Certain Phosphate Lands in Nauru (Nauru v. Australia) - Judgment on Preliminary Objections

INTERNATIONALCOURTOF JUSTICE

Palace2517KJ TheHagueT.el(07 03924441)C.able:ntercout,heHague.

unofficial

i"lmberof Court+ Staff26-6-92 forimmediaterelease
P.O.Perce Palace29-6-92(16.45)
No. 92/18
26 June1992

Cert inPhos~hateLands in3 uni
m

&&ment on PreliminamOblectiona

The following information cownunicateto the Pressby the
Registryof the InternationaCourtof Justice:

Today, 26June 1992, thCourtdelivereditsJudgmenton the
PreliminaryObjectionsfiledby Australiain thecase concerning Certain
Phos~hateLands inNauru(Nauruv. $$-a. In its Judgmentit
rejectsAustralia'sobjectionsconcerningthe circumstancein whichthe
dispute relating to the rehabilita ofithephosphate land sorked-out
priorto 1July 1967 arose between Nau and Australia; it also rejects
the objectionbasedon the fact thaNew Zealandand theUnited Kingdom
are not partietso the proceedingsand lastly,it upholdsAustralia's
objectionbasedon Nauru'sclaim concernin ghe overseasassetsof the
British PhosphatCommissionerbseinga new one. The Courtthusfinds,
by 9 votesto 4, thatLt has jurisdictioto entertain the Application
and thatthe Applicationis admissible;it also finds, unanimously, that
the Nauruanclaim concerninthe overseasassetsof the British Phosphate
Commissionersis inadmissible.

The Courtwas composedas follows:PresidentSir RobertJennings;
Vice-PresidentOda; JudgesLachs, Ago,Schwebel,Bedjaoui,Ni, Evensen,
Tarassov, Guillaume, Shahabuddeen, AgM uilarley, Ranjeva;
RegistrarValencia-Ospina.

The completetextof theoperative paragrapof theJudgment is as
follows:

'*THECOURT,

(1) (a)relects,unanimously,the preliminarobjection
basedon the reservationade by Australiain its declaration
of acceptancof thecompulsoryjurisdictionof the Court; (b) rejects,by twelve votes to one, the preliminary
objectionbased on the allegedwaiverby Nauru,priorto
accession to independenc of,al1 claimsconcerningthe
rehabilitation of the phosphate lands workoedt prior to
1 July 1967;

IN FAVOUR: President Sir RobertJennings; JudnesLachs,
Ago, Schwebel, Bedjaoui Ni, Evensen,Tarassov, Guillaume,
Shahabuddeen, Aguilar Mawdsley, Ranjeva;

AGAINST: Vice-Preside Oda;

(c) re-lectsb,y twelve votes tone, the preliminary
objectionbasedon the termination of the trusteeship over
Nauru bythe United Nations;

IN FAVOUR: PresidentSir RobertJennings; JudnesLachs,
Ago, Schwebel, Bedjaoui Ni, Evensen, Tarassov, Guillaume,
Shahabuddeen, AguilarMawdsley, Ranjeva;

AGAINST: Vice-Preside Oda;

(d) relects, bytwelve votes to one,the preliminary
objectionbasedon the effectof the passageof time on the
admissibility oN fauru'sApplication;

IN FAVOUR: PresidentSir RobertJennings; JudnesLachs,
Ago, Schwebel, Bedjaoui Ni, Evensen, Tarassov, Guillaume,
Shahabuddeen, AguilarMawdsley, Ranjeva;

AGAINST: Vice-Preside Oda;

(e) relects,by twelvevotes to one, the preliminary
objectionbasedon Nauru'sallegedlackof good faith;

IN FAVOUR: President Sir RobertJennings; JudnesLachs,
Ago, Schwebel, Bedjaoui Ni, Evensen, Tarassov, Guillaume,
Shahabuddeen, Aguilar Mawdsley, Ranjeva;

AGAINST: Vice-Preside Oda;

(f) reilects,y nine votesto four,the preliminary
objectionbasedon the fact thaN tew Zealand andthe United
Kingdomare not parties to thp eroceedings;

IN FAVOUR: JudnesLachs, BedjaouiN ,i, Evensen, Tarassov,
Guillaume, Shahabuddee n,uilarMawdsley, Ranjeva;

AGAINST: PresidentSir RobertJennings;
Vice-PresidentOda; JudnesAgo, Schwebel;

(g) u~holds,unanimously,the preliminaryobjectionbased
on the claim concernin the overseasassetsof the British
Phosphate Commissionersbeinga new one. (2) finds,by nine votesto four,that,on the basisof
Article36, paragraph2, of the Statuteof theCourt, it has
jurisdictionto entertainthe Applicationfiled bythe Republic
of Nauruon 19 May 1989and that thesaidApplication is
admissible;

IN FAVOUR: JudnesLachs,Bedjaoui,Ni, Evensen,Tarassov,
Guillaume, Shahabuddee AguilarMawdsley, Ranjeva;

AGAINST: presidentSir RobertJennings;
Vice-PresidentOda; JudaesAgo, Schwebel.

