Summary of the Judgment of 26 June 1992

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

CASE CONCERNIRG CERTAIN PHOSPHATE LANDS IN NAURU

(NALURU V.AUSTRALIA) (PRELIMINARY OBJECTIONS)

Judgment of 26 June 1992

In its Judgment on the preliminary objections filed by (e) rejects, by twelve votes to one, the prelimi~lary
Australia in the case conc:erningCertain PholjphateLands objection based on Nauru's alleged lack of good faith;
in Nauru (Nauru v.Australia), the Court rejected Austra- IN FAVOURP : resident Sir Robert Jennings; Judges
lia's objections concerning the circumstances in which the Lachs, Ago, Schwebel, Bedjaoui, Ni, Evensen,
dispute relating to the rehabilitation of the phosphate landsTarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley,
worked out prior to 1July 1967arose betweernNauru and Ranjeva;
Australia; it also rejected the objection based on the fact AGAINSTV : ice-president Oda;
that New Zealand and the United Kingdom are not parties
to the proceedings; and lastly, it upheld Austi:alia'sobjec- objection based on the fact that New Zealand and they
tion based on Nauru's claimconcerningthe overseas assets United Kingdom are not to the proceedings;
of the British Phosphate Commissioners being a new one.
The Court thus found, by 9 votes to 4, that it hadjurisdic- IN FAVOUR: Judges Lachs, Bedjaoui, Ni, Evensen,
tion to entertainthe Application and thaApplicationwas Tarassov,Guillaume, Shahabuddeen,Aguilar Mawdsley,
admissible; it also found, unanimously, that the Nauruan ~ ~ ~ j ~ ~ ~ ;
claim concerning the overseas assets of the British Phos- AGAINST:President Sir Robert Jennings; Vice-
phare Commissioners was inadmissible. President Oda; Judges Ago, Schwebel;
(g) upholds, unanimously,the preliminary objection
The Court was composed as follows: F'resident Sir based onthe claim concerning the overseasassets of the
Robert Jennings; Vice-president Oda; JudgesLachs, Ago, BritishPhosphatc Commissioners being a new one;
Schwebel, Bedjaoui, Ni, Evensen, Tarassov., Guillaume, (2) finds, by nine votes to four, that, on the basis of
Shahabuddeen* Aguilar Mawdsle~, Ranjeva; Registrar Article 36,paragraph 2, ofthe Statute ofthe Court, ithas
Valancia-Ospina. jurisdiction to entertain the Application filed by the
Republic of Nauru on 19 May 1989 and that the said
* Application is admissible;
* * IN FAVOUR: Judges Lachs, Bedjaoui, Ni, Evensen,
Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley,
The complete text of the operative paragraph of the Ranjeva;
Judgment is as follows:
AGAINST:President Sir Robert Jennings; Vice-
"THECOURT President Oda; Judges Ago,Schwebel;
(1) (a) rejects, unanimously,the preliminary objec- (3) finds, unanimously, that the claim concerning
tion based or. the reservation made by Australia in its the overseas assets of the British Phosphateommis-
declaration of acceptance of the compulsor).jurisdiction sioners, made by Nauru in its Memorial of 20 April
of the Court; 1990,is inadmissible."
(6) rejects, by twelve votes to one, the preliminary *
ol~jectionbased on the alleged waiver by Nzmru,prior to
accession to independence, of all claims concerning the * *
rehabilitation ofthe phosphate lands worked outprior to
1July 1967; Judge Shahabuddeen appended a separate opinion to the
IN FAVOURP : resident Sir Robert Jennings; Judges Judgment; President Sir Robert Jcmlings, Vice-President
Lachs, Ago, Schwebel, Bedjaoui, Ni, Evensen, Oda and Judges Ago and Schwebel appended dissenting
Tarassov, Guillaume, Shahabuddeen,Aguilar Mawdsley, opinions.
Ranjeva;
AGAINSTV : ice-president Oda; *
(c) rejects, by twelve votes to one, the preliminary * *
01)jectionbased on the termination of the trusteeship
over Nauru by the United Nations;
I. History of the case
IN FAVOURP : resident Sir Robert Jennings; Judges (paras. 1-6)
Lachs, Ago, Schwetlel, Bedjaoui, Ni, Evensen,
Tarassov,Guillaume, Shahabuddeen, Aguilar Mawdsley, In its Judgment, the Court recalls that on 19May 1989
Ranjeva; Nauru filed inthe Registry ofthe Court an Applicationn-.
