For Australia : Mr. Gavan Griffith, Q.C.,
Mr. Eduardo Jiménez de Aréchaga,
Mr. Derek W. Bowett, Q.C.,
Mr. Henry Burmester,
Mr. Alain Pellet.
For Nauru : Mr. V. S. Mani,
H.E. Mr. Hammer DeRoburt, G.C.M.G., O.B.E., M.P.,
Mr. Leo D. Keke,
Mr. Barry Connell,
Mr. Ian Brownlie, Q.C.,
Mr. James Crawford.
During the hearings, questions were put by Members of the Court to both Parties, and replies were given either orally or in writing.
On behalf of the Government of Nauru,
in the Memorial :
"On the basis of the evidence and legal argument presented in this Memorial, the Republic of Nauru
Requests the Court to adjudge and declare that the Respondent State bears responsibility for breaches of the following legal obligations :
First: the obligations set forth in Article 76 of the United Nations Charter and Articles 3 and 5 of the Trusteeship Agreement for Nauru of 1 November 1947.
Second: the international standards generally recognized as applicable in the implementation of the principle of self-determination.
Third: the obligation to respect the right of the Nauruan people to permanent sovereignty over their natural wealth and resources.
Fourth: the obligation of general international law not to exercise powers of administration in such a way as to produce a denial of justice lato sensu.
Fifth : the obligation of general international law not to exercise powers of administration in such a way as to constitute an abuse of rights.
Sixth: the principle of general international law that a State which is responsible for the administration of territory is under an obligation not to bring about changes in the condition of the territory which will cause irreparable damage to, or substantially prejudice, the existing or contingent legal interest of another State in respect of that territory.
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 which were marshalled and disposed of in accordance with the trilateral Agreement concluded on 9 February 1987.
Requests the Court to adjudge and declare that the Respondent State is under a duty to make appropriate reparation in respect of the loss caused to the Republic of Nauru as a result of the breaches of its legal obligations detailed above and its failure to recognize the interest of Nauru in the overseas assets of the British Phosphate Commissioners."
On behalf of the Government of Australia,
in the Preliminary Objections :
"On the basis of the facts and law presented in these Preliminary Objections, the Government of Australia requests the Court to adjudge and declare that the Application by Nauru is inadmissible and that the Court lacks jurisdiction to hear the claims made by Nauru for all or any of the reasons set out in these Preliminary Objections."
On behalf of the Government of Nauru,
in the Written Statement of its Observations and Submissions on the Preliminary Objections :
"In consideration of the foregoing the Government of Nauru requests the Court :
To reject the preliminary objections of Australia, and
To adjudge and declare:
(a) that the Court has jurisdiction in respect of the claim presented in the Memorial of Nauru, and
(b) that the claim is admissible."
On behalf of the Government of Australia, at the hearing of 21 November 1991 :
"On the basis of the facts and law set out in its Preliminary Objections and its oral pleadings, and for all or any of the grounds and reasons set out therein, the Government of Australia requests the Court to adjudge and declare that the claims by Nauru against Australia set out in their Application and Memorial are inadmissible and that the Court lacks jurisdiction to hear the claims."
On behalf of the Government of Nauru,
at the hearing of 22 November 1991 :
"In consideration of its written and oral pleadings the Government of the Republic of Nauru requests the Court:
To reject the preliminary objections raised by Australia, and To adjudge and declare:
(a) that the Court has jurisdiction in respect of the claims presented in the Memorial of Nauru, and
(b) that the claims are admissible.
In the alternative, the Government of the Republic of Nauru requests the Court to declare that some or all of the Australian preliminary objections do not possess, in the circumstances of the case, an exclusively preliminary character, and in consequence, to join some or all of these objections to the merits."
"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.
