Australia is pressing ahead with its defence of a claim by Nauru for between $70 million and $90 million to rehabilitate the Pacific island after phosphate mining.
This is despite last month’s comprehensive rejection of Australia’s position in the International Court of Justice that the court had no jurisdiction to hear the case.
It is easy to jump to the conclusion that Australia was the wicked colonial power that ripped off the innocent native people of Nauru, wrecked their island, destroyed their Pacific way of life and then left. But there are two sides to the story, as the court no doubt will hear.
The court rejected all six major grounds Australia put up to say the case should not go ahead. Most of the rejections were 12 judges to one.
It gave Australia nine months to file written submissions on the merits of the case. After some interchange of written submissions is likely before a full hearing in The Hague at the end of next year at the earliest.
Nauru originally filed the case in May, 1989.
Nauru is seeking the money to rehabilitate part of about a three-fifths of the 21 sq km island which was wrecked by superphosphate mining between 1907 and 1968.
The island has a sorry history, not all of which can be visited upon the colonial masters. The Germans annexed the island in 1888. The Germans surrendered to Australian forces in November, 1914. After World War I it was made a League of Nations trust territory to be administered by Australia, Britain and New Zealand, though Australia took most of the running of it. The three set up the British Phosphate Commission which mining the phosphate and sold it to the three nations at well under market rates, paying the Nauruans tiny royalties. Initially 0.5 per cent, rising gradually to 6 per cent by 1968.
The island was occupied by the Japanese from 1942 to 1945 and reverted to a trusteeship under the United Nations after the war, which lasted to 1968 when Nauru became an independent republic with special membership of the Commonwealth of Nations.
Throughout the trusteeship Australia got the lion’s share of the phosphate, more than 60 per cent. Australia’s need was greatest, it was argued. Australia’s soils are phosphate deficient and welcomed the fertiliser created by millions of birds’ droppings over the millennia on the tiny island on the equator.
That Australia took most of the phosphate and was mostly responsible for the administration was probably the reason why Nauru, the world’s smallest republic sued Australia, the world’s largest island nation, and did not join Britain and New Zealand in the action. The was an key element in last month’s decision, more of that later.
The impact of western civilisation on the island has been quite dramatic. The Rio summit was told that 7000 inhabitants were squeezed on to the 5.2 sq km on the coastal plain because the plateau had been wrecked by mining. The forest plateau had been an important food source, but the fruit-bearing tropical trees no longer grew there.
Now there is virtually no cultivation. Other than a few pigs and chickens, all food is imported. The people’s diet has been wrecked. Nauru has one of the highest diabetes rates in the world, at 30 per cent.
It is a sorry case. And even sorrier given that the phosphate is likely to run out in the next three or four years. But does that makes Australia responsible for all or part of the rehabilitation bill?
Australia will be arguing no, and has some cause to at least claim that all the responsibility should not be sheeted home to it.
In 1968 the British Phosphate Commission was wound up and mining operations were transferred to the Nauru Phosphate Commission, which paid some $20 million for the mining equipment left on the island. Australia says it paid $40 million for rehabilitation.
Since 1968 Nauru has successfully mined the phosphate, and earned huge amounts of money. Much of this was invested in overseas property. The precise value of Nauru’s investment is hard to obtain, but estimates vary up to $1 billion, much of it in Australia.
Direct phosphate sales were down to $1.5 million in 1988-89 and are perhaps still at that level. None the less the returns from the investment are large. Nauru has a per capita income of about $25,000, one of the highest in the world and the Government spends large amounts per capita on health and education. It had a total budget of $60 million in 1988-89 for 7000 people (more than $8000 per head). However, now it is crying poor. Nauru’s President, Bernard Dowiyogo, says winning the claim against Australia is vital for the island.
How can this be so unless Nauru is at least partly responsible for squandering its own legacy? Since the creation of the British Phosphate Commission in 1920, Australia, Britain and New Zealand mined for 48 years. Nauru has been mining for 24 years, half as long as the colonial powers.
There have been allegations of mismanagement, profligacy and imprudence in spending the money built up from mining since 1968 and for royalties paid during the trusteeship. These, however, are unlikely to get much airing in the World Court.
The eyes of the world will rather be shown a rich, industrial, geographically large Australia denying its moral responsibility to repair the brutal damages of colonialism done to a tiny defenceless nation.
At the World Court Nauru will have the advantage of arguing in an international and United Nations environment that visits upon colonialism the wrongs of virtually the whole third world, while denying that any third world woes were caused in the two decades since most colonies obtained independence.
Meanwhile the people of Nauru have a higher per capita income than Australia and, at least in 1988-89 when the latest available figures came out, more money spent per capita on their health and education.
Australia argued in the preliminary hearing that the World Court had no jurisdiction to hear the case. It lost that comprehensively. One of Australia’s arguments was that the court could not decide the issue without New Zealand and Britain being parties, because their rights were at stake. One of the judges, Sir Robert Jennings, found for
Britain and New Zealand are sitting on the sidelines, but taking an active interest. Presumably, they will feel morally bound to contribute if the World Court finds against Australia.
The court rejected, however, Nauru’s claim to overseas assets of the British Phosphate Commissioners.
The Australian side was run largely by the Attorney-General’s Department’s international law division with help from international counsel from Uruguay, France and Britain. The case was presented in the main by the Solicitor-General, Dr Gavan Griffith.
The Australian side, aside from the disappointment of losing, is also disappointed at the shortness of reasoning in the court’s judgment. Many of the grounds were dismissed in a paragraph.
Australia got most support in the objection that Britain and New Zealand were not joined. Four of the 13 judges thought that Britain’s and New Zealand’s rights could be unfairly affected if the case went ahead.
Australia’s jurisdictional challenge was a difficult one. The court works on the basis that it will only adjudicate if countries submit voluntarily to its jurisdiction. That does not mean a country can chose not to submit to its jurisdiction in any particular case as it sees fit. Rather it means each nation agrees to submit to the jurisdiction and lists exceptions. Britain, for example, will not submit to the jurisdiction if the dispute involves a Commonwealth country (Nauru is a special member, so this would be an issue). Australia, in its declaration of submission to the World Court in 1975 said it did not submit to the jurisdiction if the nations have agreed to some other form of peaceful settlement.
It is up to the court to decide whether the reservations expressed at the time of declaring submission to the court are enough to exclude the court from hearing the case.
Australia must now accept that the court does have jurisdiction and will have to abide by the outcome. Unless it can come to a settlement with Nauru before the case comes to hearing. Australia thinks it has already paid; Nauru feels exploited and has great pressure on its budget.
As in all legal disputes, costs are significant. Including departmental time, Australia has spent perhaps as much as $1 million on the case and might spend as much as that again if the case goes to full hearing.
One of the delicious ironies of the case is that in domestic law, Australia’s High Court acts as the supreme court of appeal from Nauruan courts, applying Nauruan law. That is so because Nauru’s tiny population, despite its greater monetary wealth, does not have the legal expertise or infrastructure to maintain an appeal court.
One such case (a murder appeal) came before the High Court last year, shortly after the hearing in the World Court.
Perhaps that legal link and Nauru’s investments in Australia will ensure the nations maintain friendship whatever the outcome in The Hague.