AGAINSTV : ice-President Oda; stituting proceedings against Australiain respect of a-
(d) rejects, by twel\,e votes to one, the preliminarypute ... over the rehabilitation of certain phosphate lands
objection based on the effect of the passage of time on [in Nauru] worked out before Nauruan independencew.It
the admissibility of Nau.ru'sApplication; notes that to found thejurisdiction of the Court the Appli-
IN FAVOUR: president sir ~~b~~ jennings; judges cation relies on the declarations made by the two States
~;~~h~, go, Schwebel, Bedjaoui, Ni, Evensen, accepting the jurisdiction of the Court, as provided for in
Zwssov, Guillaume, Shahabuddeen,Aguilar Mawdsley, Article 36, paragraph 2, of the Statute of the Court.
Ranjeva; The Court then recites the history of the case. It recalls
AGAINSTV : ice-president Oda; that time-limits forthe filing ofthe Memorial of Nauru and

11the Counter-Memorialof Australia were fixed byan Order On behalf of Australia,
of 18July 1989.The Memorialwas filed on20~~ril1990, "On the basisofthe factsandlaw setout inits prelimi-
within the prescribed time-limit.On 16 January 1991, naryobjectionsand itsoralpleadings,and forall or any
within the time-limit fixedfor the filing of the Counter- of tho grounds and reasons set out therein, theGovern-
Memorial, the Governmentof Australia filed preliminary ment of Australia requests the Court to adjudge and
objections submittingthat the Application wasinadmissi- declarethattheclaimsbyNauruagainstAustralia setout
bleandthatthe Courtlackedjurisdictionto hear the claims in their Applicationand Memorialare inadmissibleand
made therein. Accordingly,by an Order dated8 February that tlheCourt lacksjurisdiction to hear the claims."
1991,the Court, recording thatby virtue of the provisions behalf of Nauru,
of Article 79, paragraph3, of the Rulesof Court, the pro-
ceedings on the merits were suspended, fixeda time-limit "In consideration of its written and oral pleadings the
for the presentationbythe GovernmentofNauru of awrit- Government of the Republic of Nauru requests the
ten statementof its observations and submissions on the Court:
preliminary objections. That statemenwt asfiled on 17July Toreject the preliminaryobjectionsraisedby Austra-
1991, within the prescribed time-limit,and the case be- lia, and
came ready for hearingin respectof the preliminaryobjec- Toadjudgeanddeclare:
tions.
(a) that the Courthas jurisdiction in respectof the
The Court then sets out the following submissions pre- claimspresented in the Memorialof Nauru,and
sented by Nauru in the Memorial: (b) that theclaims are admissible.
"On the basis of the evidence and legal argument pre- In the alternative,the Governmentof the Republicof
sented in this Memorial,the Republicof Nauru Nauru requests theCourt to declare that someor all of
Requeststhe Courtto adjudgeand declare the A.ustralianpreliminaryobjectionsdo not possess,in
that the Respondent State bears responsibility for thecircumstancesofthe case,anexclusively preliminary
breachesof the following legal obligations: chara.cter,and in consequence, to join some or all of
First: the obligations set forth in Article 76 of the these objectionsto the merits."
Charter oftheUnitedNations andarticles 3and5 ofthe
Trusteeship AgreementforNauru of 1November 1947. 11. Objectionsconcerningthecircumstancesinwhichthe
Second: the international standards generally recog- dispute arose
nized as applicable inthe implementationof the princi- (paras. 8-38)
ple of self-determination.
