JSPL - Article - International Dispute Resolution, Nauru v Australia

A dispute may be defined as ‘a specific disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with refusal, counter-claim or denial by another. In the broadest sense, an international dispute can be said to exist whenever such a disagreement involves governments . . .’ [1] This definition expands that relied on by the International Court of Justice (‘the ICJ’) as ‘a disagreement on a point of law or fact, a conflict of legal views or interests between parties’[2] although that definition is perceived as having inherent technical difficulties[3] since Sir Robert Jennings considered that:

‘ . . . the rubric “legal dispute” should be understood as indicating not only something about the objective character of a dispute submitted to a court but much more the highly technical procedure whereby the Court and the parties together reduce their dispute into a form which renders it manageable in an adversarial procedure in a court of law, in a word, made “justiciable” [4]

Chapter 11, Article 34 of the Statute of the International Court of Justice provides:

Pursuant to Article 33 of the United Nations (‘UN’) Charter there is a codification of alternative methods open to states to resolve disputes including judicial settlement. Alternative dispute resolution, while supported by the same arguments internationally as domestically, involves very different considerations[6] but Article 33 highlights nonjudicial methods of settlement.[7]

Australia shares with all other member states of the United Nations the obligation to settle disputes peacefully[8]

‘The Organization and its Members, in pursuit of the purposes stated in Article 1, shall act in accordance with the following Principles:

3. All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.’ [9]

In the dispute with Nauru, Australia rejected the opportunities to employ alternative methods proposed by Article 33 until prompted by the less welcome formalities and adversarial nature[10] of the ICJ decision on Australia’s Preliminary Objection.[11]

The unique[12] claim by Nauru against Australia was an international dispute. It was David and Goliath in a modern and political setting,[13] a microcosm[14] illustrative of the large historical events of the twentieth century in that dispute elements included commercial and strategic colonization, exploitation, war-time occupation, decolonization and independence. The dispute arose in respect of the period of UN Trusteeship prior to Nauru’s independence on 31 January 1968.[15] There was an economic power imbalance with Nauru as the former object of the Trusteeship struggling to assert its claim for compensation and faced with the depletion of the natural resources to which it turned for its economic survival. It is submitted that political independence without economic viability is a nullity.

On May 19, 1989 Nauru filed an application in the ICJ instituting proceedings against Australia[16] in respect of rehabilitation in Nauru of certain phosphate lands worked out prior to Nauruan independence. The basis of the dispute had been crystallised in the findings of the Independent Commission of Inquiry appointed by the Government of Nauru on 3 December 1986.[17] Nauru lodged its claim against Australia but ‘ could not bring its claim against the other two states’[18] New Zealand and Great Britain, which had been joint mandatories and trustees.

According to submissions,[19] lodged in its memorial in April 1990, Nauru alleged that Australia during the period of its joint trusteeship, had breached several international legal obligations, in particular:

à obligations arising from Articles 3, 5 and 6 of the Trusteeship Agreement[20] for Nauru dated 1 November 1947[21] wherein Nauru became UN Trust Territory;

à the principle of self-determination pursuant to Article 76 of the UN Charter;[22] and

à the obligation to respect the right of the Nauruan people to permanent sovereignty over their natural wealth and resources. [23]

à Australia had mined out the most valuable economic resource of Nauru, the phosphate;

à had failed to recompense the Nauruans adequately both in the initial sale price; and

Nauru considered it had a right to look for rehabilitation costs to those governments which had caused serious environmental damage to a significant part of its land area[25] and which had profited unduly from the exploitation of the phosphate resources.

For the purposes of the ICJ claim by Nauru, Australia was most proximate because of:

the withdrawal by Australia of its reservations to the Optional Declaration[26] which enabled Nauru to focus on Australia in the ICJ; and

Australia’s position as Administering Authority in Nauru throughout most of the period before Nauruan independence even though the joint members of the international Mandate[27] and Trusteeship included New Zealand and Great Britain.

The disputants had therefore had previous dealings with each other[28] in that the trustees had developed and exploited Nauru’s phosphate resources so there was ‘a polycentric character both in the substance of the dispute which involved the claim for reparations for depleted resources and in the various interests of all the participants.’[29] It is also true, that in a real sense all states have an interest in an international dispute,[30] in this case particularly the post-colonial regimes, both the objects of the colonial power and the previous colonial powers.[31]

Pursuant to Article 36.2 of the Statute of the ICJ Australia had accepted the compulsory jurisdiction of the ICJ on 6 February 1954 in respect of all legal disputes arising after 18 August 1930 ‘with regard to situations or facts subsequent to that date’ but excluded from the Declaration certain categories of disputes.[32] This Declaration was replaced[33] by one giving comprehensive acceptance of ICJ jurisdiction.[34]

Pursuant to Article 36.2 of the Statute of the ICJ, on 30 December 1987 Nauru issued a comprehensive Declaration accepting jurisdiction[35] and stipulating that the ‘acceptance of the Court’s jurisdiction shall extend to all disputes to which the Republic is or may be a party . . .’ other than an extant dispute settlement mechanism already agreed upon between Nauru and another State.[36] This Declaration was deposited with the Secretary-General of the United Nations on 29 January 1988.[37] Given the timing of Nauru’s Declaration which came after drawn out and unsuccessful attempted negotiations with Australia,[38] Nauru was well advised in this course and it might be speculated that the Chairman, Commission of Inquiry into International Responsibility for Phosphate Mining on Nauru (1987-1988)[39] was influential.

Instead of lodging a counter-memorial, Australia raised preliminary jurisdictional objections and argued that:

· its Article 36 para 2 Declaration dated 17 March 1975 specified that it did not apply to any dispute ‘in regard to which the partied thereto have agreed or shall agree to have recourse to some other method of peaceful settlement’ [40] and thus the ICJ did not have jurisdiction because the UN Trusteeship Council and General Assembly had exclusive jurisdiction [41] and in respect of the specific dispute, Australia and Nauru had agreed to another method of dispute resolution;[42]

· the Agreement relating to the Nauru Island Phosphate Industry concluded on 14 November 1967 was that Nauru waived its claims to rehabilitation of the phosphate lands;[43]

· on 19 December 1967 the UN General Assembly had terminated the Trusteeship with no reservation relating to the administration of the territory;[44]

· Nauru had delayed formally raising the matter of the rehabilitation of the phosphate lands until December 1988; [45] so had exceeded any reasonable limitation period by pressing its claim so late after independence;

· Nauru had failed to act consistently or in good faith in relation to its rehabilitation;[46]

· Nauru’s claim was in substance, not a claim against Australia but against the Administering Authority and therefore the joint trustees, Great Britain and New Zealand, needed to be parties to the dispute.[47]

On 26 June 1992 the ICJ ruled in the Preliminary Objections Judgement against Australia.[48]

Nauru, a western Pacific island, is notably the smallest republic in the world, so small that it has no capital.[49] It is a ‘micro-state exceptionally small in area, population and economic resources, but which has emerged as an independent state.[50] The population is approximately 10,500[51] of Polynesian, Micronesian and Melanesian origin; the religion is Christian and while Nauruan is spoken, English is the dominant written language.[52]

The island was allocated to Germany under the 1886 Anglo-German Convention[53]which partitioned the Pacific.[54] Phosphate was discovered a decade later; the Pacific Phosphate Company, acquired phosphate rights[55] until the year 2000[56] and started to exploit the reserves in 1906, by agreement with Germany.[57] The island was captured by Australian forces in 1914 and in 1920 the League of Nations[58] gave the mandate over the island to the Empire.[59]

A joint administering authority with Britain, Australia and New Zealand was formulated to placate competing claims of annexation and by a further arrangement, Australia became the administering authority in consultation with Britain and New Zealand (‘the mandatories’).[60] The British Phosphate Commissioners (‘the BPC’), a consortium of the mandatories, took over the phosphate industry.

After World War Two, the island became a UN Trust Territory[61] administered by Australia in joint trusteeship with Great Britain and New Zealand (‘the partner governments’) and so it remained until independence. The extraction of Nauru’s primary natural resource, phosphate, was developed throughout the periods of the mandate and the trusteeship.[62]

Anticipating the exhaustion of the phosphate reserves, a plan by the partner governments to resettle the Nauruans[63] was developed, proposed in 1964[64] but rejected by the islanders. Legislative and Executive Councils were established in 1966, providing a considerable measure of self-government.[65]

In 1967, the Nauruans contracted to purchase the assets of the BPC[66] and in June 1970 control passed to the Nauru Phosphate Corporation.[67]

Throughout the period of the Mandate and the Trusteeship 1920 to 1968, the administration on Nauru was Australian to which state the other mandatories and subsequently, trustees, gave local control. The Australian Administering Authority gave limited attention to culture,[68] education[69] improving educational facilities on the island and sponsoring Nauruans to Australia and Fiji for higher education though in these was prodded by the oversight of the administration by both the UN Trusteeship Council and the Nauru Local Government Council (‘the NLGC’).[70] Throughout this period a minuscule proportion of phosphate sale proceeds, significantly less that that available on the open market, were returned to the Nauruans.[71]

As Administering Authority Australia, particularly during the post World War Two Trusteeship, proved unresponsive to developments in international law vis à vis colonial regimes and self determination in spite of evidence that the partner governments accepted the necessity for change.[72] It was logical for Nauru to turn in the first instance to Australia since it had been the party most closely associated with Nauru from 1920 to 1968, a period of nearly fifty years; as the representative of the mandatory and trustee governments and the state theoretically at least, most conscious of Nauruan aspirations.

The foundations of Nauru’s dispute against Australia commenced in the period of the Mandate and continued under the Trusteeship. The implementation of the Mandate and Trusteeship imposed upon Nauru; the exploitation of Nauru’s most abundant natural resource, phosphate and the nationalism which motivated the Nauruans as it did so many former colonies after the Second World War were critical.[73]

Two salient foci of the dispute for the Nauruans were their independence and state sovereignty on the one hand and the phosphate resources and reparations on the other.[74] At the time of the ICJ application by Nauru,[75] it was a sovereign state but the question of its economic independence and future involved phosphate.

The Mandate system established by Article 22 of the Covenant of the League of Nations as formulated at the Paris Peace Conference in 1919[76] stated that the territories inhabited by peoples unable to stand by themselves would be entrusted to advanced nations until such time as the local population could handle its own affairs. As a result of the League of Nations post World War 1 allocation of territory which had previously been held by the German colonial power[77] Nauru became a mandated territory [78] with Britain, Australia and New Zealand having the Trustee Mandate.[79] On 2 July 1919, the London Agreement relating to Nauru[80] was concluded with Great Britain and New Zealand.

