meeting of the Comité Maritime International proved that the proposed resolution was thought to aim at something more than the obtaining of an "advisory opinion," which is binding on nobody and is a guidance only to those who ask for it.

The "advisory opinion " of the Covenant recalls the provision in Section 4 of the statute constituting the Judicial Committee of the Privy Council,1 viz. :

"that it shall be lawful for His Majesty to refer to such judicial committee for hearing or consideration any such other matters whatsoever as His Majesty shall think fit, and such Committee shall thereupon hear or consider the same, and shall advise His Majesty thereon in manner aforesaid.”

It is left to the Crown to follow such advice or not, as it sees fit. Only, if the Crown follows the advice tendered, it grants the authority and the sanction of the executive to the finding of the Judicial Committee. The advice made effective by an Order in Council is enforceable in His Majesty's Dominions. Such sanction the League of Nations cannot give to any advice tendered by the Permanent Court. The advice, even if followed, remains merely a guidance to the League for its own conduct, and whatever the League does in consequence of the advice given, is an act for which the League is solely responsible.

The fundamental difference between the Judicial Committee of the Privy Council and the Permanent Court of International Justice is that the Judicial Committee is part of the jurisdiction exercised by the Crown in consequence of its prerogative, whereby the Crown retains jurisdiction on appeal from the highest civil or criminal courts in any colony. Such authority is lacking in the case of the Hague Court. The sanction of its decisions is derived from the submissions made by the States who invoke its jurisdiction and not from the League of Nations which created it, but which does not exercise a prerogative of sovereignty, a prerogative foreign to all international conventions.

The League of Nations cannot compel the acceptance by States of any advice tendered by the Permanent Court, and solutions of differences of opinion on points of international law cannot be obtained in that manner. Other means must be found in order to attain international uniformity. The Permanent Court exists for the assistance of all States or members of the League of Nations. It is considered the true interpreter of the

1 3 and 4 Will. IV. Ch 41.

laws regulating international relations. To it should be submitted the final interpretation of international agreements and conventions, not through the intermediary of the League of Nations, but direct by the States concerned. A submission ex parte of questions for an advisory opinion cannot achieve this object. The construction given by the Permanent Court should be accepted as the proper interpretation of a convention and be adopted by all parties to the convention. Only in that way would such submissions form part of, and assist in, the building up of an international jurisprudence which again is the supplement, if not the real foundation, of international law.

The submission to the Permanent Court may be made by any States who are entitled to appear before it. Such submission may, of course, be made by mutual consent whenever a controversy-friendly or unfriendly-arises. There is, however, one way in which it might become more effective. A special provision should be laid down in the international convention itself to the effect that the construction and interpretation of its provisions shall be left in the final resort to the Permanent Court of International Justice.

THE MANDATE OVER NAURU ISLAND

By A. H. CHARTERIS, LL.B.,

Challis Professor of International Law in the University of Sydney.

I. INTRODUCTORY.

NAURU ISLAND,1 originally named Pleasant Island by its discoverer, Captain Fearn of the British ship Hunter in 1798, is a small coral island in the Pacific Ocean of some eight square miles or 5000 acres in extent, lying about twenty-six miles south of the equator in long. 165° 55′ east. With its nearest neighbour to the eastward, Ocean Island (a British possession) in the Gilbert and Ellice Islands Group, it contains the richest deposit of phosphate rock in the Pacific, the output averaging from 85 per cent. to 88 per cent. tribasic phosphate of lime. In Nauru the deposits, which are estimated at 112,000,000 tons, are found in a central, somewhat elevated and all but unpopulated plateau, the natives, with the exception of a single small settlement, inhabiting a narrow, fertile strip lying between the surrounding reef and the escarpment. Winning the phosphate does not interfere with native food supplies, as food trees are uncommon on the central plateau. The climate is healthy, malaria being unknown. Throughout the year the temperature varies only from eightyfive to ninety degrees Fahrenheit, with considerable humidity. The natives, 1084 in number, are of fine physique, intelligent and bright, and friendly in manner. In addition to "pidgin English" they speak a language of their own and form one of the smallest communities in the world for which a separate translation of the Bible has been made. They are organised in twelve districts, each under the command of a native chief. Apart from its mineral deposits Nauru is of no importance, economic or strategic.

