COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A DES QUESTIONS
D'INTERPRÉTATION ET D’APPLICATION
DE LA CONVENTION DE MONTRÉAL DE 1971
RESULTANT DE L’INCIDENT AERIEN
DE LOCKERBIE

(JAMAHIRIYA ARABE LIBYENNE c. ETATS-UNIS
D’AMERIQUE)

ORDONNANCE DU 29 JUIN 1999

1999

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING QUESTIONS OF
INTERPRETATION AND APPLICATION OF
THE 1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT
AT LOCKERBIE

(LIBYAN ARAB JAMAHIRIYA v. UNITED STATES
OF AMERICA)

ORDER OF 29 JUNE 1999
Mode officiel de citation:

Questions d'interprétation et d’application de la convention de Montréal
de 1971 résultant de l'incident aérien de Lockerbie (Jamahiriya arabe
libyenne c. Etats-Unis d'Amérique), ordonnance du 29 juin 1999,
C.I.JT. Recueil 1999, p. 979

Official citation:

Questions of Interpretation and Application of the 1971 Montreal Conven-

tion arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya

v. United States of America), Order of 29 June 1999, I.C.J. Reports
1999, p. 979

N° de vente:
ISSN 0074-4441 Sales number 739
ISBN 92-1-070808-3

29 JUIN 1999
ORDONNANCE

QUESTIONS D’INTERPRETATION ET D’APPLICATION
. DE LA CONVENTION DE MONTREAL DE 1971
RESULTANT DE L’INCIDENT AERIEN DE LOCKERBIE

(JAMAHIRIYA ARABE LIBYENNE c. ÉTATS-UNIS
D’AMERIQUE)

QUESTIONS OF INTERPRETATION AND APPLICATION OF
THE 1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT AT LOCKERBIE

(LIBYAN ARAB JAMAHIRIYA v. UNITED STATES
OF AMERICA)

29 JUNE 1999
ORDER
979

INTERNATIONAL COURT OF JUSTICE

YEAR 1999 1999
29 June
General List
29 June 1999 No. 89

CASE CONCERNING QUESTIONS OF
INTERPRETATION AND APPLICATION OF
THE 1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT
AT LOCKERBIE

(LIBYAN ARAB JAMAHIRIYA v. UNITED STATES
OF AMERICA)

ORDER

Present: Vice-President WEERAMANTRY, Acting President; President
SCHWEBEL; Judges ODA, BEDJAOUI, GUILLAUME, HERCZEGH, SHI,
FLEISCHHAUER, KOROMA, VERESHCHETIN, PARRA-ARANGUREN,
Kooumans, REZEK; Judge ad hoc EL-KosHER1; Deputy-
Registrar ARNALDEZ.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Article 48 of the Statute of the Court and to
Articles 31, 44, 45, 48 and 49 of the Rules of Court,

Having regard to the Application by the Great Socialist People’s Libyan
Arab Jamahiriya, filed in the Registry of the Court on 3 March 1992, insti-
tuting proceedings against the United States of America in respect of a
“dispute between Libya and the United States concerning the interpreta-

4
1971 MONTREAL CONVENTION (ORDER 29 VI 99) 980

tion or application of the Montreal Convention” of 23 September 1971 for
the Suppression of Unlawful Acts against the Safety of Civil Aviation,

Having regard to the Order of 19 June 1992, by which the Court fixed
20 December 1993 and 20 June 1995 as the time-limits for the filing,
respectively, of the Memorial of Libya and the Counter-Mcmorial of the
United States,

Having regard to the Memorial filed by Libya and the preliminary
objections submitted by the United States, within the time-limits thus
fixed,

Having regard to the Judgment of 27 February 1998, by which the
Court adjudicated on the preliminary objections,

Having regard to the Order of 30 March 1998, by which the Court
fixed at 30 December 1998 the time-limit for the filing of the Counter-
Memorial of the United States, and to the Order of 17 December 1998,
by which the Senior Judge extended that time-limit to 31 March 1999,

Having regard to the Counter-Memorial filed by the United States
within the time-limit thus extended;

Whereas, in order to ascertain the views of the Parties on the subse-
quent procedure, the Vice-President of the Court, Acting President, met
their representatives on 28 June 1999; and whereas at that meeting the
Agent of Libya stated that his Government wished to be authorized to
submit a Reply, for the preparation of which it sought a time-limit of
twelve months; whereas the representative of the United States stated
that his Government did not oppose Libya’s request but that, in view of
the new circumstances consequent upon the transfer of the two accused
to the Netherlands for trial by a Scottish court, it desired that no date be
fixed at this stage for the filing of a Rejoinder by the United States; and
whereas the Agent of Libya stated that his Government had no objection
to this;

Taking account of the agreement of the Parties and the special circum-
stances of the case,

Authorizes the submission of a Reply by Libya and a Rejoinder by the
United States of America;

Fixes 29 June 2000 as the time-limit for the filing of the Reply of
Libya; and

Reserves the subsequent procedure for further decision.
Done in French and in English, the French text being authoritative, at

the Peace Palace, The Hague, this twenty-ninth day of June, one thou-
sand nine hundred and ninety-nine, in three copies, one of which will be

5
1971 MONTREAL CONVENTION (ORDER 29 VI 99) 981

placed in the archives of the Court and the others transmitted to the
Government of the Great Socialist People’s Libyan Arab Jamahiriya and
the Government of the United States of America, respectively.

(Signed) Christopher G. WEERAMANTRY,
Vice-President.

(Signed) Jean-Jacques ARNALDEZ,
Deputy-Registrar.
PRINTED IN THE NETHERLANDS

ISSN 0074-4441
ISBN 92-1-070808-3


                     330

                             DECLARATION OF JUDGE CANÇADO TRINDADE

                        1. I have voted in favour of the adoption of the present Order (of
                     15 November 2017) in the case concerning Alleged Violations of Sovereign
                     Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colom-
                     bia), whereby the International Court of Justice (ICJ) has taken the proper
                     course in respect of the four counter-claims, namely, finding the first and
                     second inadmissible, and the third and fourth admissible. Having sup-
                     ported the present Order, there is one particular point to which I attribute
                     special relevance and which I feel obliged to dwell upon a bit further, so as
                     to leave on the records the foundations of my personal position thereon.
                        2. I thus deem fit to append to the ICJ’s Order the present declaration,
                     wherein I shall focus on such particular point, — dealt with in the Order
                     in relation to the third counter-claim, — namely, that of the traditional
                     fishing rights of the inhabitants of the San Andrés Archipelago. I do so in
                     the zealous exercise of the international judicial function, seeking ulti-
                     mately the goal of the realization of justice, ineluctably linked, as I per-
                     ceive it, to the settlement of disputes.

                        3. As to other related points, such as the rationale and admissibility of
                     counter-claims, the cumulative requirements of Article 80 (1) of the Rules
                     of Court (jurisdiction and direct connection to the main claim), and the
                     legal nature and effects of counter-    claims, I have already dwelt upon
                     in detail in my extensive dissenting opinion (paras. 1-179, esp. paras. 4-30)
                     in the case of Jurisdictional Immunities of the State (Germany v. Italy),
                     Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010 (I), pp. 329-
                     397). It is not my intention to reiterate herein the considerations I then
                     presented; I find it sufficient only to refer to them, recalling one particular
                     point I made on that occasion, seven years ago.

                        4. In my aforementioned dissenting opinion, I pointed out, inter alia,
                     that, even though counter-claims are interposed in the course of the pro-
                     cess, being thus directly connected to the main claim and integrating the
                     factual complex of the cas d’espèce (and so giving an impression of being
                     “incidental”), this does not deprive them of their autonomous legal nature
                     (ibid., p. 336, para. 17). Counter-claims are to be treated on the same
                     footing as the original claims, in faithful observance of the principe du
                     contradictoire, thus ensuring the procedural equality of the parties (ibid.,
                     p. 342, para. 30). The original applicant assumes the role of counter-claim
                     respondent (reus in excipiendo fit actor).

                     45

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                         sovereign rights and maritime spaces (decl. cançado trindade)

                        5. In enlarging the factual complex of the case, counter-claims (together
                     with claims) enable the ICJ to have a better knowledge of the dispute at
                     issue that it has been called to adjudicate upon (I.C.J. Reports 2010 (I),
                     pp. 340‑342, paras. 28-29). Yet, in the same dissenting opinion in the case
                     of Jurisdictional Immunities of the State, in my examination of the juris-
                     prudential and doctrinal developments on the matter, I observed that
                     “the Court’s practice in relation to counter-claims is still in the making”
                     (ibid., pp. 340‑341, para. 28, and cf. pp. 333‑341, paras. 9-28). In the
                     search for the realization of justice, there is still much to advance in this
                     domain.
                        6. For example, both claims and counter-claims require, in my percep-
                     tion, prior public hearings so as to obtain further clarifications from the
                     contending parties (ibid., pp. 342 and 389, paras. 30 and 154). In any case,
                     the Court is not bound by the submissions of the parties; it is perfectly
                     entitled to go beyond them, so as to say what the law is (juris dictio)
                     (ibid., p. 392, para. 162). In enlarging the factual context to be examined
                     in the adjudication of a dispute, main claims and counter-claims provide
                     elements for a more consistent decision of the international tribunal
                     seized of them.

