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III. The International Court of Justice
2.8. Jurisdiction and Third States

¤ Certain Phosphate Lands in
Nauru (Nauru / Australia),
Preliminary Objections, Judgment,
I.C.J. Reports 1992, p. 240

[pp. 258-259] 48. ... It is first contended by Australia that, in so far as Nauru's claims are based on the conduct of Australia as one of the three States making up the Administering Authority under the Trusteeship Agreement, the nature of the responsibility in that respect is such that a claim may only be brought against the three States jointly, and not against one of them individually. In this connection, Australia has raised the question whether the liability of the three States would be "joint and several" (solidaire), so that any one of the three would be liable to make full reparation for damage flowing from any breach of the obligations of the Administering Authority, and not merely a one-third or some other proportionate share. This is a question which the Court must reserve for the merits; but it is independent of the question whether Australia can be sued alone. The Court does not consider that any reason has been shown why a claim brought against only one of the three States should be declared inadmissible in limine litis merely because that claim raises questions of the administration of the Territory, which was shared with two other States. It cannot be denied that Australia had obligations under the Trusteeship Agreement, in its capacity as one of the three States forming the Administering Authority, and there is nothing in the character of that Agreement which debars the Court from considering a claim of a breach of those obligations by Australia.

[pp. 260-262] 54. A State, however, which is not a party to a case is free to apply for permission to intervene in accordance with Article 62 of the Statute, which provides that

"Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene."

But the absence of such a request in no way precludes the Court from adjudicating upon the claims submitted to it, provided that the legal interests of the third State which may possibly be affected do not form the very subject-matter of the decision that is applied for. Where the Court is so entitled to act, the interests of the third State which is not a party to the case are protected by Article 59 of the Statute of the Court, which provides that "The decision of the Court has no binding force except between the parties and in respect of that particular case."

55. In the present case, the interests of New Zealand and the United Kingdom do not constitute the very subject-matter of the judgment to be rendered on the merits of Nauru's Application and the situation is in that respect different from that with which the Court had to deal in the Monetary Gold case. In the latter case, the determination of Albania's responsibility was a prerequisite for a decision to be taken on Italy's claims. In the present case, the determination of the responsibility of New Zealand or the United Kingdom is not a prerequisite for the determination of the responsibility of Australia, the only object of Nauru's claim. Australia, moreover, recognizes that in this case there would not be a determination of the possible responsibility of New Zealand and the United Kingdom previous to the determination of Australia's responsibility. It nonetheless asserts that there would be a simultaneous determination of the responsibility of all three States and argues that, so far as concerns New Zealand and the United Kingdom, such a determination would be equally precluded by the fundamental reasons underlying the Monetary Gold decision. The Court cannot accept this contention. In the Monetary Gold case the link between, on the one hand, the necessary findings regarding Albania's alleged responsibility and, on the other, the decision requested of the Court regarding the allocation of the gold, was not purely temporal but also logical; as the Court explained,

"In order... to determine whether Italy is entitled to receive the gold, it is necessary to determine whether Albania has committed any international wrong against Italy, and whether she is under an obligation to pay compensation to her." (I.C.J. Reports 1954, p. 32.)

In the present case, a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications 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 for the Court's decision on Nauru's claims against Australia. Accordingly, the Court cannot decline to exercise its jurisdiction.

[pp. 301-302 D.O. Jennings] I very much regret that I am unable to agree with the decision of the Court rejecting Australia's preliminary objection based on the circumstance that New Zealand and the United Kingdom are not also parties to the proceedings (see (1) (g) of para. 72 of the Judgment). My difficulties with this part of the Judgment may be stated very briefly.
This preliminary objection raises an important issue concerning the consensual basis of the Court's jurisdiction where the legal interests of third States are involved in a case. Articles 62 and 63 of the Court's Statute, which allow for intervention, show that the parties to a case may have their claims adjudicated by the Court, even when the legal interests of third States may be affected by the Court's decision. There is, however, a limit to the exercise of jurisdiction in a case affecting the legal interests of a third State, and that limit is where, according to the well-known formula of the case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question), the third State's "legal interests would not only be affected by a decision, but would form the very subject-matter of the decision" (I.C.J. Reports 1954, p. 32).