1. The Court beginsby considering the questionof its
Thirdthe obligationto respectthe rightoftheNauruan jurisdiction. Nauru bases jurisdiction on the declarations
people to permanent sovereignty over their natural whereby Australia and Nauru have accepted the jurisdic-
wealthand resources. tion ofthe Court under Article 36, paragraph2, ofthe Stat-
Fourth:the ofgenera1internationallawnot ute. Thedeclarationof Australiaspecifiesthat it "does not
to exercisepowers of administrationin such a wayas to apply to any dispute in regardto which the parties thereto
produce a denial ofjustice lato sensu. have agreedor shall agree to have recourseto some other
Fifth:the obligationof general international law not methodof peaceful
to exercisepowersof administrationin such a wayasto
constitute an abuse ofrights. Australia contendsthat as a result of the lattereserva-
sixth: the principle internationallawthat a tion theCourtlacksjurisdictionto deal with Nauru'sAppli-
State which is responsible for the administrationof ter- cation. It recalls that Nauru was placed under the Trustee-
ritory is under an obligationnot to bring about changes ship Systemprovided for in Chapter XI1of the Charterof
in the condition of theterritory which willcauseirrepa- the United Nations by a Trusteeship Agreement approved
rable damage to,or substantiallyprejudice, the existing by the General Assemblyon 1November 1947and argues
or contingent legal interestof another Stateinrespectof that anydispute which arose in the courseofthetrusteeship
that territory. between "the Administering Authority andthe indigenous
Requeststhe Courtto adjudgeanddeclarefurther inhabitants" should be regardedas having been settled by
the very factof the terminationof the trusteeship, provided
that the ~~~~blio~ f N~~~ has a legal entitlementto that that was
the Australian allocationof the overseas assets of the
shalled and disposedof in accordance with the trilateral The effectof the Agreement relatingto the Nauru Island
PhosphateIndustry, concludedon 14November 1967be-
Agreement concluded on9 February 1987. tween the Nauru Local Government Council, on theone
Requeststhe Court to adjudgeanddeclare hand, and Australia, NewZealand and the UnitedKing-
that the Respondent State is under a duty to make dom, on the other,was, in Australia's submission, that
appropriatereparationinrespectofthelosscausedtothe Nauru waived itsclaims to rehabilitationof the phosphate
Republicof Nauru asa result ofthe breachesofits legal lands. Australia maintains, moreover, that on 19December
obligations detailed above and its failure to recognize 1967the UnitedNationsGeneralAssemblyterminatedthe
the interestofNauru inthe overseasassetsofthe British tmsteer;hipwithout makingany reservationrelatingto the
Phosphate Commissioners." administration of the territory. In those circumstances,
It furthersetsoutthe submissions presentedbyAustralia Australia contends that, with respectto the dispute pre-
in its preliminary objections and by Nauru in the written sented in Nauru's Application, Australia and Nauru had
statement of its observationsand submissions on the pre- agreed"to have recourseto someothermethodofpeaceful
liminary objections,as well as the final submissions pre- settlement" within the meaningof the reservationin Aus-
sented by each of the Parties at the hearings, the latterof tralia's declaration,and that consequently the Court lacks
which are as follows: jurisdic:tionto deal with that dispute.

12 The Court considers that declarations madt:pursuant to a dischargeto the Administering Authority with respectto
Article 36,paragraph2, ofthe Statute ofthe Court can only such rights. In the opinion of the Court, the rights Nauru
relate to disputes between States. The declaration ofAus- might have had in connection with rehabilitation of the
tralia only covers that type of dispute; it is made expressly lands remained unaffected. The Court thereforefinds that,
"in relation to any other State accepting the!Game obliga- regard being had to the particular circumstances of the
tion.. . ".In these circumstances, the question that arises case, Australia's third objection must be rejected.
inthis case is whether Australia and theRepublicofNauru
did 13did not, after 31 January 1968,when Niluruacceded 4. Australia's fourth objection stresses that Nauru
to irldependence,conclude an agreement whereby the two achieved independence on31January 1968and that, as re-
States undertook to settle their dispute relatin]:to rehabili-gards rehabilitationof the lands,it was not untilDecember
1988thatthat State formally"raised withAustraliaandthe
tation of the phosphate lands by resortingto agreedPro- otherformer Administering Powersitsposition". Australia
cedureotherthan recourseto the Court.NO SUC:~agreement therefore that Nauru's claim is inadmissible on
has been pleaded or shown to exist. That question has the ground that it has not been submitted within a reason-
therefore to be answered in the negative. Thl: Court thus able time.
