International Court of Justice Certain Phosphate Lands in Nauru (Nauru V Australia) Memorial of the Republic of Nauru Volume 1 April 1990 ERRATUM
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International Court of Justice Certain Phosphate Lands in Nauru (Nauru v Australia) Memorial of the Republic of Nauru Volume 1 April 1990 ERRATUM Memorial Volume 1, Page 241, Line 1, delete the word, 'Nauni', and substitute, 'British' International Court of Justice Certain Phosphate Lands in Nauru (Nauru v Australia) Mernorial of the Republic of Nauru Volume 1 April1990 Table of Contents Notes on Sources and Legislation viii Introduction 1 PART 1 AN HISTORICAL ACCOUNT OF NAURU'S RELATIONS WTH EXTERNAL POWERS CHAPTER 1 FROM COLONIZATION TO THE COMMENCEMENT OF THE MANDATE 5 Section 1. Introduction Section 2. The German Period A. Nauni Placed within the Marshall Islands Protectorate B. Land and the German Administration C. Jaluit Gesellschaft and the Pacific Phosphate Company D. German Mining Laws E. Nauru during World War 1 CHAPTER 2 THE LEAGUE OF NATIONS MANDATE Section 1. Mandate Negotiations Section 2. The Nauru Island Agreement of 1919 and the Establishment of the British Phosphate Comrnissioners Section 3. The Administration of Nauru and the Nauni Island Agreement A. The Administration of Nauru B. The Position of the British Phosphate Comrnissioners C. The Concerns of the United States and Australia's Response: The Bailey Opinion D. The Permanent Mandates Commission CHAPTER 3 THE LANDS ORDINANCES Section 1. Land Rights and Mining Rights under the 1919 Agreement (ii) Section 2. The Lands Ordinance 1921 (Nau) Section 3. The Lands Ordinance 1927 (Nau) Section 4. Impact of the Lands Ordinances CHAPTER 4 FROM THE SECOND WORLD WAR UNTIL INDEPENDENCE Section 1. The Japanese Occupation Section 2. The Transition to Trusteeship Section 3. The United Nations Visiting Missions Section 4. The System of Public Finance under Trusteeship Section S. Control of the Phosphate Industry Section 6. Political Developments Section 7. .The Resettlement Issue Section 8. Independence and Rehabilitation A. The Rehabilitation Issue B. The Davey Comrnittee C. The General Assembly's Views on the Rehabilitation Issue D. Pre-Independence Discussions of the Rehabilitation Issue PART II THE SOCIAL AND ECONOMIC GEOGRAPHY OF NAURU Section 1. Geomorphology and Climate Section 2. Phosphate Mining Section 3. Social Effects of Phosphate Mining Section 4. Population Growth Section S. Nauruan Identity Section 6. The Economy PART III THE BASES OF RESPONSIBILITY CHAPTER 1 THE BREACHES OF INTERNATIONAL LAW FOR WkIlCH AUSTRALIA IS RESPONSlBLE Section 1. Introduction: the Purpose of this Put Section 2. Certain Reservations CHAPTER 2 BRElACHES OF THE TRUSTEESHIP AGREEMENT AND OF ARTiCLE 76 OF THE UNITED NATIONS CHARTER Section 1. Conlent of the Relevant Obligations Section 2. The Legal Nature of the Obligations Section 3. The :Paniculars of the Breaches of the Trusteeship Agreement and of Article 76 of the United Nations Charter A. The Statiis Quo Since 1919 B. The Inheritance of this Status Quo in 1947 C. The Attitudes of the Australian Government in the Trusteestup Period D. The Performance of the Trusteeship Council E. The Character of the Status Quo Inherited in 1947 Inhibited Performance of the Relevant Obligations F. The Specific Breaches of the Obligations of Trusteeship 1. The physical destruction of a major part of the :Island of Nauru as a unit of self- determination accompanied by a failure to discharge the responsibility for rehabilitation 2. The failure to report fully and fairly on the finailcial aspects of the production and disposal of the phosphate deposits G. The System of the Agreement of 1919 1. The Australian Interpretation of the 1919 Agreement 2. The Motivation of the Australian Govrrnment 3. Ausiralian Reporting Practice in the period of the League of Nations 4. Australian Reporting Practice in the period of the United Nations H. The Failuie to Exercise the Governmental Authority Appropriate to the Obligations of Trusteeship 1. The Failure to promote the Political Advancement of the Inliabitants and their Progressive Development towards Self-government or Independence J. The Failure to promote the Economic, Social, Educational and Cultural Advancernent of the Inhabitants K. The Failure to Respect the Land Rights of the Indigenous Inhabitants CHAPTER 3 BREACH OF INTERNATIONAL STANDARDS APPLICABLE IN THE ADMINISTRATION OF THE TRUSTEESHIP Section 1. Introduction Section 2. Breach of the Pnnciple of Self-Determination Section 3. Breach of the Pnnciple of Permanent Sovereignty and Natural Wealth and Resources Section 4. The Status of the Relevant Principles as Jus Cogens Section 5. The Interpretation of the United Nations Charter and the Trusteeship Agreement: An Alternative Approach CHAPTER 4 DENIAL OF JUSTICE LAT0 SENSU CHAPTER 5 ABUSE OF RIGHTS AND AmOF MALADMINISTRATION CHAPTER 6 BREACH OF THE DUTIES OF A PREDECESSOR STATE Section 1. A General Principle of Responsibility Section 2. Application of the Principle in the Present Case Section 3. Conclusion CHAPTER 7 THE UNLAWFUL DISPOSAL OF THE OVERSEAS ASSETS OF THE BRITISH PHOSPHATE COMMISSIONERS Section 1. Background: The Disposal of Assets in 1987 Section 2. The Nauruan Response Section 3. The Nauruan Claims CHAPTER 8 THE FORMS OF LOSS CAUSED TO NAURU Section 1. Introduction Section 2. The Various Foras of Loss A. The Costs of Rehabilitation of the Worked-Out Phosphate Lands B. Economic loss caused by the Failure of the Respondent State to rnzike an Equitable Return in Relation to the process of extracting phosphate C. Loss of Laiid Use D. Reparation in Respect of the Payment for B.P.C. Assets Purchased with Naunian Funds Section 3. Conclusion CHAPTER 1 INTRClDUCTïON CHAPTER 2 THE REGIME OF THE NAURU ISLAND AGREEMENTS 1919 AND 1923 CHAPTER 3 THE RELATIONSHIP BETWEEN THE AUSTRALIAN ADMINISTRATION AND THE BRITISH PHOSPHATE COMMISSIONERS Section 1. 