Documents on East Timor from PeaceNet and Connected Computer Networks Volume 38(ICJ): World Court Decides Timor Gap Case June, 1995
Published by: East Timor Action Network / U.S. P.O. Box 1182, White Plains, NY 10602 USA Tel: 914-428-7299 Fax: 914-428-7383 E-mail [email protected] These documents are produced approximately every two months and mailed to subscribers. For additional or back copies, send US$30 per volume; add $5 for international air mail. Discount rates: $15 for educational and non-profit institutions; $8 for U.S. activists; $11 international. Subscription rates: $180 ($90 educational, $48 activist) for the next six issues. Add $30 ($18 activist) for international air mail. Further subsidies are available for groups in Third World countries working on East Timor. Checks should be made out to “ETAN.” Reprinting and distribution without permission is welcomed. Much of this information is supplied by TAPOL and BCET (London), CDPM (Lisbon), CNRM, and other activists and solidarity groups, but they are not responsible for editorial comment or selection.
TABLE OF CONTENTS
PRESS REPORTS ...... 2 ICJ PRESS RELEASE ...... 2 BBC’S FIRST REPORT...... 3 AUSTRALIA WINS WORLD COURT RULING IN TIMOR OIL ROW ...... 3 INDONESIA, AUSTRALIA WELCOME TIMOR COURT RULING ...... 3 ICJ RULING NO VINDICATION OF AUSTRALIAN POSITION...... 3 EXPLOITING THE DECISION ...... 4 A SEMI-DEFEAT ...... 5
COMMENTS FROM PARTIES ...... 5 PORTUGUESE RESPONSE TO ICJ RULING ON TIMOR GAP...... 5 EVANS: EAST TIMOR CALLED INDONESIA’S ‘RUNNING SORE’ ...... 5 TECHNICAL K.O. – DURÃO BARROSO’S CHALLENGE ...... 6 PORTUGAL’S TAKE ON WORLD COURT NON-DECISION ...... 6
COMMENTS FROM ADVOCATES ...... 6 JOSÉ RAMOS-HORTA ON ICJ’S RULING...... 6 BCET: AUSTRALIA’S “VICTORY” PURELY PROCEDURAL ...... 7 TAPOL: JAKARTA DOES NOT DARE TO FACE WORLD COURT JURISDICTION...... 7 ETAN/US: WORLD COURT AVOIDS SUBSTANCE, DENIES EAST TIMOR ITS DAY IN COURT ...... 8 ACET SOLIDARITY ON ICJ NON-DECISION ...... 8 A DIFFERENT VIEW...... 9
COMMENT FROM EXPERTS...... 10 IAIN SCOBBIE: A VERY POSITIVE RULING ...... 10 THE ICJ DECISION - A PYRRHIC VICTORY...... 10
TEXT OF OPINION ...... 11 TEXT OF WORLD COURT DECISION ...... 11
CONCURRING OPINIONS...... 17 SEPARATE OPINION OF JUDGE ODA ...... 17 SEPARATE OPINION OF JUDGE RANJEVA ...... 20 Page 2 East Timor Documents, Volume 38. Timor Gap Case decided.
SEPARATE OPINION OF JUDGE VERESHCHETIN...... 22 SEPARATE OPINION OF JUDGE SHAHABUDDEEN...... 24
TEXT OF DISSENTS...... 27 DISSENTING OPINION OF JUDGE WEERAMANTRY ...... 27 PART A. THE POSITION OF THIRD PARTY STATES...... 29 PART B. THE IUS STANDI OF PORTUGAL...... 38 PART C. THE RIGHTS OF EAST TIMOR ...... 43 PART D. THE OBLIGATIONS OF AUSTRALIA ...... 47 PART E. AUSTRALIA’S OBJECTIONS BASED ON JUDICIAL PROPRIETY...... 51 CONCLUSION...... 52 DISSENTING OPINION OF JUDGE SKUBISZEWSKI...... 53 SECTION I: BASIC FACTS ON EAST TIMOR...... 53 SECTION II: EXISTENCE OF THE DISPUTE...... 56 SECTION III: JURISDICTION, ADMISSIBILITY, PROPRIETY...... 57 SECTION IV: THE TERRITORY OF EAST TIMOR ...... 64 SECTION V: CONCLUSION ...... 69
donesia and that Australia was being sued in evolved from the Charter and United Na- PRESS REPORTS place of Indonesia. tions practice, had an erga omnes (a right It also pointed out that while Australia that can be asserted against any Power) and Portugal had accepted the compulsory character, was irreproachable. The principle ICJ PRESS RELEASE jurisdiction of the Court, Indonesia had not. of self-determination of peoples was one of So, for the Court to rule on Australia’s con- the essential principles of contemporary ICJ/538, 3 July 1995 duct, it would first have to rule on the law- international law, it stated. And for the two fulness of Indonesia’s entry into and con- parties to the dispute, “East Timor remains WORLD COURT DECIDES IT tinuing presence in East Timor, or the valid- a Non-Self-Governing Territory and its CANNOT ADJUDICATE DISPUTE ON ity of the 1989 treaty between Australia and people has the right to self-determination.” EXPLOITATION OF EAST Indonesia. Since the Court did not have Judges who voted in favour of today’s TIMORESE CONTINENTAL SHELF jurisdiction over Indonesia’s conduct, it decision were Bedjaoui, Schwebel, Oda, Vote on Application by Portugal against could not adjudicate on the matter. Jennings, Guillaume, Shahabuddeen, Agui- Australia is 14-2 On the first point, the Court found that lar-Mawdsley, Ranjeva, Herczegh, Shi, THE HAGUE, 30 June (ICJ) – By a vote by virtue of the fact that Portugal had filed a Fleischhauer, Koroma, Vereshchetin, and of 14 to 2, the International Court of Justice legal complaint against Australia and that Stephen. Judge Weeramantry and Judge ad today held that it could not adjudicate upon Australia had responded with a denial, there hoc Skubiszewski voted against and ap- the dispute referred to it by Portugal on was in fact a legal dispute. pended dissenting opinions to the Judgment. Australia’s exploitation of the continental However, the Court supported Austra- Separated opinions were also appended by shelf of the so-called “Timor Gap.” lia’s second point that Australia’s conduct Judges Oda, Shahabuddeen, Ranjeva and Portugal had instituted proceedings could not be ruled upon without first decid- Vereschetin. against Australia in February 1991, stating ing on the lawfulness of Indonesia’s con- in its application to the Court that by con- cluding the 1989 treaty; the very subject ducting certain activities in the area con- matter of the Court’s decision would neces- cerned, Australia had “failed to observe the sarily be a determination whether, consider- obligation to respect the duties and powers ing the circumstances in which Indonesia of Portugal as the administering Power of entered and remained in East Timor, it East Timor and the right of the people of could or could not have acquired the power East Timor to self-determination and the to enter into treaties on behalf of East Timor related rights.” on the resources of its continental shelf. Portugal maintained that, in concluding a Given the fundamental principle in the December 1989 treaty with Indonesia which Court’s Statute that it can only exercise created a “zone of cooperation in an area jurisdiction over a State with its consent, the between the Indonesian province of East Court found that it could not make a deter- Timor and northern Australia” and in taking mination of Indonesia’s rights and the law- measures to apply it, Australia had violated fulness of its conduct in the absence of that the rights of Portugal and the East State’s consent. The Court concluded that it Timorese. could not rule on Portugal’s claims on the Australia objected that there was in real- merits, “whatever the importance of the ity no dispute between itself and Portugal, questions raised by those claims and of the and that the case presented by Portugal was rules of international law which they bring artificially limited to the question of the into play.” lawfulness of Australia’s conduct. The true In its Judgment, the Court observed respondent, Australia maintained, was In- however, that Portugal’s assertion that the right of people’s to self-determination, as it East Timor Documents, Volume 38. Timor Gap Case decided. Page 3
BBC’S FIRST REPORT Unlike Portugal and Australia, Indonesia Portugal over offshore oil exploration in the has not accepted the court’s jurisdiction and Timor Gap. BBC, June 30, Peter Miles, Lisbon: played no direct role in the case. “We are very happy to hear that and, of In its ruling, the ICJ has broadly fol- Australia’s ambassador to the Nether- course, we rejoice,” a senior foreign minis- lowed Australia’s line of argument, Austra- lands Michael Tate said the judgment was a try official said when told of the outcome lia has maintained throughout the hearing clear victory for Australia. by Reuters. that the case lacked one vital party, Indone- “The World Court has completely vindi- He said the ministry was waiting to hear sia, Accordingly, the court said that in order cated Australia’s legal team in its approach from its embassy in the Netherlands before to judge Portugal’s claim that the oil treaty to arguing this case...we’re very satisfied as the government made an official comment. by Australia and Indonesia in 1989 violated a legal team that by an overwhelming ma- Australia also welcomed the decision East Timor’s right to self-determination, it jority the World Court has upheld our ar- with Foreign Minister Gareth Evans saying would first have to judge the legality of guments,” he told reporters. it removed any possible uncertainty about Indonesia’s actions. This, however, had not Portugal’s lawyer Miguel Galvão Teles Australia’s exploration rights in the Timor been possible since Indonesia was not a was disappointed the court had not consid- Gap. party to the case. Portugal argued that the ered the merits of the case but said the deci- “The decision means that Australia will treaty was invalid because it concerned an sion had not condoned Australia’s action. have continued access to those resources in area over which Indonesia had no sover- Teles challenged Jakarta to bring the lin- a secure and stable environment,” Evans eignty and that it thereby violated the East gering dispute over East Timor before the said in a statement released in Canberra. Timorese people’s right to self- International Court. The court rejected Portugal’s challenge determination and the territory’s sover- “We defy Indonesia to accept the court’s to a 1989 oil treaty between Australia and eignty over its own resources. Although jurisdiction and then we will deal with Indonesia, which Lisbon said had violated Australia has acknowledge East Timor’s them,” he said. East Timor’s right of self-determination. right to self-determination, it has long rec- In its ruling, the U.N. court emphasised The court said it lacked jurisdiction to rule ognised Indonesia’s sovereignty over the that East Timor remained a non self- on the merits of Portugal’s case. territory. governing territory and that its people re- The Timor Gap is between Indonesia and The ruling is a setback in Portugal’s dip- tained the right to self-determination. Australia. Indonesia annexed East Timor in lomatic efforts to gain support for the cause Legal experts said the ruling had not 1976 following an invasion the previous of East Timor and to increase international clarified what this right meant in practical year when Portugal pulled out of its former pressure on Indonesia to allow the East terms. colony. Timorese to decide their own future. Exiled Timorese resistance leader José The United Nations does not recognise Ramos-Horta said he was pleased the court Indonesia’s action and regards Portugal as had endorsed East Timor’s right of auton- the administering power. AUSTRALIA WINS omy but criticised Canberra. The international court said that in order WORLD COURT RULING “Successive Australian governments to judge Portugal’s case against Australia, it IN TIMOR OIL ROW have betrayed the people of East Timor...” would first have to rule on the legality of he said. Indonesia’s action, adding that its statutes By Andrew Kelly, The Hague, June 30 The Timor Gap treaty, on which the case prevented this as Jakarta was not a party to (Reuter) - The International Court of centred, governs oil exploration in the the case. Justice on Friday rejected Portugal’s chal- 23,550 sq. mile (61,000 sq. km) stretch of Australia told the court earlier this year it lenge to a 1989 offshore oil exploration sea between East Timor and Australia. recognised East Timor’s right of self- treaty between Australia and Indonesia. Initial drillings in the area were unsuc- determination, but also acknowledged that The U.N. court said it lacked the author- cessful but in 1994 Australia’s Broken Hill Indonesia exercised sovereignty over the ity to rule on Portugal’s claim that Australia company twice struck oil there. territory. violated East Timor’s right of self- Australia told the court earlier this year it Canberra said the treaty was valid under determination by signing the so-called accepted East Timor’s right of self- international law and that Portugal had chal- Timor Gap treaty. determination but also recognised that In- lenged it only to gain a platform for its dis- Indonesia annexed East Timor after Por- donesia exercised sovereignty over the terri- pute with Indonesia. tugal pulled out of its former colony in 1975 tory. but the United Nations did not recognise It accused Portugal of manufacturing a ICJ RULING NO VINDICATION this and continued to regard Lisbon as the case against Australia to gain a platform for OF AUSTRALIAN POSITION administrative power. its dispute with Indonesia. Portugal argued that Australia therefore The International Court, informally The Hague, June 30 AAP – The miners had no right to conclude an agreement with known as the World Court, is the UN’s can breathe more easily, but in other re- Indonesia. main legal body and resolves disputes be- spects Australia can take little comfort from The court, by a 14-2 majority, said its tween member states in accordance with the non-decision by the International Court statute barred it from ruling on Portugal’s international law. of Justice on the Timor Gap Treaty. suit as it would first have to judge the legal- The court, by a 14-2 majority, rejected ity of Indonesia’s presence in East Timor. INDONESIA, AUSTRALIA Portugal’s action against the 1989 Austra- “In order to decide the claims of Portu- WELCOME lian-Indonesian treaty which divides the oil gal, (the court) would have to rule...on the and gas under a 61,000 square kilometre lawfulness of Indonesia’s conduct in the TIMOR COURT RULING area of the Timor Sea between them. absence of that state’s consent,” the court JAKARTA, June 30 (Reuter) - Indonesia But it did so only on the procedural president said. on Friday welcomed a ruling in Australia’s ground that any finding would affect Indo- “The court can only exercise jurisdiction favour by the International Court of Justice nesia, which was not involved in the case over a state with its consent,” presiding in The Hague in Canberra’s dispute with because it doesn’t accept the court’s juris- judge Mohammed Bedjaoui of Algeria said. diction. Page 4 East Timor Documents, Volume 38. Timor Gap Case decided.
If anything, its decision - especially if criticised the way “realities” on the ground the legal team, left the main talking to Sena- the dissenting judges’ views are taken into were allowed to blur the law. tor Evans in Canberra. account - puts the “ambiguities” of Austra- “When it comes to unlawful use of force, “But as a legal team, we feel totally vin- lia’s longstanding policy towards Indonesia one should be careful not to blur the differ- dicated,” he said. on the question of East Timor further under ence between facts and law,” he said. “Even Australian legal sources said the decision the spotlight. in apparently hopeless situations respect for should not be regarded as narrowly techni- This was also the view of East Timorese the law is called for. cal. resistance leader José Ramos-Horta. “Contemporary history has shown us By refusing to hear “the wrong case Portugal had asked the court to declare that, in the vast area stretching from Berlin against the wrong party,” the court had that, in making the treaty with Indonesia, to Vladivostok, the so-called ‘realities,’ safeguarded its own integrity. Australia had violated the rights of the East which more often than not consisted of Australia’s nominee to the court for the Timorese to self-determination and the crime and lawlessness on a massive scale, case, former governor-general and High rights of Portugal as the administering proved to be less real and less permanent Court judge Sir Ninian Stephen, signed the power. than many assumed. majority judgment. By rejecting the application on proce- “In matters pertaining to military inva- No-one here knows how much the four- dural grounds, the court never expressed an sion, decolonisation and self-determination, year case has cost Australia and Portugal, opinion on these questions. that peculiar brand of realism should be which each pays its own costs. However, it did affirm the East Timorese kept at a distance.” But Mr. Galvao Teles said: “It’s never a right to self-determination, to sovereignty He said that, although Australia empha- waste when you support a good cause. And over its natural resources, and the universal sised its commitment to East Timorese self- it brought East Timor to public attention.” nature of these rights. determination in the court, Foreign Minister The right to self-determination was “one Gareth Evans had adopted a narrower ap- EXPLOITING THE DECISION of the essential principles of contemporary proach. international law.” Speaking in the Senate while the case TIMOR AND POLITICAL It also noted that Australia, during the was in progress last February, he had re- hearing last February, had said it supported duced self-determination for East Timor to MARKETING East Timor’s right to self-determination. “the choice of the form of government.” Diario de Noticias, 2 July 1995. By Fer- The difficulty for Australia, as both Mr. The judge also said Australia should nando de Sousa. Abridged Translated from Ramos-Horta and dissenting judge Krysztof have involved Portugal and the East Portuguese. Skubiszewski pointed out, was in reconcil- Timorese in the negotiations over the treaty. The Hague – Although the ICJ did not ing this support with its de jure recognition The other dissenting judge, Christopher rule in favour of the Portuguese position, of Indonesia’s incorporation of East Timor. Weeramantry of Sri Lanka, who was pro- Lisbon and the Timorese could exploit the Mr. Ramos-Horta told journalists after fessor of law at Melbourne’s Monash conclusions of the ruling which referred to the decision that the court’s endorsement of University for 20 years before his Timor’s status. the right to self-determination was a “vic- appointment to the court, said the duty to The Portuguese delegation in The Hague tory for the people of East Timor.” respect East Timorese rights extends was clearly and understandably disap- “Where will Australia go from here?” he beyond mere recognition to a “duty to pointed on Friday after the ICJ declared asked. “Is it going to say, no we didn’t abstain from any state action which is itself incompetent to try the case of the mean that after all, we meant only for the incompatible with those rights or which Timor Gap. court to hear us; or is it going to say be- would impair or nullify them.” Portuguese claims that the agreement be- cause you recognise the right to self- “By this standard, Australia’s action in tween Indonesia and Australia on oil pro- determination, we are now going to de- entering into the Timor Gap Treaty may duction in the sea of Timor is illegal will recognise the annexation of East Timor by well be incompatible with the rights of the now not be followed through, and this Indonesia?” Mr. Ramos-Horta said the East people of East Timor.” clearly calls into question Portugal’s ability Timorese campaign for freedom would Miguel Galvao Teles, one of the Portu- to act as the territory’s administering power. continue both on the ground at home and guese government’s legal team, said the However, the same court did provide internationally. court had simply decided not to decide. some elements of great political importance The next phase will be when the talks be- However, he was pleased the majority which, if cleverly put to use, could result in tween Portugal and Indonesia resume, under judgment had characterised Indonesia’s significant gains at forthcoming meetings UN auspices, in Geneva on July 8. actions in East Timor as an intervention. with Indonesia. It was important that the Judge Skubiszewski, a Polish lawyer “Intervention is necessarily illicit,” he ICJ reaffirmed the right to self- who was Portugal’s nominee to the bench, said. Nor was there anything in the judg- determination, and described the Indonesian said Australia’s position was ambivalent. ment that could be construed as a condoning invasion as an “intervention” which is con- He said in a separate 42-page judgment or blessing of Australia’s actions. sidered illegal in the eyes of international that there was a basic difficulty in reconcil- Mr. Galvao Teles said Portugal had al- law. ing Australia’s recognition of Indonesian ways known the procedural question would The fact that the Timorese Resistance sovereignty with East Timor’s non-self- be difficult. It would, if it could have, has reacted positively to the court’s ruling governing status. brought an action against Indonesia years has also been of great help to Portugal. The The judge criticised Australia for trying ago. communiqué released by the CNRM special to reduce its justification for making the “We defy Indonesia to accept the court’s representative, José Ramos Horta, makes a treaty with Indonesia to “practical” consid- jurisdiction so we can deal with them,” he very clear distinction between the specific erations. That attitude could “sap the foun- said. set- back for the Timor Gap case, and the dation of any legal rule.” The Australian team had the least to say. significance of the Court’s other statements. In a more general paragraph, though ob- Ambassador to The Hague and former Jus- In the view of Ramos Horta, what is of viously with East Timor in mind, the judge tice Minister Michael Tate, who was part of utmost importance are the statements in favour of self-determination. The Portu- East Timor Documents, Volume 38. Timor Gap Case decided. Page 5 guese authorities ought to start organising a Lisbon has stated the result was a technical “Our ability to proceed, from a political campaign, without delay, to gain the sup- draw. Durão Barroso even went as far as to and diplomatic point of view, in defense of port of international public and political say that the ruling actually reinforced Por- the people of East Timor, not only was not opinion. tugal’s political-diplomatic capacity. hurt by the ICJ decision but was indeed Basically, Portugal should now stress the The attitudes of the Portuguese Foreign strengthened by it,” said Barroso. fact that the Court has recognised the Ministry and the Resistance are understand- Barroso also encouraged Indonesia to Timorese people’s right to self- able, but it would be hypocritical to go accept the ICJ jurisdiction. “The Portuguese determination. The ICJ’s description of along with them. They are putting too much government will accept the ICJ decision if Indonesia’s action as “intervention” ought emphasis on the judges’ recognition, albeit Indonesia declares beforehand that it also to be used to counter Jakarta’s arguments in obscure technical legal jargon, of the accepts it,” said Barroso. against Portugal’s actions. illegality of Indonesia’s intervention. Al- Barroso considered that “some points of Portugal should also do its utmost to re- though it is true to say that the ICJ could the court ruling are very important and very affirm its position as administering power in have ignored this reality, it could not have positive” because it had recognized the accordance with UN rulings. Considering refuted it, as this would have called into righteousness of Portugal’s claim that East that just next Saturday there will be another question resolutions passed by the General Timor has a right to self-determination. meeting between Foreign Ministers Durão Assembly of the UN, within whose system Barroso emphasized also that the ICJ had Barroso and Ali Alatas, no time should be the ICJ itself works and by whom its judges referred to the presence of Indonesia in East lost in getting all this campaigning work are elected. Timor as a situation of “intervention” underway. The decision fits the diplomatic cynicism which, the minister said, in UN language ...It is important to mobilise the political of Gareth Evans (who, it turns out, also translates into “illegality.” potential which resulted from the inter- recognises the right of the Timorese to self- Timorese meeting in Austria...This meeting determination) like a glove, and must have Lisbon, June 30 (LUSA) - The secretary enabled the participants to expand on their been celebrated with champagne in the of the Socialist Party [the main opposition points of view, to reach better mutual un- office of Ali Alatas, who has been in need party, only slightly to the left relative to the derstanding, and brought to the surface of something with which to hold back the Social-Democrats in government], Antonio areas of agreement capable of bringing wave of international criticism of recent Guterres, today regretted the ICJ decision, Timorese together - a possibility which far months. stating that it represented “a defeat of the from pleases Indonesia. Although isolating the judges’ considera- Court itself.” According to Guterres, the ICJ Diplomatic efforts on behalf of East tions might be a useful tactic to employ for demonstrated that it is “unable to do jus- Timor are more likely to succeed if they are the Portuguese public’s consumption, it tice.” supported by a consistent media strategy. does not hide the simple truth: the action This has, in fact, already started to be ap- brought against Australia by Portugal was EVANS: EAST TIMOR plied and is bearing fruit, as can be seen rejected, and Canberra is going to be able to from the international media’s growing carry on sharing the riches of East Timor CALLED INDONESIA’S interest in the subject. It contributes to the with the territory’s occupier. ‘RUNNING SORE’ political wearing down of the Indonesian It will be argued that it would have been Canberra, July 1 (Reuter) – The conflict authorities, and enables the case of East worse if the court had rejected on the basis in East Timor remains Indonesia’s “running Timor (and other cases related to different of the substance of the problem, or that, if sore” and the pressure continues on Jakarta segments of Indonesia’s population) to pre- the action had not been brought against to ease its grip on the former Portuguese vent Indonesia from playing a more leading Australia at all, we would be here today colony, Australian Foreign Minister Gareth role in the international political scene. criticising our diplomacy for lack of deci- Evans said on Saturday. It would be to Portugal’s advantage to siveness. Evans’ comments followed the defeat of keep up this pressure. In spite of The Portugal was right to put Australia in the Portugal’s attempt in the International Court Hague’s decision, the positive elements of dock, even though Australia was not sen- of Justice to rule out an oil treaty between the ruling must not be wasted. tenced. ... Durão Barroso gave an excellent Indonesia and Australia because it did not political-diplomatic lesson by immediately recognise East Timor’s right to self- challenging Indonesia to accept the jurisdic- A SEMI-DEFEAT determination. tion of the ICJ. It was, in the most optimis- Indonesia welcomed the decision, but Publico, 1 July 1995. By Adelino Gomes, tic interpretation, a semi-defeat. Evans said the court decision would not Abridged. Translated from Portuguese reduce the impetus for Indonesia to resolve Lisbon – It was only to be expected: they the “continuing East Timor agony.” all claimed to have won in The Hague. COMMENTS FROM “We will just keep on continually plug- The decision has reassured Canberra be- PARTIES ging away and making the point that this cause, as Gareth Evens publicly stated, has become a running sore internationally Australia is going to continue to have access for Indonesia, it hasn’t helped Indonesia’s to Timor Sea oil, without any bother from PORTUGUESE RESPONSE TO reputation in any way,” Evans told Austra- Portugal. ICJ RULING ON TIMOR GAP lian Broadcasting Corporation radio. Jakarta will be able to carry on exploit- “There’s a lot of pressure on Indonesia to ing a territory it has annexed: the Interna- Translated from the Portuguese come up with some kind of reconciliation tional Court of Justice (ICJ) has acknowl- Lisbon, June 30 (LUSA) - abridged - package which will meet the needs and edged it was unable to judge its most repre- Foreign minister Durão Barroso stated to- aspirations of the East Timor people for a hensible acts. day that the Portuguese position for the East decent lifestyle with some decent protection The Timorese, through the CNRM Timor people had been “strengthened” by for human rights and a much less oppressive spokesperson, José Ramos Horta, claim the ICJ decision. military presence there,” Evans said. Indo- they have won a political victory, while nesia annexed East Timor in 1976 after Page 6 East Timor Documents, Volume 38. Timor Gap Case decided.
