270

SEPARATE OPINION OF JUDGE SHAHABUDDEEN

A major point on which the Court has divided is whether Australia may
be sued in the absence of New Zealand and the United Kingdom. I pro-
pose to give my reasons for agreeing with the decision of the Court on the
point. Before proceeding, there is, however, an introductory matter to
which I must refer. It concerns the principle of equality of States before
the Court. It arises in the following way.

Nauru is one of the smallest States in the world; Australia is one of the
larger. In his opening remarks, the Solicitor-General for the Common-
wealth observed:

“There is no need for emotive arguments. It is not a case of David
and Goliath, or of a tiny island and a large metropolitan power ...
Before this Court, of course, the equality of the Parties will be
preserved. Rich or poor, large or small, the Court will ensure that
their legal rights have equal protection.” (CR 91/15, p. 42, Solicitor-
General Gavan Griffith, Q.C.)

Counsel for Nauru in his turn referred to the contrasting sizes of the
Parties and said:

“Being a small democratic State, Nauru has firm faith in the rule of
law in the affairs of nations. It has firm faith in this Court as the dis-
penser of international justice.” (CR 91/18, p. 31, Professor Mani.)

It seems to me that, whatever the debates relating to its precise content
in other respects, the concept of equality of States has always applied as a
fundamental principle to the position of States as parties to a case before
the Court (Consistency of Certain Danzig Legislative Decrees with the Con-
stitution of the Free City, P.C.IL.J. Series A/B, No. 65, p.66, Judge Anzilotti).
In the words of President Basdevant, “Before this Court, there are no great
or small States ...” (CJ. Yearbook 1950-1951, p. 17). States of all kinds
and sizes may bring their cases before the Court on a basis of perfect
equality. Big States have a right to value this aspect as much as small. In
the Mavrommatis Concessions case, Greece sued the United Kingdom
before the Permanent Court of International Justice. At one stage in a
lively debate, counsel for the United Kingdom found himself remarking
that “even the great Powers are entitled to justice at the hands of this
Tribunal” (P.C.LJ., Series C, No. 5-I, p. 64). So indeed they are; so are
all States. The matter has never been in doubt.

34
271 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

To return to the question under examination, as to whether Australia
may be sued alone, I consider that an affirmative answer is required for
three reasons. First, the obligations of the three Governments under the
Trusteeship Agreement were joint and several. Second, assuming that the
obligations were joint, this did not by itself prevent Australia from being
sued alone. Third, a possible judgment against Australia will not amount
to a judicial determination of the responsibility of New Zealand and the
United Kingdom. These propositions are developed below. I begin, how-
ever, with the initial question, over which the Parties also joined issue, as
to whether the objection should be declared to be one which does not pos-
sess an exclusively preliminary character. Similar questions arose in rela-
tion to other Australian objections, but it is not proposed to deal with
those. I would add, by way of general caveat, that any reference in this
opinion to the obligation, or liability, or responsibility of Australia should
be understood as resting on an assumption made for the purposes of argu-
ment. Whether or not Australia had any obligation, or liability, or respon-
sibility is a matter for the merits.

PART I. WHETHER THE OBJECTION Does NOT Possess AN EXCLUSIVELY
PRELIMINARY CHARACTER

As is shown by the Military and Paramilitary Activities in and against
Nicaragua case, where the Court declares that an objection does not pos-
sess, in the circumstances of the case, an exclusively preliminary charac-
ter, the objection is not finally disposed of; the Court, at the merits stage,
will return to the point and deal with it (see [ILCJ. Reports 1984,
pp. 425-426, and 1.C.J. Reports 1986, pp. 29-31). That being so, a question
would seem to arise as to how far Article 79, paragraph 7, of the existing
Rules of Court is, in its practical operation, different from the earlier pro-
visions of Article 62, paragraph 5, of the Rules of Court 1946 relating to
joinder to the merits (see S. Rosenne, Procedure in the International Court,
A Commentary on the 1978 Rules of the International Court of Justice, 1983,
pp. 164-166; and Georg Schwarzenberger, International Law as Applied by
International Courts and Tribunals, 1986, Vol. IV, p. 617). Because of the
textual changes made in the Rules in 1972, the Court no longer says in
functions not being activated by the use of formulae, the fact that the
Court no longer says so does not by itself affect the substance of what it
does.

Nor would it be right to suppose that prior to 1972 the Court considered
that it had an unfettered discretion to order a preliminary objection to be
joined to the merits. The use of the disjunctive “or” in the first sentence of
Article 62, paragraph 5, of the Rules of Court 1946 conveyed no such

35
272 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

notion. Speaking of its power to make such an order, in 1964 the Court
expressly stated that it would

“not do so except for good cause, seeing that the object of a prelimi-
nary objection is to avoid not merely a decision on, but even any dis-
cussion of the merits” (Barcelona Traction, Light and Power Company,
Limited, Preliminary Objections, I.C.J. Reports 1964, p. 44; emphasis
added).

That view reached back a long way (Panevezys-Saldutiskis Railway,
P.CI.T. Series A/B, No. 76, p. 24, Judges De Visscher and Rostworowski).
The actual results may have been debatable in some cases, but I hesitate to
imagine that the Court did not recognize that, in principle, wherever
reasonably possible a preliminary objection should be determined at
the preliminary stage. In the Barcelona Traction case, after reviewing the
previous jurisprudence on the subject, the Court indicated the circum-
stances in which it would order a joinder. It said it would do so where

“the objection is so related to the merits, or to questions of fact or law
touching the merits, that it cannot be considered separately without
going into the merits (which the Court cannot do while proceedings
on the merits stand suspended under Article 62), or without prejudg-
ing the merits before these have been fully argued” (Barcelona Trac-
tion, Light and Power Company, Limited, Preliminary Objections,
LCJ. Reports 1964, p. 43).

What, however, is scarcely open to dispute is that the new Rules were
intended to stress the need to decide a preliminary objection at the preli-
minary stage wherever reasonably possible, the well-known object being
to avoid a repetition of the kind of situation which ultimately arose in the
Barcelona Traction case and the criticisms attendant thereon (Barcelona
Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports
1970, p. 3). Fresh urgency has been imparted to the operation of the old
criteria, particularly in respect of the Court’s earlier thinking that a join-
der should not be ordered “except for good cause” (“pour des motifs
sérieux”). To the limited extent necessary to enable the Court to determine
the objection, the merits may be explored, provided, always, that the
issue raised is not so inextricably linked to the merits as to be incapable of
determination without determining or prejudging the merits or some
part thereof.

These considerations no doubt account for the caution observed by the
Court in declaring an objection to be not exclusively preliminary in char-
acter. Since the introduction of the new provisions in 1972, the Court has
made such a declaration in one case only, namely, the Military and Para-
military Activities in and against Nicaragua case. There, certain objections,
although not presented by the respondent as preliminary objections, were

36
273 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

considered in the light of the procedural provisions relating to preliminary
objections (I.C.J. Reports 1984, p. 425, para. 76). The Court declared one
of the objections to be not exclusively preliminary in character (ibid.). At
the merits stage this objection, which related to jurisdiction, was upheld
(LCJ. Reports 1986, p. 38, para. 56). Had it not been for the fact that other
grounds of jurisdiction existed, the result would have been a replay of the
Barcelona Traction situation. Possibly, any criticisms could have been met
in the circumstances of the case. In the case at bar, Iam not confident that
this would be so if the particular objection under consideration were
declared to be not exclusively preliminary in character but ultimately
came to be upheld at the merits stage. In that event (unlike the position in
the Military and Paramilitary Activities in and against Nicaragua case), the
consequence would be the immediate and total collapse of Nauru’s case.
Unless it could be convincingly shown that the point could not have been
determined at the preliminary stage, it would be difficult to parry criti-
cisms about waste of time, expense and effort, not to mention evasion of
the Court’s responsibilities.

Nauru’s position was that Australia’s objection did not have an exclu-
sively preliminary character and could not be determined now, but that, if
it had that character, it should be rejected. Australia countered that the
objection did have an exclusively preliminary character and should be
upheld. By implication, the Court has agreed with Australia’s contention
that the objection did have an exclusively preliminary character. In my
view, the Court was right.

What is Nauru’s case? Though variously stated, it comes to this: Nauru
is saying that Australia was administering Nauru pursuant to the Trustee-
ship Agreement; that this Agreement (read with the Charter and in the
light of general international law) required Australia to use the govern-
mental powers exercised by it under the Agreement to ensure the rehabili-
tation of worked-out phosphate lands; but that, in administering the
Territory, Australia breached this obligation.

Australia’s objection is this : the obligation to ensure rehabilitation (if it
existed) was, by virtue of the terms of the Trusteeship Agreement, a joint
obligation of Australia, New Zealand and the United Kingdom, with the
result that Australia alone could not be sued because

() aparty to a joint obligation cannot be sued alone;

(ii) a judgment against Australia in respect of the joint obligation would
amount to an impermissible determination of the responsibility of
New Zealand and the United Kingdom (both non-parties) in relation
to the same obligation (see Judgment, para. 48).

It will be argued below that the existence of the particular obligation to
ensure rehabilitation has at this stage to be assumed. Clearly also no ques-

37
274 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

tion arises at this point as to whether there was in fact a breach of the
obligation. The remaining questions are questions of law which can be
answered now. They are clearly of a preliminary character.

With respect to the question whether the particular obligation under the
Trusteeship Agreement was joint, it seems to me that it is open to the Court
to take the position, as I think it in effect has, that whatever the precise
juridical basis of the obligations of the three Governments under the Trus-
teeship Agreement, Nauru is not precluded from suing Australia alone.
On this approach, the Court is not called upon to say, and has not said,
whether or not the particular obligation was joint, as asserted by Australia
(see Judgment, para. 48).

However, if the Court were called upon to determine whether the obli-
gation was joint, this determination could be made by considering the
terms of the Trusteeship Agreement and those terms alone. Previous or
subsequent facts could not make the obligation joint if it was not joint
under the Trusteeship Agreement. Correspondingly, if the obligation was
joint under the Trusteeship Agreement, previous or subsequent facts
could not make it other than joint.

