Audience publique tenue le mardi 19 novembre 1991, à 9 h 30, au Palais de la Paix, sous la présidence de sir Robert Jennings, président

CR 91/20
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 1991
Public sitting
held on Tuesday 19 November 1991, at 9.30 a.m., at the Peace Palace,
President Sir Robert Jennings presiding
in the case concerning Certain Phosphate Lands in Nauru
(Nauru v. Australia)

VERBATIM RECORD

ANNEE l991
Audience publique
tenue le mardi 19 novembre 1991, à 9 h 30, au Palais de la Paix,
sous la présidence de Sir Robert Jennings, Président,
en l'affaire de Certaines terres à phosphates à Nauru
(Nauru c. Australie)

COMPTE RENDU

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

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Présents:
Sir Robert Jennings, Président
M. Oda, Vice-Président
MM. Lachs
Ago
Schwebel
Bedjaoui
Ni
Evensen
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Ranjeva, Juges
M. Valencia-Ospina, Greffier

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The Government of the Republic of Nauru is represented by:
Mr. V. S. Mani, Professor of International Law, Jawaharlal Nehru
University, New Delhi; former Chief Secretary and Secretary to
Cabinet, Republic of Nauru; and an expert in the affairs of Nauru,
Mr. Leo D. Keke, Presidential Counsel of the Republic of Nauru;
former Minister for Justice of the Republic of Nauru; and an
expert in Nauruan affairs; and Member of the Bar of the Republic
of Nauru and of the Australian Bar,
as Co-Agents, Counsel and Advocates;
H. E. Hammer DeRoburt, G.C.M.G., O.B.E., M.P., Head Chief and
Chairman of the Nauru Local Government Council; former President
and Chairman of Cabinet and former Minister for External and
Internal Affairs and the Phosphate Industry, Republic of Nauru;
the Senior most Nauruan Statesman; an outstanding expert in
Nauruan affairs.
Mr. Ian Brownlie, Member of the English Bar; Chichele Professor of
Public International Law, Oxford; Fellow of All Souls College,
Oxford,
Mr. Barry Connell, Associate Professor of Law, Monash University,
Melbourne; Member of the Australian Bar; former Chief Secretary
and Secretary to Cabinet, Republic of Nauru and an expert in
affairs of Nauru,
Mr. James Crawford, Challis Professor of International Law and Dean
of the Faculty of Law, University of Sydney; Member of the
Australian Bar,
as Counsel and Advocates.
The Government of Australia is represented by:
Dr. Gavan Griffith, Q.C., Solicitor-General of Australia,
as Agent and Counsel;
H.E. Mr. Warwick Weemaes , Ambassador of Australia,
as Co-Agent;
Mr. Henry Burmester, Principal Adviser in International Law,
Australian Attorney-General's Department,
as Co-Agent and Counsel;
Professor Eduardo Jiménez de Aréchaga, Professor of International
Law at Montevideo,
Professor Derek W. Bowett, Q.C., formerly Whewell Professor of
International Law at the University of Cambridge,
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La Gouvernement de la République de Nauru est représenté par :
M. V. S. Mani, professeur de droit international à l'Université
Jawaharlal Nehru de New Delhi; ancien secrétaire en chef et
secrétaire du conseil des ministres de la République de Nauru;
expert des questions relatives à Nauru,
M. Leo D. Keke, conseiller du Président de la République de Nauru;
ancien ministre de la justice de la République de Nauru; expert
des questions relatives à Nauru; membre du barreau de la République
de Nauru et du barreau d'Australie,
comme coagents, conseils et avocats;
S. Exc. M. Hammer DeRoburt, G.C.M.G., O.B.E., M.P., chef principal
et président du conseil de gouvernement local de Nauru; ancien
Président et responsable de la présidence du conseil des
ministres, ancien ministre des affaires extérieures et intérieures
et de l'industrie des phosphates de la République de Nauru;
l'homme d'Etat nauruan le plus expérimenté; expert éminent des
questions relatives à Nauru,
M. Ian Brownlie, membre du barreau d'Angleterre; professeur de droit
international public à l'Université d'Oxford, titulaire de la
chaire Chichele; Fellow de l'All Souls College, Oxford,
M. Barry Connell, professeur associé de droit à l'Université Monash
de Melbourne; membre du barreau d'Australie; ancien secrétaire en
chef et secrétaire du conseil des ministres de la République de
Nauru, expert des questions relatives à Nauru,
M. James Crawford, professeur de droit international, titulaire de
la chaire Challis et doyen de la faculté de droit de l'Université
de Sydney; membre du barreau d'Australie,
comme conseils et avocats.
Le Gouvernement australien est représenté par :
M. Gavan Griffith, Q.C., Solicitor-General d'Australie,
comme agent et conseil;
S.Exc. M. Warwick Weemaes, ambassadeur d'Australie,
comme coagent;
M. Henry Burmester, conseiller principal en droit international au
service de l'Attorney-General d'Australie,
comme coagent et conseil;
M. Eduardo Jiménez de Aréchaga, professeur de droit international à
Montevideo,
M. Derek W. Bowett, Q.C., professeur et ancien titulaire de la
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chaire Whewell de droit international à l'Université de Cambridge,
Professor Alain Pellet, Professor of Law at the University of Paris
X-Nanterre and at the Institute of Political Studies, Paris,
Dr. Susan Kenny, of the Australian Bar,
as Counsel;
Mr. Peter Shannon, Deputy Legal Adviser, Australian Department of
Foreign Affairs and Trade,
Mr. Paul Porteous, First Secretary, Australian Embassy, The Hague,
as Advisers.
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M. Alain Pellet, professeur de droit à l'Université de
Paris X-Nanterre et à l'Institut d'études politiques de Paris,
Mme Susan Kenny, du barreau d'Australie,
comme conseils;
M. Peter Shannon, conseiller juridique adjoint au département des
affaires étrangères et du commerce extérieur d'Australie,
M. Paul Porteous, premier secrétaire à l'ambassade d'Australie aux
Pays-Bas,
comme conseillers.
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The PRESIDENT: Professor Brownlie, please.
Professor BROWNLIE: Thank you, Mr. President.
Yesterday, I had made an attempt to reconstitute the documentary history of the dispute with
particular reference to the Talks of 1965, 1966 and 1967.
In order to deal with two Australian assertions, the first that no legal claim was ever made by
the representatives of Nauru, and the second that if indeed such a claim was made, then at some
point in time it was waived by Nauruan representatives. I had reached the two episodes of
22 November and 6 December 1967, which are featured a great deal in the pleadings, with the Head
Chief Mr. Hammer DeRoburt on 22 November making a very clear statement of the Nauruan legal
position on rehabilitation and then making a statement on 6 December 1967, in which no reference is
made to that question. I had looked at the circumstances in which the statement of 6 December had
been made.
Mr. President, I want to make two final comments on the significance of the statement of
6 December.
The first is that no delegation attending the Fourth Committee meetings at the 22nd session of
the General Assembly interpreted the statement as a waiver of the claim to rehabilitation. On the
contrary, there were statements made by several delegations referring to the outstanding
rehabilitation question ( I refer to the Preliminary Objections of Australia, Vol. II, Annexes, p. 263,
para. 22, which was the statement of the Soviet delegate, and p. 266, para. 5, the statement of the
Indian delegate).
The second overall point is that the general pattern of conduct on the part of Nauruan
representatives in the material period is what should count, and that the pattern of conduct by those
representatives from 1964 until independence completely contradicts the Australian thesis of waiver.
United Nations Resolutions
The final stages of the achievement of independence was supervised and monitored by the
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relevant United Nations organs.
There is no evidence whatsoever to suggest that the pertinent resolutions of the Trusteeship
Council and General Assembly involve a recognition of the existence of a waiver of rights on the
part of Nauru.
But, Mr. President, such silence is never an obstacle in the eyes of Australia. For Australia,
the logic is very simple. And, thus, for them, the 1967 Agreement involved a renunciation of
Nauruan claims (though it did not say so).
For Australia, the United Nations organs were aware of the terms of the 1967 Agreement and
so, when resolutions relating to independence were adopted, these, Australia says, involved
recognition of the renunciation of Nauruan claims (though the resolutions did not say so).
This is the house of cards presented, for example, by Mr. Griffith at the first session of these
hearings (CR 91/15, pp. 40-41). And Mr. Griffith stated proposition after proposition without
benefit of precise citation from documentary sources.
The key General Assembly resolutions of 1965 and 1966 make express reference to the duty
of rehabilitation. And the final resolution, General Assembly resolution 2347 (XXII) of
19 December 1967, adopted unanimously, recalled the earlier resolutions 2111 (XX) and
2221 (XXI), both of which had contained strong recommendations with respect to rehabilitation,
and noted that Nauru should become independent on 31 January 1968 and resolved:
"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 ..."
Mr. President, Members of the Court, the Australian thesis amounts to this. The granting of
independence took place without the duty of rehabilitation being acknowledged by Australia. The
United Nations organs permitted the completion of the independence procedure without obliging
Australia to accept the burden of rehabilitation. Therefore, Nauru has waived its claim.
In our submission, there is no evidence to support the Australian assertions concerning waiver.
Moreover, the related thesis, that the United Nations organs, as it were, acted as the agents of
Australia in the mechanism of waiver, is startling and unattractive.
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The position adopted by Australia, in its essentials, involves imposing a choice upon the
Nauruan leadership in the period immediately before independence. According to this choice, either
Nauru postponed independence until such time as Australia recognized its responsibility, or
independence was accepted but only on the condition that the claim concerning rehabilitation was
renounced.
This is precisely the scenario adopted by the Agent and Counsel of Australia. But it is a
scenario unrelated to the evidence and one which, in our submission, was inherently unlikely to
correspond with the intentions of the Trusteeship Council and the General Assembly in the run-up to
independence.
Nauruan Affirmation of the Claim after Independence
Immediately upon the achievement of independence, the Nauruan claim was affirmed by the
President of Nauru, in circumstances referred to in graphic detail by my colleague,
Professor Connell. If I could just remind the Court, on 31 January, it is reported in the Australian
press that President DeRoburt had said in public:
"We hold it against Britain, Australia and New Zealand to recognize that it is their
responsibility to rehabilitate one-third of the island." (The Sun (Sydney), 2 February 1968;
Nauru Memorial, Vol. 4, Ann. 69.)
Moreover, the theme of rehabilitation was also the subject of the letter dated
5 December 1968, from the President of Nauru to the Australian Minister of External Affairs
(Nauru Memorial, Vol. 4, Ann. 76). The significance of this letter has already been explained by my
colleague, Professor Connell.
The fact is that Nauruan conduct in the post-independence period provides confirmation of the
claim to rehabilitation and thus of the consistency of the Nauruan position throughout, both before
independence and after independence.
However, before I move on to an examination of the post-independence evidence, I shall, with
your permission, present my submissions on the queston of waiver.
They are as follows:
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First: during the key discussions in 1965, 1966 and 1967, Australia tended to avoid any
express denial of the claim, relying generally on the assertion that Nauru would have "sufficient
funds" at the time of independence, a theme which has been repeated here by the Australian Agent.
Secondly: When the Nauruan position was stated with precisions at the Thirteenth Special
Session of the Trusteeship Council, on 22 November 1967, the Australian representative there
present made no denial or reservation.
Thirdly: Australia has failed to produce any evidence of an express waiver and relies
exclusively on inference.
Fourthly: The inferences which Australia has invited the Court to draw are baseless and are
incompatible with the documentary record taken as a whole.
Fifthly: In any case, in our submission Australia has failed to satisfy the standard of proof
applicable to the renunciation of rights.
Sixthly: - and lastly - the Court should require, in our submission, special rigour in proof of
renunciation when the context involves relations before independence and when the alleged waiver
relates to claims concerning breach of Trusteeship obligations.
The "Unreasonable Delay" Argument
I now move on to the "unreasonable delay" argument and that leads me on to the
post-independence history.
Australia has invoked the concept of extinctive prescription or, in the phrase used in these
proceedings, "unreasonable delay" and that argument was developed by my friend Professor Bowett
in particular (CR 91/16, pp. 25-29).
In the Nauruan Written Statement (pp. 48-50, paras. 119-23) it is demonstrated that the lapse
of time, as a matter of law, the lapse of time as such does not bar claims and that some other
element, such as prejudice to the Respondent State, is required. In fact, Counsel for Australia
appears to accept this view, thus resiling from the position by Australia in the Preliminary
Objections of Australia (paras. 381-386).
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The position of Nauru is very straightforward. The rehabilitation claim was on record, at
least as early as 1965, but was not the subject of agreement and consequently remained unresolved at
the time of independence. After independence, the claim was maintained by Nauru but initiatives on
the part of Nauru towards a settlement met with a refusal to negotiate.
And so, in our view, the thesis of "unreasonable delay" is, in essence, an attempt to depict the
reluctance of Australia to take Nauruan claims seriously as a delay in presentation of the claim on
the part of the Applicant State. On this view of history - but only on this view of history - the
Application of Nauru came as a surprise to Australia.
The first element in the Australian argument is "that no legal claim was ever presented
post-independence" (CR 91/16, p. 27) and that the "dalay" (in their phrase) of 24 years constitutes
an implied waiver (ibid., pp. 25-26).
In our view, the premises of the Australian argument are pleasingly eccentric.
In the first place, if the pre-independence waiver were established, then no post-independence
claim could arise, it being common ground between the Parties that independence as such made no
difference.
Secondly, an implied waiver can only operate in respect of an actual claim.
Thirdly, Counsel for Australia asserts that "no legal claim was ever presented
post-independence".
Leaving aside the contradictions in the Australian argument, the key elements, in our
submission, are these. As a matter of law, once notification of a claim has been made, the principle
of prescription simply cannot apply. The Australian Government was notified of the claim prior to
independence, for example, in the three phases of negotiation in 1965, 1966 and 1967.
And the Australian pleadings have recognized the continuity of the history of the dispute
before and after independence, as I pointed out at the outset of my speech yesterday.
Consequently, and given that Nauru has maintained its claim relating to rehabilitation since
independence, the notification in the period before independence rules out the operation of the
principle of prescription.
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In my submission, the relevant legal sources reveal that the principal element in the concept of
"undue delay" or "prescription" is delay in the original notification of the claim to the Respondent
State and once a claim has been notified there must be a very strong presumption against the
application of extinctive prescription. This view is supported by Sir Hersch Lauterpacht,
Charles Rousseau and other authorities and the relevant citations may be found in our Written
Statement (Nauru Written Statement, pp. 50-51, paras. 126-130).
On the basis of the notification of the claim before independence, Australia cannot claim the
benefit of prescription.
But Australia argues that, in any event, no legal claim was presented after independence
(CR 91/16, pp. 26-28).
This argument has two aspects, of which the first is, as it were, sub rosa. The Australian
presentation in this context ignores the pre-independence evidence of legal claims which I have
already reviewed. And so, this omission allows Australia to insinuate that the post-independence
initiatives appear on an empty canvas, when, in reality, they involve the continuation of a
long-developed Nauruan stance.
The second aspect of the Australian argument is closely related to the first. It involves the
suggestion that, because a document does not anticipate the precise contents of the Application, or
otherwise present a precise legal claim, therefore no legal claim has been made. And this is the
extremely artificial approach which Counsel for Australia brings to the post-independence history of
the dispute (CR 19/16, pp. 26-27).
After all, the context in which the exchanges occurred since independence was that of
diplomacy rather than negotiation. No third-party settlement procedure was involved and therefore
legal argumentation as such was out of place.
Nonetheless, the Australian responses to Nauruan initiatives post-independence have shown a
clear appreciation of the element of continuity with the dealings before independence and have
presented what are in substance legalistic grounds for refusing Nauruan requests.
There can be no question that whenever a reference to rehabilitation occurred in a document,
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the Australian Government and its advisers would be well aware of the legal ramifications and the
connected series of antecedents reaching back to the Talks in the years 1964 to 1967.
Thus, although Professor Bowett (CR 91/16, p. 26) belittles the Nauruan letter dated
5 December 1968 (Nauru Memorial, Vol. 4, Ann. 76) the Australian response adopts a formal tone
and deploys legal considerations in justification of its conclusions. The key paragraph of the
Australian reply, dated 4 February 1969, is as follows:
"I have consulted the New Zealand and British Governments on your proposal. You
will recall that the Partner Governments, in the talks preceeding 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. In the circumstances, therefore, you will understand that
the Partner Governments are not able to agree to your proposal." (Nauru Memorial, Vol. 4,
Ann. 77.)
Obviously, from the terms of that letter, an important point of principle was involved, other
Governments were consulted, and what was produced was a formal and cautious response to the
Nauruan letter of the 5 December 1968.