It was a ‘C’ Class mandate[81] distinguishable by the metropolitan power having greater authority for it could treat the mandated territory as ‘an integral part of its own territory’. It was supervised by the Permanent Mandates Commission of the League of Nations, to which it would be accountable[82] and under the general principle of tutelage or guardianship which involved the obligation to prepare the country in its charge for independence under the ‘sacred trust of civilization’:[83]

‘Peoples not yet able to stand by themselves under the strenuous conditions of the modern world there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization.’ [84]

The three mandatories whose primary interest in Nauru was phosphate, drafted the Nauru Island Agreement (‘the NIA’) of 1919[85] which determined that the phosphates were to be shared amongst the three signatories;[86] placed the administration essentially under Australian control and made provisions for the mining of Nauru’s lucrative phosphate deposits through the BPC.[87]

Under the NIA.[88] the former Pacific Phosphate Company was placed under the control of the BPC in which Britain, Australia and New Zealand held shares and took over the rights to phosphate mining.[89] This arrangement was contrary to the spirit of the Covenant of the League of Nations, and represented the exploitation of Nauruan interests.[90] It is also clear that at least two of the governments, Australia and New Zealand, in a display of post-war incipient imperialism, were primarily attracted to the healthy dividends from the Pacific Phosphate Company,[91] for cheap phosphate for their agriculture:[92]

Article 9 of the NIA provided that the phosphates be used for the ‘agricultural requirements of the United Kingdom, Australia and New Zealand’[93] and Article 11 provided that the phosphates would be sold at cost price and not at the open market price.

‘Whereas the Pacific Phosphate Company had produced phosphate as cheaply as possible in order to maximise its profits, the British Phosphate commission did so in order to maximise subsidies to Australasian farmers.’ [94]

The Administrator had power, ‘subject to the terms of this Agreement’[95] for the peace, order and good government of Nauru and Article 13 provided that ‘there shall be no interference by any of the three governments’ [96] in the phosphate industry.[97] In the Mandate lay the causes of Nauru’s dispute with Australia because the pattern of extractive exploitation had scant regard for the Nauruans’ future or for the fiduciary obligations that arose under the Mandate and the subsequent Trusteeship.

The supervisory function of the League of Nations for the dependent territories was in its infancy and lacked the practical means of effective inspection and supervision.[98] The NIA violated Article 22 of the Covenant of the League of Nations and Article 76[99] of the Charter of the UN[100] at least to the extent that it provided advantages for the mandatories and later the trustees; detriment to the Nauruans and so was an instrument in fundamental breach of Mandate and Trusteeship obligations.[101]

‘. . . this patent inconsistency between duty and interest on the part of the mandatories was doubly entrenched. How could so clear a contradiction between duty and interest have been enshrined in statute and become the legal basis of the phosphate industry, the life-blood of Nauru, for nearly fifty years?’ [102]

The importance of the Mandate was that the Nauruan material and moral well-being was a direct responsibility of an outside body, the League of Nations[103] and the Australian Government was sensitive to criticisms voiced by the Permanent Mandates Commission about the miserly allocation of royalties[104] to the Nauruans[105] about which the Nauruans themselves began to complain after 1921.[106]

The Nauruans were increasingly alienated from their physical environment and culture by the paternalistic Administration of Nauru and by the extraction of the phosphate..[107] A new agreement on 1 August 1927[108] between the Nauruans and the BPC failed to clarify the ownership of surface rights and mineral rights, the BPC position being that it held title to all the mineral rights and the Nauruans leased the surface rights by way of the NIA.[109] It was here that the mandatories failed to take account of their obligations to safeguard the material interests of the island’s indigenous population[110] and reflected the beginning of the concerns for the future of the Nauruans [111] because the BPC and Administrator’s pattern of dealings with Nauru begun under the Mandate was essentially what was continued under the Trusteeship.[112]

Nauru was administered thus until the outbreak of World War Two during which no phosphate was mined from 1941-1947.[113]

In 1947 the General Assembly of the UN in Chapter XII of the Charter established the Trusteeship System. Article 76 of the UN Chapter provided:

‘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;

c. to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world; and

d. to ensure equal treatment in social, economic, and commercial matters for all Members of the United Nations and their nationals and also equal treatment for the latter in the administration of justice without prejudice to the attainment of the foregoing objectives and subject to the provisions of Article 80. ‘

Pursuant to Article 85 of the UN Charter, in substitution for the Mandate and as its successor, the Territory of Nauru was placed under the Trusteeship System, and the Governments of Australia, New Zealand and the United Kingdom undertook to administer it on terms set forth in the Trusteeship Agreement. Thus, the same mandatory states became the trustee states.

The Trusteeship Agreement for the Territory of Nauru[114] built upon the previous Mandate:

‘In pursuance of a Mandate conferred upon His Britannic Majesty the Territory of Nauru has been administered in accordance with Article 22 of the Covenant of the League of Nations by the Government of Australia on the joint behalf of the Governments of Australia, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.

The Charter of the United Nations, signed at San Francisco on 26 June 1945, provides by Article 75 for the establishment of an International Trusteeship System for the administration and supervision of such territories as may be placed thereunder by subsequent individual agreements.‘ [115]

The Governments of Australia, New Zealand and the United Kingdom were designated as the joint Authority which would exercise the administration of the Territory.[116]

The Administering Authority undertook to administer the Territory in accordance with the provisions of the Charter and in such a manner as to achieve in the Territory the basic objectives of the International Trusteeship System.[117]

Full administrative authority was vested in Australia. The Administering Authority would be responsible for the peace, order, good government and defence of the Territory,[118] 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 would on behalf of the Administering Authority continue to exercise full powers of legislation, administration and jurisdiction in and over the Territory.

Pursuant to Article 5 the Administering Authority undertook that in the discharge of its obligations:

‘1. It will co-operate with the Trusteeship Council in the discharge of all the Council's functions under Articles 87 and 88 of the Charter;

(a) Take into consideration the customs and usages of the inhabitants of Nauru and respect the rights and safeguard the interests, both present and future, of the indigenous inhabitants of the Territory; and in particular ensure that no rights over native land in favour of any person not an indigenous inhabitant of Nauru may be created or transferred except with the consent of the competent public authority;

(b) Promote, as may be appropriate to the circumstances of the Territory, the economic, social, educational and cultural advancement of the inhabitants;

(c) Assure the inhabitants of the Territory, as may be appropriate to the particular circumstances of the Territory and its peoples, a progressively increasing share in the administrative and other services of the Territory and take all appropriate measures with a view to the political advancement of the inhabitants in accordance with Article 76(b) of the Charter;

(d) Guarantee to the inhabitants of the Territory, subject only to the requirements of public order, freedom of speech, of the press, of assembly and of petition, freedom of conscience and worship and freedom of religious teaching.’[119]

Article 6 provided that the Administering Authority further apply in the Territory the provisions of such international agreements and such recommendations of the specialized agencies referred to in Article 57 of the Charter as were, in the opinion of the Administering Authority, suited to the needs and conditions of the Territory and conducive to the achievement of the basic objectives of the Trusteeship System.

Australia was bound by the relevant articles of the UN Charter which provided that the interests of the indigenous population were paramount and the Administering Authority accepted as a ‘sacred trust’ the development of self-government of the people of the Trust Territory.[120] The NIA continued, however, and policy decisions for the Administering Authority were made in Australia by a remote Department of External Territories whose personnel had no particular knowledge of Nauru.[121]

With the Trusteeship Agreement came the restoration of the phosphate industry and an Administering Authority intent upon establishing a pre-war regime.[122] The BPC re-established the mining industry becoming a major source of trouble because it highlighted the deficiencies of the Administration in relation to rehabilitation in particular and exacerbated Nauruan discontent with the Administrators.[123] The Nauru Royalty Trust Fund was supplemented by the Nauru Community Long Term Investment Fund[124] intended to provide an income for the Nauruan people when the royalties from phosphate ceased.[125] The Commission of Inquiry[126] found however that these funds were the only provision for rehabilitation and the future survival of the Nauruans and at 30 June 1968 stood at the meagre level of $599,325.[127] In May 1947 a new royalty agreement was made [128] but the Nauruans continued to express concerns about their future via their Council of Chiefs.[129]

On 20 August 1951 there came into force the Nauru Local Government Council Ordinance with its first elections on 15 December 1951. The NLGC and in particular its leader after 1955, DeRoburt, in concert with the Trusteeship Council, acted in pursuit of Nauruan independence and self-determination as well as the reclamation of the phosphate rights for Nauruans. [130]

The partner governments, in accepting the Trusteeship, had undertaken to assist and guide the Nauruan people towards political and economic independence but the achievement of these goals had been ‘foisted upon the partner governments as an inevitability rather than as an objective they had actively pursued.’[131]

Herein lay the reality of the dispute: at independence, Nauru was despoiled from the phosphate mining activities of the signatories to the NIA and those same signatories were first the mandatories and then the trustees appointed by the UN to guide the Nauruans towards an economic and political independence. The Nauruans faced a bleak future: phosphate resources were expected to be mined out by 1994.[132] The environmental damage to the island was enough to raise prolonged contemplation of Nauruan relocation because the island was uninhabitable.[133] Their constitutional independence of 1968 would be mere appearance with no underlying economic independence to substantiate their sovereign state independence. It was a question of to whom could the Nauruans turn for assistance.

It has been noted that there are three principles that regulate this area of international law:[134]

1. international obligations arising from treaty or customary international law such as Nauru contended existed between Nauru and Australia arising from the Trusteeship Agreement and the UN Charter;

2. the breach of obligations by positive acts or by failing to carry out obligations.[135] Had Australia breached obligations and were the obligations imputable directly to Australia[136] when the trusteeship was joint

3. given the breach, the state responsible must make reparation for the liability that had occurred and that flowed from the breach.[137] In Australia’s case, was the responsibility joint and several.

In respect of obligations that were breached by positive acts or by failing to carry out obligations, the trustees of Nauru, the partner governments, had international obligations that were clearly enunciated in the UN Charter Chapter XII and the Trusteeship Agreement in respect of Nauru. Of the partner governments, Australia had represented the mandatories and the trustees in local administration throughout the period 1920 to 1968. In respect of Australia’s trusteeship: while trusteeship is a term which is long established and recognised in domestic internal law, these are not necessarily the same standards applicable to international obligations that might arise from the status of trusteeship unless, by virtue of analogous reasoning, they could be applied to the period of Trusteeship in Nauru.[138]

‘Although the United Nations trusteeship system . . .outlines a far clearer set of obligations undertaken by Australia, the mandate system . . . provides the legal framework against which Australia’s actions in its first phase of administering the island must be assessed.’[139] While the mandate system was an ‘institutional manifestation’[140] of far more paternalistic origins in the scheme of protection embodied therein, it was unique in representing an advance on the system of colonial rule in that ‘international accountability for the administration of the territory’[141] was incorporated as a principle with the recourse to the Permanent Court of International Justice.[142] It is submitted that Australia had not adjusted from the Mandate to the Trusteeship terms and conditions.

