| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.2. | Conditions for a Decision on the Merits |
| 2.2.4. | Admissibility |
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Certain Phosphate Lands in
Nauru (Nauru / Australia),
Preliminary Objections, Judgment,
I.C.J. Reports 1992, p. 240
[pp. 247-248] 12. Australia's second objection is that the Nauruan
authorities, even before acceding to independence, waived all claims relating to
rehabilitation of the phosphate lands. This objection contains two branches. In
the first place, the waiver, it is said, was the implicit but necessary result
of the above-mentioned Agreement of 14 November 1967. It is also said to have
resulted from the statements made in the United Nations in the autumn of 1967 by
the Nauruan Head Chief on the occasion of the termination of the Trusteeship. In
the view of Australia, Nauru may not go back on that two-fold waiver and its
claim should accordingly be rejected as inadmissible.
13. The Court does not deem it necessary to enter into the various questions
of law that are raised by the foregoing argument and, in particular, to consider
whether any waiver by the Nauruan authorities prior to accession to independence
is opposable to the Republic of Nauru. It will suffice to note that in fact
those authorities did not at any time effect a clear and unequivocal waiver of
their claims, whether one takes into consideration the negotiations which led to
the Agreement of 14 November 1967, the Agreement itself, or the discussions at
the United Nations.
14. The Parties are at one in recognizing that the Agreement of 14 November
1967 laid down the conditions under which the property in the capital assets of
the phosphate industry on Nauru was to pass to the local authorities and the
ways in which the phosphate would, in future, be worked and sold. They also
recognize that that Agreement did not contain any express provision relating to
rehabilitation of the phosphate lands previously worked out. However, the
Parties disagree as to the significance of that silence. Australia maintains
that "the Agreement did represent a comprehensive settlement of all claims
by Nauru in relation to the phosphate industry", including rehabilitation
of the lands, and that the Agreement was accordingly tantamount to a waiver by
Nauru of its previous claims in that regard. Nauru, on the contrary, contends
that the absence of any reference to that matter in the Agreement cannot be
interpreted as implying a waiver.
15. The Court notes that during the discussions with the Administering
Authority the delegation of the Nauru Local Government Council maintained, as
early as June 1965, that "there was a responsibility on the Partner
Governments to restore at their cost the land that had been mined". In June
1966 the delegation restated that position, noting that costs had been estimated
at 91 million Australian dollars and proposing that those costs should be shared
by the three Governments in proportion to the benefits they had previously
derived from the mining of the phosphate. It concluded by adding that Nauru
would be prepared to assume responsibility for the restoration of any land mined
subsequently if "the full economic benefit from the phosphate" was
made available to the Nauruans at a future time. No agreement was reached on
that subject in 1966 and the discussions resumed in April 1967. The
Administering Authority then proposed the insertion into the future agreement of
a provision to the effect that:
"The Partner Governments consider that the proposed financial
arrangements on phosphate cover the future needs of the Nauruan community
including rehabilitation or resettlement."
During the meeting held on 16 May 1967, the delegation of the Administering
Authority asked
"would the Nauruans press their argument despite any financial
arrangements made, that the Partner Governments had a responsibility on
rehabilitation?"
The summary record of the discussions goes on to say that
"During the following discussion it emerged that the Nauruans
would still maintain their claim on the Partner Governments in respect of
rehabilitation of areas mined in the past, even if the Partner Governments did
not press for the withdrawal of the claim in a formal manner such as in an
agreement."
There is no trace of any subsequent discussion of this question in the
documents before the Court.
16. The Court notes that the Agreement of 14 November 1967 contains no
clause by which the Nauruan authorities expressly waived their earlier claims.
Furthermore, in the view of the Court, the text of the Agreement, read as a
whole, cannot, regard being had to the circumstances set out in paragraph 15
above, be construed as implying such a waiver. The first branch of the
Australian argument must be rejected.
[pp. 250-251] 22. Australia's third objection is that Nauru's claim
is
"inadmissible on the ground that termination of the Trusteeship by the
United Nations precludes allegations of breaches of the Trusteeship Agreement
from now being examined by the Court".
Australia observes that "all the Nauruan allegations of breaches of
obligations" relate to "the administration of the territory"
placed under Trusteeship. Australia adds that "the competence to determine
any alleged breach of the Trusteeship Agreement and Article 76 of the Charter
rested exclusively with the Trusteeship Council and General Assembly"; that
when the General Assembly terminates a trust, "the whole system of
administrative supervision [comes] to an end"; and that
"in the absence of an express reservation recording a breach and an
outstanding responsibility on the Administering Authority, termination is
conclusive and operates as a complete discharge from all further responsibility".
According to Australia, Nauru therefore cannot now request the Court:
"to undertake the task of exploring again the performance of the
Trusteeship in order to overrule and contradict the conclusions and decisions
taken by the competent United Nations organs in the exercise of their functions
of supervision of the trusteeship system".
23. The Court notes that, by resolution 2347 (XXII) of 19 December 1967, the
General Assembly of the United Nations resolved
"in agreement with the Administering Authority, that the Trusteeship
Agreement for the Territory of Nauru ... shall cease to be in force upon the
accession of Nauru to independence on 31 January 1968".
Such a resolution had "definitive legal effect" (Northern
Cameroons, Judgment, I.C.J. Reports 1963, p. 32). Consequently, the
Trusteeship Agreement was "terminated" on that date and "is no
longer in force" (ibid., p. 37). In the light of these
considerations, it might be possible to question the admissibility of an action
brought against the Administering Authority on the basis of the alleged failure
by it to comply with its obligations with respect to the administration of the
Territory. However, the Court does not consider it necessary to enter into this
debate and will confine itself to examining the particular circumstances in
which the Trusteeship for Nauru was terminated.