                        7. Almost eight decades ago, international legal doctrine was already
                     apprehending the autonomous legal nature of counter-claims 1. Counter-
                     claims are not simply a defence on the merits; in requiring the same degree
                     of attention as the main claims, the counter-claims assist in achieving the
                     sound administration of justice (la bonne administration de la justice).
                     Nowadays, we are required to keep on cultivating the examination of the
                     institute of counter-claims.
                        8. In the conclusions of my aforementioned dissenting opinion in the
                     case of Jurisdictional Immunities of the State (Germany v. Italy) (2010), I
                     observed that “[c]ounter-claims, as a juridical institute transposed from
                     domestic procedural law into international procedural law, already have
                     their history, but the ICJ’s jurisprudential construction on the matter is
                     still in the making” (I.C.J. Reports 2010 (I), p. 390, para. 155). And I
                     summed up:

                             “The same treatment is to be rigorously dispensed to the original
                          claim and the counter-claim as a requirement of the sound adminis-
                          tration of justice (la bonne administration de la justice). They are,
                          both, autonomous, and should be treated on the same footing, with
                          a strict observance of the principe du contradictoire. Only in this way
                          the procedural equality of the parties (Applicant and Respondent, ren-
                        1 Cf., e.g., D. Anzilotti, “La demande reconventionnelle en procédure internationale”,

                     57 Journal du droit international, Clunet (1930), p. 876 ; R. Genet, “Les demandes recon-
                     ventionnelles et la procédure de la Cour permanente de justice internationale”, 19 Revue de
                     droit international et de législation comparée (1938), p. 148.

                     46

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                     332
                         sovereign rights and maritime spaces (decl. cançado trindade)

                          dered Respondent and Applicant by the counter-claim) is secured.”
                          (I.C.J. Reports 2010 (I), p. 389, para. 154.) 2
                        9. Turning now to the particular point I purport to address in the pres-
                     ent declaration, may I begin by observing that this is not the first time
                     that, in a case of the kind, the ICJ takes into account, in an inter-State
                     dispute, the basic needs and in particular the fishing rights of the affected
                     segments of local populations, on both sides. May I recall three Court
                     decisions over the last eight years, concerning, like the present one, Latin
                     American countries: it is significant that attention has constantly been
                     given to that issue in those cases, like in the present one concerning
                     Alleged Violations of Sovereign Rights and Maritime Spaces in the Carib-
                     bean Sea.
                        10. Thus, it is not to pass unnoticed that, in its Judgment of 13 July
                     2009, in the case of the Dispute regarding Navigational and Related Rights
                     (Costa Rica v. Nicaragua), the ICJ upheld the customary right of subsis-
                     tence fishing (Judgment, I.C.J. Reports 2009, p. 266, paras. 143-144, and
                     cf. p. 265, paras. 140-141) of the inhabitants of both banks of the San
                     Juan River 3. After all, those who fish for subsistence are not the States,
                     but the human beings struck by poverty. The Court thus turned its atten-
                     tion, beyond the strict inter-State dimension, to the affected segments of
                     the local populations.
                        11. In its subsequent Judgment of 20 April 2010, in the case concern-
                     ing Pulp Mills on the River Uruguay (Argentina v. Uruguay), the Court
                     likewise took into account aspects pertaining to the affected local popula-
                     tions, and consultation with them. This is what I deemed fit to single out
                     in my lengthy separate opinion (Judgment, I.C.J. Reports 2010 (I), p. 193,
                     para. 156), in which I pondered that, even in the inter-State mechanism of
                     judicial settlement of disputes by the ICJ, it was considered necessary to
                     go in its reasoning beyond the strict inter-State dimension, taking due
                     account of the basic needs of the affected segments of the local popula-
                     tion (ibid., paras. 156-157), on both sides.

                       12. And I added, in the aforementioned separate opinion, that in both
                     cases concerning Latin American countries, in Central America and in
                     the southern cone of South America, respectively, attentive to the living
                     conditions and public health of neighbouring communities,

                          “the ICJ looked beyond the strictly inter-State dimension, into the
                          segments of the populations concerned. The contending States, in

                        2 Dissenting opinion reproduced in: Judge A. A. Cançado Trindade — The Construc-

                     tion of a Humanized International Law — A Collection of Individual Opinions (1991-2013),
                     Vol. II (International Court of Justice), Leiden, Brill/Nijhoff, 2014, pp. 1298‑1369.
                        3 The Court further recalled that the respondent State had commendably reiterated

                     that it had “absolutely no intention of preventing Costa Rican residents from engaging in
                     subsistence fishing activities” (I.C.J. Reports 2009, p. 265, para. 140).

                     47

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                         sovereign rights and maritime spaces (decl. cançado trindade)

                          both cases, advanced their arguments in pursuance of their vindica-
                          tions, without losing sight of the human dimension underlying their
                          claims. Once again, Latin American States pleading before the ICJ
                          have been faithful to the already mentioned deep-rooted tradition of
                          Latin American international legal thinking, which has never lost
                          sight of the relevance of doctrinal constructions and the general prin-
                          ciples of law.” (I.C.J. Reports 2010 (I), pp. 193‑194, para. 158.)

                         13. More recently, in its Judgment of 27 January 2014 in the case con-
                     cerning the Maritime Dispute (Peru v. Chile), on the Pacific coast in
                     South America, the ICJ, in assessing “the extent of the lateral maritime
                     boundary” which the Contending Parties acknowledged existed in 1954,
                     it made clear, inter alia, that it was itself “aware of the importance that
                     fishing has had for the coastal populations of both Parties” (Judgment,
                     I.C.J. Reports 2014, p. 44, para. 109). This third Judgment once again
                     revealed that, despite the fact that the dispute was an inter-State one and
                     the mechanism of peaceful judicial settlement is also an inter-State one,
                     there is no reason to make abstraction of the needs of the affected persons
                     in the reasoning of the Court, thus transcending the strict inter-State
                     outlook.
                         14. Now, in the present case concerning Alleged Violations of Sovereign
                      Rights and Maritime Spaces in the Caribbean Sea, opposing a Central
                      American to a South American country, the point at issue again comes to
                      the fore, and the ICJ, once again, takes due care to keep it in mind. Both
                      Contending Parties, Nicaragua and Colombia, expressed concerns about
                      the rights of their respective fishermen 4; furthermore, both Colombia and
                      Nicaragua seemed aware of the needs of each other’s fishermen 5.
                         15. In the course of the written arguments of the Contending Parties 6
                      in the cas d’espèce, special attention was given to the fishermen from the
                      local population of the Archipelago of San Andrés, Providencia and
                      Santa Catalina (“los pueblos raizales”, the Raizal people), in particular
                      their traditional and historic fishing rights from time immemorial, and the
                      fact that they are vulnerable communities, highly dependent on tradi-
                      tional fishing for their own subsistence.

                        4 Memorial of Nicaragua, of 3 October 2014, paras. 2.22 and 2.54; Counter-Memorial

                     of Colombia, of 17 November 2016, paras. 1.2, 1.24, 3.3, 3.86, 3.94 and 7.5.
                        5 Memorial of Nicaragua, paras. 2.54-2.56 and 4.20 ; Counter-Memorial of Colombia,

                     paras. 1.12, 3.109 and 9.5; Written Observations of Nicaragua on the Admissibility
                     of Colombia’s Counter-    Claims, of 20 April 2017, paras. 2.49 and 3.42-3.45; Written
                     Observations of Colombia on the Admissibility of Its Counter-Claims, of 28 June 2017,
                     paras. 2.72-2.73.
                        6 Memorial of Nicaragua, paras. 2.54-2.55 and 4.20 ; Counter-Memorial of Colombia,

                     paras. 1.7, 2.10, 2.53, 2.69, 2.81, 2.87, 3.3, 3.77, 3.94, 3.102 and 3.109 ; Written Observa-
                     tions of Nicaragua on the Admissibility of Colombia’s Counter-Claims, paras. 2.49-2.50 ;
                     Written Observations of Colombia on the Admissibility of Its Counter-Claims, paras. 3.52
                     and 4.3.

                     48

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                         sovereign rights and maritime spaces (decl. cançado trindade)

                          16. For its part, the ICJ, in the present Order, has addressed the
                     issue in its own considerations as to the cumulative requirements of
                     admissibility of counter-claims, set forth in Article 80 (1) of the Rules
                     of Court, i.e., as to their direct connection (to the principal claim), and as
                     to jurisdiction. The Court’s considerations pertain to the third counter-
                     claim concerning the fishing rights of the local inhabitants of the
                     Archipelago of San Andrés. In this respect, the ICJ notes that the facts
                      relied upon by both Parties relate to the same time period, the same
                      geographical area, and are of the same nature “in so far as they allege
                       similar types of conduct of the naval forces of one Party v is-à-vis nation-
                       als of the other Party”, engaged on “fishing in the same waters” (Order,
                       para. 44).
                          17. The Court ponders that the Contending Parties,
                          “are pursuing the same legal aim by their respective claims since they
                          are both seeking to establish the responsibility of the other by invok-
                          ing violations of a right to access and exploit marine resources in the
                          same maritime area” (ibid., para. 45).
                     The ICJ, accordingly, concludes that there is a direct connection, in fact
                     and in law, between Colombia’s third counter-claim and Nicaragua’s
                     principal claims (ibid., para. 46), and finds that the third counter-claim is
                     admissible (ibid., para. 78).
                       18. In sequence, in its considerations on jurisdiction, the ICJ again
                     dwells upon the traditional fishing rights of the inhabitants (artisanal fish-
                     ermen) of the San Andrés Archipelago (ibid., paras. 72 and 75). The
                     Court observes that, since its Judgment of 19 November 2012 in the case
                     concerning Territorial and Maritime Dispute (Nicaragua v. Colombia),
                     senior officials of the Contending Parties have
                          “exchanged public statements expressing their divergent views on the
                          relationship between the alleged rights of the inhabitants of the San
                          Andrés Archipelago to continue traditional fisheries, invoked by
                          Colombia, and Nicaragua’s assertion of its right to authorize fishing
                          in its EEZ [exclusive economic zone]” (ibid., para. 72).

                     The ICJ then, at last, finds that this third counter-claim “is admissible as
                     such and forms part of the current proceedings” (resolutory point A (3)
                     of the dispositif).
                       19. As can be seen, the present case concerning Alleged Violations of
                     Sovereign Rights and Maritime Spaces in the Caribbean Sea, opposing two
                     Latin American countries, brings to the floor rights of States together
                     with rights of individuals, artisanal fishermen seeking to fish, for their
                     own subsistence, in traditional fishing grounds. This once again shows
                     that in the inter-State contentieux before the ICJ, one cannot make
                     abstraction of the rights of individuals (surrounded by vulnerability).