The international dispute between Nauru and Australia was long in the making and, prior to the lodgement of the Nauru claim in the ICJ, there had been several phases and processes through which the dispute had passed. They were gradual processes and would have been lengthier but for the role of the UN. Australia had the opportunity through the history of the dispute to employ Article 33 of the UN Charter methods of dispute resolution but failed to do so. The Mandate historically formed the origin of the dispute but contributed no process per se.

It is submitted that two bodies were crucial to the earlier phase of the Nauru v Australia dispute where the major processes employed were negotiation and fact-finding:

These bodies acted concurrently and contemporaneously and achieved reforms for the Nauruans.

3. It is submitted that there was a transition body, the Commission of Inquiry, which crystallised the issues and acted as catalyst for the lodgement of the claim in the ICJ.

4. Finally and crucial to the process of the dispute, there was the Preliminary Judgement of the ICJ which precipitated the settlement of the dispute.

The Trusteeship Council was set up by and functioned under the authority of the UN General Assembly whereby all the members could participate in the supervision of trust territories.[143] In contrast with the mandate system, where the exclusive responsibility lay with the Great Powers of the League Council, the General Assembly could and did, in the case of Nauru, use its powers to require schedules outlining the progress of the mandated territory towards independence. This factor significantly hastened Nauruan independence and the prevention of further depletion of the phosphate though resisted by the trustees,[144] in particular the Administrator Australia, which, it is submitted, retained a nineteenth century mindset vis à vis Nauru.

The Trusteeship Council replaced the paternalistic[145] Permanent Mandates Commission, though with limited power to ‘discuss, inquire and recommend’[146] and could not force its decisions upon the Administering Authority. It was used with increasing sophistication as intermediary by the NLGC and acted as an effective liaison with an Administering Authority which habitually disregarded the NLGC.[147]

Ø required schedules whereby the Trusteeship Council required the trustee power to outline the progress of the trust territory towards independence;

Ø annual detailed questionnaires concerning each territory, with special emphasis on measures taken to increase self-government and educational opportunities;

Ø meetings at least once a year and adoption by majority vote (not subject to veto) of recommendations;[149]

international pressure was applied to require conformity with the UN Charter and the Trusteeship Agreement.

v developments in the UN such as the resolution on self-determination passed 12 December 1958;

v declarations such as the Declaration on 14 December 1960 on the Granting of Independence to Colonial Countries and Peoples;[151]

v developments in international customary law in the post World War Two environment which developments clarified the concept of the location of sovereignty during the period of trust.[152]

The Trusteeship Council, it is submitted, fulfilled a fact finding role which, by its annual supervision, heightened sensitivities[153] in the Administering Authority It provided external pressure by its UN status and was a liaison agency between the Nauruans and the Administering Authority.

The Trusteeship Council supported the Nauruans’ claim for political advancement from 1948 to 1951.[154] This role may have been attenuated by the Cold War political climate where the Trusteeship Council itself reflected the wider international tensions and a mutuality of interests between the Administering Authority and some members of the Trusteeship Council, [155] nevertheless the Visiting Missions from the Trusteeship Council, believing that the primary responsibility of the phosphate industry was to provide for the future welfare of the Nauruans, continued to encourage an unresponsive Australia to prepare Nauruans for positions of greater responsibility.[156] Throughout the period 1947-60, the Trusteeship Council was highly critical of the insufficient royalties paid to Nauruans but found it difficult to extract adequate financial details from the BPC.[157]

Agitation about a larger degree of self-government and Nauruans in key executive positions began with the first debate in the Trusteeship Council[158] and the Nauruans,[159] as early as 1948-9 petitioned the Session of the Trusteeship Council for a greater voice in administration. In the period 1948-51 members of the Trusteeship Council were critical of the different standards accorded to Nauruans as opposed to Europeans and increases in wages for Nauruans succeeded the 1951 Visiting Mission.[160]

It acted as a forum for the grievances[161] of the Trust Territories inhabitants. The Visiting Missions could be and were approached directly by Nauruans and could apply pressure with publication of charges of neo-colonialism and imperialism.[162]

The UN Visiting Missions played a vital role in assisting Nauru towards independence because the role was to report back to the Trusteeship Council and the General Assembly and to make recommendations to the Administering Authority. The visual impact alone of the phosphate mining on the island[163] was cogent in conveying the Nauruan perspective. It was a public and international role, vital to the process of negotiation not only by reason of the membership which incorporated the five permanent powers but in the publication to the Trusteeship Council and General Assembly of the views of the members of the Visiting Mission. The Trusteeship Council acted in conformity with the objectives both of Article 76(b) of the Charter and with the terms of the Trusteeship Agreement itself. Those views, throughout the 1950s and 1960s were critical of:

Ø the Administering Authority’s conflicting role under the UN Charter vis à vis the advancement of the Nauruans towards independence as opposed to the evident self interest in the exploitation of the phosphate;

Ø the slowness of the Administering Authority to negotiate increased royalties with the BPC;

Ø the undesirability of the situation where the costs of the trusteeship were provided by the BPC;

Ø the legitimacy of the title to the phosphate rights originally acquired by the Pacific Phosphate Company and ‘sold’ to the BPC.[164]

Each year the Trusteeship Council asked for evidence of political advancement in accordance with Article 76(b) of the Charter and each year the Australian reply was in regard to the Nauruan political incapacity.[165] Ironically there was evidence in the mid 1950s of 100 per cent participation in voting for the NLGC; increased pressure by the NLGC for greater budgetary and administrative power[166] and complaints throughout the 1950s and 1960s by the NLGC to the Visiting Missions about the lack of advancement for Nauruans.[167] During this period the Trusteeship Council continued to press for target dates for independence and plans for the future of Nauru but were resisted.

The tabled comments of the Visiting Missions and the Reports of the Trusteeship Council[168] show the members of the Visiting Missions fulfilled their functions under the Trusteeship Council. They drew attention to the necessities of the Trusteeship Agreement in nurturing Nauruan independence; in pressing inconvenient requests for information upon the Administering Authority. Nauru really did become the microcosm of what was happening in the rest of the world in regard to self determination. The recommendations and opinions[169] of the Trusteeship Council throughout these decades, expressed increasing concern about:

à the tardiness of the Administering Authority in developing Nauru in conformity with the Charter and the Trusteeship Agreement;

à the insufficiency of the information provided to the Trusteeship Council by the Administering Authority especially in respect of the quantities of phosphate extracted and the financial operations of the BPC;

à the lack of foresight given to the future of the Nauruans and the rehabilitation of the island.

In particular, in the 33^rd session 1966 of the Trusteeship Council, the delegate from Liberia referred to the 1958 establishment by the General Assembly of the Commission on Permanent Sovereignty over Natural Resources and General Assembly Resolution 1803 which showed that special consideration had been given to those peoples emerging into nationhood. The delegate doubted the legitimacy of the BPC legal title to the phosphate.[170]

It is possible that the movement towards self-determination may have waned because there is evidence[171] that the Trusteeship Council itself faltered in considering that Nauru was too small for independence and that the best solution for the Nauruans’ future was relocation to Australia. At this time, the strength of the Nauruan position in these matters was underestimated even by the UN since the Nauruan community numbered only approximately 2,000.[172] The representatives of the other trustees, Great Britain and New Zealand, both members of the Trusteeship Council, were more aware than Australia of the need for decolonization and of the implications of developments on Nauru.[173] which developments illustrated the infringement of the terms of the Trusteeship Agreement and Article 76(b) of the Charter.[174]

As late as the 1962 Visiting Mission and the 1962 meeting of the Trusteeship Council the issue of the disclosure of the BPC accounts had not been resolved[175] and it was not until 1963 that, at the suggestion of the Trusteeship Council, meetings were established between the BPC and the NLGC.[176] Linked with the Nauruan wish to obtain the best possible phosphate royalties and to own the phosphate for their own exploitation[177] was dissatisfaction with the Australian Administrator’s policy of gradualism in democracy and the assumption by the Nauruans of their self-determination.

It was at the 1962 meeting of the Trusteeship Council where DeRoburt pre-empted the agenda with the plans for the creation of an independent Nauru[178] and the Trusteeship Council accepted the view that independence for Nauru may be the least unsatisfactory solution.[179]

In February 1966 the Trusteeship Council passed its second resolution calling for Australia to grant Nauru independence.[180]

The role of the Trusteeship Council was as a forum for the international community to comment on the progress or lack of it within Nauru. Importantly it was a forum in which the Nauruans were given an external voice beyond that of the Administering Authority and against which they could test the reasonableness of their requests. The Trusteeship Council articulated the principles contained in the UN Charter and in the Trusteeship Agreement and ensured their implementation. It has been suggested that were it not for the supervision provided under the Mandate and the Trusteeship Council, Nauru might not have survived[181] the appropriation of its wealth by the partner governments.

Had Australia been so minded, it could have employed the Trusteeship Council in the role of good offices, as a mediator in the settlement of all Nauruan claims: The Trusteeship Council fulfilled the role of mediator in many respects: it provided the neutral third party as an organ of the UN and attempted to facilitate negotiations[182] between the Nauruans and the Administering Authority. It did attempt to clarify misunderstandings, to transmit proposals from one party to the other, interpret and press for compliance with undertakings. Given that the choice of mediator is critical to success[183] the Trusteeship Council represented an opportunity with minimum cost outlay since it was already appointed by Chapter XII of the UN Charter although it represented the agenda inherent in that Chapter so in that sense it was not a disinterested third party.

The Trusteeship Council altered the power balance in favour of the Nauruans so that their claims acquired enhanced legitimacy in the eyes of the Australian Administrator though this cannot be overstated in view of its limited powers and the tyranny of distance which pertained in those decades.

Concurrent with and complementary to the processes employed by the Trusteeship Council was the role of the NLGC and its leader DeRoburt. It represented the aspirations of incipient self-determination but lacked the bargaining strength that comes from size and international status. The main method employed was negotiation for which, although it is mainly the province of ‘normal diplomatic channels’[184] the NLGC was the competent authority. For a negotiated settlement, ‘the parties must believe that the benefits of an agreement outweigh the losses’[185] and in this the Nauruans did not succeed. The realism of their claims only became apparent to Australia after the adjudication by the ICJ. However the NLGC negotiations had the function of ‘screening or concretising’[186] the issues both before independence and before the ICJ claim.

