately so, for the prin­ciple of permitting third States by their non-appearance to foreclose liti­gation between two States over which the Court otherwise has jurisdic­tion is unappealing. The question is one of balancing the propriety of the Court’s exercising to the full the jurisdiction which it has been given against the impropriety of determining the legal interests of a third State not party to the proceedings. While it may in practice be unusual for the legal interests of a third State to be subject to such determination, where they are, the balance should swing in its favour, and in favour of the inadmissibility of the action against the present party.

Land, Island and Maritime Frontier Dispute

The final precedent applied by the Court is the Judgment in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras). It dealt with Nicaragua’s Application to intervene in the case pursuant to Article 62 of the Court’s Statute. Nicaragua sought to inter­vene in various but not all aspects of a case involving several distinct though in some respects interrelated matters. It not only maintained, pur­suant to Article 62, that it had interests of a legal nature that may be affected by the decision in the case; in one respect, Nicaragua argued that its interests were so much part of the subject-matter of the case that the Chamber of the Court could not properly exercise its jurisdiction without its participation. Nicaragua contended that, where the vital issue to be settled concerned the rights of Nicaragua in the Gulf of Fonseca and the waters outside it, the Court could not, without its consent, give a decision.

The Chamber observed that Nicaragua apparently thus suggested that in such circumstances the failure of a State to intervene, or even refusal of a request for permission to intervene, may deprive the Court of the right with propriety to exercise jurisdiction conferred upon it by special agreement between two other States. In rejecting this argument, the Chamber referred with approval to its holdings respecting the effect of Articles 62 and 59 of the Statute set out in the Monetary Gold case and in Military and Paramilitary Activities in and against Nicaragua. And it quoted the passage from the Monetary Gold case quoted above about Albania’s legal interests forming “the very subject-matter of the decision”. It continued that, if in the Frontier Dispute case the legal interests of Nicar­agua did form part of the very subject-matter of the decision, this would doubtless justify an intervention by Nicaragua under Article 62, which lays down a less stringent criterion. The Chamber found that, in respect of the Gulf waters, Nicaragua had shown the existence of an interest of a legal nature which may be affected by the decision. But it held that that interest did not form “the very subject-matter of the decision” as did the interests of Albania in the Monetary Gold case. The Chamber explained why in the following terms:

“while the Chamber is thus satisfied that Nicaragua has a legal inter­est which may be affected by the decision of the Chamber on the question whether or not the waters of the Gulf of Fonseca are subject to a condominium or a ‘community of interests’ of the three riparian States, it cannot accept the contention of Nicaragua that the legal interest of Nicaragua ‘would form the very subject-matter of the deci­sion’, in the sense in which that phrase was used in the case concern­ing Monetary Gold Removed from Rome in 1943 to describe the interests of Albania… So far as the condominium is concerned, the essential question in issue between the Parties is not the intrinsic val­idity of the 1917 Judgement of the Central American Court of Justice as between the parties to the proceedings in that Court, but the opposability to Honduras, which was not such a party, either of that Judgement itself or of the regime declared by the Judgement. Hondu­ras, while rejecting the opposability to itself of the 1917 Judgement, does not ask the Chamber to declare it invalid. If Nicaragua is per­mitted to intervene, the Judgment to be given by the Chamber will not declare, as between Nicaragua and the other two States, that Nicaragua does or does not possess rights under a condominium in the waters of the Gulf beyond its agreed delimitation with Honduras, but merely that, as between El Salvador and Honduras, the regime of condominium declared by the Central American Court is or is not opposable to Hondu­ras. It is true that a decision of the Chamber rejecting El Salvador’s contentions, and finding that there is no condominium in the waters of the Gulf which is opposable to Honduras, would be tantamount to a finding that there is no condominium at all. Similarly, a finding that there is no such ‘community of interests’ as is claimed by Honduras, between El Salvador and Honduras in their capacity as riparian States of the Gulf, would be tantamount to a finding that there is no such ‘community of interests’ in the Gulf at all. In either event, such a decision would therefore evidently affect an interest of a legal nature of Nicaragua; but even so that interest would not be the ‘very subject- matter of the decision’ in the way that the interests of Albania were in the case concerning Monetary Gold Removed from Rome in 1943… it follows from this that the question whether the Chamber would have power to take a decision on these questions, without the participation of Nicaragua in the proceedings, does not arise; but that the condi­tions for an intervention by Nicaragua in this aspect of the case are nevertheless clearly fulfilled.” (I.C.J. Reports 1990, p. 122, para. 73; emphasis added.)