1ntrodui:tion Section 2. The Naiiru Act 1965 (Cth) Section 3. Actual Itelations between Australia and the British Phosphate Commissioners A. Disputes ovr:r the Lands Ordinances B. Conclusion CWR4 THE BliITiSH PHOSPHATE COMMISSIONERS' ACCOCNTS AND AUSTRALlAN RETICENCE: INFERElNCES TO BE DRAWN Section 1. The Australian Position on Financial Reporting Section 2. Criticisrrs of the Australian Position Section 3. The Acci~untingSystem for Nauni Section 4. Significai-iceof the Failure to Report CHAPTER 5 PROPOSALS FOR RESE'iTLEMENT AND REHABILITATION: IMPLICATIONS OF THE AUSTRALIAN APPROACH Section 1. Introduction Section 2. Resettlement Proposals Section 3. Rehabilitation Proposals CHAPTER 6 THE SIGNIFICANCE OF THE TRANSACTIONS SURROUNDING INDEPENDENCE Section 1. The Respondent's Position Section 2. Nauruan Insistence on the Rehabilitation Claim in the Negotiations Leading to Independence Section 3. The Rehabilitation Issue before the United Nations, 1967 Section 4. Affirmation of the Claim after Independence Section 5. Conclusion PART V THE REMEDIAL POSITION Section 1. The Relief Requested Section 2. Basis of Australian Responsibility A. Presumption of Several or Concurrent Responsibility B. Application of the Presumption in the Present Case C. The Specific Role of Australia in the Administration of Nauru and in Negotiating the Terrns of Nauruan Independence D. Non-Existence of Procedural Obstacles in the Present Case Section 3. Liberty of Nauru as to Choice of Remedies Conclusion Affirmation Confirmation Documents Reservation Submissions Appendices 25 1 1. "Statement by Hammer DeRoburt, O.B.E., G.C.M.G., M.P., 252 Head Chief, Nauru Local Government Councii" 2. "Estimates of the F.O.B. Cost of Nauru Phosphate, the Commercial Price for Nauru Phosphate and the Loss of Earnings from the Underpricing of Nauru Phosphate" by Mc. K.E. Walker 259 3. "AComparative Survey of the Law of Trust and Trust-like Institutions" by Professor A.M. Honoré, Q.C., F.B.A. 353 List of Annexes 379 NOTE ON SOURCES The foiiowing works are cited frequently in thi Memorial, and copies of them have been lodged with the Registrar OC the Court for convenient reference: B. Macdonald, In Pumiif of fhe Sacred Tnisf,New Zealand Institute of International Affairs, Occasional Paper No. 3,1988 Republic of Nauru, Commission of Inquiry lnto the Rehab'itation of Worked-Out Phosphate Lands of Nauru, Repm, 10 vols., 1988 M. Wiams & B. Macdonald, The Phosphateers, Melbourne University Press, Carlton, 1985 N. Viviani, Nauru. Phosphate and Political Progress, Australian National University Press, Canberra, 1970 NOTE ON LEGISLATION In this Memorial the abbreviations "(Cth)" and "(Nau)" are used for legislation applying to Nauru. The fust refers to legislation of the Parliament of the Commonwealth of Australia enacted for Nauru under the territories power in the Australian Constitution (section 122): e.g., Nauru Act 1965 (Cth). The second refers to ordimances made by the Australian Administrator and applying to Nauru: e.g. Lands Ordiiance 1921 (Nau). Laws made by the Parliament of Nauru after independence are cited in the foiiowing form: Customs and Adopted Laws Act 1971 (Nauru). INTRODUCTION 1. In a Note dated 20 May 1989 (Annexes, vol. 4, Annex 80) addressed to the Australian Government, the Government of Nauru reported that it had lodged an Application with the International Court of Justice in pursuit of its claim for rehabilitation of the phosphate lands in Nauru mined out before the independence of Nauru. In this Note the Applicant State stated that it wished to record "that it has taken this step reluctantly and only after repeated efforts and requests, dating back to Nauru's independence in 1968, aimed at achieving a diplomatic settlement of the claim". 2. The relevant correspondence appears in Annexes, vol. 4, Annex 80 of the present Memorial. 3. The Australian Note dated 31 May 1989 in response to the Nauruan Note dated 20 May 1989 included the following assertions: 'The Australian Government recalls that the report of the Commission of Inquiry into the question of Rehabilitation is a complex and lengthy document which was not received in Australia until February 1989. The report raises many difficult issues of fact and law which require consideration by Ministers and Departments of the Australian Government. Proper consideration of the report in the view of the Australian Government requires longer than the period that has elapsed.