(3) finda,unanimously,thatthe claimconcerning the
overseasassetsof the British Phosphate Commissioners, made by
Nauru initsMemorialof 20 April1990,is inadmissible."

JudgeShahabuddeen appended aseparateopinionto the Judgment;
PresidentSir RobertJennings,Vice-President Oda andJudgesAgo and
Schwebel appendeddissentingopinions.

A briefsummaryof theseopinions may be foundin the Annexto this
PressCommuniqué.

The printedtextof the Judgment andof the opinions appendetdo it
will becomeavailablein due course (orders an enquiries should be
addressedto the Distributioannd SalesSection,Officeof the
UnitedRations,1211Geneva10; the SalesSection,UnitedNations,
New York,R.Y. 10017; oany appropriatelyspecializedbookshop.)

A sunrmaryf the Judgmentis givenbelow. It has been prepared by
the Registryfor the use of the Pressand in no way involvesthe
responsibilitoyf the Court. It cannotbe quotedagainstthe textof the
Judgment,of which it doesnot constitutaen interpretation. SüMURY OF THEJDD-

1. Historyof the Case (paras.1-6)

In its Judgment, theCourt recallsthat on 19 May 1989Nauru filed
in the Registry of theCourt an Applicationinstitutingproceedings

against Australia in respectof a "dispute ...over the rehabilitationof
certainphosphate lands [i Nauru]workedout before Nauruan
independence*'. It notes that to foundthe jurisdictionof the Courtthe
Applicationrelieson the declarations made b the two States accepting
the jurisdictionof the Court, as provided forin Article36,
paragraph2, of the Statuteof the Court.

The Court then recites thehistoryof the case. It recallsthat
time-limitsfor the filingof the Memorial of Nauru and the
Counter-Memorialof Australiawere fixedby an Order of 18 July 1989.
The Memorial wasfiledon 20 April 1990,within theprescribed
time-limit. On 16 January1991,within thetime-limitfixed forthe
filingof the Counter-Memorial, the Governmentof Australiafiled
Preliminary Objections submitti that the Applicationwas inadmissible .Ir
and that theCourt lackedjurisdiction to hear the claimsmade therein.
Accordingly, by anOrder dated 8 February1991,the Court, recordint ghat
by virtueof the provisionsof Article79, paragraph3, of the Rulesof
Court, the proceedingson the meritswere suspended, fixea d time-limit
for the presentationby the Governmentof Nauru of a WrittenStatementof
its Observationsand Submissionson the Preliminary Objections. That
Statementwas filedon 17 July 1991,within the prescribed time-limit,
and the case becameready forhearing inrespectof the Preliminary

Objections.

The Court then sets out the followinSubmissionspresentedby Nauru
in the Memorial:

"On the basis of the evidence anlegalargument presented
in thisMemorial,the Republicof Nauru

Jteaueststhe Court to adjudneand declare

that the RespondentState bearsresponsibility for
breachesof the following legalobligations:

"First:the obligationsset forthin Article76 of the
United NationsCharter andArticles3 and5 of the Trusteeship
Agreement forNauru of 1 November1947.

Second: the internationalstandardsgenerally recognized
as applicablein the implementation of the princip ofe
self-determination.

Third: the obligation to respectthe rightof the Nauruan
people topermanentsovereignty over theirnaturalwealthand
resources.

Fourth: the obligationof generalinternational law not
to exercise powersof administration insuch a way as to
producea denialof justicelato sensu. Fifth: the obligatioonf general internationlalw notto
exercisepowersof administration insucha way as to
constitutean abuseof rights.

Sixth: the principle ofgeneral international l that a
State whichis responsible fotrhe administrationf territory
is underan obligationnot to bring aboutchangesin the
conditionof the territorwyhich willcause irreparabledamage
to, or substantiallyrejudice, the existingor contingent
legal interestof anotherStatein respectof that territory.

peaueststhe Courtto addudneand declarefurther

that theRepublic ofNauruhas a legal entitlementto the
Australianallocationof the overseasassetsof the British
PhosphateCornmissionewrsichwere marshallea dnd disposedof
in accordancewith the trilateraAlgreement concluded on
9 February1987.

Reaueststhe Courtto adludneand declare

thatthe Respondent Stat is undera duty to make
appropriate reparationri espectof the loss caused ttohe
Republicof Nauruas a resultof the breachesof its legal
obligations detaileaboveand itsfailureto recognizethe
interestof Nauruin the overseasassetsof the British
PhosphateCommissioners."