It is submitted that the NLGC set its own agenda, developed out of the experience of both the Mandate and the Trust periods, out of concern for the future, resentment at Nauruan lack of control both in respect of self-determination and the environment. Their agenda was in a sense reactive, driven by the non-conformity by the partner governments with their mandatory and trust obligations. The political and national goals were defined and found legitimacy against the contextual background of the UN. The main tool employed was that of negotiation and, for such a small organ of government which represented only a small population, the NLGC faced obvious difficulties of a David against a Goliath:

à the struggle to be taken seriously by an Administering Authority which had grown accustomed to a status quo developed during the Mandate period and which was unresponsive to post 1945 developments both in Nauru and in the wider international context;

à a complacent Administering Authority which knew best what was suitable for Nauru’s development and, if and when it provided concessions to the Nauruans by way of, for example, local government, ensured that the powers were limited;

à an Administering Authority which, in concert with its partner governments, had its own agenda of extracting maximum phosphate at the lowest cost and selling it below world market price to its own agricultural industry.[187]

The NLGC negotiations with Australia suffered from imbalance caused by size and status so that Australia was reluctant to take their representations seriously even after Nauru’s independence and attainment of sovereign statehood. The disadvantage of negotiation especially in respect of the environmental and compensation issues was the need for objective review[188] and standards.

The fact of its existence was due to pressure both from the Nauruans[189] and also to the Trusteeship Council’s support for the Nauruans’ claims for political self-advancement. The NLGC was perceived as possessing power limited to making recommendations to the Administrator who could ignore them.[190] Through the 1950s the Nauruans were becoming increasingly politically active in their demands for greater education and administrative involvement both through the NLGC and the Trusteeship Council[191] despite claims as to their backwardness by the Australian Administering Authority.[192]

By the late 1950s the partner governments and the BPC had recognised that a new approach was required in Nauru in the light of changes on the island itself and current trends in the international sphere. No longer was it sufficient to provide concessions to the Nauruans in housing, education or even increased royalties but broader issues such as the nature of the Trusteeship, self-determination and the future of the Nauruans became more pressing issues.[193] Influential in this change was the representation of the NLGC which was growing in stature and negotiating experience through the late 1950s and the 1960s.

Resettlement to Australia had been investigated in 1953[194] and been examined in 1954 in a CSIRO Report on Present and Potential Land Use in Nauru.[195] The Nauruans had elected in 1955 as Head Chief DeRoburt. The NLGC, initially responsive to the idea of resettlement, increasingly perceived that issue linked with their independence,[196] concerned that racial discrimination would hamper their political and economic independence,[197] rejected resettlement in July 1964.[198] The leadership provided by DeRoburt in the forum of the NLGC meant that the Nauruans had a means of considering issues such as their cohesiveness as a people, the value of their island location which, once left, would be completely devastated by phosphate mining and of resisting action by the Australian Government which the Nauruans clearly considered to be contrary to their interests.

For the Nauruans the NLGC provided a forum which gave them a voice with which to represent their views to both the Trusteeship Council and the Administering Authority.

The Australian Administration had been slow to recognise the emergent nationalism of the Nauruans[199] although the Nauruans continued to express concern about inadequate royalties to the 1956 Visiting Mission[200] and the remainder of the decade,[201] wanting parity with world price for phosphate. With the Nauruans increasingly frustrated by Australian control, the Nauruans indicated they wanted fair royalties.[202]

In May 1964, where Australia permitted Nauru to have independent economic advice at royalty negotiations,[203] the Nauruans separated the resettlement issue and political development which the partner governments had tied together, and asked for transfer of legal ownership of the phosphate deposits [204] and independence by 1 January 1967. [205] The Australian Administrator failed to appreciate the changes that had occurred amid escalated Nauruan demands for ownership of the phosphate and independence as well as UN pressure. for compliance with the Trusteeship obligations.

‘The worst mistake we can make is to fail to recognise the fundamental change which has taken place and to reassess our thinking accordingly. . . .To say earlier that time was running out faster than the phosphates was visionary. Now it is plain. Those who had hoped to keep politics out of phosphate must now recognise that only through a far-reaching political settlement can we preserve any long term access to the phosphates at all.’[206]

The Davey Report on Rehabilitation of Mined Phosphate Lands established in January 1966 indicated that the Nauruans faced a bleak future with now inhospitable land for resoiling and agriculture. Furthermore, the Australians lost interest in any rehabilitation of the island when the Davey Report indicated costs in excess of $100 million.[207] The Nauruans used the auspices of the Trusteeship Council and

‘ . . . used the moral right of their position on rehabilitation as a lever in phosphate negotiations for a better deal and for embarrassing publicity against the partner government.’ [208]

After the Canberra Conference of 1965 the Nauru Act 1965 set up the Nauru Legislative Council.[209] In tripartite negotiations in May 1967, the partner governments agreed to sell the phosphate industry to the Nauruans and, in a major concession by DeRoburt to secure a final settlement, the Nauruans were to purchase the BPC assets over a three year period. Finally, after pressure from the Trusteeship Council[210] as well as the other two partner governments, full independence came on 29 January 1968.[211]

Importantly the Nauruan claim for costs of rehabilitation from the partner governments had been consistent through the decade of the 1960s and particularly in statements by the Nauruan Delegation around independence.[212] These unsatisfied claims were understood and reported on by the Trusteeship Council at the time of independence.[213]

Under the Nauru Phosphate Agreement 15 June 1967, the BPC was replaced by the Nauru Phosphate Corporation, the BPC’s assets were purchased for $20 million[214] and the royalty price achieved parity with world prices.[215]

‘On every issue of principle DeRoburt had prevailed. The Nauruans had succeeded not only because of the quality of DeRoburt’s leadership, and the strength of their sense of national identity but because, in the final analysis, the partner governments were divided among themselves and, moreover, they valued their international reputations more highly than the phosphate. Just as the Commissioners had been established in the interest of the agricultural development policies of the partners, the operations were now being dismembered because of a re-ordering of the priorities of the partner governments.’ [216]

Negotiation as a tool even in combination with the clout of the UN Trusteeship Council had achieved political objectives for the Nauruans but bargaining disparities were apparent in the economic outcomes. This disadvantageous agreement illustrated the unequal bargaining position of the NLGC.

The identification of the grounds of the dispute had been prompted by the appointment by the Government of Nauru on 3 December 1986 of the Independent Commission of Inquiry

· the government or organisation which should accept responsibility for rehabilitating the areas of phosphate land worked out in the periods of German administration, the League of Nations Mandate, the Japanese occupation and the United Nations Trust; and

The Commission of Inquiry provided the formal, fact-finding process which delineated both the moral as well as the legal obligations of the mandatories and trustees and provided the grounds upon which Nauru applied to the ICJ. It drew together in a public forum the history and the legalities of the administrative regimes pre and post 1945. It set the legal framework and provided the dispassionate evaluation of the factual material relevant to the history and present circumstances of the dispute. In this role it might also have fulfilled a mediator-type function but since the partner governments had declined any form of participation,[218] this function remained inchoate. The invitation had been extended to the Trust governments to participate in the Inquiry but they had declined.[219] The Commission of Inquiry provided objective review and functioned in an international legal milieu which had developed, in the interim since Nauru’s independence, the Stockholm Declaration which had enunciated principles in respect of the human environment[220] and which in Principle 22 of the Declaration, specifically provided that states must co-operate in the development of the international law in respect of liability and compensation for environmental damage.[221]

· the partner governments had made substantial profits during the period of their fiduciary control, probably in excess of $1billion; [222] raising issues of abuse of power and unjust enrichment;[223]

· the sum required, at current cost, for rehabilitation at a conservative estimate could be $72 million; [224]

· title to the phosphate deposits had at all times been with the Nauruans who had been excluded from control of the phosphate industry [225] in breach of their right of permanent sovereignty over their natural resources.[226] Germany had had uncertain right to mine phosphate; the mandatories were in breach of their fiduciary duty in not re-examining Nauruan rights and the rights purportedly invested in the BPC by the NIA were spurious;[227] The sum of $21 million paid by Nauru at independence to the partner governments for the assets of the BPC was for the purchase of assets which already belonged to the Nauruans.

· the developed principles of environmental law[228] had been breached by the despoliation of the natural resource so that it was finite and could not be utilised by the state which had lost the opportunity to utilise it to complement its political and economic independence;

· the BPC had acted as the monopolistic agent of the mandatories and trustees whose own commercial interests had been in conflict with their fiduciary responsibilities in regard to Nauruan political and economic independence. Those governments had abused their power[229] by withholding information in regard to the BPC from the supervising UN body.

drew on the universality of the trust concept[231] and Nauruan customary law;[232]

and concluded that the policies of the partner governments had, contrary to the terms of the Trusteeship Agreement and of Article 76(b) of the Charter, increased the dependence of the Nauruans by:

actively obscuring the real nature of the phosphate finances from the Nauruans; and

The economic future of the Nauruans had been undermined and the legacy of the exploitative practices was permanent and irreversible environmental damage.[235] It recommended the general principle of trusteeship that loss or damage caused to a beneficiary through a violation of trusteeship duty, should be addressed so that principles of equity and fairness should apply to prevent the unjust enrichment of the three governments exemplified in:[236]

Ø violation of the express provisions of Article 22 of the Covenant of the League of Nations and of the ‘sacred trust’,[237]

Ø violation of express undertakings contained in the Mandate for Nauru and in the Trusteeship Agreement for Nauru; [239]

The Commission of Inquiry concluded that at independence, the Nauruans acquired no more than what was their right:

‘Their grant of independence was derived not from the trustee powers but was their inalienable and inherent right vested in the Nauruan people and acknowledged internationally by the United Nations. . . To have linked the right to independence with negotiations for the sale of the phosphate was a breach of the trustees’ fiduciary duty where the partner governments had exercised undue influence in their insistence that that independence was linked with the partner governments’ claim for compensation. At the discussions leading to the Agreement signed 15 June 1967, DeRoburt stated to the Joint Delegation of the partner governments:

“In particular it has been made apparent to the Nauruan Delegation, in discussion if not in writing, that the Partner Governments have linked Independence and the phosphate arrangements even to the extent of not revealing their attitude to our proposals for Independence until after they are satisfied that their interests in the phosphate industry are protected by a long term agreement. The Nauruan Delegation is therefore forced to negotiate under heavy pressure from their natural aspirations to attain Independence by 31 January 1968.” ‘[241]

The Commission of Inquiry found that the Nauru Phosphate Agreement of 15 June 1967 was silent on the matter of the rehabilitation claim which the Nauruans had only relinquished under pressure from the partner governments and had publicly and privately continued to press.[242]

Significantly, the Commission of Inquiry crystallised the potential Nauruan claim in the ICJ for compensation and rehabilitation. The Commission of Inquiry provided crucial external legal expertise so that impetus was given to the Nauruan desire for justice. It formulated the ICJ case.

