나우루 인산염 사건의 분석

• 영문명: An Analysis of Preliminary Objection Judgement in the Case Concerning Phosphate Lands in Nauru
• 발행기관: 국제법평론회
• 저자명: 서철원(Suh, Chul Won)
• 간행물 정보: 『국제법평론』제35호, 153~175쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2012.04.30

영문 초록

The Essence of Nauru's Claim in this case is that Australia is obliged to rehabilitate lands from shich it extracted phosphate before Nauru' independence in 1968 due to its breach of obligations under trustship agreement and other general international law. Against Nauru' claim, Australia raised seven preliminary objections: 1) objection based on reservation in the its declaration of acceptance of compulsory jurisdiction excluding "any dispute with regard to which the Parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement; 2) objection of the alleged waiver of claims based on the absence of explicit clause on the rehabilitation in the Agreement on transfer of phosphate industry to the Nauruan people; 3) objection of discharge of all claims arising out of administration of trustship without explicit reservation to the contrary; 4) objection of undue delay(passage of time with regard to the official presentation of the claim); 5) objection of abuse of the process based on alleged inconsistency and lack of good faith an abuse; 6) objection based on the absence of necessary parties(U.K. and New Zealand as member of joint Authority of Trustship over Nauru); and 7) objection of new claims in the written submission which has not been submitted in the Application. Among the 7 objections, only the 7th objection was admitted. After the preliminary judgement, the case was discontinued due to the settlement on September 9, 1993. The case left something disappointed in two aspect. The first is that the case was discontinued before reaching merits judgement. Otherwise, it might have provided a good opportunity to deal with a set of issues which have immense significance to international lawyers, such as self-determination, permanent sovereignty over natural resource, responsibility for environmental damage and exploitation of territory under trustship. The second to be disappointed is that the judgement disposed of most objections by heavily relying on the facts with little analysis legal principle. The exception to the general lack of legal analysis of this case is the 6th and the 7th objection. As to the 7th objection, the judgement stipulated the standard for the admission of additional claim: it must have been implicit in the application or must arise "directly out of the question which is the subject-matter of that Application. As to the 6th objection, the judgement re-affirmed and clarified the Monetary Gold rule. It provided that the Court cannot decline to exercise its jurisdiction, for the reason the a finding in the present case might well have implications for the legal situation of the non party to present case if no finding in respect of that legal situation will be indispensable as a basis for the Court's decision. It should be mentioned that three dissenting opinions are appended to the judgement. The essence of the dissenting opinion is that the Court shall decline to exercise jurisdiction when its finding is the de facto finding against absent third party. The findings on the last 2 objection endowed this case with value and significance to remember.

목차

Ⅰ. 서 론

Ⅱ. 사건의 경과

Ⅲ. 영국과 뉴질랜드의 불참을 근거로 한 본안전 항변

Ⅳ. 기타 본안전 항변

Ⅴ. 맺음말

키워드

monetary gold rule additional claim in written submission waiver reservation in acceptance of compulsory jurisdiction trustship