1992

ICJ

Case concerning certain phosphate lands in Nauru Nauru v Australia Preliminary objections

Administration of Nauru was to be exercised by and Administering Authority made up by Australia, NZ and UK. The dispute relates over the rehabilitation of certain phosphate lands worked out before Nauruan Independence. The court was asked to declare: violations to art 76 UN (objectives of trusteeship), self determination, Nauru right to permanent sovereignty over natural wealth and resources, abuse of rights. 1. The court began considering jurisdiction, Nauru bases jurisdiction on the declarations under optional clause by Australia (1975) and Nauru (1988). However Australia had made a reservation compulsory jurisdiction ‘does not apply to any dispute in regard to which the parties thereto have agreed …to some other method of peaceful settlement’ Australia contended that any dispute of the Trusteeship fell within the jurisdiction of UN trusteeship Council and GA. Any dispute should be regarded as having been settled by the termination of the Trusteeship, provided that the termination was unconditional 2. As 2nd objection Australia contended that Nauruan authorities, even before acceding independence, waived all claims relating to rehabilitation, based on the fact that the agreement to pass the industry did not say anything, and on some pronouncements of the Nauru Head Chief. The ICJ said: it will suffice to note that those authorities did not at any time effect a clear and unequivocal waiver of their claims. 6. Australia argued that NZ & UK were not the parties to the proceedings; the claim is in substance not against Australia but the Administering Authority. The court could not pass upon the responsibility of Australia without adjudicating responsibility of NZ & UK. Any judgement would involve responsibility of 3rd states that have not consented jurisdiction.

1. Declaration of optional clause can only relate to disputes between states, Nauru acceded to independence in 1968, and then become a State, since that time no agreement to settle disputes regarding the rehabilitation has been show to exist. 6. The mandate system was created in the interest of the inhabitants of the territory, and of humanity in general, as an institution with an international object. The Trust had to be exercised for the benefit of the peoples concerned, who were admitted to have interest in their own. Australia raised the question whether the liability of the three states would be ‘join & several’ (solidaire) so that any one of the three would be liable to make full reparation. The answer is reserved to the merits, but it is independent of the question whether Australia can be sued alone. There is not reason why a claim brought against only one of the three states should be declared inadmissible. Because the claim raises questions of the administration which was shared with two other states, it cannot be denied that Australia had obligations under the Trusteeship, it its capacity as one of the three states forming the administration. (55) In the present case the determination of responsibility of NZ or UK is not a prerequisite for the determination of the responsibility of Australia, the only object of Nauru’s claims…In the present case a finding by the court regarding the existence or the content of state responsibility attributed to Australia by Nauru might well have implication for the legal situation of the two other states concerned, but no finding in respect of that legal situation will be needed as a basis fore the court’s decision on Nauru’s claims against Australia. It is true that jurisdiction depends on the consent of states, but in the present case the interest of NZ & UK do not constitute the very subject matter of the judgement, a 3rd state that could be affected by the decision can asked to intervene art 62 and its interest is safeguard by relativity of sentence art 59