It appears to follow from the foregoing reasoning that, if, contrary to the Chamber’s holding, it had found it necessary to decide whether Nicara­gua possessed rights in a condominium, it would have concluded that Nicaragua’s interests formed part of the very subject-matter of the deci­sion. So interpreted, the case supports not the position of Nauru — and of the Court —- on the question now before the Court but the position of Australia.

The International Responsibility for the Governance of Nauru

It remains to consider whether or not the facts of the situation in the years in which Nauru was a Territory administered under a Mandate of the League of Nations and subsequently was administered as a Trust Ter­ritory of the United Nations sustain the conclusion that for the Court to adjudge Australia would entail its effectively adjudging the absent States of the United Kingdom and New Zealand.

On 2 July 1919, an Agreement was concluded between “His Majesty’s Government in London, His Majesty’s Government of the Common­wealth of Australia, and His Majesty’s Government of the Dominion of New Zealand”. It recited that a Mandate for the administration of Nauru had been conferred by the Allied and Associated Powers upon “the Brit­ish Empire”, which was to come into operation on the coming into force of the Treaty of Peace with Germany, and that it is “necessary to make provi­sion for the exercise of the said Mandate and for the mining of the phos­phate deposits on the said Island”. The three Governments accordingly agreed that the administration of Nauru shall be vested in an Administra­tor and provided:

“The first Administrator shall be appointed for a term of five years by the Australian Government; and thereafter the Administrator shall be appointed in such manner as the three Governments decide.” (Memorial of the Republic of Nauru, Vol. 4, Ann. 26, Art. 1.)

It was provided that the Administrator shall have the power to make ordi­nances for the peace, order and good government of the Island. The Agreement further specified that title to the phosphates of Nauru shall be vested in a Board of Commissioners (subsequently to be known as the British Phosphate Commissioners, or “BPC”), comprised of three mem­bers, one to be appointed by each of the three Governments, who shall hold office during the pleasure of the Government by which he is appointed. The Agreement provided that the phosphate deposits shall be worked and sold under the direction, management and control of the Commissioners. It also specified that:

“There shall be no interference by any of the three Governments with the direction, management or control of the business of work­ing, shipping, or selling the phosphates, and each of the three Gov­ernments binds itself not to do or to permit any act or thing contrary to or inconsistent with the terms and purposes of this Agreement.” (Memorial of the Republic of Nauru, Vol. 4, Ann. 26, Art. 13.)

The Agreement allotted shares of the phosphate production to the three Governments and otherwise provided for its sale.

The 1919 Agreement subsequently was amended to entrench Aus­tralia’s authority in the administration of Nauru, particularly to ensure that the Administrator would be appointed by Australia and would act in accordance with the instructions of its Government, which in turn remained obligated to consult with the United Kingdom and New Zealand.

The Mandate for Nauru adopted by the Council of the League of Nations on 17 December 1920 recalled that the Treaty of Peace provided that “a Mandate should be conferred upon His Britannic Majesty to administer Nauru . . It recorded that “His Britannic Majesty” had agreed to accept a Mandate in respect of Nauru and had “undertaken to exercise it on behalf of the League of Nations…”. It defined the terms of the Mandate, according the Mandatory “full power of administration and legislation over the territory subject to the present Mandate as an integral portion of his territory” and requiring it to “promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory ,..”.

The Mandate was replaced by the Trusteeship Agreement for the Terri­tory of Nauru approved by the United Nations General Assembly on 1 November 1947. That Agreement was entered into pursuant to the terms of Article 81 of the United Nations Charter, which provides that “the authority which will exercise the administration of the trust territory” may be “one or more States or the Organization itself’.

The Trusteeship Agreement recalled that in pursuance of the Mandate conferred upon His Britannic Majesty, Nauru “has been administered… by the Government of Australia on the joint behalf ofthe Governments of Australia, New Zealand, and the United Kingdom of Great Britain and Northern Ireland” (emphasis added). It recited that:

“His Majesty desires to place the Territory of Nauru under the Trusteeship System, and the Governments of Australia, New Zea­land and the United Kingdom undertake to administer it on the terms set forth in the present Trusteeship Agreement.” (United Nations, Treaty Series, 1947, Vol. 10, No. 138, p. 4.)