It further eete outthe submissionpresented bAyustraliain its
Preliminary Objections a bydNauruin the WrittenStatement ofits
Observationsand Submissionson the Preliminary Objectionas,well as
the final submissionpsresented byeachof the Partiesat thehearings,
the latterof whichare as follows:

On behalfof Australia:

"On the basisof the factsand law set out in its
Preliminary Objections a its oralpleadings, and fa or1 or
any ofthe groundaand reasonsset out therein,the Government
of Australia requests t heurtto adjudge anddeclarethatthe
claimsby NauruagainstAustralia seo tut in theirApplication
and Memorialare inadmissible and th ate Courtlacks
jurisdictionto hear theclaims."

On behalfof Nauru,

"In consideration of iw tsittenand oral pleadingtshe
Governmentof theRepublicof Nauru requests tC heurt:

To rejectthe preliminaryobjections raised by Australia,
and

To ad-iudnaend declare:

(a) that the Cour tas jurisdictionin respect othe
claimspresentedin the Memorialof Nauru, and that the claimsare admissible.

In the alternative,the Governmentof the Republic of

Nauru requests theCourtto declarethatsome or al1 of the
Australianpreliminary objectionsdo not possess,in the
circumstancesof the case, an exclusivelypreliminary
character, and in consequenceto joinsome or al1 of these
objections to th merits."

II.ObjectionsConcerningthe Circirmatance in which
the Dispute Arose(paras.8-38)

1. The Courtbeginsby considerint ghe questionof its
jurisdiction. Nauru bases jurisdictioon the declarationwshereby
Australiaand Nauruhave acceptedthe jurisdictioo nf the Courtunder
Article 36, paragraph 2,of the Statute. The declaration ofAustralia
specifiesthat it "doesnot applyto any disputein regardto whichthe
parties thereth oave agreedor shallagreeto haverecourse to somo ether
methodof peaceful settlement".

Australia contendsthatas a resultof the latter reservatio the
Courtlacks jurisdictiot no dealwith Nauru'sApplication. It recalls
thatNauru wasplaced underthe Trusteeship syste providedfor in
ChapterXII of the United NationsCharterby a Trusteeship Agreement
approvedby theGeneralAssemblyon 1 November1947and arguesthat any
disputewhich arosein the courseof the trusteeship between "the
Administering Authorityand the indigenousinhabitants"should be
regardedas havingbeen settledby the very factof the termination of
the trusteeship, provid ehat thatterminationwas unconditional.

The effectof the Agreement relatin to the Nauru IslanPdhosphate
Industry, conclude on 14 November1967between the NauruLocal
GoventnentCouncil,on the onehand, and Australia,New Zealand antdhe
United Kingdom,on the other,was, in Australia'ssubmission,thatNauru
waived its claimsto rehabilitatioo nf the phosphatelands.Australia
maintains, moreover, th ont19 December 1967the United Nations
General Assemblyterminatedthe trusteeship withoutmakingany

reservation relatin to the administratioonf theterritory. In those
circumstances,Australiacontendsthat,with respectto the dispute w
presentedin Nauru'sApplication, Australia andNauru hadagreed"tohave
recourse to some othermethodof peacefulsettlement" withinthemeaning
of the reservation i Australia'sdeclaration,and thatconsequently the
Courtlacksjurisdiction to dealwith thatdispute.

The Court considers thdatclarations madepursuantto Article36,
paragraph2, of theStatuteof the Courtcan only relate to disputes
betweenStates. The declaration of Australiaonly covers thattypeof
dispute; it is made expressly"in relationto any otherStateaccepting
the same obligation...". In thesecircumstances,the questionthat
arisesin this case is whether Australia anthe Republicof Naurudid or
did not, after 31January1968,when Nauru acceded to independence,
concludean agreementwhereby the two States undertook to set ttlier
dispute relating torehabilitatioonf the phosphatelandsby resortingto
an agreedprocedure other than recourseto the Court. No such agreement
has been pleadedor shownto exist. That question has thereforeto be
answeredin the negative. The Court thus considersthat the objection

raised byAustraliaon the basis of the above-mentionerdeservatiomust
be rejected. 2. Australia'ssecondobjectionis that the Nauruanauthorities,
even before acceding to independen waeivedal1 claims relating to
rehabilitation of the phosphatelands. This objection contains
two branches. In the firstplace,the waiver,it is said,was the
implicitbut necessarytesultof theabove-mentioneA dgreementof
14 November1967. It is also said to haveresulted fromthe statements
made in the United Nationsin the auturnof 1967by the NauruanHead
Chief onthe occasion of the terminato ionthe Trusteeship. In the view
of Auetralia, Nauru may notgo back on that two-foldwaiver andits claim
should accordingl be rejectedas inadmissible.