considers thatthe objection raised byAustraliaon the basis The Court recognizes that, even in the absence of any
of the above-mentioned reservationmust be r'zjected. applicable treaty provision, delayon the part of a claimant
2. Australia's second objection is that the Nauruan State may render an application inadmissible. It notes,
authorities, even before accedingto independence, waived however,that international law does not lay downany spe-
all claims relatingto rehabilitation of the phosphate lands. cific time-limit in that regard. It is therefore for the Court
This objectioncontains two branches. Inthe firstplace, the to determine in the light of the circumstancesof each case
waiver, it is said, was the implicit but necessary result of whether the passage of time renders an application inad-
the above-mentioned Agreementof 14 Noverrlber1967.It missible. The Court then takes note of the fact that Nauru
is also said to have resulted from the stateme:ntsmade in was officially informed,atthe latestby letter of4 February
the lJnited Nations in the autumnof 1967by the Nauruan 1969, of the position of Australia on the subject of reha-
Head Chief on the occasion of the terminatior~of the trus-
teeship. In the view of Australia, Nauru may not go back bilitation of the phosphate lands worked out before 1July
on that twofold waiver and its claim should ac~:ordinglybe 1967.Nauru took issue with that position in writing only
rejec:tedas inadmissible. on 6 October 1983.In the meantime,however, as statedby
Nauru and not contradicted by Australia, the question had
Having taken into consideration the negoti~~tionw s hich on two occasions been raised by the President of Nauru
ledto the Agreementof 14November 1967,the Agreement with the competent Australian authorities. The Court con-
itself, andthe discussions ;atthe United Nations, the Court siders that, given the natureof relations between Australia
concludes that the,Nauruan.local authoritiesditinot,before and Nauru, as well as the steps thus taken, Nauru's Appli-
independence, waive their claim relating to rciiabilitation cation was not rendered inadmissibleby passage of time,
of the phosphate lands worked out prior to 1 July 1967. but that it will be for the Court,in due time, to ensure that
The Court finds therefore ,thatthe second 0bje:ctionraised Nauru's delayin seising it will in no way cause prejudice
by Australia must be rejected. to Australia with regard to both the establishment of the
3. third is that Nauru,9sclaim is facts and the determinationof the contentof the applicable
law.
"inadmissible onthe ground that termination of the Trus- 5. The Court further considers that Australia's fifth
teeship by the united ~~~i~~~precludes allegations of objectionto the effect that "Nauru has failed to actconsis-
breaches ofthe ~~~t~~~h ~i~~~~~~~tfronl now being tently and in good faith in relation to rehabilitation" and
examined by the Court". that therefore "the Court in exercise of its discretion, and
Court notes that, by its resolution 2347 (XXII) of in order to uphold judicial propriety should... decline to
19 December 1967, the General Assembly of. the United hear the Nauruan claims" must also be rejected,as the Ap-
Nations resolved plication of Nauru has been properly submitted in the
"in agreement withthe Administering Authority, that the frameworkofthe remediesopen to it and asthere has been
Trusteeship Agreement for the Territory of'Nauru . ..
shall ceaseto be in force uponthe accession of Nauru to no abuse of process.
independence on 31January 1968".
Th~eCourt observes that such a resolution had "defini- 111. Objection basedonthefact thatNewZealandand the
tive :legaleffect" (Northern Cameroons,Judgment,I.C.J. UnitedKingdomare notparties to theproceedings
Reports1963,p. 32),andth~ac tonsequently the Trusteeship (paras. 39-57)
Agreement was "terminat.ed" on that date and "is no 6. The Court then considers the objection by Australia
longer in force" (ibid., p. 37). ~tthen examinesthe particu- based on the fact that New Zealand and the United King-
dom are not parties to the proceedings.
lar ciircumstancesin which;the trusteeship for Nauru was
terminated. It concludes that the facts show that, when, on In orderto assess the validityofthis objection, the Court
the r1:commendationof the Trusteeship Council, the Gen- first refers to the Mandate and trusteeship regimes and the
era1 .Assemblyterminated the trusteeship over Nauru in way in which they appliedto Nauru. It notes that the three
agreement with the Administering Authority, everyone Governments mentioned in the Trusteeship Agreement
was aware of subsistingdifferencesof opinionbetweenthe constituted, in the very terms of that Agreement, "the
Nauru Local Government Council andthe Administering Administering Authority" for Nauru; that this Authority
Authority with regard to rehabilitation of the:phosphate did not havean international legalpersonality distinct from
lands worked out before 1July 1967.Accordingly, though those of the States thus designated; and that, of those
General Assembly resolution 2347 (XXII) clid not ex- States, Australia played a very special role established by
pressly reserve any rightswhich Nauru might have had in the Trusteeship Agreementof 1947,by the Agreementsof
that regard, the Court cannotviewthat resolutionasgiving 1919, 1923and 1965, andby practice.