Portugal pulled out in 1975, and has fought PORTUGAL’S TAKE ON Even though the Court did not wish to an independence movement ever since. rule on Indonesia’s conduct towards East In Jakarta, an East Timorese human- WORLD COURT NON- Timor, due to its absence, it mentioned “the rights activist said on Saturday he believed DECISION intervention of the armed forces of Indone- Timorese would accept the court ruling but sia in the territory” (v. paragraph 14 ibidem) expressed doubt if local people would be Excerpted from “Statement by Mr. Rui and said also that “on 7 December 1975 the involved in the oil exploration. Quartin Santos, Representative of Portu- armed forces of Indonesia intervened in “I believe the East Timorese will accept gal on the Question of East Timor, Deliv- East Timor” (v. paragraph 13 ib.), expres- the ruling by the International Court of ered before the Special Committee on the sions which imply the qualification of such Justice on Timor Gap, but it is still a ques- Situation with Regard to the Implemen- a conduct as being against international law. tion if they would be involved in the explo- tation of the Declaration on the Granting In reaction to this judgement, the Portu- ration at all,” Clementino Dos Reis Amaral of Independence to Colonial Countries guese Government challenged the Govern- told Reuters. and Peoples” New York, July 12th, 1995. ment of Indonesia to accept the jurisdiction Amaral is a member of a government- Mr. Chairman of the ICJ and to abide by its ruling over the appointed, human-rights commission. case. This challenge has failed, however, to “Based on the experience, development As it is known to the distinguished mem- be positively responded to this day. projects in East Timor are carried out by bers of this Special Committee, the Interna- The Court’s decision over this proce- people from outside the region. So it is still tional Court of Justice has delivered on 30 dural point, which prevented a judgement a question if the oil exploration would in- June last, its judgement over the “Case con- over the substance being delivered, does not volve East Timorese,” he said. cerning East Timor (Portugal versus Austra- hinder the legal and political grounds over “East Timor should benefit from the ex- lia).” which Portugal’s action to complete the ploration,” he said. As your are also certainly aware, the decolonization of East Timor in conformity Court concluded that it could not, in this with international law and to uphold the case, exercise its jurisdiction, because Indo- TECHNICAL K.O. – DURÃO rights of the East Timorese has been carried nesia, not accepting the mandatory jurisdic- out, the latter’s right to self-determination BARROSO’S CHALLENGE tion of the Court, was absent from the pro- and the territory’s non-self-governing status ceedings. And since the Court decided that Publico, 1 July 1995. By J. T. de Negreiros, having been clearly recognised by the the rule on the merit of the case would nec- Court. Abridged Translated from Portuguese essarily imply to rule on the lawfulness of Lisbon – In Lisbon, Durão Barroso Indonesia’s conduct regarding East Timor, stressed the fact that the International Court the latter’s absence lead to the Court’s de- of Justice (ICJ) had recognised the right of clining to exercise its jurisdiction. COMMENTS FROM the Timorese to self-determination, and the It should be thus pointed out that the ADVOCATES territory’s non-autonomous status, in order Court’s decision was taken on purely pro- to state that “our diplomatic capacity to cedural grounds due to the reason I have continue, from a politico-diplomatic point just referred to. There was no judgement on JOSÉ RAMOS-HORTA of view, defending the people of East Timor Portugal’s claims and therefore no conclu- ON ICJ’S RULING has not only been unaffected by the ruling, sion on the lawfulness of Australia’s action but has actually been strengthened by it.” in negotiating, concluding and implement- The following statement was issued June 30 The Portuguese Foreign Minister, who ing the so-called “Timor Gap agreement” in The Hague by José Ramos-Horta, Special will again be meeting with Ali Alatas and with Indonesia. Representative of the CNRM: Boutros Ghali next Saturday to discuss East But it should be also recalled that the ICJ We welcome the sentence that has just Timor, went on to challenge Jakarta: “The did not fail to recognise that Portugal’s been handed down by the International Portuguese Government will accept the assertion that the right of peoples to self- Court of Justice on the case Portugal v. ICJ’s decision if Indonesia states it will also determination, as it evolved from the Char- Australia as a victory for the people of East recognise its jurisdiction.” ter and from the United Nations practice, Timor inasmuch as the highest UN legal Resistance leader Ramos Horta went fur- has an “erga omnes” character is “irre- body has endorsed the right of the people of ther in his evaluation of yesterday’s ruling, proachable.” And the Court also recognised East Timor to self-determination. stating that he was “very satisfied” with that “the General Assembly, which reserves It is well-known that the essence of the what he described as a “political victory.” to itself the right to determine the territories Portuguese Republic’s case against Austra- The Australian and Indonesian Govern- which have to be referred as non-self- lia rested on the merits of the right of the ments, indifferent to these views, welcomed governing for the purposes of the applica- people of East Timor to self-determination, the decision taken in The Hague. In Can- tion of Chapter XI of the Charter, has This right is universally recognised in sev- berra, Foreign Minister Gareth Evens said treated the East Timor as such a territory. eral UN General Assembly and Security that the ruling would allow oil production in The competent subsidiary organs of the Council resolutions. Even Australia stated the sea of Timor to carry on “in a safe and General Assembly have continued to treat during the oral proceedings that it recog- stable atmosphere.” In Jakarta, one of Ali East Timor as such to this day. Furthermore, nises the right of the people of East Timor Alatas’ colleagues told Reuters simply that: the Security Council, in its resolutions 384 to self-determination. “We are very happy and, naturally, we are (1975) and 389 (1976) has expressly called The sentence that had just been read congratulating ourselves.” for respect “for the territorial integrity of should be a signal to Indonesia that as much East Timor as well as the inalienable right as it tries to suppress the right of the people of its people to self-determination in accor- of East Timor to self-determination, the dance with General Assembly resolution Rule of Law will prevail. 1514 (XV) - (v. paragraph 31 of the judge- It is also a clear sign to Australia that its ment). hypocritical stance, pretending to be a law abiding citizen of the world while at the East Timor Documents, Volume 38. Timor Gap Case decided. Page 7 same time it violates one of the peremptory ples has been has been recognised by the ognise the jurisdiction of an international norms of international law, has been thor- United Nations Charter and in the jurispru- court. oughly exposed. dence of the Court..... “Nevertheless, we are very glad to see The Portuguese Republic must be com- Par 31. ....For the two parties the Terri- that the World Court has continued to stress mended for its integrity and courage in tory of East Timor remains a non-self- the people of East Timor have been de- standing up for justice and for the right of a governing territory and its people has the prived of their fundamental right to self- small nation. This 800-year old country of a right of self-determination. Moreover the determination, and that they must be brave and proud people that for centuries General Assembly, which reserves to itself granted that right.” pioneered the sea routes opening up most of the right to determine the territories which The Court’s decision emphasised that the the world, was first among the European have to be regarded as non-self-governing right to self-determination “is irreproach- nations in the exchange of culture, has been for the purposes the application of Chapter able” and that “East Timor remains a non- true to its great and rich history. The East XI of the charter, has treated East Timor as self-governing territory and its people has Timorese people will for ever be indebted to such a territory. The competent subsidiary the right to self-determination.” the Portuguese people for their friendship, organs of the General Assembly have con- support and solidarity. They were fully tinued to treat East Timor as such to this TAPOL: JAKARTA DOES NOT behind Portugal in this case and mandated day. Furthermore, the Security Council, in the Portuguese Republic to take Australia to its resolutions 384 (1975) and 389 (1976) DARE TO FACE WORLD the world court. has expressly called for respect for “the COURT JURISDICTION Successive Australian governments have territorial integrity of East Timor as well as 30 June 1995 betrayed the people of East Timor and the inalienable right of its people to self- trampled upon the values of justice and determination in accordance with General In the wake of today’s ruling of the In- freedom for all people shared by Austra- Assembly resolution 1514(XV)...... ternational Court of Justice about the Timor lians. While we have only contempt to the Par 37. The Court recalls in any event Gap Treaty, TAPOL, the Indonesia Human hired guns and mercenaries in the Austra- that it has taken note in the present Judge- Rights Campaign believes that the pro- lian legal squad and condemn the Australian ment (paragraph 31) that for the two Parties, democracy movement in Indonesia should Government for its pathetic and hypocritical the Territory of East Timor remains a non- note that the court has clearly upheld the behaviour, we must not confuse them with self-governing territory and its people has right of the people of East Timor to self- the Australian people who share with the the right to self-determination. determination, emphasising that East Timor East Timorese the same notions of peace “remains a non-self-governing territory.” and human liberty and have been generous BCET: AUSTRALIA’S It is more than likely that the Indonesian to us. regime, trying as always to uphold its The ambitions of Foreign Minister Ga- “VICTORY” PURELY unlawful and brutal occupation of East reth Evans to be the next UN Secretary PROCEDURAL Timor, will use the court’s decision as a General and a Nobel Peace Prize Laureate vindication of its position. This is totally Press release, June 30 have been severely damaged by his own groundless. As is clear from the ruling, arrogant and hypocritical stance over the The British Coalition for East Timor is Australia “won” the case purely on a tech- conflict in East Timor and the human rights dismayed that the International Court of nicality, not on the merits of the case, be- situation in Indonesia. We will canvass Justice has today decided, in a 14 to 2 vote, cause Indonesia was not a party to the case support around the world to defeat Mr. Ev- that it cannot rule on Portugal’s case against before the court. ans’ attempts to be the next UN Secretary Australia disputing the legality of the Timor This is not a signal for the forces of oc- General. In these trying times, the UN needs Gap Treaty. At the same time, we stress that cupation to continue to assert their “right” a Secretary- General candidate with integ- the “victory” of Australia is a purely techni- to play havoc with the lives of the people of rity, a humble man or woman, a good lis- cal matter, and that the Court insists on the East Timor. On the contrary, we have no tener, cool under pressure; not a volatile, right of East Timor to self-determination. doubt whatever that the people of East unpredictable, temperamental, self-serving Portugal brought a case against Australia Timor will continue to press their righteous and arrogant politician with a pasted up concerning the 1989 Treaty, which allows case on the international community with book on the UN. joint Australian-Indonesian oil exploration renewed vigour, displaying the courage and off the coast of East Timor, on the grounds resourcefulness that have distinguished their Significant references in International that Indonesia’s occupation of East Timor is struggle since 1975. Court of Justice Decision on Portugal Vs illegal and has never been recognised by the As we approach the 20th anniversary of Australia case concerning East Timor. United Nations. the invasion of East Timor, we in TAPOL CNRM Special Representative, José The Court concluded that Australia’s salute the people of East Timor and assure Ramos Horta, has welcomed the sentence part in the treaty could not be ruled upon them of our continuing support in their handed down by the International Court of without a decision upon the legality of In- struggle for justice. Justice in The Hague on 30 June 1995 on donesia’s occupation. That decision the We also call upon the pro-democracy the case Portugal Vs Australia, inasmuch as Court insists it is unable to make, as Indo- movement in Indonesia to confound all the highest UN legal body has endorsed the nesia does not recognise the authority of the attempts by the Jakarta government to use right of the East Timorese people to self- Court in any proceeding, and that “it could the ICJ ruling as a “victory” for its position. determination. not make such a determination ... in the In refusing to accept the jurisdiction of the The ICJ decision states among others: absence of [Indonesia’s] consent.” world court, Jakarta has only drawn atten- Par. 29: .... In the Court’s view, Portu- “We are, of course, disappointed in this tion to the profound weakness of its claim, gal’s assertion that the right of self- decision,” said Maggie Helwig of BCET. its fear of allowing the world’s leading legal determination, as it evolved in the Charter “It seems very ironic that a state can be institution to rule on the issue of East and from United Nations practice, has an exempted from judgement on the legality of Timor. ‘ergo omnes’ character, is irreproachable. its actions simply because it refuses to rec- In face of this development, we in The principle of self determination of peo- TAPOL stress that we will continue to ex- Page 8 East Timor Documents, Volume 38. Timor Gap Case decided. pose as forcefully as we can the persistent could not make such a determination ... in and the finding explicitly drew attention to human rights violations that have become the absence of [Indonesia’s] consent.” the numerous UN resolutions ordering In- the daily plight of the people of East Timor. The Court’s decision emphasized that the donesia to leave East Timor - a clear mes- We are confident that human rights and pro- right to self-determination “is irreproach- sage to Jakarta, whose arrogant disregard of democracy groups in Indonesia will take the able” and that “East Timor remains a non- East Timorese sovereignty and aspirations same position, giving all possible support to self-governing territory and its people have has been repeatedly condemned by the UN. the people of East Timor. the right to self-determination.” Closer examination of the Court’s statement The United Nations Decolonization in the next few days is likely to reveal this ETAN/US: WORLD COURT Committee will hold its annual hearing on further. East Timor on July 11 at UN headquarters The result has highlighted again Ja- AVOIDS SUBSTANCE, DENIES in New York. karta’s policy of disdainful refusal to recog- EAST TIMOR ITS DAY IN ETAN/US was founded following the nise the International Court of Justice. The COURT 1991 massacre. ETAN/US supports genuine ICJ is the world’s highest legal body, cre- self-determination and human rights for the ated in 1945 through the UN Charter as an July 1, 1995 people of East Timor in accordance with the integral part of the United Nations in its The East Timor Action Network today UN Charter and pertinent General Assem- mandate to maintain international peace and condemned the failure of the World Court bly and Security Council resolutions. security. But for Jakarta, it seems, interna- to rule on the substance of Portugal’s case ETAN/US currently has a dozen local chap- tional justice is purely optional. against Australia disputing the legality of ters. For the Australian Government, which the Timor Gap Treaty. However, it ap- has staunchly defended the Treaty, the re- plauded the Court’s clear statement that the ACET SOLIDARITY ON ICJ sult will be of little use in assuaging mount- people of East Timor have a right to self- ing domestic and international criticism of determination and continue to be a non-self- NON-DECISION Australia’s role in signing the Treaty, as governing territory. AUSTRALIAN COALITION FOR A FREE well as assisting Jakarta both diplomatically In a 14 to 2 vote, the International Court EAST TIMOR and through military training. Such criti- of Justice, citing technicalities, said on June cism has included previous UN Secretary- Australia-East Timor Association (NSW), 30 that it can not rule on Portugal’s case General Perez de Cuellar, who made it Australians for a Free East Timor (NT), against Australia because its treaty partner, known in a public forum in Brunei in Sep- Campaign for an Independent East Timor Indonesia does not recognize the jurisdic- tember 1993 that Australia’s entry into the (SA), Campaign for an Independent East tion of the World Court. Treaty had significantly clouded a solution Timor (ACT), Friends of East Timor (WA), “We are very disturbed by this decision,” to the problem of East Timor. The Austra- Hobart East Timor Committee (Tas), Lis- said John M. Miller speaking for ETAN. lian government will be painfully aware that more Friends of East Timor (NSW) “By refusing jurisdiction, Indonesia has the ICJ finding has in no way confirmed the allowed two thieves, itself and Australia, to Media Release 1 July 1995 legality of the Timor Gap Treaty, which profit from their crime. This oil rightfully remains extremely questionable. belongs to the people of East Timor.” TIMOR GAP TREATY IN THE The Treaty can be seen to quite clearly “Far worse than being deprived of their WORLD COURT violate accepted principles of international oil, the people of East Timor have been • International Court of Justice finds it law. For example, its basic foundation, Aus- denied their right to self-determination. The cannot adjudicate on the case tralian de jure recognition of an Indonesian court should have had the courage to follow • Jakarta’s disregard for international insti- sovereignty over East Timor, clearly con- through on its statement endorsing that tutions and rule of law highlighted yet tradicts the Declaration on Principles of right,” said Mr. Miller. again. International Law Concerning Friendly “The court’s decision clearly puts the Relations, a vitally important resolution • Principle of self-determination reaf- fate of the East Timorese in the interna- adopted by the General Assembly in 1970, firmed as essential. tional political arena. The United States as part of a process of clarification of arti- government must forcefully press Indonesia • Timor Gap Treaty legality left unan- cles of the UN Charter. Australia was a co- to live up to its obligations under interna- swered. sponsor of this resolution, which states: tional law and allow a UN-supervised refer- Only hours ago the International Court of “The territory of a state shall not be sub- endum on independence,” Mr. Miller con- Justice in the Hague ended its deliberations ject to acquisition by another state resulting tinued. on the case brought against Australia by from the threat or use of force. No territorial The Timor Gap Treaty, signed in 1989, Portugal, which challenged the validity of acquisition resulting from threat or use of allows joint Australian-Indonesian oil ex- the Timor Gap Zone of Cooperation Treaty force shall be recognised.” ploration off the coast of East Timor. In its signed between Indonesia and Australia in Similarly, the 1984 UN Conference that case against Australia, Portugal said that 1989. The result, as had been anticipated for adopted the Law of the Sea Treaty resolved Indonesia’s occupation of East Timor is some time, was a victory for neither side. that in the case of dependent territories, illegal and has never been recognized by the Instead, the ICJ found that on technical such as East Timor, the sea area is in effect United Nations. Therefore any agreement grounds it could not rule on the case, as a trust that is to be held until the people with Indonesia concerning the resources of Indonesia, whose actions in invading and themselves become independent. The ICJ East Timor with Indonesia is illegal. occupying East Timor since 1975 are cen- decision has explicitly reaffirmed East The Court concluded it could not rule on tral to the case, refuses to recognise the Timor’s status as a non-self-governing terri- Australia’s part in the treaty without decid- jurisdiction of the Court. Significantly how- tory. ing on the legality of Indonesia’s occupa- ever, the Court is at pains to reaffirm that None of these fundamental flaws in the tion of the island nation. Since Indonesia self-determination, for which the long- Treaty were able to be addressed or clari- does not recognize the authority of the suffering people of East Timor have been fied through the current case, due to Ja- Court in any proceeding, the Court said “it fighting for decades, remains an essential karta’s refusal to face international legal principle of contemporary international law, East Timor Documents, Volume 38. Timor Gap Case decided. Page 9 scrutiny, an intransigence fully supported A DIFFERENT VIEW dorsed the right of people of East by the Australian government. Timor to self-determination.” The avoidance of the central issues of the From: Arif Havas 3. Part of East Timor Action Network case on technical grounds, which was Aus-
• Mr. Jean-Marc Thouvenin, Head Lecturer, the President of the Court, at the request of On behalf of Portugal, at the hearing on University of Maine and Institute of Political Australia, extended to 1 July 1993 the time- 13 February 1995 (afternoon): Studies, Paris, as Advisers, limit for the filing of the Rejoinder. This “Having regard to the facts and points of THE COURT, composed as above, after pleading was filed on 5 July 1993. Pursuant law set forth, Portugal has the honour to to Article 44, paragraph 3, of its Rules, deliberation, delivers the following Judg- - Ask the Court to dismiss the objections having given the other Party an opportunity ment: raised by Australia and to adjudge and to state its views, the Court considered this 1. On 22 February 1991, the Ambassador declare that it has jurisdiction to deal filing as valid. to the Netherlands of the Portuguese Repub- with the Application of Portugal and Ap- 6. Since the Court included upon the lic (hereinafter referred to as “Portugal”) plication is admissible, and filed in the Registry of the Court an Appli- Bench no judge of the nationality of either cation instituting proceedings against the of the Parties, each Party proceeded to exer- - Request that it may please the Court: Commonwealth of Australia (hereinafter cise the right conferred by Article 31, para- (1) To adjudge and declare that, first, the referred to as “Australia”) concerning “cer- graph 3, of the Statute to choose a judge ad rights of the people of East Timor to self- tain activities of Australia with respect to hoc to sit in the case; Portugal chose Mr. determination, to territorial integrity and East Timor.” According to the Application Antonio de Arruda Ferrer-Correia and Aus- unity and to permanent sovereignty over its Australia had, by its conduct, “failed to tralia Sir Ninian Martin Stephen. By a letter wealth and natural resources and, secondly, observe ... the obligation to respect the du- dated 30 June 1994, Mr. Ferrer-Correia the duties, powers and rights of Portugal as ties and powers of [Portugal as] the admin- informed the President of the Court that he the administering Power of the Territory of istering Power [of East Timor] ... and ... the was no longer able to sit, and, by a letter of East Timor are opposable to Australia, right of the people of East Timor to self- 14 July 1994, the Agent of Portugal in- which is under an obligation not to disre- determination and the related rights.” In formed the Court that its Government had gard them, but to respect them. consequence, according to the Application, chosen Mr. Krzysztof Jan Skubiszewski to (2) To adjudge and declare that Austra- Australia had “incurred international re- replace him. lia, inasmuch as in the first place it has ne- sponsibility vis-à-vis both the people of 7. In accordance with Article 53, para- gotiated, concluded and initiated perform- East Timor and Portugal.” As the basis for graph 2, of its Rules, the Court, after ascer- ance of the Agreement of 11 December the jurisdiction of the Court, the Application taining the views of the Parties, decided that 1989, has taken internal legislative meas- refers to the declarations by which the two the pleadings and annexed documents ures for the application thereof, and is con- States have accepted the compulsory juris- should be made accessible to the public tinuing to negotiate, with the State party to diction of the Court under Article 36, para- from the date of the opening of the oral that Agreement, the delimitation of the con- graph 2, of its Statute. proceedings. tinental shelf in the area of the Timor Gap; 2. In accordance with Article 40, para- 8. Between 30 January and 16 February and inasmuch as it has furthermore ex- graph 2, of the Statute, the Application was 1995, public hearings were held in the cluded any negotiation with the administer- communicated forthwith to the Australian course of which the Court heard oral argu- ing Power with respect to the exploration Government by the Registrar; and, in accor- ments and replies by the following: and exploitation of the continental shelf in dance with paragraph 3 of the same Article, For Portugal: that same area; and, finally, inasmuch as it all the other States entitled to appear before • H.E. Mr. Antonio Cascais, contemplates exploring and exploiting the Mr. José Manuel Servulo Correia, the Court were notified by the Registrar of • subsoil of the sea in the Timor Gap on the • Mr. Miguel Galvão Teles, the Application. basis of a plurilateral title to which Portugal • Mr. Pierre-Marie Dupuy, 3. By an Order dated 3 May 1991, the is not a party (each of these facts sufficing • Mrs. Rosalyn Higgins, Q.C. President of the Court fixed 18 November on its own): • For Australia: (a) has infringed and is infringing the 1991 as the time-limit for filing the Memo- • Mr. Gavan Griffith, Q.C., rial of Portugal and 1 June 1992 as the time- right of the people of East Timor to • H.E. Mr. Michael Tate, self-determination, to territorial integ- limit for filing the Counter-Memorial of • Mr. James Crawford, rity and unity and its permanent sover- Australia, and those pleadings were duly • Mr. Alain Pellet, eignty over its natural wealth and re- filed within the time-limits so fixed. • Mr. Henry Burmester, sources, and is in breach of the obliga- 4. In its Counter-Memorial, Australia • Mr. Derek W. Bowett, Q.C., tion not to disregard but to respect that raised questions concerning the jurisdiction • Mr. Christopher Staker. of the Court and the admissibility of the 9. During the oral proceedings, each of right, that integrity and that sovereignty; Application. In the course of a meeting held the Parties, referring to Article 56, para- (b) has infringed and is infringing the by the President of the Court on 1 June graph 4, of the Rules of Court, presented powers of Portugal as the administering 1992 with the Agents of the Parties, pursu- documents not previously produced. Portu- Power of the Territory of East Timor, is ant to Article 31 of the Rules of Court, the gal objected to the presentation of one of impeding the fulfilment of its duties to Agents agreed that these questions were these by Australia, on the ground that the the people of East Timor and to the in- inextricably linked to the merits and that document concerned was not “part of a ternational community, is infringing the they should therefore be heard and deter- publication readily available” within the right of Portugal to fulfil its responsi- mined within the framework of the merits. meaning of that provision. Having ascer- bilities and is in breach of the obligation 5. By an Order dated 19 June 1992, the tained Australia’s views, the Court exam- not to disregard but to respect those Court, taking into account the agreement of ined the question and informed the Parties powers and duties and that right; the Parties in this respect, authorized the that it had decided not to admit the docu- (c) is contravening Security Council filing of a Reply by Portugal and of a Re- ment to the record in the case. resolutions 384 and 389 and is in breach joinder by Australia, and fixed 1 December 10. The Parties presented submissions in of the obligation to accept and carry out 1992 and 1 June 1993 respectively as the each of their written pleadings; in the course Security Council resolutions laid down time-limits for the filing of those pleadings. of the oral proceedings, the following final by the Charter of the United Nations, is The Reply was duly filed within the time- submissions were presented: disregarding the binding character of limit so fixed. By an Order of 19 May 1993, the resolutions of United Nations organs that relate to East Timor and, more gen- East Timor Documents, Volume 38. Timor Gap Case decided. Page 13