I do not intend to suggest that none of the facts may be considered. The
facts are useful, but their utility lies in the assistance they provide in under-
standing how the Trusteeship Agreement came to be constructed in the
way it was and how it worked in practice. In this respect, an abundance of
facts has been presented by both sides, and I shall be referring to some of
these. But the facts do not themselves constitute the foundation of the par-
ticular issues of law now calling for decision. The situation is materially
different from one in which the question whether a case against a State is
maintainable in the absence of other States may conceivably depend
directly on facts which could only be explored and ascertained at the
merits (cf. arguments in Military and Paramilitary Activities in and against
Nicaragua, Jurisdiction and Admissibility, Memorial of Nicaragua, p. 141,
Section “C”; CR 84/19, p. 47, Mr. J. N. Moore; and L. F. Damrosch,
“Multilateral Disputes”, in L. F. Damrosch (ed.), The International Court
of Justice at a Crossroads, 1987, pp. 391-393).

I must now explain why I consider that it has to be assumed at this stage
that Australia had an obligation to ensure rehabilitation under the Trus-
teeship Agreement, as alleged by Nauru. The reason is that the question
whether the obligation existed is part of the merits and, these being pre-
liminary proceedings, the elements of the merits have to be assumed
(see Nottebohm, I.C.J. Reports 1955, p. 34, Judge Read, dissenting); they
cannot be determined now.

In some national systems, a wide range of points of law relating to the
merits may be set down for argument in advance of the normal hearing on
the merits, provided that all the relevant material is before the Court. The
governing criterion is that the point (which might for convenience be

38
275 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

called a preliminary objection on the merits) must be one which, if
decided in one way, will be decisive of the litigation or at any rate of some
substantial issue in the action!. The object is, of course, to save time, effort
and cost. There have been arguments (though not in this case) as to
whether preliminary objections on the merits may competently be made
before this Court?. However, while reserving my opinion on that point, I
would note that the Court’s jurisprudence (including paragraphs 36, 38,
56 and 68 of today’s Judgment) has proceeded on the basis of a long-
standing distinction between preliminary objections and the merits, even
though one may argue as to whether the distinction, itself rather general
and never easy to draw, was accurately applied in particular cases.

What are the merits? Broadly speaking

“the merits of a dispute consist of the issues of fact and law which
give rise to a cause of action, and which an applicant State must
establish in order to be entitled to the relief claimed” (Anglo-Iranian
Oil Co., Preliminary Objection, I.C.J. Reports 1952, p. 148, Judge
Read, dissenting).

To establish its case on the merits, Nauru must prove, inter alia, first, that
Australia had an obligation under the Trusteeship Agreement to ensure
rehabilitation and, second, that Australia was in breach of that obligation.
An argument that Australia did not have that substantive obligation
would accordingly concern the merits and lack a preliminary character.
It would touch the substance, as amounting to an assertion that there
was no obligation under international law which Australia could have
breached in relation to Nauru (see the general reasoning in Electricity
Company of Sofia and Bulgaria, P.C.I.J., Series A/B, No. 77, pp. 82-83;
Barcelona Traction, Light and Power Company, Limited, Preliminary Objec-
tions, I.C.J. Reports 1964, pp. 44-46, and Judge Morelli, dissenting, at
pp. 110-112; ibid., Second Phase, I.C.J. Reports 1970, pp. 226 ff., Judge
Morelli, concurring; and South West Africa, Second Phase, I.C.J.
Reports 1966, p. 19, para. 7). An argument of that kind would go not to the

' See, as to English law, The Supreme Court Practice, 1979, Vol. 1, London, 1978,
pp. 282-284, Order 18/11/1-4. And see Northern Cameroons, I.C.J. Reports 1963, sep-
arate opinion of Judge Fitzmaurice, pp. 106-107; Nuclear Tests (Australia v. France),
Interim Protection, IL.C.J. Reports 1973, dissenting opinion of Judge Gros, p. 121; and
Nuclear Tests (Australia v. France), I.C.J. Reports 1974, separate opinion of Judge Gros,
p. 292.

2 See, generally, and compare Judge-Morelli, in Rivista di diritto internazionale,
Vol. 47, 1964, p. 3; Vol. 54, 1971, p. 5; Vol. 58, 1975, pp. 5 and 747; Giuseppe Sperduti,
ibid., Vol. 53, 1970, p. 461; Vol. 57, 1974, p. 649; Vol. 58, 1975, p. 657; Roberto Ago,
Comunicazioni e studi, Vol, 14, 1975, p. 1, at p. 11, footnote 22; Ugo Villani, Italian Year-
book of International Law, 1975, Vol. 1, p. 206, at p. 207; and S. Rosenne, op. cit., p. 160, as
to Article 79 of the new Rules “implying a re-definition of the qualification prelimi-
nary”.

39
276 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

question whether Australia could be sued alone, but to the question
whether Australia could be adjudged liable, even if it could be sued alone.

Consequently, the question whether Australia had the obligation to
ensure rehabilitation cannot be determined in this phase of the proceed-
ings; it can only be determined at the merits stage. The existence of the
obligation has simply to be assumed at this point. This being so, the only
issues now open are the issues of law referred to above, that is to say,
whether the obligation (if it existed) was joint, and, if it was, whether the
propositions at (i) and (ii) above are well founded. These issues can be
determined now and cannot justifiably be reserved for the merits.
Nothing relating to the establishment at the merits stage of the existence of
the alleged obligation to ensure rehabilitation can provide a reason for not
dealing with those issues now.

In my opinion, the Court acted correctly in refraining from declaring
that the objection as to the absence from the proceedings of New Zealand
and the United Kingdom does not possess an exclusively preliminary
character. So I pass to the objection itself, beginning with a background
reference to Australia’s position under the Trusteeship Agreement.

PART II. AUSTRALIA’S POSITION UNDER THE TRUSTEESHIP AGREEMENT

An appreciation of Australia’s position under the Trusteeship Agree-
ment should take account of two factors, first, the evolution of Australia’s
international personality during the Mandate period, and, second, the
legal character of a trusteeship agreement.

The first factor relates to the external aspects of the constitutional evo-
lution of the relations between component units of the British Empire
(see, generally, Sir Ivor Jennings, Constitutional Laws of the Common-
wealth, Vol. 1, The Monarchies, 1957, pp. 18 ff.). It is probable that the
underlying doctrine of the unity of the British Crown, which was then cur-
rent, explains the fact that, although Nauru was in practice administered
by Australia under the 1920 Mandate, the latter was conferred simply on
“His Britannic Majesty”. Traces of the doctrine are perhaps discernible
even in the case of the Mandate for New Guinea, in which the Mandatory
was described as “His Britannic Majesty for and on behalf of the
Government of the Commonwealth of Australia (hereinafter called
the Mandatory)” (Art. 1 of the Mandate, 17 December 1920, Procés-
Verbal of the Eleventh Session of the Council of the League of Nations,
held at Geneva, p. 102; see also the second and third preambular para-
graphs, and A. C. Castles, “International Law and Australia’s Overseas
Territories”, in International Law in Australia, ed. D. P. O’Connell, 1965,
pp. 294-295).

By contrast, Article 2 of the 1947 Trusteeship Agreement for Nauru

40
277 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

made a separate reference to each of the three Governments when speak-
ing of the “Governments of Australia, New Zealand and the United King-
dom” as having been “designated as the joint Authority which will exer-
cise the administration of the Territory”. Further, as will be shown below,
by the Agreement itself Australia was given the leading role. The material
before the Court makes it clear that during the Mandate period Australia
had been moving in the direction of securing a progressively greater
degree of practical control over the administration of Nauru, an aspira-
tion which had been earlier manifested in the expression of a desire by
Australia to annex the Island before the granting of the Mandate. Corre-
spondingly, by 1947, what Chief Justice Sir Garfield Barwick elegantly
called the “imperceptible and, in relative terms, the uneventful nature of
the progress of Australia from a number of separate dependent colonies to
a single independent and internationally significant nation” had run its
full course!. |

With respect to the second factor, trusteeship agreements exhibit pecu-
liarities which have left the precise legal character of such agreements
open to some degree of speculation, as is evidenced by an interesting
literature on the subject. Professor Clive Parry’s conclusion is this:

“As actually achieved in the form of treaties between the United
Nations and the several administering authorities, the trusteeship
agreements are legal acts distinct from the Charter. They possess,
however, a dispositive (or conveyancing) as well as a contractual
character. In their ‘dispositive’ aspect they are not independent of the
Charter. Together with the relevant provisions of the Charter they
constitute a quasi-statutory basis for the trusteeship system as in fact
applied to specific territories. They have, as has the régime which
they inaugurate and govern, an objective character. This is perhaps
their most important aspect.” (Clive Parry, “The Legal Nature of the
Trusteeship Agreements”, British Year Book of International Law,
Vol. 27, 1950, p. 164, at p. 185.)

These remarks may be borne in mind, in conjunction with the evolution
of Australia’s international personality, in considering Article 4 of the
Trusteeship Agreement relating to Nauru, which provided as follows:

“The Administering Authority will be responsible for the peace,
order, good government and defence of the Territory, and for this

1 See generally, D. P.O’Connell, “The Evolution of Australia’s International Person-
ality”, in International Law in Australia, ed. D. P. O’Connell, 1965, Chap. 1, and the
foreword by Sir Garfield Barwick; D. P. O’Connell and James Crawford, “The Evolu-
tion of Australia’s International Personality”, in International Law in Australia, 2nd ed.
by K. W. Ryan, 1984, p. 21; and W. A. Wynes, Legislative, Executive and Judicial Powers
in Australia, 5th ed., p. 56.

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278 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

purpose, in pursuance of an Agreement made by the Governments of
Australia, New Zealand and the United Kingdom, the Government
of Australia will, on behalf of the Administering Authority and
except and until otherwise agreed by the Governments of Australia,
New Zealand and the United Kingdom, continue to exercise full
powers of legislation, administration and jurisdiction in and over the
Territory.”