                     49

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                         sovereign rights and maritime spaces (decl. cançado trindade)

                        20. The human factor has, in effect, marked presence in all four afore-
                     mentioned cases concerning Latin American countries. In my perception,
                     this is reassuring, bearing in mind that, after all, in historical perspective,
                     it should not be forgotten that the State exists for human beings, and not
                     vice versa. Whenever the substance of a case pertains not only to States
                     but to human beings as well, the human factor marks its presence, irre-
                     spective of the inter-State nature of the contentieux before the ICJ 7, and
                     is to be taken duly into account by it, as it has done in the aforemen-
                     tioned Latin American cases. It is, furthermore, to be duly reflected in the
                     Court’s decision.
                        21. Moreover, Latin American international legal doctrine has always
                     been attentive also to the fulfilment of the needs and aspirations of peo-
                     ples (keeping in mind those of the international community as a whole),
                     in pursuance of superior common values and goals 8. Furthermore, it has
                     likewise always remained attentive to the importance of general principles
                     of international law, reckoning that conscience (recta ratio) stands well
                     above the “will”, faithfully in line with the longstanding jusnaturalist
                     international legal thinking.
                        22. Latin American international legal doctrine has remained aware
                     that, in doing so, it rightly relies on the perennial lessons and legacy of
                     the “founding fathers” of international law, going back to the flourishing
                     of the jus gentium (droit des gens) in the sixteenth and seventeenth centu-
                     ries. The jus gentium they conceived was for everyone, – peoples, indi-
                     viduals and groups of individuals, and the emerging States 9. Solidarity

                        7 Cf. A. A. Cançado Trindade, “La Presencia de la Persona Humana en el Conten-

                     cioso Interestatal ante la Corte Internacional de Justicia”, Liber Amicorum: In Honour of a
                     Modern Renaissance Man — G. Eiríksson (eds. J. C. Sainz-Borgo et al.), New Delhi — India/
                     San José C.R., Ed. O. P. Jindal University/Ed. University for Peace, 2017, pp. 383‑411.
                        8 A. A. Cançado Trindade, “The Contribution of Latin American Legal Doctrine to

                     the Progressive Development of International Law”, 376 Recueil des cours de l’Académie
                     de droit international de La Haye (2014), pp. 19‑92, esp. pp. 90‑92; and cf. A. A. Cançado
                     Trindade, “Los Aportes Latinoamericanos al Derecho y a la Justicia Internacionales”,
                     Doctrina Latinoamericana del Derecho Internacional, Vol. I (eds. A. A. Cançado Trindade
                     and A. Martínez Moreno), San José/C.R., IACtHR, 2003, pp. 37‑38, 40, 45, 54 and 56-57;
                     A. A. Cançado Trindade, “Los Aportes Latinoamericanos al Primado del Derecho sobre la
                     Fuerza”, Doctrina Latinoamericana del Derecho Internacional, Vol. II (eds. A. A. Cançado
                     Trindade and F. Vidal Ramírez), San José/C.R., IACtHR, 2003, pp. 42‑44.
                         9 Association Internationale Vitoria-  Suarez, Vitoria et Suarez — Contribution des
                     théologiens au droit international moderne, Paris, Pedone, 1939, pp. 169‑170 ; A. Truyol
                     y Serra, “La conception de la paix chez Vitoria et les classiques espagnols du droit des
                     gens”, A. Truyol y Serra and P. Foriers, La conception et l’organisation de la paix chez
                     Vitoria et Grotius, Paris, Libr. Philos. J. Vrin, 1987, pp. 243, 257, 260 and 263; A. Gómez
                     Robledo, “Fundadores del Derecho Internacional — Vitoria, Gentili, Suárez, Grocio”,
                     Obras — Derecho, Vol. 9, Mexico, Colegio Nacional, 2001, pp. 434‑442, 451-452, 473, 481,
                     493-499, 511-515 and 557-563; A. A. Cançado Trindade, “Totus Orbis: A Visão Univer-
                     salista e Pluralista do Jus Gentium: Sentido e Atualidade da Obra de Francisco de Vitoria”,
                     24 Revista da Academia Brasileira de Letras Jurídicas — Rio de Janeiro (2008), No. 32,
                     pp. 197‑212.

                     50

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                         sovereign rights and maritime spaces (decl. cançado trindade)

                     marked its presence in the jus gentium of their times, as it does, in my
                     view, also in the new jus gentium of the twenty-first century 10.

                        23. This is not the first time that I make this point within the ICJ.
                     After all, the exercise of State sovereignty cannot make abstraction of the
                     needs of the populations concerned, from one country or the other. In the
                     present case, the Court is faced, inter alia, with artisanal fishing for sub-
                     sistence. States have human ends, they were conceived and gradually took
                     shape in order to take care of human beings under their respective juris-
                     dictions. Human solidarity goes pari passu with the needed juridical secu-
                     rity of boundaries, land and maritime spaces. Sociability emanated from
                     the recta ratio (in the foundation of jus gentium), which marked presence
                     already in the thinking of the “founding fathers” of the law of nations
                     (droit des gens), and ever since and to date, keeps on echoing in human
                     conscience.

                     (Signed) Antônio Augusto Cançado Trindade.

                       10 A. A. Cançado Trindade, International Law for Humankind — Towards a New Jus

                     Gentium, 2nd rev. ed., Leiden/The Hague, Nijhoff/the Hague Academy of International
                     Law, 2013, pp. 1‑726.

                     51

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377

DÉCLARATION DE M. SHI

[Traduction]

Je me range aux côtés de la majorité de la Cour quand celle-ci estime
ne pas pouvoir trouver en l’espéce de base de compétence prima facie
pour indiquer les mesures conservatoires sollicitées par le demandeur.

Je suis pourtant d'avis que, face à la situation d’urgence créée par le
drame humain qu’expriment les pertes en vies humaines et les souffrances
causées par l’emploi de la force en Yougoslavie et contre celle-ci, la Cour
aurait dû favoriser le maintien de la paix et de la sécurité internationales
dans la mesure où ses fonctions judiciaires l’y autorisent.

L'action de la Cour aurait été pleinement justifiée en droit si, dès
qu'elle a été saisie de la part du demandeur de sa requête en indication de
mesures conservatoires, et indépendamment de son éventuelle conclusion
quant à sa compétence prima facie dans l'attente de sa décision définitive,
elle avait lancé un appel de caractère général aux Parties pour leur
demander d’agir conformément aux obligations leur incombant en vertu
de la Charte des Nations Unies et de toutes les autres règles du droit
international intéressant la situation, y compris le droit international
humanitaire, et leur demander à tout le moins de s’abstenir d’aggraver ou
étendre leur différend. A mon sens, il n’y a rien dans le Statut ni dans le
Règlement de la Cour qui interdise à celle-ci d’agir de cette façon. Aux
termes de la Charte, la Cour est après tout le principal organe judiciaire
de l'Organisation des Nations Unies, son Statut faisant partie intégrante
de la Charte; et, sous l'effet des buts et des principes de ladite Charte, y
compris son chapitre VI (relatif au règlement pacifique des différends), il
a été attribué un rôle à la Cour dans le cadre général de l'Organisation
des Nations Unies aux fins du maintien de la paix et de la sécurité inter-
nationales. Il ne fait aucun doute que l’appel de caractère général dont je
parle relève implicitement des pouvoirs impartis à la Cour dans l'exercice
de ses fonctions judiciaires. Ayant aujourd’hui statué définitivement sur
la requête du demandeur, la Cour n’a pas saisi l’occasion qui lui était
donnée d'apporter le concours qu’elle aurait dû au maintien de la paix et
de la sécurité internationales au moment où ce concours est on ne peut
plus indispensable.

En outre, dans la lettre qu'il a adressée au président et aux membres de
la Cour, l'agent de la Yougoslavie a dit ceci:

«Considérant le pouvoir conféré à la Cour aux termes du para-
graphe 1 de l’article 75 de son Règlement, et compte tenu de l'extrême
urgence de la situation née des circonstances décrites dans les de-
mandes en indication de mesures conservatoires, je prie la Cour de bien
vouloir se prononcer d'office sur les demandes présentées ou de fixer
une date pour la tenue d’une audience dans les meilleurs délais. »

18
LICÉITÉ DE L'EMPLOI DE LA FORCE (DÉCL. SHI) 378

Dans une affaire très récente, l'affaire LaGrand, la Cour, sur la requête
de l'Etat demandeur et en dépit des objections de PEtat défendeur, a
décidé d'exercer le pouvoir qui lui est ainsi conféré par le paragraphe | de
l'article 75 de son Règlement sans entendre l'Etat défendeur, ni par écrit
ni oralement (ordonnance du 3 mars 1999, C.J. Recueil 1999, p. 13,
par. 12, et p. 14, par. 21). Par opposition, en l'espèce, la Cour n'a eu
aucun geste positif à la suite de la requête similaire formulée par l’agent
de la Yougoslavie dans une situation dont le caractère d’urgence était
même beaucoup plus prononcé que dans l'exemple que je cite.

Ce sont ces motifs qui m'ont obligé a voter contre le paragraphe | du
dispositif de la présente ordonnance.

(Signé) Sui Jiuyong.

19


303

DISSENTING OPINION OF VICE-PRESIDENT ODA

1. The main purpose of this opinion is to set forth my reasons for cast-
ing a negative vote on operative parts | (b), (c), (d) and (e) of the Judgment.
The Application of Nauru was, to my mind, clearly inadmissible on those
counts alone. My subsidiary purpose, which can be disposed of at once, is
to state that my negative vote on operative part 1 (f) is motivated by my
belief that it is premature to close the door on the objection concerned,
which I find too closely connected with the merits for present decision;
this particular vote on my part does not therefore signify that I necessarily
accept this objection without further examination.