13 The Court observes that Australia's preliminary objec- although a finding by the Court regarding the existence or
tion in this respect appears to contain two branches, the the content of the responsibility attributed to Australia by
first of which can be dealt with briefly. It is first contended Nauru might well have implications for the legal situation
by Australia that, in so far as Nauru's claims are based on of the two other States concerned, no finding in respect of
the conduct of Australia as one of the three States making that legal situation will be needed as a basis for theCourt's
up the Administering Authority under the Trusteeship decision on Nauru's claims against Australia. Accordingly,
Agreement, the nature of the responsibility in that respect the Court cannot decline to exercise itsjurisdiction and the
is such that a claim may only be brought against the three objection put forward in this respect by Australia must be
States jointly, and not against one of them individually. rejected.
The Court does not consider that any reason has been

shown why a claim brought against only one of the three IV. Objectiortsto the claim by NauruBritish Plzosphate
States should be declared inadmissible in limine litis Commissioners
merely because that claim raises questions of the adminis- (pans. 58-71)
tration of the territory, which was shared with two other
States. It cannot be denied that Australia had obligations dressed by Australia to the claim by Nauru concerningthe
under the Trusteeship Agreement, in its capacity as one of overseas assets of the British Phosphate Commissioners.
the three states forming the ~d~i~i~~~~~ i~t~h~~i~a ~n,d
there is nothing in the character of that Agreement which At the end of its Memorial on the merits, ~auru requests
debars the Court from considering a claim of a breach of the and that
those obligations by Australia. "the RepubIic of Nauru has a legal entitlement to the
Secondly, Australia argues that, since together with it- Australian allocation ofthe overseas assets ofthe British
Phosphate Commissioners which were marshalled and
Administering Authority, any decision of the Court as tothe disposed of in accordance with the trilateral Agreement
concluded on February 198793
the alleged breach by Australia of its obligations under the
Trusteeship Agreement would necessarily involve a find- ''theR.es~ondentState is undera duty to makeappropriate
ing as to the discharge by those two other States of their reparation in respect of the loss ~ausedto the Republic
obligations in that respect, which would be contrary to the of Nauru as a result of . . .its failure to recognize the
fundamental principle that thejurisdiction ofthe court de- interest of Nauru in the overseas assets of the British
rives solely from the consent of states. ~h~ question that Phosphate Commissioners"-
arises is accordingly whether, given the regime thus des-
cribed, the Court may, without the consent of New Zealand The British Phosphate Commissioners were established
and the United Kingdom, deal with an Application brought by article 3 of the Agreement of 2 July 1919 between the
against Australia alone. United Kingdom, Australia and New Zealand, one Com-
The Court then examines its own case-law on questions missioner to be appointed by each of the Partner Govern-
of this kind (cases concerning the MonetaryGoldRemoved ments. These Commissioners managed an enterprise en-
from Rome in 1943 (Preliminary Question), Military and trusted with the exploitation of the phosphate deposits on
Paramilitury Activities in and against Mcaragua (Nicara- the island of Nauru.