Havingtakenintoconsideration thn eegotiations whiched to the
Agreementof 14 November1967, the Agreement itself ,nd the discussions

at the UnitedNations,the Courtconcludesthat the Nauruanlocal
authorities did not, befoi rnedependence,aive theirclaim relating to
rehabilitation of the phosphatelands workedout prior to1 July 1967.
The Court finds therefortehat the second objectiornaised byAustralia
must be rejected.

3. Australia'sthirdobjectionis thatNauru'sclaimis

"inadmissibleon the groundthat termination of the Trusteeship
by the United Nations precludes allegato ionbreachesof the
Trusteeship Agreement fr now beingexaminedby theCourt".

The Courtnotes that,by resolution 2347 (XXII)of 19 December1967,
the GeneralAssemblyof'the United Nationr sesolved

"in agreementwith the Administering Authority, tt hat
TrusteeshipAgreementfor the Territory oN fauru ...shall
ceaseto be in forceupon the accession of Nauru to
independenceon 31.January1968".

The Courtobservesthat sucha resolution had "definitivelegal effect"
(NorthernCameroons,Judgment,I.C.J.Reports 1963,p. 32), and that
consequently, the TrusteeshipAgreementwas "terminatedNon that date and

"is no longerin force"(ibid.,p. 37). It then examinesthe
particular circumstances in wht ichTrusteeship foNrauruwas
terminated. ctoncludesthatthe factsshow that,when, on the
recommendation of the TrusteesC hipncil,the GeneralAsaembly
terminated the trusteeship oveNrauruin agreementwith the Administering
Authority,everyonewae awareof subsisting difference of opinion
between the NauruLocalGovernmentCouncil and the Administering
Authoritywith regard to rehabilitatioonf the phosphatelandsworkedout
before1 July 1967. Accordingly, though General Assembly resolut ion7
(XXII)did not expressïyreserve any right which Naurumight havehad in
that regard,the Court cannotview thatresolution as givinga discharge
to the Administering Authori wiyth respectto such rights. In the
opinionof the Court,the rights Naurumighthave had in connection with
rehabilitationof the landsremainedunaffected. The Court therefore
findsthat, regard bein had to theparticularcircumstances of the case,
Australia'sthirdobjectionmust be rejected.

4. Australia'sfourthobjection stresses that Nau achieved
independenceon 31January 1968 and that,as regards rehabilitatio onf
the lands,it was not ,untilDecember 1988that that Stateformally "raisedwith Australiaand the otherformerAdministering Poweri sts
positionw. Australia thereforecontendsthat Nauru'sclaim is
inadmissibleon the ground that it has not beensubmittedwithina
reasonabletime.

The Court recognizes that,even in the absence ofany applicable
treatyprovision, delay on the part of a claimantState may renderan
applicationinadmissible.It notes,however, that internationallaw does
not lay down any specific time-limiin that regard. It is thereforefor
the Court to determinein the lightof the circumstances oefach case
whetherthe passageof time rendersan application inadmissibleT .he

Courtthen takesnote of the fact that Nauruwas officiallyinformed,at
the latestby letterof 4 February1969,of the positionof Australiaon
the subject ofrehabilitationof the phosphate landsworked out before
1 July 1967. Nauru took issuewith that position inwritingonly on
6October1983. In the meantime,however,as statedby Nauru and not
contradictedby Australia,the question hadon two occasionsbeen raised
by the President of Nauru with the competentAustralianauthorities. The
Court considersthat,given the nature of relationsbetweenAustraliaand
Nauru, as well as the steps thus taken,Nauru'sApplicationwas not
renderedinadmissible by passageof time, but thai tt will be for the *
Court, in due time,to ensurethatNauru'sdelay in seisingit will inno
way cause prejudice to Australiawith regardto both the establishmentof
the facts and the determination tohfe contentof theapplicablelaw.

5. The Court furtherconsidersthatAustralia'sfifthobjectionto
the effect that"Nauruhas failedto act consistently and in good faith
in relationto rehabilitation"and that therefore"the Court in exercise
of its discretion, andin order to upholdjudicial proprietyshould ...
decline tohear the Nauruanclaims"must also be rejected,as the
Applicationof Nauruhas been properly submitted in the frameworkof the
remediesopen to itand astherehas been no abuseof process.

