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World Court Digest

I. Substantive International Law - First Part
7.7. Suspension and Termination

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

[p. 311 D.O. Oda] 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.