Australia, inter ah, maintains that Nauru's clai1llCon-
gua v. united States ofAmerica) and the Land,Island and cerning the overseas assets of the British Phosphate Corn-
MaritimeFrontierDispute(ElSalvador/Honduras)).Itrefers missioners is inadmissible on the ground that it is a new
to the fact that national courts, for their part, have more claim which appeared for the first time in the Nauruan
often than not the necessary power to order proprio rnotu Memorial; that Nauru has not proved the existence of any
thejoinder of third who may be affected by the de- real link betweenthat claim, onthe oneha~d,andits claims
cision to be rendered; and that that solution makes it pas- relating to the alleged failure to observe the Trusteeship
sible to settle a dispute in the presence of all the
concerned. ~tgoes on to consider that on the international Agreernentandto the rehabilitation of the phosphate lands,
plane, however, the court has no such power. lts jurisdic- on the other; and that the claim in question seeks to trans-
tion depends on the consent of States and, consequently, form the dispute brought before the Court into a dispute
the Court may not compel a State to appear before it, even that would be of a different wdture-
by way of intervention. A State, however, which is not The Court concludes that the Nauruan claim relating to
a party to a case is free to apply for permission to inter- the overseas assets of the British Phosphate Commission-
vene in accordance with Article 62 of the Statute. But the ers is inadmissible inasmuch as it constitutes, both in form
absence of such a request for intervention in no way pre- and in substance, a new claim, and the subject of the dis-
cludes the Court from adjudicating upon the claims sub- pute origillally submitted to the Court would be trans-
mitted to it, provided that the legal interests of the third formeclif it entertained that claim. It refers in this connec-
State which may possibly be affected do not form the very tion to Article40, paragraph 1,of the Statute of the Court,
subject-matter of the decision that is applied for. Wherethe which provides that the "subject of the dispute" must be
Court is SO entitled to act, the interests of the third State indicatedin the Application;and to Article 38, paragraph2,
which is not a party to the case are protected by Article 59
of the Rules of Court, which requires "the precise nature
of the Statute of the Court, which provides that "the deci- of the claim" to be specified in the Application.
sion of the Court has no binding force except between the The Court therefore finds that the preliminaryobjection
parties and in respect of that particular case". raised by Australia on this point is well founded, and that
The Court then finds that in the present case, the inter- it is not necessary for the Court to consider here the other
ests of New Zealand and the United Kingdom do not objections of Australia with regard to the submissions of
constitute the very subject-matter of the Judgment to be Nauru concerning the overseas assets of the British Phos-
rendered on the merits of Nauru's Application and that, phate ~Zommissioners.

14 Separate opinion!of Judge Shahabutideen nationofthe trusteeship. Neither did the General Assembly
in adopting that recommendation, evenif one or two allu-
In his separate opinio:n,Judge Shahabuddeen gave his sions to the subject were made from the floor. Conse-
reasons for agreeing with the decision of the Court reject-
ing Australia's prelimina.ryobjection that Nauru's Appli- quently, the responsibilityof the Administering Authority,
cation was inadmissible iinthe absenceofNewZealand and as well as the rights and duties of the Administrator,
the United Kingdom'asparties. In his opinion, the obliga- were completely terminated by resolution 2347 (XXII)of
tions of the three Governments under the Trusteeship 19 December 1967, and that put an end to any claims
Agreement were joint and several, with the consequence arising fromthe implementation ofthe Trusteeship Agree-
that Australia could be sued alone. However,heconsidered ment.No such claim,therefore, wastaken overbythe State
of Nauru.
that, even if the obligations werejoint, this,i:nlaw, did not Even supposing a fresh claim could have been raisedby
prevent Australia from being sued alone. Also, inhis view, independent Nauru, none was officially asserted until1983
while a possible Judgment on the merits against Australia at the earliest. So long a silence made it inappropriatefor
might bebased on a courseof reasoning whic:hwas capable the Court to find the claim admissible. Neitherhad Nauru
of extensionto New Zealand and the United Kingdom,that taken any steps to rehabilitate lands worked since inde-
reasoning would operate only at the level of precedential pendence. Inthe Vice-President's view, this conduct, com-
influence in any case that might be scparateiiybrought by bined with lack of due diligence, disqualifies Nauru from
Nauru against those two States; it would not by itself
amount to a judicial determination made in this case of alleging Australian responsibility to rehabilitate lands
the responsibilities of those two States to h!auru. Conse- worked under trusteeship.