The issue of rehabilitation was raised at the highest level in 1973 and 1974. The sequence of
events has been recorded by the then President of Nauru, as follows:
"On a State Visit to Canberra in 1973, I raised with the then Prime Minister, the
Honourable E. G. Whitlam, the question of rehabilitation as a matter of concern. Again, when
Senator Willesee, the Acting Minister of Foreign Affairs in the Whitlam Government [in
Australia], visited Nauru in 1974, I raised the matter with him but to no avail. A subsequent
approach to the Australian Prime Minister, the Honourable R. J. L. Hawke, in 1983, met with
a similar response. At that point, my Government, well understanding that primary mining of
phosphate was within a few years of completion, decided that an independent study of the
rehabilitation problem should be set up and so the Commission of Inquiry was later launched."
(Statement of Mr. Hammer DeRoburt, appended to the Nauru Memorial, Appendix 1,
para. 30.)
In 1983 the President of Nauru addressed a letter to Mr. Hawke, the Prime Minister of
Australia, which read (in part):
"I thank you very much for sparing me some time from your very busy schedule on the
Tuesday, 30th August, at the Lakeside Hotel in Canberra, to enable me to mention two
outstanding matters which have been of serious concern to successive Governments of Nauru.
As I had undertaken, I am now writing on one of these matters, the rehabilitation of
worked-out phosphate lands on Nauru."
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And the letter continues
"Prior to, and at the time of, Nauru's achievement of independence from the Partner
Governments of Australia, New Zealand and the United Kingdom, we had requested Australia
and the other Governments to rehabilitate that part of the phosphate deposit which has been
mined by them for the benefit of their countries. However our requests were rejected by the
three Governments, the last occasion being at the General Assembly of the United Nations in
December 1967."
And he completes the letter
"My Government, acting out of necessity and in pursuance of a formal resolution made
during the First Parliament (1968-1971) of Nauru, has now decided to approach the present
Government of Australia to seek a sympathetic reconsideration of Nauru's position in this
matter." (Nauru Memorial, Vol. 4, Ann. 78.)
And in our submission the terms of that letter of 1983 convey very clearly the continuity in the
history of the dispute, and the contents of successive letters show that this element of continuity was
perceived on both sides.
And then we come to the letter dated 14 March 1984 in which Mr. Hawke replies to the
President of Nauru writing in 1983. And Mr. Hawke says:
"Thank you for your letter of 6 October 1983 requesting reconsideration of the proposal
that the Australian Government, along with the former partner governments of New Zealand
and the United Kingdom, contribute to the cost of rehabilitating areas on Nauru that have been
subjected to phosphate mining.
After careful consideration of your request, in consultation with my Ministers
concerned, I wish to inform you that Australia stands by the position it took in 1967 when
together with New Zealand and the United Kingdom it rejected a similar request for
rehabilitation assistance. The former partner governments agreed at that time that it was a
requirement of termination of the trusteeship agreement that they were entirely cleared of any
onus or financial responsibility for the rehabilitation of Nauru."
And Mr. Hawke continues
"The position was reaffirmed early in 1969 by the then Minister of External Affairs
who, in response to a similar proposal, emphasized that the partner governments remained
convinced that the terms of the settlement with the Government of Nauru were sufficiently
generous to enable it to meet its needs for rehabilitation and development.
I regret, therefore, that Australia sees no reason to vary its position on this matter."
(Nauru Memorial, Vol. 4, Ann. 79.)
And so, Mr. President, in the opinion of Nauru this letter of 1954 gives a true picture of the
attitude of the Respondent State. The Australian Government refuses to recognize its responsibility
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and accepts that this traditional refusal dates back to 1967.
No surprise is expressed; and no complaint of delay in raising the question. Mr. Hawke is
accepting that the question is one of long-standing.
In other words the subject of the correspondence is clearly a dispute going back to the
pre-independence period.
There is one last point on this. Australia accepts that, if there was a waiver, it is irrelevant
whether or not Australia was prejudiced (CR 91/16, p. 28). However, it is contended also that
Australia was in fact prejudiced by the alleged delay.
The first element of prejudice asserted by Professor Bowett is that Australia did not have all
the documents apparently because "the present claim of Nauru takes us back to the days of the
Mandate".
With respect this complaint has a very hollow ring. Both Parties had access to the British
archives and Australia has its own archives of that period.
However, the Agent of Australia expressed a very different view in his opening speech where
he said:
"At this stage we say that it is clear that it cannot be argued that the Court lacks the
necessary evidence, or proof of facts, to be able to rule on Australia's objections at this stage.
Australia has set out the factual and legal basis of its objections in some detail. It has also
provided the relevant documentary evidence. All the relevant facts are before the Court. They
are either admitted by Nauru, or in the public domain, or evidenced by documentary material
already before the Court." (CR 91/15, pp. 23-24.)
The second element of alleged prejudice invoked by Professor Bowett is that Australia is being
sued alone (CR 91/16, pp. 28-29).
In the view of Nauru this is the consequence of a perfectly proper choice based upon legal
considerations which will be expounded by my colleague, Professor Crawford. The question of
parties has no relation to the issue of delay.
Mr. President, Members of the Court, the element of prejudice envisaged in the legal sources
is precisely related to the difficulties of proof in the context of stale claims.
The doctrine of prescription or delay requires the existence of some procedural disadvantage
suffered by the Respondent State. Apart from the question of notification, the only other issue of
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procedural fairness tends to concern the availability of evidence to allow the Respondent adequate
means of defence.
Australia was notified of Nauruan claims at least as early as 1965 and the Agent has accepted
that Australia has not been disadvantaged in respect of matters of proof.
The relevant legal sources have been set out in the Nauruan Written Statement, pages 50-52,
paragraphs 126-133.
I have now completed the argument on delay and will present my submissions on that subject.
First: The element of lapse of time in the history of the dispute results exclusively from
Autralia's refusal to take Nauruan legal claims seriously.
Secondly: Australia was notified of Nauruan claims no later than 1965 and has suffered no
procedural disadvantage whatsoever.
Thirdly and lastly: The diplomatic correspondence since independence confirms that there has
been no element of the unexpected in the relations of Nauru and Australia.
Recourse to some Other Method of Peaceful Settlement
My next task, Mr. President, is to address the exclusion clause in Australia's declaration
which refers to "any dispute in regard to which the parties thereto have agreed to have recourse to
some other method of peaceful settlement".
In the Preliminary Objections (paras. 278-283) Australia postulates an agreement by Nauru
"to the settlement of disputes between it and the Administering Authority ... by direct negotiation"
(see para. 283, in particular).
Also in the Preliminary Objections (paras. 284-291) Nauru is alleged to have "agreed to
accept as settled all outstanding issues with the Administering Authority by resolution of the
Trusteeship Council and General Assembly, as the final method of settlement" (see para. 284, in
particular).
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In his oral argument on behalf of Australia Professor Jiménez de Aréchaga produced a much
more complex hypothesis. And with your permission, Mr. President, I would like to remind the
Court of how complex that hypothesis is. Professor Jiménez de Aréchaga said:
"We shall try to demonstrate that the means of peaceful settlement agreed upon and
utilized by the Parties, in respect of the dispute, were not simply direct negotiations but
included as well certain methods of peaceful settlement resulting from the complex mechanism
established by the United Nations Charter for the supervision of a trusteeship administration."
And he continues
"The exercise, during 20 years (between 1947 and 1968), of these various other
methods of pacific solution, and the interaction between them, did result in the settlement of all
the facets of the dispute which Nauru now brings before the Court.
Through the exercise of the United Nations functions of supervision of a trusteeship
administration, several traditional methods of peaceful settlement of disputes were brought
into play. The process comprehended an amalgam of elements of investigation, inquiry,
mediation and conciliation, together with negotiations, conducted not directly between the
parties but under the aegis and under the control of the competent United Nations organs.
The Trusteeship system of supervision established by the Charter embraced those
traditional methods and, in so doing, it became a specific
method on its own, 'the method of the Charter', exercised
through the normal processes of the Trusteeship system and
specially designed to examine in a contentious way and to
solve new kinds of disputes, not between States, but arising
between the Administering Authority and the indigenous
inhabitants, the people whose rights were preserved by
Article 80 of the Charter." (CR 91/15, pp. 44-45.)
Mr. President, this is complex indeed, and represents a considerable restructuring of the
argument as originally presented in the Preliminary Objections of Australia.
The Preliminary Objections of Australia proposes two agreements for present purposes,
Professor Jiménez de Aréchaga in the oral hearings now proposes a single agreement.
All these three alleged agreements in our submission remain pure historical hypotheses
unmatched by any evidence.
The Preliminary Objections of Australia itself provides no single item of documentary
evidence to support the thesis that the Nauruans had agreed to settle claims by direct negotiation.
The Australian Government invokes recommendations by United Nations organs (paras. 278-279)
none of which refer to an agreement. In addition, there is reference to the fact that negotiations took
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place and resulted in the Canberra Agreement of 1967 (paras. 280-283).
But no document is cited to support the thesis of an agreement to negotiate.
The second agreement alleged in the Preliminary Objections of Australia is to the effect that at
the termination of the Trusteeship, Nauru agreed to the settlement of all issues by resolution of the
Trusteeship Council and General Assembly. In the relevant paragraphs of the Australian Written
Pleading (paras. 284-291) no single document is cited to embellish what constitutes essentially a
piece of imagination.
And so, Mr. President, we are left with the third proposal of a possible agreement in the oral
argument of Professor Jiménez de Aréchaga.
With respect to a distinguished colleague the diverse considerations he invokes do not involve
the production of evidence that any agreement was ever concluded.
First of all, the agreement could only have been tacit since no written text is indicated or
document cited.
Secondly, the agreement, if it existed assumed a power on the part of the United Nations
organs the existence of which is problematical.
But none of the elements invoked provides proof of an agreement to have recourse to inquiry,
mediation and conciliation whether through the mechanism of the Trusteeship Council or otherwise.
Mr. President, the creation of a mandate of peaceful settlements of that type, delegated to one
or more organs, would surely have left some traces in the records of the United Nations.
Moreover, the Trusteeship system, with its Visiting Missions, was designed as a monitoring
and supervision apparatus. To see the process as a mechanism for the settlement of legal disputes is
nothing less than whimsical.
And in general the Australian thesis in this respect leaves many questions unanswered.
Why do the resolutions of the Trusteeship Council and the General Assembly make no
reference to the process of dispute settlement, the procedures of mediation and conciliation and so
forth?
Why do the consideranda of the resolutions make no reference to Article 33 of the Charter?
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Why do the resolutions make no reference to the settlement of the various issues invoked by
Australia?
The text of the most relevant Trusteeship Council resolution, resolution 2149 (S-XIII)
provides no support for the extravagant constructions of Counsel for Australia. The resolution, in
its operative part, reads as follows:
"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 by 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.
1323rd meeting,
22 November 1967."
Mr. President, there are three further considerations of fact which militate against drawing any
inference in favour of the Australian interpretation of the history.
The first is the sheer complexity of the structure proposed by Professor Jiménez de Aréchaga.
The second consideration of fact is the conduct of Australia after the independence of Nauru.
Australian responses to Nauruan initiatives may refer to the 1967 Agreement or they may refer to the
termination of the Trusteeship. But they contain no references to a process of dispute settlements
involving organs of the United Nations.
Thirdly, there is a temporal element which Austalia has ignored. Until, quite late in the day, it
became clear to the Nauruans that Australia would not recognize the responsibility concerning
rehabilitation, there was in fact no mature dispute to be submitted to one of the "traditional methods
of peaceful settlement of disputes" referred to by Professor Jiménez de Aréchaga (CR 91/15,
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pp. 44-45).
By the time the Phosphate Industry Agreement was concluded, there was little the Nauruan
could do except to reserve their rights with respect to breaches to the Trusteeship Agreement and
this, in our submission, they did.
In the final run-up to independence the action of the United Nations organs in relation to the
rehabilitation claim conditioned its existence but did not resolve the issue.
Mr. President, Members of the Court, in concluding my arguments on this "other methods of
settlement" proviso, I must comment on the audacious approach to questions of evidence adopted by
the Respondent State in these proceedings.
I am referring to the arguments in the alternative offered by Austalia which involve totally
incompatible factual assertions.
Thus it has been argued that no legal claim relating to breach of the Trusteeship was ever
made (Professor Bowett, CR 91/15, pp. 74-80). And so Professor Bowett stated "There was no
express allegation of breach, and no finding of breach by any United Nations body." (CR 91/15,
p. 79.)
On the other hand it has been argued by Professor Jiménez de Aréchaga that the action of the
United Nations organs "did result in the settlement of all the facets of the dispute which Nauru now
brings before the Court" (CR 91/15, p. 44; and generally at pp. 44-69).
Mr. President, this reliance upon widely divergent theses of fact confirms the view that the
inferences which Australia is asking the Court to draw are simply unrelated to the documentary
evidence and to the real history of the dispute.
And so our submission is that there is no basis for the application of the proviso in Australia'a
Declaration accepting the Court's jurisdiction and there is no impediment to the exercise of
jurisdiction.
In approaching the end of my presentation I need to deal with a quite different question.
The Nature of the Nauruan Claim
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In his speech last Monday my friend Professor Bowett raised certain questions concerning the
nature of the Nauruan claim. He said:
"Essentially, it is the claim that Australia was in breach of the Trusteeship Agreement
by failing to rehabilitate the island prior to 1967. Nauru cites specifically breaches of
Article 76 of the Charter, and Articles 3 and 5 of the Trusteeship Agreement in the first of its
submissions ...
So, we are not concerned with the obligations which the Administering Powers assumed
towards the United Nations as such - obligations of report, supervision and control - or
obligations owed to Member States generally; we are concerned only with obligations owed to
the people of Nauru under a system of administration controlled and supervised by the
United Nations.
Nor are we really concerned with obligations outside the Trusteeship Agreement. It is
true that Nauru in its submissions seeks to invoke obligations of international law outside the
Trusteeship Agreement. But, as the Court well knows, there are real difficulties in assuming
that apart from the Treaty, international obligations were owed to non-State entities such as
the people of Nauru prior to independence." (CR 91/15, p. 72.)
These remarks raised two connected questions which I must now address.
The first question concerns the essential continuity of the history of the dispute since before
independence. In the Preliminary Objections of Australia, Australia clearly accepts this continuity.
And Passages in the Preliminary Objections of Australia which confirm the Australian
position on continuity include the following:
"289. According to the Australian declaration accepting the jurisdiction of the Court it
is necessary that the parties to the dispute have agreed to have recourse to 'some other method
of settlement'. In this case, the Nauruan agreement to the method of settlement involving the
Trusteeship Council and the General Assembly results from the fact that the representatives of
the Nauruan people, freely and of their own accord, participated in the debates of the
Trusteeship Council and of the Fourth Committee of the General Assembly, accepted these
fora for their claims, raising and discussing the very questions which are now the
subject-matter of the dispute brought to the Court. These representatives consented to and did
not oppose resolution 2347 (XXII). All this constituted agreement by conduct.
290. The Republic of Nauru bases its case on being entitled to invoke the actions and
statements of the representatives of the Nauruan people, before independence. Clearly, they
must also be bound by their actions and statements at that time.
291. Nor can Nauru be heard to say that it was not in a position to participate fully as
an independent nation in the United Nations consideration of the issues raised by its claim. It
was a third party beneficiary of the trusteeship system and must, therefore, be bound by and
taken to have agreed to the method of settlement provided for through the United Nations
organs."
"377. ... Unlike the Nauruan claims in relation to the performance of the Trusteeship
Agreement, in relation to which Australia concedes that Nauru has a legal interest, there is no
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similar basis for a claim to the 1987 assets."
"391. Even if the 1983 letter represents a relevant raising of the Nauruan claims it is
still 16 years after agreement was reached on independence and the termination of the
Trusteeship and, more particularly, on the terms of the settlement of all the phosphate industry
issues. This in Australia's view is a delay that is fatal to the present Nauruan claim."
So much for the Preliminary Objections. And this important element of continuity has also
been recognized by Counsel during the oral argument: I refer, for example, to the speech of
Professor Jiménez de Aréchaga (CR 91/15, p. 48).
In the submission of Nauru, the consequence is that Australia has waived any question of
admissibility relating to the fact that the elements of the dispute arose before independence.
Both parties have recognized this continuity. No doubt - we are respectfully aware of this -
the Court has an inherent power to address issues proprio motu. However, in the submission of
Nauru, particularly in the context of admissibility of claims, it is perhaps inappropriate to exercise
such a power unless important considerations of international public order so require.
In the present proceedings, it is impossible to discern considerations of public order of a type
which would militate against the admissibility of Nauruan claims on the basis simply that they arose
before independence.
It is also worth noting that the Australian recognition of the formal and procedural validity of
the claims of Nauru since before independence may be said to provide an answer to those who
suggest that success on the Merits in this case would precipitate an unacceptably high number of
claims from other Applicant States.
I must also revert briefly to Professor Bowett's contention that the dispute is not concerned
with obligations apart from the Trusteeship Agreement and, in particular, the bases of claim related
to general international law.
Nauru, of course, reserves its position on the precise legal bases of its claim. What, in our
submission, is significant for present purposes is the recognition by Australia of continuity in the
history of the dispute before and after independence. The justification in a procedural and evidential
sense of the causes of action by means of which an Applicant State articulates its claim is obviously
not a question of a preliminary character.