erally, is in breach of the obligation in- Australia of rights under international law 24 November 1981 and 37/30 of 23 No- cumbent on Member States to co- asserted by Portugal.” vember 1982. operate in good faith with the United 11. The Territory of East Timor corre- 15. Security Council resolution 384 Nations; sponds to the eastern part of the island of (1975) of 22 December 1975 called upon (3) To adjudge and declare that, inas- Timor; it includes the island of Atauro, 25 “all States to respect the territorial integrity much as it has excluded and is excluding kilometres to the north, the islet of Jaco to of East Timor as well as the inalienable any negotiation with Portugal as the admin- the east, and the enclave of OE-Cusse in the right of its people to self-determination"; istering Power of the Territory of East western part of the island of Timor. Its capi- called upon “the Government of Indonesia Timor, with respect to the exploration and tal is Dili, situated on its north coast. The to withdraw without delay all its forces exploitation of the continental shelf in the south coast of East Timor lies opposite the from the Territory"; and further called upon area of the Timor Gap, Australia has failed north coast of Australia, the distance be- “the Government of Portugal as and is failing in its duty to negotiate in or- tween them being approximately 430 kilo- administering Power to co-operate der to harmonize the respective rights in the metres. In the sixteenth century, East Timor fully with the United Nations so as to event of a conflict of rights or of claims became a colony of Portugal; Portugal re- enable the people of East Timor to over maritime areas. mained there until 1975. The western part exercise freely their right to self- (4) To adjudge and declare that, by the of the island came under Dutch rule and determination.” breaches indicated in paragraphs 2 and 3 of later became part of independent Indonesia. Security Council resolution 389 (1976) the present submissions, Australia has in- 12. In resolution 1542 (XV) of 15 De- of 22 April 1976 adopted the same terms curred international responsibility and has cember 1960 the United Nations General with regard to the right of the people of East caused damage, for which it owes repara- Assembly recalled “differences of views ... Timor to self-determination; called upon tion to the people of East Timor and to Por- concerning the status of certain territories “the Government of Indonesia to withdraw tugal, in such form and manner as may be under the administrations of Portugal and without further delay all its forces from the indicated by the Court, given the nature of Spain and described by these two States as Territory"; and further called upon “all the obligations breached. ‘overseas provinces’ of the metropolitan States and other parties concerned to co- (5) To adjudge and declare that Australia State concerned"; and it also stated that it operate fully with the United Nations to is bound, in relation to the people of East considered that the territories under the achieve a peaceful solution to the existing Timor, to Portugal and to the international administration of Portugal, which were situation ....” community, to cease from all breaches of listed therein (including “Timor and de- General Assembly resolution 3485 the rights and international norms referred pendencies”) were non-self-governing terri- (XXX) of 12 December 1975 referred to to in paragraphs 1, 2 and 3 of the present tories within the meaning of Chapter XI of Portugal “as the administering Power"; submissions and in particular, until such the Charter. Portugal, in the wake of its called upon it “to continue to make every time as the people of East Timor shall have “Carnation Revolution,” accepted this posi- effort to find a solution by peaceful means"; exercised its right to self-determination, tion in 1974. and “strongly deplore[d] the military inter- under the conditions laid down by the 13. Following internal disturbances in vention of the armed forces of Indonesia in United Nations: East Timor, on 27 August 1975 the Portu- Portuguese Timor.” In resolution 31/53 of 1 (a) to refrain from any negotiation, guese civil and military authorities with- December 1976, and again in resolution signature or ratification of any agree- drew from the mainland of East Timor to 32/34 of 28 November 1977, the General ment with a State other than the admin- the island of Atauro. On 7 December 1975 Assembly rejected istering Power concerning the delimita- the armed forces of Indonesia intervened in “the claim that East Timor has tion, and the exploration and exploita- East Timor. On 8 December 1975 the Por- been incorporated into Indonesia, in- tion, of the continental shelf, or the ex- tuguese authorities departed from the island asmuch as the people of the Territory ercise of jurisdiction over that shelf, in of Atauro, and thus left East Timor alto- have not been able freely to exercise the area of the Timor Gap; gether. Since their departure, Indonesia has their right to self-determination and (b) to refrain from any act relating to occupied the Territory, and the Parties ac- independence.” the exploration and exploitation of the knowledge that the Territory has remained Security Council resolution 389 (1976) continental shelf in the area of the under the effective control of that State. of 22 April 1976 and General Assembly Timor Gap or to the exercise of jurisdic- Asserting that on 31 May 1976 the people resolutions 31/53 of 1 December 1976, tion over that shelf, on the basis of any of East Timor had requested Indonesia “to 32/34 of 28 November 1977 and 33/39 of plurilateral title to which Portugal, as accept East Timor as an integral part of the 13 December 1978 made no reference to the administering Power of the Territory Republic of Indonesia,” on 17 July 1976 Portugal as the administering Power. Portu- of East Timor, is not a party"; Indonesia enacted a law incorporating the gal is so described, however, in Security On behalf of Australia, at the hearing on Territory as part of its national territory. Council resolution 384 (1975) of 22 De- 16 February 1995 (afternoon): 14. Following the intervention of the cember 1975 and in the other resolutions of armed forces of Indonesia in the Territory the General Assembly. Also, those resolu- “The Government of Australia submits and the withdrawal of the Portuguese au- tions which did not specifically refer to that, for all the reasons given by it in the thorities, the question of East Timor became Portugal as the administering Power re- written and oral pleadings, the Court the subject of two resolutions of the Secu- called another resolution or other resolu- should: rity Council and of eight resolutions of the tions which so referred to it. (a) adjudge and declare that the Court General Assembly, namely, Security Coun- 16. No further resolutions on the ques- lacks jurisdiction to decide the Portuguese cil resolutions 384 (1975) of 22 December tion of East Timor have been passed by the claims or that the Portuguese claims are 1975 and 389 (1976) of 22 April 1976, and Security Council since 1976 or by the Gen- inadmissible; or General Assembly resolutions 3485 (XXX) eral Assembly since 1982. However, the (b) alternatively, adjudge and declare of 12 December 1975, 31/53 of 1 December Assembly has maintained the item on its that the actions of Australia invoked by 1976, 32/34 of 28 November 1977, 33/39 of agenda since 1982, while deciding at each Portugal do not give rise to any breach by 13 December 1978, 34/40 of 21 November session, on the recommendation of its Gen- 1979, 35/27 of 11 November 1980, 36/50 of eral Committee, to defer consideration of it Page 14 East Timor Documents, Volume 38. Timor Gap Case decided. until the following session. East Timor also the joint exploration and exploitation of the 21. The Court will now consider Austra- continues to be included in the list of non- resources of an area of the continental shelf. lia’s objection that there is in reality no self-governing territories within the mean- A Treaty to this effect was eventually con- dispute between itself and Portugal. Austra- ing of Chapter XI of the Charter; and the cluded between them on 11 December lia contends that the case as presented by Special Committee on the Situation with 1989, whereby a “Zone of Cooperation” Portugal is artificially limited to the ques- Regard to the Implementation of the Decla- was created “in an area between the Indone- tion of the lawfulness of Australia’s con- ration on the Granting of Independence to sian Province of East Timor and Northern duct, and that the true respondent is Indone- Colonial Countries and Peoples remains Australia.” Australia enacted legislation in sia, not Australia. Australia maintains that it seized of the question of East Timor. The 1990 with a view to implementing the is being sued in place of Indonesia. In this Secretary-General of the United Nations is Treaty; this law came into force in 1991. connection, it points out that Portugal and also engaged in a continuing effort, in con- 19. In these proceedings Portugal main- Australia have accepted the compulsory sultation with all parties directly concerned, tains that Australia, in negotiating and con- jurisdiction of the Court under Article 36, to achieve a comprehensive settlement of cluding the 1989 Treaty, in initiating per- paragraph 2, of its Statute, but that Indone- the problem. formance of the Treaty, in taking internal sia has not. 17. The incorporation of East Timor as legislative measures for its application, and In support of the objection, Australia part of Indonesia was recognized by Austra- in continuing to negotiate with Indonesia, contends that it recognizes, and has always lia de facto on 20 January 1978. On that has acted unlawfully, in that it has infringed recognized, the right of the people of East date the Australian Minister for Foreign the rights of the people of East Timor to Timor to self-determination, the status of Affairs stated: “The Government has made self-determination and to permanent sover- East Timor as a non-self-governing terri- clear publicly its opposition to the Indone- eignty over its natural resources, infringed tory, and the fact that Portugal has been sian intervention and has made this known the rights of Portugal as the administering named by the United Nations as the admin- to the Indonesian Government.” He added: Power, and contravened Security Council istering Power of East Timor; that the ar- “[Indonesia’s] control is effective and cov- resolutions 384 and 389. Australia raised guments of Portugal, as well as its submis- ers all major administrative centres of the objections to the jurisdiction of the Court sions, demonstrate that Portugal does not territory.” And further: and to the admissibility of the Application. challenge the capacity of Australia to con- “This is a reality with which we It took the position, however, that these clude the 1989 Treaty and that it does not must come to terms. Accordingly, the objections were inextricably linked to the contest the validity of the Treaty; and that Government has decided that al- merits and should therefore be determined consequently there is in reality no dispute though it remains critical of the means within the framework of the merits. The between itself and Portugal. by which integration was brought Court heard the Parties both on the objec- Portugal, for its part, maintains that its about it would be unrealistic to con- tions and on the merits. While Australia Application defines the real and only dis- tinue to refuse to recognize de facto concentrated its main arguments and sub- pute submitted to the Court. that East Timor is part of Indonesia.” missions on the objections, it also submitted 22. The Court recalls that, in the sense On 23 February 1978 the Minister said: that Portugal’s case on the merits should be accepted in its jurisprudence and that of its “we recognize the fact that East Timor is dismissed, maintaining, in particular, that its predecessor, a dispute is a disagreement on part of Indonesia, but not the means by actions did not in any way disregard the a point of law or fact, a conflict of legal which this was brought about.” rights of Portugal. views or interests between parties (see Mav- On 15 December 1978 the Australian 20. According to one of the objections rommatis Palestine Concessions, P.C.I.J., Minister for Foreign Affairs declared that put forward by Australia, there exists in Series A, No. 2, p. 11; Northern Camer- negotiations which were about to begin reality no dispute between itself and Portu- oons, ICJ Reports 1963, p. 27; and Applica- between Australia and Indonesia for the gal. In another objection, it argued that bility of the Obligation to Arbitrate under delimitation of the continental shelf be- Portugal’s Application would require the Section 21 of the United Nations Headquar- tween Australia and East Timor, “when they Court to rule on the rights and obligations ters Agreement of 26 June 1947, ICJ Re- start, will signify de jure recognition by of a State which is not a party to the pro- ports 1988, p. 27, para. 35). In order to es- Australia of the Indonesian incorporation of ceedings, namely Indonesia. According to tablish the existence of a dispute, “It must East Timor"; he added: “The acceptance of further objections of Australia, Portugal be shown that the claim of one party is posi- this situation does not alter the opposition lacks standing to bring the case, the argu- tively opposed by the other” (South West which the Government has consistently ment being that it does not have a sufficient Africa, Preliminary Objections, ICJ Reports expressed regarding the manner of incorpo- interest of its own to institute the proceed- 1962, p. 328); and further, “whether there ration.” The negotiations in question began ings, notwithstanding the references to it in exists an international dispute is a matter for in February 1979. some of the resolutions of the Security objective determination” (Interpretation of 18. Prior to this, Australia and Indonesia Council and the General Assembly as the Peace Treaties with Bulgaria, Hungary and had, in 1971-1972, established a delimita- administering Power of East Timor, and that Romania, ICJ Reports 1950, p. 74). tion of the continental shelf between their it cannot, furthermore, claim any right to For the purpose of verifying the exis- respective coasts; the delimitation so ef- represent the people of East Timor; its tence of a legal dispute in the present case, fected stopped short on either side of the claims are remote from reality, and the it is not relevant whether the “real dispute” continental shelf between the south coast of judgment the Court is asked to give would is between Portugal and Indonesia rather East Timor and the north coast of Australia. be without useful effect; and finally, its than Portugal and Australia. Portugal has, This undelimited part of the continental claims concern matters which are essen- rightly or wrongly, formulated complaints shelf was called the “Timor Gap.” tially not legal in nature which should be of fact and law against Australia which the The delimitation negotiations which be- resolved by negotiation within the frame- latter has denied. By virtue of this denial, gan in February 1979 between Australia and work of on-going procedures before the there is a legal dispute. Indonesia related to the Timor Gap; they political organs of the United Nations. Por- On the record before the Court, it is clear did not come to fruition. Australia and In- tugal requested the Court to dismiss all that the Parties are in disagreement, both on donesia then turned to the possibility of these objections. the law and on the facts, on the question establishing a provisional arrangement for whether the conduct of Australia in negoti- East Timor Documents, Volume 38. Timor Gap Case decided. Page 15 ating, concluding and initiating performance rights of Indonesia. The objective conduct that of Indonesia. However, in the view of of the 1989 Treaty was in breach of an obli- of Australia, considered as such, constitutes the Court, Australia’s behaviour cannot be gation due by Australia to Portugal under the only violation of international law of assessed without first entering into the ques- international law. which Portugal complains. tion why it is that Indonesia could not law- Indeed, Portugal’s Application limits the 26. The Court recalls in this respect that fully have concluded the 1989 Treaty, while proceedings to these questions. There none- one of the fundamental principles of its Portugal allegedly could have done so; the theless exists a legal dispute between Portu- Statute is that it cannot decide a dispute very subject-matter of the Court’s decision gal and Australia. This objection of Austra- between States without the consent of those would necessarily be a determination lia must therefore be dismissed. States to its jurisdiction. This principle was whether, having regard to the circumstances 23. The Court will now consider Austra- reaffirmed in the judgment given by the in which Indonesia entered and remained in lia’s principal objection, to the effect that Court in the case of the Monetary Gold East Timor, it could or could not have ac- Portugal’s Application would require the Removed from Rome in 1943 and con- quired the power to enter into treaties on Court to determine the rights and obliga- firmed in several of its subsequent decisions behalf of East Timor relating to the re- tions of Indonesia. The declarations made (see Continental Shelf (Libyan Arab Jama- sources of its continental shelf. The Court by the Parties under Article 36, paragraph 2, hiriya/Malta), ICJ Reports 1984, p. 25, para. could not make such a determination in the of the Statute do not include any limitation 40; Military and Paramilitary Activities in absence of the consent of Indonesia. which would exclude Portugal’s claims and against Nicaragua (Nicaragua v. United 29. However, Portugal puts forward an from the jurisdiction thereby conferred upon States of America), ICJ Reports 1984, p. additional argument aiming to show that the the Court. Australia, however, contends that 431, para. 88; Frontier Dispute (Burkina principle formulated by the Court in the the jurisdiction so conferred would not en- Faso/Republic of Mali), ICJ Reports 1986, case of the Monetary Gold Removed from able the Court to act if, in order to do so, the p. 579, para. 49; Land, Island and Maritime Rome in 1943 is not applicable in the pre- Court were required to rule on the lawful- Frontier Dispute (El Salvador/Honduras), sent case. It maintains, in effect, that the ness of Indonesia’s entry into and continu- ICJ Reports 1990, pp. 114-116, paras. 54-56 rights which Australia allegedly breached ing presence in East Timor, on the validity and p. 112, para. 73; and Certain Phosphate were rights erga omnes and that accordingly of the 1989 Treaty between Australia and Lands in Nauru, ICJ Reports 1992, pp. 259- Portugal could require it, individually, to Indonesia, or on the rights and obligations 262, paras. 50-55). respect them regardless of whether or not of Indonesia under that Treaty, even if the 27. The Court notes that Portugal’s claim another State had conducted itself in a simi- Court did not have to determine its validity. that, in entering into the 1989 Treaty with larly unlawful manner. Portugal agrees that if its Application re- Indonesia, Australia violated the obligation In the Court’s view, Portugal’s assertion quired the Court to decide any of these to respect Portugal’s status as administering that the right of peoples to self- questions, the Court could not entertain it. Power and that of East Timor as a non-self- determination, as it evolved from the Char- The Parties disagree, however, as to governing territory, is based on the assertion ter and from United Nations practice, has an whether the Court is required to decide any that Portugal alone, in its capacity as admin- erga omnes character, is irreproachable. The of these questions in order to resolve the istering Power, had the power to enter into principle of self-determination of peoples dispute referred to it. the treaty on behalf of East Timor; that has been recognized by the United Nations 24. Australia argues that the decision Australia disregarded this exclusive power, Charter and in the jurisprudence of the sought from the Court by Portugal would and, in so doing, violated its obligations to Court (see Legal Consequences for States of inevitably require the Court to rule on the respect the status of Portugal and that of the continued presence of South Africa in lawfulness of the conduct of a third State, East Timor. Namibia (South West Africa) notwithstand- namely Indonesia, in the absence of that The Court also observes that Australia, ing Security Council Resolution 276 (1970), State’s consent. In support of its argument, for its part, rejects Portugal’s claim to the ICJ Reports 1971, pp. 31-32, paras. 52-53; it cites the judgment in the case of the exclusive power to conclude treaties on Western Sahara, ICJ Reports 1975, pp. 31- Monetary Gold Removed from Rome in behalf of East Timor, and the very fact that 33, paras. 54-59); it is one of the essential 1943, in which the Court ruled that, in the it entered into the 1989 Treaty with Indone- principles of contemporary international absence of Albania’s consent, it could not sia shows that it considered that Indonesia law. However, the Court considers that the take any decision on the international re- had that power. Australia in substance ar- erga omnes character of a norm and the rule sponsibility of that State since “Albania’s gues that even if Portugal had retained that of consent to jurisdiction are two different legal interests would not only be affected by power, on whatever basis, after withdrawing things. Whatever the nature of the obliga- a decision, but would form the very subject- from East Timor, the possibility existed that tions invoked, the Court could not rule on matter of the decision” (ICJ Reports 1954, the power could later pass to another State the lawfulness of the conduct of a State p. 32). under general international law, and that it when its judgment would imply an evalua- 25. In reply, Portugal contends, first, that did so pass to Indonesia; Australia affirms tion of the lawfulness of the conduct of its Application is concerned exclusively moreover that, if the power in question did another State which is not a party to the with the objective conduct of Australia, pass to Indonesia, it was acting in confor- case. Where this is so, the Court cannot act, which consists in having negotiated, con- mity with international law in entering into even if the right in question is a right erga cluded and initiated performance of the the 1989 Treaty with that State, and could omnes. 