|
[p240]
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 provi-[p 243]sions 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.
*
5. 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. [p 244]
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 [p
245] 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.
**
8. 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
[p 246] 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.
10. 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.
11. 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 [p 247]
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
suf-fice 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 Part-[p
248]ner 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: [p 249]
"[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 [p
250] 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 agree-ment 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". [p 251]
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".
23. 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 [p 252] 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 [p 253]
"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 [p 254]
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-member 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 [p 255] 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.
**
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". [p 256]
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 of South 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." [p 257]
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 [p 258] 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.
*
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 [p 259]
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 par-tial 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 con-sent." (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.) [p 260]
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.C.J.
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 con-sider 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 1984,1.C.J. 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.C.J. 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.
54. A State, however, which is not a party to a case is free to apply for [p
261] 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 Mon-etary 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.C.J. 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 [p 262] the Court's decision on Nauru's claims against Australia.
Accordingly, the Court cannot decline to exercise its jurisdiction.
*
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 Commis-[p
263]sioners" 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 Commis-sioners 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 [p 264]
"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."
*
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. [p 265]
63. 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.
64. 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 men-tions
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.
65. 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.I.J., 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 [p 266]
claim, the claim in question can be considered as included in the original
claim in substance.
66. 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.
67. 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.C.J. 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.C.J. Reports 1974, p. 203, para. 72). The Court considers that these
criteria are not satisfied in the present case.
68. 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).
69. 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-[p267]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 Société commerciale 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 Ar-ticle 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.)
70. 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.
71. 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. [p 268]
***
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; [p 269]
(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.
[p 270]
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. The matter has never been in doubt. [p 271]
To return to the question under examination, as to whether 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 of Justice, 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 [p
272] notion. Speaking of its power to make such an order, in 1964 the Court
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.C.J. 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.C.J. 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
sérieux"). 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 [p
273] considered in the light of the procedural provisions relating to
preliminary objections (I.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.C.J. 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 govern-mental
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
ques-[p 274]tion 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).
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 [p
275] 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 action FN1. The 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 FN2. 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.
---------------------------------------------------------------------------------------------------------------------
FN1
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.CJ.
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.
FN2 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, Comunicazionie studi, Vol.
14,1975,p. l. at p. 11, footnote 22; Ugo Villani, Italian Yearbook of
International Law, 1975, Vol. l,p.206,atp.207; and S.Rosenne,op.cit.,p.
160,as to Article 79 of the new Rules "implying a re-definition of the
qualification preliminary".
---------------------------------------------------------------------------------------------------------------------
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.C.J. Reports
1964, pp. 44-46, and Judge Morelli, dissenting, at pp. 110-112; ibid.,
Second Phase, I.C.J. Reports 1970, pp. 226 ff., Judge Morelli, concurring;
and South West Africa, Second Phase, I.C.J. Reports 1966, p. 19, para. 7).
An argument of that kind would go not to the [p 276] 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, Procès-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 [p 277]
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 FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
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.
---------------------------------------------------------------------------------------------------------------------
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 [p 278] 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.C.J. Reports 1964, pp. 62-63, Judge Koo; and, ibid., Second
Phase, I.C.J. 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 practi-[p 279]cal 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 rehabili-[p 280]tation, 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 counter-part
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 [p 281]
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 Territory'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.C.J. 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 Agree-[p
282] ment 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 act-ing 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 [p 283] of itself entail that this interest is specifically juridical in
character" (South West Africa, Second Phase, I.C.J. Reports 1966, p. 34,
para. 50). An interest is not always a right (Barcelona Traction, Light and
Power Company, Limited, Second Phase, I.C.J. 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). [p 284]
But reticence is not resistance. The Parties disputed the 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.) FN1
------------------------------------------------------------------------------------------------------------
FN1
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 (1), pp. 49-50, para. 50; and R
v. Howe [1987] I AII ER771 HL.