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Mr. President, that concludes my first speech and I would, with great pleasure, ask you to give
the floor to Professor Crawford.
The PRESIDENT: Thank you very much, Professor Brownlie. Professor Crawford, please.
Professor CRAWFORD:
Introduction
Mr. President, Members of this Honourable Court. This is the first time I have appeared
before this Court. May I say how much of an honour it is to do so.
1. These remarks will be addressed to the Australian argument that the termination of the
Trusteeship by the United Nations prevents Nauru from bringing its claims now, or the Court from
hearing them.
Professor Bowett put this termination argument in a number of ways. He said that the
Trusteeship Council and the General Assembly had exclusive authority to determine issues relating
to the Trusteeship Agreement. Since their authority was exclusive, it would follow that the Court
has no authority. Secondly, and alternatively, he argued that the termination of the Trusteeship
Agreement necessarily settled all legal issues relating to the Trusteeship obligations. Thirdly, and
again alternatively, he asserted that the General Assembly did in fact resolve Nauru's claim, and
resolved it adversely to the Nauruan people. He did not suggest that there was any express decision
by the General Assembly that Nauru had no rights with respect to the rehabilition of its lands. But
he argued that such a decision was to be implied from the terms of General Assembly
resolution 2347 (XXII). And finally, he argued that because the Nauruans failed to obtain an
express decision from the General Assembly in their favour, the termination of the Trusteeship
Agreement terminated their claim. According to this argument, an express positive decision in
Nauru's favour, and nothing less than that, was required.
Preliminary Comments
Before dealing with these alternative forms of the termination argument, a few preliminary
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comments are called for.
2. The first of these concerns the relationship between the Trusteeship Agreement and general
international law. Counsel for Australia was dismissive of the idea that general international law has
any role to play in this case. He suggested that the Trusteeship Agreement had come along and
supplanted general international law, imposing order and precision on what had previously been
vague and imprecise standards of general international law, standards lacking cogency or rigour
(Verbatim Records, 11/11/91, pp. 72-73).
But this is to invert the order of issues, and to subvert what this Court said in its key
pronouncement in the Namibia Opinion. The Court stressed there that the legal instruments "cannot
remain unaffected by the subsequent development of law, through the Charter of the United Nations
and by way of customary law" (I.C.J. Reports 1971, p. 3, at p. 31). There, of course, the Court was
discussing a mandated territory, but the same evolutionary principle must apply to a trust territory.
And that approach has been applied by the Court subsequently, for example in the Western Sahara
case, I.C.J. Reports 1975, page 12, which concerned the application of the principle of
self-determination under Chapter XI of the Charter. I would refer also to what the Court said as to
the relationship between general international law and treaty obligations in the Nicaragua case,
I.C.J. Reports 1988, page 14.
Consistently with this approach, general international law has a significant role to play, for
example - and I give only one example - in helping determine where the balance is to be struck in
cases where it is said that the rights or interests of an administering power conflict with the rights or
interests of the people who were the beneficiary of the trust.
3. Now a second preliminary point. Counsel for Australia, Professor Bowett, stressed the
scope of the General Assembly's power to determine legal issues arising under a trusteeship
agreement. That the General Assembly has dispositive power in some cases is clear from the
Namibia Opinion - and we certainly accept that. But Counsel seemed to say that the
General Assembly could determine authoritatively (as against an Administering Authority or a
dependent people) any legal issue arising from a trusteeship agreement. Not even the Namibia case
- 26 -
goes that far, since that case was only concerned with the authority of the General Assembly
pursuant to a repudiation by the Administering Authority of the very conditions which gave it title to
remain in the territory.
The scope of the power which Counsel for Australia attributed to the General Assembly was
at least partly a function of the view that the Assembly's authority over legal disputes relating to
trust territories was actually exclusive. If you have an exclusive power over something, presumably
it is also a comprehensive power. But it cannot be right that the General Assembly's power is
exclusive and the fact that it is not right - I shall argue that shortly - casts doubt about the related
Australian position on the question of the scope of the power of the General Assembly.
For the purposes of the present case, it is not necessary to go into much detail on these issues.
Nauru's primary argument is that the General Assembly was not asked to resolve the present dispute
by either Nauru or Australia, and that it did not do so. That it did not settle the dispute expressly
Australia concedes. I argue below that it did not do so impliedly or by necessary operation of law
either.
Since that is the case, I would simply record Nauru's view on the question of competence,
which is that the General Assembly's power to settle or resolve legal disputes arising in relation to
trust territories is limited to the settlement of disputes either expressly referred to it by the parties, or
to the resolution of legal issues necessarily arising in the course of such functions as the termination
or revocation of trusteeship agreements. The present dispute, in the Nauruan submission, fell within
neither of these categories.
4. My third preliminary observation relates to the question whether the issue of termination
possesses in the circumstances "an exclusively preliminary character". As the Nauruan Agent has
already stressed, that is not a question that can be answered generically or categorically, in the
context of all conceivable arguments that the rehabilitation obligation has somehow come to an end.
The question must be why is it said that the obligation has been terminated? If there is some simple
and general legal proposition, unrelated to the facts of the given case, which determines that the
claim must fail, then so be it. For example, if it is the case that no legal obligations can ever survive
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termination of a trusteeship in any circumstances, then nothing further remains to be said. Nauru, of
course, argues that that is not the case. If this Nauruan argument is accepted, then the position
becomes much more complex. Australia does not suggest that the General Assembly expressly
terminated or decided the Nauru rehabilitation claim. And it follows from that that the legal
consequences of the relevant General Assembly resolutions, and especially of
resolution 2347 (XXII), can only be decided on after a full analysis of the circumstances leading to
independence, of the Nauruan and Australian positions on the various issues in dispute, and of the
negotiations which preceded independence - negotiations which, as Australia concedes in the
Preliminary Objections of Australia (Preliminary Objections of Australia, paras. 278 ff.), were
capable of having continuing legal consequences. The legal consequences of resolution 2347 (XXII)
are accordingly bound up with the whole complex of transactions which arose in the crucial
pre-independence period and which are central to the Nauruan claim on the merits.
In these circumstances, Mr. President, the issue of the legal consequences of General
Assembly resolution 2347 (XXII) should not be subjected to a summary resolution by the Court of
the kind sought by Australia. It is, therefore, submitted that the question does not possess, in the
circumtances, an exclusively preliminary character.
The Allegedly Exclusive Authority of the Political Organs
of the United Nations
5. Having disposed of these preliminary matters, let me turn to the first of the arguments made
by Australia in support of the view that the termination of the Trusteeship terminated the claim.
This was the argument that the General Assembly and the Trusteeship Council were the only organs
competent to determine the issue of breach - that they were exclusively competent. Obviously, if this
were so, the Court could not make its own independent finding, in this or, indeed, in any case
concerning a trust territory.
6. It should be noted that Australia accepts (Preliminary Objections of Australia,
paras. 217-218) that the obligations arising under the Trusteeship Agreement and under related rules
are legal and not merely political or moral obligations. It also accepts that those obligations were
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justiciable. The spectre of non-justiciability underlay the second South West Africa cases: one
cannot have legal obligations or legal rights in relation to something that is exclusively political.
Australia does not go so far.
But the non-justiciability of the Trusteeship obligation having been dismissed by the front
door, comes in through the back door in a more subtle guise. To say that only political organs can
determine an isue is very like saying that it is not a legal issue. According to Australian arguments,
the political organs had exclusive authority to decide the issue of breach of the Trusteeship
Agreement, and therefore this Court's competence to do so is excluded, at least unless and until the
General Assembly authorizes it to act, for example, by requesting an advisory opinion. Far from
being an agency of co-ordinate authority within the United Nations system, the Australian argument
reduces the Court to a subordinate role - a role hardly consistent with its position as the "principal
judicial organ of the United Nations".
7. What is the basis for this so-called exclusive authority of the political organs of the United
Nations, on which Australia relies? Well, one reason given by Professor Bowett was that the Court
was not competent to deal with the issue before 1968 because there was no compromissory clause in
the Trusteeship Agreement and because the Court was never asked to give an advisory opinion on
Nauru. The argument seems to be that a political organ has legal authority, and not only that but
exclusive legal authority, on any issue over which no international court or tribunal has jurisdiction.
8. The principle, Mr. President, has only to be stated to be rejected. That principle would
mean that international organizations have extensive areas of exclusive legal authority, since the
truth is that international courts do not have general jurisdiction over the legality of the acts of
international organizations.
The true position is that, as a matter of general principle, international law exists
independently of the jurisdiction of courts to apply it in a given case. And this is as true where
international organizations are limited by or subject to international law, as it is in any other
situation. The Australian argument equates the absence of jurisdiction of international tribunals with
the exclusive competence of political organs. But, if that was so, how could the Court ever deal, in
- 29 -
the absence of jurisdiction conferred after the event, with the legality of the acts of an international
organization?
9. Mr. President, the exclusive competence of the political organs of the United Nations to
determine legal questions is not to be presumed. Not even the Security Council's "primary authority"
over matters of international peace and security excludes the jurisdiction of this Court to determine
legal issues relating to the use of force, as the Court made abundantly clear in the case concerning
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) (Jurisdiction and Admissibility, I.C.J. Reports 1984, p. 392, at pp. 431-436; Merits,
I.C.J. Reports 1986, p. 14 at p. 26). This must be the position a fortiori, with Chapters XII and
XIII of the Charter, neither of which confer "primary", let alone exclusive, authority on the
Trusteeship Council or the General Assembly.
10. The argument that the General Assembly and the Trusteeship Council had exclusive
jurisdiction over the issue is also inconsistent with the Court's approach to these matters, as the
Namibia Opinion shows (I.C.J. Reports 1971, p. 6 at pp. 45, 47, 50, 52). In the Namibia Opinion
the Court had a splendid opportunity to fail to grasp the nettle of the legality of General Assembly
acts, in fact it addressed precisely that question. The Court has frequently dealt with legal issues
arising from mandated, trust and non-self-governing territories, even where those issues involved
politically charged controversies which were under consideration by other United Nations bodies.
11. Australia does accept that there are exceptions to the "excluive jurisdiction" of the political
organs: in particular the jurisdictional clauses in some trusteeship agreements, and the possibility of
advisory opinions being sought on legal issues arising in relation to trust territories (Verbatim
Records, 11/11/91, p. 74). But these exception threaten Australia's major proposition of exclusive
power.
12. For example, the Court has never accepted that the legal position of a mandate or a trust
territory which lacks a jurisdictional clause (and that was true, for example, of the South West
Africa Mandate) was any different from the legal position of a mandate or a trust territory with a
jurisdictional clause. Nauru in fact had one during the League of Nations period and did not have
- 30 -
one during the United Nations period. In particular, it has never been suggested, and certainly not
suggested by the Court, that the basic rights of the people of a territory were any different depending
on whether a jurisdictional clause existed. And as to advisory opinions, it cannot be the case that a
dispute becomes subject to law because an advisory opinion is requested with respect to that dispute.
13. For these reasons, Nauru submits that the political organs of the United Nations did not
have exclusive power over Trusteeship issues, and that this Court retains with respect to such
territories the power to determine legal issues arising before it.
The Effects of Termination of the Trusteeship
14. I turn now to the second Australian argument, which was that the termination of the
Trusteeship Agreement necessarily settled all legal issues relating to the Trusteeship obligations.
Although Professor Bowett did not spend much time dealing with it, obviously the leading authority
here is the decision of the Court in the Northern Cameroons case, I.C.J. Reports 1963, page 15.
Before dealing with that case in some detail, I should first refer to the general legal principles
applicable to the survival of rights which have accrued under international law or under a treaty.
15. It has long been recognized that a trusteeship agreement has two aspects, the aspect of a
treaty and the aspect of a régime for the administration of territory in the interests of the people of
the territory.
If the relevant category for the purposes of the survival of rights is the category of treaties,
then the general principle is that the termination of a treaty does not terminate rights acquired under
it. That is to say, rights already acquired. This was what the Court held in the First Phase of the
South West Africa cases, I.C.J. Reports 1962, page 319.
On the other hand, if the relevant category for the purposes of the survival of rights is the
category of trusteeship régimes, then the general principle is that rights acquired under such a régime
survive the dissolution of the treaty which created it, if that is necessary in order to protect the
interests of the beneficiary. The Status of South West Africa Opinion, I.C.J. Reports 1950,
- 31 -
page 128, is a clear application of that principle.
On either basis, then, on the basis of a treaty or on the basis of a régime, any right or
legitimate claim of the people of Nauru under Trusteeship must be presumed to have survived the
termination of the Trusteeship Agreement. Such a right or claim could have been extinguished only
1) if it was duly terminated by a competent authority, or 2) if the termination was the necessary
consequence of acts lawfully performed by such an authority.
16. Against this background, which I submit is the relevant background of principle, I turn to
the Northern Cameroons case. That case involved a claim by the Republic of Cameroon under the
jurisdictional clause in the Trusteeship Agreement.
I hope I will be forgiven, Mr. President, and I hope I may be forgiven for using an expression
as well for teaching grandparents to suck eggs, but I think the facts of the Northern Cameroons case
are such that a brief description of them is called for. The Republic of Cameroon claimed that an
administrative union between one part of the Northern Cameroons trust territory and a province of
what was then the protectorate of Nigeria; that administrative union was in breach of the Trusteeship
Agreement. The inference behind the Republic's trying, presumably, was that the administrative
union predisposed the people of that part of the trust territory to vote, at a United Nations supervised
plebiscite, for union with Nigeria rather than with the Republic of Cameroon. However the Republic
of Cameroon did not seek to invalidate the General Assembly's decision confirming the result of the
plebiscite. It simply sought a declaration of the legality of the administrative union, a declaration
which, it accepted, could have no further legal consequences. The Court, by ten votes to five refused
to consider the merits of the claim.
17. It must be stressed that the Court in that case did not decide that all legal claims arising
from a Trusteeship Agreement were terminated, by operation of law, on the termination of the
Agreement. The General Assembly had been concerned with a specific situation, clearly presented
for its decision. That situation directly concerned the future of the people of the Trust Territory, and
in particular the validity of the plebiscites that had been held. As the Court said, "the termination of
the Trusteeship Agreement was a legal effect of the conclusions in paragraphs 2 and 3 of
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resolution 1608(XV)" (I.C.J. Reports 1963, p. 15 at p. 32). I should add that paragraphs 2 and 3
were the paragraphs which directly addressed the issues of the time.
The Court noted that the Republic of Cameroon had raised its plea of nullity of the plebiscites
before the General Assembly. With complete justification it construed paragraphs 2 and 3 of
resolution 1608 as a specific rejection of that plea. The Court's holding on termination of the
Trusteeship was confined to that issue.
18. By contrast, in the present case, at the suggestion of the Nauruan representative and
without any demur from Australia, the competent United Nations organs refrained from dealing with
the rehabilitation issue, and treated that issue as distinct from the question of independence and
termination of the Trusteeship. Counsel for Nauru have already demonstrated that this was so, in his
treatment of the waiver issue, and I refer to what was said then.
19. It is true that the Court in the Northern Cameroons case did state that rights and
privileges granted to other United Nations Members or their nationals came to an end with the
termination of the trusteeship (I.C.J. Reports 1963, p. 15 at p. 34). But that comment related only to
the exercise of those rights subsequent to termination. And that was obvious, since the rights were
only conferred for the duration of the trusteeship. The Court did not need to decide whether the right
to claim reparation for breaches of the rights to other United Nations Members or to their nationals
prior to termination would have survived. It was a different situation and it did not need to decide
that question. It were funny that both Judge Wellington Koo and Judge Fitzmaurice thought that,
had such rights existed under the Trusteeship Agreement, they would have survived its termination
(ibid., at pp. 55, 120). The Court itself expressly left the issue open (ibid., at p. 35).
Nor was the Court concerned with the question whether a right or claim already vested in the
people of the Trust Territory would have survived the termination of the Trusteeship Agreement. In
the circumstances this was not surprising, since the people concerned had elected to become part of
another State and would therefore lack any separate legal personality as a basis for bringing a
post-independence claim.
20. The Court also expressed the view that
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"the Republic of Cameroon would not have had a right after 1 June 1961, when the
Trusteeship Agreement was terminated and the Trust itself came to an end, to ask the Court to
adjudicate upon questions affecting the rights of the inhabitants of the former Trust Territory
and the general interest in the successful functioning of the Trusteeship System"
(I.C.J. Reports 1963, p. 15 at p. 36).
But again this was not because of any general rule that "all legal issues" arising from the Trust were
necessarily terminated, but because any right of the Applicant State and the Applicant State was
relying on a compromissory clause under the Trusteeship Agreement, but because any right of the
Applicant State to bring proceedings was part of the "system of protection" established by the
Agreement and by Chapter XII and XIII of the Charter. The right on which the Republic of
Cameroon relied was not a personal or individual right. It had no right that the people of the Trust
Territory should vote one way or another. The right it relied on related to the "general interest", as
Judge Wellington Koo stressed (ibid., at pp. 46, 55). That right terminated with the termination of
the other aspects of the system of supervision.