In 1888 the island was annexed by Germany as one of the Marshall Islands, and the name was changed from Pleasant to

1 Nauru and Ocean Island, by Harold B. Pope: Federal Parliamentary Paper, 1920-1, No. 148, F. 16251.

Nauru. It was not till 1901, however, that a specimen of the native rock brought from the island in 1897 and used in the Sydney office of the Pacific Islands Company as a doorstop, was identified by Mr. Albert F. Ellis, an employee of the company, as phosphate rock. Similar deposits were then discovered on Ocean Island, and it was on that island that operations were first commenced on its formal annexation by Great Britain in 1901. In 1905 a concession was granted by the German Government to a German company known as the Jaluitgesellschaft to exploit exclusively all guano and phosphate deposits in the Marshall Islands Protectorate. This concession was to continue for ninetyfour years as from April 1, 1906, but on January 22, 1906, the German exploitation rights over Nauru were acquired by the British company, with the consent of the German Government. In consideration of this the British company surrendered to the German company certain cocoanut plantations and trading stations in the Marshall and Caroline Islands, transferred to it a large block of shares and agreed to pay a royalty per ton of phosphate exported.

At the outbreak of war the British company, which had been reconstructed as the Pacific Phosphate Company, and had erected considerable plant on both Nauru and Ocean Islands, including steel cantilever jetties projecting beyond the reef, was producing from the former island some 212,000 tons per annum, of which a considerable quantity went to Germany in subsidised German steamers, and a still larger quantity to Australia. The monopoly continued to be held by the Pacific Phosphate Company until June 25, 1920, when it was purchased, as mentioned below, by the Governments of the United Kingdom, Australia and New Zealand.

Nauru Island was surrendered to H.M.A.S. Melbourne on September 9, 1914, and was occupied on November 9, 1914, by Australian forces dispatched from Rabaul in German New Guinea. Until the termination of the military occupation, on the formal approval of the mandate by the Council of the League of Nations on December 17, 1920, the island was administered by Mr. G. B. Smith-Rewse, appointed by the British Phosphate Commission, which will be referred to later, and the general supervision over the Administrator was in the hands of the Colonial Office.

At the Peace Conference of Paris the claims of Japan,

Australia, New Zealand and South Africa for permission to annex the ex-German territories which they held under military occupation were vigorously urged. Mr. W. M. Hughes' claim to Nauru on behalf of Australia was met by a claim from New Zealand for a share in the administration on the ground of proximity. As part of a general compromise it was agreed by the principal Allied and Associated Powers that the four territories held by the three Dominion forces (German New Guinea and Nauru, German South-West Africa and Western Samoa) should be placed under mandates of the "C" type, "to be administered under the laws of the Mandatory as an integral portion of its territory subject to the safeguards . . . in the interests of the indigenous population." By resolution of the British Empire Delegation, adopted in Paris in 1919, His Britannic Majesty was constituted the mandatory of Nauru Island.

As is well known, Article 22 of the Covenant does not impose on mandatories of the "C" type the obligation "to secure equal opportunities for trade and commerce of all other members of the League of Nations," which is imposed on mandatories of the "B" type. Lord Milner explained in the House of Lords 1 that Article 22 was deliberately drafted so as to exclude this obligation. This, it is understood, was done at the instance of Mr. Hughes, who, on behalf of Australia, represented that the White Australia Policy would be endangered if a large influx of Asiatics were permitted in the mandated territory of ex-German New Guinea lying only some seventy miles distant from the nearest point in the Commonwealth.

The mandates for the "C" territories as drafted by the selected mandatory Power were identical in form and were settled by the Council of the League of Nations on December 17, 1920,2 as being in conformity with Article 22 of the Covenant. For each territory the mandatory is "His Britannic Majesty," but, except in the case of Nauru, the mandate specifies the agency through which the mandate shall be exercised. Thus the mandate for German New Guinea is conferred on "His Britannic Majesty to be exercised on his behalf by the Government of the Commonwealth of Australia." For Nauru, however, the mandate is conferred on "His Britannic Majesty (hereinafter called the

K

3

1 Parl. Debates, H. of L., July 29, 1920, Vol. 41, p. 639.

2 League of Nations Official Journal, Vol. I. p. 84.

3 Ibid., p. 85.