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World Court Digest

Summaries of the Decisions

Case Concerning Certain Phosphate Lands in Nauru, Preliminary Objections

(Nauru v. Australia)
Judgment of 26 June 1992

On May 19, 1989 Nauru filed an application instituting proceedings against Australia in respect of a dispute over the rehabilitation of certain phophate lands in Nauru worked out prior to Nauruan independence. According to Nauru´s submissions, Australia was responsible for the breach of several international legal obligations, in particular, obligations arising from the Trusteeship Agreement, the principle of self-determination and the obligation to respect the right of the Nauruan people to permanent sovereignty over their natural wealth and resources.

The Court first considered the question of its jurisdiction. Australia maintained that any dispute which arose in the course of the trusteeship between the Administering Authority and the indigenous inhabitants should be regarded as having been settled by the very fact of the termination of the trusteeship. That unconditional termination means, according to Australia, that the parties "have agreed ... to have recourse to some other method of peaceful settlement" in the sense of Australia´s declaration under Art. 36 para. 2 of the Statute of the Court. The Court rejected this objection as Australia´s declaration only applied to states. After 31 January 1968, when Nauru acceded to independence, no agreement pursuant to Australia´s declaration had been pleaded or shown to exist. The Court also rejected Australia´s objection according to which Nauruan authorities, even before acceding to independence, had waived all claims relating to rehabilitation of the phophate lands. Australia then argued, without success, that Nauru´s claim was "inadmissible on the ground that termination of the trusteeship by the United Nations precluded allegations or breaches of the Trusteeship Agreement from now being examined by the Court." Furthermore, Australia objected that Nauru raised its claims regarding rehabilitation of the lands only in 1988, more than 20 years after achieving independence. According to the judgment, it was for the Court to determine in the light of the circumstances of each case whether the passage of time rendered an application inadmissible. Given the nature of relations between Australia and Nauru, Nauru´s application was considered admissible.

The Court then considered the objection by Australia that New Zealand and the United Kingdom were not parties to the proceedings. Those two states, together with Australia, constituted the Administering Authority for Nauru under the Trusteeship Agreement, but

Australia played a very special role established by several agreements and by practice. The Court pointed out that third states were free to apply for permission to intervene in accordance with Art. 62 of the Statute. But the absence of such a request for intervention, the Court determined, in no way precluded it from adjudicating upon the claims submitted, provided that the legal interests of the third state did not form the very subject-matter of the decision. The interests of New Zealand and the United Kingdom did not constitute the very subject-matter of the judgment. The Court thus, also rejected Australia´s objection that New Zealand and the United Kingdom were not parties to the proceedings.

Finally, the Court dealt with Australia´s objection that Nauru´s claim concerning the overseas assets of the British Phophate Commissioners was a new claim incompatible with Arts. 40 para. 1 and 38 para. 2 of the Statute. The Court found that the preliminary objection raised by Australia on this point was well founded.

The Court concluded that it had jurisdiction to entertain the application filed by the Republic of Nauru on 19 May 1989 and that the said application was admissible except as to the claim regarding the overseas assets of the British Phophate Commissoners.

On September 9, 1993, Nauru and Australia notified the Court that they had reached a friendly settlement. By order of 13 September 1993, the Court placed on record the discontinuance, by agreement of the parties, of the proceedings initiated on 19 May 1989 by the Republic of Nauru against the Commonwealth of Australia and directed that the case be removed from the list.