The Agreement designated “The Governments of Australia, New Zealand and the United Kingdom (hereinafter called ‘the Administering Author­ity’)” as uthe joint Authority which will exercise the administration of the Territory” (emphasis added). The Agreement further provided that:

“The Administering Authority will be responsible for the peace, order, good government and defence of the Territory, and for this purpose, in pursuance of an Agreement made by the Governments of Australia, New Zealand and the United Kingdom, the Government of Australia will, on behalf of the Administering Authority and except and until otherwise agreed by the Governments of Australia, New Zealand and the United Kingdom, continue to exercise full powers of legislation, administration and jurisdiction in and over the Territory.” (Ibid., p. 6; emphasis added.)

On 26 November 1965, the three Governments agreed to modify their existing Agreements particularly to provide for the establishment of a Nauruan Legislative Council, Executive Council and Nauruan Courts of Justice. These bodies were given certain powers, while others were retained for an Administrator appointed by the Government of Australia, and for the Australian Government.

In 1967, as a result of intensive rounds of negotiation between the representatives of Nauru, on the one hand, and of Australia, New Zealand and the United Kingdom, on the other, agreement was reached on the two cardinal demands of Nauru: its accession to independence, and the acqui­sition by Nauru of the phosphate enterprise. TTie resultant agreements were signed by representatives of the three Governments jointly compos­ing the Administering Authority and of Nauru.

On 9 February 1987, the three Governments concluded an Agreement to terminate the 1919 Agreement. That Agreement, which, like so many other documents placed before the Court in this case, expressly describes the three Governments as “the Partner Governments”, wound up BPC and agreed upon a distribution of its assets. In all the years from 1919 to 1968, apart from those of Japanese occupation during the Second World War, the phosphate operations — virtually the whole of organized econ­omic activity on the Island — were run not by Australia but by BPC, which was under the direction of three Commissioners appointed by the three Governments.

In pursuance of the instruments which have been described, it was the Mandatory or Administering Authority, not Australia, which was respon­sible to, and which was uniformly treated as responsible to, the League and the United Nations. Communications were addressed to and ran between the Mandatory or the Administering Authority, on the one hand, and the League or the United Nations, on the other. The administration in place in Nauru, and the law applied in Nauru, was Australian. But all that Australia — one of the three Governments denominated by the Trustee­ship Agreement as “the joint Authority” administering Nauru — did, from 1919 to the independence of Nauru, was done “on behalf of’ the Govern­ments of New Zealand and the United Kingdom as well as on its own behalf. Not only Australia, but New Zealand and the United Kingdom as well, were members of the Trusteeship Council under Article 86 of the Charter by virtue of their “administering trust territories”; for a period, New Zealand’s only entitlement to remain a member of the Trusteeship Council was by virtue of its administering, as one of the three States con­stituting the Administering Authority, the Territory of Nauru.

For its part, Nauru steadily maintained not that Australia, but the three Partner Governments, were responsible for rehabilitating worked-out phosphate lands; for example, the record of the negotiating session of 16 May 1967 states that “during the following discussion it emerged that the Nauruans will still maintain their claim on the Partner Governments in respect of rehabilitation of areas mined in the past…”. At the thirty- fourth session of the Trusteeship Council in June 1967, the representative of Nauru proposed that “the Partner Governments” should accept responsibility for rehabilitating land worked before 1 July 1967, a stand reiterated before the Council on 22 November 1967 when the representa­tive of Nauru maintained that “the three Governments should bear responsibility for the rehabilitation of land mined prior to 1 July 1967”. In 1986, Nauru advised the three Governments of its appointment of a Com­mission to inquire into “the Government or organization who should accept responsibility for rehabilitation …” and sought the co-operation of each of those Governments, including provision of records. In 1987, Nauru requested “the three partner Governments of Australia, New Zea­land and the United Kingdom” to keep BPC funds intact pending the con­clusion of the task of the Commission of Inquiry. After receipt of the report of the Commission of Inquiry, Nauru on 20 December 1988 sent identic notes to the Governments of Australia, New Zealand and the United Kingdom; that for New Zealand in part reads:

“The Department of External Affairs wishes to reaffirm the posi­tion which has been consistently taken by the Government of Nauru since independence, and which was taken by the elected representa­tives of the Nauruan people before independence, that the Adminis­tering Authority under the Mandate and Trusteeship over Nauru was and remains responsible for the rehabilitation of the phosphate lands worked out in the period of its administration of Nauru, prior to 1 st July, 1967 when the Nauru Island Phosphate Agreement 1967 entered into force.