As a result of the dual contractual and “quasi-statutory” character of a
trusteeship agreement, and whatever might have been the earlier implica-
tions of the first factor mentioned above, it is possible to read this provi-
sion, which came into force in 1947, as providing (with the approval of the
General Assembly), first, for full powers of administration to be vested in
the three Governments as constituting the Administering Authority, and,
second, for these powers to be delegated by them to Australia. This inter-
pretation is supported by other elements of the Trusteeship Agreement. It
is difficult, therefore, to resist Australia’s argument that, however exten-
sive was its administrative authority over Nauru, that authority fell to
be regarded in law as having been exercised by it on behalf of all three
Governments.

But, although form is not unimportant, international law places empha-
sis on substance rather than on form (Mavrommatis Palestine Concessions,
P.CIJT., Series A, No. 2, p. 34; Interhandel, I.C.J. Reports 1959, p. 60,
Judge Spender; Barcelona Traction, Light and Power Company Limited,
Preliminary Objections, I.C.J. Reports 1964, pp. 62-63, Judge Koo; and,
ibid., Second Phase, ILC.J. Reports 1970, p. 127, Judge Tanaka). Some
notice may, therefore, be taken of the extent and exclusiveness of the
powers enjoyed by Australia, and, in particular, of certain differences
between its position and that of New Zealand and the United Kingdom
which could have a bearing on some of the issues to be examined.

The provisions of the Trusteeship Agreement do not readily yield up the
reality of the actual power structure which they laid down. The first part of
Article 4 of the Agreement had the effect of vesting plenary powers of
government in the three Governments as constituting the Administering
Authority; but the second part of the provision made it clear that, for all
practical purposes, those powers could be exercised only by Australia,
which was given the right to “continue to exercise full powers of legisla-
tion, administration and jurisdiction in and over the Territory”. The
authority so conferred on Australia could be revoked by subsequent
agreement by the three Governments, but, clearly, there could be no such
revocation without the consent of Australia. In fact, there was no revoca-
tion: the Agreement made by the three Governments in 1965, while pro-
viding for a measure of subordinate governmental authority to be exer-
cisèd by the Nauruans, had the effect of further diminishing the role of
New Zealand and the United Kingdom in relation to that of Australia.
Thus, Australia had exclusive authority to administer Nauru for all practi-

42
279 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

cal purposes, as well as the even more significant power to prevent any
diminution or withdrawal of that authority. Australia’s controlling posi-
tion continued unimpaired right up to independence.

The implications for an appreciation of the real power structure
established by the Trusteeship Agreement are important. Take Article 5,
paragraph 1, of the Trusteeship Agreement. This recorded an under-
taking by the “Administering Authority” that

“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.”

Or, consider Article 5, paragraph 2 (b), of the Trusteeship Agreement,
under which the “Administering Authority” undertook to

“Promote, as may be appropriate to the circumstances of the
Territory, the economic, social, educational and cultural advance-
ment of the inhabitants.”

Itis not clear to me that the Administering Authority could do any of these
things without an appropriate exercise by Australia of its “full powers of
legislation, administration and jurisdiction in and over the Territory”.
However, the Trusteeship Agreement did not reserve to the Administering
Authority any competence to direct or control the way in which Australia
chose to exercise its “full powers”, and the evidence does not suggest that
Australia acknowledged that the Administering Authority had any such
competence as of right. In so far as the Administering Authority had any
functions under the Trusteeship Agreement that could be discharged
without an exercise by Australia of its “full powers of legislation, adminis-
tration and jurisdiction in and over the Territory” (which seems doubtful),
such functions had nothing to do with the substance of the claims pre-
sented by Nauru. And this is apart from the consideration that, in the first
place, the Administering Authority could not act without the concurrence
of Australia. The Parties to the case were agreed that the Administering
Authority was not a separate subject of international law or a legal entity
distinct from its three member Governments. These could act only by
agreement, and there could be no agreement if Australia objected.
Australia submitted that it acted with the concurrence of New Zealand
and the United Kingdom in appointing Administrators of the Trust Terri-
tory (Preliminary Objections of the Government of Australia, Vol. I,
paras. 36, 45, 334 ff., and 341). However, none of the pertinent documents
suggests that New Zealand and the United Kingdom had any legal basis
on which to demand to be consulted as of right, let alone demand that
their concurrence be obtained. New Zealand and the United Kingdom
participated in the negotiations and ensuing agreement for the transfer of
the phosphate undertaking to Nauruan control; but the real basis on
which they were acting there was the commercial one which they occupied
as part-owners of the undertaking and future purchasers of Nauruan
phosphates. In so far as the negotiations embraced the subject of rehabili-

43
280 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

tation, this did not show that New Zealand and the United Kingdom had
any control of the actual administration of the Trust Territory: under the
Trusteeship Agreement their responsibility for non-rehabilitation could
exist without such control. The law is familiar with situations in which a
party may become contractually liable for the acts of another though hav-
ing no power of direction or control over them. Possibly, the concurrence
of New Zealand and the United Kingdom was legally required in respect
of a proposal, such as that relating to resettlement, which premised a
modification of the fundamental basis of the original arrangements,
or that relating to independence, which premised the termination of the
Trusteeship Agreement itself; but I am unable to see that there was
any such requirement, as a matter of law, where the normal administra-
tion of the Territory was concerned.

The first preamble of the Trusteeship Agreement recalled that, under
the Mandate, the Territory of Nauru had “been administered . . . 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”. Thus, the Trusteeship Agreement itself recognized
that the administration of the Island had in practice been in the hands of
Australia during the Mandate. This, of course, continued under the Trus-
teeship (see para. 43 of the Judgment). The position was, I think, correctly
summed up by counsel for Nauru as follows:

“Nauru was administered as an integral portion of Australian ter-
ritory. Its administration bore no relation to the territory of any other
State. As far as can be discovered, no governmental official of either
New Zealand or the United Kingdom lived on Nauru during the
period from 1920 to early 1968, or performed governmental acts
there. Throughout the whole of that period, the government officials
on Nauru, the Administrator and the persons responsible to him,
were Australian public servants, answerable to other Australian
public servants in Canberra, and in no sense subject to the direction
or control of any other Government. Article 22 of the Covenant
referred to administration ‘under the laws of the Mandatory’: in fact,
those laws were Australian. No British or New Zealand law was ever
applied to Nauru.” (CR 91/20, pp. 75-76, Professor Crawford.)

The international agreements which applied to Nauru were a selection of
international agreements to which Australia was a party (ibid., p. 78).
Although independence had been agreed to by all three Governments, the
Nauru Independence Act 1967 was an Australian enactment; no counter-
part legislation was enacted by New Zealand or the United Kingdom.
Until independence the flag — the only one — which flew in Nauru was
the Australian flag.

I am not persuaded by Australia’s argument that its governmental

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281 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

authority was excluded from the phosphate industry by reason of
Article 13 of the Nauru Island Agreement 1919, reading:

“There shall be no interference by any of the three Governments
with the direction, management, or control of the business of work-
ing, shipping, or selling the phosphates, and each of the three Gov-
ernments binds itself not to do or to permit any act or thing contrary
to or inconsistent with the terms and purposes of this Agreement.”

Referring to this provision, in the case of Tito v. Waddell, Megarry, V-C.,
observed — correctly, if I may say so — that:

“This article established the independence of the British Phos-
phate Commissioners as against any one or two of the three govern-
ments, though not, of course, against all three acting in concert.”
({1977] 3 All ER 129, at p. 166.)

Article 13 of the Nauru Island Agreement could not apply to Australia as
Administrator for the reason that, in administering Nauru under author-
ity delegated by all three Governments, its acts would in substance have
been the acts of all three Governments “acting in concert”, and not the
acts of Australia alone.

It is not possible to conceive of the major industry of a Territory (irre-
spective of ownership) being entirely beyond the competence of the legis-
lative, executive and judicial powers of the Territory, in whomsoever
these are vested. Consequently, to hold that the governmental powers of
the Australian-appointed Administrator did not extend to the phosphate
industry and that this was exclusively within the competence of the three
Governments acting through the British Phosphate Commissioners
(BPC) is effectively to hold that governmental powers concerning all mat-
ters relating to the industry were exercisable by the three Governments
acting through BPC. This in turn amounts to saying that there were two
governments in Nauru, namely, an economic government administered
by the three Governments acting through BPC with exclusive responsibi-
lity for the Territory’s main industry, and another government adminis-
tered by Australia with responsibility for residual matters. I cannot read
the Trusteeship Agreement as meaning that the régime which it intro-
duced in Nauru in 1947 consisted of two such governments. It is, I think,
unquestionable that all governmental power must derive from the Trus-
teeship Agreement (see, as to a mandate, International Status of South
West Africa, I.C.J. Reports 1950, p. 133). BPC (whose undertaking could
equally have been carried on by an ordinary commercial company as,
indeed, had been earlier the case) did not profess to be exercising govern-
mental powers under the Trusteeship Agreement: it simply had no stand-
ing under that Agreement. On the other hand, as the legislative and other
evidence shows, Australia did not consider that its Administrator was
wholly without competence over the industry. The Trusteeship Agree-

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282 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

ment was concluded on the basis that all governmental functions in
Nauru, though formally vested in all three Governments, would be exer-
cised by Australia alone. It is untenable to suppose that the “full powers of
legislation, administration and jurisdiction in and over the Territory”,
which were conferred on Australia by the Trusteeship Agreement, were
not “full” enough to extend to the overwhelming bulk of the Territory’s
economy.