The ICJ provided the forum which could redress the power imbalance in the dispute. Countries that are not members may still be permitted access to the Court as was the case with Nauru in the Phosphate Lands case.[243]

‘1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

c. the existence of any fact which, if established, would constitute a breach of an international obligation;

d. the nature or extent of the reparation to be made for the breach of an international obligation.

5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.

6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court. ‘ [244]

Significantly, Nauru took advantage of Australia’s withdrawal of its reservations to the Optional Declaration to commence its action,[245] so that Nauru was able to alter the power balance of a small state against a larger and more economically powerful state like Australia. Where negotiations at and around the time of independence [246] and subsequent attempts[247] had failed, the full weight of the international community was represented in the ICJ decision.

If ‘the optional clause remains an underused and less than satisfactory method of augmenting the ICJ’s competence’[248] it is submitted that it proved most satisfactory to Nauru in this instance. There are many ways of settling a dispute[249] and negotiation to a settlement is an optimal procedure because it is flexible, can be informal, proceed on a number of different levels at the one time and can retain secrecy. If negotiation fails, and the option of mediation is not open, adjudication may be required and it is a different process in every way from negotiation because of its formal, adversarial[250] and public procedures.

The Nauru dispute in the ICJ would, it is submitted have raised international confidence in its competence and done much to allay suspicions of domination of the Court by the developed world[251] or the distrust by the Third World as to the colonial bent in the ICJ’s composition.[252]

The role of the ICJ was to provide international adjudication at the Preliminary Objection stage and the only means whereby Nauru could enhance its bargaining power to the extent necessary to have the former trustee states recognise the justice of Nauru’s claim so that they were forced to negotiate an equitable settlement with the former trust territory. Australia, as a good citizen of the world, was more likely than not to accept and act on the Court’s decision. While the voluntary and consensual nature of the ICJ is fundamental, international law since 1945 has been concerned with the protection of human rights such as self-determination and the sovereign rights of states are subordinated to these considerations.[253]

By nine votes to four the ICJ rejected Australia’s objections to jurisdiction thereby indicating the likely outcome of a substantive hearing on the merits of the case. [254] In brief, the ICJ rejected:

à the alleged waiver by Nauru of its rights in regard to rehabilitation of areas mined prior to 1 July 1967;[255]

à the objection based on the effect of Nauru’s delay and lack of good faith in bringing its claim;[257]

à the objection based on New Zealand and Great Britain not being parties to the proceedings.[258] Australia raised in the ICJ hearing the joint and several liability of the three countries which constituted the Trusteeship of Nauru pursuant to the Mandate and Trusteeship.[259] While the court reserved the resolution of this question to the hearing on the merit, the ICJ held that it was not prevented from hearing the matter in respect of Australia as an independent case.

Importantly, the ICJ in its judgement referred to the following facts which indicated to Australia that, despite independence, Nauru continued to press its claim for rehabilitation of its damaged island:

· the Nauruan Head Chief’s reference on the day of declaring independence that the Nauruans held responsible Great Britain, New Zealand and Australia for the rehabilitation of one third of their island;[260]

· on 4 February 1969 Nauru was officially informed on Australia’s position in respect of rehabilitation of the phosphate lands worked out before 1 July 1967; [261]

· on 5 December 1968 the President of Nauru wrote to the Minister for External Affairs, Australia indicating his desire to examine a specific rehabilitation scheme for the building of a new airstrip. The ICJ noted the Minister’s rejection of responsibility for the rehabilitation of mined out phosphate land on the basis that the Nauruans had already been well compensated; [262]

· in 1973 on the occasion of a state visit to Canberra, the President of Nauru raised the question of rehabilitation with the Prime Minister of Australia;[263]

· in 1974 the question was raised on the occasion of the visit to Nauru by the Acting Minister for External Affairs;

· on 6 October 1983 the President of Nauru wrote to the Prime Minister of Australia seeking sympathetic reconsideration of Nauru’s position; [264]

· that request was declined by Australia on 14 March 1984 and , in a diplomatic note of 27 July 1987 the Australian Government indicated that it considered that the Phosphate Agreement concluded prior to independence as just and clearing the partner government of any responsibility for rehabilitation.[265]

· on 3 December 1986 Nauru set up a three member Commission of Inquiry to study the question and invited the three former Administering Governments to participate which they declined[266] and stated that they would not be bound by the findings of the Commission and would be unable to supply documentary or archival material;[267]

In regard to the limitation period which Australia had attempted to raise as a matter which prevented the pursuit of the claim,[268] the ICJ differentiated the domestic limitation periods established by statute from the international where no specific time limit is laid down, in which case the task fell to the court to assess what constitutes a reasonable time period. In Nauru’s case, where there was evidence that Nauru had not ‘sat on its hands’ but had attempted via other methods to pursue its interests with the trusteeship states, the court held that the delay of twenty years was not unreasonable.

Finally, the Court dealt with Australia’s objection that Nauru’s claim concerning the overseas assets of the BPC 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 application was admissible except as to the claim regarding the overseas assets of the British Phosphate Commissioners.

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.[269]

Given the centrality of statehood to the international legal system since states remain the primary objects of international law[270] equality of sovereignty within that system means that tiny states such as Nauru have sovereign equality in the eyes of the international legal system so that the smallest David may challenge a comparatively large Goliath such as Australia. International disputes are intended to be settled ‘on the basis of the sovereign equality of States and in accordance with the principle of free choice of means.’[271]

Australia was obligated to employ the peaceful resolution of a dispute but displayed resistance to pursue any negotiated settlement of the issue. Australia, in 1970 was part of the consensus which adopted and reinforced the principles of resolution of international disputes by peaceful means so that the ‘international peace and security and justice are not endangered.’ [272] In that Declaration, the means explicitly contemplated as at the disposal of member States for the resolution of the disputes included negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice.[273] The variety of means were to be adapted to meet the circumstances and facts of individual cases.

In the Annex to the Manila Declaration on the Peaceful Settlement of International Disputes[274] states are adjured to settle international disputes by peaceful means so that international peace and security and justice are not endangered; [275] on the basis of sovereign equality [276] and ‘States shall seek in good faith and in a spirit of co-operation an early and equitable settlement of their international disputes’ [277] The Annex goes on to list the methods of dispute resolution available [278] although in an expanded and more defined form than in the earlier Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance With the Charter of the United nations. For example reference is made to ‘good offices’, [279] greater emphasis is accorded regional arrangements,[280] and ‘States should . . . bear in mind that direct negotiations are a flexible and effective means of peaceful settlement of their disputes. When they choose to resort to direct negotiations, States should negotiate meaningfully, in order to arrive at an early settlement acceptable to the parties.’[281]

The ICJ challenge by Nauru provided the success that had eluded the Nauruans by redressing the power imbalance. The alacrity with which Australia moved to settlement post the ICJ decision indicated that:

1. Australia would suffer greater detriment from a hearing on the merits of the case; and

2. the decision had facilitated Australia’s negotiating position for co-contributions from New Zealand and Great Britain.

Nauru v Australia[282] highlighted the enigma of the Mandate system, where the protection of the defenceless was placed in the care of those states anxious to seek their own advantage;[283] where the subject of the Mandate lacked international personality with which to object against those states charged with the task of developing the international personality.[284] The Trusteeship system, with explicit endorsement of the principle of self-determination and operating contextually where that principle had been elaborated with the UN Charter,[285] the International Covenant on Civil and Political Rights (‘the ICCPR’)[286] and UN Resolution 1803 (XVII) on Permanent Sovereignty Over Natural Resources,[287] meant Australia had engaged in irreducible conflict of interest[288] in appropriating Nauru’s wealth. In respect of Nauru, and of other colonial regimes, the doctrine of self-determination was a broad concept which included political, economic and cultural developments[289] which, it is submitted, are inclusions of necessity since these concepts are inter-dependent for national viability. Australia had been ‘myopic’[290] in focusing solely on the political and that only grudgingly.

The paternalistic practices of Australia in resisting the UN requests for schedules and timetables for independence were demonstrated as reflecting poorly on the trustee powers since they had acted unrealistically in their assessment of Nauruan capacity for self rule. Before the international community, it is submitted, they looked outmoded with their dated nineteenth century attitudes. The Trustee powers had failed to take cognizance of the international post-war impetus for self-determination[291]

‘ . . . could now participate in the international system as sovereign states and enjoy all the benefits that accompanied such participation. But this participation also implied an acceptance of existing rules of international law – including precisely those rules that prevented an inquiry into the history of colonial exploitation and have blocked attempts by the developing nations to negate the effects of that exploitation.’[292]

The problem for developed states was in accepting the parameters of international law as applicable to developing states.

In respect of the sovereign equality of states, it is submitted that there was initially none in Nauru’s dispute with Australia. Australia, once the Trusteeship had ended with the declaration of Nauruan independence, regarded its role as terminated. It is apparent from the difficulties experienced by Nauru in its pursuit of earlier alternative methods such as negotiation and formal inquiry for the settlement of its claims, that Australia adopted the disdainful perspective of the post-colonialist power which owed nothing to the former colony which had much to be grateful for. However once the case was in the ICJ, the United States and several European countries followed the case closely[293] and New Zealand and Great Britain were well aware that they were likely to be dragged into the case and asked for reparations.[294] Furthermore New Zealand and Great Britain knew that a finding against Australia would equally determine the liability of the absent states.[295]

As early as 1962 New Zealand had considered that it would be in an embarrassing and difficult position in regard to Nauru because it considered that the UN would hold it jointly but directly accountable for Australia’s administration of Nauru even though New Zealand was not generally consulted about the administration of Nauru, did not see the annual report by the Australian administration until it was tabled in the Trusteeship Council and to attempt withdrawal from the tripartite Trusteeship Agreement ‘would almost certainly bring the 1919 . . .[Nauru] Agreement under close scrutiny by the United Nations where charges of “colonial exploitation” of the island’s resources have already been levelled.’[296]

In Nauru’s case, justice was endangered because the states which had been entrusted with the fiduciary role as mandatories and then trustees, had demonstrably made undue profits for nearly fifty years with no regard for Nauru’s future viability as a state, in breach of their international duty. It would have been inequitable for the state responsible to have escaped responsibility. But for the ICJ decision[297] they would have succeeded. It is plain that Australia had rejected attempts by Nauru to negotiate. It is equally clear that Nauru had foreshadowed from times before and after independence that it sought reparations and employed a variety of processes including negotiation, inquiry, UN fact-finding and representation. Australia remained intransigent declining to accept responsibility for the serious environmental damage caused by the phosphate mining yet had been unduly enriched by the profits taken from the Island at the expense of the Nauruans’ future.