1989 Treaty with Indonesia, and that this not have violated any of the obligations 30. Portugal presents a final argument to question is perfectly separable from any Portugal attributes to it. Thus, for Australia, challenge the applicability to the present question relating to the lawfulness of the the fundamental question in the present case case of the Court’s jurisprudence in the case conduct of Indonesia. According to Portu- is ultimately whether, in 1989, the power to of the Monetary Gold Removed from Rome gal, such conduct of Australia in itself con- conclude a treaty on behalf of East Timor in in 1943. It argues that the principal matters stitutes a breach of its obligation to treat relation to its continental shelf lay with on which its claims are based, namely the East Timor as a non-self-governing territory Portugal or with Indonesia. status of East Timor as a non-self-governing and Portugal as its administering Power; 28. The Court has carefully considered territory and its own capacity as the admin- and that breach could be passed upon by the the argument advanced by Portugal which istering Power of the Territory, have al- Court by itself and without passing upon the seeks to separate Australia’s behaviour from ready been decided by the General Assem- Page 16 East Timor Documents, Volume 38. Timor Gap Case decided. bly and the Security Council, acting within 32. The Court finds that it cannot be in- finding by the Court regarding the existence their proper spheres of competence; that in ferred from the sole fact that the above- or the content of the responsibility attrib- order to decide on Portugal’s claims, the mentioned resolutions of the General As- uted to Australia by Nauru might well have Court might well need to interpret those sembly and the Security Council refer to implications for the legal situation of the decisions but would not have to decide de Portugal as the administering Power of East two other States concerned, but no finding novo on their content and must accordingly Timor that they intended to establish an in respect of that legal situation will be take them as “givens"; and that conse- obligation on third States to treat exclu- needed as a basis for the Court’s decision quently the Court is not required in this case sively with Portugal as regards the on Nauru’s claims against Australia. Ac- to pronounce on the question of the use of continental shelf of East Timor. The Court cordingly, the Court cannot decline to exer- force by Indonesia in East Timor or upon notes, furthermore, that several States have cise its jurisdiction.” (ICJ Reports 1992, pp. the lawfulness of its presence in the Terri- concluded with Indonesia treaties capable of 261-262, para. 55.) tory. application to East Timor but which do not However, in this case, the effects of the Australia objects that the United Nations include any reservation in regard to that judgment requested by Portugal would resolutions regarding East Timor do not say Territory. Finally, the Court observes that, amount to a determination that Indonesia’s what Portugal claims they say; that the last by a letter of 15 December 1989, the Per- entry into and continued presence in East resolution of the Security Council on East manent Representative of Portugal to the Timor are unlawful and that, as a conse- Timor goes back to 1976 and the last United Nations transmitted to the Secretary- quence, it does not have the treaty-making resolution of the General Assembly to 1982, General the text of a note of protest ad- power in matters relating to the continental and that Portugal takes no account of the dressed by the Portuguese shelf resources of East Timor. Indonesia’s passage of time and the developments that Embassy in Canberra to the Australian rights and obligations would thus constitute have taken place since then; and that the Department of Foreign Affairs and Trade on the very subject-matter of such a judgment Security Council resolutions are not the occasion of the conclusion of the Treaty made in the absence of that State’s consent. resolutions which are binding under Chapter on 11 December 1989; that the letter of the Such a judgment would run directly counter VII of the Charter or otherwise and, Permanent Representative was circulated, at to the “well-established principle of interna- moreover, that they are not framed in his request, as an official document of the tional law embodied in the Court’s Statute, ma31.ndatory The Courtterms. notes that the argument of forty-fifth session of the General Assembly, namely, that the Court can only exercise Portugal under consideration rests on the under the item entitled “Question of East jurisdiction over a State with its consent” premise that the United Nations resolutions, Timor,” and of the Security Council; and (Monetary Gold Removed from Rome in and in particular those of the Security that no responsive action was taken either 1943, ICJ Reports 1954, p. 32). Council, can be read as imposing an obliga- by the General Assembly or the Security 35. The Court concludes that it cannot, in tion on States not to recognize any authority Council. this case, exercise the jurisdiction it has by on the part of Indonesia over the Territory Without prejudice to the question virtue of the declarations made by the Par- and, where the latter is concerned, to deal whether the resolutions under discussion ties under Article 36, paragraph 2, of its only with Portugal. The Court is not per- could be binding in nature, the Court con- Statute because, in order to decide the suaded, however, that the relevant resolu- siders as a result that they cannot be re- claims of Portugal, it would have to rule, as tions went so far. garded as “givens” which constitute a suffi- a prerequisite, on the lawfulness of Indone- For the two Parties, the Territory of East cient basis for determining the dispute be- sia’s conduct in the absence of that State’s Timor remains a non-self-governing terri- tween the Parties. consent. This conclusion applies to all the tory and its people has the right to self- 33. It follows from this that the Court claims of Portugal, for all of them raise a determination. Moreover, the General As- would necessarily have to rule upon the common question: whether the power to sembly, which reserves to itself the right to lawfulness of Indonesia’s conduct as a pre- make treaties concerning the continental determine the territories which have to be requisite for deciding on Portugal’s conten- shelf resources of East Timor belongs to regarded as non-self-governing for the pur- tion that Australia violated its obligation to Portugal or Indonesia, and, therefore, poses of the application of Chapter XI of respect Portugal’s status as administering whether Indonesia’s entry into and contin- the Charter, has treated East Timor as such Power, East Timor’s status as a non-self- ued presence in the Territory are lawful. In a territory. The competent subsidiary organs governing territory and the right of the peo- these circumstances, the Court does not of the General Assembly have continued to ple of the Territory to self-determination deem it necessary to examine the other ar- treat East Timor as such to this day. Fur- and to permanent sovereignty over its guments derived by Australia from the non- thermore, the Security Council, in its wealth and natural resources. participation of Indonesia in the case, resolutions 384 (1975) and 389 (1976) has 34. The Court emphasises that it is not namely the Court’s lack of jurisdiction to expressly called for respect for “the necessarily prevented from adjudicating decide on the validity of the 1989 Treaty territorial integrity of East Timor as well as when the judgment it is asked to give might and the effects on Indonesia’s rights under the inalienable right of its people to self- affect the legal interests of a State which is that treaty which would result from a judg- determination in accordance with General not a party to the case. Thus, in the case of ment in favour of Portugal. Assembly resolution 1514 (XV).” Certain Phosphate Lands in Nauru (Nauru 36. Having dismissed the first of the two Nor is it at issue between the Parties that v. Australia), it stated, inter alia, as follows: objections of Australia which it has exam- the General Assembly has expressly re- “In the present case, the interests of New ined, but upheld its second, the Court finds ferred to Portugal as the “administering Zealand and the United Kingdom do not that it is not required to consider Australia’s Power” of East Timor in a number of the constitute the very subject-matter of the other objections and that it cannot rule on resolutions it adopted on the subject of East judgment to be rendered on the merits of Portugal’s claims on the merits, whatever Timor between 1975 and 1982, and that the Nauru’s Application ... In the present case, the importance of the questions raised by Security Council has done so in its resolu- the determination of the responsibility of those claims and of the rules of international tion 384 (1975). The Parties do not agree, New Zealand or the United Kingdom is not law which they bring into play. however, on the legal implications that flow a prerequisite for the determination of the 37. The Court recalls in any event that it from the reference to Portugal as the admin- responsibility of Australia, the only object has taken note in the present Judgment istering Power in those texts. of Nauru’s claim. ... In the present case, a (paragraph 31) that, for the two Parties, the East Timor Documents, Volume 38. Timor Gap Case decided. Page 17
Territory of East Timor remains a non-self- ‘Timor Gap’ and the negotiation, cur- governing territory and its people has the CONCURRING OPINIONS rently in progress, of the delimitation of right to self-determination. that same shelf with that same third 38. For these reasons, State [Indonesia]” (Application, para. 2; THE COURT, SEPARATE OPINION OF emphasis added). 3. If there had been anything for Portugal By 14 votes to 2, JUDGE ODA to complain about this would not have been Finds that it cannot in the present case 1. I voted in favour of the Judgment be- “the opposability” to any State of either exercise the jurisdiction conferred upon it cause I agreed with the Court that the Ap- “the duties of, and delegation of authority by the declarations made by the Parties plication brought by Portugal against Aus- to, Portugal as the administering Power of under Article 36, paragraph 2, of its Statute tralia on 22 February 1991 should be dis- the Territory of East Timor,” or “the right to adjudicate upon the dispute referred to it missed, as the Court lacks jurisdiction to of the people of East Timor to self- by the Application of the Portuguese Re- entertain it. determination, and the related rights” (Ap- public. However, I am unable to subscribe to the plication, para. 1). Any complaint could IN FAVOUR: President Bedjaoui; Vice- reason given by the Court for this finding, only have related to Portugal’s alleged title, President Schwebel; Judges Oda, Sir Robert that is, that whether as an administering Power or oth- Jennings, Guillaume, Shahabuddeen, Agui- “[the Court] cannot, in this case, erwise, to the Territory of East Timor to- lar-Mawdsley, Ranjeva, Herczegh, Shi, exercise the jurisdiction it has by vir- gether with the corresponding title to the Fleischhauer, Koroma, Vereshchetin; Judge tue of the declarations made by the area of continental shelf which would over- ad hoc Sir Ninian Stephen; Parties under Article 36, paragraph 2, lap with that of Australia. In this respect AGAINST: Judge Weeramantry; Judge of its Statute because, in order to de- Portugal, in its Application, has given an ad hoc Skubiszewski. cide the claims of Portugal, it would incorrect definition of the dispute and seems Done in English and in French, the Eng- have to rule, as a prerequisite, on the to have overlooked the difference between lish text being authoritative, at the Peace lawfulness of Indonesia’s conduct in the opposability to any State of its rights Palace, The Hague, this thirtieth day of the absence of that State’s consent” and duties as the administering Power or of June, one thousand nine hundred and (Judgment, para. 35; emphasis added.) the rights of the people of East Timor and ninety-five, in three copies, one of which When it refers to the “consent” of Indo- the more basic question of whether Portugal will be placed in the archives of the Court nesia the Court itself seems to be uncertain is the State entitled to assert these rights and and the others transmitted to the Govern- as to what this “consent” of Indonesia duties. ment of the Portuguese Republic and the would have meant. Would it have meant In particular Portugal contends, with re- Government of the Commonwealth of Aus- that, in order for the Court to exercise its gard to paragraph (b) in the quotation in tralia, respectively. jurisdiction, Indonesia would have had to paragraph 2 above, that the right of the peo- Mohammed BEDJAOUI, President. have intervened in these proceedings or ple of East Timor to self-determination and Eduardo VALENCIA-OSPINA, Regis- would it have meant that Indonesia would the related rights guaranteed by the UN trar. have had to have accepted that jurisdiction Charter to a people still under the control of Judges ODA, SHAHABUDDEEN, under Article 36(2) of the Statute? a colonial State or of an administering RANJEVA and VERESHCHETIN append For my part, I believe that the Court can- Power for Non-Self-Governing territories separate opinions to the Judgment of the not adjudicate upon the Application of Por- should be respected by the whole interna- Court. tugal for the sole reason that Portugal tional community under whichever author- Judge WEERAMANTRY and Judge ad lacked locus standi to bring against Austra- ity and control that people may be placed. hoc SKUBISZEWSKI append dissenting lia this particular case concerning the conti- Australia has not challenged the “right of opinions to the Judgment of the Court. nental shelf in the Timor Sea. the people of East Timor to self- (Initialled) M. B. 2. Portugal, in its Application, defined determination, and the related rights.” The (Initialled) E. V. O. the dispute, on the one hand, as “relate[d] to right of that people to self-determination the opposability to Australia: and other related rights cannot be made an (a) of the duties of, and delegation of issue -and is not an issue - of the present authority to, Portugal as the administer- case. ing Power of the Territory of East The present case relates solely to the title Timor; and to the continental shelf which Portugal (b) of the right of the people of East claims to possess as a coastal State. This Timor to self-determination, and the re- point cannot be over-emphasized. lated rights (right to territorial integrity 4. What, then, did Australia actually do and unity and permanent sovereignty to Portugal or the people of East Timor? It over natural wealth and resources)” is essential to note that, in the area of the (Application, para. 1). On the other “Timor Gap,” Australia has not asserted a hand, Australia, which did not regard new claim to any seabed area intruding into Portugal as having authority over the the area of any State or of the people of the Territory of East Timor in the late Territory of East Timor, nor has it acquired 1980’s, has only been accused by Por- any new seabed area from any State or from tugal in its Application of having en- that people (see Sketch-map on page 3). gaged in “[the] activities ... [which] In fact, Australia’s original title to the have taken the form of the negotiation continental shelf in the “Timor Gap” cannot and conclusion by Australia with a third be challenged at all by any State or by any State [Indonesia] of an agreement relat- people. Under the contemporary rules of ing to the exploration and exploitation international law, Australia is entitled ipso of the continental shelf in the area of the jure to its own continental shelf in the Page 18 East Timor Documents, Volume 38. Timor Gap Case decided. southern part of the Timor Sea - but at the deem itself to be in the position of a coastal status of the coastal State entitled to the same time a State which has territorial sov- State with sovereignty over the eastern part corresponding continental shelf (in other ereignty over East Timor, and which lies of the island of Timor (East Timor) and words, Portugal would have to be desig- opposite to Australia at a distance of whether it in fact thought that it could claim nated as State X, see Sketch-map). roughly 250 nautical miles, has the title a title to the continental shelf in the “Timor with respect to the continental shelf off its Gap.” Chart attached to the Agreement of 9 Octo- coast in the northern part of the “Timor Instead of dividing the area by drawing a ber 1972 Gap” (see Sketch-map: vertical hatching). boundary, as in the case of the 1971/1972 How far each continental shelf extends is Agreements with Indonesia as explained 7. If Portugal was the coastal State with a determined not in geographical terms but by above, Australia agreed in the 1989 Treaty claim to the continental shelf in the “Timor the legal concept of the continental shelf. with Indonesia “on the Zone of Cooperation Gap” (see Sketch-map: vertical hatching), The continental shelves to which both in an area between the Indonesian Province then the treaty which Australia concluded States are thus entitled overlap somewhere of East Timor and Northern Australia” to with Indonesia in 1989 would certainly in the middle of the “Timor Gap.” Just as in constitute a “Zone of Cooperation.” The have been null and void from the outset. the cases contemplated by Article 6(1) of content of the 1989 Treaty - what was Alternatively, if Indonesia was the coastal the 1958 Convention on the Continental gained and lost in the “Timor Gap” both by State, and thus had a right over the relevant Shelf and by Article 83(1) of the 1982 UN Australia and by the State lying opposite to area of the continental shelf (see Sketch- Convention on the Law of the Sea, Austra- it (see Sketch-map: State X as indicated map: vertical hatching), then Portugal quite lia should have negotiated with the coastal therein) - cannot be disputed, as the Treaty simply had no right to bring this case. In State lying opposite to it across the Timor was drawn up with the consent of the States order to do so, Portugal would have had to Sea (see Sketch-map: State X as indicated concerned. have been a coastal State lying opposite to therein) and did indeed negotiate with that 6. Indonesia had apparently claimed Australia. State with respect to the overlapping conti- since the 1970s the status of a coastal State In order to entertain the Application nental shelves. for the Territory of East Timor, considered against Australia with respect to the conti- 5. A recital of the events which have to be one of its provinces (as explained in nental shelf in the “Timor Gap” or, more taken place since the 1970s in relation to the paragraph 13 below), and, as such, had specifically, the area called the “Zone of delimitation of the continental shelf in the negotiated with the opposite State, Austra- Cooperation” which Australia claims in relevant areas can usefully be given at this lia, on the overlapping part of their respec- part, the Court needs to be convinced, as a stage. tive continental shelves. On that basis, Aus- preliminary issue, of the standing of Portu- Pursuant to the Agreement “establishing tralia concluded in 1989 a treaty with Indo- gal in this case as being a coastal State with certain seabed boundaries” (UNTS, Vol. nesia which would remain in force for an a claim to the continental shelf in the Timor 974, p. 307), Australia and Indonesia drew a initial 40-year term and successive terms of Sea as of 1991, the year of the Application line of delimitation east of longitude 133o 20 years unless the two States agreed oth- (see Sketch-map: State X as indicated 23’ E in the Arafura Sea on 18 May 1971 - erwise (Art. 33)(Annexes to the Applica- therein). in the area between Australia, on the one tion, p. 46). If Portugal had claimed the As I repeat, an issue on which Portugal hand, and West Irian (Indonesian territory status of a coastal State, whether as admin- could have initiated a dispute would have on the island of New Guinea) and Aru Is- istering Power of the Non-Self-Governing been its own entitlement to the continental land (Indonesian territory), on the other. On Territory or otherwise, and had thus claimed shelf off the coast of East Timor, but could 9 October 1972 the same two Governments, the corresponding title to the continental not have related to the competence of Aus- acting under the Agreement “establishing shelf in the northern part of the “Timor tralia to conclude a treaty with Indonesia. certain seabed boundaries in the area of the Gap” extending southward from the coast of 8. The present Judgment, in my view, Timor and Arafura seas, supplementary to East Timor, then Portugal could and should seems to rely heavily on the jurisprudence the Agreement of 18 May 1971” (UNTS, have initiated a dispute over that title with of the Monetary Gold case (1954). That Vol. 974, p. 319)(N.B. the Chart attached to Indonesia which had made a similar claim. case does not seem to be relevant to the this Agreement is reproduced as page 5 of The party with which Portugal should have present case as the Court found in 1954 that this opinion), defined other lines of delimi- engaged in a dispute over the conflicting “[t]o go into the merits of [questions which tation west of longitude 133o 23’ E extend- titles to the continental shelf in the northern relate to the lawful or unlawful character of ing to longitude 127o 56’ E in the area of part of the “Timor Gap” (see Sketch-map: certain actions of Albania vis-à-vis Italy]” the Timor and Arafura seas between Austra- vertical hatching) could only have been in a case brought by Italy against France, lia, on the one hand, and the Tanimbar Is- Indonesia. among other co-Respondents, “would be to lands (Indonesian territory), on the other. A dispute could have turned on which of decide a dispute between Italy and Albania” Another line was drawn westward from the two States, Indonesia or Portugal, was a and that “[t]he Court cannot decide such a longitude 126o 00’ E. This latter agreement, coastal State located on the Territory of dispute without the consent of Albania” however, left open a gap of nearly 120 nau- East Timor and thus was entitled to the (ICJ Reports 1954, p. 32). In that case “Al- tical miles between these two lines off the continental shelf extending southwards from bania’s legal interests would not only be coast of “Portuguese Timor” (as it is called the coast of the Territory of East Timor, affected by a [Court’s] decision, but would on a chart attached to the Agreement), thus meeting the continental shelf of form the very subject-matter of the deci- which was commonly known as the “Timor Australia in the middle of the “Timor Gap.” sion” (ibid.). Gap.” This is the dispute in relation to which Por- The present case is quite different in na- At that time Portugal did not, however, tugal could have instituted proceedings ture. The dispute does not relate to whether attempt to negotiate with Australia on the against Indonesia on the merits. However, Indonesia, the third State, was entitled in delimitation of the continental shelf in the any issue concerning the seabed area of the principle to conclude a treaty with Austra- area thus left open for Portugal’s benefit by “Timor Gap” could not have been the sub- lia, but rather the subject-matter of the the 1972 Agreement between Indonesia and ject- matter of a dispute between Portugal whole case relates solely to the question of Australia. This certainly leads one to ques- and Australia unless and until such time as whether Portugal or Indonesia, as a State tion whether Portugal did, at that time, Portugal had been established as having the lying opposite to Australia, was entitled to East Timor Documents, Volume 38. Timor Gap Case decided. Page 19 the continental shelf in the “Timor Gap.” the previous General Assembly and Secu- ration of the territory from Portugal and its This could have been the subject of a dis- rity Council resolutions (S/RES/218 incorporation into Indonesia. pute between Portugal and Indonesia, but (1965)). In 1972, the Security Council re- In early December 1975 Indonesia sent cannot be a matter in which Portugal and peated its condemnation of the persistent an army of 10,000 men to Dili. On 17 De- Australia can be seen to be in dispute with refusal of Portugal to implement the earlier cember 1975, the pro-Indonesian parties Indonesia as a State with “an interest of a resolutions (S/RES/312 (1972); S/RES/322 declared the establishment of a provisional legal nature which may be affected.” (1972)). government of East Timor in Dili. Respond- 9. East Timor was under Portuguese con- Portugal did not take any steps to assume ing to an alleged appeal from the people of trol from the 16th century onwards and the the duties and responsibilities of a govern- East Timor, Indonesia passed a law on 15 Constitution of Portugal of 1933 stated that ing authority in relation to those territories July 1976 providing for annexation, which the territory of Portugal comprised East which should have been treated as Non- the President of Indonesia signed on 17 July Timor in Oceania. East Timor kept the Self-Governing Territories in accordance 1976. East Timor was thus given the status status of an overseas territory of Portugal with the UN concept, and continued to re- of the 27th province of Indonesia. The Por- even after the war, in contrast to Indonesia gard them merely as its overseas provinces. tuguese authorities, which had already left which gained its independence from the 12. Following the “Carnation Revolu- the island, have never returned to East Netherlands. There is no doubt that, prior to tion” in April 1974, the Government in Timor since that time. 1974, Portugal had sovereignty over East Portugal was replaced by a new regime. The 14. As from the year 1974, which was Timor as one of its own overseas provinces “Law of 27 July 1974,” promulgated by the marked by the change in Portuguese colo- and that Portugal, as the coastal State, Council of State, revised the old Portuguese nial policy under the new regime, the Gen- would have had a right to the continental Constitution and acknowledged the right to eral Assembly continued to adopt succes- shelf in the seabed areas off the coast of self-determination - including independence sive resolutions on the implementation of East Timor in the Timor Sea. - of the territories under Portuguese admini- the Declaration on Decolonization. In its 10. On the other hand, the UN Charter stration. The new Government of Portugal 1974 resolution, the General Assembly contains a “declaration regarding Non-Self- convened conferences on decolonization in welcomed the acceptance by the new Gov- Governing Territories” (Chapter XI) under May 1975 in Dili and in June 1975 in Ma- ernment of Portugal of the principle of self- which member States which have or assume cao, to which it invited the representatives determination and independence and its responsibilities for the administration of the of several East Timorese political groups. unqualified applicability to all the peoples colonial territories, accept as a sacred trust The “Law of 17 July 1975” relating to the under Portuguese colonial domination, call- the obligation to promote the well-being of decolonization of East Timor, which re- ing upon Portugal to pursue the necessary the inhabitants of these territories and, to sulted from those conferences, was intended steps to ensure the full implementation of this end, to transmit regularly to the Secre- to put an end to the sovereignty of Portugal the “Declaration on Decolonization” tary- General statistical and other informa- over East Timor in October 1978. (A/RES/3294(XXIX)). tion of a technical nature relating to the On the other hand Indonesia, which In 1975 the General Assembly, for the territories. Portugal never supplied regular seems not to have sought previously to an- first time, adopted a resolution relating to information on its own colonies scattered nex East Timor to its own territory and had East Timor in which it called upon Portugal throughout the world and was not seen to maintained friendly relations with Portugal, as the administering Power to continue to have acknowledged that those colonies had appears to have begun considering the an- make every effort to find a solution by the status of Non-Self-Governing Territories nexation of East Timor in the 1970s. In July peaceful means through talks between the under the UN system. 