Part of the problem concerns the correct appreciation of Nauru’s case.
There could be an impression that Nauru’s claims directly concern Aus-
tralia’s part in the commercial operations of the phosphate industry. That
impression would not be accurate. No doubt, Nauru’s case has many
branches; but the essence of the case — whether it is well founded or not
being a matter for the merits — is that Australia, while having under the
Trusteeship Agreement “full powers of legislation, administration and
jurisdiction in and over the Territory”, failed to exercise these compre-
hensive governmental powers so as to regulate the phosphate industry in
such a way as to secure the interests of the people of Nauru (CR 91/20,
p. 83, and CR 91/22, p. 45, Professor Crawford). In particular, says
Nauru, there was failure to institute the necessary regulatory measures to
ensure the rehabilitation of worked-out areas, not in the case of mining in
any country, but in the case of large-scale open-cast mining in the min-
uscule area of this particular Trust Territory. The consequence, according
to Nauru, was that the Territory became, or was in danger of becoming,
incapable of serving as the national home of the people of Nauru, con-
trary to the fundamental objectives of the Trusteeship Agreement and of
the Charter of the United Nations. In this respect, the question, as I under-
stand it, is not simply whether rehabilitation was required by such
environmental norms as were applicable at the time; the question is
whether rehabilitation was required by an implied obligation of Australia
under the Trusteeship Agreement not to allow the destruction of the
small national homeland of the Nauruan people, or any substantial part
of it, through an unregulated industrial process which went so far as to
result at one stage in the making and consideration of serious proposals
for resettlement of the Nauruan people altogether outside of Nauru.
That, I think, is Nauru’s case.

There is no basis for suggesting that New Zealand and the United King-
dom had any capacity, as of right, to require Australia to use the govern-
mental powers, which it alone could exercise, for the purpose of legally
ensuring rehabilitation. No doubt, having accepted that Australia was act-
ing on their behalf, with the possibility that they could in consequence be
liable for its acts, New Zealand and the United Kingdom had an interest in
seeing that Australia discharged the responsibilities of the Administering
Authority in a satisfactory way. But “the existence of an ‘interest’ does not

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283 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

of itself entail that this interest is specifically juridical in character” (South
West Africa, Second Phase, I.C.J. Reports 1966, p. 34, para. 50). An interest
is not always a right (Barcelona Traction, Light and Power Company,
Limited, Second Phase, I.C.J. Reports 1970, pp. 36, 38, and Judge Morelli at
pp. 235-237): in this case, given the terms of Article 4 of the Trusteeship
Agreement, New Zealand and the United Kingdom had no capacity as of
right to control the course of Australia’s conduct of the administration of
the Island. Presumably, they had some influence; but, as Jenks remarked,
even where influence is considerable, “influence is less than power”
(C. W. Jenks, The World Beyond the Charter, 1969, p. 99).

Judge Hudson once warned that “[a] juristic conception must not be
stretched to the breaking-point” (Lighthouses in Crete and Samos, P.C.LJ.,
Series A/B, No. 71, p. 127). In the circumstances of that case, he had occa-
sion to add that “a ghost of a hollow sovereignty cannot be permitted to
obscure the realities of [the] situation” in Crete. No questions of sover-
eignty arise here; nevertheless, those remarks may be borne in mind in
considering the realities of the situation in Nauru. In law, Australia was
acting on behalf of all three Governments; and Australia is right in saying
that this circumstance was consistently reflected in the positions taken by
the United Nations and by Nauru. But it would be erroneous to suppose
that New Zealand and the United Kingdom were also administering
Nauru in the sense of having any real say in its administration; they had
none.

PART III. THE OBLIGATIONS OF THE THREE GOVERNMENTS WERE JOINT
AND SEVERAL, WITH THE CONSEQUENCE THAT AUSTRALIA COULD
BE SUED ALONE

Icome now to the question whether the obligations of the three Govern-
ments were joint, as contended by Australia, or whether they were joint
and several, as contended by Nauru.

Iunderstood counsel for Australia to be accepting that the international
case-law does not support the Australian view that the obligations of the
three Governments were joint, even if he considered that neither does it
support the Nauruan view that the obligations were joint and several
(CR 91/21, pp. 63-64, Professor Pellet, stating that “le match est nul”).

As regards the work produced by the International Law Commission,
which was laid by either side before the Court, the statement of counsel
for Australia was this:

“the International Law Commission has never expressly adopted
a position on the problem under consideration, displaying great
reticence as regards the very idea of joint and several liability”
(ibid., p. 65).

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284 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

But reticence is not resistance. The Parties disputed the precise meaning
of paragraph 2 of the commentary on Article 27 of the Commission’s
Draft Articles on State Responsibility of 1978. That paragraph states in
relevant part:

“A similar conclusion is called for in cases of parallel attribution of
a single course of conduct to several States, as when the conduct in
question has been adopted by an organ common to a number of
States. According to the principles on which the articles of chapter IT
of the draft are based, the conduct of the common organ cannot be
considered otherwise than as an act of each of the States whose com-
mon organ it is. If that conduct is not in conformity with an interna-
tional obligation, then two or more States will concurrently have
committed separate, although identical, internationally wrongful
acts. It is self-evident that the parallel commission of identical
offences by two or more States is altogether different from partici-
pation by one of those States in an internationally wrongful act com-
mitted by the other.” (Yearbook of the International Law Com-
mission, 1978, Vol. Il, Part Two, p. 99.)

It is not necessary to enter into the general aspects of the difficult ques-
tion carefully examined by the Commission as to when a State is to be
regarded as participating in the internationally wrongful act of another
State. It suffices to note that the Commission considered that, where
States act through a common organ, each State is separately answerable
for the wrongful act of the common organ. That view, it seems to me, runs
in the direction of supporting Nauru’s contention that each of the three
States in this case is jointly and severally responsible for the way Nauru
was administered on their behalf by Australia, whether or not Australia
may be regarded technically as a common organ.

Judicial pronouncements are scarce. However, speaking with reference
to the possibility that a non-party State had contributed to the injury in the
Corfu Channel case, Judge Azevedo did have occasion to say:

“The victim retains the right to submit a claim against one only of
the responsible parties, in solidum, in accordance with the choice
which is always left to the discretion of the victim, in the purely econ-
omic field; whereas a criminal judge cannot, in principle, pronounce
an accomplice or a principal guilty without at the same time estab-
lishing the guilt of the main author or the actual perpetrator of the
offence.” (I.C.J. Reports 1949, p. 92.)!

On the facts, the Corfu Channel case allows for a number of distinctions.

! Asto the last point, however, compare, in English law, Archbold, Pleading, Evidence
and Practice in Criminal Cases, 40th ed., p. 1898, para. 4136; Halsbury’s Laws of England,
4th ed., Vol. 11 (1), pp. 49-50, para. 50; and R v. Howe [1987] 1 AI ER 771 HL.

48
285 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

However, it is to be observed that Judge Azevedo’s basic view of the gen-
eral law was that the right to sue “one only of the responsible parties, in
solidum” was available to the injured party “in accordance with the choice
which is always left to the discretion of the victim, in the purely economic
field...” (emphasis added). This approach would seem to be consistent
with the view that Nauru does have the right to sue Australia alone.

If domestic analogies are to be considered, the most likely area lies
within the broad principles of the law of trust in English law and of cog-
nate institutions in other systems. A United Nations Trusteeship must not,
of course, be confused with a trust as understood in any specific system
of municipal law; but, used with discretion, the principles relating to
the latter are not unhelpful in elucidating the nature of the former. As
Judge McNair said, in relation to Mandates, it “is primarily from the
principles of the trust that help can be obtained on the side of private law”
(International Status of South West Africa, I.C.J. Reports 1950, p. 151; and
see, ibid., pp. 148, 149, 152, and the Namibia case, I.C.J. Reports 1971, p. 16,
at p. 214, Judge de Castro). Now, the applicable rule in the English law of
trusts has been stated thus:

“Where several trustees are implicated in a breach of trust, there is
no primary liability for it between them, but they are all jointly and
severally liable to a person who is entitled to sue in respect of it.”
(Halsbury’s Laws of England, 4th ed., Vol. 48, p. 522, para. 939; see
also, ibid., p. 539, para. 971, and ibid., Vol. 35, para. 68.)

This being so, I do not find it surprising that, in regard to Nauru, the
view has been expressed “that the three countries are jointly and severally
responsible under international law for the administration of the terri-
tory” (A. C. Castles, “International Law and Australia’s Overseas Territo-
ries”, in International Law in Australia, ed. D. P. O’Connell, 1965, p. 332). I
think this view is to be preferred to the view that the responsibility was
exclusively joint.

This conclusion, that the obligation to ensure rehabilitation (if it
existed) was joint and several, disposes of Australia’s contention that pro-
ceedings will not lie against one only of the three Governments. It should
also dispose of Australia’s contention that any judgment against Australia
will amount to a judgment against New Zealand and the United King-
dom. But Australia does not think so; it considers that, even if the obliga-
tion was joint and several, a judgment against it would still imply a
determination of the responsibility of New Zealand and the United King-
dom. The issue concerning the implications of a possible judgment
against Australia for New Zealand and the United Kingdom is not being
examined here; it will be examined in Part V. However, to anticipate the
conclusion reached there, even if the obligation was joint, a judgment

49
286 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

against Australia will not amount to a determination of the responsibility
of New Zealand and the United Kingdom. This conclusion, if correct,
would apply a fortiori if the obligation was joint and several.

PART [V. EVEN IF THE OBLIGATIONS OF THE THREE GOVERNMENTS WERE
JOINT, THIS BY ITSELF Dip NOT PREVENT AUSTRALIA FROM BEING SUED
ALONE

Assuming that I am wrong in the foregoing, the result would be no dif-
ferent, in my opinion, even if the obligations of the three Governments
under the Trusteeship Agreement were joint. It is possible, as I think is
recognized in paragraphs 48 and 49 of the Judgment of the Court, to see
Australia’s argument as raising two questions: first, whether the fact that
an obligation is joint by itself means that a suit will not lie against one
co-obligor alone; and, second, whether a judgment against one co-obligor
will constitute a determination of the responsibility of the other co-
obligors and a resulting breach of the consensual basis of the Court’s
jurisdiction. The second question is examined in Part V; the first is
considered below.

