Certain Phosphate Lands in Nauru (Nauru v. Australia)

On 19 May 1989 the Republic of Nauru filed in the Registry of the Court an Application instituting proceedings against the Commonwealth of Australia in respect of a dispute concerning the rehabilitation of certain phosphate lands mined under Australian administration before Nauruan independence. In its Application, Nauru claimed that Australia had breached the trusteeship obligations it had accepted under Article 76 of the Charter of the United Nations and under the Trusteeship Agreement for Nauru of 1 November 1947. Nauru further claimed that Australia had breached certain obligations towards Nauru under general international law, more particularly with regard to the implementation of the principle of self-determination and of permanent sovereignty over natural wealth and resources. Australia was said to have incurred an international legal responsibility and to be bound to make restitution or other appropriate reparation to Nauru for the damage and prejudice suffered. Within the time-limit fixed for the filing of its Counter-Memorial, Australia raised certain preliminary objections relating to the admissibility of the Application and the jurisdiction of the Court.

On 26 June 1992, the Court delivered its Judgment on those questions. With regard to the matter of its jurisdiction, the Court noted that Nauru based that jurisdiction on the declarations whereby Australia and Nauru had accepted the jurisdiction of the Court under Article 36, paragraph 2, of the Statute. The declaration of Australia specified that it did “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”. Referring to the Trusteeship Agreement of 1947 and relying upon the reservation contained in its declaration to assert that the Court lacked jurisdiction to deal with Nauru’s Application, Australia argued that any dispute which arose in the course of the trusteeship between “the Administering Authority and the indigenous inhabitants” should be regarded as having been settled by the very fact of the termination of the trusteeship (provided that that termination had been unconditional) as well as by the effect of the Agreement relating to the Nauru Island Phosphate Industry of 1967, concluded between the Nauru Local Government Council, on the one hand, and Australia, New Zealand and the United Kingdom, on the other, whereby Nauru was said to have waived its claims to rehabilitation of the phosphate lands. As Australia and Nauru did not, after 31 January 1968, when Nauru acceded to independence, conclude any agreement whereby the two States undertook to settle their dispute relating to rehabilitation, the Court rejected that first preliminary objection of Australia. It likewise rejected the second, third, fourth and fifth objections raised by Australia.

The Court then considered the objection by Australia based on the fact that New Zealand and the United Kingdom were not parties to the proceedings. It noted that the three Governments mentioned in the Trusteeship Agreement constituted, in the very terms of that Agreement, “the Administering Authority” for Nauru ; but 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, in particular, by the Trusteeship Agreement. The Court did not consider, to begin with, that any reason had been shown why a claim brought against only one of the three States should be declared inadmissible in limine litis, merely because that claim raised questions regarding the administration of the territory, which was shared with the two other States. It further considered, inter alia, that it was in no way precluded from adjudicating upon the claims submitted to it, provided the legal interests of the third State which might possibly be affected did not form the actual subject-matter of the decision requested. Where the Court was so entitled to act, the interests of the third State which was not a party to the case were protected by Article 59 of the Statute. The Court found that, in the instant case, the interests of New Zealand and the United Kingdom did not constitute the actual subject-matter of the Judgment to be rendered on the merits of Nauru’s Application and that, consequently, it could not refuse to exercise its jurisdiction and that the objection argued on that point should be dismissed.

Lastly, the Court upheld the preliminary objection addressed by Australia to the claim by Nauru concerning the overseas assets of the British Phosphate Commissioners, according to which it was inadmissible on the ground that it was a completely new claim which appeared for the first time in the Memorial, and that the object of the dispute originally submitted to the Court would have been transformed if it had dealt with that request. A Counter-Memorial of Australia on the merits was subsequently filed and the Court fixed the dates for the filing of a Reply by the Applicant and a Rejoinder by the Respondent. However, before those two pleadings were filed, the two Parties, by a joint notification deposited on 9 September 1993, informed the Court that they had, in consequence of having reached a settlement, agreed to discontinue the proceedings. Accordingly, the case was removed from the General List by an Order of the Court of 13 September 1993.