21. By contrast the rights of the people of the territory concerned were the very object and
purpose of the system - the "sacred trust of civilization" - and not merely an aspect of its supervision.
As the Court held in 1950 in the South West Africa Opinion, I.C.J. Reports 1950, page 128, there
was no reason why those substantive and personal rights of the people of the territory should be
regarded as terminated with the termination of the system of supervision of the members. This
would only occur if (as in the Northern Cameroons case) the people who were the beneficiaries had
themselves elected to abandon any separate status and identity - in which case the right would
terminate because the bearer of the right ceased to exist. Or it would occur if the right was expressly
terminated by a competent authority.
If I may summarize the position, then, the effect of the General Assembly resolution extended
only to the legal questions necessarily inherent in the termination of the trusteeship, or actually raised
for decision in that connection. The present legal claim of the Republic of Nauru falls into neither of
these categories.
It is true, and Australia lays considerable stress on the fact (Verbatim Record, 12/11/91, p. 9),
that Judge Wellington Koo in the Northern Cameroons case did adopt a broader view than this. His
- 34 -
view was that "all legal issues" involving the people who were the beneficiary of the trusteeship
were resolved by operation of law when the trusteeship agreement was terminated. But this view
was not adopted by the Court. Judge Wellington Koo himself described his decision as reached
"generally by a different line of reasoning" (I.C.J. Reports 1963, p. 15 at p. 41). Moreover he never
confronted a central difficulty with his reasoning, which is this: that on his view the rights of third
States and their nationals to claim in relation to the Trusteeship Agreement would have survived
termination, but not the rights of the beneficiary people themselves which was the point of the
Trusteeship Agreement.
22. Mr. President, the present case differs from the Northern Cameroons case in no less than
four important ways, and each of these differences supports the Nauruan argument that the
rehabilitation claim survived the termination of the trusteeship.
First, in the Northern Cameroons case, the question before the Court had to be resolved by
the General Assembly before the termination of the Agreement. The necessary result of the General
Assembly's decision was the creation of a territorial right in a third State, Nigeria. That decision
was irreversible. And in addition the decision had the necessary effect of extinguishing the legal
entity, the people of the Trust Territory, in whom the primary Trusteeship right was vested. That
people having ceased to exist, any rights vested in them also ceased to exist. Neither of these
problems arose in the present case.
The second difference is that, in the Northern Cameroons case, the issue of the terms and
outcome of the plebiscite held in the Northern Cameroons was squarely before the General
Assembly, and was the principal focus of its resolution 1608 (XV). The Republic of Cameroon had
expressly raised this issue before the General Assembly, as the Court noted (I.C.J. Reports 1963,
p. 15 at p. 32), and its arguments had been expressly rejected. By contrast, the Nauruan
representative expressly stated before the United Nations in 1967 that the issue of rehabilitation was
not a matter "relevant to the termination of the Trusteeship Agreement", I am quoting those famous
words, "nor did the Nauruans wish to make it a matter for United Nations discussion". Clearly
enough, what he meant - and I will not labour a point that counsel before me have made - was that it
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was a separate issue to be taken up after independence - as in fact it was (see Nauru Memorial,
paras. 603-12, esp. para. 609, for the relevant passages from the debates).
The third point of difference relates to the legal consequences of a decision by the Court here,
as compared with the Northern Cameroons case. In that case the Court did not deny that the issue
presented before it, the issue of the legality of the administrative union, involved a legal question,
which would normally have been within its jurisdiction to decide (Professor Bowett of course would
deny that, but the Court did not deny it). The problem for the Court was that, as between the parties,
no remedy of any kind - that is to say, no relief which it was in the power of the parties to give or of
the Court to require - could be awarded. The Republic of Cameroon did not claim that there was
anything the United Kingdom could do to give effect to a judgment of the Court, whether by the
payment of reparation or any other act. Accordingly, the issue before the Court was "remote from
reality" (I.C.J. Reports 1963, p. 33). The Court could not render "a judgment capable of effective
application" (ibid.), one capable of affecting "existing legal rights or obligations" (p. 34). But the
position is quite different here. In the present case Nauru does not seek to redefine its political or
territorial status. Satisfaction of the Nauruan claim is not a matter "remote from reality". On the
contrary, the mined-out land is a pressing reality. Unlike its position in the Northern Cameroons
case, the Court here is in a position to render a judgment capable of effective application, capable of
affecting existing rights and obligations. Indeed it is precisely such a judgment that Austalia seeks to
avoid!
Fourthly, the present case, and this is the fourth difference, the present case involves a claim
by the beneficiary of a trust territory, rather than a State with an indirect interest of a political or
economic kind. In the Northern Cameroons case, as the Court pointed out, it had not been asked to
review the General Assembly's conclusion that the plebiscite was a valid expression of the people's
views. It followed, in the Court's words, that "a decision by the Court ... that the Administering
Authority had violated the Trusteeship Agreement, would not establish a causal connection between
the violation and the result of the plebiscite" (I.C.J. Reports 1963, p. 15 at pp. 32-33). In other
words, whatever its indirect effects may have been, any violation of the Trusteeship did not derogate
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from the exercise of self-determination by the people concerned and that was the main thing. By
contrast the present claim can be seen as a further consequence of the Nauruan people's right to
self-determination, just as its survival after the termination of the Trusteeship was a consequence of
the expressed wish of the Nauruan representatives to leave the question to be resolved separately.
23. In its Written statement (para. 227) Nauru pointed out that if there was an automatic
termination of all legal claims by operation of law, the possibility of claims by an independent
Namibia arising out of the former South African administration would be excluded. It also noted the
widespread recognition (including by the General Assembly and the Security Council) that those
claims survived and would enure to the benefit of the newly independent State of Namibia. I stress
incidentally, Mr. President, that we are not asking the Court to resolve any dispute that may arise, or
may have arisen, with respect to Namibia any more than with any other third State dispute.
Professor Bowett said that this argument was "little short of ludicrous". His explanation was that
"the Mandate for South-West Africa was terminated because there was a fundamental breach
and South Africa continued to be responsible because it continued in unlawful possession"
(Verbatim Records, 12 November 1991, p. 16).
But the point is, and I hope I may be forgiven for repeating it, that South Africa continued in
possession on the terms of the mandate, in the sense that it was too bound by the obligation that was
contained in the mandate, and the relevant United Nations organs clearly envisaged the possibility of
the survival of claims against it after the independence of Namibia. Moreover at least one of those
claims, that to Walvis Bay, involved acts of South Africa that predated the General Assembly's
termination of the mandate.
24. For these reasons, Mr. President, the Nauruan right to rehabilitation was not terminated
by operation of law, as the inevitable consequence of General Assembly resolution 2347 (XXII).
The question remains whether it was terminated by implication, and to this I now turn.
The General Assembly did not impliedly Reject the Nauruan
Rehabilitation Claim
25. Australia also argued that the General Assembly impliedly terminated the Nauruan claim.
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In particular it drew that inference from the general and unreserved, what was described as the
"welcoming", language of resolution 2347 (XXII) (see Verbatim Records, 12 November 1991,
p. 16). The argument was briefly made, and can be briefly refuted. What resolution 2347 welcomed
was the statement made by the Administering Authority that it would comply "with the request of the
Nauruan people for full and unqualified independence" (Nauru Memorial, Vol. 4, Ann. 17, para. 2).
It would be a strange form of compliance, and a strange form of welcome, at the same time to
confer independence on the people of a trust territory and to reject one of their clearly expressed
wishes in relation to the conferral of independence. That wish was expressed by the representative of
the Nauruan people in the Trusteeship Council. It was that the rehabilitation issue should be left to
be resolved after independence on a bilateral basis. Nor can the illusion of waiver in the Fourth
Committee be relied on, since the terms of operative paragraph 2 of resolution 2347 are identical to,
and are obviously taken from, the language of Trusteeship Council resolution 2149 (S-XIII) of
22 November 1967 (see Nauru Memorial, Vol. 4, Ann. 19). The wording in the two paragraphs is
identical. And that Trusteeship Council resolution was adopted before the alleged waiver by
Mr. DeRoburt in the Fourth Committee!
26. There are other reasons for concluding that resolution 2347 (XXII) does not purport to
terminate, or adjudicate upon, the Nauruans' claim. For example the resolution "recalls" the earlier
resolutions on the issue (resolutions 2111 (XX) and 2226 (XXI)), resolutions which called for the
rehabilitation of the lands. Those resolutions were not recalled, Mr. President, for the purpose of
being rescinded! Nor is it the case that references to earlier resolutions of the General Assembly are
merely historical, as Professor Jiménez de Aréchaga argued (Verbatim Record, 11 November 1991,
p. 60). How many explanations of votes or abstentions have been recorded in the General Assembly
because some earlier, disfavoured resolution has been "recalled" or brought to mind?
27. This conclusion is also sufficient to dispose of Australia's argument that a decision in
Nauru's favour would "reflect upon the authority - even the competence - of the General Assembly",
to quote Professor Bowett, "would constitute the most damning indictment of the Trusteeship
Council and General Assembly" and would "amount to an accusation of either incompetence or bias"
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(Verbatim Record, 12 November 1991, p. 14). The first point is that we are still at the stage of
preliminary objections. It remains to be seen whether the Court will tend to agree or disagree with
the views of the General Assembly, views which anyway tended to favour Nauru on the points at
issue. It also remains to be seen what conclusion, if any, the Court will find it necessary to reach on
the administrative competence of the various United Nations bodies dealing with Nauru. These are
not matters for the present stage of the proceedings. The key point, however, is that the
General Assembly deliberately left the issue to be resolved bilaterally, and therefore there can be no
question of conflict.
Was an Express Saving of the Claim Required
28. Finally, Australia argued that because the Nauruans failed to obtain an express decision
from the General Assembly in their favour, the termination of the Trusteeship Agreement terminated
their claim (Verbatim Records, 12 November 1991, pp. 8, 16-17). Counsel argued that "the act of
discharge, unconditionally and without reservation, implies an acceptance by the Assembly that the
Administering Authority has fully discharged its treaty obligations" (Verbatim Records,
12 November 1991, p. 8).
But to focus on General Assembly resolution 2347 (XXII) as a "discharge" is misleading.
The General Assembly was concerned to terminate the Trusteeship so as to bring about the
independence of Nauru. It was not its purpose to clear the Administering Authority of fault, in
relation to a matter not presented before it for decision and not necessary to be decided as a
prerequisite to independence. One might as well say that a resolution welcoming the release of a
person from protective detention was passed in order to clear the detaining authorities from any
wrong-doing that may have been committed during the period of detention. That is an exactly
equivalent argument. And the argument is even less persuasive if the release of the detainee is
described, as Nauruan independence was described in resolution 2347 (XXII), as "unqualified".
There is no authority requiring express recognition by the General Assembly as a precondition
to the continuation of the rights of the people concerned. Not only that, but to require the
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renunciation of a claim on the part of the people of the trust territory, as a precondition to their
independence, would violate rules in relation to self-determination that were well-established by
1967. In particular it would violate the rule stated in paragraph 5 of resolution 1514, that the
independence of Trust and Non-Self-Governing Territories is to occur "without any conditions or
reservations". There is no indication at all that the General Assembly sought to impose such a
condition.
29. Mr. President, even if there is a requirement of express recognition of the continuing
Nauruan claim by the relevant political organ, and I have argued that there is not, but even if there
is, it is submitted that there was sufficient recognition of that right here. In particular there was
ample recognition of the Nauruan claim, by reason of the terms of resolutions 2111 (XX) and
2226 (XXI); the reaffirmation of those resolutions in resolution 2347 (XXII); and the resolution of
the Committee of Twenty-Four of 27 September 1967. These have been extensively discussed in
the Memorial and by other Counsel appearing for Nauru, and you will be relieved to hear that I will
not repeat what they have said (see the Nauru Memorial, paras. 586-587, 604-608, 610, 613-614 for
details).
30. It should be stressed that Nauru does not argue that its right to rehabilitation arises by
virtue of any particular resolution of the General Assembly, the Trusteeship Council or the
Committee of Twenty-four, notwithstanding their support for Nauru's position. The right arises by
reason of the relevant rules of international law, treaty law and general international law, as they
apply in the circumstances of the case. Given that that is so, the most that could be required in the
case of a termination would be recognition of the claim in question as a subsisting claim. We were
not asking for an impera marta, the only thing that would be required would be recognition, and
there is ample evidence of such recognition here.
31. Additional support for this conclusion is provided by the accepted principles of
interpretation. United Nations resolutions are, like treaties, to be interpreted in the context of
relevant principles of general international law. In the present case, the relevant principle is the
principle of self-determination, including the important rule, stated in paragraph 5 of
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General Assembly resolution 1514 (XV) and which was at the time being increasingly stressed by
the General Assembly, that the independence of Trust and Non-Self-Governing Territories is to
occur,
"without any conditions or reservations, in accordance with their freely-expressed will and
desire ... in order to enable them to enjoy complete independence".
The role of United Nations organs was to give effect to that principle.
32. As earlier Counsel have stressed, the Nauruan position on this issue was well known to
delegations attending the Trusteeship Council and General Assembly. No delegation - not even the
Australian delegation - contradicted the Nauruan representative's reservation with respect to the
issue of rehabilitation.
Conclusion
33. For all these reasons, it is submitted that the Nauruan claim survived the termination of
the Trusteeship Agreement, an event which was contemporaneous with the independence of Nauru.
The Australian Agent argued that a decision in Nauru's favour on this point would have
serious adverse consequences in several ways. First, he said, it would "open the floodgates" of
post-independence claims, which have usually been regarded as governed by some form of
clean-slate doctrine. Secondly, it would create uncertainty in the minds of former Administering
Powers as to the possibility of claims being brought against them relating to their former
administrative acts. May I conclude Nauru's presentation on the issue of termination by commenting
briefly on these two broader policy arguments.
34. So far as the floodgates of post-colonial claims are concerned, the primary point, of
course, is that the Court's function is to do justice in accordance with international law as between
the Parties before it.
But in any event, the floodgates would not be opened, not even in Holland, by a decision in
Nauru's favour in this case. Nauru's position is that the legal disputes which survive termination are
those which meet the following two conditions: first, the legal dispute in question must have arisen
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during the currency of the administration of a trust territory; and secondly, the dispute must not
have been resolved by the United Nations in the process leading up to independence, whether by
express resolution on the issue by a competent authority or because the issue was necessarily tied up
- as it was in the Northern Cameroons case - with the General Assembly's decision on the form of
independence. We say nothing about territories other than trust territories. We say nothing about
disputes raised for the first time after independence even though these relate to pre-independence
facts. We say nothing about disputes directly arising from the territorial or dispositive aspects of
Trusteeship. There are few claims which meet these two conditions, and those that do can safely be
left to be resolved on their merits.
35. On the question of unfairness to former Administering Powers, it is suggested that there is
no unfairness. First of all, if what I have said above about the limited circumstances of the present
claim is correct, the level of uncertainty involved for former Administering Powers is
correspondingly slight. There are very few situations that meet the criteria I have outlined above,
and accordingly, the disruptive effects - if that is what they would be - of a decision in favour of
Nauru on this point would be minimal.
As far as Australia itself is concerned there is no prejudice. Australia was well aware of the
claim prior to independence. The claim was asserted, and well publicized, immediately after Nauru
gained independence. Australia showed in its response to diplomatic notes, and in its other contacts
with Nauru in the post-independence period, a lively awareness of the claim. I refer, for example, to
the Australian Minister's letter of 1968, which according to the Australian Agent, seems to have been
a letter vigorously denying a claim which Nauru had not made!
36. So there was no uncertainty on the part of Australia. But if there had been, Australia was
in a perfect position to resolve it during the United Nations debate. It could have proposed an
additional clause to what became General Assembly resolution 2347 (XXII), an additional clause
determining the rehabilitation claim against Nauru. It had the legal skills and the diplomatic
resources to draft and promote such an amendment. In the Australian argument, it was said that the
onus was on the Nauruans to do this. But that is unreasonable. The Nauruans were the
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beneficiaries of a not-yet-extinguished Trusteeship. They were present, by courtesy, as part of the
Australian delegation. They were a small group, then lacking in resources. Why was the onus on
them to resolve any uncertainties Australia may have had?
In fact, Mr. President, there was no uncertainty. The Nauruans had made their position clear.
No doubt Australia judged - in 1967 of all years, no doubt correctly - what the chances of an
amendment terminating the rehabilitation claim would have been.
37. Mr. President, Members of the Court, that concludes the Nauruan arguments on the issue
of termination and its effects. With your leave, Professor Brownlie will now address the issue of the
Nauruan claims with respect to the overseas assets of the British Phosphate Commissioners.
The PRESIDENT: Thank you very much, Professor Crawford.
Professor Brownlie, please.
