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III. The International Court of Justice
2.2. Conditions for a Decision on the Merits
2.2.4. Admissibility

¤ 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.