2. My vote against operative part 2 resulted as the logical conclusion of
my belief that so many preliminary objections ought to have been upheld.

I. Re OPERATIVE PARTS 1 (b) AND (c):
CONCERNING THE EXISTENCE OF THE CLAIM IN THE PRESENT CASE

3. With regard to

“the preliminary objection based on the alleged waiver by Nauru,
prior to accession to independence, of all claims concerning the
rehabilitation of the phosphate lands worked out prior to 1 July
1967” (operative part 1 (b)),

the Court has held that

“ijt will suffice to note that in fact those authorities did not at any
time effect a clear and unequivocal waiver of their claims, whether
one takes into consideration the negotiations which led to the Agree-
ment of 14 November 1967, the Agreement itself, or the discussions at
the United Nations” (Judgment, para. 13);

while, as for “the preliminary objection based on the termination of the
Trusteeship over Nauru by the United Nations” (operative part 1 (c)), the
Court, “confinfing] itself to examining the particular circumstances in
which the Trusteeship for Nauru was terminated” (Judgment, para. 23),
has rejected it because

“the rights Nauru might have had in connection with rehabilitation
of the lands remained unaffected. Regard being had to the particular
circumstances of the case, Australia’s third objection must in conse-
quence be rejected.” (Judgment, para. 30.)

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304 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

4. Iam unable to concur in these views of the Court. My view is differ-
ent from that of the Judgment with regard to the significance of certain
developments during the Trusteeship period. I have in particular some
doubts whether there really existed, towards the end of that period, any
Nauruan claim for land rehabilitation, and I feel unable to entertain what
the Judgment refers to, without further elaboration, as the “particular cir-
cumstances” (Judgment, paras. 23 and 30) prevailing at the termination of
the Trusteeship. Hence I must proceed to a somewhat lengthy recital of
the facts relating to “the negotiations which led to the Agreement of
14 November 1967, the Agreement itself, or the discussions at the United
Nations” (Judgment, para. 13).

I. Negotiations between the Administering Authority and the Nauruan
Authorities and their Agreement of November 1967

5. Under the Trusteeship Agreement of 1 November 1947 (UNTS,
Vol. 10, p. 4), approved by the United Nations General Assembly, the
responsibility of an Administering Authority in respect of Nauru was con-
ferred upon Australia, New Zealand and the United Kingdom. Such an

_ Authority is fully accountable to the United Nations for both the adminis-
tration and the supervision of the territory under Trusteeship (cf. Arts. 75
and 81 of the Charter). Moreover, by Article 3 of the Agreement the three
Governments constituting the Authority:

“under[took] to administer the Territory [Nauru] in accordance with
the provisions of the Charter and in such a manner as to achieve in
the Territory the basic objectives of the International Trusteeship
System ...”.

These basic objectives included the aim of

“promot[ing] the political, economic, social, and educational
advancement of the inhabitants of the trust territories, and their pro-
gressive development towards self-government or independence as
may be appropriate to the particular circumstances of each territory
and its peoples and the freely expressed wishes of the peoples
concerned .. .” (United Nations Charter, Art. 76, para. (b)).

By Article 5 of the Agreement, the Administering Authority — i.e., all
three Governments — further

“under[took] that in the discharge of its obligations under article 3 of
this Agreement...

fa) ... respect the rights and safeguard the interests, both present and
future, of the indigenous inhabitants of the Territory [Nauru]. . .”.

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305 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

However, by the intervening Article 4, the Australian Government was to
“continue to exercise full powers of legislation, administration and juris-
diction in and over the Territory”. There was thus a delegation of powers
from New Zealand and the United Kingdom, though neither was thereby
absolved from responsibility: indeed the same Article 4 opens with the
words: “The Administering Authority will be responsible for the peace,
order, good government and defence of the Territory...” The 1947 Trus-
teeship Agreement was later supplemented and amended by agreements
between the three Governments. In particular, the Agreement relating
to Nauru of 26 November 1965 (UNTS, Vol. 598, p. 81), drafted “after
consultation with the Nauruan people” (Preface to the Agreement), pro-
vided for the establishment of the Legislative Council and the Executive
Council (Arts. 1-2), in which the participation of the Nauruan peoples was
widely recognized. Yet the administration of the Territory was to remain
in the hands of an Administrator appointed by the Government of Aus-
tralia (Art. 3).

6. In the early days of the Trusteeship, before the conclusion of the tri-
partite 1965 Agreement, the participation of the Nauruan people in the
administration or the protection of their interests was completely subordi-
nate to the role of the Administrator, although the Nauruan Council
of Chiefs, set up to advise the Administrator on Nauruan matters, was
reorganized in 1950-1951, and in that year the Head Chief participated for
the first time in the administration as a Native Affairs Officer. It is true
that, under the 1965 Agreement, the Nauruan people’s right to participate
in the administration of the Territory was recognized, but it is most
important to note that that right was not recognized as being independent
from the administration or supervision carried out by the Administrator.
The responsibilities, as well as the duties and rights, of the Administering
Authority were placed under the exclusive control of the United Nations,
acting through the Trusteeship Council and the General Assembly or the
relevant subsidiary organs. Hence, apart from any claims to relief for any
damages arising out of acts of the administering organs which might have
been settled by the judicial organ of Nauru itself, any claims or disputes
raised by the Nauruan people as a collectivity could only have been dealt
with by the United Nations mechanism. In other words, the United
Nations was responsible for supervising the behaviour of the Administra-
tor as the plenipotentiary of the Authority, and for ensuring that he
respected the rights and safeguarded the interests of the Nauruan people.

7. The idea of a possible rehabilitation of the worked-out phosphate
lands was raised for the first time at the negotiations held between the
Delegation of the Nauru Local Government Council (NLGC), of which
the leader was Head Chief DeRoburt, and Australian officials represent-
ing the Administering Authority (Australia, New Zealand and the United
Kingdom), negotiations which took place in Canberra from 31 May to
10 June 1965 (Nauru, “Record of Negotiations, 31 May-10 June 1965,

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306 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

between the Delegation of Nauru Local Government Council and Aus-
tralian Officials Representing Administering Authority” (contained in
Memorial of Nauru (hereinafter referred to as NM), Vol. 3, as Annex 2))
before the participation of the Nauruan people was widely recognized by
the Agreement of November 1965. In these negotiations a paper on
“Rehabilitation of Nauru (Financial and Technical Requirements)”
(which had apparently been prepared by the NLGC) was submitted, some
passages of which read as follows:

“In view of the lack of any other suitable alternative the Council
[NLGC] has decided that it is in the best interests of the Nauruan
people to remain on Nauru. The only question at issue, therefore, is
how their island home can be preserved.

me + +

As a start, the CSIRO [Commonwealth Scientific and Industrial
Research Organization] should be approached to advise on the tech-
nical requirements for rehabilitation and the most efficient means of
restoring the land. The Water Resources Council should be invited to
assist in measuring the water resources of Nauru. These are all mat-
ters of detail but clearly decisions as to how rehabilitation can best be
accomplished must await these surveys.” (NM, Vol. 3, Ann. 2,
“Record of Negotiations”, Ann. F, pp. 166 and 169.)

In the “Summary of Conclusions” of these negotiations it was stated:

“3. Rehabilitation of Nauru

The Nauruan delegation stated that it considered that there was a
responsibility on the partner governments to restore at their cost the
land that had been mined, since they had had the benefit of the phos-
phate. The Australian delegation was not able on behalf of the part-
ner governments to take any commitment regarding responsibility
for any rehabilitation proposals the objectives and costs of which
were unknown and the effectiveness of which was uncertain.” (Ibid.
Ann. L, pp. 195-196.)

8. The demand of the Nauruan people for the rehabilitation of the
worked-out phosphate lands at the 1965 Canberra meetings and its denial
by Australia on behalf of the Administering Authority, which took the
view that the problem should be settled by means of a resettlement of the
people on another island instead of by land rehabilitation, was repeated in
the 1966 talks between the delegation representing the Nauru Local Gov-
ernment Council and the Joint Delegation of Officials, representing the
Administering Authority, that were held at Canberra from 14 June to
1 July 1966 (Nauru Phosphate Industry, “Record of Discussions held in
Canberra, 14 June-1 July 1966” (contained in NM, Vol. 3, as Annex 4)). At

70
307 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

the fifth session, on 20 June, Head Chief DeRoburt read out a statement
which in part ran:

“The Nauruan people are prepared to take over the responsibility
for restoration of any land mined after we receive the full economic
benefit from the phosphate.

partner Governments should bear this cost in proportion to the
benefits they have already derived from the use of cheap phos-
phate obtained at well below the world price.” (NM, Vol. 3, p. 356.)

The agreed Minutes on Future Arrangements for the Phosphate Industry
signed by Mr. DeRoburt and the Joint Delegation on 1 July 1966, the last
day of the meetings, read as follows:

“Relationship of rehabilitation or resettlement costs to financial
arrangements for the phosphate industry

The Nauruan view was that rehabilitation of Nauru was a matter
of primary concern for the Nauruan people. They indicated that they
were pursuing the rehabilitation proposals in the absence of any
acceptable proposal for resettlement. They said that they should
receive the full financial benefit from the phosphate industry so that
there would be funds available to rehabilitate the whole of the Island.
The Joint Delegation [the Administering Authority] explained that
the benefits to be received by the Nauruan community from the pro-
posed phosphate arrangement would, it was envisaged, be adequate
to provide for the present and long-term security of the Nauruan
community including an adequate continuing income when the
phosphate has been exhausted and when the costs of any resettle-
ment or rehabilitation have been met. The Joint Delegation said they
would be prepared to consider that, within the framework of a long-
term agreement, arrangements be made for an agreed payment into
the long-term investment fund, from which the costs or part of the
costs of rehabilitation could be met.” (Jbid., p. 407.)