Professor BROWNLIE: Mr. President, with your permission, I constitute a sort of entracte
between the issue of termination and the further question which my colleague, Professor Crawford,
will address of joinder of parties and the principle of consent.
In this short speech, my role is to respond to the arguments presented by the distinguished
Co-Agent of Australia, concerning Nauru's claim to the overseas assets of the British Phosphate
Commissioners.
First Australian Argument
Mr. Burmester produced four arguments. The first was that the claim is inadmissible because
it was not made in Nauru's Application.
Mr. Burmester first of all characterizes the Nauruan claim as exclusively related to the claim
for rehabilitation (CR 91/16, p. 33), and having done that, he argues that the claim to a part of the
overseas assets is "clearly very different from a claim for rehabilitation". And he complains that the
Application of Nauru contains no reference to the question of overseas assets (ibid.).
Mr. President, the true position is that the claim relating to rehabilitation is but one facet,
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though a facet of great importance, of a group of claims based upon breaches of the Trusteeship
Agreement and related causes of action. The circumstances concerning the overseas assets and their
ultimate disposal are intimately bound up with the history of the island since the beginning of the
Mandate and until the disposal of the overseas assets of the British Phosphate Commissioners in
1987.
Against the background of the Application (paras. 43-52) and the Memorial of Nauru, the
structure of Nauruan claims can be properly understood.
And against this background, it can be seen that the claim respecting the overseas assets flows
naturally from the matrix of law and fact disclosed originally in the Application.
It is, with respect, very artificial to characterize the assets claim as "clearly very different".
In the submission of Nauru, the claim to the assets was "implicit in, and consequential on," the
claims relating to breaches of the Trusteeship Agreement.
And the same applies to the claim for the harassment of fishing vessels in the Fisheries
Jurisdiction (United Kingdom v. Iceland), Merits, and the Fisheries Jurisdiction (Federal Republic
of Germany v. Iceland), Merits, cases. These and other references are to be found in the Written
Statement at pages 124 to 127.
Moreover, the functional criteria applied by the Court in previous cases on the question of
new claims or alleged modification of claims are amply fulfilled. As in the Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility case, it would make no practical sense to require Nauru to institute
fresh proceedings to deal with the question of title to a part of the overseas assets. And, of course,
there is no good reason to allow defects of form, if that is what they are, to outweigh considerations
of practical convenience.
Furthermore, there is clearly, in our submission, no ground for alleging procedural prejudice
or surprise.
As the diplomatic correspondence reveals, Nauru was very prompt in its reactions to reports
concerning the disposal of the overseas assets. This correspondence can be examined conveniently in
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Nauru's Written Statement (pp. 117-120, paras. 335-341). And the same correspondence involved
interested third States with a very short time and so, in our submission, Mr. Burmester's point about
notification to other States lacks substance.
And so the conclusion on this Australian argument on assets is that the Australian argument
that the claim to overseas assets does not appear in the Application is an argument that does not
constitute a basis of inadmissibility.
Second Australian Argument
And so I move to the second Australian argument which is that there is no legal dispute within
the meaning of Article 36 (2) of the Statute.
This contention of Mr. Burmester should, in our submission, not detain the Court for long.
The diplomatic exchanges are clear enough. I would direct the Court's attention to two items.
The first is the letter from the President of Nauru, dated 4 May 1987. It is in diplomatic
language but it also adopts a firm tone and it includes the following passages:
"I have read with some interest of the recent visit to Australia of Sir Geoffrey Howe, the
British Foreign Secretary. From news reports it appears that he and you have discussed
amongst other things, matters of regional Pacific interest.
It occurred to me, therefore, a most opportune moment to raise with you a matter of
great concern to my government. We were concerned to learn by your Diplomatic Note in
January, along with Notes from the United Kingdom and New Zealand, that the assets of the
British Phosphate Commissioners were about to be wound up by an agreement then shortly to
be signed. As you are, no doubt, aware, my government voiced that concern by a further
Diplomatic Note to you dated 30 January 1987. This was sent in similar terms to both the
other partner governments in the former Trust. So far, there has been no reply to this Note,"
and the President continues:
"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.
The Note to you and other governments, however, was by way of an interim measure
merely moving you to withold distribution of assets until the report of the present independent
Commission of Inquiry in the Rehabilitation of the Worked-Out Phosphate Lands of Nauru
has been completed and published. My government is, of course, optimistic that your
Australian government will participate in such inquiry and make such submissions to it as it
deems fit." (Preliminary Objections of Australia, Vol. II, Ann. 13.)
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The second item is a letter dated 23 July 1987, which I have already referred to - yesterday -
in which the President of Nauru replies to a temporizing letter from the Australian Minister for
Foreign Affairs. In the operative paragraph there, if I may repeat it, the President says:
"I refer to your letter dated 15 June 1987 relating to the matter of the disposal of assets
of the British Phosphate Commissioners.
I am sure, taking into account my Government's knowledge of the manner of
accumulation of surplus funds by the British Phosphate Commissioners, 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 British Phosphate Commissioners 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."
(Nauru Memorial, Annex 80, No. 14.)
Mr. President, allowing for the nature of the correspondence and the personal flavour which it
carries, the existence of an unresolved issue is very clear. And it must be remembered that both
Governments would understand the context and the historical background well enough.
Beyond this, the Australian argument that there is no evidence of a legal dispute, involves a
repetition of the theme we have heard on other occasions that statements can only provide evidence
of a dispute if they involve formal claims in phraseology which anticipates the terms of an
Application.
In the submision of Nauru, there is a sufficiency of evidence that a legal dispute existed.
But there is also a submission in the alternative.
The position of Nauru is that the claim to the overseas assets is clearly "implicit in and
consequential on" the claims set forth in the Application, in accordance with the criteria applied to
subsidiary claims in the Temple case (I.C.J. Reports 1962, p. 36). On this basis, there is no
necessity for an autonomous body of evidence of a legal dispute. On this basis also, Mr. Burmester's
argument could only prosper if he could show that Nauru had actually renounced the subsidiary
claim.
Third Australian Argument
I now move on to the third Australian argument on this point which is that Nauru has not
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shown any legal interest in the overseas assets (CR 91/16, pp. 40-42).
If I may say so, this argument competes for lack of merit with certain other Australian
positions.
The Nauruan position has been expressed fully in the Written Statement (pp. 131-135,
paras. 369-386). The key considerations are there elaborated. Against the background of the 1919
Agreement, the British Phosphate Commissioners operated in tandem with the Administration. Any
power to accumulate and deal with asets was subject first to the Mandate and thereafter to the
Trusteeship Agreement.
Mr. Burmester's argument involves describing the British Phosphate Commissioners as "the
business of a foreign national" (CR 91/16, p. 41) and thus ignores the legal context of trusteeship
completely.
I may say that, like other members of the Australian delegation, he is insensitive to the
question of the ownership of the phosphate lands.
Counsel for Australia appear to be unaware that the Nauruan community was the beneficiary
of the Trusteeship régime and not the British Phosphate Commissioners or Australian farmers.
Yet, Mr. Burmester seeks to oppose the interests of the BPC, having no status in the
Trusteeship régime, to the interests of the beneficiary of that régime, the people of Nauru.
In completing my response to the argument on legal interest, I have to say that it is ironical
that the Co-Agent for Australia, in seeking to deny the legal interest of Nauru, has placed on the
record a significant admission.
Thus he had this to say:
"The assets distributed in 1987 were derived from a number of sources. They, in fact,
represented decades of trading by the BPC in phosphate, in shipping and other activities.
Some of the assets may have been derived from the proceeds of sale of Nauruan phosphate.
Some may have come from the sale, in 1967, on the BPC's Nauruan assets to Nauru.
However, much of the BPC's remaining assets came from elsewhere and did not derive from
Nauru at all." (CR 91/16, p. 31.)
But this passage does recognize that "some of the assets may have been derived from the
proceeds of sale of Nauruan phosphate".
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The Nauruan position is developed in Chapter 7 of the Memorial. In the Written Statement
(paras. 385-386) we have found it necessary to make certain declarations concerning access to
documents held by Australia, relating to the overseas assets. By way of conclusion, we would like to
emphasize that Nauru considers that at the present phase of the proceedings, for purposes of
admissibility, for purposes of this phase of preliminary objections, it is sufficient for the Applicant
State to demonstrate that it is reasonably certain that a legally protected interest exists in an
identifiable body of assets. And in the same context, it is not necessary that the Applicant State
identifies specific aspects or indicate a precise percentage of the value of assets to which Nauru is
entitled.
On the other issues raised by Mr. Burmester, Nauru is content to reaffirm the positions
adopted in the Written Pleadings.
And in particular on the forced purchase of BPC assets on Nauru in 1967 the Court is asked
to refer to the Memorial (pp. 180-181, paras. 496-500). The passages there respond to the argument
of Mr. Burmester (CR 91/16, p. 41), who seeks to use this particular prejudicial transaction as a
further source of prejudice to Nauru.
Fourth Australian Argument
Then there is the final fourth Australian argument in which Mr. Burmester seeks to apply each
of the Preliminary Objections made by Australia to Nauru's other claims as he puts it equally to the
overseas assets claim (CR 91/16, pp. 42-43).
This is a rather strange application which one assumes would be difficult to apply to the
evidence of waiver and the evidence of delay. These arguments of course clash with what
Mr. Burmester now describes as a "new claim" (CR 91/16, p. 32) relating to the assets.
And on these questions Nauru is content by way of sufficient reply to invoke the relevant
passages of its Written Statement (paras. 361-368, 390-391).
Mr. President, that concludes my second speech, and I thank the Court for its patience and
- 48 -
consideration. I would ask you to decide whether I should ask for the floor again for my colleague,
Mr. Crawford, now or after the break?
The PRESIDENT: Thank you, Professor Brownlie. I think it will be convenient probably to
take the break here, and we will try to be back before half past eleven. Then we can listen to
Professor Crawford again, and he can have his say in one piece.
The Court adjourned from 11.15 to 11.30 a.m.
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The PRESIDENT: Please be seated. Professor Crawford.
Professor CRAWFORD: Mr. President, Members of the Court.
1. This part of the oral submissions of the Republic of Nauru will address the argument that
the present case cannot continue against Australia as sole respondent, because this would violate the
principle of consent in international law.
Relationship between Indispensable Parties Rule
and the Principle of Consent
2. In its Written Statement, Nauru addressed these issues in Chapter V of Part IV, under the
general heading "Joinder or Consent of Third Parties" (see Written Statement, paras. 244-323).
Naura reaffirms, and will certainly not repeat, what is said there. The Nauruan arguments were a
response to arguments in the Preliminary Objections of Australia, to the effect that the other two
States were "indispensable parties" to the proceedings, within the principle of the Monetary Gold
Removed from Rome in 1943 case (I.C.J. Reports 1954, p. 32). Australia argued this was so, either
because any decision adverse to it would imply a right of recourse against the other two States
(Preliminary Objections of Australia, paras. 347-348), or because any such decision would imply
that those States are also legally responsible to Nauru and they have not consented to such a decision
(Preliminary Objections of Australia, paras. 349-366). They were the two grounds of the argument
in the Preliminary Objections of Australia.
By contrast, Professor Pellet in his oral presentation stressed that Australia's objection was
based not on any issue of joinder, nor on any application of the "indispensable parties" rule, but on
the basic principle of consent (Verbatim Records 19/16, pp. 50-52). With an airy wave of the hand
he thereby sought to dismiss the long line of decisions, cited in the Nauruan Written Statement,
which deal with the power of the Court to decide cases, notwithstanding the absence of a third State
or States whose legal rights or interests are implicated in the decision. Both the Preliminary
Objections of Australia and Nauru's Written Statement had dealt with that statement under the rubric
of "joinder of parties".
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No doubt, the principle of consent in international law and the rules relating to joinder or
non-joinder of third parties are not simply identical. The principle of consent is a fundamental
principle, having consequences across the whole field of international law. But the precise issue
before the Court is this: how does the principle of consent apply to its judicial jurisdiction in the
absence of a third party with a direct interest in the case? What is its effect as a matter of the
admissibility of proceedings? And this is an issue which the Court has faced again and again, with
results that are impressively consistent.
In short, the cases on indisputable parties, or on the effects of non-joinder, are authorities on
consent. And the reason is simple. If the third party was properly before the Court as a party, that
would be because it had consented to the jurisdiction. In other words, the rule which these cases
establish is the primary manifestation of the consent principle in the present context of the
admissibility of claims affecting third parties.
Thus the Monetary Gold Removed from Rome in 1943 case (I.C.J. Reports 1954, p. 32) can
be put equally as an authority on indispensable parties, or as an authority on consent. It can be said
that the Court could not exercise jurisdiction in that case because an indispensable party was not
before it. Or it can be said that the Court could not exercise jurisdiction in that case because a State
whose rights or legal interests would be affected in a particular way had not consented to the
proceedings. Either way, it comes to the same thing. The very subject-matter of the dispute in that
case, that is to say the Monetary Gold Removed from Rome in 1943 case, involved the legal rights
or responsibilities of a State not a party. That State had not consented to become a party, and had
not consented to the adjudication of the case in its absence.
3. So what is the principle of the admissibility of proceedings between two States when the
factual situation underlying the proceedings involves or implicates more than just those States?
Where is the line to be drawn between Nauru's right to choose the State against which to bring
proceedings, and a third State's right in effect to prevent such proceedings by refusing to consent to
them?
The short answer is as follows - and I say this by way of summary of Nauru's general
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submission on this issue. At the level of admissibility, at the level of preliminary objections, the
absence of third parties is a fatal objection in only the clearest and rarest cases. Once the Court has
jurisdiction as between two parties, it has consistently elected to do justice between them as far as it
can. The Court has consistently said that it will only decline to hear a case which somehow affects a
third State if the legal rights or liabilities of that State are the very subject-matter of the proceeding.
Mr. President, the subject-matter of this proceeding, in substance and in form, is the
responsibility of Australia to Nauru in respect of the rehabilitation of the lands. That responsibility
arose from rules of international law, both customary international law and treaty law, binding on
Australia. That responsibility arose because of the acts of Australia's own officials, acting in
Australia's interests, and (if it matters) in no sense under the direction or control of other States. To
establish that responsibility in no way requires Nauru to rely on the wrongful acts of other States.
That being so, the proceedings are admissible, despite the fact that neither Australia nor Nauru has
sought to join third parties which were also involved. The interests of third parties are protected by
Article 59 of the Statute and by the mechanisms available under the Statute for intervention. Those
interests do not need to be protected at Nauru's expense, by preventing it from obtaining a judicial
determination of a long-asserted claim.
Certain Preliminary Matters
4. Before seeking to justify the answer I have just given, and to deal with the Australian
arguments in more detail, let me make two preliminary points.
5. My first preliminary point relates to the idea that the Administering Authority under the
Trusteeship may have been in some sense a separate legal entity. Counsel for Australia chided
Nauru for arguing in its Written Statement, that the Administering Authority was "not a separate
legal entity in international law". Australia, he said, had never argued that it was such an entity
(Verbatim Records 91/16, pp. 55-56; see Nauru Written Statement, paras. 284-287).
Well, in the first place the Preliminary Objections of Australia rely on the British decisions
involving responsibility for the debts of the International Tin Council (see Preliminary Objections of
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Australia, para. 314). And those cases involved precisely the issue of whether the member States of
an international organization, a separate legal entity both in international law and in English law,
were themselves liable for its debts. The cases were decided by the House of Lords on the basis that,
because the debts were those of a separate legal entity, the member States were not liable (see
Rayner (J.H.) (Mincing Lane) Ltd. v. Department of Trade; Maclaine Watson v. Department of
Trade [1990] A.C. 418). If there is no question in Australia's mind that the Administering
Authority was or was not a separate legal entity, why then did it cite the International Tin Council
cases in its Preliminary Objections?
But there is a more profound point here as well. The Australian Agent expressed it in his
opening address, when he said that "Australia did not administer the Trust territory" (Verbatim
Records 91/15, p. 13). And that was the very first thing he said. The implication is clear: it was
"not our responsibility". But, if not, whose responsibility could it be but that of a separate legal
person? - that separate legal person that Professor Pellet disavows and disowns?
Mr. President, there is no third thing between the liability of a separate legal entity, such as an
international organization with separate legal personality, and the liability of one or several States -
to use the words of Article 81 of the Charter. States remain responsible for their own actions, even
if they may perform them on behalf of, or in conjunction with, others as well as themselves. Any
other view would produce legal irresponsibility.
There is, I regret to say, evidence of such irresponsibility in the Preliminary Objections of
Australia, where Australia went so far as to deny that it was under any obligation to comply with the
Trusteeship Agreement. Instead, it attributed that obligation to a "partnership" constituting the
Administering Authority (Preliminary Objections of Australia, para. 321). But there is no general
principle of law that a "partnership" constitutes a separate legal entity. It certainly does not do so
under the legal systems of Australia, the United Kingdom, New Zealand or Nauru. Nor is there any
indication of an intention on the part of the United Nations to constitute or to recognize as a separate
legal entity an "Administering Authority" somehow separate and distinct from the States which were
involved. Article 81 of the Charter refers indistinguishably to an Administering Authority
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consisting of "one or several States", and it could not possibly be argued that a single State which
was an Administering Authority was somehow in that capacity a separate legal entity. If that is true
of a single State, it is true of several States.