III. ObjectionBased on the Fact thatAew Zealandand the
United Kingdomare Hot Partiesto the Proceedings(paras.39-57)

6. The Court then considersthe objectionby Australiabased on the
fact that New Zealandand the UnitedKingdomare not parties to the
proceedings. w

In order to assess thevalidityof this objection,the Court first
refers tothe Mandateand Trusteeship régimes an the way in whichthey
appliedto Nauru. Inotes that the threeGovernments mentionei dn the
Trusteeship Agreemenc tonstituted,in thevery termsof that Agreement,
"theAdministering Authority"for Nauru; thatthis Authoritydid not
have an international legaplersonality distinctfrom thoseof the States
thus designated; and that,of thoseStates, Australia playe advery
special role establishe by the TrusteeshipAgreementof 1947,by the
Agreementsof 1919, 1923 and 1965,and by practice.

The Court observesthat Australia'spreliminaryobjectionin this
respectappears to containtwo branches,the firstof which can be dealt
with briefly. It is firstcontendedby Australiathat, in so far as
Nauru'sclaimsare based on the conductof Australiaas one of thethree
States makingup the Administering Authorit under the Trusteeship
Agreement,the natureof the responsibility in that respectis such thata claim mayonlybe brought agains the threeStatesjointly, andnot
againstone of them individually. The Courtdoesnot considerthatany
reasonhas been shownwhy a claimbrought agains tnly oneof the three
Statesshould bedeclared inadmissible-8 merelybecause
thatclaimraisesquestions of the administratioonf theterritory,which

was sharedwith twootherStates. It cannot be deniedthatAustralia had
obligationsundertheTrusteeship Agreement,in its capacity aone of
the threeStatesformingtheAdministering Authorit and thereis
nothingin the characteo rf that Agreementhichdebarsthe Court from
consideringa claimof a breachof thoseobligationsby Australia.

Secondly,Australia argues that,incetogether with itself,New
Zealand and the UnitedKingdommade uptheAdministering Authorit any
decisionof the Courtas tothe allegedbreachby Australiaof its
obligationsundertheTrusteeship Agreementwould necessariliynvolvea
findingas to the dischargeby thosetwo other State of their
obligationsin that respectw,hichwouldbe contrary to thf eundamental
principlethatthe jurisdiction of the Courtderivessolelyfromthe
consentof States. The question thaatrises is accordinglwhether,
given therégime thusdescribed, the Courtmay, withoutthe consentof
New Zealand and the UnitKeidngdom,dealwith an Applicatiobrought
againstAustraliaalone.

The Courtthenexaminesits own case-lawon questions ofthiskind

(casesconcerning thePionetarGvold Removed froRome in 1942
(PreliminarvOuestionl,Militarvand ParamilitamActivitiesin and
against Nicaranu (Nicaraguav. UnitedStatesof Americaland the Land,
&l)a d a It refers
to the fact thatnationalcourts, fortheirpart,havemore often than
not thenecessarypowetto orderpro~riomotu the joindeo rf third
partieswho may be affected bythe decisionto be rendered; and that
thatsolution makes it possibleto settlea disputein the presence of
al1 the parties concerned It goeson to considerthaton the
internationapllane, however ,he Courthas no suchpower. Its
jurisdictiondependson the consentof Statesand,consequently, the
Courtmay not compel a Stateto appear beforiet, evenby way of
intervention. A State, however ,hichis not a partyto a case is free
to applyfor permissionto intervenein accordancewith Article62 of the
Statute. But the absenceof sucha request forintervention i no way
precludesthe Court from adjudicati upon the claims submittteo it,
provided thatthe legal interest sf the thirdStatewhichmay possibly

be affecteddo not formthevery subject-matteo rf the decisionthatis
appliedfor. Wherethe Courtis so entitledto act, the interests of the
thirdStatewhich is not a partyto the caseare protected bArticle59
of the Statuteof the Court,whichprovidesthat "Thedecisionof the
Courthas no bindingforceexceptbetweenthe partiesand in respectof
thatparticular case."

The Courtthenfindsthatin thepresentcase,the interesta of New
Zealand andtheUnited Kingdomdo not constitute the ves rybject-matter
of the judgmentto be renderedon themeritsof Nauru'sApplication and
that,althougha findi.nbgy the Courtregardingthe existencoer the
contentof the responsibility attribut tedAustraliaby Nauru might well
have implicationsfor the legal situatioof the two other States
concerned,no findingin respectof thatlegalsituation will be needed
as a basisfor the Court'sdecisionon Nauru'sclaims againsAtustralia.
Accordingly, th eourtcannotdecline to exerciseits jurisdictionand
the objectiopnut forwardin thisrespectby Australia musbte rejected. IV. Objectionsto the Claimby RauruConcerningthe Overseas
Assetaof the British PhosphatCeommissioners (paras.58-71)

7. Finally,the Courtexaminesthe objections addresse by Australia
to the claimby Nauru concerning the overseasassetsof the British
PhosphateCommissioners.At the endof itsMemorialon the merits,Nauru
requeststhe Courtto adjudgeand declarethat

"theRepublicof Nauruhas a legalentitlement to the
Australian allocatio of the overseasassetsof theBritish
PhosphateCommissioners whic were marshalled and disposo ed
in accordancewith the trilateraAlgreement conclude on
9 February1987''

and that

"the Respondent Stateis undera duty to make appropriate
reparationin respectof the 108s causedto the Republic of
Nauruas a resultof ... its failure to recognisthe interest
of Nauru in the overseasassetsof the BritishPhosphate
CommissionersW.