On the question being considered, I agree with Australia that “there are
in reality two separate and distinct issues”, namely, “whether Australia
alone can be sued, and, if so, whether it can be sued for the whole damage”
(Preliminary Objections of the Government of Australia, Vol. I, p. 131,
para. 320). However, in my view, if the answer to the first issue is that
Australia alone can be sued, the second issue, concerning the extent of the
damage for which it may be sued, is a matter for the merits. The two issues
being admittedly “separate and distinct”, once it is accepted that Australia
alone may be sued, I do not see how the question of the exact extent of the
damage for which it is responsible can be made to take the form of a plea
in bar of a suit otherwise properly brought against it. I believe this
approach accords with the position taken by the Court in paragraph 48 of
the Judgment. Accordingly, I shall be focusing on the first of these two
issues, that is to say, whether Australia alone may be sued in respect of a
joint obligation.

While refraining from citing and discussing particular texts, I cannot
say that I have the impression that the valuable work of the International
Law Commission, which was placed before the Court by the Parties, was
directed to the question of pure principle as to whether a party to an act
done at one level or another of association with another party may be sued
alone. In so far as the work of the Commission deals with acts of that kind,
it appears to be directed to the question whether, in a suit brought against
any one such party, the claim may be for the entirety of the resulting

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287 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

damage or only for such part as is proportionate to the extent of that
party’s own participation in the causative act, done in the exercise of its
separate sovereign power. If a joint obligation is conceived of as an obli-
gation which in law is capable of existing only in relation to all the co-obli-
gors as a group, without any one of them being individually subject to it,
this would be a ground for saying that proceedings will not lie against any
one of them separately. On this aspect, Australia’s pleadings are open to
different interpretations (CR 91/20, p. 63, Professor Crawford, and Preli-
minary Objections of the Government of Australia, Vol. I, p. 3, para. 2,
penultimate sentence, and p. 131, para. 321). However, I do not think that
Australia is contending that, standing by itself, it was not subject to the
obligations of the Trusteeship Agreement; if it were, it would, for reasons
given under Part I above, be raising an issue of the merits, since it would in
effect be saying that the obligation at international law, which Nauru
alleges that it breached, simply did not exist. The general tendency of doc-
trinal writings, as I appreciate them, does not take the matter any further.

While properly acknowledging the need for caution in transposing
legal concepts from domestic societies to the international community,
both Parties presented municipal law materials and sought some support
from them for their respective contentions. I am not acquainted with non-
Anglo-Saxon legal systems but, subject to the same need for circumspec-
tion — a need that I emphasize — I will consider briefly the position in
English law, as I understand it.

In the case of a joint tort, in English law the plaintiff can always sue any
or all of the tortfeasors, because, as it was said over two hundred years ago,
“a tort is in its nature the separate act of each individual” (Egger v.
Viscount Chelmsford [1964] 3 All ER 412 CA; and Clerk and Lindsell on
Torts, 16th ed., p. 179, para. 2.53). This rule applies also to torts committed
by partners (Halsbury’s Laws of England, 4th ed., Vol. 35, para. 67). The
real problem was different; it was this, that “recovery of judgment against
one of a number of joint tortfeasors operated as a bar to any further action
against the others, even though the judgment remained unsatisfied”
(Clerk and Lindsell on Torts, 16th ed., p. 180, para. 2.54). This bar was
removed by Section 6 of the Law Reform (Married Women and Tortfea-
sors) Act 1935 (replaced by the Civil Liability (Contribution) Act 1978),
under which judgment against one joint tortfeasor is no bar to action
against others, subject to considerations of aggregation and costs. Clearly,
however, even before the 1935 enactment, there was nothing in priaciple
to prevent the plaintiff from suing one only of a number of joint tort-
feasors.

In the case of joint contractors the procedural position in 1967 was
stated thus:

“A defendant has a prima facie right to have his co-contractor

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288 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

joined as defendant and in the absence of special circumstances
showing that [an] order [staying the proceedings until joinder was
effected] should not be made, it is the practice to make it; . . . But if it
is shown that there is any good reason to the contrary, e.g., that the
new party is out of the jurisdiction (Wilson v. Balcarres, etc., Co.{1893]
1 QB 422), or that every effort has been made to serve him without
success, then the action may be allowed to proceed without joinder
(Robinson v. Geisel [1894] 2 QB 685, CA).” (The Supreme Court
Practice 1967, Vol. 1, p. 154, Order 15/4/10; and see Chitty on Con-
tracts, 26th ed., Vol. 1, pp. 807-808, para. 1303, and G. H. Treitel, The
Law of Contract, 6th ed., p. 444.)

The related common law rule was that “an action against a joint contrac-
tor served to bar any other proceedings against another joint contractor”
(Chitty on Contracts, 26th ed., Vol. 1, p. 807, para. 1303). This rule was
later abolished by Section 3 of the Civil Liability (Contribution) Act
1978, under which a plaintiff may sue one of several joint contractors
without prejudice to his right to sue others later (ibid., p. 809, para. 1306,
and The Supreme Court Practice, 1991, Vol. 1, London, 1990, p. 185,
Order 15/4/10).
Nauru argues persuasively that

“the Court is not competent in the present proceedings to interpret
any provisions in the Optional Clause declarations of the United
Kingdom and New Zealand that they might seek to rely on if they
were parties to proceedings commenced by Nauru” (CR 91/20, p. 90,
Professor Crawford);

and certainly the position under the two declarations is not equally clear.
But, if the Court may not make any interpretation of its own, it may never-
theless notice that it is Australia, the proponent of the preliminary objec-
tion, which is itself affirming that the Court would not have jurisdiction
under those declarations against New Zealand and the United Kingdom if
Nauru were to sue them (CR 91/17, pp. 20, 21, 26, 46, 48, Professor Pellet;
and Preliminary Objections of the Government of Australia, Vol. I, p. 138,
para. 346). In my view, the possibility, insisted on by Australia itself, that
there would be no jurisdiction in respect of New Zealand and the United
Kingdom constitutes a reasonable approximation to the exception in
English law (even as it stood before 1978) which permitted of an action
being brought against one of a number of joint contractors if, for reasons
of jurisdiction or service, it was not practicable to join the others. That
possibility also serves to attract attention to the Court’s statement in 1984
to the effect that, in the absence of any system of compulsory intervention,
and barring the operation of the Monetary Gold principle (an aspect dealt
with in the following Part), “it must be open to the Court, and
indeed its duty, to give the fullest decision it may in the circumstances of

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289 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

each case” (Continental Shelf (Libyan Arab Jamahiriya/Malta), Applica-
tion for Permission to Intervene, I.C.J. Reports 1984, p. 25, para. 40).

One of the books cited by Australia, and relied on by it, in its survey of
domestic legal systems, was Glanville Williams, Joint Obligations, Lon-
don, 1949 (Preliminary Objections of the Government of Australia, Vol. I,
p. 128, para. 309). The particular reference was to page 35, paragraph 2.
Two pages earlier, speaking of joint promises, that learned author
expressed the view that “Bowen L.J. stated the rule clearly” when he said:

“There is in the cases of joint contract and joint debt as distin-
guished from the cases of joint and several contract and joint and
several debt, only one cause of action. The party injured may sue at
law all the joint contractors or he may sue one, subject in the latter case
to the right of the single defendant to plead in abatement; but
whether an action in the case of a joint debt is brought against one
debtor or against all the debtors . . . it is for the same cause of
action — there is only one cause of action. This rule, though the
advantage or disadvantage of it may have been questioned in times
long past, has now passed into the law of this country.” (Glanville
Williams, op. cit., pp. 33-34, citing Re Hodgson, Beckett v. Ramsdale,
(1885) 31 Ch. D. 177, at p. 188, CA; emphasis added.)

Subject to the right to plead in abatement, Glanville Williams did not
appear to think that the fact that a contractual obligation is joint operates
in principle to preclude the plaintiff from suing one only of the joint con-
tractors.

It does not appear to me that recourse to municipal law, in so far as I
have been able to explore it, yields any satisfactory analogies supportive
of the suggested existence of any rule of international law precluding the
present action on the ground that the obligation was joint. On balance, the
general trend of the references given by the Parties to non-Anglo-Saxon
legal systems is not, I believe, at variance with this conclusion (see, also,
the authorities cited in the Memorial of the United States of America of
2 December 1958 in L.CJ. Pleadings, Aerial Incident of 27 July 1955,
pp. 229 ff.).

As has often been remarked, to overestimate the relevance of private
law analogies is to overlook significant differences between the legal
framework of national societies and that of the international community,
as well as differences between the jurisdictional basis and powers of the
Court and those of national courts; “lock, stock and barrel” borrowings
would of course be wrong (International Status of South West Africa,
LCJ. Reports 1950, p. 148, Judge McNair). On the other hand, nothing in

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290 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

those differences requires mechanical disregard of the situation at munici-
pal law; to speak of a joint obligation is necessarily to speak of a munici-
pal law concept. The compulsory or involuntary character of municipal
jurisdiction, with its facilities for enforcing contribution among co-obli-
gors, does not, I think, wholly account for the fact that, at municipal law, a
suit may be competently brought against one co-obligor in respect of a
joint obligation. If for any reason it is impossible to enforce or obtain con-
tribution among the co-obligors, this does not absolve an available co-
obligor from liability to the obligee. The obligee is not entitled to collect
the full amount repetitively from each of the co-obligors; but he is entitled .
to collect the full amount by suing any or all of them. Possibly, at interna-
tional law, there could be a question as to whether a suit against one co-
obligor may be for the full amount; but I am unable to see how this could
affect his liability in principle to separate suit.