Is it any surprise, then, that Nauru insists that the "Administering Authority" was not a
separate legal entity, in the way that an international organization is an entity separate from its
members? The term "Administering Authority" in this case was simply a legal description for a
particular arrangement which involved a degree of participation on the part of the other two States, a
device for associating the United Kingdom and New Zealand in the administration of Nauru. And as
I shall demonstrate later in these remarks, that association, though initially it may have been intended
to be substantial, was nominal and consultative only. It does not prevent these proceedings being
brought against Australia alone.
6. My second preliminary point is this. By definition, the situation we are now dealing with
concerns a State that is a party to the proceedings, that has accepted the Court's jurisdiction, and
that would otherwise be at risk of being found to have breached international law. And the question
is, can it escape that potential finding by relying on the concurrent breaches of international law of
another State or States which have not consented to the proceedings, or at least, which are not
parties? In other words, where, as between the wronged State and the wrongdoing State, should the
burden fall, of the potential consequences or implications for third parties also arguably guilty of
wrongdoing. Should an applicant State, which claims to have been wronged, be denied its day in
court because the court only has jurisdiction over one or some of the wrongdoers, and other potential
wrongdoers have not consented, or are not parties?
The principle of consent and the admissiblity of these proceedings
7. Mr. President, when one looks at what international courts confronted with this issue have
done and said, there can be no doubt as to the answer. The Court is entitled to hear a case otherwise
properly brought between two States, unless the legal rights of another State would form the very
subject-matter of the decision.
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8. Clear authority for that proposition is contained in the Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America) (I.C.J. Reports 1984, p. 392). I
refer the Court to the discussion of that case in the Nauruan Written Statement, at paragraphs 250 to
252. The key passage in the Court's decision is set out in full in paragraph 251 of the Nauruan
Written Statement, and I will only read, of that passage, the central section. The Court, after
referring to the Monetary Gold Removed from Rome in 1943 case, expressed the principle as
follows:
"Where ... claims of a legal nature are made by an Applicant against a Respondent ...
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 ... other States which consider that they may be affected are free to
institute separate proceedings, or to employ the procedure of intervention ... 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 [that is to the
States involved in the Nicaragua case] 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."
(I.C.J. Reports 1984, p. 392, at p. 431.)
In fact this issue had been strenuously and very fully argued by the United States. But the
Court was unanimous in rejecting the United States argument.
9. Counsel for Australia sought to distinguish the Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America) case. He particularly relied on the
understanding of the dispute expressed by Judge Ruda (Verbatim Records, 13 November 1991,
p. 41). Judge Ruda's views, of course, were expressed in a separate opinion in the jurisdictional
phase of the case (I.C.J. Reports 1984, p. 392, at pp. 456-458), and he briefly repeated those views
in his dissenting opinion in the merits phase. That was the only point on which Judge Ruda dissented
at the merits phase. But Judge Ruda was concerned not with the Monetary Gold principle but with
the issue raised by the Vandenberg amendment, the jurisdictional reservation relating to multilateral
treaties. Judge Ruda agreed with the rest of the Court on the Monetary Gold issue, but he adopted
an even more formal and discreet view of the dispute than did the Court itself, when it came to
addressing the issues raised by the Vandenberg amendment. Judge Ruda's dissent on that issue is of
no assistance to Australia in relation to the issue now before the Court.
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10. The Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) case involved responsibility for action jointly taken by a respondent State and
third States. The Court has taken a very similar approach in cases involving the potential rights of
third States, including territorial rights. Again, Nauru has analysed these decisions in its Written
Statement (paras. 254-260) and I will not repeat that analysis here. But because Professor Pellet
made some play with the Chamber's decision in the Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras) case, I should say something about that case.
11. It will be recalled that the issue there was whether the waters of the Gulf of Fonseca are
subject to a condominium or to what was termed a "community of interests" of the three riparian
States. The argument for present purposes is the same whether one talks about condominium or
community of interests, so I will talk about condominium. In seeking to intervene in the proceedings,
Nicaragua argued that its legal interest in the Gulf and in adjacent waters was such that the Court
could not proceed to decide the case in its absence under the Monetary Gold Removed from Rome in
1943 principle (I.C.J. Reports 1990, p. 92, at p. 114) The Chamber rejected that argument. It said,
amongst other things:
"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 régime
declared by the Judgement ... It is true that a decision of the Chamber rejecting El Salvador's
contentions, and finding that there is no condominium in the waters of the Gulf which is
opposable to Honduras, would be tantamount to a finding that there is no condominium at
all ... 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 [Monetary Gold case]."
(I.C.J. Reports 1990, p. 92, at p. 122.)
Counsel for Australia made no express criticism of this passage, notwithstanding that, looking
at it from Australia's point of view in this case, it drew a sharp and rather artificial, it might be
thought, distinction between the existence of a condominium in the Gulf and its opposability to
Honduras. Indeed, Professor Pellet compared the problem of the existence of a condominium with
Nauru's claim, which, he said, is a claim against an Administering Authority composed of three
States. It is impossible, he said, to pronounce on the rights of one of those States without
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pronouncing on the rights of others (Verbatim Record, 13 November 1991, pp. 43-44).
With respect this does not really account for what the Chamber said in the Land, Island and
Maritime Frontier Dispute (El Salvador/Honduras) case. Given Professor Pellet's flexible way of
determining what is the real object of a case, I will come back to that later, and the Chamber's
acceptance that "a decision of the Chamber ... finding that there is no condominium in the waters of
the Gulf which is opposable to Honduras, would be tantamount to a finding that there is no
condominium at all", why was that not the object of the case? Australia gives no reason. And the
present case is considerably clearer. Nauru is not here challenging the right of the other States to
have been involved in the Trusteeship. It is merely seeking a determination of the responsibility of
one State for its own acts committed on Nauru and doing serious harm to Nauru. And it is doing so
in relation to a régime which was precisely not a condominium, and in which the interests of the
Nauruan people were the very object of the arrangement. So those were the cases very briefly stated
on which the Court has gone on to exercise judgment notwithstanding the interests including quite
direct legal interests of third States.
12. On the other side of the line - and alone on the other side of the line - is the Monetary Gold
case itself. I refer to, and adopt, the analysis of the case contained in the Nauru Written Statement,
paragraph 261. Any other decision in the Monetary Gold case would have converted the Court into
an enforcement agency in relation to decisions made in the absence of the debtor State, quite contrary
to the provisions of the Charter and the Statute relating to the enforcement of decisions of the Court.
But the present case is quite unlike Monetary Gold. The legal rights or property of the United
Kingdom and New Zealand are not the subject-matter of the present claim. No legal right or
responsibility of either State needs to be proved or would be determined by the Court in this case.
There are several reasons for this. First of all, what Nauru seeks here is a judgment, initially a
declaratory judgment but at a later stage it may be a money judgment, against Australia. If Nauru
succeeds on the merits, that judgment will not be opposable to any other State. It will require no
conduct from any other State. Its legal effects will be purely bilateral. But in addition the focus of
the claim is on the acts and omissions of Australia and of Australian officials responsible for the
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administration of Nauru. The determination of the liability of a third State to one of the parties is
not a precondition to the determination of this case. In order to establish its claim Nauru does not
need to prove a single act committed by anyone other than Australia, or an Australian official.
Counsel for Australia conceded that the Monetary Gold case was a case where the liability of
a third State was a precondition (préalable nécessaire) to the determination of the claim between the
parties. He also conceded that in the present case there is no such precondition (Verbatim Records,
13/11/93, p. 44). Nauru's, he said, was merely a case of simultaneity where simultaneous
responsibility would be shown. And as decisions such as the Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America) case show, simultaneity is not
enough. Simultaneously with a decision that the United States was not entitled to engage in
collective self-defence operations in and against Nicaragua, the Court in effect made a decision about
the involvement of the States on whose behalf the United States was acting and it was quite clear
about that.
In the present case, it is not necessary for the Court to determine that any other State is legally
responsible, before it is in a position to determine that Australia is legally responsible. It can simply
proceed to consider the relevant legal instruments, and the implications of the acts and omissions of
Australia, acting through its officials who carried on the administration of Nauru. Nothing more is
required. It is true that there may be implications for other States of any findings by the Court which
are adverse to Australia. But this was so for El Salvador in the Nicaragua case. It is so for
Nicaragua in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) case. In
neither case was it a reason for the Court declining to exercise jurisdiction as between the parties.
Nor is it here.
13. The position with the Monetary Gold principle is the same even if one asserts, as
Australia sought to do, that there was a distinction between Australia's two capacities in the present
case. It had a capacity as "actual administrator" and a capacity as a member of the "Administering
Authority". That was one version of the argument. One response to the argument is that Australia
in its capacity as the actual administrator of Nauru was bound by rules of international law just as
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stringent as was the Administering Authority. Australia is sued in the present case in any relevant
capacity, if it had more than one. But such a distinction is illusory. We have already seen, already
submitted, that the Administering Authority was not a separate legal entity, but simply the three
States. Australia may have acted on behalf of the other two States, but it could not have acted on
behalf of itself. In relation to itself, it just acted.
Parenthetically I might point out that the phrase that Australia was acting "on behalf of" the
Administering Authority should not be taken to import into the trusteeship régime the principles
which apply to agent-principal relations under municipal legal systems. The Trusteeship Agreement
refers to Australia as acting "on behalf of" the three States, but does not use the term "agent". Even
if it had, there would be a real question what that meant. In so far as the trusteeship system and
Australia's obligations under the Charter were concerned, there could have been no difference
between the rules that bound it in its conduct on Nauru as part of the Administering Authority from
the rules that bound it as agent. The most serious issues would arise if a Trusteeship Agreement had
at the same time delegated "full powers", or for that matter, any powers, to a State which was not the
Administering Authority, and had purported to authorize that State to act in ways that were
prohibited to the Administering Authority under Chapter XII of the Charter. That would have been
to authorize a violation of the Charter, which the General Assembly plainly had no intention of
doing.
15. Thus the simple answer is the best answer: Australia in its capacity as administrator of
Nauru was obliged to the full extent by the Charter and the Trusteeship Agreement, and by related
rules of international law. That responsibility was primary and not derivative. There is no question
of any precondition to a direct determination of Australia's liability, of the sort that arose in the
Monetary Gold case.
16. There is another difficulty, Mr. President, in applying the Monetary Gold case principle
here, and it is a difficulty specific to the context of trusteeship. The underlying idea of trusteeship,
which is expressed in the Charter, is that the interests of the beneficiary are to be the paramount
consideration, while the interests of the administrator, even its legitimate interests, are secondary.
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Yet to apply the Monetary Gold principle to prevent an adjudication of the liability of the
administrator towards the beneficiary would be to elevate the procedural interests of the
administrator over and above the procedural interests of the beneficiary. In other words, to apply the
Monetary Gold principle to preclude an action for breach of trust would be inconsistent with the
trusteeship notion itself. And the trusteeship principle, being a Charter principle, must prevail.
17. However the argument is put, Mr. President, the conclusion is clear. The present case is
properly constituted and should proceed to a determination on the merits. Naturally enough Counsel
for Australia strove to avoid this conclusion, raising a number of more or less complex
counter-arguments which I will have to deal with in turn. Before doing os, and to assist the Court in
distinguishing the different versions of these counter-arguments, I should first of all itemize some,
and I apologize to Professor Pellet if I do not do this in precisely the order in which he made them.
Australia argues that the consent principle precludes the exercise of jurisdiction in the present
proceedings for the following five reasons.
(1) First, because of the joint character of the Trusteeship, which incorporated a rule of
equality between the three Partner Governments.
(2) Secondly, because of the joint character of the British Phosphate Commissioners, which
was, according to Australia, a form of economic government of the Island.
(3) Thirdly, because any finding adverse to Australia would be a finding of a liability which
was commune, conjointe, collective - en tout cas indissociable (Verbatim Records, 13/11/91,
p. 17).
(4) Fourthly, because of the "inevitable implications" for the United Kingdom and New
Zealand of an adverse finding in relation to Australia.
(5) And finally, because the substance of the present claim was that it was brought against
New Zealand and the United Kingdom as well as against Australia.
In Nauru's submission, none of these reasons has any validity in the present case. Let me deal
with each of these arguments in turn.
Australia's Objections Based on the
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Joint Character of the Trusteeship
18. Australia argued that the three Partner Governments formed a joint administration of the
Trusteeship, with the corollary that they could, and can, only be sued together. Thus,
Professor Pellet emphasized the equality of the three States. They were, he said, placed on a position
of "perfect equality" (Verbatim Records, 12 November 1991, p. 56).
Mr. President, there is a certain irony in this argument. As the Nauruan Memorial
demonstrates, Australia originally wanted Nauru for itself, either as a colony or, when it became
clear that that was not possible, as a mandate under its sole administration. It sought - and I think it
is not unfair to say that it fought - throughout the Mandate and Trusteeship to gain an increasingly
exclusive authority over the government of the territory. By the time of the Nauru Agreement of
1965, it had substantially achieved this. And now, after the termination of the Mandate and
Trusteeship, it seeks to rely on a formal, even fictional, equality which during the currency of the
Mandate and Trusteeship it never ceased to resist (see Nauru Memorial, Vol. 1, paras. 29-35, and
authorities there cited).
In fact, the different role and substantially greater power of Australia with respect to the
administration of Nauru are plain from the various instruments, as even a brief review will
demonstrate.
19. Under the Nauru Island Agreement of 2 July 1919 between the three States (Nauru
Memorial, Vol. 4, Ann. 26), the administration of the island was vested in an Administrator
appointed by the Australian Government for a term of five years (Art. 1). After the end of the five
years, the Administrator was to be "appointed in such a manner as the three Governments decide"
(ibid.). At this stage, therefore, there was the possibility, at least on paper, of one of the other
Governments appointing the Administrator, and thus becoming the effective governing entity for
Nauru.
20. Under the League of Nations Mandate for Nauru of 17 December 1920 (Nauru Memorial,
Vol. 4, Ann. 27), the Mandate was conferred upon "His Britannic Majesty", and the Mandatory was
given "full power of administration and legislation over the territory, subject to the present Mandate,
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as an integral portion of his territory" (Art. 2). Professor Pellet had difficulty with the term "His
Britannic Majesty", and I do not blame him. Not for the first time British statesmen used the
constitutional complexities of the late British Empire as a vehicle for postponing a practical decision.
Fortunately, the "enigma" represented by the British Empire has long since vanished. The Mandate
was concluded at a time when what were then called the dominions were emerging as separate
international entities. It was drawn up during the heyday of what was called the inter se doctrine - a
largely unavailing attempt by the United Kingdom to exclude international law from the relations
between the States of the former British Empire. None of that matters now. The Trusteeship
Agreement simply refers to three States, who are members of the United Nations, and recognized the
special position of one of them, that is to say, Australia.
21. As to the mandate period, all that needs to be said here is that it was Australia which was
the embodiment or emanation of "His Britannic Majesty" for the purpose of exercising "full power of
administration and legislation over the territory subject to the present Mandate as an integral portion
of his territory". It is true that there was, as least on paper, a question who would appoint the
Administrator after the first five years. But that question was settled by an agreement - which was
not formalized in a treaty form - whereby Australia, after consultation with the other two
Governments, continued to appoint successive Administrators.
And the primary role in the administration of Nauru of Australia as the appointing
Government was strengthened by the Supplementary Agreement concerning Nauru of 30 May 1923
(Nauru Memorial, Vol. 4, Ann. 28). Under Article 1 of that Agreement, ordinances made by the
Administrator on Nauru were subject to disallowance by the appointing Government, and by no
other Government. Under Article 2, the Administrator was required to conform to the instructions of
the appointing Government, and not to the instructions of any other Government. Under Article 3,
copies of ordinances, proclamations and regulations were to be forwarded to the other two Parties,
but only "for their information". Australia was the appointing Government throughout the whole
period of the Mandate and, of course, throughout the whole period of the Trusteeship.
22. It should be recalled that Nauru was a "Class C" Mandate, one which could, according to
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Article 22, paragraph 6, of the League of Nations Covenant:
"best be administered under the laws of the Mandatory as integral portions of its territory,
subject to the safeguards above mentioned in the interests of the indigenous population."
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.
23. It is true, as Professor Pellet pointed out, citing Macdonald, that Australia consulted its
partners before appointing each successive Administrator. But in the same passage, which was read
in full by Professor Connell (Verbatim Record, 18 November 1991, p. 18), Macdonald affirms that
neither New Zealand nor the United Kingdom played "any significant role" in the administration of
Nauru (B. Macdonald, In Pursuit of the Sacred Trust (1988, p. 21). And that view is endorsed by
the other writers on Nauru, who are cited in the Nauru Memorial (see Nauru Memorial, p. 242,
footnote 3).