------------------------------------------------------------------------------------------------------------
On the facts, the Corfu Channel case allows for a number of distinctions. [p
285] However, it is to be observed that Judge Azevedo's basic view of the
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.C.J. Reports 1950, p. 151; and
see, ibid.,pp. 148,149,152, and the Namibiacase, 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 [p 286] against
Australia will not amount to a determination of 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 [p
287] 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 [p 288]
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" (CR91/20, 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 [p 289] 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 [p 290] 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. Rayner Ltd. v.
Department of Trade [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 (Eugène Borel, "Les voies de recours contre
les sentences arbitrales", Recueil des cours de l'Académie 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: [p
291]
"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 over-shooting 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 [p
292] 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 òî 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 1943 shows that (I.C.J. 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-à-vis Italy — only two States, Italy and Albania, are directly
interested." (Ibid.)
[p 293]
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 law-[p 294] ful
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.
C.J. 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.C.J.
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/Malta)? 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.C.J. 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.C.J. Report 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 [p 295]
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
opposability, 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 [p 296] 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
deter-minations 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 Aus-[p
297]tralia 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 perse does 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 apriori 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 [p 298] 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 [p 299] 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.C.J. 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.C.J. 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.C.J. 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.
I 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.C.J. Reports 1975, pp. 28-29). The [p 300] 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 party FN1. 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.C.J. 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.
---------------------------------------------------------------------------------------------------------------------
FN1
Anion v. Raphael Tuck & Sons, Ltd. [1956] 1 All ER 273, at pp. 286-287.
---------------------------------------------------------------------------------------------------------------------
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.
[p 301]
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 Question), 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 [p 302] 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.
[p 303]
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), (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.
I. Re 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.) [p 304]
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:
"under[took] 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
"promot[ing] 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:
(a) ... respect the rights and safeguard the interests, both present and
future, of the indigenous inhabitants of the Territory [Nauru]…”[p 305]
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, [p 306] 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:
"3. 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 [p 307] 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 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: [p 308]
"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 [p 309] 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 [p 310]
"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 Agree-[p 311]ment, 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.
*
12.1 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.
13. 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 cir-cumstances 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 phos-phates 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. The 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.
[p 312]
2. Discussions within the United Nations System
14. 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.
15. 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, Official Records
of the General Assembly, Twentieth Session, Supplement No. 4 (A/6004),
Report of the Trusteeship Council 1964-1965, p. 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: [p 313]
"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 [p
314] 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, [p 315] 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 Gov-ernment 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 [p 316]
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 (TV 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 [p 317] 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.1134) 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 [p 318] 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. The 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 fsicjit 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 [p 319] 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, [p
320] 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". [p 321]
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.
22. 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. 355357).
*
23. 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.
24. 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 [p 322]
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. [p 323]
II. Re Operative Parts 1 (d) and (e): Delay in the Presentation of Nauru's
Claim and the Question of Nauru's Good Faith
26. 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)),
"[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.)
**
27. 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 [p 324]
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-à-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.
28. 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.
29. 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.
*
30. By saying that the Application of Nauru in the present case should be
rejected as inadmissible, I am not denying the importance of the presser-[p
325]vation 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) Shigeru Oda.
[p 326]
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.
2. 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.
3. 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.
4. I do not know for what reasons the newly independent State of Nauru
elected to sue Australia alone. The Judgment to which the present [p 327]
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 represen-tatives 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 pro-[p
328]ceedings 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.
[p 329]
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
[p 330] 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 1943Is 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,
[p 331] 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. [p 332]
Military and Paramilitary Activities in and against Nicaragua
The Court quotes in support of its construction of the meaning of the
Monetary Goldcase 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 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.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 [p 333]
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. [p 334]
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". These 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, [p
335] 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 [p 336] 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 [p 337] 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 phos-phate deposits on the said Island".
The three Governments accordingly agreed that the administration of Nauru
shall be vested in an Administrator and provided: [p 338]
"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 [p 339] 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 of the 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 "the
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. The 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 [p 340] 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 [p 341] 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 1st 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 [p 342] 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 respon-sible
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. [p 343]
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.
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