Specifically, the Department of External Affairs wishes to reaffirm that New Zealand, in its capacity as one of the three States involved in and party to the Mandate and Trusteeship Agreements over Nauru,, failed to make proper provision for the long-term needs of the Nauruan people, whose welfare was a sacred trust and over­riding responsibility under the relevant Agreements, and that this failure, which was a breach of those Agreements and of general inter­national law, took the form, inter alia, of a failure to make any pro­vision for restoring the worked-out phosphate lands to a reasonable level for habitation by the Nauruan people as a sovereign nation. The Department notes that at no stage has the Government of Nauru, or any authorized representative of the Nauruan people, accepted or agreed that the Nauru Island Phosphate Agreement absolved the Partner Governments or any of them of their responsibility for the rehabilitation of the lands.

Accordingly, the Department of External Affairs reaffirms that the New Zealand Government was and remains under an obligation to make reparation for this failure, whether in the form of monetary compensation or by making, in co-operation with the Government of Nauru, full provision for the rehabilitation of the relevant lands in a manner to be agreed between the Parties.” (Memorial of the Republic of Nauru, Vol. 4, Ann. 80, No. 22; emphasis added.)

Finally, when Nauru brought suit in the Court against Australia, it sent identic notes on 20 May 1989 to New Zealand and the United Kingdom; that for New Zealand in part reads:

“The Department of External Affairs has the further honour to state that on 19th May, 1989 it lodged an Application with the Inter­national Court of Justice in The Hague, in pursuit of its claim for the rehabilitation of the said lands …

The Department has the further honour to draw the attention of the High Commission to the fact that the Application named the

Commonwealth of Australia as sole respondent in respect of the claim. This is without prejudice to the Department’s position, as recorded in its Note of 20th December, 1988 that New Zealand, in its capacity as one of the three States involved in and party to the Man­date and Trusteeship over Nauru, was also responsible for the breaches of those Agreements and of general international law referred to in that Note.” (Memorial of the Republic of Nauru, Vol. 4, Ann. 80, No. 29.)

In view of the essential fact that, from 1919 until Nauruan indepen­dence in 1968, Australia always acted as a member of a joint Administer­ing Authority composed of three States, and always acted on behalf of its fellow members of that joint Administering Authority as well as its own behalf, it follows that its acts engaged or may have engaged not only its responsibility — if responsibility be engaged at all — but those of its “Partner Governments”.

Consequently, a judgment by this Court upon the responsibility of Aus­tralia would appear to be tantamount to a judgment upon the responsibi­lity of New Zealand and the United Kingdom. Of course the Court’s judgment in the current case would in terms be directed only to the parties to it and will have binding force only in respect of that particular case. But let us suppose that Nauru could and would pursue a course of serial litiga­tion like that which Nicaragua pursued first against the United States and, having obtained judgment against it, against Costa Rica and Honduras. Can it be seriously maintained that if, arguendo, the Court were to hold on the merits against Australia, the other States with which it jointly com­posed the Administering Authority would enjoy a consideration whose very subject-matter would not have been passed upon by the Court in the current case?

Nauru maintains that:

“No legal right or responsibility of either State would be deter­mined by the Court in this case, both by virtue of Article 59 of the Statute and because the focus of the claim is on the acts and omis­sions of Australia and of Australian officials responsible for the administration of Nauru.” (Written Statement of the Republic of Nauru, p. 93, para. 262.)

The answer to that core contention is that the protection afforded the absent States by Article 59 in the quite exceptional situation of this case would be notional rather than real; and that while the focus of the claim is on the acts and omissions of Australia and Australian officials respon­sible for the administration of Nauru, those acts and omissions were those of Australia acting as one of three States which jointly constituted the Administering Authority, and they were those of Australia acting on behalf of New Zealand and the United Kingdom.