"[the island had the] good fortune [to possess] large deposits of high-grade phosphate. That economic base, of course, presented its own problems. One which worried the Nauruans derived from the fact that land from which phosphate had been mined would be totally unusable. Consequently, although it would be an expensive operation, that land would have to be rehabilitated and steps were already being taken to build up funds to be used for that purpose. That phosphate was a wasting asset was, in itself, a problem; in about twenty-five years’ time the supply would be exhausted. The revenue which Nauru had received in the past and would receive during the next twenty-five years would, however, make it possible to solve the problem. Already some of the revenue was being allocated to development projects... In addition, a much larger proportion of its income was being placed in a long-term investment fund, so that, whatever happened, future generations would be provided for. In short, the Nauruans wanted independence and were confident that they had the resources with which to sustain it."
Australia argues that this statement amounted to an undertaking by the Nauruan authorities to finance any rehabilitation of lands worked out in the past from revenue deriving from future exploitation, and that it consequently constituted a waiver of any claim against the Administering Authority.
"the responsibility for rehabilitating the Island, in so far as it is the Administering Authority’s, remains with the Administering Authority. If it should turn out that Nauru gets its own independence in January 1968, from then on the responsibility will be ours. A rough assessment of the portions of responsibility for this rehabilitation exercise then is this : one-third is the responsibility of the Administering Authority and two-thirds is the responsibility of the Nauruan people."
In the spring of 1967, the representative of the people of Nauru again emphasized before the Trusteeship Council, at its thirty-fourth session, that "the Administering Authority should accept responsibility for the rehabilitation of the lands already mined".
"There was one subject, however, on which there was still a difference of opinion — responsibility for the rehabilitation of phosphate lands. The Nauruan people fully accepted responsibility in respect of land mined subsequently to 1 July 1967, since under the new agreement they were receiving the net proceeds of the sale of phosphate. Prior to that date, however, they had not received the net proceeds and it was therefore their contention that the three Governments should bear responsibility for the rehabilitation of land mined prior to 1 July 1967. That was not an issue relevant to the termination of the Trusteeship Agreement, nor did the Nauruans wish to make it a matter for United Nations discussion. He merely wished to place on record that the Nauruan Government would continue to seek what was, in the opinion of the Nauruan people, a just settlement of their claims."
The Trusteeship Council then adopted a draft resolution recommending the termination of the Trusteeship. Its report was submitted to the Fourth Committee of the General Assembly and it was during the proceedings of the Fourth Committee that Head Chief DeRoburt made the statement quoted above which Australia contends amounted to a waiver.
"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".
"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.
"immediate steps be taken by the Administering Authority towards restoring the island of Nauru for habitation by the Nauruan people as a sovereign nation" (resolution 2111 (XX)).
"the administering authority... take immediate steps, irrespective of the cost involved, towards restoring the island of Nauru for habitation by the Nauruan people as a sovereign nation" (resolution 2226 (XXI)).
During the discussions in the Fourth Committee, following the statement by Head Chief DeRoburt mentioned in paragraph 17 above, the representative of the USSR again referred to the problem and the representative of India recalled that
"With regard to the question of responsibility for the rehabilitation of the mined areas of the island, there was still a considerable difference of opinion between the Nauruans and the Administering Authority."
The representative of India further expressed the hope that an equitable agreement would be concluded in this respect. Again, the representatives of the Administering Authority did not react.
"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."
"the claim of Nauru is, in substance, not a claim against Australia itself but a claim against the Administering Authority in relation to Nauru".
The Court, it is argued, could therefore not pass upon the responsibility of the Respondent without adjudicating upon the responsibility of New Zealand and the United Kingdom; these two States are in reality "parties to the dispute"; but they are not parties to the proceedings. Australia accordingly contends that
"the claims [of Nauru] are inadmissible and the Court lacks jurisdiction as any judgment on the question of breach of the Trusteeship Agreement would involve the responsibility of third States that have not consented to the Court’s jurisdiction in the present case".
"The Administration of the Island shall be vested in an Administrator. The first Administrator shall be appointed for a term of five years by the Australian Government; and thereafter the Administrator shall be appointed in such manner as the three Governments decide."
