CYIL vol. 14 (2023)

MILAN LIPOVSKÝ

CYIL 14 (2023)

Certain Phosphates Case The next significant case that the ICJ dealt with the Monetary Gold principle in was the case commenced by Nauru against Australia and finalized once again by a judgment on preliminary objection. 20 It concerned rehabilitation of land in Nauru, an island state located in the Pacific Ocean that was governed by three states (Australia, New Zealand, and the UK) under the Trusteeship system 21 till its termination. As determined by the UNGA Resolution 2347 (XXII), the Trusteeship agreement was terminated with effects from 31 January 1968 and Nauru gained independence. Nonetheless, during the trusteeship, as well as after gaining independence, the island suffered from the effects of the phosphate mining industry. Independently upon other five objections, the ICJ decided upon an objection raising the Monetary Gold principle. In this objection, Australia basically stated that “ the claims [of Nauru] are inadmissible and the Court lacks jurisdiction as any judgment on the question of breach of the Trusteeship Agreement would involve the responsibility of third States that have not consented to the Court’s jurisdiction in the present case .” 22 The ICJ however refused this approach. It distinguished the situation from the Monetary Gold case where, it claimed, the determination of Albania’s responsibility was a prerequisite for a decision to be taken on Italy’s claims [while here] a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia . 23 Indeed, the Court was right that there was a difference. In the previous case, the finding of legal interests (in fact implicitly of responsibility) of the third state would be necessary and would timewise precede the finding of responsibility between the parties to the case, i.e., it would be a precondition from a time point of view for the decision on the merits of the raised claim. In this case ( Certain Phosphates ) affecting the legal interest of third states (in fact hinting upon their responsibility under international law) might very well be the necessary implication of the decision on the merits; but it would not precede it! Thus, the consideration might rather be another (though implicit) consequence of the judgment sought between the parties to the dispute. That is what the judges saw as a distinguishing factor and why the legal interests of the third state (states in this case) were not forming the subject-matter of the original claim as such in their opinion but were “only” to be affected by it. For its applicability, the Monetary Gold principle however requires both the legal interests of the third state to be affected and also to be forming the very subject-matter of the claim raised. Additionally, the effects upon third state(s) are in fact a consequence, rather than precondition, of the 21 For explanation of the Trusteeship system, non-self-governing territories (as in the case of East Timor dealt with below) and international territorial administration by international organisations, see for example FAIX, M., [International Territorial Administration by International Organizations] (in Slovak language), in ŠTURMA, P. (ed.) Mezinárodní právo a státní území [International Law and Territory of State], Praha: Univerzita Karlova, 2015, 1.1. 22 ICJ, Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment (26 June 1992), ICJ Reports 1992, para. 39, see also para. 49. 23 Ibid , para. 55. 20 ICJ, Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment (26 June 1992), ICJ Reports 1992.

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