The BritishPhosphateCommissioners were established by Article of
the Agreementof 2 July 1919 between the UniteKingdom,Australia and
New Zealand,one Commissioner to beappointed byeachof the Partner

Governments. TheseCommissioners manage an enterprise entrustwedth
the exploitationof the phosphatedepositson the island of Nauru.

Australia,Interaliq,maintainsthatNauru'sclaim concernint ghe
overseas assetsof the British PhosphatCeommissionersis inadmissibleon
the groundthat it is a new claimwhichappeared for the firsttimein
the Nauruan Memorial; thatNauruhas not provedthe existence of any
real linkbetweenthat claim,on the one hand,and its claims relatint go
the allegedfailureto observe the TrusteeshA ipreement andto the
rehabilitationof the phosphatelands,on the other; and that the claim
in question seeksto transform the disputebroughtbefore the Courtinto
a disputethat would be ofa differentnature.

The Courtconcludesthat the Nauruan claim relati ngthe overseas
aseetsof the British Phosphate Commissionersis inadmissibleinasmuchas V
it constitutes,both informand in substance, a new claim, and the
subjectof the dispute originally submitted toCo thretwould be
transformed ifit entertained thatclaim. It refers inthis connection

to Article40, paragraph1, of the Statuteof the Courtwhichprovides
that the "subjectof the dispute" mustbe indicatedin the Application;
and to Article38, paragraph2, of the Rulesof Courtwhich requires"the
precisenatureof the claim"to be specifiedin the Application.

The Courtthereforefindsthat the preliminary objection raisebdy
Australiaon thispoint is well founded,and thatit is not necessaryfor
the Court to considerhere the other objectionof Australiawith regard
to the submissionsof Nauru concerning to heerseasassetsof the British
PhosphateCommissioners. Annexto PressCommuniaué No. 92/18

SummarYof the ooinionsappendedto the Jud-ent of the Court

Separateopinionof JudaeShahabuddeeq

In his separateopinion,JudgeShahabuddeen gavehis reasonsfor
agreeingwith the decisionof the CourtrejectingAustralia's preliminary
objection thatNauru'sApplication was inadmissiblin the absenceof
New Zealandand theUnited Kingdomas parties. In his opinion,the
obligationsof thethree GovernmentsundertheTrusteeship Agreement were
jointand several,with the consequencethatAustraliacould besued
alone. However,he considered that, evenif theobligations were joint,
this,in law, didnot preventAustraliafrombeingsuedalone. Also, in
his view,whilea possible judgmen on themeritsagainstAustraliamight
be basedon a courseof reasoning which wascapableof extensionto
New Zealandand theUnited Kingdom, thatreasoning woulodperateonly at
the levelof precedential influeni ce anycase thatmightbe separately
brought byNauruagainstthosetwo States; it wouldnot by itselfamount

to ajudicialdetermination mad in this caseof theresponsibilitie sf
thosetwo Statesto Nauru. Consequentlyt,herewas no questionof the
Courtexerciaing jurisdiction itnhiscase against non-parS tyates.

PresidentJenningsdissented fromthe Court'sdecisionto reject
thatAustralian objectio to jurisdictionw,hich is basedon the fact
thatNew Zealandand theUnited Kingdomare not parties t the
proceedings.The MandateforNauru wasin 1920conferred upon "His
BritannicMajesty"; theTrusteeship Agreementof 1947 designated

"TheGovernmantsof Australia,New Zealandand the
UnitedKingdom(hereinafter called'theAdminietering
Authority')as the joint authoriwtyich willexercise the
administratioonf theTerritory";

New Zealandand theUnitedKingdomwere twoof the three members of the
British Phosphate Commission;
and theywere both joinptartieswith
Australiato the Canberra Agreemeo nt 1967.

Thus the legalinterestof NewZealandand theUnitedKingdomare so
inextricablbyoundup with thoseof Auatraliain thismatter,that they
"wouldnot only be affecte by a decision, buwtould formthe very
subject-matteorf the decision"(I.C.J.ReD0rtS1954,p. 32); and this
wouldbe a breachof theprinciple of the Court'sconsensualbasisof
jurisdiction.