quently, there was no question of the Court exercising In consequence, Vice-President Oda considers thatthe
jurisdiction in this case against non-party States. Court should have upheld Australia's objections basedon
allegedwaiver,the terminationofthetrusteeship,the effect
Dissenting opinion of President Sir Robert Jennings of the passageof time, and lack of good faith. The fact that
he voted against rejecting the objectionbased on the ab-
President Jennings dissented fromthe Court's decision sencefromthe proceedingsof New Zealandandthe United
to reject that Australian objectiontojurisdiction, which is Kingdom did not, however, mean thathe necessarily up-
based on the fact that New Zealand and the United King- held that objection also, sincehe considered that it was too
dom are not parties to th~eproceedings. The Mandate for closely bound up with the merits to be decided at the pre-
Nauru was in 1920 conferred upon "His Britannic Maj- liminary stage.
est~y";the Trusteeship Agreement of 1947 designated

"The Governments ol'Australia, New Ze.alandand the Dissenting opinion of Judge Ago
IJnited Kingdom (hereinafter called 'the A.dministering Judge Ago has regretfully been unable to Join those of
Authority') asthejoint authority whichwill exercisethe
a.dministrationof the Territow.:, Court because in his opinion there exists an insurmount-
New and the United Kingdom were two of the
three members of the British PhosphateCotr~mission;and able contradiction between two facts: Nauru has filed an
they were bothjoint parties with Australiato the Canberra Application against Australia alone, without also bringing
Agreement of 1967. proceedings against the United Kingdom and New Zea-
land, even though first the Leagueof Nations and thenthe
Thus, the legal interests of New Zealand and the United UnitedNationsjointly entrusted three differentStates-the
Kingdom are SO inextricably bound up with those of AUS- United Kingdom, Australia and New Zealand-n a basis
tralia in this matter that they "would not only be affected of complete legal equality, with the administration of
by a decision, but would form the vew subiect-matter of -a- - -.
the decisionw-(I.c.J. Reports 1954,p. j2); ahd this would Thisbeing so,the Court shouldhaveupheldtheprelimi-
be itbreach of the princip:leofthe Court's consensual basis nary objection of Australia based on the absence fromthe
ofjurisdiction. proceedings of two of the three Powersto which the trus-
ieeship over Nauru had been entrusted.
Dissenting opinion of Vice-PresidentOda
Having brought its action against Australia alone, Nauru
In his dissenting opinion, Vice-President13daanalyses has thus placed the Court beforean insurmountable diffi-
the historical developments considered by the Court and culty, that of defining the possible obligationsof Australia
demonstrateswhy hediffers fromthe Judgment in the con- with respect to the rehabilitation of Nauru's territory
stru~ctionhe places upon them. Under the trusteeshipthe without at the same time defining those of the two other
possibility of rehabilitating the worked-out lands was Statesnotparties to the proceedings. But the Court's ruling
thoiroughlydiscussed in the relevant organs of the United on the complaints against Australia alone will inevitably
Nations,the only forumsiinwhich a claim could have been affect the legal situationof the United Kingdom andNew
put forwardon behalfof the Nauruanpeople.]\levertheless, Zealand,that is, the rights and the obligationsof these two
the Canberra Agreementto which all parties subscribed on States. Were the Courtto determine the shareof responsi-
the eve of independence niade no mentionof the issue, nei- bility falling upon Australia, it would thereby indirectly
ther was it then dealt with separately. Considering that, at establish that the remainderof that responsibilityis to fall
that critical point, Nauru failed to reservea claim to land upon the two other States. Even if the Court were to de-
rehabilitation, the silence of the Agreement can be con- cide-on what would, incidentally, bean extremely ques-
strued as implying a waiver. Furthermore, iri the debates tionable basis-that Australia was to shoulder in fullthe
on Nauru withinthe Trusteeship Council,the rehabilitation responsibility in question, that holding would equally in-

question was repeatedly aired, but the Counc:ileventually evitably andjust as unacceptably affect the legal situation
took no position on the matter in recommending thetermi- of two States that are not parties to the proceedings. Ineither case the exercise by the Court of its jurisdiction protection to third States so situated. If the United States
would be deprived of its indispensable consensual basis. were to have ceased to act in support of El Salvador pur-
suant to the Court's 1986 Judgment, the latter's Govern-
Dissenting opinion of Judge Schwebel ment, far from having its interests conserved by the force
of Article59, could have fallen beforethe onslaught of the
Judge Schwebel, dissenting, maintained thatthe salient insurrection so significantly supported by Nicaragua.