1975, the President of Indonesia asserted Government of Portugal and the political In 1960 the UN General Assembly, after that East Timor would not be competent to parties representing the people of Portu- having made the “Declaration on Decoloni- attain its independence. The political group guese Timor; strongly deplored the military zation” proclaiming the right of all peoples UDT, which supported the approach of the intervention of the armed forces of Indone- to self-determination (A/RES/1514(XV)), Indonesian Government, organized a coup sia, and called upon Indonesia to desist adopted a resolution addressed in particular d’état on 11 August 1975. The local gov- from further violation of the territorial in- to Portugal in which it considered East ernment in East Timor did not receive any tegrity of Portuguese Timor and to with- Timor to be a Non-Self-Governing Territory effective assistance from Portugal itself; its draw without delay its armed forces from within the meaning of Chapter XI of the members left in August 1975 for the island the Territory in order to enable the people Charter and requested Portugal to transmit of Atauro north of Timor and, in December of the Territory freely to exercise their right to the Secretary-General information on 1975, moved away from that island and thus to self-determination and independence East Timor, among other Non-Self- left the area. Portugal did not accept the (A/RES/3485(XXX)). Governing Territories under Portuguese request of the FRETILIN group to return to Further to that General Assembly resolu- control (A/RES/1542(XV)). East Timor and Indonesia began to prepare tion, the Security Council, on 22 December 11. Between 1961 and 1973 the General for a large-scale military invasion of the 1975, deplored the intervention of the Assembly repeatedly appealed to Portugal territory. These developments marked the armed forces of Indonesia in East Timor, to comply with the decolonization policy of end of Portuguese rule in East Timor. regretting that the Government of Portugal the UN and continued to condemn Portu- 13. On 28 November 1975 the was not discharging fully its responsibilities gal’s colonial policy and its persistent re- FRETILIN declared the full independence as administering Power in the territory un- fusal to carry out that UN policy. In 1963 of the territory and the establishment of the der Chapter XI of the Charter, called upon the Security Council for its part deprecated Democratic Republic of East Timor. On the Indonesia to withdraw all its forces from the the attitudes of the Portuguese Government other hand, some other political parties, Territory without delay, and called upon and its repeated violations of the principles such as UDT and APODETI, which consid- Portugal as administering Power to co- of the Charter, urgently calling upon Portu- ered that it would be difficult for East operate fully with the United Nations so as gal to implement the decolonization policy Timor to maintain its independence, were to enable the people of East Timor to exer- (S/RES/180 (1963); S/RES/183 (1963)), willing to be annexed by Indonesia and on cise freely their right to self-determination and in 1965 once again passed a resolution 30 November 1975 the representatives of (S/RES/384 (1975)). Several months later, deploring Portugal’s failure to comply with those groups made a declaration of the sepa- on 22 April 1976, the Security Council once Page 20 East Timor Documents, Volume 38. Timor Gap Case decided. again passed a resolution in which it did not Committee, the General Assembly has de- been considered - at least since the early refer to the responsibility of Portugal as the ferred consideration of the item of East 1980s - to be a coastal State lying opposite administering Power of East Timor but was Timor to the subsequent session ever since to Australia and that in 1991, when Portu- only concerned with the military interven- that time. The question of East Timor may gal’s Application was filed in the Registry tion of Indonesia in that territory be said to be a subject which has been of the Court, it did not have any authority (S/RES/389 (1976)) . shelved since 1983. over the region of East Timor, from the 15. In a resolution of 1976, the General 17. Portugal, which was willing to grant coast of which the continental shelf extends Assembly, following the same approach as independence to the people of East Timor southwards in the Timor Sea. the one adopted in the previous year, upheld under the new Constitution of 1974, has not 20. It follows that Portugal lacks stand- the rights of the people of East Timor and exercised any authority over the territory ing as an Applicant State in this proceeding strongly criticised the action of Indonesia ever since the local authority was forced to which relates to the continental shelf ex- (A/RES/31/53). It should be noted, how- leave East Timor in 1975 on account of the tending southward into the Timor Sea from ever, that Indonesia’s claim that East Timor turmoil in the island. Portugal has not, since the coast of East Timor in the “Timor Gap.” should be integrated into its territory was 1974, supplied any information or statistics For this reason alone, the Court does not, in rejected solely in order to uphold the rights as required under the UN Charter and my view, have jurisdiction to entertain the of the people of East Timor but not to pro- under the 1960 “Declaration on Decolo- Application of Portugal and the Application tect the rights and duties of the State of nization.” The United Nations, when deal- must be dismissed. Portugal in relation to East Timor or the ing with the problem of East Timor since Shigeru ODA. status of Portugal as the administering 1976, has never indicated that Portugal Power. In 1977 the General Assembly kept should have the right and the duty to admin- to the outline of the previous year’s resolu- ister this area as a Non-Self-Governing SEPARATE OPINION OF tion (A/RES/32/34); the Government of Territory. JUDGE RANJEVA Portugal did not feature in this resolution at The authority of Indonesia has been ex- [Translation] all. In 1978 the General Assembly desisted ercised in the territory for nearly 20 years from its rejection of Indonesia’s claim that since that time. The United Nations has not While the Court is to be applauded for East Timor had been integrated. The 1978 given its approval to the annexation of East recalling that the right of peoples to self- resolution made no request for the with- Timor by Indonesia. However the rejection determination is one of the essential princi- drawal of the Indonesian military from East of Indonesia’s claim that East Timor should ples of customary international law, pos- Timor, but emphasised the inalienable right be integrated into its territory disappeared sessing the characteristic of an absolute of the people of East Timor to self- from the 1978 resolution and the demand right erga omnes and for upholding the determination and independence, and the for the withdrawal of the Indonesian army Australian objection to the effect that Por- legitimacy of their struggle to exercise that ceased to be made. The fact is that the inter- tugal’s application would necessitate a rul- right (A/RES/33/39). Since then the posi- est of the General Assembly was directed ing on the rights and obligations of Indone- tion of the General Assembly has remained more to humanitarian aid than to the form sia, it is nevertheless regrettable that this the same; that is, the emphasis has been of administration of the territory. case should not have led the Court to ana- upon the relief of the people of East Timor 18. The incident which took place in lyze the extent and limitations of the juris- (see A/RES/34/40, A/RES/35/27 and 1991 at the Santa Cruz Cemetery in Dili in prudence in Monetary Gold. It would have A/RES/36/50). East Timor was extremely serious from this been appropriate to highlight the true over- 16. In 1980 the General Assembly wel- very standpoint. Whether the right of the all economy of the 1954 Judgment, to en- comed the diplomatic initiative taken by the people of East Timor to self-determination sure that no doubt remained regarding ques- Government of Portugal with a view to has been duly respected by Indonesia may tions of jurisdiction at a time when recourse finding a comprehensive solution to the well be questioned in some other proceed- to the jurisdiction of the Court is receiving problem of East Timor, and indicated that ings before the Court or in the different fora growing support from the international the General Assembly had heard the state- of the United Nations. community. The virtue of this approach ments of the representative of Portugal (as While the military intervention of Indo- would have been all the more instructive in the administering Power), the representative nesia in East Timor and the integration of that it could usefully have been supple- of Indonesia, various East Timorese peti- East Timor into Indonesia in the mid-1970s mented by meticulous analysis of that tioners and representatives of non- were not approved by the United Nations, State’s request on the basis of a considera- governmental organizations, as well as the there has not been any reason to assume that tion of its subject-matter. Such an im- representative of FRETILIN Portugal has, since the late 1970s and up to provement would not have affected the (A/RES/35/27). the present time, been entrusted with the operative part of the Judgment delivered by In 1982 the General Assembly, after hav- rights and responsibilities of an administer- the Court in this case. ing heard the statements of the representa- ing Power for the Non-Self-Governing Ter- I. ANALYSIS OF THE CASE LAW IN tives of Portugal, Indonesia, the FRETILIN ritory of East Timor. Few States in the in- MONETARY GOLD and others, requested the Secretary-General ternational community have in the recent The consensual nature of international to initiate consultations with all parties di- past regarded, or at present regard, Portugal jurisdiction prohibits the Court from adjudi- rectly concerned with a view to exploring as a State located in East Timor or would cating on the legal interests of a State which avenues for achieving a comprehensive maintain that as such it may lay claim to the has not clearly expressed its consent to ju- settlement of the problem (A/RES/37/30). continental shelf off the coast of East risdiction. Such was the basic principle The consultations thus requested in the Timor. evoked by the Judgment of 1954. In the 1982 resolution have not yet yielded any 19. Irrespective of the status of East present case, was it necessary for the Court fruitful result. Timor -which is still in abeyance according to adjudicate, as a prerequisite, by applying The General Assembly has included an to the United Nations - and irrespective of the jurisprudence of the Monetary Gold, on item on the “Question of East Timor” on the the rights of the people of East Timor to the lawfulness of Indonesia’s presence in agenda of every session since 1983. How- self-determination guaranteed by the UN the territory of East Timor? This is the crux ever, on the recommendation of the General Charter, it is clear that Portugal has not East Timor Documents, Volume 38. Timor Gap Case decided. Page 21 of the matter. The Judgment responds posi- rights. Notwithstanding the mandate or regarded as in the same position as tively to this question by means of petitio trusteeship agreements, which determined Albania in that case, so as to be truly principii, whereas it would perhaps have the legal situation of the relations between indispensable to the pursuance of the been preferable to ponder how far the the three mandatory or trust powers, the proceedings.” (Judgment of 26 No- analysis of the structure of the Court’s rea- Court did not find it necessary, as a prereq- vember 1984, ICJ Reports 1984, p. soning, both in 1954 and in 1992, in the uisite, to rule on the legal problems relating 431, para. 88.) case of Certain Phosphate Lands in Nauru, to relations between the United Kingdom, A prior decision, in the meaning in justified a conclusion as to whether or not it Australia and New Zealand. which it is understood in the Judgment de- was valid to transpose the jurisprudence of To analyze these propositions, the ele- livered in the case of the Monetary Gold Monetary Gold. ments pertinent to an understanding of the would be essential, it seems to me, when the The conclusive passage in the 1954 decision by which the Court accepts the object of that prior decision is subjective Judgment deserves to be recalled: “In the exercise of its jurisdiction must be called to rights, in other words, rights relating to the present case, Albania’s legal interests would mind. To begin with, the very subject- legal situation of a State which has not con- not only be affected by a decision, but matter of the Judgment concerns Australia’s sented to the jurisdiction or which does not would form the very subject-matter of the obligation to reply before the Court to the appear before the Court. Can the same prin- decision. In such a case, the Statute cannot allegations that it has violated its obliga- ciple be transposed in cases where the prior be regarded, by implication, as authorizing tions as mandatory then trust power. Sec- decision concerns a question of objective proceedings to be continued in the absence ondly, as regards the actual subject-matter rights opposable erga omnes? This question of Albania.” (ICJ Reports 1954, p. 32.) of the procedural rights, the act of seising can no longer be avoided since the jus co- This conclusion is explained by the logi- the Court has the effect of imposing a gen- gens falls within the province of positive cal sequence of propositions which form the eral, impersonal system, in other words, a law. The difficulty resides in the fact that, structure of the Court’s reasoning. The se- system of objective law, upon the various by nature, the rules of objective law tran- quence of this reasoning is as follows: the players involved, be they the Parties them- scend the order of conventional rules and reply to the question of the possible respon- selves or the Court; in other words, the legal that disputes involving objective law call sibility of Albania vis-à-vis Italy, the de- ties resulting from the seisin of the Court into question the legal interests of third termining proposition, subsequently condi- are not contractual or subjective in nature, States. Is the purpose of the rule of the tioned the possibility of the reply to the since the modifications proposed by the Monetary Gold to limit the domain of the question of the definitive attribution of the parties to a case originate in Article 101 of Court’s jurisdiction ratione juris solely to Albanian Gold, the substance of the dispute. the Rules. disputes involving subjective rights? To In other words, the determining proposition It is therefore the objective nature of the refer without any explanation to the juris- turned upon a question of subjective per- legal relations which exist between those prudence in Monetary Gold leaves too sonal rights governing mutual relations involved in the proceedings, relations many questions open for it to satisfy the between two legal entities, whereas the stemming from the act of seisin, which ex- requirements of the good administration of principal question turned upon a true objec- plains, in the preliminary phase, the fact justice, one of whose components is the tive point of law: the attribution of the gold. that the Court did not deem it necessary to foreseeability of legal decisions; this obser- This being so, it was impossible for a court transpose the jurisprudence of the Monetary vation is all the more valid since the same of a consensual nature to adjudicate upon a Gold, inasmuch as that jurisprudence re- results could have been obtained and rein- question of subjective rights without the quired that a dispute implicating a State forced on the basis of an actual analysis of consent of all the parties concerned: the absent from the proceedings should first be Portugal’s Application. relevant decision, by a constitutive act or by settled. In the present case, the structure of a declarative act, would have determined the Portuguese Application presupposes that II. SUBJECT- MATTER OF the substance of the rights and obligations the givens of the dispute, which have given PORTUGAL’S APPLICATION governing the relations between the Parties. rise to an agreement of principle by the two In my view, a scrupulous examination of On reading the conclusive paragraph of Parties in contention, concern a question of the subject-matter of Portugal’s Application the Judgment of 1992 in the case of Certain an objective right erga omnes, namely, East did not oblige the Court, as a prerequisite, Phosphate Lands in Nauru, one may wonder Timor’s acknowledged status as a non-self- to adjudicate on the lawfulness of the entry whether one is not faced with a departure governing territory and the right of the peo- into and continued presence of Indonesia in from previous doctrine: ple of Timor to self determination. Hence, the territory of East Timor; such an ap- “In the present case, a finding by in logical terms, one is faced with a hy- proach would also have led to the conclu- the Court regarding the existence or, pothesis which is the inverse of that envis- sion that the Court could not exercise the the content of the responsibility at- aged in the Monetary Gold. This observa- jurisdiction which it possesses by virtue of tributed to Australia by Nauru might tion causes one to wonder whether it was the acceptance by Portugal and Australia of well have implications for the legal adequate purely and simply to refer to the the jurisdiction of the Court under Article situation of the two other States con- principle set out in that Judgment. 36, paragraph 2, of the Statute. Portugal is cerned, but no finding in respect of In the case of the Military and Paramili- simultaneously pursuing three objectives: that legal situation will be needed as a tary Activities in and against Nicaragua first, the preservation of the right of the basis for the Court’s decision on (Nicaragua v. United States of America), people of East Timor to self-determination; Nauru’s claims against Australia. Ac- moreover, did the Court not recall the in- second, the “nullification” of the obligations cordingly, the Court cannot decline to trinsic limits on the scope of the jurispru- stipulated by Australia and Indonesia in the exercise its jurisdiction.” (ICJ Reports dence in Monetary Gold in the following 1989 Treaty and, at the same time, depriv- 1992, pp. 261-262.) terms? - ing Indonesia of the benefit of the legal The problem of the 1992 Judgment turns “The circumstances of the Mone- effects of the principle pacta sunt servanda. upon a preliminary objection relating to the tary Gold case probably represent the One is therefore faced with an Application jus standi ut singuli of Australia as Respon- limit of the power of the Court to re- concerning a dispute relating to questions of dent in a dispute about responsibility, in fuse to exercise its jurisdiction; and objective rights and subjective rights. An other words in the context of subjective none of the States referred to can be examination of the relations between the Page 22 East Timor Documents, Volume 38. Timor Gap Case decided. propositions concerning each type of right In my view, the difficulties the Court had also bars the Court from adjudicating upon shows that the questions of objective rights to confront resulted from the fact that it was the submissions in the Application of the are the justification for matters of subjective difficult to establish the summa divisio Portuguese Republic. rights being taken into account, which must between the parties and the third party in an * * be regarded as the Applicant’s principal and international act: Australia is the centre of Besides Indonesia, in the absence of final conclusion. Moreover, this cause and gravity of the whole case. But is it realistic whose consent the Court is prevented from effect relationship between the submissions to consider that State as an absolute third exercising its jurisdiction over the Applica- of the Application calls to mind the distinc- party, falling within the residual category tion, there is another “third party” in this tion between submissions and false submis- exterior to the circle of the Parties: Portugal case, whose consent was sought neither by sions, as highlighted by the Court in the vis-à-vis the 1989 Treaty and Indonesia vis- Portugal before filing the Application with Minquiers and Ecrehos case (Judgment of à-vis the Judgment? This approach, bearing the Court, nor by Australia before conclud- 17 November 1953, ICJ Reports 1953, p. the hallmark of realism, reveals the limita- ing the Timor Gap Treaty. Nevertheless, the 52). tions of an [abstract and] theoretical view of applicant State has acted in this Court in the In the present dispute, by partly but prin- the principle of the relative effect of the name of this “third party” and the Treaty cipally requiring the “nullification” of the conventions and of res judicata. has allegedly jeopardized its natural re- treaty obligations entered into by Australia Realism in such a tricky case should sources. The “third party” at issue is the vis-à-vis Indonesia and thus depriving In- have led the Court to offer the Parties in- people of East Timor. donesia of the benefit of the effects of the volved an appropriate legal framework for Since the Judgment is silent on this mat- principle pacta sunt servanda, a decision of holding in check the undesirable effects of a ter, one might wrongly conclude that the the Court would have adjudicated directly legal act or a situation. In acting thus, the people, whose right to self-determination upon Indonesia’s rights. Such a solution Court would not be concerned with choos- lies at the core of the whole case, have no cannot be accepted in international law ing between the practical measures which role to play in the proceedings. This is not without there being any need, as a prerequi- the interested States or the competent or- to suggest that the Court could have placed site, for a decision relating to the lawfulness gans of the United Nations can take in order the States Parties to the case and the people of the entry into and continued presence of to solve the more general problem of East of East Timor on the same level proce- Indonesia in the territory of East Timor. Timor. In adjudicating on the submissions durally. Clearly, only States may be parties Where the questions of objective rights are relating to the fundamental questions of in cases before the Court (Article 34 of the concerned, the Court observes that there is procedure, the Court could have spelled out Statute of the Court). This is merely to say no longer any reason to adjudicate on that the scope of the jurisprudence relating to the that the right of a people to self- part of Portugal’s submission which calls prior decision in its relations with the multi- determination, by definition, requires that for the right of the people of East Timor to ple facets which have attracted the attention the wishes of the people concerned at least self-determination to be declared opposable of the two Parties in dispute and precluded be ascertained and taken into account by the to Australia. The Judgment takes note of the the possibilities for erroneous interpretation Court. fact that the dispute in the relations between of the Judgment. To do so in this case the Court should the two Parties on this point has been re- It was a difficult exercise but one to have had reliable evidence on how far the solved during the proceedings; but in so which a solution proved possible, inasmuch Application was supported by the people of doing, has the Court not deprived itself of as the operative part itself did not pose any East Timor. It was especially important in the opportunity to indicate in detail the fate problems. But in dealing with these difficul- the circumstances of the case, where the it intended to reserve to its jurisdiction, ties, the Court is laying down the frame- rights consequential to the status of Portugal since a dispute arose turning upon an objec- work for the development of international as administering Power, including the right tive right? law and performing one of its principal to litigate before the Court for the people of On examination, the agreement of prin- functions, described by Sir Robert Jennings East Timor, were strongly contested by the ciple reached between Portugal and Austra- in the following terms: respondent State. I have no desire whatever lia concerning the right of the people of “Ad hoc tribunals can settle particular to cast any doubt on Portugal’s good inten- Timor shows the acceptance, by them, of a disputes; but the function of the established tions in bringing the case before the Court. norm of international law, the expression of ‘principal judicial organ of the United Na- However, without clear evidence to the convictio juris, whose legal consequences tions’ must include not only the settlement contrary, the Court cannot easily dismiss must be deduced, both as regards the Appli- of disputes but also the scientific develop- the contention that, 20 years after the loss of cant and the Respondent. In ruling that the ment of general international law ... there is effective control of the Territory, Portugal case should be dismissed, the Judgment has therefore nothing strange in the ICJ fulfill- is not in a position to act in the Court with refrained from adjudicating upon a dispute ing a similar function for the international full knowledge of the wishes and views of between the Parties which is still pending - community.” (Judge Sir Robert Jennings, the majority of the East Timorese people. the legal consequences of the agreement of “The Role of the International Court of Even under normal circumstances, the principle concerning the right of the people Justice in the Development of International denomination of an applicant State as ad- of East Timor to self-determination; the Environmental Protection Law.”) ministering Power does not diminish the Judgment should have done this by showing Raymond RANJEVA. necessity for the Court to check its claims the need for a prior decision in order to by reference to the existing evidence of the adjudicate upon this question of objective will of the people concerned. As was ob- law, which it does not do. SEPARATE OPINION OF JUDGE VERESHCHETIN served by Portugal in the oral pleadings, the But could the Court, in the context of the right of a people to self-determination pre- interpretation it has given of the jurispru- While I am in agreement with the Judg- sumes that: dence of Monetary Gold, go beyond a sim- ment delivered by the Court, I feel obliged “In the concrete situation it must ple acknowledgment, in legal terms, of a to deal in this opinion with one important be looked at to see whether the inter- situation of fact, from which it does not issue which, in my view, although not ad- ests of an administering Power (if as draw the legal consequences? dressed in the reasoning of the Judgment, is usual, it is still in effective control), East Timor Documents, Volume 38. Timor Gap Case decided. Page 23