Further, any question whether there is a right of contribution would
constitute a separate dispute between co-obligors to be separately
resolved by any appropriate means of peaceful settlement. As indicated
above, international judicial settlement differs from municipal judicial
settlement in important ways; though it is in a real sense the ultimate
method of peaceful settlement of international disputes, it does not enjoy
the jurisdictional primacy enjoyed by municipal judicial settlement
among other settlement mechanisms. The fact that recourse to the Court
may not be open to a party seeking contribution is not decisive
(cf. J. H. Rayner Lid. v. Department of Trade[1990] 2 AC 418 HL, at p. 480,
letter F). The claim to contribution may be pursued in other ways. This
perspective is not, I believe, very different in principle from that adopted
by counsel for Australia when he argued, as I understood him, to the
effect that a decision of the Court upholding Australia’s preliminary
objection as to the absence of New Zealand and the United Kingdom
would result in Nauru not obtaining any legal ruling on the merits,
but would not deprive Nauru of the opportunity of pursuing its claim
in other ways (CR 91/21, p. 68). In international law a right may well

‘exist even in the absence of any juridical method of enforcing it (Eugène
Borel, “Les voies de recours contre les sentences arbitrales”, Recueil des
cours de l’Académie de droit international de La Haye, Vol. 52 (1935-ID,
pp. 39-40). Thus, whether there is a right to contribution does not neces-
sarily depend on whether there exists a juridical method of enforcing
contribution.

In considering whether the legal rule contended for by Australia exists,
I would remind myself of the following statement by Charles De Visscher:

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291 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

“The temptation to formalism, and the proneness to generalization
by abstract concepts and to premature systematization, represent one
of the most serious dangers to which international-law doctrine is
still exposed. It escapes only by constant return to respect for facts
and by exact observation of the concrete and very special conditions
which in the international domain contribute to forming the legal
rule and govern its applications. Of course the legal rule never
embraces social reality in all its fullness and complexity. Attempting
to do so, law would risk compromising its proper ends as well as over-
shooting its possibilities. If abstraction carried to an extreme degen-
erates into unreality, individualization pushed to excess leads to the
destruction of the rule. International justice especially must maintain
a proper relationship between social data and the rules designed to
govern them.” (Charles De Visscher, Theory and Reality in Public
International Law, trans. P. E. Corbett, 1968, p. 143.)

Possibly, these words could offer comfort to both of the competing points
of view on the question whether there is a legal rule precluding an action
against one only of a number of joint actors. The implications of holding
that there is such a rule can only be grasped and evaluated by reference to
concrete cases exemplifying its operation.

In this case, Australia (which is before the Court) accepts that it “exer-
cised actual administration of the territory of Nauru” (Preliminary
Objections of the Government of Australia, Vol. I, p. 136, para. 339); its
argument is that it was doing so on behalf of itself, New Zealand and the
United Kingdom as together constituting the Administering Authority. I
do not understand it to be saying that in law there is no conceivable basis
on which it could be individually subject to the obligations of the Trustee-
ship Agreement; it contends that the issue whether it was in breach of
those obligations can only be determined in a suit brought against itself,
New Zealand and the United Kingdom. So the substance of the matter is
this : it is not a question of Nauru proposing a technical device for attach-
ing responsibility to Australia for something which Australia did not itself
do or for breach of an obligation which Australia could not conceivably
have in law, but rather a question of Australia proposing a formula pre-
cluding the Court from adjudicating on the issue whether Australia’s own
acts were in breach of its trusteeship obligations, on the ground that these
obligations were jointly shared by Australia with two other States on
whose behalf Australia was acting but which are not parties to the pro-
ceedings.

It seems to me that to hold, in such circumstances, that there exists a rule
of law, as asserted by Australia, which has the effect of barring these pro-
ceedings in the absence of New Zealand and the United Kingdom on the
ground that the obligation was joint is to import a level of formalism and
abstraction that is incompatible with the “proper relationship between

55
292 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

social data and the rules designed to govern them” — arelationship which
Judge De Visscher tells us it is the duty of international justice especially
to maintain.

Part V. A JUDGMENT AGAINST AUSTRALIA WILL NOT AMOUNT TO A
JUDICIAL DETERMINATION OF THE RESPONSIBILITY OF
NEW ZEALAND AND THE UNITED KINGDOM

I come finally to Australia’s argument that a judgment against it will
amount to a determination of the responsibility of New Zealand and the
United Kingdom, and that, consequently, Nauru’s action is really against
all three Governments, two of which, however, are absent and have not
accepted the jurisdiction of the Court in the case.

Australia emphasized that the argument was not that New Zealand and
the United Kingdom were “indispensable parties”. In litigation before the
Court there are, indeed, two elements which advise caution in adopting an
“indispensable parties” rule. These elements, which are interrelated, are,
first, that the jurisdiction of the Court is consensual, and, second, that the
Court has no power to order joinder of third parties. There are circum-
stances in which it may be incompetent or improper for the Court to heara
case in the absence of a third party: the case of the Monetary Gold
Removed from Rome in 1943 shows that (1. C.J. Reports 1954, p. 32). But, as
was indicated by that case and emphasized in later cases expounding it,
the Court would only decline to exercise its jurisdiction where the legal
interests of a State not party to the proceedings “would not only be
affected by a decision, but would form the very subject-matter of the deci-
sion” (ibid.). That this was the position in that case is shown by the follow-
ing part of the Judgment:

“The first Submission in the Application centres around a claim by
Italy against Albania, a claim to indemnification for an alleged
wrong. Italy believes that she possesses a right against Albania for the
redress of an international wrong which, according to Italy, Albania
has committed against her. In order, therefore, to determine whether
Italy is entitled to receive the gold, it is necessary to determine
whether Albania has committed any international wrong against
Italy, and whether she is under an obligation to pay compensation to
her; and, if so, to determine also the amount of compensation. In
order to decide such questions, it is necessary to determine whether
the Albanian law of January 13th, 1945, was contrary to international
law. In the determination of these questions — questions which
relate to the lawful or unlawful character of certain actions of Alba-
nia vis-à-vis Italy — only two States, Italy and Albania, are directly
interested.” (Ibid.)

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293 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

Thus, in that case the Court was being asked to determine whether
Albania, a non-party, had by its actions engaged international responsi-
bility to Italy, the Applicant, and, if so, whether, in consequence, certain
monetary gold belonging to Albania should be treated as due to Italy by
way of compensation. Without determining these issues as between Italy
and Albania, the Court could not pass on to determine the issues pre-
sented in the Application as between the parties thereto: Italy’s claims
against the parties to the case depended on the outcome of a claim which it
was asserting against Alabania in its Application against those parties. It
was not a case in which the decision which the Court was asked to pro-
nounce as between the parties before it might be based on a course of
reasoning which could be extended to a non-party; the decision would
constitute a direct determination of the responsibility of the non-party,
with concrete and juridically dispositive effects for its admitted owner-
ship of the gold. A court (including this Court) may in some circumstances
give judgment against a party in absentia; but no court, not even a munici-
pal court exercising jurisdiction on a non-consensual basis, can give
judgment against someone who was not in some sense a party to the pro-
ceedings, or to the relevant phase thereof leading to the particular judg-
ment, with a corresponding entitlement to be heard. To do so would be to
offend against a cardinal principle of judicial organization which forbids
a court from adjudicating in violation of the audi alteram partem rule.
That precept of judicial behaviour, which is of general application to all
courts, would clearly have been affronted if the Court had adjudicated on
Albania’s responsibility. Additionally, the requirement for consent to
jurisdiction, which is specific to this particular Court, would also have
been negated.

It follows that the test to be applied in deciding whether the Court may
not properly act is not simply whether it would have been more con-
venient to decide an issue with the presence before the Court of all the
States that might be affected by the decision, but whether the absence of
such a State is, in the particular circumstances, such as to make it impos-
sible for the Court judicially to determine the issues presented before it
even when account is taken of the protective provisions of Article 59 of
the Statute.

The passage quoted above from the Monetary Gold case was cited by
counsel for Nicaragua in the Military and Paramilitary Activities case
(CR 84/14, p. 26, Mr. Reichler). It was cited in opposition to an argument
by counsel for the United States to the effect that not only would the
responsibilities of certain non-party States be necessarily determined by
any decision against the United States, but that the decision would have
practical effects on those States. The effects would be practical, it was
argued, in the sense that, if the Court, as it was requested by Nicaragua,
were to enjoin the United States from co-operating militarily with those
States, the consequence would be to prevent them from obtaining any law-

57
294 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

ful military assistance from the United States and in turn to impair their
legal right of self-defence (CR 84/19, pp. 42 ff., Mr. J. N. Moore; see also
CR 84/10, pp. 76-77, Mr. McGovern, and Counter-Memorial submitted
by the United States of America, Part IV, Chap. D). The argument did not
find favour with the Court (Military and Paramilitary Activities in and
against Nicaragua, I.C.J. Reports 1984, pp. 184-186, 429-431). And yet, the
argument would seem to have been stronger than Australia’s contention
in this case: unlike the position taken by the United States, Australia has
not been able to argue that a decision against it would have the practical
effect of depriving New Zealand and the United Kingdom of the ability to
make use of any right which they may possess under international law. It
is useful to note that the question, as the Court understood it, was not
whether Nicaragua had a claim against any other State in an absolute
sense (as Nauru might conceivably have against New Zealand and the
United Kingdom), but whether such a claim was presented in the particu-
lar proceedings before the Court. In this respect, the Court recalled that
Nicaragua

“emphasizes that in the present proceedings Nicaragua asserts claims
against the United States only, and not against any absent State, so
that the Court is not required to exercise jurisdiction over any such
State” (1.C.J. Reports 1984, p. 430, para. 86; emphasis added).

Was the conclusion reached in the Monetary Gold case overthrown by
the position taken by the Court on Italy’s application to intervene in the
case of the Continental Shelf (Libyan Arab Jamahiriya/Malta)? Refusing
the application, the Court said:

“The future judgment will not merely be limited in its effects by
Article 59 of the Statute: it will be expressed, upon its face, to be with-
out prejudice to the rights and titles of third States.” (.C.J. Reports
1984, pp. 26-27, para. 43.)