9. At the Canberra meetings in May-June 1965, as mentioned in para-
graph 7 above, the representatives of Nauru and the Australian delegation
had agreed to establish an expert committee to investigate the feasibility
of the rehabilitation as suggested by the people of Nauru. A part of the
“Summary of Conclusions”, which was quoted in paragraph 7 above
(Annex L refers), continued as follows:

71
308 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

“It was agreed to establish at the earliest practicable date an inde-
pendent technical committee of experts to examine the question of
rehabilitation, the cost to be met by the Administering Authority. The
terms of reference of the Committee are attached.” (NM, Voi. 3,
p. 196.)

The terms of reference of the Committee of Experts thus proposed were
the following:

“The Committee is to examine:

(a) whether it would be technically feasible to refill the mined phos-
phate areas with suitable soil and/or other materials from exter-
nal sources or to take other steps in order to render them usable
for habitation purposes and/or cultivation of any kind;

(b) effective and reasonable ways of undertaking such restoration,
including possible sources of material suitable for refilling ;

(c) estimated costs of any practicable methods of achieving restora-
tion in any effective degree.” (Ibid. p. 197.)

The Committee was asked to report its findings to the Nauru Legislative
Council and the Administering Authority by 30 June 1966. The Nauru
Lands Rehabilitation Committee, which was thus proposed at the 1965
Canberra Meetings, was established towards the end of 1965 with
Mr. G. I. Davey, Consulting Engineer in Sydney, and two other members
(one of whom was the soils and land expert of the FAO). The Committee
drew up a report in June 1966 and submitted it to the Australian Govern-
ment and the Nauru Legislative Council (Territory of Nauru, “Report by
Committee Appointed to Investigate the Possibilities of Rehabilitation of
Mined Phosphate Land, 1966” (contained in NM, Vol. 3, as Annex 3)).

“Section Two — Summary of Conclusions
(a) The Committee. . . has reached the following conclusions:

(i) that while it would be technically feasible (within the narrow
definition of that expression) to refill the mined phosphate
areas of Nauru with suitable soil and/or other materials from
external sources, the very many practical considerations
involved rule out such an undertaking as impracticable;

Section Ten — Conclusions and Recommendations
The Committee has concluded that any proposal to resoil the
whole of the worked-out phosphate area is unrealistic and presents

72
309 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

serious technical difficulties because of the natural slope existing on
the island. In fact it would not be in the best interest of the Nauruans
to resoil large portions of the land as they are of far greater value as
absorption areas for water collection.” (NM, Vol. 3, pp. 215 and 255.)

10. Upon the completion of a report of the Davey Committee,
discussions between the delegation representing the Nauru Local
Government Council and the Joint Delegation of Officials representing
the Administering Authority were held at Canberra from 12 April to
16 June 1967 (“Nauru Talks 1967, Summary Records of Discussions
and Related Papers” (contained in NM, Vol. 3, as Annex 5)). On 19 April,
Mr. DeRoburt read a statement (NM, Vol. 3, p. 498), in which a refer-
ence was made to the request of the Nauruan people, as follows:

“For all these reasons the Nauruans feel that the Partner Govern-
ments can and should meet the costs of rehabilitating the land
already mined. The fact that no money was set aside for this purpose
in the past does not alter the responsibility for rehabilitation. Hence
the Nauruans can accept a long-term agreement in which they will
accept responsibility for rehabilitating lands mined in the future (pro-
vided that they receive the full economic benefits from mining the
phosphate) but they are not prepared to accept responsibility for
rehabilitating lands mined in the past. We strongly believe that our
views on this matter are morally and logically correct, but the Partner
Governments have made no attempt to refute our arguments.” (/bid.,
p. 558.)

On that same day, the Delegate of Australia stated that:

“the partner Governments would study the paper. Each side natu-
rally felt that their own position was correct; as long as resettlement
was a concrete proposal offering a solution this had been preferred
by the partner Governments.” (Jbid., p. 498.)

The next day, 20 April, Mr. DeRoburt stated:

“As the island was to be a permanent home for the Nauruan
people, rehabilitation is needed. The Nauruans could not talk
about details under a cloud of denial of broad principles. The land
must be rehabilitated. Once agreement on broad principles was
reached technical details could be discussed.” (Ibid., p. 497.)

The problem of rehabilitation was again taken up on 16 May. The
Summary Record of that date shows that

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310 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

“27. During the following discussion it emerged that the Nauruans
would still maintain their claim on the Partner Governments in
respect of rehabilitation of areas mined in the past, even if the Partner
Governments did not press for the withdrawal of the claim in a for-
mal manner such as in an agreement.

The Nauruan Delegation described how they arrived at their view
on rehabilitation needs; and referred to the report of the committee
of inquiry as to various levels and costs of soil replacement.

The Joint Delegation said that it did not regard the Nauruan
choice of the highest level for which the committee gave figures, but
which the committee did not recommend, as being realistic.

The Nauruan Delegation disagreed.

28. The Secretary [the representative of Australia] discussed the
problem of re-settlement which also involved individual motives for
moving, apart from the rehabilitation question, and stated that the
Governments of Australia and New Zealand could offer rights of
immigration to those countries for Nauruans.” (NM, Vol. 3,
pp. 466-467.)

On 15 June 1967, the final day of the 1967 discussions between the Nauru
Local Government Council and the Delegate of Australia, the “Nauruan
Phosphate Agreement — Heads of Agreement” was signed by both
parties in confirmation of an arrangement for the future operation of the
phosphate industry in Nauru, in which it is stated that:

“Representatives of the Nauru Local Government Council and the
Partner Governments have agreed on arrangements for the future
operation of the phosphate industry on Nauru. A definitive agree-
ment will be drawn up later in 1967 incorporating provisions to give
effect to the undertakings set out below and appropriate action will
be taken in due course to effect necessary legislative changes. Never-
theless both parties will from now on act in conformity with the
intention of these Heads of Agreement.” (Ibid, p.420.)

It is to be noted that no reference was made in this document to the rehabi-
litation of worked-out lands.

11. Following on these Heads of Agreement, an “Agreement relating to
the Nauru Island Phosphate Industry 1967” was signed on 14 November
1967 in Canberra by the Head Chief representing the Nauru Local Gov-
ernment Council, and by the Minister of State for Territories of Australia
and the High Commissioners of New Zealand and the United Kingdom
representing the three respective Governments which constituted the
Administering Authority (text contained in NM, Vol. 3, as Annex 6,
and Preliminary Objections of Australia, Vol. II, p. 69). This Agree-

74
311 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

ment, known as the Canberra Agreement, contained detailed provisions
grouped under the headings of “Preliminary” (Part D), “Supply of Phos-
phate” (Part II), “Capital Assets” (Part III), “Management Arrange-
ments” (Part IV), “Financial Arrangements” (Part V) and “General”
(Part VI), as well as three schedules; it did not contain any provisions con-
cerning the responsibility of Australia for the rehabilitation of worked-out
lands.

*

12. Ihave thus followed the developments in which the demands of the
Nauruan people for the rehabilitation of worked-out lands were pre-
sented in the talks between the Administering Authority and their repre-
sentatives. It is extremely important to note that the Canberra Agreement
reached by both parties (on the one hand, Australia, New Zealand and the
United Kingdom; on the other, the Nauru Local Government Council) on
14 November 1967, just on the eve of the independence of Nauru, to
arrange for the future operation, after independence, of the phosphate
industry, did not make any mention of the issue of rehabilitation. Counsel
for Nauru explained at the hearings that rehabilitation was not mentioned
in the 1967 Agreement on the understanding that the issue would be dealt
with separately. In fact that issue was not dealt with separately, and no
suggestion seems to have been made by the Nauruan authorities to deal
with this issue independently of that Agreement.

13. The Court states in this respect as follows:

“The Court notes that the Agreement of 14 November 1967 con-
tains no clause by which the Nauruan authorities expressly waived
their earlier claims. Furthermore, in the view of the Court, the text of
the Agreement, read as a whole, cannot, regard being had to the cir-
cumstances set out in paragraph 15 above, be construed as implying
such a waiver...” (Judgment, para. 16.)

I am unconvinced by this reasoning, for it seems to me that, on the con-
trary, it was imperative for the Nauruans to reserve the claim to rehabilita-
tion in this crucial document, drawn up ata critical date, if it were not to be
held abandoned. The link between the future exploitation of the phos-
phates and the effect of previous exploitation was too close for it to be
seriously argued that a reference to the claim would have been out of
place. The fact that the issue of rehabilitation was not mentioned at all
cannot, therefore, be dismissed as irrelevant. Hence, while it is literally
true that the text of the Agreement cannot be construed to imply a
waiver, the silence of the Agreement remains, in my view, open to that
conclusion.

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312 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

2. Discussions within the United Nations
System

14. The presentation by the Nauruan people of their demand for
rehabilitation and the subsequent rejection of that demand by the Admin-
istering Authority, as well as the work of the Davey Committee to assess
the feasibility of rehabilitation, were all problems which were dealt with
within the United Nations Trusteeship System. The Trusteeship Council
and the General Assembly paid due attention to those discussions
between the Nauruan people and the Administering Authority, but were

‘not in a position to intervene in order to take up the demands of the Nau-
ruan people or to determine any violation by the Administering Authority
of its obligation under the Trusteeship System.

15. In 1965 the Trusteeship Council, at its thirty-second session
(28 May to 30 June 1965; meetings 1245 to 1270), took note of the work of
the 1965 Canberra discussions and stated:

“(t]he Council looks forward to the report of the [Davey Committee];
it requests the FAO to consider favourably the invitation to make
available a representative to serve on this committee” (United
Nations, Official Records of the General Assembly, Twentieth Session,
Supplement No. 4 (A/6004), Report of the Trusteeship Council
1964-1965, p. 50, para. 431).