That the legal interests of New Zealand and the United Kingdom will form the very subject-matter of any decision in Nauru's case against Australia is surely manifest. The Mandate for Nauru was in 1920 conferred upon "His Britannic Majesty"; the Trusteeship Agreement of 1947 designated

"The Governments of Australia, New Zealand and the United Kingdom (hereinafter called 'the Administering Authority') as the joint Authority which will exercise the administration of the Territory";

New Zealand and the United Kingdom were two of the three members of the British Phosphate Commissioners; and they were both joint parties to the Canberra Agreement of 1967. This is to mention only the salient instances of the inextricable involvement of the legal interests of those two States in this matter.
Moreover, one must contemplate the situation that must arise if, on the merits, there should be any question of assessing the reparation that might be due from Australia (see para. 48 of the Judgment). If the obligations from which the liability arises are held to be solidary (joint and several) so that Australia is liable for the whole, or whether, alternatively, Australia is held liable only for some proportion of the whole sum, it is clear in either case that the Court will unavoidably and simultaneously be making a decision in respect of the legal interests of those two other States.

[p. 311 D.O. Oda] 12. ... It is extremely important to note that the Canberra Agreement reached by both parties (on the one hand, Australia, New Zealand and the United Kingdom; on the other, the Nauru Local Government Council) on 14 November 1967, just on the eve of the independence of Nauru, to arrange for the future operation, after independence, of the phosphate industry, did not make any mention of the issue of rehabilitation. Counsel for Nauru explained at the hearings that rehabilitation was not mentioned in the 1967 Agreement on the understanding that the issue would be dealt with separately. In fact that issue was not dealt with separately, and no suggestion seems to have been made by the Nauruan authorities to deal with this issue independently of that Agreement.

13. The Court states in this respect as follows:

"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 ..." (Judgment, para. 16.)

I am unconvinced by this reasoning, for it seems to me that, on the contrary, it was imperative for the Nauruans to reserve the claim to rehabilitation in this crucial document, drawn up at a critical date, if it were not to be held abandoned. The link between the future exploitation of the phosphates and the effect of previous exploitation was too close for it to be seriously argued that a reference to the claim would have been out of place. The fact that the issue of rehabilitation was not mentioned at all cannot, therefore, be dismissed as irrelevant. Hence, while it is literally true that the text of the Agreement cannot be construed to imply a waiver, the silence of the Agreement remains, in my view, open to that conclusion.

[p. 326 D.O. Ago] 2. My reason for taking the position I have indicated and for writing this opinion is that I am compelled to take note of an insurmountable contradiction between two facts. There is, on the one hand, the fact that the Government of Nauru has brought proceedings, against Australia alone, for the purpose of enforcing its claims with respect to the "rehabilitation" of its territory. But it is, on the other hand, equally unquestionable that first the League of Nations and then the United Nations entrusted the task of administering Nauru jointly to three distinct sovereign entities, namely the United Kingdom, Australia and New Zealand. This authority was conferred on a basis of complete legal equality between the three Powers. To be sure, the participation of one of them, Australia, in the discharge of the tasks involved in administering the territory under the joint Trusteeship of three States might, in point of fact, be more substantial than that of the two others. But this could in no way affect the fundamental situation of equality of rights and obligations between the three partners, a situation which, in addition, was particularly guaranteed as regards the mining of phosphate deposits.

3. It is by reason of the contradiction referred to above that, in considering all the preliminary objections raised by Australia in the present case, I have felt unable to avoid ascribing decisive importance to one, namely the objection based on the fact that two of the three Powers to which Trusteeship over Nauru had been jointly assigned were not parties to the proceedings. I wish to make it perfectly clear that I am referring to that objection alone, since, in the case of all the others, I fully concur with the majority of the Court in considering that they should be rejected.

[p. 328 D.O. Ago] In fact, it is precisely by ruling on these claims against Australia alone that the Court will, inevitably, affect the legal situation of the two other States, namely, their rights and their obligations. If, when dealing with the merits of the case, the Court were to recognize that responsibility and accordingly seek to determine the share of the responsibility falling upon Australia, it would thereby indirectly establish that the remainder of the responsibility would fall upon the two other States. Even if the Court were to decide - on what would, incidentally, be an extremely questionable basis - that Australia was to shoulder in full the responsibility in question, that decision would, equally inevitably and just as unacceptably, affect not only the "interests" but also the legal situation of two States that are not parties to the proceedings. In either case, the exercise by the Court of its jurisdiction would be deprived of its indispensable consensual basis.

[p. 331 D.O. Schwebel] The essence of my view is that, if a judgment of the Court against a present State will effectively determine the legal obligations of one or more States which are not before the Court, the Court should not proceed to consider rendering judgment against the present State in absence of the others. The fact that the timing of the finding of the responsibility of the absent party precedes such a finding in respect of the present party, or that the finding of the responsibility of the absent party is a logical prerequisite to the finding of the responsibility of the present party, is not significant. What is dispositiv is whether the determination of the legal rights of the present party effectively determines the legal rights of the absent party.