DiasentInno~inionof Vice-PresidenO tda

In his dissentinopinion, Vice-Preside Onda analyses the
historical developmen consideredby the Courtand demonstrates wh ye
differsfromthe Judgment in the constructiohne placesupon them. Underthe trusteeship thpeossibility of rehabilitatinthe worked-out lands
was thoroughly discusse in the relevantorgansof the UnitedNations,
the only fora inwhich a claim couldhave been put forward onbehalf of

the Nauruanpeople. Nevertheless, the Canberra Agreement to whichl1
parties subscribed o the eve of independencmade nomentionof the
issue,neitherwas it thendealtwith separately.Consideringthat,at
that criticalpoint,Nauru failedto reservea claimto
land-rehabilitation the silenceof the Agreementcan be construedas
implyinga waiver. Furthermore,in the debateson Nauru withinthe
TrusteeshipCouncil, the rehabilitation questiwons repeatedlyaired,
but the Council eventually ton ok positionon the matter in recomrnending
the terminatioonf thetrusteeship. Neitherdid the GeneralAssemblyin
adopting that recommendatio even ifone or two allusionsto the subject
were madefrom the floor. Consequently the responsibili ofythe
~drninisterinA~uthority,as well as the rightsand duties ofthe
Administrator,were completelyterminated by resolution 234o7f
19 December1967, and thatput an end to any claimsarisingfromthe
implementationof the TrusteeshiApgreement. Noch claim, therefore,
was takenoverby the Stateof Nauru.

Even supposinga fresh claimcouldhave beenraisedby independent w
So long
Nauru,none was officiallyasserteduntil1983at the earliest.
a silence made it inappropriatfor the Courtto findthe claim
admissible. Neither had Nauru takenany stepsto rehabilitate lands
worked sinceindependence.In the Vice-Presidente view, this conduct,
combinedwith lackof due diligence, disqualifiN easuru fromalleging
Australian responsibilityrt ehabilitatelandsworked under trusteeship.

In consequence,Vice-PresidentOda considers thatthe Court should
have upheldAustraliaes objectionsbasedon allegedwaiver, the
termination of the trusteeship,he effectof the passageof time, and
lack ofgood faith. The fact that he voted againstrejectingthe
objection basedon the absencefrom the proceeding of New Zealand and
the UnitedKingdomdid not, however, mean thathe necessarilyupheldthat
objection also,sincehe consideredthat it was too closelyboundup with
the meritsto be decidedat the preliminarystage.

Dissenti- o~inionof JudneAno

JudgeAgo has regretfullybeenunableto join thoseof his
colleagueswho voted in favourof the Judgmentof the Courtbecausein
his opinionthere exists an insurmountableontradiction between
two facts: Nauruhas filedan Application againstAustraliaalone,
withoutalso bringing proceedings agai tnheUnited Kingdomand
New Zealand,even thoughfirstthe League of Nation andthen the
United Nationsjointlyentrusted three differe States- the
UnitedKingdom,Australiaand New Zealand -, on a basisof completelegal
equality,with the administration oNfauru.

This beingso, the Courtshouldhave upheld the preliminary
objectionof Australiabasedon the absence from the proceedingosf two
of the threePowersto which the Trusteesho iper Nauru habdeen
entrusted. Havingbrought its actionagainstAustraliaalone,Nauruhas thus
placedthe Courtbeforean insurmountabld eifficulty,that of defining
the possible obligation of Australia withrespectto the rehabilitation

of Nauru'sterritory withoua tt the same timedefiningthoseof the two
other States not partieato theproceedings.But the Court'srulingon
the complaints agains Australia alonewill inevitably affec the legal
situationof the United Kingdomand New Zealand, that is, the rightsand
the obligations ofthesetwo States. Were theCourt to determine the
shareof responsibility falliu ngonAustralia,it would thereby
indirectly establis that the remainderof that responsibilityis to fa11
upon the two otherStates. Even if theCourtwere to decide- on what
would,incidentally, be an extremelyquestionable basis - thatAustralia
was toshoulderin full the responsibilii ty question, thah tolding
would equally inevitablyand just as unacceptablyaffectthe legal
situationof two States that are not partiesto the proceedings. In
either case the exerciseby the Courtof its jurisdictionwouldbe
deprivedof its indispensable consensualbasis.

Dissentiruotpinionof JudneSchwebel

Judge Schwebel, dissenting, maintai that the salientissuewas,
where more than one Stateis chargedwith a joint (or jointand several)
commission of an act wrongfulunder internationallaw, butonly onesuch
State is before theCourt,may theCourtproceedto adjudgethe present
State even thouga h determinationof its liabilitymay or will entai1the
effective determination t ohfe liabilitof an absent State?In
answeringthis question.,privatelaw sources and analogiesare oflittle
use, since,in nationallaw,jurisdiction is compulsorywhereasin this
Court it is consensual.