Several months later, the United Nations General Assembly in its resolu-
tion 2111 (XX) of 21 December 1965 stated as follows:

“The General Assembly,

Noting that... the Administering Authority and representatives
of the Nauruan people, in June 1965 at the Canberra Conference,
pursued further the question of a future home for the Nauruan
people which would preserve their national identity,

4. ... requests that immediate steps be taken by the Administering
Authority towards restoring the island of Nauru for habitation by the
Nauruan people as a sovereign nation.”

Compare Judgment, paragraph 25.

16. In 1966 the Trusteeship Council at its thirty-third session (27 May
to 26 July 1966; meetings 1271 to 1296) dealt with the question of rehabili-
tation of the lands of Nauru. The Davey Committee had just completed its
report by that time; yet the Trusteeship Council apparently did not have
time to examine it at this session. The Trusteeship Council reported in its
“conclusions and recommendations” of this session, as follows:

76
313 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

“The Council recalls that the General Assembly, by its resolution
2111 (XX), requested that immediate steps be taken by the Adminis-
tering Authority towards restoring the island of Nauru for habitation
by the Nauruan people as a sovereign nation and notes that an inves-
tigation into the feasibility of restoring the worked-out land has been
carried out by [the Davey Committee].

The Council notes the statement of the representative of the people
of Nauru that ‘the responsibility for rehabilitating the island, in so
far as it is the Administering Authority’s, remains with the Admini-
stering Authority. If it should turn out that Nauru gets its own in-
dependence in January 1968, from then on the responsibility will be
ours. A rough assessment of the portions of responsibility for this
rehabilitation exercise then is this: one third is the responsibility of
the Administering Authority and two thirds is the responsibility of
the Nauruan people.’

The Council recalls that at its thirty-second session the Special
Representative gave the Council some details which outlined the
magnitude and cost of replenishment of the worked-out phosphate
land. It also noted that the 1962 Visiting Mission remarked that no
one who had seen the wasteland pinnacles could believe that culti-
vable land could be established thereon, except at prohibitive
expense.

The Council .. . recommends that [the report of the Davey Com-
mittee] be studied as soon as possible during the course of conversa-
tions between the Administering Authority and the delegates of
the people of Nauru.” (United Nations, Official Records of the
General Assembly, Twenty-first Session, Supplement No. 4 (A/6304),
Report of the Trusteeship Council 1965-1966, p. 43, para. 408.)

Some months later, the United Nations General Assembly, in its resolu-
tion 2226 (XXI) of 20 December 1966, simply pursued the line which had
been adopted in the previous year, apparently unaware as yet of the report
of the Davey Committee, which the Trusteeship Council had not an
opportunity to examine in the session of that year:

“The General Assembly,

3. Recommends ... that the Administering Authority should ...
take immediate steps, irrespective of the cost involved, towards
restoring the island of Nauru for habitation by the Nauruan people
as a sovereign nation.”

Compare Judgment, paragraphs 18 and 26.

17. In 1967 the Trusteeship Council, at its thirty-fourth session (29 May
to 30 June 1967; meetings 1297 to 1322), dealt with the question of rehabi-
litation, having sight of the report of the Davey Committee for the first
time. The Trusteeship Council was at that time composed of eight member
States (Australia, New Zealand, the United Kingdom and the United

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314 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

States as Administering Authorities; China, France and the USSR as
Permanent Members of the Security Council; and Liberia as the only
elected member). In his opening statement to that session, Mr. DeRoburt,
as Adviser to the Special Representatives for the Trust Territories of
Nauru and New Guinea in the Australian Delegation, stated:

“18. Mr. DeRoburt...

+ +

21. The oniy important point on which there was still disagree-
ment with the partner Governments was the question of the rehabili-
tation of worked-out land. The Nauruans felt that the partner
Governments should agree to assume responsibility for rehabili-
tating land worked before 1 July 1967, leaving to the Nauruans the
responsibility for land worked after that date. The Nauruans would
in that way be assuming two-thirds of the responsibility and the part-
ner Governments one-third.” (United Nations, Official Records of the
Trusteeship Council, Thirty-fourth Session, 1313th meeting, para. 21.)

‘This statement by Mr. DeRoburt was described in the Trusteeship Coun-
cil Report in slightly different terms:

“Although the Nauru Local Government Council worked in a cli-
mate of understanding at Canberra with the Administering Author-
ity, the only divergent views which seemed to appear not reconcilable
was /sic] the question of the rehabilitation of the mined lands. The
Nauru Local Government Council maintained that the Administer-
ing Authority should accept responsibility for the rehabilitation of
the lands already mined, while the Nauru Local Government Coun-
cil would be responsible for rehabilitation of lands mined from 1 July
1967.” (United Nations, Official Records of the General Assembly,
Twenty-second Session, Supplement No. 4 (A/6704), Report of the
Trusteeship Council 1966-1967, pp. 47-48, para. 386.)

In general debates, all eight States members of the Council expressed
views concerning the forthcoming independence of Nauru, but only a
few of them showed some sympathy to the Nauruan people’s wish for
rehabilitation. As one example, the delegate of France

“welcomed Head Chief DeRoburt’s statement that the Nauruan
leaders were endeavouring to create work that could at least partially
replace phosphate extraction. It regretted, however, that agreement
had not yet been possible on the question of rehabilitating the
worked-out land. Nevertheless, the situation was generally satisfac-
tory in a Territory which had been wisely administered by Australia,

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and his delegation was sure that the Nauruans would soon be able to
take a final decision on their future in total freedom and in complete
conformity with their aspirations.” (United Nations, Official Records
of the Trusteeship Council, Thirty-fourth Session, 1316th meeting,
para. 9.)

The Council’s Report stated in “Conclusions and Recommendations” on
the “future of the Nauruans” that:

“(t]he Council, recalling its observations adopted at its thirty-third
session with regard to the resettlement of the Nauruans, notes the
statement of the Head Chief Hammer DeRoburt that the Nauruans
have abandoned the idea of resettlement and intend to remain on the
Island. However, the Council notes the statement of the Administer-
ing Authority that it remains ready to consider any Nauruan propo-
sal concerning future resettlement.” (United Nations, Official
Records of the General Assembly, Twenty-second Session, Supplement
No. 4 (A/6704), Report of the Trusteeship Council 1966-1967, p. 43,
para. 332.)

Compare Judgment, paragraphs 18 and 27.

18. The Trusteeship Council, which closed this session a few weeks
after the signing of the Heads of Agreement by the Nauru Local Govern-
ment Council and the Delegate of Australia on 15 June, in its “Conclu-
sions and Recommendations” on Economic Advancement, “note[d] with
satisfaction” that that Agreement was reached in the sense that “the
ownership, control and management of the phosphate industry will
[thereby] be transferred to the Nauruans by 1 July 1970” and that “trans-
itional arrangements provide for a substantial increase in phosphate roy-
alties and for the increased participation of the Nauruans in the operation
of the industry” (ibid., p. 49, para. 403). The Council’s Report continued to
state:

“The Council also notes that the report of the [Davey Commit-
tee]... concluded, inter alia, that ‘while it would be technically feas-
ible (within the narrow definition of that expression) to refill the
mined phosphate areas of Nauru with suitable soil and/or other ma-
terials from external sources, the very many practical considerations
involved rule out such an undertaking as impracticable’. At the same
time the report provides alternative means of treating the mined land.
The Council further notes that the Nauruans have voiced strong reser-
vations to this report and, inter alia, stated that the Nauru Local Gov-
ernment Council believes that the land already worked should be
restored by the Administering Authority to its original condition. The
Council notes further the statement of the Administering Authority
that the financial arrangements agreed upon with respect to phos-
phate took into consideration all future needs of the Nauruan people,
including possible rehabilitation of land already worked.

The Council, regretting that differences continue to exist on the

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question of rehabilitation, expresses earnest hope that it will be pos-
sible to find a solution to the satisfaction of both parties.” (United
Nations, Official Records of the General Assembly, Twenty-second Ses-
sion, Supplement No. 4 (A/6704), Report of the Trusteeship Council
1966-1967, p. 49, para. 403.)

The Trusteeship Council did not advance any conclusion or recommen-
dation regarding the alleged responsibility to be borne by Australia,
New Zealand and the United Kingdom with regard to the rehabilitation
of the worked-out phosphate lands. At the meetings (after the adoption of
the above-mentioned “Conclusions and Recommendations”), Liberia,
which was the sole elected member of the Council, introduced a draft
resolution (T/L.1132) in which the Trusteeship Council would

“4, Recommend[s] that the Administering Authority should take
immediate steps towards restoring the island of Nauru for habitation
by the Nauruan people as a sovereign nation.” (United Nations,
Official Records of the Trusteeship Council, Thirty-fourth Session,
1320th meeting, para. 8; text in United Nations, Official Records
of the Trusteeship Council, Thirty-fourth Session, agenda item 4,
Annexes.)

The meeting was strongly admonished by Australia concerning the
alleged failure of Liberia “to take account of the very detailed information
on conditions in Nauru that had already been submitted to the Council”
(ibid., para. 38). Liberia’s draft resolution was rejected by five votes to two
(Liberia and the USSR) with one abstention (China) (ibid., para. 43).
Compare Judgment, paragraph 27.