or any other power, really coincide and therefore did not sound convincing. ern Sahara case, where the consultation of with those of the people.” (CR 95/13, However, since the Court, for the reasons the inhabitants of a given territory “was p. 36, para. 88 (Prof. Higgins).) stated in the body of the Judgment, stopped totally unnecessary, in view of special cir- This would seem to suggest that the short of deciding the dispute on the merits, cumstances,” in the case before the Court same requirements apply a fortiori to an it could not be expected to pronounce on the “special circumstances” described above administering Power which for many years Australia’s duty (or lack of it) to consult the dictate the necessity for the Court at least to has not been in effective control of the terri- East Timorese people. ascertain the views of the East Timorese tory concerned. Portugal also asserted that it The matter is quite different when it representatives of various trends of opinion represents the territory of East Timor in the comes to Portugal’s duty to consult the on the subject matter of the Portuguese domain of relations between States “in close leaders or representatives of the people Application. contact with the representatives of the peo- before submitting the case to the Court on In the absence of direct evidence of these ple of East Timor” (CR 95/12, p. 63, para. its behalf. In the latter instance, the question views, which admittedly may be difficult to 21 was connected with the admissibility of the obtain given the present situation in East (Prof. Correia)). It reproached Australia Application and remained within the Timor, the Court could have been provided (in principle quite rightly) for not having framework of the preliminary jurisdictional with the opinion of the appropriate organs previously “secured the approval of the finding of the Court. The Court should have of the United Nations, which exercise over- peoples of the territory through their lead- reacted to the repeated statements by Portu- all supervision of the non-self-governing ers” of the Treaty at issue (CR 95/13, p. 38, gal that its rights and interests in this case territories. However, the Court has not had para. 94 (Prof. Higgins)). were only “functional” and that “the main its attention drawn to any pronouncements After all these statements, one might interest in bringing the present proceedings of the Security Council, the General As- have expected Portugal’s Application to be belongs to the people of East Timor” (CR sembly, the Committee of 24 or any other substantiated by credible evidence that Por- 95/6, p. 56, para. 15 (Prof. Correia)). organs of the United Nations which could tugal had itself secured the support of its True, in the Western Sahara Advisory serve as an expression of the international Application by the East Timorese people. Opinion the Court noted that: community’s concern regarding the con- However, neither in the written pleadings “The validity of the principle of crete matter under consideration in the and annexed documents, nor in the course self-determination, defined as the Court. In the course of the pleadings no of the oral arguments and replies, has the need to pay regard to the freely ex- reference was made to any resolutions of Court been provided with such evidence, pressed will of peoples, is not affected these organs challenging the Timor Gap except for cursory press references which by the fact that in certain cases the Treaty, or reflecting the overt discontent of did not even mention the object of the dis- General Assembly has dispensed with the people of East Timor with that Treaty pute - the Timor Gap Treaty (e.g., CR the requirement of consulting the in- (as is the case, for instance, with the human 95/12, pp. 69-70 (Prof. Correia)). habitants of a given territory.” (ICJ rights situation in East Timor). This, more- The necessity for the Court to have this Reports 1975, p. 25, para. 59.) over, despite the fact that the Treaty had evidence was only reinforced by the fact The Court went on to say that: been under negotiation for ten years, and that the other Party in the dispute sought to “Those instances were based either that Portugal had informed the Secretary- disclaim the alleged disregard and in- on the consideration that a certain General, and through him, all the Members fringement of the legal rights and interests population did not constitute a ‘peo- of the United Nations of her protest on the of the people of East Timor. It argued, inter ple’ entitled to self-determination or occasion of its conclusion in 1989. alia, that: on the conviction that a consultation The United Nations Charter, having been “if Australia had done nothing, and was totally unnecessary, in view of adopted at the very outset of the process of refused to negotiate this agreement special circumstances.” (Ibid.) decolonization, could not explicitly impose [the Timor Gap Treaty] with Indone- In the instance of East Timor, however, on the administering Power the obligation sia, there would have been no chance the General Assembly has found it appro- to consult the people of a non-self- of any exploitation of any of the dis- priate not “to dispense” with the require- governing territory when the matter at issue puted areas: the economic benefits to ment of consulting the inhabitants of East directly concerned that people. This does the people would have been nil” (CR Timor in “exploring avenues for achieving a not mean, however, that such a duty has no 95/11, p. 42 (Prof. Bowett)). comprehensive settlement of the problem” place at all in international law at the pre- Moreover, “[I]n Australia’s view, the (General Assembly resolution 37/30 of 23 sent stage of its development and in the real situation is that East Timor will be November 1982). The Assembly required contemporary setting of the decolonization deriving economic benefits from resources the Secretary-General “to initiate consulta- process, after the adoption of the Declara- on the Australian shelf.” (Ibid., p. 44.) In its tions with all parties directly concerned” tion on the Granting of Independence to Rejoinder, Australia also argues that: “The (ibid.; emphasis added). Colonial Countries and Peoples (General Treaty is potentially far more beneficial to In accordance with this resolution, the Assembly resolution 1514 (XV)). the people of East Timor provided Indone- Secretary-General has been holding consul- In the Western Sahara Advisory Opinion sia passed on an equitable part of the bene- tations, not only with the Governments of the Court states that: “in certain cases the fits to the people.” (P. 72, para. 160.) And Indonesia and Portugal, but “with a broad General Assembly has dispensed with the that the: “Judicial recourse by Portugal cross-section of East Timorese representing requirement of consulting the inhabitants of against Australia is not, therefore, ‘le mo- various trends of opinion” as well (doc. a given territory” (ICJ Reports 1975, p. 25, yen le plus effectif’ by which the rights of SG/SM/5519 of 9 Jan. 1995). Thus, in the para. 59; emphasis added). By implication, the people of East Timor to their natural consultations under way in the United Na- it means that, as a rule, the requirement to resources can be protected.” (Ibid., p. 73, tions on the future of East Timor, the East consult does exist and only “in certain para. 160.) Timorese people is considered as a distinct cases” may it be dispensed with. The excep- The argument of Australia on this crucial party “directly concerned,” which can speak tions to this rule are stated in the same dic- matter for the case has also not been sup- for itself through its representatives. tum of the Court and, as has been shown ported by any evidence of the previous In contrast to the instances mentioned in above, they could not be held to apply in consultation of the people of East Timor, the above dictum of the Court in the West- the present case. I believe that nowadays the Page 24 East Timor Documents, Volume 38. Timor Gap Case decided. mere denomination of a State as administer- tions stem from the fact that, as was re- Indonesia without being a judgment on ing Power may not be interpreted as auto- marked by Judge Jessup, “Law is constantly those interests? matically conferring upon that State general balancing conflicting interests” (Barcelona Obviously, there could be argument con- power to take action on behalf of the people Traction, Light and Power Company, Lim- cerning marginal situations; but there is a concerned, irrespective of any concrete ited, Second Phase, ICJ Reports 1970, p. dividing line, and it is often practicable to circumstances. 206, para. 81, separate opinion). The inter- say that a given situation falls on one side In light of the above considerations, I ests which are in conflict here, and which or the other of it. Monetary Gold represents conclude that the absence of Indonesia’s need to be balanced against each other if that line. Whatever the academic criticisms, consent is but one of the reasons leading to collision is to be avoided, are those of Por- the essential principle of the case has not the inability of the Court to decide the dis- tugal in having its case determined by the been challenged. The case may be distin- pute. The other, in my opinion, no less im- Court notwithstanding possible effects of guished, but the cases distinguishing it have portant, reason is the lack of any evidence the decision on Indonesia, and those of also affirmed it. Nor would it be correct to as to the views of the people of East Timor, Indonesia in not having its rights and obli- say, without important qualification, that on whose behalf the Application has been gations determined by the Court without its since 1954 the principle of the case has in filed. consent. Problems of this kind are apt to no sense been applied; it is possible to at- Vladlen S. VERESHCHETIN. arise from the fact that, in the increasingly tribute the shape of the judgments given in complex character of international relations, some of the cases to the need to take ac- legal disputes between States are rarely count of it[3]. Certainly, where a case can- SEPARATE OPINION OF purely bilateral. The argument follows that, not be distinguished, the principle applies. JUDGE SHAHABUDDEEN as it was put to the Court in another case, if In this case, the effort of Portugal was to “the Court could not adjudicate distinguish and not to attack Monetary The case touches on important principles without the presence of all such Gold; its counsel rejected what he under- of contemporary international law - princi- States, even where the parties before stood to be an Australian attempt to “imply ples which have changed the shape of the it had consented fully to its jurisdic- that Portugal is questioning the soundness international community, altered the com- tion, the result would be a severe and of the Monetary Gold case” (CR 95/6, p. position of its leading institutions, affected unwarranted constriction of the 11, Professor Dupuy). It is not necessary to their orientation, and influenced their out- Court’s ability to carry out its func- examine all the cases, real or hypothetical, look. But, the mandate of the Court being tions” [2]. which may be thought supportive of an limited by the consensual nature of its juris- It is difficult to think of any point at attempt to distinguish Monetary Gold. Cer- diction, its decision has turned on the pre- which a balance may be struck between tain Phosphate Lands in Nauru has been liminary question how far it may adjudicate these competing considerations without the considered in the Judgment. I shall limit where the outcome would have conse- Court having sometimes to assume jurisdic- myself to one other case. quences for the legal position of a third tion notwithstanding that the interests of a Corfu Channel, Merits, comes closest to party. In support of the Judgment, I would non-party State would to some extent be the view that the Court is not necessarily add the following observations. affected, as has happened in some cases. A prevented from acting by the circumstance I. THE PRINCIPLE THAT THE fair interpretation is that what the Court has that the lawfulness of the conduct of a third COURT CANNOT EXERCISE been doing was to identify some limit be- State may seem to be involved. In that case, JURISDICTION OVER A STATE yond which the degree to which the non- the argument of Albania, as correctly re- WITHOUT ITS CONSENT party State would be affected would exceed called in Judge Weeramantry’s dissenting Reflecting a view generally held in mu- what is judicially tolerable. That limit is opinion, should have been enough to alert nicipal law, Article 59 of the Statute of the reached where, to follow the language of the Court to the question whether it could Court provides that “[t]he decision of the the Court, the legal interests of the non- properly find against Albania if it could not Court has no binding force except between party would not merely be affected by the do so without making a determination as to the parties and in respect of that particular judgment, but would constitute its very Yugoslavia’s international responsibility in case.” But it does not follow that the Court subject-matter. its absence[4]. However, it does not appear is free to determine a dispute between par- Possibly another formulation might have to me that the evidence was examined with ties in entire disregard of the implications of been invented; but the test adopted is not in a view to making a finding of international the decision for the legal position of a non- substance new to legal thought. The juridi- responsibility against Yugoslavia in respect party. Under one form or another of an “in- cal problem to be solved has recognisable of its alleged conduct; it was examined as a dispensable parties” rule, the problem in- parallels in other areas of the law: it con- method of proof, or disproof, of the British volved is solved in domestic legal systems cerns the extent to which a given course of allegation that the mines had been laid with through an appropriate exercise of the action could be regarded as lying within a the connivance of Albania. Assuming that power of joinder. The Court lacks that permissible field although it produces ef- the mine-laying operation had been carried power; and the right of intervention, or to fects within a forbidden one. No doubt with out by two Yugoslav warships, the United institute separate legal proceedings where the constitutional jurisprudence of some Kingdom argued that this possible, is not always a sufficient safe- countries in mind, in the case of the Appli- “would imply collusion between guard. Hence, when situations arise in cation of the Convention of 1902 Governing the Albanian and the Yugoslav Gov- which the requested judgment would in fact, the Guardianship of Infants Judge Spender ernments, consisting either of a re- even though not in law, amount to a deter- remarked that a “law may produce an effect quest by the Albanian Government to mination of the rights and obligations of a in relation to a subject-matter without being the Yugoslav Government for assis- non-party, the Court is being asked to exer- a law on that subject matter” (ICJ Reports tance, or of acquiescence by the Al- cise jurisdiction over a State without its 1958, p. 118). That approach could be redi- banian authorities in the laying of the consent. Monetary Gold says it cannot do rected to the problem before the Court: mines” (ICJ Reports 1949, p. 16; and that. would the requested judgment produce an ICJ Pleadings, Corfu Channel, Vol. That precedent has given rise to ques- effect in relation to the legal interests of IV, p. 495, Sir Frank Soskice). tions[1]. In a fundamental sense the ques- East Timor Documents, Volume 38. Timor Gap Case decided. Page 25
By its suggested request or acquiescence, go on to determine whether Australia en- treaty-making power lay with Portugal and Albania would make Yugoslavia’s acts its gaged international responsibility by nego- not with Indonesia. If the Court were to own; it would be by making Yugoslavia’s tiating and concluding the 1989 Treaty with accept Portugal’s interpretation of the reso- acts its own that it would engage interna- Indonesia and by commencing to implement lutions as correct, what it would be decid- tional responsibility. In effect, proof of the it. In effect, a prerequisite to a decision ing, without hearing Indonesia on a substan- mines having been laid by Yugoslavia against Australia is a determination that tial question of interpretation, is that it was would be part of the factual material evi- Indonesia did not possess the treaty-making Portugal and not Indonesia which possessed dencing the commission of acts by Albania power. In the ordinary way, the Court could the treaty-making power; acceptance of which independently engaged its interna- not make that determination without con- Portugal’s interpretation as correct would tional responsibility. A determination by the sidering whether the circumstances of Indo- merely shorten the proof of Portugal’s claim Court that Yugoslavia engaged international nesia’s entry into and continuing presence to the power. Indonesia’s legal interests responsibility by reason of its alleged con- in East Timor disqualified it from acquiring would nonetheless be determined in its duct in laying the mines would not have to the power under general international law. absence. In effect, the question is not be made for the purpose of making a find- That would involve the determination of a merely whether Portugal’s interpretation is ing of international responsibility against question of Indonesia’s responsibility in the correct, but whether, in reaching the conclu- Albania. The Court did not have before it absence of its consent. The Court cannot do sion that it is correct, the Court would be the type of issue later raised in Monetary that. passing on Indonesia’s legal interests. Gold, in which a determination that the That would seem to end the case, but for There is a further point. As the Court absent State had engaged international re- an argument by Portugal that the resolutions would be barred by the Monetary Gold sponsibility would have had to be made as a of the General Assembly and the Security principle from acting even if Portugal’s precondition to its admitted ownership of Council conclusively established its status interpretation of the resolutions were cor- the gold being legally set aside by the Court as the administering Authority; that that rect, it is possible to dispose of Portugal’s and passed on by it to others. Corfu Channel status carried with it the exclusive power to Application without the necessity for the is not at variance with Monetary Gold; nor enter into treaties on behalf of East Timor in Court to determine whether or not the reso- does it show that the latter is inapplicable to respect of the resources of its continental lutions do indeed bear the interpretation the circumstances of the instant case. shelf; that the resolutions should in these proposed by it; the Court could arrive at its In 1984 the Court observed that the “cir- respects be treated by the Court as donnees; judgment assuming, but without deciding, cumstances of the Monetary Gold case and that in consequence a decision by the that Portugal’s interpretation is correct. probably represent the limit of the power of Court on Indonesia’s legal interests would The matter may also be considered from the Court to refuse to exercise its jurisdic- not be required. the point of view of the effects of the re- tion” (Military and Paramilitary Activities However, this way of putting the matter quested judgment on the rights of Indonesia in and against Nicaragua (Nicaragua v. does not efface the fact that what Portugal is under the 1989 Treaty and on the validity of United States of America), Jurisdiction and asking the Court to accept as donnees is not the Treaty itself. Admissibility, ICJ Reports 1984, p. 431, the mere text of the resolutions, but the text First, as to Indonesia’s rights under the para. 88). True, too, outside of the prohib- of the resolutions as interpreted by Portugal. Treaty. Submission 5(b) of the requested ited area, “it must be open to the Court, and The various resolutions would constitute the judgment would require Australia to abstain indeed its duty, to give the fullest decision it basis of the Court’s decision; they would from implementing the Treaty; Indonesia may in the circumstances of each case” not remove the need for a decision to be would thus lose the benefit of implementa- (Continental Shelf (Libyan Arab Jama- taken by the Court as to what they meant. tion of the Treaty by Australia. That is not a hiriya/Malta) Application for Permission to As the Parties accept, the Court has power matter of theoretical interest; Indonesia Intervene, ICJ Reports 1984, p. 25, para. to interpret the resolutions. would be deprived of concrete benefits to 40). But these remarks also recognized that Portugal’s interpretation of the resolu- which it is entitled under the Treaty, includ- the principle of the case remains intact, tions is closely contested by Australia. The ing possible financial benefits, in much the being directly founded on the consensual issue so raised by Australia is not frivolous; same way as the judgment requested in nature of the Court’s contentious jurisdic- the Court would have to decide it. The Monetary Gold would have deprived Alba- tion. Would it apply to prevent the Court Court has done so. On the conclusion which nia of its right to the property involved in from adjudicating on the merits of Portu- it has reached, the resolutions do not suffice that case. Article 59 of the Statute of the gal’s case? to settle the question whether the treaty- Court would not protect Indonesia against making power lay with Portugal, as Portu- these effects. II. WHETHER THE REQUESTED gal claims, or with Indonesia, as Australia In El Salvador v. Nicaragua, El Salvador JUDGMENT WOULD REQUIRE THE claims. Other matters would have to be asked that “the Government of Nicaragua COURT TO DETERMINE investigated before that question could be be enjoined to abstain from fulfilling the ... INDONESIA’S LEGAL INTERESTS answered. Such other matters would include Bryan-Chamorro Treaty ...” (American The premise of Portugal’s claim is that, the question whether, by reason of its al- Journal of International Law, 1917, Vol. 11, whatever may be the basis, it possesses the leged conduct, Indonesia engaged interna- p. 683). The Central American Court of exclusive power to enter into treaties on tional responsibility which disqualified it Justice replied: behalf of East Timor in respect of the re- from acquiring that power under general “The Court is without competence sources of its continental shelf; Australia international law. Portugal accepts that the to declare the Bryan-Chamorro Treaty contends that it is Indonesia which pos- Court cannot act if the international respon- to be null and void, as in effect, the sesses the power. The premise of Portugal’s sibility of Indonesia would have to be high party complainant requests it to claim is thus in dispute. passed upon. do when it prays that the Government The Court must first resolve this dispute However, even if Portugal’s interpreta- of Nicaragua be enjoined ‘to abstain relating to Portugal’s premise, by determin- tion of the resolutions is correct, the result from fulfilling the said Bryan- ing that the treaty-making power belonged need not be affected. The prerequisite of Chamorro Treaty.’ On this point the to Portugal and therefore of necessity that it which the Court must ultimately be satisfied Court refrains from pronouncing deci- did not belong to Indonesia, before it could is that, whatever may be the basis, the sion, because, as it has already de- Page 26 East Timor Documents, Volume 38. Timor Gap Case decided.