Although, strictly speaking, the second part of the statement seemed
unnecessary, the substance of the statement was in keeping with the pre-
viously settled jurisprudence of the Court. However, at the merits stage
the Court said:

“The present decision must, as then foreshadowed [in 19841,
be limited in geographical scope so as to leave the claims of Italy
unaffected, that is to say that the decision of the Court must be con-
fined to the area in which, as the Court has been informed by Italy,
that State has no claims to continental shelf rights.” (.C.J. Reports
1985, p. 26, para. 21.)

Arguably, the position so taken by the Court went beyond, and was not
really foreshadowed by, the position previously taken by it in 1984, for

58
295 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

now the Court was not merely saying that its decision would not in law
affect Italy’s interests, but was in fact refraining from adjudicating as
between the parties before it with respect to any areas in relation to which
Italy might have a claim. It seems to me that a point of some difficulty was
raised by the argument that, if Italy’s claims had been sufficiently exten-
sive, this, on the view which the Court eventually took, could well have
prevented the Court from giving any judgment at all as between the
parties before it (1.C.J. Reports 1985, p. 28, para. 23). Possibly, the cited
dictum of the Court in its 1985 decision is to be explained by certain “spe-
cial features” to which it referred (ibid.). Alternatively, it is to be explained
by the particular terms of the Special Agreement, under which the Court
was expected to decide

“in absolute terms, in the sense of permitting the delimitation of the
areas of shelf which ‘appertain’ to the Parties, as distinct from the
areas to which one of the Parties has shown a better title than the
other, but which might nevertheless prove to ‘appertain’ to a third
State if the Court had jurisdiction to enquire into the entitlement of
that third State, ...” (ibid., p. 25, para. 21).

In effect, the Special Agreement itself required the Court to refrain from
adjudicating over areas which were subject to Italy’s claims and which
might therefore not “appertain” in “absolute terms” to the parties to the
case. In my opinion, the case did not modify the general principle laid
down in the Monetary Gold case.

That principle was applied in the case concerning the Land, Island and
Maritime Frontier Dispute (1.C.J. Reports 1990, p. 92). For present pur-
poses, the reasoning of the Chamber, particularly on questions of opposa-
bility, is to be found in the passage from its decision set out in the
dissenting opinion of Judge Schwebel in the present case. The decision
was closely canvassed by both sides. On a consideration of the views
expressed, it seems to me that something could be said for the proposition
that, ex hypothesi, a condominium of the three States (the case advanced
by El Salvador), or a “community of interests”. among them (the case
advanced by Honduras), could not take effect in law as between two of
them only. To determine that the rights of two States are governed by a
condominium or by a “community of interests” of three is arguably to
determine, on a basis of necessary interdependence, that the rights of the
third State are also thereby governed. It is not easy to see how a declara-
tion upholding the existence of either of the two suggested régimes
could apply as between two of the three States save on the basis that it
had the same legal effect in relation to the third State. By contrast, in
the present case, any judgment against Australia can have full effect as
between the two litigating States without needing to produce any legal
effects in relation to the two absent States. The reasoning of the Cham-
ber, in holding that it was not precluded from hearing the case before it
in the absence of Nicaragua as a party, applies a fortiori to justify the
hearing of the present case in the absence of New Zealand and the United

59
296 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

Kingdom. I have difficulty in seeing how it may be possible to reconcile
the decision in that case with a different conclusion in this.

Australia accepts that, unlike the position in the Monetary Gold case, it
is not necessary for the Court in this case to make a determination of
responsibility against New Zealand and the United Kingdom as a pre-
requisite to making a determination of responsibility against Australia.
However, Australia takes the view that any determination against it would
necessarily imply simultaneous determinations against New Zealand and
the United Kingdom, and it considers that this would be equally barred by
the ratio decidendi of the Monetary Gold case in so far as this rests on the
incompetence of the Court to determine the responsibility of any State
without its consent. I agree that if the Court is in fact making a determina-
tion of the responsibility of a non-party, the particular stage in the deci-
sion-making process at which it is doing so cannot make the decision less
objectionable. But this would be so only if what was involved was a judi-
cial determination purporting to produce legal effects for the absent
party, as was visualized in the Monetary Gold case, and not merely an
implication in the sense of an extended consequence of the reasoning of
the Court. It seems to me that an approach based on simultaneity of deter-
minations is likely to involve an implication of that kind, and not an adju-
dication. The Court’s jurisprudence shows that such implications are not
a bar to the exercise of jurisdiction.

As I read the Monetary Gold case, the test is not merely one of sameness
of subject-matter, but also one of whether, in relation to the same subject-
matter, the Court is making a judicial determination of the responsibility
of a non-party State. Leaving aside the question of sameness of subject-
matter, would a decision in this case constitute a judicial determination of
the responsibility of New Zealand and the United Kingdom? Or, if it
would not technically constitute such a determination, would it be tanta-
mount to such a determination in the very real sense in which the Court
was asked to determine the responsibility of Albania?

In considering whether a possible judgment against Australia would
amount to a determination of the responsibility of New Zealand and the
United Kingdom, it is relevant, and, indeed, necessary, to consider the
legal elements on which such a judgment might be based. The suit before
the Court is constituted as between Nauru and Australia. Nauru is asking
the Court to say that Australia is in breach of a certain obligation which
Australia allegedly had to Nauru under international law. The obligation,
assuming that it existed, was also the obligation of New Zealand and the
United Kingdom. But Nauru does not need to rely on this fact, and the
Court, while it may notice the fact, does not need to found its decision on
it. That others had the same obligation does not lessen the fact that Aus-

60
297 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

tralia had the obligation. It is only with Australia’s obligation that the
Court is concerned. In contrast with the situation in the Monetary Gold
case, the decision of the Court as between Nauru and Australia will not be
based on the obligation of New Zealand and the United Kingdom. Also,
even if the obligation was joint, the decision of the Court need not be
founded on that fact: in that connection, as has been noticed in Part I, in
today’s Judgment the Court has not found it necessary to say whether or
not the obligation was joint (see paragraph 48 of the Judgment). If it was
joint, this would not mean that it was any the less the obligation of Aus-
tralia. All the Court is concerned with in these proceedings is whether the
obligation, if it existed, was Australia’s obligation.

Therefore, there need be nothing in the legal elements of a possible
judgment in favour of Nauru which would require the judgment to be con-
strued as per se constituting or amounting to a judicial determination of
the responsibility of New Zealand and the United Kingdom. On the basis
of argument that the obligation was intrinsically and inseverably joint, it
might be contended that the conclusion reached in the judgment could in
logic be extended to New Zealand and the United Kingdom; but this
would be a matter of extending the reasoning of the Court to a case to
which its judgment per se does not apply and on a ground not relied on by
the judgment itself. So far as the judgment is concerned, by itself it will not
affect the rights of New Zealand or the United Kingdom in the sense in
which a judgment deploys its effects, as would have been the case with
Albania. New Zealand and the United Kingdom will not be deprived of
any rights in the subject-matter of the case, or at all. Certainly, no property
or property rights belonging to them will be transferred or otherwise
affected as a result of such a decision. It is difficult to see what protection
will be needed beyond that provided by Article 59 of the Statute of the
Court.

In any proceedings by Nauru against them, New Zealand and the
United Kingdom will be free to deny liability on any ground, whether or
not it is a ground pleaded by Australia in these proceedings; in this
respect, differences have been noticed in Part II above between the posi-
tion of Australia, on the one hand, and that of New Zealand and the
United Kingdom, on the other, under the Trusteeship Agreement, and it
cannot be assumed a priorithat these differences could not be reflected in
the defence to any such proceedings. However strong may be the tendency
of the Court to follow a possible decision given in this case in favour of
Nauru in any proceedings brought by Nauru against New Zealand and
the United Kingdom, that tendency still falls short of being a judicial
determination made in this case of the responsibility of those two States in
the sense in which the Court was asked to make a determination of the
responsibility of Albania in the Monetary Gold case. A decision in this
case, if, as I think, it does not per se constitute a judicial determination of
the responsibility of New Zealand and the United Kingdom, can at best

61
298 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

have only precedential value in any proceedings concerning their respon-
sibility; and that value, however high one may be disposed to rate it, is
only influential, not controlling. The possibility of a court deciding differ-
ently on the same issues in differently constituted proceedings is not a
phenomenon less known to the law than the general propensity of courts
to be guided by their rulings in similar cases. To use the propensity to be
guided by previous rulings to exclude the possibility of deciding dif-
ferently in a later case would be even less right in international litigation
than it would be in municipal.

It has been correctly pointed out that “[a]s interstate relationships
become more complex, it is increasingly unlikely that any particular dis-
pute will be strictly bilateral in character” (L. F. Damrosch, “Multilateral
Disputes”, in L. F. Damrosch (ed.), The International Court of Justice at a
Crossroads, 1987, p. 376). Counsel writing for Nicaragua in the Military
and Paramilitary Activities case had earlier spelt out the implications of
that consideration in the following way:

“The rule established in Monetary Goid is soundly grounded in
the realities of contemporary international relations. Legal disputes
between States are rarely purely bilateral. As in the case of delimita-
tion of the continental shelf, the resolution of such disputes will often
directly affect the legal interests of other States. If the Court could
not adjudicate without the presence of all such States, even where the
parties before it had consented fully to its jurisdiction, the result
would be asevere and unwarranted constriction of the Court’s ability
to carry out its functions.” (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdic-
tion and Admissibility, Memorial of Nicaragua, para. 248.)

I agree with Australia that the

“fact that international disputes may be increasingly multilateral in
nature is no reason to ignore the fundamental international law
principles of sovereignty of States and the requirement of consent
to adjudication” (Preliminary Objections of the Government of
Australia, Vol. I, p. 144, para. 363).