[p. 253] 30. The facts set out above show that, when, on the
recommendation of the Trusteeship Council, the General Assembly terminated the
Trusteeship over Nauru in agreement with the Administering Authority, everyone
was aware of subsisting differences of opinion between the Nauru Local
Government Council and the Administering Authority with regard to rehabilitation
of the phosphate lands worked out before 1 July 1967. Accordingly, though
General Assembly resolution 2347 (XXII) did not expressly reserve any rights
which Nauru might have had in that regard, the Court cannot view that resolution
as giving a discharge to the Administering Authority with respect to such
rights. In the opinion of the Court, the rights Nauru might have had in
connection with rehabilitation of the lands remained unaffected. Regard being
had to the particular circumstances of the case, Australia's third objection
must in consequence be rejected.
[pp. 253-255] 31. Australia's fourth objection stresses that
Nauru achieved independence on 31 January 1968 and that, as regards
rehabilitation of the lands, it was not until December 1988 that that State
formally "raised with Australia and the other former Administering Powers
its position". Australia therefore contends that Nauru's claim is
inadmissible on the ground that it has not been submitted within a reasonable
time. Nauru's delay in making its claim is alleged to be all the more
prejudicial to Australia because the documentation relating to the Mandate and
the Trusteeship may have been lost or dispersed in the interval, and because
developments in the law during the interval render it more difficult to
determine the legal obligations incumbent on the Administering Powers at the
time of the alleged breaches of those obligations.
32. The Court recognizes that, even in the absence of any applicable treaty
provision, delay on the part of a claimant State may render an application
inadmissible. It notes, however, that international law does not lay down any
specific time-limit in that regard. It is therefore for the Court to determine
in the light of the circumstances of each case whether the passage of time
renders an application inadmissible.
33. In the present case, it was well known, at the time when Nauru gained
its independence, that the question of rehabilitation of the phosphate lands had
not been settled. On the day of declaring independence, 31 January 1968, the
Nauruan Head Chief, Mr. DeRoburt, stated, according to press reports, that
"We hold it against Britain, Australia and New Zealand to recognize
that it is their responsibility to rehabilitate one third of the island."
On 5 December 1968 the President of Nauru wrote to the Minister for External
Affairs of Australia indicating his desire to examine a specific rehabilitation
scheme for the building of a new airstrip. The Australian Minister replied on 4
February 1969 as follows:
"the Partner Governments, in the talks preceding 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."
34. This letter did not elicit any immediate reaction. Five years later, on
the occasion of a State visit to Canberra, the President of Nauru raised the
question of rehabilitation with the Prime Minister of Australia. In 1974 he
brought up the matter a second time, without success, on the occasion of the
visit to Nauru of the Australian Acting Minister for External Affairs.
35. It was only on 6 October 1983 that the President of Nauru wrote to the
Prime Minister of Australia requesting him to "seek a sympathetic
reconsideration of Nauru's position". That request was declined by
Australia on 14 March 1984. Then, on 3 December 1986, Nauru set up a three-member Commission of Inquiry to study the question and informed the three former Administering Governments of the
establishment of that Commission. Those Governments maintained their position
and, following a series of exchanges of letters, Nauru applied to the Court on
19 May 1989.
36. The Court, in these circumstances, takes note of the fact that Nauru was
officially informed, at the latest by letter of 4 February 1969, of the position
of Australia on the subject of rehabilitation of the phosphate lands worked out
before 1 July 1967. Nauru took issue with that position in writing only on 6
October 1983. In the meantime, however, as stated by Nauru and not contradicted
by Australia, the question had on two occasions been raised by the President of
Nauru with the competent Australian authorities. The Court considers that, given
the nature of relations between Australia and Nauru, as well as the steps thus
taken, Nauru's Application was not rendered inadmissible by passage of time.
Nevertheless, it will be for the Court, in due time, to ensure that Nauru's
delay in seising it will in no way cause prejudice to Australia with regard to
both the establishment of the facts and the determination of the content of the
applicable law.
[p. 255] 37. Australia's fifth objection is that "Nauru has
failed to act consistently and in good faith in relation to rehabilitation"
and that therefore "the Court in exercise of its discretion, and in order
to uphold judicial propriety should ... decline to hear the Nauruan claims".
38. The Court considers that the Application by Nauru has been properly
submitted in the framework of the remedies open to it. At the present stage, the
Court is not called upon to weigh the possible consequences of the conduct of
Nauru with respect to the merits of the case. It need merely note that such
conduct does not amount to an abuse of process. Australia's objection on this
point must also be rejected.
[p. 324 D.O. Oda] 28. If, merely for the sake of argument, there did
exist, at the time of independence, a claim of Nauru (as an independent State)
against Australia, for the rehabilitation of the worked-out phosphate lands,
then, according to the record, it was asserted at the very earliest during the
talks which Nauru held with Australia in 1983. One cannot conceive that the
claim which Nauru presented in its Application of 1989 or, even earlier, in its
negotiations with Australia in 1983, could have been based on elements other
than those which Nauru might have wished to have taken over in 1968. The fact
that Nauru kept silent for more than 15 years on the subject of the alleged
claim makes it inappropriate for the Court to entertain it and, if only on
grounds of judicial propriety, the Court should therefore find that the
Application is inadmissible.
29. In addition, the fact is that Nauru has been fully responsible for the
mining of phosphate since its independence yet has not taken any steps towards
the rehabilitation of the lands it has itself worked. To my mind, equity
requires the conclusion that Nauru, by this conduct, combined with lack of due
diligence, has disqualified itself from pursuing any allegation of Australian
responsibility for the rehabilitation of lands which Australia worked during the
Trusteeship period. For Nauru to bring a claim now can only lead one to doubt
its good faith.