24. That Nauru had been in fact administered by Australia was recognized in the first
preambular paragraph of the Trusteeship Agreement of 1 November 1947. Article 4 of the
Agreement provided that the Government of Australia would continue to exercise "full powers of
legislation, administration and jurisdiction in and over the Territory" on behalf of the three States,
unless otherwise agreed (Art. 4). This marked a formal difference from the Mandate period, since
the Mandate had not actually specified Australia as the administering power, whereas under
Article 4, Australia would only cease to exercise full powers over Nauru if it so agreed. It never so
agreed.
25. Despite this, Australia characterizes the relations between the three powers as "purely
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internal" (Verbatim Record, 12 November 1991, p. 62). But as we have seen, the three States did
not constitute, as the "Administering Authority", a separate legal person. How can there be "purely
internal" relations between three distinct international persons relating to the discharge of
international responsibilities imposed by a paramount instrument, the Charter? And what right did
those three States have to enter into what are described as "internal" arrangements, if the effect of
those arrangements was to shuffle off individual responsibilities, to reduce the level of legal
protection available to the beneficiary of the Trusteeship Agreement, whose position was the
raison d'être of the whole system?
26. Counsel for Australia characterized Article 4 of the Trusteeship Agreement as concerned
only with "day-to-day" administration. He also made the point that the recognition of Australia's
special role by the Trusteeship Agreement was limited to Article 4 (Verbatim Records,
12 November 1991, pp. 56, 61). But to describe Australia's "full powers of legislation,
administration and jurisdiction in and over the Territory" (Art. 4) as being limited to matters of
day-to-day administration is to trivialize those powers. It is as if one were to describe the powers of
the Emperor Augustus as limited to matters of the day-to-day administration of the Roman Empire!
No doubt there is a sense in which all administration is "day-to-day": where can we live but time?
But that is not a limitation, and it is not the point Australia was trying to make.
27. Moreover, Australia's special role over Nauru was not confined - if "confined" is the right
work - to the "full powers" referred to in Article 4. On each of the other matters referred to in the
Trusteeship Agreement, Australia's role was dominant, paramount or even exclusive. The actual
administration of the Territory, covered by Article 3, was in fact a matter for Australia, as I have
shown. The Australian Administrator was the "competent public authority" for the purposes of
Article 5, paragraph 2 (a). Governmental responsibility over the recognition of Nauruan custom, the
transfer of Nauruan land to non-Nauruans, the "economic, social, educational and cultural
advancement" of the Nauruans, the increasing share in administrative and other services of the
Territory and the guarantee of freedoms such as freedom of speech and of religion - these are the
specific matters referred to in Article 5 - all of these were matters within the actual control and
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responsibility of Australia. One might take as an example the issue of the freedom of the Nauruans
to communicate with legal and economic advisers, something covered in general terms by Article 3
and, more specifically, by Articles 5, paragraph 2 (b), (c) and (d). Other Counsel for Nauru have
noted that Australia denied the Nauruans access to independent legal or economic advice until 1964.
Had New Zealand or the United Kingdom disagreed with that policy, there was nothing, other than
the making of representations, that they could have done about it. They certainly would have had no
authority to change it. Under Article 6 of the Trusteeship Agreement, the international agreements
which were applied to Nauru were a selection of the international agreements to which Australia was
a party. As far as is known, no consideration was given to applying to Nauru the provisions of any
treaty to which either New Zealand or the United Kingdom was a party but Australia was not. And
the defence of Nauru, which is the subject covered in Article 7, was a matter for Australia.
28. This extensive dominance over the Government of Nauru was made virtually complete by
the Nauru Agreement of 26 November 1965 (Nauru Memorial, Vol. 4, Ann. 30). Mr. President, this
is of particular significance, since as beetween the three Partner Governments it was under the terms
of the 1965 Agreement that Nauru was governed throughout the crucial pre-independence period.
The terms of the 1965 Agreement are analysed in paragraph 293 of the Nauruan Written
Statement. I refer in particular to Article 6 of the Agreement, under which Australia reserved the
right to make "such other provisions in relation to the government of the Territory as the
Government of Australia deems necessary or convenient" (emphasis added). Clearly this meant
that Australia could govern Nauru irrespective of the views of the other two States. This is a strange
form of equality!
In addition, Article 1 of the 1919 Agreement, and the whole of the 1923 Agreement, was
terminated in 1965 (Art. 7). The effect of this was to put an end to the duty of the Administrator,
which had existed under Article 3 of the 1923 Agreement, to "supply, through the Contracting
Government by which he has been appointed such other information regarding the administration of
the island as either of the other Contracting Governments shall require". After 1965 the other two
Governments had no right even to obtain information about Nauru. They were wholly dependent
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upon what Australia chose to give them.
29. The Nauru Agreement of 1965 was given effect to in Australian law by the Nauru Act of
1965 (Nauru Memorial, Vol. 4, Ann. 39). I do not want to burden the Court with details of
Australian constitutional law, but it is worth pointing out that prior to the 1965 Act the
constitutional status of Nauru was that it was a Crown colony governed by Australia under
prerogative power. The Nauru Act 1965 treats Nauru as an Australian external territory, with its
officials subject to effective Australian authority. There is a reference in Section 6, Sub-section 1, of
the Act to the administration of the territory being carried out on behalf of the three Governments.
But that reference has no operational effect in terms of the Act.
30. All the relevant negotiations with respect to Nauru in the period 1965 to 1967, and all the
legal acts required from the point of view of the pre-independence legal system to bring Nauru to
independence, all of these acts were carried out by Australian officials acting under the instructions
of the Australian Government, and by Australian legislation. I refer for example to the Nauru
Independence Act 1967 (Nauru Memorial, Vol. 4, Ann. 40). No equivalent legislation was passed
by New Zealand or the United Kingdom.
31. So far as the Nauru Talks are concerned, the role of the United Kingdom and
New Zealand officials who were present was consultative only. The 1965 Talks were held with
"Australian Officials representing Administering Authority", or with the "Australian Delegation" for
short. The 1966 and 1967 Canberra Talks were held with a "Joint Delegation of Officials
representing the Administering Authority". The transcripts of the Talks are contained in Volume 3
of the Nauru Memorial. If I may just interpolate, it has been difficult to obtain good copies of the
transcripts of the Talks, these are simply the best copies that are available and we apologize for the
difficulties that everyone is experiencing making their way through them; this is simply the best that
can be provided. With one exception, the meeting of 14 June 1967, New Zealand and the
United Kingdom were present by a representative or representatives at the meetings. But they barely
spoke. In 1966, according to the summary records, the British representatives never spoke; the
New Zealand representatives only spoke once (Nauru Memorial, Vol. 3, Ann. 4, Meeting of
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20 June 1966, p. 3 (Mr. Ansell)). In 1967 the British representatives are recorded as having spoken
once (Nauru Memorial, Vol. 3, Ann. 5, Meeting of 12 April 1967, p. 100 (Mr. Morgan)), the
New Zealand representatives five times (Nauru Memorial, Vol. 3, Ann. 5, Meetings of
16 May 1967, pp. 57, 59, 61 (twice); 12 May 1967, 65 (on each occasion, Mr. Ansell)). None of
those interventions was of any significance to the issues under discussion: their total length was not
much more than one printed page out of more than 500 of the total pages of the Talks including
Annexes. This near-silence shows very clearly the relative roles of the three Governments in relation
to Nauruan affairs.
32. Counsel for Australia gave up the unequal task of showing equality in the actual
administration of Nauru, and relied primarily on the combined role of the three States concerned at
the international level, for example in the General Assembly and the Trusteeship Council (Verbatim
Records, 12 November 1991, pp. 62-64). But again it was the Australian representatives who took
the leading role, speaking first in the general debates, answering the questions of the Permanent
Mandates Commission and the Trusteeship Council, and so on. Moreover, although international
obligations were owed to the Nauruan people, they had no separate standing in international forums
at this stage. What Counsel for Australia refers to as the internal arena of affairs on Nauru was
precisely the arena where the Trusteeship obligation was primarily owed, and where the damage was
done.
33. Mr. President and Members of the Court, it is simply not true to say, as Australia does
(Preliminary Objections of Australia, para. 341), that "the Administrator was responsible to all three
Governments". An executive official is responsible to a superior who can give him instructions, and
at least since 1923 only the Australian Government could do that. Nor is it true to say that
New Zealand and the United Kingdom "in no relevant sense acted differently from Australia"
(Preliminary Objections of Australia, para. 359). No United Kingdom or New Zealand official
exercised governing authority over Nauru as Administrator or otherwise. No United Kingdom or
New Zealand legislation formed part of the law of Nauru. Both the terms on which and the
modalities by which Nauru achieved independence were the result of the legal acts of Australia - a
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conclusion which is not affected by the fact that there was consultation with the other two
Governments about those issues.
34. To summarize, although Counsel for Australia placed much stress on the agency issue,
relying on the maxim qui fecit per alium fecit per se (Verbatim Records, 11 November 1991, p. 68),
that maxim has nothing to do with the present case. Australia did nothing per alium, everything per
se ipsum - nothing through anyone else, everything itself. It should be held responsible for its own
acts.
Australia's objections based on the joint character of the
British Phosphate Commissioners
35. Australia's second line of defence was to point to the joint operation by the three
Governments of the British Phosphate Commissioners. They constituted, according to
Professor Pellet's argument, the régime juridique on Nauru so far as economic matters and the
exploitation of phosphate were concerned. They were, he said, "the economic administration" of
Nauru (Verbatim Records, 13 November 1991, p. 8). A Visiting Mission Report, cited by
Professor Pellet with approval, described them as having une indépendance administrative presque
totale. That was an additional and distinct reason why it was wrong to single out Australia.
36. It may be conceded that the three Governments did share equally in the operation of the
BPC, from an administrative point of view, although they did not share equally in the use of
Nauruan phosphate, of which Australia took the lion's share.
But that is not the point of the case. The British Phosphate Commissioners were not parties to
the Trusteeship Agreement. Whatever their economic power might have been, they had no legal
power on Nauru. Their existence and authority was recognized neither in the Mandate nor in the
Trusteeship Agreement. Both the League of Nations and the United Nations expressed concern that
the Australian administration of Nauru was improperly preferring the interests of the BPC, an
industrial enterprise, over the interests of the Nauruan people, the beneficiaries of the trust, and was
therefore involved in a conflict of interest and duty.
It should be noted that the Visiting Mission Report cited by Professor Pellet was not
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approving the position or conduct of the BPC on Nauru. It was merely describing it, and doing it in
rather reserved terms.
On the merits of this case, Mr. President, Nauru will argue that there was never any
ratification or approval by either the League of Nations or the United Nations of the position of the
BPC, that is, of course, a central issue on the merits.
The gist of Nauru's rehabilitation claim is not that the BPC was somehow in breach of trust
for mining the phosphate. It is that Australia was in breach of the Trusteeship obligation, and of
associated principles of general international law, in allowing BPC to mine on terms that paid no
regard to the legitimate rights of the Nauruan people, and in failing to redress the adverse
consequences of the mining on the rights and legal interests of the Nauruan people, rights recognized
by the Trusteeship Agreement and by general international law.
37. Mr. President, as I have mentioned, most of these issues are self-evidently issues for the
merits. The relationship between the 1919 Agreement and the Mandate and the Trusteeship
Agreement raises issues which are discussed at length in the Nauruan Memorial (see Part IV,
Chap. 3), but on which Australia has not yet had the opportunity to plead. I need only say here that
the present proceedings could still have been brought, in essentially their present form, had the
British Phosphate Commissioners been a purely private enterprise, which is what Mr. Burmester for
Australia said they were, and which is what for most of the time they claimed to be. No doubt the
fact that Australia benefited substantially from the operations of the BPC is relevant to a
consideration of the merits of the Nauruan claims. But the Australian involvement as partner in and
chief beneficiary of the BPC's operations on Nauru can hardly make its position in these proceedings
any better than it would otherwise have been, if BPC had been a private entity. And that was the
point of the Australian argument.
Australia's Objections Based on the Existence
of an Alleged "Joint Liability"
38. Australia's third line of defence related to the legal situation of joint, or conjoint,
responsibility which is said to be the inevitable consequence of the administrative arrangements for
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Nauru. This makes it, according to Australia, impossible to distinguish the aspect of the damage
done by Australia from the aspects done by the other two States.
39. Mr. President, I might observe, in parenthesis, that the three Governments knew perfectly
well who was entitled to what when it came to partitioning amongst them the overseas assets of the
British Phosphate Commissioners, in 1987. In that exercise they could calculate to the nearest
dollar. It is only when the issue is that of accounting to the Nauruans for the damage to their lands
that the problem of solidarity emerges, that things become unclear, that there is what might be called
a "collective unconscious". Only when it comes to the claims of the Nauruans based on the principle
of trusteeship is there an insoluble accounting problem!
40. But what is the consequence in international law of a loss to a claimant caused
concurrently by the acts of two persons, or caused by the acts of a person acting both on its own
behalf and on behalf of another? That consequence might be felt at several levels: at the level of
admissibility of a claim brought, as the present claim is brought, against the person who by its own
acts caused the harm; at the level of the consequences in terms of responsibility for the wrong; and
at the level of reparation.
I have already dealt with the first level, that of admissibility, because it is indistinguishable
from the cases discussed above, of which the Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America) case is a paradigm, where damage was done
concurrently by several actors. Indeed the Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America) case was a stronger case, from the point of
view of the Respondent State, than the present case. In the Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America) case the primary actors were
mostly not United States officials, or persons whose acts were directly attributable to the United
States. In addition, the right of the United States to act in collective self-defence was derivative
rather than primary, since it was acting at the request of the States which were, in its and their view,
the subject of an armed attack.
By contrast in the present case all or virtually all the actors were Australian. Australia's
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position on Nauru was not derivative of that of another State. Counsel for Australia sought to stress
that the Australian position on Nauru derived in point of title from that of the three States jointly,
and he compared the situation to that of a condominium (Verbatim Record, 13 November 1991,
pp. 43-44). But neither Australia nor any other State had any title to be on Nauru except under the
trusteeship system, the basic principle of which was the paramount interests of the people of the
territory. A mandate or a trust territory involved no dominium, no sovereignty, of the Administering
Authority, and the analogy of condominium is completely inappropriate.
41. The second level - I have been dealing with the first level of admissibility - on the context
of this question is that of the extent and nature of liability in the case of acts performed jointly or
concurrently by several States. Another possibility, which corresponds more exactly to the situation
here, is that of acts performed by one State on its own behalf as well as on behalf of another State or
States. And the first and obvious point to be made here is that this is plainly a matter for the merits.
The legal régime established by the Trusteeship Agreement, and the relationship between that
régime and the arrangements for the exploitation of the phosphate, are what Nauru's claim is all
about. Even applying the narrow definition of merits given by the Australian Agent, this is plainly a
matter for the merits - it requires the Court to analyse the juridical régime on Nauru au fond, to its
depths - a matter plainly inappropriate at this stage of the proceedings.
42. Nauru submits that, when two or more States are involved in some form of common
enterprise, they are nonetheless separately responsible for their own acts. A State is responsible for
what it itself does, acting through its organs and officials, and through other persons whose conduct
is attributable to it, notwithstanding that that act occurs with the participation or support of other
States. I refer to the authorities cited in the Nauru Memorial (Vol. 1, paras. 623-630) which I will
not repeat.
43. Although it is not necessary to make more than a passing reference to the point at this
phase of the case, the work of the International Law Commission on State responsibility supports
Nauru's position. For example the Commission in its 1978 commentary to the Draft Articles on
State Responsibility stated:
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"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." (International Law Commission
Yearbook, 1978, Vol. 2 (2), p. 99.)
Two or more States, I repeat, will concurrently have committed separate although identical,
internationally wrongful acts. It should be noted that in this passage the Commission was discussing
the situation of a common organ of several States. That situation is much stronger in favour of joint
responsibility than is the present case, since normally each State would exercise a measure of control
over a common organ, whereas only Australia had such control here. But even in relation to
common organs properly so-called, the Commission favoured a system of separate liability.
44. The Preliminary Objections of Australia, Mr. President, relied heavily on domestic law
analogies to support its view that the liability of States engaged in a joint enterprise was "joint" or
"inseverable", rather than "joint and several" (Preliminary Objections of Australia, paras. 309, 342).
Counsel for Australia, by contrast, tended to agree with the view in the Nauruan Written Statement,
that domestic law analogies in this field were of limited significance. Certainly, this must be true in
detail: the refinements of particular legal systems in the field of joint responsibility are so often the
product of history and of particular legal and economic institutions, that it is dangerous to
generalize. It is particularly dangerous to adopt the terminology of particular municipal legal
systems, which terminology often carries with it the incubus of a framework of particular rules. In
the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) case, the Court warned that private law analogies, especially in fields such as
admissibility, were unreliable because they tend to assume the existence of powers which
international courts and tribunals do not have, including the compulsory power of joinder
(I.C.J. Reports 1984, p. 392 at p. 431).