That the ICJ decision redressed the power balance was radically evidenced by Australia’s move to reach a comparatively fast resolution in contrast with the time Nauru had expended in previous futile attempts at settlement.

It is submitted that only after the decision of the ICJ in the preliminary matter of jurisdiction did Australia become mindful of these other methods of resolution of the dispute and enter direct negotiations with Nauru on the one hand, and New Zealand and Great Britain on the other to arrive at an equitable settlement of Nauru’s claims for reparations. Furthermore, the precedent for colonial powers was significant. The ICJ foreshadowed a continuing responsibility by the previous colonial powers to those nations which had been the objects of those powers. The preliminary jurisdiction hearing in fact resulted in an significant ‘flow-on’ effect for Nauru in that joint reparations were contributed by those countries which had had joint responsibility under the Trusteeship.

The Australians were able to negotiate contributions from the partner governments. Ironically the NIA in Article 7 provided:

‘Any right, title or interest which the Pacific Phosphate Company or any person may have in the said deposits, land, buildings, plant and equipment (so far as such right , title and interest is not dealt with by the Treaty of Peace) shall be converted into a claim for compensation at a fair valuation.’

Article 8 provided for joint and several contributions from the three mandatories for that compensation. The speed and secrecy which attended these negotiations is in contrast with the lengthy unsuccessful negotiations of the Nauruans with Australia.

There had been precedent for joint and several contributions in respect of the BPC in an out of court settlement to the Banabans in respect of Ocean Island.[298]

It is submitted that the partner governments only concentrated their minds on Nauru when forced by increasing pressure of the resettlement, ownership of phosphate and self government issues after a laissez-faire half century of inadequate supervision of the Australian Administrator and that the Australian Government had been the ‘least realistic of the partner governments in its appraisal of the politics of decolonization.’ [299]

The passage of time since the conclusion of the Second World War which was arguably the demarcation point for the demise of the colonial regimes, had thrown into relief the legitimacy of the claims of states which claimed independence and sovereignty. The success of Nauru’s case in the ICJ would have given other ‘new and developing states . . . national and reciprocal advantages within the existing international legal system.’[300]

All judgements of the ICJ interpreting international law have implications for every state by reason of their clarifying and precedential value.[301] Other states had an interest in the dispute between Nauru and Australia: all post-colonial regimes, both the object of the colonial power and the previous colonial rulers. The case was the first instance of a former dependent territory bringing a claim against the prior authority, mandated or colonial, for abusing its power when administering the dependent territory and consequently raised issues of the greatest importance for former colonies.[302]

à both in respect of the time lapse which was permitted by the ICJ for Nauru to establish its claim,

à in the foreshadowed inevitability of the ICJ’s favourable perspective on the legitimacy of the claims for reparations.

Inherent in the decision’s implications, it is submitted, was the example that it is better to employ an alternative method of resolution where method of resolution and terms of settlement can be secret than face the international community and lose the case.

For those former colonies and dependent territories where colonial regimes had been extractive in character, the important issues were double-sided in that there was the issue of the rehabilitation of the land joined with the need for the former colony to utilise its own land for its economic survival:

‘The case also presents the stark plight of a people whose verdant island home, once known as “Pleasant Island”, has been transformed by mining into a scarred wasteland. . . . The rehabilitation of the island is necessary for the survival of the Nauruans as an independent people.’ [303]

The Case was perceived as raising ‘novel’[304] issues for the ICJ which had been perceived as eurocentric[305] and as evolving from the centre of the colonising powers. This in turn was perceived as going to the very issue of state sovereignty.[306] To the time of the lodgment of the Nauruan claim, the ICJ had not considered Trusteeship obligations in the merits phase.[307] It is submitted the ICJ decision encouraged post colonial independent states in lodging similar claims to those of Nauru:

à the accountability that the ICJ appeared to be contemplating at international law over lengthy mandated territory

à for the analogy drawn from domestic law in respect of Trusteeship although that analogy cannot be pressed given the profound differences from domestic law and the fact that the case was not heard on its merits.

à an interest in the negotiated settlement between Nauru and Australia as well as the joint and several contributions from New Zealand and the UK

There is agreement that generally states obey the rulings of the ICJ[308] since the court is perceived as not merely the arbiter of disputes but also as a source of international law and, were a country to act contrary to a decision of the court then this would constitute a flagrant breach of international law. Few countries are willing to have their conduct labelled as ‘improper’ in the face of an ICJ ruling to the contrary.[309]

There are reservations with this use of the Court: while the Nauru case was exemplary, nevertheless the role of the ICJ for resolving disputes may be limited because many disputes are not amenable to strictly legal resolution since they involve sensitive issues of state sovereignty.[310]

In Australia’s case, prima facie it appeared to have been mindful of its role as good citizen of the world although that is a gloss that Australia would in all likelihood have preferred when in fact it was reacting to a preliminary ICJ decision which clearly foreshadowed the thinking of the court in the event of a final hearing on the merits. In consenting to the jurisdiction of the court albeit contended by Australia in respect of Nauru, nevertheless there was an implied commitment to compliance with any decision of the ICJ.

It is submitted that there was a significant flow-on effect from the Nauruan dispute, more particularly in its early stages in that consciousness of other phosphate territories entailed other issues of independence and better administration, for example on Christmas Island and the Cocos Island.

The dispute was resolved both in the case of Nauru’s claim upon Australia and Australia’s claim for joint and several liability from its co-trustees. When the ICJ ruled in Nauru’s favour as to jurisdiction, Australia negotiated a payment of A$112 million to Nauru.[311]

It was agreed, on 10 August 1993, conditional upon Nauru agreeing to make no claim whatsoever in the ICJ or otherwise, against all or any of the partner governments arising out of the administration of Nauru during the period of the Mandate, Trusteeship or the termination of that administration, as well as any matter pertaining to phosphate mining, including matters pertaining to the BPC that:

(1) Australia agreed that for the post-phosphate future, it would pay Nauru a cash settlement of $A107 million as follows:

(d) An amount of $A50 million to be paid at an annual rate of $2.5 million dollars, for twenty years commencing in the financial year 1993-94.

The above payments were made without prejudice to Australia's long-standing position that it bore no responsibility for the rehabilitation of the phosphate lands worked out before 1 July 1967.[312] This clause both reflected Australia’s policy while acknowledging the merit of the Nauruan payments.[313]

At the time of this Agreement for the settlement of the case, Australia also executed a Joint Declaration of Principles Guiding Relations between Australia and the Republic of Nauru[314] committing each government to trade investment co-operation, aviation and other transport services co-operation and, importantly:

‘Both Governments recognise both the challenge presented by rehabilitating the worked-out phosphate lands on Nauru, and the fragility of Nauru’s ecosystems and will work together to facilitate the progressive rehabilitation of Nauru and the protection of Nauru’s environment.’[315]

By a joint letter filed in the registry of the ICJ on 9 September 1993 Nauru and Australia discontinued proceedings.[316]

Australia then sought through diplomatic channels and negotiations financial contributions from the partner governments in respect of the settlement with Nauru.[317]

Interestingly it was only on 9 February 1987, that the Agreement to Terminate the NIA was concluded with New Zealand and United Kingdom and came into force. [318]

Nauru remains in a precarious position wherein its political independence is established but less so its economic self reliance. There has been mismanagement of the settlement payments from Australia[319] and there is the difficulty faced by any state with small size and limited natural resources. Outward investment has been particularly significant as past surpluses from the phosphate industry have been invested abroad by the Nauru Phosphate Royalties Trust to provide income when the phosphate runs out. The management of this fund has for years been one of the major issues in the island’s general elections. Inward investment will become more significant when a proposed tax haven is set up.[320] The Nauru Agency Corporation assists entrepreneurs in the registration of holding and trading corporations and in obtaining banking, trust and insurance [321]

With an overall GNP estimated at US$175m in 1994, and GNP per capita at $16,700, Nauru rates as an upper-middle-income country.[322] These figures are deceptive since there is a low level of infrastructure and other development. More importantly, Nauru’s economy has been based on phosphate mining; but reserves are expected to be exhausted by the end of the century[323] and the country is having to look at other sources of income for survival.

[1] J G Merrills International Dispute Settlement, Grotius Publications Limited, Cambridge 1991, at 1.

[2] East Timor (Portugal v Australia) ICJ Report 1995, 90 para 22.

[3] Sir Robert Jennings ‘Reflections on the Term “Dispute” ‘ in Essays in Honour of Wang Tieya edited by R St J Macdonald, pub Martinus Nijhoff, 1993, at 401.

[4] Sir Robert Jennings n 3, at 405.

[5] http://www.icj-cij.org/Basicdoc/Basetext/istatute.htm

[6] Michael Pryles ‘International Dispute Resolution’ 65 (1 & 2) 1991Law Institute Journal 66-68 at 66.

[7] Hilary Astor and Christine M Chinkin (‘Astor and Chinkin’) ‘Dispute Resolution in Australia Butterworths (1992), at 285.

[8] Christine Chinkin ‘Peaceful Settlement of Disputes’ in Harry Reicher, Editor, Australian International Law Cases and Materials pub The Law Book Company Sydney 1995, at 931.

[9] UN Charter 1945; also quoted in Christine Chinkin n 8 at 931.

[10] Sir Robert Jennings ‘The United Nations at Fifty’ (89)(3) July 1995 The American Journal of International Law 493-505 at 505.

[11] Case Concerning Certain Phosphate Lands in Nauru (Nauru v Australia): Preliminary Objections International Court of Justice [1992] ICJ Reports 240 at para 14 (hereinafter Nauru v Australia).

[12] Michael Kirby ‘Nauru Environmental Damage Under International Trusteeship’ 66 (11) November 1992 The Australian Law Journal , 762-764 at 763.

[13] Nancy Viviani ‘Nauru Phosphate and Political Progress’ Australian National University Press, Canberra 1970, in the Foreword by H E Maude at vii.

[14] Christopher Weeramantry ‘Nauru Environmental Damage Under International Trusteeship’ Oxford University Press, Melbourne 1992, (hereinafter Weeramantry) at 1.

[15] Stuart Kaye ‘Pacific Settlement of Disputes in International Law’ Public International Law An Australian Perspective Edited by Sam Blay, Ryszard Piotrowicz and B Martin Tsamenyi , Oxford University Press 1997, 159.

[16] Nauru v Australia n 11 at para 14.