clared, its jurisdictional power ex- ously did not consider that the argument 1943, ICJ Reports 1954, p. 33, first para- tends only to establishing the legal re- was “trivial” in so far as the requested graph). For the reasons set out above, the lations among the high parties litigant judgment would require it to determine the judgment requested by Portugal would not and to issuing orders affecting them, rights of a non-party State, inclusive of the be a judgment duly given even as between and them exclusively, as sovereign question of the validity of a treaty entered the litigating Parties. The fact that, by virtue entities subject to its judicial power. into between that State and the respondent. of Article 59 of the Statute, Indonesia To declare absolutely the nullity of It was on the clear basis that it could not would not be bound is not a reason why the the Bryan-Chamorro Treaty, or to and would not determine these matters, Court should attempt to do what it cannot grant the lesser prayer for the injunc- either directly or indirectly, that it found it legally do: the provision does not operate as tion of abstention, would be equiva- possible to declare that the respondent “is a standing reservation in law subject to lent to adjudging and deciding re- under the obligation - availing itself of all which the Court is at liberty to pronounce specting the rights of the other party possible means provided by international on the legal interests of a State in the ab- signatory to the treaty, without having law - to re-establish and maintain the legal sence of its consent. heard that other party and without its status that existed prior to the” treaty[7]. In having submitted to the jurisdiction of effect, the Court was able to assume compe- III. PORTUGAL’S FIRST the Court.” (Ibid., p. 729.) tence to act in relation to some of the reliefs SUBMISSION Although El Salvador had not asked for claimed by El Salvador, but not in relation A word may be said on the question an order declaring the Bryan/Chamorro to all. Here, by contrast, none of the reliefs whether the grounds on which the Judgment Treaty to be invalid[5], in the view of the requested by Portugal could be granted rests prevented the Court from granting the Central American Court of Justice its prayer without passing on the legal interests of an first of Portugal’s five submissions, in for an order enjoining Nicaragua “to abstain absent State. which the Court was asked from fulfilling” the Treaty was “in effect” a In an interesting and careful argument, “[t]o adjudge and declare that, request that the Court should “declare the ... counsel for Portugal submitted that first, the rights of the people of East Treaty to be null and void,” which of course “other courts ... have ruled on the Timor to self-determination, to territo- it could not do in the absence of the other violation of obligations derived from rial integrity and unity and to perma- party to the Treaty. Thus, to grant “the a treaty, in cases where there was a nent sovereignty over its wealth and lesser prayer for the injunction of absten- conflict of obligations, without ruling natural resources and, secondly, the tion” would have the same effect as a decla- on the resolution of the conflict, de- duties, powers and rights of Portugal ration of invalidity; they would both “be spite the absence of the other party to as the administering Power of the Ter- equivalent to adjudging and deciding re- the treaty from which the other in- ritory of East Timor are opposable to specting the rights of the other party signa- compatible obligation derived” (CR Australia, which is under an obliga- tory to the treaty, without having heard that 95/13, p. 55, Professor Galvão Teles). tion not to disregard them, but to re- other party and without its having submitted Counsel cited Soering v. United King- spect them.” to the jurisdiction of the Court.” The injunc- dom (EHRR, vol. 11, p. 439), The Nether- There is no need to dwell on the distinc- tion was refused. lands v. Short (ILM, 1990, Vol. 29-II, pp. tion between arguments and conclusions[8]. Second, as to the validity of the 1989 1375 et seq.) and Ng v. Canada (CC Portugal recognizes the distinction; it does Treaty. There are situations in which the PR/C/49/D.469/1991), adding that the judi- not suggest that the Court can grant its first Court may determine that an international cial function of the adjudicating bodies in submission considered as an argument in- obligation has been breached by the act of those cases obliged them “to answer the tended to support the requested judgment negotiating and concluding an inconsistent questions that were put to them. They were but not in itself constituting part of the deci- treaty, without the decision being consid- not, for example, required to decide on the sion. It is necessary then to see what is the ered as passing on the validity of the rights of the United States, which was a sense in which Portugal’s first submission treaty[6]. But a situation of that kind is party to the treaty and absent from the pro- could be regarded as part of the requested distinguishable from one in which the es- ceedings.” As this argument of counsel decision. sential ground of the alleged breach and of seems to recognise, the dividing line is set Portugal’s first submission can only be any relief sought necessarily implies that a by asking whether the requested judgment considered as part of the requested decision State which is a party to a bilateral treaty would be deciding not merely the rights of if, as the wording of the submission itself with the respondent but not a party to the the parties, but those of the absent State as implies, a judicial declaration that the case lacked the capacity in international law well. In my opinion, the judgment requested claimed rights are opposable to Australia is to enter into the treaty. Where this would be in this case would decide the rights of an required to ensure that Australia recognises the true ground of decision, as it would be absent State. Institutional and structural that it “is under an obligation not to disre- here, it is difficult to avoid the conclusion differences apart, this is a point on which gard them, but to respect them.” The impli- that the validity of the treaty was being the three cited cases are distinguishable. cation is that Australia has been disregard- passed upon in the absence of the State It was also argued for Portugal that, by ing them, and not respecting them. But, if it concerned. Further, as pointed out above, an virtue of Article 59 of the Statute of the is asked why it should be thought that Aus- order enjoining Australia from implement- Court, a judgment of the Court in favour of tralia has been disregarding them and not ing the Treaty would itself presuppose a it would be binding only as between itself respecting them, the answer can only be that finding of invalidity. and Australia; Indonesia, as a non-party to Australia has negotiated and concluded the In El Salvador v. Nicaragua, the Central the case, would not be bound. But the prob- 1989 Treaty with Indonesia and has com- American Court of Justice made it clear, lem involved is more fundamental than that menced to implement it. and rightly so, that it would not decline to to which that provision is directed. The Thus, the fundamental issue raised by act on “the trivial argument that a third provision applies to a judgment duly given Portugal’s first submission is the same as nation ... possesses interests connected with as between the litigating parties; until such the question whether the treaty-making the matters or questions in controversy.” a judgment has been given, the provision power is held in law by Portugal or by In- (American Journal of International Law, does not begin to speak (see, on this point, donesia. As the Court cannot determine that 1917, Vol. 11, p. 699.) But the Court obvi- Monetary Gold Removed from Rome in question in the absence of Indonesia, it East Timor Documents, Volume 38. Timor Gap Case decided. Page 27 cannot competently grant the submission. A to the jurisprudence of the Court, for it con- former cannot be considered apart from the submission, however worded, can only be cerns the Court’s jurisdictional reach in the latter. granted if the granting of it is necessary for wide range of third-party-related disputes At a meeting convened by the President the resolution of the dispute between the which are increasingly brought before it in a of the Court on 1 June 1992, in terms of parties to the case. If the Court cannot de- more closely interrelated world. Article 31 of the Rules of Court, the Parties termine the dispute, it cannot grant any of Had the Court ruled differently on the agreed that questions raised by Australia the submissions sought. preliminary issue of jurisdiction, there are regarding jurisdiction and admissibility numerous other issues of great importance were inextricably linked to the merits, and IV. CONCLUSION which it would have considered in its should therefore be heard and determined International law places the emphasis on Judgment. In view of its preliminary ruling, along with the merits. There was therefore a substance rather than on form. When the the Court’s Judgment stops, so to speak, “at full hearing, both on the preliminary issues matter is thus regarded, it is apparent that the threshold of the case” [1]. It therefore and on the merits. Portugal’s Application would require the does not examine such seminal issues as the This was in line with the position stated Court, in the absence of Indonesia, to de- duties flowing to Australia from the right to in the Australian Counter-Memorial that: termine Indonesia’s legal interests, inclusive self-determination of the people of East “these bars to the Court’s right to of its claim to the treaty-making power in Timor or from their right to permanent sov- hear the claim are, in this case, inex- respect of East Timor and a question of its ereignty over their natural resources. It does tricably linked with the merits so that international responsibility, as a prerequisite not examine the impact of the Timor Gap it could be difficult to deal with them to a determination of Portugal’s claim that Treaty upon their rights. It does not exam- separately and to establish that they Australia engaged international responsibil- ine the ius standi of Portugal to institute this possess an exclusively preliminary ity to Portugal by negotiating and conclud- action on behalf of the people of East character” (Counter-Memorial, p. 9, ing the 1989 Treaty with Indonesia and by Timor. para. 20). commencing to implement it. I agree that The preliminary objection to the ius In the result, this case does not present the Court cannot act. standi of Portugal calls into question the that sharp division between questions of Mohamed SHAHABUDDEEN. adequacy of the entire protective structure jurisdiction and admissibility, and questions fashioned by the UN Charter for safeguard- relating to the merits, that is often present in ing the interests of non-self-governing terri- cases before this Court, such as the South TEXT OF DISSENTS tories, not yet in a position themselves to West Africa cases. look after their own interests. Australia’s submission that it is not in THE BACKGROUND DISSENTING OPINION OF breach of any international duty necessitates A short preliminary recital of some of the surrounding circumstances will place in JUDGE WEERAMANTRY a consideration of State obligations implicit in the principle of self-determination, the context the ensuing legal discussions. very basis of nationhood of the majority of Portugal’s long colonial occupation of INTRODUCTION Member States of the United Nations. It East Timor, which had commenced in the I respectfully agree with the first part of raises also the important juristic question of sixteenth century, came to an end more than the Court’s decision, wherein the Court the nature of international duties correlative four centuries later in 1975, when the Por- dismisses Australia’s objection that no real to rights erga omnes. Are they limited to tuguese administration withdrew from the dispute exists between itself and Portugal. It mere compliance with specific directions territory. Initially the Portuguese admini- is my view that such a real dispute does and prohibitions, or are they set in the con- stration withdrew from the mainland to the exist and I support the Court’s Judgment on text of an overarching principle, transcend- island of Atauro, also a part of the Territory, this point. ing specific directions and prohibitions? on 27 August 1975. Three months after the I am also in agreement with the Court’s The jurisdictional objections raised by Portuguese evacuation of the mainland, on observations in regard to the right to self- Australia require some consideration also of 28 November 1975, the FRETILIN (Frente determination of the people of East Timor, the status and legal consequences of resolu- Revolucianària de Timor-Leste Inde- their right to permanent sovereignty over tions of the General Assembly and the Se- pendente), a group seeking independence their natural resources, and the erga omnes curity Council. In addition, there are several for the territory, declared independence. A nature of these rights. The stress laid by the questions relating to judicial propriety few days later, on 7 December 1975, Indo- Court on self-determination as “one of the which were stressed by Australia in its sub- nesian military forces entered East Timor. essential principles of contemporary inter- missions. The next day the Portuguese administration national law” (Judgment, para. 29) has my withdrew from Atauro. complete and unqualified support. LINKAGE BETWEEN JURISDICTION Indonesia has been in control of the Ter- However, I regret that my conclusions in AND THE MERITS ritory since the entry of its military forces, regard to the second part of the Judgment Since these issues were fully argued by and enacted a law on 17 July 1976 incorpo- differ from those of the great majority of both sides, since they are all of deep signifi- rating East Timor into its national territory, my colleagues, who have held that the cance, and since the view I take crosses the on the basis that the people of East Timor Court cannot adjudicate on Portugal’s claim jurisdictional threshold into the substance of had on 31 May 1976 requested Indonesia to in the absence of Indonesia. In deference to the case, my judicial duty compels me to accept East Timor as an integral part of their opinion and in recognition of the address these questions[2]. In any event, the Indonesian territory. However, this incorpo- importance of the issue, I feel obliged to set view I take of the jurisdictional objection ration has not thus far been accepted or out in some detail the reasons for my con- upheld by the Court requires a consideration recognized by the United Nations which, in clusion that the absence of Indonesia does of all these matters, quite apart from their the language of the Secretary-General, is not prevent the Court from considering relevance to the merits. There is in this case engaged in the search for “a comprehensive Portugal’s claim. such a close interlinkage between the pre- and internationally acceptable solution to Apart from its being a crucial factor in liminary objections and the merits that the the question of East Timor” [3]. The ques- this case, the principle involved is important tion of East Timor, still not the subject of Page 28 East Timor Documents, Volume 38. Timor Gap Case decided. the internationally acceptable solution “to respect the territorial integrity to respond to the wishes of the sought by the Secretary-General, receives of East Timor, as well as the inalien- Timorese people themselves as to the continuing attention in the reports of the able right of its people to self- best means by which they might Secretary-General. It is also kept by the determination in accordance with genuinely exercise their right of self- General Assembly as an item on its agenda General Assembly resolution 1514 determination.” (United Nations, Of- from year to year. (XV).” ficial Records of the Security Council, Several resolutions of the Security Coun- It also called upon the Government of Thirty-first Year, 1909th Meeting, 14 cil and the General Assembly refer to the Indonesia “to withdraw without further April 1976, para. 38; Memorial, ibid., circumstances in which the Portuguese delay all its forces from the Territory.” p. 214.) withdrawal and the Indonesian occupation Australia was heard before each of these It is not necessary at this point to reca- occurred. It will suffice to refer at this point Security Council resolutions was passed. pitulate the terms of the several General to two Security Council resolutions - resolu- Six days before the first resolution, at the Assembly resolutions (eight in all), each of tions 384 and 389 of 22 December 1975 and 1865th meeting of the Security Council, which stressed the importance of East 22 April 1976, respectively. held on 16 December 1975, the Australian Timor’s right to self-determination, and The first of these noted that General As- representative, invited by the President to proceeded on the basis that that right had sembly resolution 3485 (XXX) of 12 De- make a statement, observed: yet to be exercised. They will be referred to cember 1975 had requested the Committee “The immediate requirement as we in due course later in this opinion. of Twenty-four (the Special Committee on see it, is for a cease-fire, to spare the Portugal, claiming that it is still the ad- the Situation with regard to the Implementa- people of Timor further bloodshed ministering Power of East Timor, seeks tion of the Declaration on the Granting of and to create a climate in which a relief in this case against Australia in rela- Independence to Colonial Countries and constructive programme of decoloni- tion to a treaty entered into on 11 December Peoples) to send a fact-finding mission to zation can be resumed” (United Na- 1989 between Australia and Indonesia. The East Timor, and expressed grave concern at tions, Official Records of the Security treaty related to the resources lying between the deterioration of the situation in that Council, Thirtieth Year, 1865th Meet- the coastal littorals of East Timor and Aus- territory. Expressing grave concern also at ing, 16 December 1975, para. 99; tralia. This treaty has been referred to in the the loss of life in East Timor, it deplored the Memorial, Vol. II, p. 158) proceedings as the Timor Gap Treaty, from intervention of the armed forces of Indone- and he concluded his statement as follows: the circumstance that the delimitation of the sia in East Timor. The resolution further continental shelf between Australia and “In conclusion, I would once again expressed regret that the Government of Indonesia stopped short on either side of emphasize, as indeed the General As- Portugal had not discharged fully its re- that portion of the shelf lying between the sembly did in its resolution 3485 sponsibilities as administering Power in the south coast of East Timor and the north (XXX), that the purpose and aim of Territory under Chapter XI of the Charter. coast of Australia. This undelimited part of the United Nations, underlying any Against this background, it: the continental shelf is referred to as the action which the Council may decide, “1. Calls upon all States to respect Timor Gap (Memorial, Vol. I, p. 52, para. is to enable the people of the Territory the territorial integrity of East Timor 2.01). freely to exercise their right to self- as well as the inalienable right of its It should be added that the jurisdiction of determination. The main question people to self-determination in accor- this Court is based upon Australia’s declara- now is to establish conditions in dance with General Assembly resolu- tion under Article 36(2), by which Australia which the people of Timor can make tion 1514 (XV); has submitted to the jurisdiction of this its own free choice.” (Ibid., para. 106; 2. Calls upon the Government of Court. Indonesia has not filed a declaration Memorial, ibid., p. 159.) Indonesia to withdraw without delay under Article 36(2).