The issue of the weight to be accorded to the situation of absent States may be a finely balanced one. In this case, for the reasons set out, my own view is that the balance inclines towards holding the Application against Australia alone to be inadmissible.

(Signed) Stephen M. Schwebel.

* *

  1. The Court will begin by considering the question of its jurisdiction. In its Application, Nauru bases jurisdiction on the declarations whereby Australia and Nauru have accepted the jurisdiction of the Court under Article 36, paragraph 2, of the Statute. Those declarations were deposited with the Secretary-General of the United Nations on 17 March 1975 in the case of Australia and on 29 January 1988 in the case of Nauru. The declara­tion of Nauru stipulates that Nauru’s acceptance of the Court’s jurisdic­tion does not extend to “any dispute with respect to which there exists a dispute settlement mechanism under an agreement between the Republic of Nauru and another State”. The declaration of Australia, for its part, specifies that it “does not apply to any dispute in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement”.

9.Australia contends that as a result of the latter reservation the Court

I must now explain why I consider that it has to be assumed at this stage that Australia had an obligation to ensure rehabilitation under the Trus­teeship Agreement, as alleged by Nauru. The reason is that the question whether the obligation existed is part of the merits and, these being pre­liminary proceedings, the elements of the merits have to be assumed (see Nottebohm, I.C.J. Reports 1955, p. 34, Judge Read, dissenting); they cannot be determined now.

In some national systems, a wide range of points of law relating to the merits may be set down for argument in advance of the normal hearing on the merits, provided that all the relevant material is before the Court. The governing criterion is that the point (which might for convenience be

1      See, as to English law, The Supreme Court Practice, 1979, Vol. 1, London, 1978, pp. 282-284, Order 18/11/1-4. And see Northern Cameroons, I.C.J. Reports 1963, sep­arate opinion of Judge Fitzmaurice, pp. 106-107; Nuclear Tests (Australia v. France), Interim Protection, I.CJ. Reports 1973, dissenting opinion of Judge Gros, p. 121; and Nuclear Tests (Australia v. France), I.CJ. Reports 1974, separate opinion of Judge Gros, p. 292.

1 Amon v. Raphael Tuck & Sons, Ltd. [19561 1 A.11 ER 273, at pp. 286-287.


[1]      See, generally, and compare Judge Morelli, in Rivista di diritto intemazionale, Vol. 47, 1964, p. 3; Vol. 54,1971, p. 5; Vol. 58, 1975, pp. 5 and 747; Giuseppe Sperduti, ibid., Vol. 53, 1970, p. 461; Vol. 57, 1974, p. 649; Vol. 58, 1975, p. 657; Roberto Ago, Comunicazioni e studi, Vol. 14,1975, p. l,atp. 11, footnote 22; Ugo Villani, Italian Year­book of International Law, 1975, Vol. 1,p. 206,at p. 207;andS. Rosenne,op.a’f.,p. 160,as to Article 79 of the new Rules “implying a re-definition of the qualification prelimi­nary”.

[2] See generally, D. P. O’Connell, “The Evolution of Australia’s International Person­ality”, in International Law in Australia, ed. D. P. O’Connell, 1965, Chap. 1, and the foreword by Sir Garfield Barwick; D. P. O’Connell and James Crawford, “The Evolu­tion of Australia’s International Personality”, in International Law in Australia, 2nd ed. by K. W. Ryan, 1984, p. 21; and W. A. Wynes, Legislative, Executive and Judicial Powers in Australia, 5th ed., p. 56.

[3] As to the last point, however, compare, in English law, Archbold, Pleading, Evidence and Practice in Criminal Cases, 40th ed., p. 1898, para. 4136; Halsbury’s Laws of England, 4th ed., Vol. 11 (l),pp. 49-50, para. 50; and R v. Howe [1987] 1 All ER771 HL.

[3] should also say something about Australia’s contention that the absence of New Zealand and the United Kingdom from the proceedings deprives the Court of “critical factual information” (Preliminary Objec­tions of the Government of Australia, Vol. I, p. 140, para. 354). Australia’s reliance on the Status of Eastern Carelia case (P.C.I.J., Series B, No. 5, p. 27) overlooks the fact that the absence of an interested State does not necessarily operate to deprive the Court of evidence if the evidence is otherwise available (Western Sahara, I.CJ. Reports 1975, pp. 28-29). The

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