19. The Trusteeship Council met for two days on 22 and 23 November
1967 to hold its thirteenth special session (meeting 1323), that is, one
week after the Nauru Island Phosphate Industry Agreement of November
1967 was signed and a couple of months before the date of Nauru’s inde-
pendence, to deal mainly with a letter from Australia concerning the
future of the Trust Territory of Nauru (T/1669). The record of the meeting
shows the following:

“7, Mr. Shaw (Australia)

13. ... Australia was proud to have fulfilled its obligations under
[the 1947 Trusteeship Agreement] and under the Charter of the
United Nations.

me

20. Onall those matters, full agreement had been reached between
the Administering Authority and the representatives of the Nauruan
people. There was one subject, however, on which there was still a

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317 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

difference of opinion — responsibility for the rehabilitation of phos-
phate lands. The Nauruan people fully accepted responsibility in
respect of land mined subsequently to 1 July 1967, since under the
new agreement they were receiving the net proceeds of the sale of
phosphate. Prior to that date, however, they had not received the net
proceeds and it was therefore their contention that the three Govern-
ments should bear responsibility for the rehabilitation of land mined
prior to 1 July 1967. That was not an issue relevant to the termination
of the Trusteeship Agreement, nor did the Nauruans wish to make it a
matter for United Nations discussion. He merely wished to place on
record that the Nauruan Government would continue to seek what
was, in the opinion of the Nauruan people, a just settlement of their
claims.” (United Nations, Official Records of the Trusteeship Council,
Thirteenth Special Session, 1323rd meeting, p. 1.)

The Delegate of Liberia introduced a draft resolution (T/L.1134) which
lacked any provision concerning the rehabilitation of worked-out lands
similar to what had been contained in that country’s own draft resolution
at the previous session of that Council (ibid., p.7, para. 57). This draft new
resolution, orally amended on minor points, was put to the vote without
any discussion and unanimously adopted by the Council as Trusteeship
Council resolution 2149 (S-XIID, entitled “The Future of Nauru”, which
reads:

“The Trusteeship Council,

1. Notes the formal announcement by the Administering Author-
ity that, following the resumed talks between representatives of the
Nauruan people and of the Administering Authority, it has been
agreed that Nauru should accede to independence on 31 January
1968;

2. Welcomes the statements made in the Trusteeship Council by
representatives of the Governments of Australia, New Zealand and
the United Kingdom of Great Britain and Northern Ireland as the
Administering Authority, and by the representatives of the Nauruan
people, that the Administering Authority has agreed to meet the
request of the representatives of the Nauruan people for full and
unqualified independence;

3. Recommends that the General Assembly at its twenty-second
session resolve, in agreement with the Administering Authority, that
the Trusteeship Agreement for the Territory of Nauru approved by
the General Assembly on 1 November 1947 shall cease to be in force
upon the accession of Nauru to independence on 31 January 1968.”

While Mr. DeRoburt, as stated above, wished to place on record his view
(which was not acceptable to Australia) that the Nauruan people would
continue to press its claim to rehabilitation, no official position was taken

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318 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

by the Trusteeship Council except for its acknowledgment of the termina-
tion of the Trusteeship of Nauru on 31 January 1968. Compare Judgment,
paragraphs 19 and 28.

20. The United Nations, which had encouraged the independence of
all the Trusteeship territories, certainly welcomed the willingness of the
Administering Authority to promote the independence of Nauru. In the
Fourth Committee (Trusteeship and Non-self-governing Territories) of
the United Nations General Assembly at its twenty-second session in
1967, the following exchange took place on 6 December 1967:

“8. Mr. Rogers (Australia)

12. ... Australian administrative control would cease when that
Constitution came into force. Thereafter, Nauru would join that
company of nations which had acceded to independence under the
guidance and with the assistance of the Trusteeship Council, in
accordance with the provisions and objectives of the United Nations
Charter. At that time, too, the obligations assumed by the Adminis-
tering Authority under the Trusteeship Agreement approved by the
General Assembly on 1 November 1947 would be discharged. The
Australian delegation requested the Committee to recommend to the
Assembly that the Trusteeship Agreement should cease to be in force
on 31 January 1968. In conclusion, he paid a tribute to Mr. Hammer
DeRoburt, Head Chief of Nauru, who had amply demonstrated his
devotion to the cause of his people and who would appreciate the
opportunity to address the Committee, if it so wished.

With the agreement of the Committee, Head Chief Hammer
DeRoburt of Nauru spoke as a member of the Australian delegation.

20. One [problem] which worried the Nauruans derived from the
fact that land from which phosphate had been mined would be
totally unusable. Consequently, althouth /sic/it would be an expen-
sive operation, that land would have to be rehabilitated and steps
were already being taken to build up funds to be used for that pur-
pose. That phosphate was a wasting asset was, in itself, a problem; in
about twenty-five years’ time the supply would be exhausted. The
revenue which Nauru had received in the past and would receive dur-
ing the next twenty-five years would, however, make it possible to
solve the problem. Already some of the revenue was being allocated
to development projects, so that Nauru would have substantial
alternative sources of work and of income long before the phos-
phate had been used up. In addition, a much larger proportion of its

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income was being placed in a long-term investment fund, so that,
whatever happened, future generations would be provided for. In
short, the Nauruans wanted independence and were confident that
they had the resources with which to sustain it.” (United Nations,
Official Records of the General Assembly, Twenty-second Session,
Fourth Committee, 1739th meeting, p. 394.)

After the statements by the delegates of Australia and Mr. DeRoburt, the
Delegate of Australia introduced a draft resolution on the question of the
Trust Territory of Nauru (A/C.4/L.879). The draft resolution, like the one
adopted by the Trusteeship Council a few weeks before, did not contain
any provision concerning the alleged claim of the Nauruan people as to
Australia’s responsibility for the rehabilitation of worked-out lands. This
draft resolution of the General Assembly was also different from the Gen-
eral Assembly resolutions of previous years, in that the issue of rehabilita-
tion was not mentioned at all, even though it is true that “[t]he resolu-
tion . . . recalls those earlier resolutions in its preamble” (Judgment,
para. 29). When that draft was discussed, certain delegates made state-
ments, some of which I quote as being relevant to the present issue:

“28. [The Delegate of the United Kingdom]... was happy to note
that it had been possible to meet the wishes of the Nauruans in a satis-
factory manner.

30. The Administering Authority had discharged its obligations
faithfully and well, ...

35. [The Delegate of China]... congratulated the Administering
‘Authority ... on having faithfully fulfilled the Agreement and for
having promoted the economic and social progress of Nauru and
prepared the people of the Territory for self-government.” (United
Nations, Official Records of the General Assembly, Twenty-second
Session, Fourth Committee, 1739th meeting, pp. 396, 397.)

“17. [The Delegate of USSR]... had... listened with great inter-
est to the statement made by Head Chief Hammer DeRoburt ...
from which he understood that no conditions or reservations would
be attached to independence.

24. [The Delegate of the Philippines] congratulated the joint
Administering Authority, in particular the Government of Australia,
on the successful accomplishment of its obligations under the
Charter of the United Nations and the Trusteeship Agreement for
Nauru.” (Ibid., 1740th meeting, pp. 401, 402.)

“5. [The Delegate of India] . . . With regard to the question of
responsibility for the rehabilitation of the mined areas of the island,

83
320

PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

there was still considerable difference of opinion between the
Nauruans and the Administering Authority. Head Chief DeRoburt
maintained that the three Governments forming the Administering
Authority should defray the cost of that rehabilitation. The Indian
Delegation shared that view .. . and hoped that a just agreement
would be reached on the subject.

ee

9. [The Delegate of France] expressed his delegation’s satisfaction
at the agreement reached between the Administering Authority and
the representatives of the people of Nauru. Through that agreement
the people of Nauru were gaining independence in accordance with
their wishes. He congratulated the Government of Australia on the
successful fulfilment of the obligations that it had assumed under the
Trusteeship Agreement, and the people of Nauru on their forth-
coming independence.” (United Nations, Official Records of the
General Assembly, Twenty-second Session, Fourth Committee,
1741st meeting, p. 406.)

The draft resolution, as amended and further orally revised (in manners
not directly relevant to the present problem), was unanimously adopted
by the Fourth Committee on 7 December 1967 and was then sent to the
Plenary Meeting (ibid., p. 407). Compare Judgment, paragraphs 17 and 28.

21. The General Assembly, acting on the basis of this Fourth Commit-
tee recommendation, unanimously adopted on 19 December 1967 Gen-
eral Assembly resolution 2347 (XXII), “Question of the Trust Territory
of Nauru”, in which it was stated that:

84

“The General Assembly,

1. Notes the formal announcement by the Administering Author-
ity that, following the resumed talks between representatives of the
Nauruan people and of the Administering Authority, it was agreed
that Nauru should accede to independence on 31 January 1968;

2. Welcomes the statement made in the Fourth Committee by the
representatives of the Governments of Australia, New Zealand and
the United Kingdom of Great Britain and Northern Ireland as the
Administering Authority that the Administering Authority has com-
plied with the request of the representatives of the Nauruan people
for full and unqualified independence;

3. Resolves accordingly, in agreement with the Administering
Authority, that the Trusteeship Agreement for the Territory of Nauru
approved by the General Assembly on 1 November 1947 shall cease
to be in force upon the accession of Nauru to independence on
31 January 1968”.
321 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

The responsibility of the Administering Authority, as well as the rights
and duties of the Administrator in Nauru, were now to be completely
terminated, as is implicit in this United Nations General Assembly resolu-
tion, as of 31 January 1968, when Nauru gained independence. Com-
pare Judgment, paragraphs 23 and 29.

22. In the Trusteeship Council’s Report to cover the year 1967-1968,
which was submitted to the United Nations General Assembly at its
twenty-third session in 1968, a simple account was given of Nauru’s acces-
sion to independence on 31 January 1968 (United Nations, Official
Records of the General Assembly, Twenty-third Session, Supplement No. 4
(A/7204), Report of the Trusteeship Council 1967-1968, p. 41, paras. 355-
357).

*

23. Reciting the above development within the United Nations in a
somewhat fragmentary manner, the Judgment refers to Australia’s con-
tention that Mr. DeRoburt’s statement of 6 December 1967 at the Fourth
Committee of the General Assembly “amounted to a waiver” and goes so
far as to state that:

“[tlhe Court cannot share this view . .. Notwithstanding some ambi-
guity in the wording, the statement did not imply any departure from
the point of view expressed clearly and repeatedly by the representa-
tives of the Nauruan people before various organs of the United
Nations and, in particular, before the Trusteeship Council on
22 November 1967.” (Judgment, para. 20.)