It was further provided that
"All Ordinances made by the Administrator shall be subject to confirmation or disallowance in the name of His Majesty, whose pleasure in respect of such confirmation or disallowance shall be signified by one of His Majesty’s Principal Secretaries of State, or by the Governor-General of the Commonwealth of Australia... or by the Governor-General of the Dominion of New Zealand... according as the Administrator shall have been appointed by His Majesty’s Government in London, or by the Government of the Commonwealth of Australia, or by the Government of the Dominion of New Zealand, as the case may be."
The text added :
"The Administrator shall conform to such instructions as he shall from time to time receive from the Contracting Government by which he has been appointed."
Provision was made finally for a system whereby decisions taken by the Administrator were communicated to the three Governments concerned.
"The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be :
(b) to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement".
"The Governments of Australia, New Zealand and the United Kingdom (hereinafter called ‘the Administering Authority’) are hereby designated as the joint Authority which will exercise the administration of the Territory."
It added in Article 4 that :
"The Administering Authority will be responsible for the peace, order, good government and defence of the Territory, and for this purpose, in pursuance of an Agreement made by the Governments of Australia, New Zealand and the United Kingdom, the Government of Australia will, on behalf of the Administering Authority and except and until otherwise agreed by the Governments of Australia, New Zealand and the United Kingdom, continue to exercise full powers of legislation, administration and jurisdiction in and over the Territory."
"the Republic of Nauru has a legal entitlement to the Australian allocation of the overseas assets of the British Phosphate Commissioners which were marshalled and disposed of in accordance with the trilateral Agreement concluded on 9 February 1987"
"the Respondent State is under a duty to make appropriate reparation in respect of the loss caused to the Republic of Nauru as a result of... its failure to recognize the interest of Nauru in the overseas assets of the British Phosphate Commissioners".
"title to the phosphate deposits... and to all land, buildings, plant, and equipment on the island used in connection with the working of the deposits shall be vested in the Commissioners" ;
Article 9 provided on the one hand that the deposits would "be worked and sold under the direction, management, and control of the Commis-sioners" and, on the other, that it would be the duty of the latter "to dispose of the phosphates for the purpose of the agricultural requirements of the United Kingdom, Australia and New Zealand, so far as those requirements extend"; and, although in accordance with Articles 10 and 11, the sale of phosphates to third States and at market prices was to be exceptional — it being mandatory for priority sales to the three Partner Governments to be at a price close to the cost price —, Article 12 provided that any surplus funds accumulated as a result of sales to third States or otherwise would
"be credited by the Commissioners to the three Governments... and held by the Commissioners in trust for the three Governments to such uses as those Governments may direct...".
"to be good enough at least to keep the funds of the British Phosphate Commissioners intact without disbursement until the conclusion of the task of the... Commission of Inquiry (into rehabilitation set up by Nauru on 3 December 1986) [and] that the office records and other documents of the... Commissioners may kindly be kept preserved and that the said Commission of Inquiry be permitted to have access to and use of these records and documents".
After the conclusion of the Tripartite Agreement of 9 February 1987, the President of Nauru addressed, on 4 May 1987, a letter to the Australian Minister for Foreign Affairs in which, among other things, he stated that :
"My government takes the strong view that such assets, whose ultimate derivation largely arises from the very soil of Nauru Island, should be directed towards assistance in its rehabilitation, particularly to that one-third which was mined prior to independence."
By a letter of 15 June 1987, the Australian Minister for Foreign Affairs replied in the following terms :
"The BPC and the Partner Governments have discharged fairly all outstanding obligations. The residual assets of the BPC were not derived from its Nauru operations."
Lastly, a further letter addressed on 23 July 1987 to the Australian Minister for Foreign Affairs by the President of Nauru contained the following passage :
"I am sure, taking into account my Government’s knowledge of the manner of accumulation of surplus funds by the BPC, that you would not be surprised if I were to say that I find it difficult to accept your statement that the residual assets of the BPC were not derived in part from its Nauru operations. I shall not, however, pursue that here but leave it perhaps for another place and another time."