Document Type

Article

Disciplines

International Law

Abstract

In May of 1989, the Republic of Nauru, an island nation in the Pacific measuring 8.25 square miles,' filed suit against the Commonwealth of Australia in the International Court of Justice.2 The fundamental legal framework for the Nauruan claim is the 1947 Agreement between Australia, New Zealand and Great Britain, which rendered Nauru a United Nations Trust Territory principally administered by Australia. The factual focus of the pending litigation, however, is an issue which has characterized the relationship between the tiny island and Australia since the early twentieth century; the use, alleged misuse and rehabilitation (or lack thereof) of "certain phosphate lands in Nauru."

The lawsuit initiated by Nauru is one of David-and-Goliath-like proportions. The Court, in its decision-making, will not adjudge the relative size and strength of the parties. Rather, the Court will look closely at the international instruments and customary international law which defined Australia's responsibilities and Nauru's existence, first as a League of Nations mandate and later as a United Nations Trust Territory. In the course of deciding whether Australia has in fact violated the trusteeship obligations to which Nauru refers, a fundamental issue for the Court will be the very nature of the trust obligation at international law. What was the character of the "sacred trust" in which Australia supervised the social, political and economic existence of Nauru until its independence in 1968? In examining the nature of the trusteeship in general, can one test its potency to determine when or how such a trust is violated? What are the consequences of such a breach?

This comment will focus on the search for the very essence of the trusteeship "trust" and its character and function in international law. First, an exploration of the United Nations trusteeship system and its development will provide the necessary backdrop for examining the relationship between Nauru and Australia. Second, the details of the 1947 Trusteeship Agreement for Nauru between the United Kingdom, New Zealand and Australia are introduced. Third, the shape of the anticipated dispute is outlined through an examination of Nauru's Application before the Court and relevant Trusteeship Council documents.

The critical issue of what exactly is this "trust" in the international context becomes apparent upon consideration of its legal and historical background, the specific terms of the Agreements at issue, and the general nature of this dispute. The structure of the analysis will be consistent with the primary elements of Nauru's petition: treaty and custom. The Vienna Convention on the Law of Treaties provides a pertinent starting point for the interpretation of international agreements. The scope of the Convention, however, precludes its application to the Nauru agreement, which arises between a sovereign state and an international organization. The Court will therefore look to principles of customary international law in its interpretation of the trust at international law. An examination of the institution of the trust at customary international law reveals the foundations of its structure and purpose. General principles of international law, in particular the general principle of the trust, will fill the gaps remaining in the customary international law analysis and furnish a determinative standard of fiduciary responsibility. The comment concludes that the very highest standard of integrity and obligation characteristic of a fiduciary relationship is inherent in the general principle of the trust in international law. Such is the standard with which the Court should assess Australia's fulfillment of the legal obligations it assumed in the international trusteeship instrument.

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