But I do not think that these principles are in danger of being violated in
this case. That the wider implications of a dispute do not necessarily pre-
vent adjudication in litigation between some only of the interested parties
would seem to have been implicitly anticipated by the Permanent Court of
International Justice as early as 1932 (Free Zones of Upper Savoy and the
District of Gex, P.C.I.J., Series A/B, No. 46, p. 136). As observed above, this

62
299 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

Court has recognized that, unless barred by the Monetary Gold principle,
it should seek “to give the fullest decision it may in the circumstances of
each case” (Continental Shelf (Libyan Arab Jamahiriya/Malta), Applica-
tion for Permission to Intervene, I.C.J. Reports 1984, p. 25, para. 40).

The jurisprudence of the Court is under constant review; no case, how-
ever venerable, is exempt from scrutiny and re-evaluation. However, it
would not appear that there has been any movement away from the stand
taken by the Court when it stated in 1984 that the “circumstances of the
Monetary Gold case probably represent the limit of the power of the Court
to refuse to exercise its jurisdiction” (Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America), I.C.J.
Reports 1984, p. 431, para. 88; emphasis added). It may be that that limit
has been set at a point which enables the Court to adjudicate in situations
in which a municipal court would refrain from adjudicating unless there
was joinder; but, if so, there are good reasons for the difference. The
danger to the authority of the Court presented by any tendency to act on
the basis of a low jurisdictional threshold is not something to be lightly
dismissed ; but I do not feel oppressed by any apprehension in the circum-
stances of this case if, as I consider, it can be treated as being within the
limits permitted by the Monetary Gold case and as therefore not involving
the exercise of jurisdiction against non-parties.

The decision in the Monetary Gold case turned in part on the fact that
the rule enunciated in Article 59 of the Statute “rests on the assumption
that the Court is at least able to render a binding decision” (.C_J. Reports
1954, p.33). For the reasons already given, in that case the Court could not
give a decision on the seminal issue concerning Albania’s international
responsibility that would be “binding upon any State, either the third
State, or any of the parties before it” (ibid.). A decision in this case would
of course not be binding on New Zealand and the United Kingdom; but I
am unable to see why it would not be binding on Australia. Australia is
before the Court; even if the alleged responsibility was joint, this does not
by itself mean that Australia could not ultimately share in the responsibi-
lity (if any) on any basis whatsoever. It is for the Court to determine
whether there is any basis on which Australia shares the responsibility. If
the Court determines that there is a basis, it is difficult to see why its deci-
sion would not be binding on Australia.

I should also say something about Australia’s contention that the
absence of New Zealand and the United Kingdom from the proceedings
deprives the Court of “critical factual information” (Preliminary Objec-
tions of the Government of Australia, Vol. I, p. 140, para. 354). Australia’s
reliance on the Status of Eastern Carelia case (P.C.IJ., Series B, No. 5,
p. 27) overlooks the fact that the absence of an interested State does not
necessarily operate to deprive the Court of evidence if the evidence is
otherwise available (Western Sahara, I.C.J. Reports 1975, pp. 28-29). The

63
300 PHOSPHATE LANDS IN NAURU (SEP. OP. SHAHABUDDEEN)

latter was also an advisory opinion case, but this does not affect the gen-
eral proposition. A person who can give relevant evidence may be a neces-
sary witness, not a necessary party!. In systems which provide for it, join-
der is not justified for the sole purpose of securing or facilitating the pro-
duction of evidence: evidence must be produced in the normal ways. A
contention similar to Australia’s was advanced in the Military and Para-
military Activities in and against Nicaragua, Jurisdiction and Admissibility
case, but without success (1.C.J. Reports 1984, p. 430, para. 86; United
States Counter-Memorial, para. 443; and Mr. J. N. Moore, CR 84/19, at
pp. 42, 47, 48, 51). In any event, the arguments do not persuade me that
Australia, having in fact been in charge of the administration of Nauru at
all material times, is not, or cannot be, in possession of all the relevant
evidence.

CONCLUSION

Australia’s arguments are worthy of consideration, and there could be
more than one view of their value. For the reasons given, I have not, how-
ever, been able to feel persuaded. In my opinion, the obligations of the
three Governments under the Trusteeship Agreement were joint and
several, and Australia could accordingly be sued alone. In the alternative,
if the obligations were joint, this circumstance still did not prevent Nauru
from suing Australia alone. Nor do I think that a possible judgment
against Australia will amount to a determination of the responsibilities of
New Zealand and the United Kingdom. Whether Australia in fact had an
international obligation to ensure the rehabilitation of worked-out phos-
phate lands, whether, if so, it was in breach of that obligation, and what, if
so, is the extent of responsibility which it thereby engaged, are different
questions.

(Signed) Mohamed SHAHABUDDEEN.

1 Amonv. Raphael Tuck & Sons, Ltd. [1956] 1 All ER 273, at pp. 286-287.

64


                             INTERNATIONAL COURT OF JUSTICE

                              REPORTS OF JUDGMENTS,
                           ADVISORY OPINIONS AND ORDERS

                     APPLICATION OF THE INTERNATIONAL
                      CONVENTION FOR THE SUPPRESSION
                      OF THE FINANCING OF TERRORISM
                   AND OF THE INTERNATIONAL CONVENTION
                     ON THE ELIMINATION OF ALL FORMS
                         OF RACIAL DISCRIMINATION
                          (UKRAINE v. RUSSIAN FEDERATION)

                                ORDER OF 12 MAY 2017

                                    2017
                             COUR INTERNATIONALE DE JUSTICE

                                RECUEIL DES ARRÊTS,
                         AVIS CONSULTATIFS ET ORDONNANCES

                        APPLICATION DE LA CONVENTION
                     INTERNATIONALE POUR LA RÉPRESSION
                       DU FINANCEMENT DU TERRORISME
                    ET DE LA CONVENTION INTERNATIONALE
                   SUR L’ÉLIMINATION DE TOUTES LES FORMES
                          DE DISCRIMINATION RACIALE
                          (UKRAINE c. FÉDÉRATION DE RUSSIE)

                             ORDONNANCE DU 12 MAI 2017

4 CIJ1122.indb 1                                              15/03/18 11:52

                              Oﬃcial citation:
      Application of the International Convention for the Suppression
     of the Financing of Terrorism and of the International Convention
          on the Elimination of All Forms of Racial Discrimination
          (Ukraine v. Russian Federation), Order of 12 May 2017,
                        I.C.J. Reports 2017, p. 228

                         Mode oﬃciel de citation :
       Application de la convention internationale pour la répression
      du financement du terrorisme et de la convention internationale
       sur l’élimination de toutes les formes de discrimination raciale
      (Ukraine c. Fédération de Russie), ordonnance du 12 mai 2017,
                         C.I.J. Recueil 2017, p. 228

                                              Sales number
ISSN 0074-4441
ISBN 978-92-1-157320-6
                                              No de vente:   1122

                                                     12 MAY 2017

                                                          ORDER

                     APPLICATION OF THE INTERNATIONAL
                      CONVENTION FOR THE SUPPRESSION
                      OF THE FINANCING OF TERRORISM
                   AND OF THE INTERNATIONAL CONVENTION
                     ON THE ELIMINATION OF ALL FORMS
                         OF RACIAL DISCRIMINATION
                      (UKRAINE v. RUSSIAN FEDERATION)

                        APPLICATION DE LA CONVENTION
                     INTERNATIONALE POUR LA RÉPRESSION
                       DU FINANCEMENT DU TERRORISME
                    ET DE LA CONVENTION INTERNATIONALE
                   SUR L’ÉLIMINATION DE TOUTES LES FORMES
                          DE DISCRIMINATION RACIALE
                      (UKRAINE c. FÉDÉRATION DE RUSSIE)

                                                     12 MAI 2017

                                                   ORDONNANCE

4 CIJ1122.indb 3                                                   15/03/18 11:52

               228

                              INTERNATIONAL COURT OF JUSTICE

   2017
                                               YEAR 2017
 12 May
General List                                   12 May 2017
 No. 166

                 APPLICATION OF THE INTERNATIONAL
                  CONVENTION FOR THE SUPPRESSION
                   OF THE FINANCING OF TERRORISM
               AND OF THE INTERNATIONAL CONVENTION
                  ON THE ELIMINATION OF ALL FORMS
                      OF RACIAL DISCRIMINATION
                               (UKRAINE v. RUSSIAN FEDERATION)

                                                 ORDER

                   The President of the International Court of Justice,
                  Having regard to Article 48 of the Statute of the Court and to
               Articles 44 and 45, paragraph 1, of the Rules of Court,
                  Having regard to the Application ﬁled in the Registry of the Court on
               16 January 2017, whereby Ukraine instituted proceedings against the
               Russian Federation for alleged violations of the International Conven-
               tion for the Suppression of the Financing of Terrorism of 9 December 1999
               and the International Convention on the Elimination of All Forms of
               Racial Discrimination of 21 December 1965,
                  Having regard to the request for the indication of provisional measures
               submitted by Ukraine on 16 January 2017 and to the Order by which the
               Court indicated provisional measures on 19 April 2017;
                  Whereas, at a meeting held by the President of the Court with the
               Agents of the Parties on 12 May 2017, pursuant to Article 31 of the Rules
               of Court, the Agent of Ukraine requested a period of 12 months for the
               preparation of her Government’s Memorial; and whereas the Agent of
               the Russian Federation indicated that a period of 14 months from the

               4

229         application of the icsft and cerd (ord. 12 V 17)

ﬁling of the Memorial would be necessary for the preparation of his
Government’s Counter-Memorial;
    Taking into account the views of the Parties,
    Fixes the following time-limits for the ﬁling of the written pleadings:

    12 June 2018 for the Memorial of Ukraine;
    12 July 2019 for the Counter-Memorial of the Russian Federation; and
    Reserves the subsequent procedure for further decision.

  Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twelfth day of May, two thousand and
seventeen, in three copies, one of which will be placed in the archives of
the Court and the others transmitted to the Government of Ukraine and
the Government of the Russian Federation, respectively.

                                             (Signed) Ronny Abraham,
                                                         President.
                                            (Signed) Philippe Couvreur,
                                                          Registrar.

5

PRINTED IN FRANCE

                    ISSN 0074-4441
                    ISBN 978-92-1-157320-6