[17] At 25-28 below.

[18] Nii Lante Wallace-Bruce ‘State Responsibility’ in Public International Law An Australian Perspective, Edited by Sam Blay, Ryszard Piotrowicz and B Martin Tsamenyi, Oxford University Press 1997 at 216.

[19] See Commission of Inquiry findings at 25-28 below.

[20] At 11-13 below.

[21] http://www.austlii.edu.au Christine Chinkin n 8 at 1008.

[22] At 10-11 below.

[23] http://www.virtual-institute.de/en/wcd/dec0204.cfm

[24] Astor and Chinkin n 7 at 277.

[25] Weeramantry n 14, at 13.

[26] At 4 below.

[27] At 7-10 below.

[28] Astor and Chinkin n 7 at 278.

[29] Ibid at 278.

[30] Ibid at 278.

[31] See below in evaluation of the dispute outcome at 32-36.

[32] Christine Chinkin n 8 at 1005.

[33] Deposited with the Secretary-General of the UN on 17 March 1975.

[34] Christine Chinkin n 8 at 1007.

[35] Ibid at 1008.

[36] Ibid at 1008.

[37] Nauru v Australia n 11 at para 8.

[38] See below at 16-25.

[39] http://www.icj-cij.org/igeninf/icvjudge/WEERAMAN.html Christopher Gregory Weeramantry then Sir Hayden Starke Professor of Law, Monash University, Melbourne, Australia (1972-1991); n 14; Judge of the ICJ, Vice-President :Member of the ICJ since 6 February 1991, Vice-President of the ICJ since 6 February 1997.

[40] Christine Chinkin n 8 at 1007.

[41] Nauru v Australia n 11 at para 9.

[42] Ibid at para 10.

[43] Ibid at para 10.

[44] Ibid at para 10.

[45] Ibid at para 31.

[46] Ibid at para 37.

[47] Ibid at para 39.

[48]Ibid

[49] http://www.tcol.co.uk/nauru/nauru.htm

[50] Secretary-General of the UN in the Introduction to his Annual Report 1966-67 quoted in JG Starke Introduction to International Law Butterworths, London 1989 at 97.

[51] n 49, 1995 estimate.

[52] Ibid

[53] Weeramantry n 14 notes it as the Anglo-German Declaration with German annexation of Nauru by October 1887, at 36.

[54] Barrie Macdonald ‘Massey’s Imperialism and the Politics of Phosphate’ Massey Memorial Lecture 1982, Massey University Occasional Publication, No. 7, pub by Massey University, Palmerston North, New Zealand, at 7.

[55] Weeramantry n 14 at 21-24. He notes that the Nauruans had no say in this alienation of Nauruan interests, at 22.

[56] Barrie Macdonald n 54 at 76.

[57] http://www.tcol.co.uk/nauru/naur2.htm#history

[58] Barrie Macdonald n 54 notes that there was considerable wrangling by New Zealand and Australia over Nauru at the Versailles Conference in 1919, at 9.

[59] ‘His Britannic Majesty’ Nauru v Australia n 11 at para 39. See 11 below.

[60] See below at 7-9.

[61] UN Trust Agreement 1 November 1947..

[62] See below at 8-10.

[63] Viviani n 13: on Curtis Island, off the north coast of Queensland, Australia, at 71.

[64] See below at 23.

[65] Weeramantry n 14 at xii.

[66] See below at 23.

[67] http://www.tcol.co.uk/nauru/naur2.htm#history

[68] Michael Shatin ‘Australia as Culturally-Minded Colonial Power’ 80 Autumn 1992 Victorian Bar News 59.

[69] Viviani n 13 at 115-120.

[70] See below at 16-26.

[71] Weeramantry n 14 at 11.

[72] See below at 20.

[73] e.g. http\\www.ihr.sas.ac.uk/ics/colonies.html lists the former colonies of the British Empire and the dates of independence.

[74] Weeramantry n 14 considered a factor that delayed settlement was the attempt by the partner governments to link the question of independence with the settlement of questions in regard to the phosphate industry at 11.

[75] See above at 2.

[76] http://www.wzo.org.il/home/politic/league.htm

[77] Antony Anghie ‘”The Heart of My House”: colonialism, environmental damage and the Nauru case’ 34(2) Spring 1993 Harvard International Law Journal 445-506 at 450.

[78] http://www.austlii.edu.au/do/disp.pl/au/other/dfat/multi/19201028.html?query=%7Enauru%20w%2F5%20memorial - disp2Act 1919 No. 8; SP 113 at 151. See also Agreement of 30 May 1923;. Article 1 was terminated 30 January 1966 by Agreement of 26 November 1965; wholly terminated 23 June 1988 by Agreement of 9 February 1987.

[79] Weeramantry n 14 notes that the attempted Australian annexation of Nauru was accompanied by antagonism from the then Australian Prime Minister Hughes to the Wilsonian plan of mandates and the League of nations, at 44-45 so that the C Class mandate was seen as a compromise formula, at 9 and at 46.

[80] n 78.

[81] Weeramantry n 14: this was seen as a compromise formula for the governments that favoured annexation at chapter 5, 41-54.

[82] http://www.tufts.edu/departments/fletcher/multi/www/league-covenant.html

[83] Weeramantry n 14 at 9 and at 27.

[84]Article 22(1) of the Covenant of the League of Nations. http://www.tufts.edu/departments/fletcher/multi/www/league-covenant.html

[85] The Agreement is annexed to the Schedule of the Nauru Island Agreement Act 1919 (Cth) and discussed in Maslyn Williams and Barrie Macdonald, hereinafter Williams and Macdonald, ‘The Phosphateers A history of The British Phosphate Commissioners and the Christmas Island Phosphate Commission’ Melbourne University Press 1985, at 152-4.

[86] Antony Anghie n 77 at 451.

[87] M Rafiqul Islam ‘The Dispute Between Nauru and Australia Over Rehabilitation : A Test Case for Economic Self-Determination’ 8 (1992) Queensland University of Technology Law Journal 147-159 at 151 and Article 3 Nauru Island Agreement Act.

[88] Weeramantry n 14: this act anticipated the formal grant of mandate by some months, at 10. This is commented upon by Williams and Macdonald n 85 in chapter 15 where it is noted that the signatories to the agreement were warned not to reveal dissension amongst themselves because the Permanent Mandates Commission was looking closely at the Agreement, at 176.

[89] Weeramantry n 14 at 25. The conveyance to the BPC involved no consultation with the Nauruans.

[90] Macdonald n 54 at 1.

[91] Macdonald n 54 at 4 – 13.

[92] Ibid at 17.

[93] Williams and Macdonald n 85 at 153.

[94] Macdonald n 54 at 16. Macdonald notes that from the 1920s until the mid-1960s Australasian farmers paid something like two-thirds of world price for their phosphates, at 18.

[95] The Schedule to the NIA No. 8 of 1919 quoted in full Williams and Macdonald n 85 at 152-4.

[96] Williams and Macdonald n 85 at 154.

[97] Weeramantry n 14 points out that the finances under both the mandate and the trust were controlled by the BPC under policies of secrecy with the active support of the partner governments despite requests for more information from both the Permanent Mandates Commission and the Trusteeship Council in chapter 13 at 231.

[98] Ibid at 357.

[99] http://www1.umn.edu/humanrts/instree/aunchart.htm

[100] Weeramantry n 14 at 73.

[101] Ibid at 74.

[102] Ibid at 57.

[103] Viviani n 13 at 48.

[104] Weeramantry n 14 in chapters 2 and 13 details the minuscule proportion of phosphate sales returned to Nauru and the similar expenditure on Nauru as a percentage of the actual value of phosphate exports.

[105] Viviani n 13 at 49. Phosphate which had been mined by the Pacific Phosphate Company prior to the First World War, had returned very little by way of royalties to the Nauruans

[106] Ibid at 50.

[107] Ibid at 54-59.

[108] Ibid at 71, Nauruan Royalty agreement 1927.

[109] Ibid at 70-71.

[110] Ibid at 71.

[111]Ibid at 72.

[112] See below at 13.

[113] Williams and Macdonald n 85 at 135-68.

[114] http:\www.austlii.edu.au UN General Assembly Resolution 140(11) 1 November 1947; Trusteeship Agreement for the Territory of Nauru Australian Treaty Series 1947, No 8.

[115] Trusteeship Agreement for the Territory of Nauru Australian Treaty Series 1947, No 8.

[116] Ibid Article 1 ‘the Administering Authority’.

[117] Article 76 of the Charter.

[118] n 115 Article 4.

[119] n 115.

[120] Viviani n 13 at 92.

[121] Ibid at 90.

[122] Ibid at 89.

[123] Williams and Macdonald n 85 at 398.

[124] Weeramantry n 14 at 139.

[125] Viviani n 13 at 89.

[126] See below at 26.

[127] Weeramantry n 14 at 283.

[128] Viviani n 13 at 88.

[129] See below at 17 the 1948-49 petition.

[130] See below at 21-25.

[131] Williams and Macdonald n 85 at 503.

[132] Weeramantry n 14 at p xiii.

[133] See below at 24.

[134] Nii Lante Wallace-Bruce n 18 at 212.

[135] Ibid.

[136] Ibid at 216.

[137] Ibid at 213.

[138] The Commission of Inquiry established those principles: .Weeramantry n 14 chapters 14, 15, 16.

[139] Antony Anghie n 77 at 454.

[140] Ibid at 454

[141] Ibid at 456

[142] Ibid at 457 in respect of Article 7 of the Nauru Mandate.

[143] gopher://gopher.undp.org/00/trustee/trustee%09%09%2B

[144] Weeramantry n 14 at 125.

[145] Viviani n 13 at 92.

[146] Ibid

[147] See below at 21-25.

[148] Weeramantry n 14 at xii: 1948 - First Trusteeship Council debate 1948

1950 – First UN Visiting Mission

1953 - UN Visiting Mission

1956 - UN Visiting Mission

1962 - UN Visiting Mission

1965 - UN Visiting Mission

[149] http://www.infoplease.com/ce5/CE052762.html

[150] Weeramantry n 14 chapter 9 at 123-153.

[151] Ibid at 150.

[152] Weeramantry n 14 at 150.

[153] Ian Brownlie Principles of Public International Law Clarendon Press Oxford 1990 at 645.

[154] Viviani n 13 at 96.

[155] Ibid Viviani reports that there were clashes among the representatives of the Administering Authorities, the permanent members of the Security Council and other members of the General Assembly who equalled the number of the Administering Authorities. at 93.

[156] Ibid at 110-111.

[157] Ibid at 98-100.

[158] Ibid at 93.

[159] Through the Council of Chiefs.

