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World Court Digest

III. The International Court of Justice
2.3. The Optional Clause
2.3.3. Reservations

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

[pp. 245-247] 8. The Court will begin by considering the question of its jurisdiction. In its Application, Nauru bases jurisdiction on the declarations whereby Australia and Nauru have accepted the jurisdiction of the Court under Article 36, paragraph 2, of the Statute. Those declarations were deposited with the Secretary-General of the United Nations on 17 March 1975 in the case of Australia and on 29 January 1988 in the case of Nauru. The declaration of Nauru stipulates that Nauru's acceptance of the Court's jurisdiction does not extend to "any dispute with respect to which there exists a dispute settlement mechanism under an agreement between the Republic of Nauru and another State". The declaration of Australia, for its part, specifies that it "does not apply to any dispute in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement".

9. Australia contends that as a result of the latter reservation the Court lacks jurisdiction to deal with Nauru's Application. It recalls in that respect that Nauru, having been previously administered under a League of Nations Mandate, was placed under the Trusteeship System provided for in Chapter XII of the United Nations Charter by a Trusteeship Agreement approved by the General Assembly on 1 November 1947. That Agreement provided that the administration of Nauru was to be exercised by an Administering Authority made up of the Governments of Australia, New Zealand and the United Kingdom. Australia argues that any dispute which arose in the course of the Trusteeship between "the Administering Authority and the indigenous inhabitants" fell within the exclusive jurisdiction of the United Nations Trusteeship Council and General Assembly. Those organs, kept informed about Nauruan affairs by the Visiting Missions appointed by the Trusteeship Council, by petitions from the inhabitants, and by the reports of the Administering Authority, could make recommendations with respect to such disputes, not only to that Authority, but also to the representatives of the Nauruan people; they could also prompt negotiations with a view to settlement of such disputes. But in any event, according to Australia, any dispute of that type should be regarded as having been settled by the very fact of the termination of the Trusteeship, provided that that termination was unconditional.

10. In the present case, Australia emphasizes that the Nauru Local Government Council - an organ, created in 1951, representing the Naurvan community and which, from 1963 onwards, had been, in many respects, responsible for local administrative tasks - raised with the United Nations the question of rehabilitation of the worked-out phosphate lands from 1965 onwards. That question was discussed in subsequent years, both within the United Nations and in direct contacts. At the end of those discussions, an Agreement relating to the Nauru Island Phosphate Industry was concluded on 14 November 1967 between the Nauru Local Government Council, on the one hand, and Australia, New Zealand and the United Kingdom, on the other, the effect of which, in Australia's submission, was that Nauru waived its claims to rehabilitation of the phosphate lands. Australia maintains, moreover, that on 19 December 1967, the United Nations General Assembly terminated the Trusteeship without making any reservation relating to the administration of the Territory. In those circumstances, Australia contends that, with respect to the dispute presented in Nauru's Application, Australia and Nauru had agreed "to have recourse to some other method of peaceful settlement" within the meaning of the reservation in Australia's declaration, and that consequently the Court lacks jurisdiction to deal with that dispute.

11. The Court does not consider it necessary to enter at this point into the details of the arguments thus advanced. Declarations made pursuant to Article 36, paragraph 2, of the Statute of the Court can only relate to disputes between States. The declaration of Australia only covers that type of dispute; it is made expressly "in relation to any other State accepting the same obligation ...". In these circumstances, the question that arises in this case is whether Australia and the Republic of Nauru did or did not, after 31 January 1968, when Nauru acceded to independence, conclude an agreement whereby the two States undertook to settle their dispute relating to rehabilitation of the phosphate lands by resorting to an agreed procedure other than recourse to the Court. No such agreement has been pleaded or shown to exist. That question has therefore to be answered in the negative. The Court thus considers that the objection raised by Australia on the basis of the above-mentioned reservation must be rejected.