The principal precedentis theMonetary Gold case. In that case,
a holdingas to the responsibilito yf the absentAlbania wasa temporal
and logical precondition orfenderingjudgmentbetween the parties
present,whereasit is agreedthat,in theinstant case, the
determination of the responsibilitoyf New Zealandor the UnitedKingdom
is not a prerequisitefor the determinatioonf the responsibility of
Australia. The Courtunpersuasively assignsdiapositive force to that
distinction.Whetherdetermination of the responsibilityof the absent

State is antecedent orsimultaneous insot significant. Whratheris
diapositiveis whetherthe determinatioo nf the legal rightsof the
presentpartyeffectively determinesthe legal rightsof the absent party.

The Court'srelianceon its 1984holdingin Military and
ParamilitaryActivitiesin and against Nicaragua is misplacedsincethat
latter holdingwas in errorin thisas in someother respects. In that
case,Nicaraguabrought suit agains the UnitedStatesalone,even though
it claimed thatEl Salvador,Honduras and Costa Ricawere vitally
involvedin its allegeddelicts. For its part, the UnitedStates
maintained thatit was actingin collective self-defencewith thosethree
Statesto counter Nicaraguan subversive interven whiichwas tantamount
to armedattack. In 1,986, on the merits,the Courtheld thatno
responsibility coul be attributedto Nicaragua for anf ylow of arms
across its territory to Salvadoi ranurgents.When thatJudgment is
read togetherwith the Court'sJudgmentin 1984 thatEl Salvador,Honduras and Costa Rica would b erotected byArticle59 of the Statute
against any adverse effec ofsa Judgmenton the meritsagainst the
UnitedStates,it appearsthat its articulate factua holdingof 1986was
the inarticulate factual premise ofts Judgmentof 1984. For, assuming
the factual allegations othe UnitedStatesand El Salvador in 198t 4o
have been correct,it was clear thenand is clear today that Article 59
furnishedno meaningful protectio to thirdStatesso situated. If the
UnitedStates wereto have ceasedto act in supportof El Salvador
pursuantto the Court's1986Judgment,the latter'sGovernment,far from
having its interestsconservedby theforce of Article 59, couldhave
fallenbefore theonslaught of the insurrectiosno significantly
supportedby Nicaragua.

JudgeSchwebel maintainet dhat,despiteNicaragua'sswornand
reiterated denials before t Courtof any materialsupportof the
Salvadoraninsurrection, it latertranspired thar tevelations, and
admissions ofthe Governments otfhe SovietUnionand Nicaragua,
demonstrated the realityand significanceof thatmaterialsupport,and,
hence,the disutilityof Article59. Such precedential statuaas the
Court's1984Judgmentmay be thought to have was furtherprejudicedby
Nicaragua'sacting in 1986 contrat ry its 1984contentionbefore the
Court that its claimswere againstthe United States alone.

In sum, the security interest sf the States inwhose collective
self-defence the UnitedStatesin 1984claimedto be actingwere as close
if notcloserto "thevery subject-matter of the case"as were the
Moreover,the precedentof the
interestsof Albaniain MonetaryGold.
Land, Island and Maritime BoundarDyisputeappearsto cut against the
Court'sconclusionin the currentcase.

It is clearfromthe factsof the instant case thatNauruwas
subjectto thegovernance of a Mandatory andTrustAdminiatering
Authority compose odf Australia,New Zealandand the UnitedKingdom;
that,by the termsof the governing internationl algal instruments,
Australia uniformlyacted "on the jointbehalf"of the threeStates, and
"on behalf"of the AdministerinA guthority,as part of what those
instruments terme" dthejointAuthority". The threeGovernments were
describedand regarded as "PartnerGovernments".Al1 communications
regarding the Mandat and Trusteeshipran not between Australi and the
League,and Australiaand the UnitedNations,but between the tripartite Iiir
Administering Authorit and thoseOrganizations.The phosphates

operations themselve were runby the British Phosphat Commissionerswho
represented the thre Governments.Nauru itself regularly maintai noetd
thatAustraliaalone,but the Administering Authoritt y,e three Partner
Governments,were responsible for restorationof worked-outphosphate
lands. When it brought suit against Austraa liane,it officially
reiterated its identicalclaimsagainstNew Zealand and the United
Kingdom.

Consequently,a Judgment bythe Courtupon the responsibility of
Australia would appear totb antamountto a Judgrnentpon the
responsibilityof New Zealandand the UnitedKingdom,Statesnot before
the Court. For this reason,proceeding agains Australia aloneis
inadmissible.