[160] Viviani n 13 at 100.

[161] Ibid at 93.

[162] Ibid at 92-93.

[163] Weeramantry n 14 at 126.

[164] Ibid at Chapter 9, 123-153.

[165] Viviani n 13 Reports of the Trusteeship Council e g at 106.

[166] Ibid at 115.

[167] Ibid at 109-112.

[168] Weeramantry n 14 and Viviani n 13.

[169] Weeramantry n 14 at 135-48.

[170] Ibid at 134.

[171] Ibid at 301.

[172] Williams and Macdonald n 85 New Zealand representative to the Trusteeship Council April 1960 at 466.

[173] Ibid at 467.

[174] The Commission of Inquiry reported by Weeramantry n 14 at 148.

[175] Williams and Macdonald n 85 at 472-3.

[176] Ibid at 479.

[177] Ibid DeRoburt, Leader of the NLGC in his opening remarks to the April 1959 meeting in Canberra of representatives from the Australian Department of Territories, the Nauruan community and the BPC. at 465.

[178] Ibid at 473.

[179] Ibid at 474.

[180] Viviani n 13 at 166.

[181] Antony Anghie n 77 at 498.

[182] Helen Gregorczuk ‘The appropriateness of mediation in international environmental disputes’ 7 (1) February 1996 Australian Dispute Resolution Journal 47-60 at 52.

[183] Helen Gregorczuk n 182 at 53.

[184] J G Merrills n 1 at 8.

[185] Ibid at 12.

[186] Ibid at 19.

[187] Weeramantry n 14 quantifies a difference of a minimum of $55 million between sale proceeds and return to the Nauruans at 365-66.

[188] Laura Horn ‘The Role of Mediation in International Environmental Law’ 4 (1) February 1993 Australian Dispute Resolution Journal 16-33 at 19.

[189] Viviani n 13 at 147.

[190] Ibid at 104-105.

[191] Ibid at 114-120.

[192] Ibid at 147.

[193] Williams and Macdonald n 85 at 464.

[194] Ibid to Curtis Island. Resettlement was regarded as inevitable by the Australian Administration, the BPC, the UN and even the Nauruans: at 464. In 1960, Australia offered resettlement to Australia, New Zealand or Great Britain: Weeramantry n 14 at xii.

[195] Weeramantry n 14 at xii.

[196] Viviani n 13 at 115 and chapter 8.

[197] Williams and Macdonald n 85 at 471.

[198] Viviani n 13 at 146.

[199] Williams and Macdonald n 85 at 465.

[200] Viviani n 13 at 126.

[201] Ibid at 132-33.

[202] Ibid chapter 8.at 132-158.

[203] Weeramantry n 14 at xii.

[204] Ibid at xii.

[205] Williams and Macdonald n 85 at 475. In mid-1965 the date became 31 January 1968 because of ‘delaying tactics’ in Canberra: ibid at 482.

[206] Williams and Macdonald n 85 quoting an official from the Ministry of Foreign Affairs, at 476.

[207] Weeramantry n 14 at 303. The Report indicated costs of up to $240 million for a four foot depth of soil cover.

[208] Viviani n 13 at 163.

[209] Weeramantry n 14 opened 31 January 1966 at xii.

[210] Ibid Weeramantry reports that were it not for the pressure exerted by the Trusteeship Council, finally in the Resolution adopted at the 1323^rd meeting on 22 November 1967 which set the date for Nauruan independence as 31 January 1968, delay would have continued at 11.

[211] Viviani n 13 at 176. Williams and Macdonald n 85 report the date as 31 January 1968, at 492.

[212] Weeramantry n 14 at 275-276.

[213] Ibid at 279-80

[214] Williams and Macdonald n 85 Final control passed to the Nauruans in 1970 at 555.

[215] Viviani n 13 at 166.

[216] Williams and Macdonald n 85 at 489.

[217] Weeramantry n 14 at xiii.

[218] Weeramantry n 14 at xiv.

[219] Ibid

[220] Helen Gregorczuk n 182 at 51.

[221] Ibid at 51 and Weeramantry n 14 at 337-45 and 351-3..

[222] Ibid at 13.

[223] Ibid chapter 15 at 307-60.

[224] Ibid at 13.

[225] Ibid at 14.

[226] Ibid at 15.

[227] Ibid at 268-8.

[228] Ibid at 15.

[229] Ibid at 14.

[230] Ibid at 329-31.

[231] Ibid chapter 9 at 123-53.

[232] Ibid chapter 10 at 154-79..

[233] Ibid at 149.

[234] Ibid chapter 10 at 154-79.

[235] Ibid at 149.

[236] Ibid at 14.

[237] Ibid at 14.

[238] Ibid at 14.

[239] Ibid at 14.

[240] Ibid at 15.

[241] Ibid at 267-8; 271-2.

[242] Ibid at 273-9.

[243] Ryszard Piotrowicz ‘The Structure of the International Legal System’ Public International Law An Australian Perspective Edited by Sam Blay, Ryszard Piotrowicz and B Martin Tsamenyi , Oxford University Press 1997, at 31.

[244] http://www.icj-cij.org/Basicdoc/Basetext/istatute.htm

[245] Ryszard Piotrowicz n 243 at 31.

[246] See above at 23-24.

[247] See below at 30.

[248] Robert Y Jennings n 10 at 495.

[249] Article 33 UN Charter.

[250] Robert Y Jennings n 10 at 505.

[251] Ibid at 505.

[252] John La Calamita ‘The “World Court”: coping with political realism and the sovereign tribe in international adjudication’ 17 (3) 1985 Ottawa Law Review 553-588 at 564.

[253] Rebecca Kavanagh ‘Oil in troubled waters: the International Court of Justice and East Timor’ 18(1) March 1996 Sydney Law Review 87-96 at 95-96.

[254] Henry Burmeister ‘Nauru v Australia: Rulings on Preliminary Objections’ (17) 1996 Australian Yearbook of International Law at 19: neither Australia nor Nauru availed themselves of the right to appoint an ad hoc judge.

[255] Nauru v Australia n 11 at para 11.

[256] Ibid at para 46.

[257] Ibid at para 38.

[258] Ibid at para 54.

[259] Ibid at para 55.

[260] Ibid at para 33.

[261] Ibid at para 36.

[262] Ibid at para 33.

[263] Ibid at para 34.

[264] Ibid at para 35,

[265] Weeramantry n 14 at 266.

[266] Ibid at para 35.

[267] Weeramantry n 14 at xiv-xv.

[268] Nauru v Australia n 11 at para 36.

[269] http://www.virtual-institute.de/en/wcd/dec0204.cfm

[270] Nii Lante Wallace-Bruce n 18 at 212.

[271] http://www.un.org/plweb-cgi/iopcode2.pl Annex to the Declaration on Principles of International law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the UN United Nations General Assembly resolution 2625 (XXV), 24 October 1970 quoted in Christine Chinkin n 8 at 932.

[272] Robert Y Jennings n 10 at 931.

[273] Christine Chinkin n 8 at 932.

[274] UN General Assembly Resolution 37/10, 68^th plenary meeting 15 November 1982 quoted in Christine Chinkin n 8 at 933.

[275] Ibid

[276] Ibid

[277] Ibid at 934.

[278] Annex to the Declaration on Principles of International law Concerning friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations United Nations General

[279] UN General Assembly Resolution 37/10, n 289 at 934.

[280] Ibid

[281] Ibid

[282] n 11.

[283] Antony Anghie n 77 at 467.

[284] Ibid at 484.

[285] Articles 1(2), 55.

[286] http://www.tufts.edu/departments/fletcher/multi/texts/BH498.txt Article 1(2)

[287] General Assembly Resolution 14 December 1962 quoted in M Rafiqul Islam n 87 and in Weeramantry n 14 at 315-16, 320-1 and 322-337.

[288] Antony Anghie n 77 at 467.

[289] Ibid at 471.

[290] Ibid at 472.

[291] e g UN Resolution on self-determination 12 December 1958;

Declaration on the Granting of Independence to Colonial Countries and Peoples 14 December 1960.

[292] Ibid at 476.

[293] Ian Anderson ‘Can Nauru clean up after the colonialists?’ 135 (1830) 18 July 1992 New Scientist at 12

[294] Ibid at 12.

[295] I A Shearer ‘Australia and the International Court of Justice’ in International Legal Notes 67 (4) April 1993 The Australian Law Journal 301-305 at 302.

[296] Williams and Macdonald ‘n 85 at 467 Macdonald further notes that New Zealand had been ‘meticulous’ in its adherence to UN guidelines in its own decolonization process of Western Samoa and the Cook Islands, at 467.

[297] n 11.

[298] Ibid chapter 48.

[299] Williams and Macdonald n 85 at 480.

[300] Gillian Triggs ‘Confucius and consensus: International Law in the Asian Pacific’ 21 (2) 1997 Melbourne University Law Review 650-675 at 659.

[301] IA Shearer n 295 at 303.

[302] Antony Anghie n 77 at 446.

[303] Ibid at 446.

[304] Ibid at 447.

[305] Astor and Chinkin n 7 at 296.

[306] Antony Anghie n 77 at 447.

[307] Ibid contrasts the Northern Cameroon Case (Cameroon v UK) 1963 ICJ 15 (Dec 2) Preliminary Objections, Judgement where the ICJ declined to exercise jurisdiction; and 458.

[308] Stuart Kaye n 15 at 159.

[309] Ibid

[310] Gillian Triggs n 300 at 659.

[311] Stuart Kaye n 15 at 159.

[312]http://www.austlii.edu.au/do/disp.pl/au/other/dfat/treaties/19930026.html?query=%7Enauru%20w/5%20memorial Australian Treaty Series 1993 No 26 - Agreement between Australia and the Republic of Nauru for the Settlement of the Case in the International Court of Justice concerning Certain Phosphate Lands in Nauru

[313] J G Merrills n 1 at 13-14.

[314] Case Concerning Phosphate Lands in Nauru (Nauru v Australia) (1993) Australian International Law News at 189-198.

[315] n 259 at Basic Principle (20) at 192.

[316] n 259 at 197.

[317] Nii Lante Wallace-Bruce n 18 at 222.

[318]http://www.austlii.edu.au/do/disp.pl/au/other/dfat/multi/19870209.html?query=%7Enauru%20w/5%20memorial

[319] Ian Anderson n 240 at 12.

[320] http://www.tcol.co.uk/nauru/naur2.htm#geography

[321] http://www.tcol.co.uk/nauru/naur2.htm#geography

[322] http://www.tcol.co.uk/nauru/naur2.htm#geography

[323] http://www.tcol.co.uk/nauru/naur2.htm#geography

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