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III. The International Court of Justice
3.4. The Submissions / Scope of the Dispute

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

[pp. 265-267] 63. The Court will first deal with the Australian objection based on its contention that the Nauruan claim is a new one. Australia maintains that the claim in question is inadmissible on the ground that it appeared for the first time in the Nauruan Memorial; that Nauru has not proved the existence of any real link between that claim, on the one hand, and its claims relating to the alleged failure to observe the Trusteeship Agreement and to the rehabilitation of the phosphate lands, on the other; and that the claim in question seeks to transform the dispute brought before the Court into a dispute that would be of a different nature. Nauru, for its part, argues that its claim concerning the overseas assets of the British Phosphate Commissioners does not constitute a new basis of claim and that, even if it were formally so, the Court could nevertheless entertain it; that the claim is closely related to the matrix of fact and law concerning the management of the phosphate industry during the period from 1919 until independence; and that the claim is "implicit" in the claims relating to the violations of the Trusteeship Agreement and "consequential on" them.

64. The Court notes in the first place that no reference to the disposal of the overseas assets of the British Phosphate Commissioners appears in Nauru's Application, either as an independent claim or in relation to the claim for reparation submitted, and that the Application nowhere mentions the Agreement of 9 February 1987, notwithstanding the statement contained in the letter of the President of Nauru dated 23 July 1987 that he was leaving the matter "perhaps for another place and another time" (see paragraph 61 above). On the other hand, the Court notes that, after reiterating the claims previously made in its Application, Nauru adds, at the end of its Memorial, the following submission:

"Requests the Court to adjudge and declare further
that the Republic of Nauru has a legal entitlement to the Australian allocation of the overseas assets of the British Phosphate Commissioners ..." (Emphasis added.)

This submission is presented separately, in the form of a distinct paragraph.

65. Consequently, the Court notes that, from a formal point of view, the claim relating to the overseas assets of the British Phosphate Commissioners, as presented in the Nauruan Memorial, is a new claim in relation to the claims presented in the Application. Nevertheless, as the Permanent Court of International Justice pointed out in the Mavrommatis Palestine Concessions case:

"The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law." (P.C.I.J., Series A, No. 2, p. 34; cf. also Northern Cameroon, I.C.J. Reports 1963, p. 28.)

The Court will therefore consider whether, although formally a new claim, the claim in question can be considered as included in the original claim in substance.

66. It appears to the Court difficult to deny that links may exist between the claim made in the Memorial and the general context of the Application. What is more, Australia has acknowledged before the Court that the "assets distributed in 1987 were derived from a number of sources" and that "some of [them] may have been derived from the proceeds of sale of Nauruan phosphate"; and Nauru, in its Application, has alleged that the phosphate industry on the island was carried on in such a way that the real benefit went to the three States - principally Australia -, that exploitation of the phosphate had resulted in the devastation of the land and that inadequate royalties had been paid to the Nauruan people. Moreover, the Court also notes that the diplomatic correspondence exchanged by the Parties in 1987 (see paragraph 61 above) indicates that the Nauruan Government considered that there was a link between its claim for rehabilitation of the worked-out lands and the disposal of the overseas assets of the British Phosphate Commissioners.

67. The Court, however, is of the view that, for the claim relating to the overseas assets of the British Phosphate Commissioners to be held to have been, as a matter of substance, included in the original claim, it is not sufficient that there should be links between them of a general nature. An additional claim must have been implicit in the application (Temple of Preah Vihear, Merits, I.C.J. Reports 1962, p. 36) or must arise "directly out of the question which is the subject-matter of that Application" (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, I.C.J. Reports 1974, p. 203, para. 72). The Court considers that these criteria are not satisfied in the present case.

68. Moreover, while not seeking in any way to prejudge the question whether there existed, on the date of the filing of the Application, a dispute of a legal nature between the Parties as to the disposal of the overseas assets of the British Phosphate Commissioners, the Court is convinced that, if it had to entertain such a dispute on the merits, the subject of the dispute on which it would ultimately have to pass would be necessarily distinct from the subject of the dispute originally submitted to it in the Application. To settle the dispute on the overseas assets of the British Phosphate Commissioners the Court would have to consider a number of questions that appear to it to be extraneous to the original claim, such as the precise make-up and origin of the whole of these overseas assets; and the resolution of an issue of this kind would lead it to consider the activities conducted by the Commissioners not only, ratione temporis, after 1 July 1967, but also, ratione loci, outside Nauru (on Ocean Island (Banaba) and Christmas Island) and, ratione materiae, in fields other than the exploitation of the phosphate (for example, shipping).

69. Article 40, paragraph 1, of the Statute of the Court provides that the "subject of the dispute" must be indicated in the Application; and Article 38, paragraph 2, of the Rules of Court requires "the precise nature of the claim" to be specified in the Application. These provisions are so essential from the point of view of legal security and the good administration of justice that they were already, in substance, part of the text of the Statute of the Permanent Court of International Justice, adopted in 1920 (Art. 40, first paragraph), and of the text of the first Rules of that Court, adopted in 1922 (Art. 35, second paragraph), respectively. On several occasions the Permanent Court had to indicate the precise significance of these texts. Thus, in its Order of 4 February 1933 in the case concerning the Prince von Pless Administration (Preliminary Objection), it stated that:

"under Article 40 of the Statute, it is the Application which sets out the subject of the dispute, and the Case, though it may elucidate the terms of the Application, must not go beyond the limits of the claim as set out therein ..." (P.C.I.J., SeriesA/B, No. 52, p. 14).

In the case concerning the Société commerciale de Belgique, the Permanent Court stated:

"It is to be observed that the liberty accorded to the parties to amend their submissions up to the end of the oral proceedings must be construed reasonably and without infringing the terms of Article 40 of the Statute and Article 32, paragraph 2, of the Rules which provide that the Application must indicate the subject of the dispute. ... it is clear that the Court cannot, in principle, allow a dispute brought before it by application to be transformed by amendments in the submissions into another dispute which is different in character. A practice of this kind would be calculated to prejudice the interests of third States to which, under Article 40, paragraph 2, of the Statute, all applications must be communicated in order that they may be in a position to avail themselves of the right of intervention provided for in Articles 62 and 63 of the Statute." (P.C.I.J., Series A/B, No. 78, p. 173; cf. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, I.C.J. Reports 1984, p. 427, para. 80.)

70. In the light of the foregoing, the Court concludes that the Nauruan claim relating to the overseas assets of the British Phosphate Commissioners is inadmissible inasmuch as it constitutes, both in form and in substance, a new claim, and the subject of the dispute originally submitted to the Court would be transformed if it entertained that claim.