The Judgment refers to the statements made by the representatives of the
USSR and India, and states that “the representatives of the Administering
Authority did not react” (Judgment, para. 28). Bearing in mind that the
statements were themselves made by those representatives in reaction to
the draft resolution introduced by Australia, one is not surprised that Aus-
tralia “did not react”. It seems to me that the Judgment has placed too
much emphasis on the failure of Australia to react to the comments of
these delegates and interprets these particular developments in the United
Nations as having more importance than they actually possess. Besides, if
it is possible to place such a construction on silence at this point in the
story, I fail to see why the silence of the 1967 Canberra Agreement
between, on the one hand, Australia, New Zealand and the United King-
dom and, on the other, the Nauru Local Government Council (see
para. 11 above) may not bear even greater weight.
24. The Court states:

“[General Assembly resolution 2347 (XXII of 19 December 1967]
had ‘definitive legal effect’... Consequently, the Trusteeship Agree-
ment was ‘terminated’ on that date and ‘is no longer in force’... In
the light of these considerations, it might be possible to question the

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322 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

admissibility of an action brought against the Administering Author-
ity on the basis of the alleged failure by it to comply with its obliga-
tions with respect to the administration of the Territory. However,
the Court does not consider it necessary to enter into this debate
and will confine itself to examining the particular circumstances
in which the Trusteeship for Nauru was terminated.” (Judgment,
para. 23.)

I totally fail to understand this reasoning and also what the Court has in
mind by speaking of “the particular circumstances in which the Trustee-
ship for Nauru was terminated”. The Court eventually holds that

“when ... the General Assembly terminated the Trusteeship over
Nauru ..., everyone was aware of subsisting differences of opinion
between the Nauru Local Government Council and the Administer-
ing Authority with regard to rehabilitation of the phosphate lands
worked out before 1 July 1967. Accordingly, though General Assem-
bly resolution 2347 (X XID) did not expressly reserve any rights which
Nauru might have had in that regard, the Court cannot view that
resolution as giving a discharge to the Administering Authority with
respect to such rights. In the view of the Court, the rights Nauru
might have had in connection with rehabilitation of the lands
remained unaffected. Regard being had to the particular circum-
stances of the case, Australia’s third objection must in consequence
be rejected.” (Judgment, para. 30.)

I would rather consider that as the General Assembly resolution did not
expressly reserve any rights which Nauru might have had in that regard,
that resolution gave a discharge to the Administering Authority with
respect to such rights.

25. All claims arising from the implementation of the Trusteeship
could have been settled only under the United Nations mechanism. No
legal dispute within the meaning of Article 36, paragraph 2, of the Statute
could possibly have existed at that time with regard to the administration
of Nauru under the United Nations Trusteeship on the eve of Nauru’s
independence, as no sovereign State was in a position to put forward a
claim based on a purported breach of the obligations entered into by Aus-
tralia, New Zealand and the United Kingdom, as the Administering
Authority, during the Trusteeship period. A question, however, might
have been raised if there was indeed any dispute outstanding between the
independent State of Nauru and Australia, New Zealand and the
United Kingdom at the time of Nauru’s accession to independence. How-
ever, no claim to the rehabilitation of worked-out phosphate lands
addressed to the Administering Authority of the Trusteeship by the
people of Nauru was taken over by the State of Nauru at the time of inde-
pendence in 1968. No United Nations document under which Nauru
gained independence showed any evidence of a transfer of the claim or
of the creation of a fresh claim for the independent State of Nauru.

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323 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

IT. RE OPERATIVE Parts 1 (d) AND (e):
DELAY IN THE PRESENTATION OF NAURU’S CLAIM AND THE QUESTION OF
Nauru’s Goon FAITH

26. With regard to “the preliminary objection based on the effect of the
passage of time on the admissibility of Nauru’s Application” (operative
part 1 (d)), the Court stated that

“fijn the present case, it was well known, at the time when Nauru
gained its independence, that the question of the rehabilitation of the
phosphate lands had not been settled” (Judgment, para. 33),

and further stated that

“[t]he Court considers that, given the nature of relations between
Australia and Nauru, as well as the steps thus taken, Nauru’s Appli-
cation was not rendered inadmissible by passage of time . . . [I]t will
be for the Court, in due time, to ensure that Nauru’s delay in seising it
will in no way cause prejudice to Australia with regard to both the
establishment of the facts and the determination of the content of the
applicable law.” (Judgment, para. 36.)

With regard to “the preliminary objection based on Nauru’s alleged lack
of good faith” (operative part 1 (e)),

“[t]he Court considers that the Application by Nauru has been prop-
erly submitted in the framework of the remedies open to it. At the
present stage, the Court is not called upon to weigh the possible con-
sequences of the conduct of Nauru with respect to the merits of the
case. It need merely note that such conduct does not amount to an
abuse of process. Australia’s objection on this point must also be
rejected.” (Judgment, para. 38.)

* *

27. As [have stated above, I hold the view that, by the time of the inde-
pendence of Nauru, the claim of the Nauruan people to the rehabilitation
of lands was no longer viable. I should add, in view of what the Court
states, that it was well known at the time of independence that the claim of
the Nauruan people had ceased to exist. The Judgment quotes Mr. DeRo-
burt as stating on the day of independence that

“We hold it against Britain, Australia and New Zealand to recog-
nize that it is their responsibility to rehabilitate one third of the
island.” (See Judgment, para. 33.)

But this quotation is extracted simply from press reports based on sources
unknown. So far as I am aware, no official document of Nauru, published
at independence, asserted any claim based on a purported failure of Aus-
tralia to rehabilitate the worked-out phosphate lands. The Constitution of

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324 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

Nauru (contained in the Memorial of Nauru, Vol. 4, as Annex 42), which
became effective on the date of the independence, provided:

“83. 1. Except as otherwise provided by law, the right to mine
phosphate is vested in the Republic of Nauru.

2. Nothing in this Constitution makes the Government of Nauru
responsible for the rehabilitation of land from which phosphate was
mined before the first day of July, One thousand nine hundred and
sixty-seven.”

This cannot be interpreted as indicating that Nauru had put forward any
claim against Australia (or, for that matter, any third person) but simply
meant that the Government of Nauru declined, vis-à-vis the people, to be
held constitutionally responsible for the rehabilitation of land from which
phosphate had been mined during the Trusteeship period. But, as is well
known, absence of constitutional responsibility does not exclude the pos-
sibility of responsibility on other legal grounds, including voluntary
assumption or proven liability. At all events, no claim to the rehabilitation
of worked-out phosphate lands was in fact put forward by Nauru against
Australia at the time of independence.

28. If, merely for the sake of argument, there did exist, at the time of
independence, a claim of Nauru (as an independent State) against Aus-
tralia, for the rehabilitation of the worked-out phosphate lands, then,
according to the record, it was asserted at the very earliest during the talks
which Nauru held with Australia in 1983. One cannot conceive that the
claim which Nauru presented in its Application of 1989 or, even earlier, in
its negotiations with Australia in 1983, could have been based on elements
other than those which Nauru might have wished to have taken over in
1968. The fact that Nauru kept silent for more than 15 years on the subject
of the alleged claim makes it inappropriate for the Court to entertain it
and, if only on grounds of judicial propriety, the Court should therefore
find that the Application is inadmissible.

29. In addition, the fact is that Nauru has been fully responsible for the
mining of phosphate since its independence yet has not taken any steps
towards the rehabilitation of the lands it has itself worked. To my mind,
equity requires the conclusion that Nauru, by this conduct, combined with
lack of due diligence, has disqualified itself from pursuing any allegation
of Australian responsibility for the rehabilitation of lands which Australia
worked during the Trusteeship period. For Nauru to bring a claim now
can only lead one to doubt its good faith.

*

30. By saying that the Application of Nauru in the present case should
be rejected as inadmissible, I am not denying the importance of the preser-

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325 PHOSPHATE LANDS IN NAURU (DISS. OP. ODA)

vation of an environment from any damage that may be caused by the
development or exploitation of resources, particularly in the developing
regions of the world. In the light of the natural and social situation in
which Nauru as a relatively new independent State is placed, and the
particular relations between Australia and Nauru since the time of the
League of Nations, I personally am second to none in hoping that some
measures may well be considered by Australia for promoting the rehabili-
tation of the worked-out lands in parallel with the effort to be made by the
State of Nauru itself in that direction.

(Signed) Shigeru Opa.

89


                        DÉCLARATION DE M. LE JUGE AD HOC CALLINAN

[Traduction]

      1. Bien qu’ayant voté en faveur de la présente ordonnance, je tiens à faire quelques
observations en mon nom propre.

       2. L’Australie a déclaré que, selon elle, toute nouvelle ordonnance de la Cour devait mettre
fin à l’instance introduite par le Timor-Leste dans son intégralité. Je suis cependant d’avis que la
Cour ne dispose pas d’assez d’éléments et ne s’est pas vu présenter des conclusions suffisamment
détaillées pour se prononcer en toute connaissance de cause sur ce point.

     3. Si tel est le cas, c’est notamment parce que les (éventuelles) demandes pendantes du
Timor-Leste doivent, pour que la Cour puisse les examiner, être développées et précisées.

       4. Compte dûment tenu de l’opportunité de ce que tout différend porté devant un organe
judiciaire fasse l’objet d’un règlement rapide et efficace, je demeure favorable à ce que les deux
Parties accomplissent l’ensemble des actes nécessaires  comme indiqué au paragraphe 3
ci-dessus, le cas échéant, ou de toute autre manière  pour qu’il puisse être mis fin à l’instance.

       5. Je tiens néanmoins à souligner que la présente déclaration ne saurait d’aucune manière
faire obstacle à un règlement du différend par les Parties elles-mêmes, sans qu’il soit de nouveau
recouru à la Cour.

                                                          (Signé) Ian CALLINAN.

                                           ___________