issue was, where more than one State is charged with a
joint (orjoint and several) commissionof an act wrongful Judge Schwebel maintained that, despite Nicaragua's
under international law, but onlyone such State is before sworr~and reiterated denials before the Courtof any mate-
the Court, may the Court proceed to adjudge the present rial support of the Salvadorian insurrection, it later trans-
State even though a determination of its liability may or pired that revelations, and admissions ofthe Governments
will entail the effective determinationof the liability of an of the Soviet Union and Nicaragua, demonstrated the real-
absent State? In answering this question, private law ity arid significance of that material support, and, hence,
sources and analogies areof little use, sincein national law the disutility of Article9. Such precedential status as the
jurisdiction is compulsory whereas in this Court it is Court's 1984 Judgment may be thoughtto have was further
consensual. prejudiced by Nicaragua's acting in 1986 contrary to its
1984 contention before the Court that its claims were
The principal precedent is the Monetary Gold case. In against the United States alone.
that case, a holding as to the responsibility of the absent
Albania wasa temporal and logical preconditionof render- In sum, the security interestsof the Statesin whose col-
ing a Judgment between the Parties present, whereasit is lective self-defence the United States in 1984 claimed to
agreed that, in the instant case, the determination of the be acting were as close, if not closer,to "the veryubject-
responsibility of New Zealand or the United Kingdom is matter of the case" as were the interests of Albania in
not a prerequisite for the determination ofthe responsibil- MonetaryGold.Moreover,theprecedentof theLand, Island
ity of Australia. The Court unpersuasively assignsdisposi- and A4aritimeBoundaryDispute appears to cut againstthe
tive force to that distinction. Whether determinationof the court:'^conclusion in the current case.
responsibility of the absent Stateis antecedent or simulta-
neous is not significant. What rather is dispositive is It is clear from the facts of the instant case that Nauru
whether the determination of the legal rights of the present was subject to the governance of a Mandatory and Trust
Party effectively determines the legal rightsof the absent Administering Authority composed of Australia,New Zea-
party- land ;mdthe United Kingdom;andthat, by the termsofthe
The Court's reliance onits 1984 holding in Military and goveining international legal instruments, Australia uni-
Paramilitary Activities in and against Nicaragua is mis- formly acted "on thejoint behalf' of the three States, and
"on behalf' of the Administering Authority, as part of
placed since that latter holding was inerror in this as in what those instruments termed "the joint Authority". The
some other respects. In that case, Nicaragua brought suit three Governments were described and regardedas "Part-
against the United Statesalone,even though it claimed that ner (3overnments". All communications regarding the
El Salvador, Honduras and Costa Rica were vitally in- Mandate and trusteeship ran not between Australia andthe
volved in its alleged delicts. For its part, the United StatesLeague,and Australia and the United Nations, but between
maintained that it was actingin collective self-defence with the tripartite Administering Authority and those Organiza-
those three States to counter Nicaraguan subversive inter- tions. The phosphates operations themselves wererun by
vention which was tantamount to armed attack.In 1986, the British Phosphate Commissioners who representedthe
on the merits, the Court held that no responsibility could three Governments. Nauru itself regularly maintained that
be attributed to Nicaragua for any flow of arms across its not Australia alone, but the Administering Authority, the
territory to Salvadorian insurgents. When that Judgment three Partner Governments, were responsible for restora-
is read together with the Court's Judgment in 1984 that tion of worked-out phosphate lands. When it brought suit
El Salvador, Honduras and Costa Rica wouldbe protected
by Article 59 of the Statute against any adverse effectsof against Australia alone, it officially reiteratedits identical
a Judgment on the merits against the United States, it claims against New Zealand and the United Kingdom.
appears that its articulate factual holdingof1986 was the Consequently,a Judgmentbythe Court uponthe respon-
inarticulate factual premise of its Judgment of 1984, for, sibility of Australia would appear to be tantamount to a
assuming the factual allegations of the United States and Judgment upon the responsibility of New Zealand and the
El Salvador in 1984 to have been correct, itwas clear then Unite:dKingdom, States not before the Court. Forthis rea-
and is clear today that Article59 furnished no meaningful son, proceeding against Australia aloneis inadmissible.