45. But having said that, some useful points can be gained from the domestic law experience
in dealing with
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liability for joint
conduct. I will not
repeat the extensive
review of authorities
contained in the
Nauruan Written
Statement
(paras. 266-277),
which is itself based
on the very extensive
work done on the topic
for the International
Encyclopedia of
Comparative Law,
under the general
editorship of
Professor André Tunc.
It is sufficient to cite
the general conclusion
reached in the section
on "Complex
Liabilities" in the
Encyclopedia:
"It is the very general rule that if a tortfeasor's behaviour is held to be a cause of the
victim's harm, the tortfeasor is liable to pay for all of the harm so caused, notwithstanding that
there was a concurrent cause of that harm and that another is responsible for that cause ... In
other words, the liability of a tortfeasor is not affected vis-à-vis the victim by the consideration
that another is concurrently liable." (International Encyclopedia of Comparative Law,
Vol. XI, Torts, A. Tunc, Chief Editor, Chap. 12, A. Weir, "Complex Liabilities", 1983, p. 43;
see further Nauruan Written Statement, paras. 274-275.)
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46. Similarly in one of the Aerial Incident cases, (United States v. Bulgaria), the United
States argued that:
"it appears that in all civilized countries the rule is substantially the same. An aggrieved
plaintiff may sue all or any joint tortfeasors, jointly or severally, although he may collect from
them, or any one or more of them, only the full amount of the damage.
The relationship between the joint tortfeasors themselves is a separate problem."
(United States Memorial, Aerial Incident of 27 July 1955, Pleadings 1959, pp. 229-230, and
see its comparative survey, ibid., pp. 230-233.)
The point I am making is that you cannot have multiple recoveries exceeding the amount of the
damage.
47. At the procedural level, the comparative law position is essentially the same. It has not
been possible to find a case where a claim based on a civil wrong or breach of trust resulting from
the conduct of joint wrongdoers has been dismissed on the preliminary ground that not all the
wrongdoers were amenable to the jurisdiction of the court concerned (see Nauruan Written
Statement, paras. 279-281, and the authorities there cited).
48. Finally, it should be noted that the rule asserted by Australia would not even have applied
had the British Phosphate Commissioners been sued in tort or for breach of trust. The British
Phosphate Commissioners were not a separately incorporated entity: they were what they describe
themselves as a partnership. And the rule of Australian, English and New Zealand law is that the
liability of partners for both torts or civil wrongs, and for breach of trust, is joint and several. That
means - I am obviously having to use common law terminology to describe a common law rule - that
the beneficiary has the right to sue any individual trustee for the whole amount of the damage (see
Glanville Williams, Joint Obligations, London, 1949, p. 159 and cases there cited; and see further
Nauru, Written Statement, paras. 271-273).
49. Professor Pellet put the argument in another way. He spent some time analysing the
United Kingdom and New Zealand acceptances of the Court's jurisdiction under the Optional Clause.
His argument was put in this form. The Court can only condemn a State if it alone is responsible
Having regard to the absence of jurisdiction under the Optional Clause, the Court has no jurisdiction
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to determine that New Zealand and the United Kingdom are or are not responsible. Therefore, since
the Court cannot determine that only Australia is responsible, it cannot proceed with the case. That
was the argument.
In response, I should first say that since both States are parties, that is to say since both the
United Kingdom and New Zealand are parties to the Statute and both have declarations in force
under the Optional Clause, it is not conceded that they have not consented. But, for present
purposes, the central point is this: 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 - or, for that
matter, if they were parties to proceedings commenced by Australia.
Thus the premise "The Court can only condemn a State if it alone is responsible" subtly
mis-states the position. The Court can never, in proceedings against one State, determine that only
that State is responsible. To do so it would have to determine the responsibility of non-parties, and
that it cannot do. The true position is that the Court can only determine the responsibility of a State
which is a party to the proceedings and, further, that it should (if it has jurisdiction over that State
and if the case is otherwise admissible) proceed to do so, unless as a pre-condition it has to determine
the responsibility of some other State. That is not the case here.
50. Mr. President, I have given this issue a more summary treatment than it would require
were the Court facing the issue as a matter of the merits of the claim. Nauru's primary submission is
that this issue does not possess in the circumstances an exclusively preliminary character. And the
reason is simple. The extent and nature of Australia's liability in this case can only be determined
after a detailed examination of the basis of the claim and all the relevant facts. Before that point, it
is possible only to speak in general terms.
But speaking in general terms, one can say, and Nauru submits, that there is no authority for,
and a great weight of international and comparative authority against, the proposition that there is a
régime of joint liability in international law requiring the participation of all States involved before
judgment can be given against any. Even if situations can be imagined in which there might be a rule
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of strict joint liability, it is not the case that the present claim for breach of trusteeship, or of
associated general international law rules, falls into that category.
Australia's Objections based on the "Inevitable Implications" for
Third States of a Decision Against Australia
51. Mr. President, Australia's fourth line of defence was to argue that, because of the
"inevitable implications" for New Zealand and the United Kingdom of a decision against Australia,
the case should not proceed. Counsel argued that a decision adverse to Australia would necessarily
imply that Australia has a right of recourse against the United Kingdom and New Zealand. A
similar argument is made in the Preliminary Objections of Australia (paras. 352-353).
52. But a decision of the Court against Australia would not determine the issue whether
Australia has a right of recourse against the United Kingdom and New Zealand. The existence of a
right of recourse between States jointly participating in wrongful activity is a separate issue from the
liability of one of those States to a person injured by that activity. The United Kingdom and
New Zealand may well have defences to an Australian claim. The existence and extent of any such
defences would have to be determined in those separate proceedings. As the Chamber pointed out in
the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) case, "[a] case with a new
party and new issues to be decided, would be a new case". (I.C.J. Reports 1990, p. 92 at p. 134.)
53. One can illustrate the point by reflecting for a moment on the issues that would be likely to
arise in proceedings brought by Australia against one or both of the other two States. They might
argue - and I am talking about proceedings brought by Australia - that the principal wrongdoer may
not seek contribution for the consequences of its own wrongful acts by claiming against a secondary
wrongdoer or co-conspiritor. Such a rule exists in a number of national legal systems. The Court
would have to determine whether it applies to international wrongs. Alternatively they might argue
that the formula for distribution of assets set out in the 1987 Agreement should be applied, either
because of its terms or by analogy, as an expression of fairness or equity between the parties.
Although Nauru has been affected by it, the formula in the 1987 Agreement is not opposable to
Nauru. Nauru has no particular interest in how the issue is resolved as between the three States.
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Mr. President, this is, of course, speculation - but that is the point. None of these issues
involves Nauru; none arises in the present proceedings. And because these issues do not arise, it is
not the case that the liability of the other two States is an inevitable and inseparable corollary of a
finding adverse to Australia in the present proceedings.
54. But, Mr. President, even if the Court's decision in this case carried the necessry
implication that Australia has a prima facie right of recourse against the United Kingdom and
New Zealand, that should not prevent the Court from exercising its jurisdiction in the present case.
As we have seen, the Court has not allowed itself to be deterred from the due administration of
international justice by any "logical corollary" of its findings, to use the phrase that the Court used in
the Frontier Dispute (Burkina Faso/Republic of Mali) case (I.C.J. Reports 1986, p. 554 at
para. 578). Similarly, the fact that a finding as between the Parties would be "tantamount" to a
finding in respect of the legal position of a third party, did not deter the Court in the Land, Island
and Maritime Frontier Dispute (El Salvador/Honduras case (I.C.J. Reports 1990, p. 92 at
para. 122). The same position applies here.
The "Substance" of the Dispute
55. Fifthly, and finally, Mr. President, Australia argued that the substance of the present claim
was that it was a claim brought against the United Kingdom and New Zealand. To a great extent
this was another way of putting the arguments that I have already dealt with, and in particular the
argument that the inseparable character of Australian liability prevents a determination. To that
extent, the arguments that I have set out above are a sufficient response on this point. But to the
extent that it was an independent argument, some brief remarks are in order.
56. It is a little ironic that, while insisting that the Court should penetrate the substance of the
Nauruan claim to discern a legal claim against New Zealand and the United Kingdom, Counsel for
Australia was much less willing to look at the substance of the relationship between the three
Governments as to the administration of Nauru. But however that may be, there is no reason to
treat this claim as anything other than what it is, a claim against Australia relating to the acts and
omissions of its own officials and authorities in a matter of major concern to the Applicant State.
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International law does not require a State to pursue remedies against all possible or potential
respondents at the same time: it leaves, within very broad limits, a choice of means and of remedies.
As the Court observed in the case concerning United States Diplomatic and Consular Staff in
Tehran, "no provision of the Statute or Rules contemplates that the Court should decline to take
cognizance of one aspect of a dispute merely because that dispute has other aspects, however
important" (I.C.J. Reports 1980, p. 19, para. 36). Nauru would say, in this case, however
unimportant. And it cited that principle, and applied it to the situation of claims brought against one
State arising from a multi-party dispute, in the Border and Transborder Armed Actions
(Nicaragua v. Honduras) Jurisdiction and Admissibility, (I.C.J. Reports 1988, p. 69 at para. 91).
In short, there is no substance to the argument that the substance of the present proceedings
differs from its form.
The Consequences for Admissibility of the Termination of
the Trusteeship and the Dissolution of the British
Phosphate Commissioners
57. Mr. President, that concludes the Nauruan account of the Australian counter-arguments
on the principle of consent and related issues. I would like to make just two further points, both of
which strongly support the conclusion that the Court ought to proceed to hear this case.
58. The first of these relates to the fact that this claim is brought now, after the termination of
the Trusteeship and the dissolution of the British Phosphate Commissioners. Whatever the position
might have been during the currency of the Trusteeship, there is no reason to think that after its
termination a requirement of joint and inseparable proceedings for liability should be imposed. That
would be to require a joint action after the joint conduct which was the subject of the action - I have
already said, of course, that it was not joint conduct in any relevant sense - had ceased. As the cases
cited in Nauru's Written Statement demonstrate, even where national law rules of joinder or of joint
liability apply during a relationship such as a partnership, they do not apply after its termination
(Written Statement, para. 272).
59. And this point was effectively acknowledged by the three Governments themselves in the
1987 Agreement (Nauru Memorial, Vol. 4, Ann. 31). Article 3 of that Agreement envisages that
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claims will be brought and, by inference, will succeed against one of the three Governments "arising
out of the actions of the Commissioners or former Commissioners as such". If, as envisaged by the
1987 Agreement, a system of joint and several liability - to use common-law terminology - applies to
the acts of the Commissioners after the dissolution of the partnership, this must be true, a fortiori, in
the case of a claim against Australia in respect of its administration of Nauru under the Trusteeship
Agreement.
Nauru's Claim and the Due Administration of International Justice
60. Finally, Mr. President, it is submitted that the Court could not play its proper role in the
administration of international justice if a State could immunize itself from jurisdiction by
associating itself with others in the commission of some wrong. The Australian argument would
make States effectively immune from international proceedings against them in respect of their own
acts, provided those acts were performed jointly with or on behalf of another State or States. In fact,
the Court, confronted with such cases, has always dealt with the issue before it on its merits, except,
as I have said, where the rights of another State were the very subject-matter of the dispute (as in the
Monetary Gold case).
61. This is borne out, for example, by the Corfu Channel case (I.C.J. Reports 1949, p. 1).
There, the Court held that Albania was liable for the damage done to United Kingdom ships by
mines laid in Albanian territory, although the mines were not laid by Albania itself. After noting that
Yugoslavia - which was, shall I say, "strongly suspected" of having laid the mines - was not a party
to the case, the Court commented that the only question it had to decide was whether Albania was
liable under international law for the damage (id., p 17). It held that Albania was liable, on the basis
that it had means of knowing about the presence of the mines and went on to assess the full amount
of the British loss against Albania (id., p 23; and see Corfu Channel case (Assessment of
Compensation) I.C.J. Reports 1949, p. 244). That was a decision against a State which was not the
primary wrongdoer, in the sense of the State whose acts were the immediate cause of the damage.
Joinder to the Merits
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62. Mr. President, the Austalian argument canvassed a wide range of issues arising from the
so-called "joint administration" of Nauru and the joint liability that was said to arise from this. I
have accordingly dealt with all of these issues, but this is without prejudice to the question whether
any of them should be joined to the merits of the claim. I refer to what the Nauruan Agent has
already said on that matter.
Mr. President, Members of the Court, that concludes my submissions on this point, and the
Nauruan argument. Thank you for your patience and consideration.
The PRESIDENT: Thank you very much, Professor Crawford. That completes the
presentation of the Nauruan case at this stage of the proceedings.
I think the Agents are aware that two Judges wish to ask questions and we will proceed to that
now. I shall ask each one of them to put his questions orally, but a written version of the questions
will be immediately available to the Agents. The questions may be answered either in the second
round of pleadings, on Thursday and Friday, or, if the Agents so wish, they may be answered in
writing later on within, shall we say, a reasonable time after the end of the oral proceedings.
Judge Schwebel.
Judge SCHWEBEL: Thank you, Mr. President. I have questions for Nauru and also
questions for Australia.
First, for Nauru: Evidence has been introduced indicating that Nauru has maintained and
maintains claims against the United Kingdom and against New Zealand based on the fact that
phosphate lands worked out before Nauru's independence have not been rehabilitated (see, for
example, Nauru's Memorial, Vol. 3, p. 356, para. 8: "each of the three Partner Governments should
bear this cost [of rehabilitation] in proportion to the benefits they have already derived from the use
of cheap phosphate at well below the world price"). The Court's attention has particularly been
drawn to Notes dated 20 May 1989, dispatched by the Republic of Nauru to the representatives of
the Governments of New Zealand and the United Kingdom, in which Nauru refers to its Application
in this case against Australia and states that it is without prejudice to Nauru's position that
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New Zealand, and the United Kingdom, in their capacity as States Party to the Mandate and the
Trusteeship, were also responsible for the breaches of those Agreements and of general international
law (ibid., Vol. 4, Ann. 80, Nos. 29 and 30).
And we have also heard, this morning, of Nauru's claims respecting the overseas assets of the
British Phosphate Commissioners whose tripartite character has been described. We have heard the
views of Counsel for Australia as to why Nauru's Application is directed against Australia alone and
was not also brought against New Zealand and the United Kingdom. This morning we have just
heard why, in Nauru's view, it need not have brought suit against New Zealand and the United
Kingdom. What is the position of Nauru as to why it did not at the same time bring suit against New
Zealand? What is the position of Nauru as to why it did not at the same time bring suit against the
United Kingdom?
Secondly, for Australia: Australia's recognition of the Court's compulsory jurisdiction under
Article 36, paragraph 2, of the Statute provides that it "does not apply to any dispute in regard to
which the Parties have agreed or shall agree to have recourse to some other method of peaceful
settlement". This reservation gives rise to these questions:
- Does this reservation mean simply that the Parties must have agreed to have recourse to some
other method of peaceful settlement, whether in the event that recourse is employed or, if
employed, is successful or not in resolving their dispute, or does it mean that that other method
of peaceful settlement must have been successful - in the eyes of both Parties - in resolving
their dispute?
- May the agreement of the Parties to have recourse to some other method of peaceful
settlement be not only express but tacit and evidenced by their course of conduct? Is
agreement by course of conduct the theory which Australia advances in the current case? If
so, are there precedents in addition to that invoked by Australia, namely, elements of the
Cameroons case, which support this construction of such a reservation?
Thank you, Mr. President.
The PRESIDENT: Thank you, Judge Schwebel. Now Judge Shahabuddeen.
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Judge SHAHABUDDEEN: Thank you, Mr. President. I have two questions. The first is for
both Parties. The second is for Australia.
The first question is this. The reservation in Australia's optional clause declaration states
that -
"this declaration 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".
My question is this. Do the agreements for peaceful settlement, contemplated by this reservation,
include agreements made between Australia and entities which were not States at the time when the
agreements were made?
Now the second question, which is for Australia.
On Monday of last week, Professor Jiménez de Aréchaga, for Australia, told the Court the
following:
Let us be clear on Australia's position, as it was formally described by its representatives. It
was not one of declining
"responsibility for meeting the cost of rehabilitation" but on the contrary to assert that it had met that
responsibility
"by ensuring that the payments to the Nauruans would be sufficiently generous to meet all
expenditure necessary for ... rehabilitation, if they [the Nauruans] decided upon it (Preliminary
Objections of Australia, Vol. II, Ann. 7, p. 34; see also Ann. 28, p. 242, para. 401)"
(CR 91/15, p. 66).
Now my question is this. What was the legal basis of the responsibility for meeting the cost of
rehabilitation, which Australia said it did not decline but on the contrary had met in the manner
described?
Thank you.
The PRESIDENT: Thank you Judge Shahabuddeen. So that ends the proceedings this
morning I think and the Court will sit again on Thursday morning at 10 o'clock to begin the second
round of pleadings.
Thank you very much.
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The Court rose at 12.55 p.m.