III. | The International Court of Justice |
2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
2.8. | Jurisdiction and Third States |
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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.