all its forces from the Territory; A word needs also to be said about Por- Eight days before the second resolution, 3. Calls upon the Government of tugal’s past colonial record, concerning the at the 1909th Meeting of the Security Portugal as administering Power to legal relevance of which there will be more Council held on 14 April 1976, the Austra- co-operate fully with the United Na- discussion in a later part of this opinion. lian representative, again invited by the tions so as to enable the people of Australia has argued that it has left much to President to make his statement, said: East Timor to exercise freely their be desired. Portugal had indeed resolutely “In my last statement to the Coun- right to self-determination; opposed the principle of self-determination cil on East Timor [1865th meeting] I 4. Urges all States and other parties for its colonies. It should be noted, how- emphasized that the Australian Gov- concerned to co-operate fully with the ever, that after the change of regime in Por- ernment and people were most con- efforts of the United Nations to tugal on 25 April 1974, the Portuguese scious that a stable settlement in East achieve a peaceful solution to the ex- Government reaffirmed its obligations un- Timor could rest only on the free isting situation and to facilitate the der Chapter XI of the Charter and, on 24 choice by the people concerned. It decolonization of the Territory.” July 1974, the Council of State of Portugal remains the firm policy of the Austra- The second resolution again reaffirmed: approved a constitutional law abrogating the lian Government that the people of “the inalienable right of the people former territorial definition of the Republic the Territory should exercise freely of East Timor to self-determination of Portugal and acknowledging the right of and effectively their right to self- and independence in accordance with self-determination, including independence, determination, and, if their decision is the principles of the Charter of the for Territories under Portuguese administra- to have any validity, it must be made United Nations and the Declaration on tion (Memorial, Vol. II, p. 54). The Timor in the full knowledge of the alterna- the Granting of Independence to Co- Gap Treaty tives from which they are to make lonial Countries and Peoples, con- This Treaty, entered into on 11 Decem- their choice. My Government does tained in General Assembly resolution ber 1989 between Australia and Indonesia, not, however, presume to lay down 1514 (XV) of 14 December 1960” is alleged by Portugal to infringe the rights any precise formula or modalities for of the people of East Timor. It is titled and called upon all States: self-determination. We should prefer “Treaty between Australia and the Republic East Timor Documents, Volume 38. Timor Gap Case decided. Page 29 of Indonesia on the Zone of Cooperation in The preambular paragraph to the Treaty purpose, it will be necessary in this opinion an area between the Indonesian Province of recites that they are provisional arrange- to examine the rights of East Timor under East Timor and northern Australia.” The ments which “do not jeopardize or hamper international law, and the international obli- preamble recites the desire of the Parties to the reaching of final agreement on the de- gations of Australia in relation to those “enable the exploration for and ex- limitation of the continental shelf.” rights. ploitation of the petroleum resources To give effect to this Treaty, the Petro- Part C therefore examines the rights of of the continental shelf of the area be- leum (Australia-Indonesia Zone of Coopera- self-determination and permanent sover- tween the Indonesian Province of East tion) Act 1990 (No. 36 of 1990) was passed eignty over natural resources enjoyed by the Timor and northern Australia yet to by the Parliament of Australia. Article 3 people of East Timor. These are the princi- be the subject of permanent continen- states that the object of the Act is to enable ples on which Portugal’s substantive case tal shelf delimitation between the Australia to fulfil its obligations under the depends. Granted the applicability of these Contracting States.” Treaty. Under Article 8: principles to East Timor, the central ques- These petroleum reserves have been es- “A person must not undertake pe- tion for determination is whether the actions timated, according to Portugal, at between troleum operations in Area A of the of the Respondent State are in accordance 500 million and 5000 million barrels[4]. Zone of Cooperation except under and with those principles. Whatever their precise extent, they may in accordance with a production shar- Part D will analyse the international ob- safely be assumed to be of considerable ing contract, or with the approval of ligations of Australia. It will scrutinize the value. Under the Treaty, a joint Austra- the Joint Authority” juristic nature of the general legal duties lian/Indonesian regime was set up for ex- established under Article 7 of the Treaty. lying upon all States in respect of self- ploiting the oil resources on the continental The internal legislative measures taken determination, and the particular legal du- shelf between Australia and East Timor. by Australia for the implementation of the ties lying upon Australia vis-à-vis East The Treaty expressed the desire of the par- Treaty are among the acts which are alleged Timor. It will then examine whether, ties that “exploration for and exploitation of by Portugal to infringe the rights of the through its conduct in entering into the these resources proceed without delay,” and people of East Timor, the powers of Portu- Timor Gap Treaty, Australia was in breach provided for a sharing of these resources as gal as administering authority, the relevant of its international legal duties. between the two Governments in a Zone of Security Council resolutions and the obliga- Part E deals with matters relating to judi- Cooperation between the “Indonesian Prov- tions incumbent on Member States to co- cial propriety, on which a many-faceted ince of East Timor” and northern Australia, operate in good faith with the United Na- argument was presented by Australia. This comprising three areas, A, B and C, on the tions. opinion does not deal with Australia’s sub- following basis: mission regarding the absence of a justicia- “(a) In Area A, there shall be joint SCHEME OF OPINION ble dispute, as that has been dealt with in control by the Contracting States of This opinion will analyse in Part A the the Court’s Judgment. However, it consid- the exploration for and exploitation of third-party rule, concentrating on what has ers briefly some of Australia’s other conten- petroleum resources, aimed at achiev- been described as the principle in Monetary tions - such as the contentions that the pro- ing optimum commercial utilization Gold, which has been urged by Australia as ceedings are a misuse of the processes of thereof and equal sharing between the presenting a preliminary objection to the the Court, that they have an illegitimate two Contracting States of the benefits Court’s jurisdiction. This principle is the object, and that they have been instituted of the exploitation of petroleum re- basis on which Portugal’s action is dis- before an inappropriate forum. sources, as provided for in this missed by the Court. The purpose of this This opinion does not touch any matter Treaty; analysis is to ascertain whether Australia’s which travels outside the scope of the pre- (b) In Area B, Australia shall make actions, taken by themselves, can be viewed liminary objections raised by Australia. Nor certain notifications and share with as constituting a breach by Australia of its does it touch upon any actions or conduct of the Republic of Indonesia Resource own duties under international law, quite Indonesia, apart from the circumstance of Rent Tax collections arising from pe- apart from the duties and actions of Indone- Indonesia’s military intervention, which has troleum production on the basis of Ar- sia. If the answer to this question is in the been referred to also in the Judgment of the ticle 4 of this Treaty; and affirmative, an independent cause of action Court (para. 14). (c) In Area C, the Republic of In- would be maintainable against Australia, donesia shall make certain notifica- without any necessity to pass judgment PART A. THE POSITION OF tions and share with the Australia upon the legal duties and conduct of Indo- THIRD PARTY STATES nesia. Contractors’ Income Tax collections 1. The jurisdictional issue arising from petroleum production on Part B will deal with the objection relat- the basis of Article 4 of this Treaty.” ing to Portugal’s status to institute these (i) The contentions of the Parties (Portuguese Application Instituting proceedings. Among the matters arising In seeking relief against Australia in re- Proceedings, Annexes, pp. 28-29.) under this head are the protective structure spect of this Treaty, is Portugal entering Article 33 provides that the Treaty shall of the United Nations Charter in relation to judicial ground not traversable except in the remain in force for an initial period of forty non-self-governing territories, the legal presence of Indonesia? Is this in fact a con- years from the date of its entry into force. force of the relevant UN resolutions, and test between Portugal and Indonesia under Unless the two Contracting States agree the question whether Portugal needed prior guise of a contest with another State which otherwise, it shall continue in force after the UN authorization to maintain this Applica- is not the true respondent? If the answers to initial forty year term for successive terms tion. these questions are in the affirmative, Aus- of twenty years, unless by the end of each The question of jurisdiction depends on tralia’s submissions must be accepted, and term, including the initial term of forty whether a cause of action can be made out Portugal’s claim must be dismissed. years, the two States have concluded an against Australia, based upon Australia’s Australia invokes Monetary Gold Re- agreement on the permanent continental individual obligations under international moved from Rome in 1943 (ICJ Reports shelf delimitation in the area covered by the law, and Australia’s individual actions, 1954, p. 19) as a central authority on which Zone of Cooperation. quite independently of Indonesia. For this it rests its contention that the Court lacks Page 30 East Timor Documents, Volume 38. Timor Gap Case decided. jurisdiction to entertain Portugal’s claim. (d) those resources continue to be- (q) the people of East Timor have Australia’s contention is that a determina- long in law to East Timor, so long as never at any stage, either directly or tion against Australia necessarily involves East Timor remains a non-self- through any duly constituted legal rep- as a prerequisite a determination against governing territory; resentative, given their consent to the Indonesia in regard to the illegality of its (e) Australia has admitted throughout Treaty; occupation of East Timor. Since Indonesia the case that East Timor still remains a (r) while Australia is entitled to its is not before the Court, it is argued that the non-self-governing territory[5]; share of the resources of the Timor Gap principle of Monetary Gold, which decided (f) the United Nations still regards area, no delimitation, in a manner rec- that the Court could not adjudicate upon East Timor as a non-self governing ter- ognized by law, has thus far taken place Italian and United Kingdom claims to a ritory; between Australia and East Timor. Till certain quantity of Albanian gold in the (g) this area is extremely rich in oil such time, the exact division between absence of Albania, operates as a jurisdic- and natural gas potential. Whatever its Australian and East Timorese resources tional barrier to Portugal’s claim. extent, it forms in all probability the must remain unclear. The possibility Portugal, on the other hand, submits that principal economic asset of the East must therefore exist of some benefit to its claim is not against Indonesia, but Timorese people, awaiting them at such Australia from East Timorese resources against Australia, that the wrongdoing it time as they achieve self-determination; which, upon another division according alleges is not against Indonesia, but against (h) Portugal, the former colonial au- to law, might have been allotted to East Australia, and that the totality of its case is thority, has left the territory, but is still Timor; made up only of elements drawn from Aus- considered by the United Nations to be (s) Australia has joined in a treaty tralia’s own international obligations, and the administering authority; under which a non-renewable natural Australia’s own unilateral actions. It sub- (i) no other power has been recog- resource would, to the extent of its ex- mits that Indonesia may well be affected by nized by the United Nations as having ploitation under the Treaty, be perma- the Judgment, but that it is Australia’s, and authority over the territory; nently lost to the people of East Timor. not Indonesia’s, conduct that is the very (j) on 7 December 1975, Indonesian Over a period of 40 years, the entire re- subject-matter of the case. military forces occupied the territory, source could well be lost for ever; (ii) The circumstances before the Court and Indonesia is now in full control (t) Portugal cannot, in law, obtain thereof; any financial benefits for itself from this The question of jurisdiction is not an iso- (k) Indonesia has not, to this date, action, if successful, and will need to lated question of law, but a mixed question been recognized by the United Nations report to the United Nations and to act of law and fact. As observed in a well as having authority over the territory, under UN supervision. known treatise on the Court’s power to and, nearly twenty years after the Indo- The entirety of the opinion that follows determine its own jurisdiction: nesian occupation, the United Nations is does not travel beyond the circumstances “The power of the International Court to still engaged in a search for an “interna- itemized above. determine its jurisdiction has therefore two tionally acceptable solution to the ques- aspects: the interpretation of the jurisdic- (iii) Do the circumstances of the case attract tion of East Timor” (Reply, Vol. II, p. tional instruments and the interpretation any necessity to consider a third State’s 59); (and characterization) of the facts of the conduct? (l) Australia has entered into a Treaty dispute itself. In fact, the jurisdiction of the It is against this specific background of with Indonesia, dividing between Aus- Court can result only from the interaction of admitted or manifest circumstances that the tralia and Indonesia the resources of the the elements involved in this process.” preliminary objection must be considered as Timor Gap area; (Ibrahim F.I. Shihata, The Power of the to whether the “Monetary Gold principle” (m) in that Treaty, Australia ex- International Court to Determine its Own presents a barrier to the consideration of pressly recognizes East Timor as “the Jurisdiction, 1965, p. 299.) Portugal’s claim. It has been strenuously Indonesian Province of East Timor"; It becomes necessary, therefore, as a argued that Monetary Gold does present (n) confronted with the legitimate backdrop to the ensuing discussion, to refer such a barrier. Having regard to the multi- need to exploit its own resources, and briefly to some of the salient facts. plicity of circumstances set out above, needing, for this purpose, a treaty with The circumstances which are either ad- which relate to Australia’s obligations and the opposite coastal State, Australia did mitted by Australia, or manifest on the actions alone, I regret very much that I am not seek directions or authorization documents, or of sufficient notoriety for the unable to agree. In my view, all the essen- from the United Nations before entering Court to take judicial notice of them, are as tials necessary for the Court to adjudicate into this Treaty, despite the facts that follows: upon Portugal’s claim against Australia are East Timor was still a non-self- (a) the people of East Timor have a present, without the need for any adjudica- governing territory, and that the United right to self-determination which Aus- tion against Indonesia. Nations had not recognized the incorpo- tralia is obliged to recognize (see Part Australia is party to a treaty which deals, ration of the territory into Indonesia. No C, infra.); inter alia, with resources acknowledgedly suggestion was made before the Court (b) the people of East Timor have a belonging to the East Timorese people, who that any such direction or authorization right to permanent sovereignty over the are acknowledgedly a non-self-governing was sought; natural resources of the territory, which people. So long as they continue to be a (o) this Treaty has been entered into Australia is obliged to recognize (for a non-self-governing people, those resources for an initial period of 40 years, with fuller discussion, see Part C, infra.); will continue to belong to them by incon- possible renewals for 20 years at a time; (c) among these resources are a share trovertible principles of the law of nations. (p) the Treaty makes no provision for of the maritime resources of the Timor At such time as they achieve self- any proceeds of exploitation of the area Gap area, i.e., the portion of sea situated determination, they may deal with these to be earmarked for the people of East between the opposite coasts of East resources in such manner as they freely Timor whenever their status is deter- Timor and Australia - a resource they choose. Until such time, the international mined; share with Australia; legal system protects their rights for them, East Timor Documents, Volume 38. Timor Gap Case decided. Page 31 and must take serious note of any event by termine the question of the legality of Indo- for either of these contentions, as more fully which their rights are disposed of, or other- nesia’s control over East Timor, were it to discussed later. wise dealt with, without their consent. In- proceed with this case. In the absence of In short, the substantive and procedural deed, the deepest significance of the right of such a determination, according to the Aus- principles governing this Court’s jurisdic- a non-self-governing people to permanent tralian submission, the Court cannot hold tion cannot operate so restrictively as to sovereignty over natural resources lies in that Indonesia could not lawfully enter into prevent it from reaching a determination in the fact that the international community is the Treaty and, without such a finding, the a case such as this, where all the ingredients under an obligation to protect these assets Court cannot hold that Australia has acted necessary to such a decision are before it for them. wrongfully in entering into the Treaty. and where that decision can be reached The Respondent fully acknowledges that To enter upon such an inquiry would be without trespassing upon the rule enshrined East Timor is still a non-self-governing to enter upon an immense factual and politi- in the Court’s Statute that its jurisdiction territory and so, also, does the United Na- cal investigation. It would call for an ex- flows only from consent. That the judgment tions, which is the appropriate authority on amination de novo of voluminous evidence will affect the interests of a third party State these matters. While the United Nations still regarding the circumstances of Indonesia’s is not a factor which, according to the well awaits “an internationally acceptable solu- military entry into and subsequent control established jurisprudence upon this matter, tion” to the question, the Court must exam- over East Timor and of the numerous intri- operates as a barrier to jurisdiction. Such ine whether it accords with the international cate military, political and diplomatic effects upon third parties are always part of rule of law that any Member State of the activities involved in any such military the judicial process and are manifesting United Nations should be in a position: intervention, followed by continuing themselves increasingly as the world con- (a) to enter into a Treaty with an- occupation. Upon this evidentiary material, tracts into a more closely interknit commu- other State, recognizing that the terri- the Court would be required to reach a nity. tory awaiting self-determination has judicial determination. Nor is it possible in These aspects are more fully considered been incorporated into another State as any event to engage in such an inquiry in later in this opinion. The purpose of the a province of that State; and the absence of Indonesia. foregoing discussion has been to show that (b) to be party to arrangements in Such an argument disregards the fact that the circumstances of this case render the that Treaty which deal with the re- the materials essential to decision are al- Monetary Gold principle inapplicable, in sources of that Territory, without the ready before the Court. It disregards the that the claim against the Respondent State consent either of the people of the Terri- practicalities of the judicial process. It dis- does not in any way necessitate the investi- tory, or of their authorized representa- regards the scheme of the UN Charter gation of the conduct of a third party State tive. which distributes appropriate tasks and and, least of all, a judicial finding against it. That is the dominant issue before the responsibilities among the principal organs However, in view of the great impor- Court. It centres on the actions of the Re- of the United Nations. By postulating a tance attached to it in the argument before spondent and not of the third State. virtual impossibility as a prerequisite to the Court, and in deference to the Court’s In the light of the totality of incontro- justice, it denies justice, however legitimate reliance on the principle, this opinion turns vertible circumstances outlined earlier in the claim. The Court cannot be reduced to now to a more detailed consideration of the this section, the Court does not need to enter inaction in this fashion by throwing upon it Monetary Gold case to ascertain whether, into an inquiry into the lawfulness of the a burden duly discharged by the appropriate even if it were applicable, it would present conduct of that third State or of its presence UN organs, acting within their proper au- any barrier to Portugal’s claim. in East Timor. thority. Such a position seems too artificial 2. The Monetary Gold principle If East Timor is still a non-self- and removed from reality to be the law or governing territory, every member of the the procedure under which this Court func- (i) Subject-matter community of nations, including Australia, tions. One of the matters at issue in Monetary is under a duty to recognize its right to self- Of course, this Court, as the principal ju- Gold was whether Albanian gold should be determination and permanent sovereignty dicial organ of the United Nations, can in awarded to Italy on the basis of Albanian over its natural resources. If this is so, as is appropriate circumstances be called upon to wrongdoing. It was clearly impossible for indubitably the case, the Court would be in consider whether a particular organ of the the Court to determine this question in the possession of all the factual material neces- United Nations has acted beyond its author- absence of Albania, whose property and sary for the Court to pronounce upon the ity or in a manner not authorized by law. wrongdoing were the very subject-matter on responsibility of the Respondent State, Such issues have been brought before this which the Italian claim was based. which is in fact before it. Nor would it, in Court in cases such as Questions of Inter- The present case presents a totally dif- the slightest degree, be encroaching upon pretation and Application of the 1971 Mont- ferent picture. The obligations and the con- the prohibited judicial territory of making a real Convention arising from the Aerial duct of Indonesia are not the very subject- judicial determination in relation to an ab- Incident at Lockerbie (Libyan Arab Jama- matter of this case. The obligations and the sent third party. hiriya v. United Kingdom) and (Libyan conduct of Australia are, and Australia is (iv) Is the Court under an obligation to rein- Arab Jamahiriya v. United States of Amer- before the Court. vestigate matters dealt with in the UN ica) (ICJ Reports 1992, p. 3 and p. 114, Independently of an inquiry into the resolutions? respectively). No suggestion has been made conduct of Indonesia, the preceding section of any such circumstances in the present of this opinion has shown that the Court has Australia submits that, despite the UN case. The only grounds on which the force before it sufficient materials relating to the resolutions calling upon the Government of of the resolutions has been attacked is that, duties, the responsibilities and the actions of Indonesia to withdraw its military forces owing to a supposedly diminishing support Australia, to enable it to make a pro- from East Timor, reaffirming the right of for them upon a counting of votes and, ow- nouncement thereon. It does not need to the people of East Timor to self- ing to the lapse of time since their adoption, open up vast expanses of inquiry into Indo- determination, and rejecting the claim that they have in some way lost their authority. nesia’s conduct, or military operations or East Timor has been incorporated into In- There is no warrant in United Nations law any other items which may have provoked donesia, the Court would itself have to de- international concern, to decide this matter. Page 32 East Timor Documents, Volume 38. Timor Gap Case decided.
Far less does it need to adjudicate upon Albania. In the present case, no claim is Reports 1954, p. 33) which complicated the these. The sharp focus upon Australia’s acts being made against Indonesia, no decision issue. and responsibilities which is necessary for a is sought against Indonesia, and the vital It may be noted, in passing, that judg- determination of these issues can only be issue is not the international responsibility ment on the second point was not unani- blurred by such an undertaking. of Indonesia. mous, for Judge Levi Carneiro registered a (ii) Parties Indonesia’s legal interests may be af- dissent, holding that the Court could, and fected by the decision, but they are not the should have, adjudicated upon the second In Monetary Gold the two States be- very subject-matter of the decision, in the submission of Italy, independently of the tween whose rights the Court was called sense that Albanian gold was the actual first, on the basis that the only States di- upon to adjudicate were Italy and Albania subject-matter of Monetary Gold. rectly interested in the question of the prior- in the first claim, and the United Kingdom The Court’s determinations on matters ity issue, namely, Italy and the United and Albania in regard to the second (see pertaining to Australia’s obligations and Kingdom, were before the Court (ibid., p. section (iv) below). Albania, the State actions may indeed have consequences, not 43, para. 7), and that it could be resolved whose property was sought to be appropri- only for Indonesia but for other countries as simply in the light of legal rules (ibid., para. ated, and whose wrongdoing was alleged, well, for Australia has, in the course of its 8). was not before the Court. In the present submissions, informed the Court that sev- (v) The third party principle and the ju- case, unlike in Monetary Gold, no claim is eral countries have dealt with Indonesia in dicial duty to decide The opinion of Judge made against an absent third party. The two respect of East Timor (CR 95/10, pp. 20- Carneiro is significant in that it represented States between whose rights the Court has 21). If the Judgment of the Court raises a concerned attempt to conserve the Court’s to adjudicate are Portugal and Australia, doubts about the validity of those treaties, jurisdiction without violating the third party both of whom are before the Court. those other countries who have acted upon rule. This points to an important concern, In Certain Phosphate Lands in Nauru the validity of the treaty may well be af- always before the Court, that, while the (Nauru v. Australia), Preliminary Objec- fected. Yet, it cannot be suggested that they third party rule is important, and must at all tions (ICJ Reports 1992, p. 240), likewise, be all joined, or that, for that reason, the times be respected, there is also another the two parties between whose rights the Court is not competent to hear the claim principle within which the Court functions, Court had to adjudicate were Australia and before it. namely, the judicial duty to decide the cases Nauru, both parties before the Court. In The broad dicta in Monetary Gold must brought before it within its jurisdictional both Nauru and the present case, other par- not be stretched beyond what the context of competence. ties are affected, but in neither case is that the case allows. As in many areas of the law, the dividing factor an obstacle to jurisdiction. (iv) Italian and United Kingdom claims line between the operation of the two com- (iii) Rationale distinguished peting principles is not always discernible Two of the most often cited pronounce- with clarity. There will in many cases be an An analysis of the two claims in Mone- ments of principle in Monetary Gold are the area of doubt, in which the case could well tary Gold brings its underlying principle following: fall within the operation of one principle or into clearer relief. “In the present case, Albania’s le- the other. In these areas, the Court is the The first claim in Monetary Gold related gal interests would not only be af- judge of its own jurisdiction, - a position to Italy’s contention that the Albanian gold fected by a decision, but would form expressly accorded to it by Article 36(6) of should be delivered to Italy in partial satis- the very subject matter of the deci- its Statute. faction of the damage caused to Italy by the sion. In such a case, the Statute can- A distinguished line of precedents, Albanian law of January 13, 1945, which not be regarded, by implication, as au- stretching back to the Alabama Arbitration had expropriated certain Italian assets. The thorizing proceedings to be continued (1872) and beyond[6], has established that: second related to Italy’s claim to priority in the absence of Albania.” (ICJ Re- “The fundamental principle of interna- over the claim of the United Kingdom to ports 1954, p. 32.) tional law governing these aspects is that an receive the gold in partial satisfaction of the international tribunal is master of its own judgment in the Corfu Channel case. “Where, as in the present case, the jurisdiction.” (Shabtai Rosenne, The Law The first claim, based upon an Albanian vital issue to be settled concerns the and Practice of the International Court, action alleged by Italy to be wrongful, could international responsibility of a third 1985, p. 438.) not, quite clearly, be decided in the absence State, the Court cannot, without the In exercising that jurisdiction, a tribunal of Albania. Albanian rights and Albanian consent of that third State, give a de- will naturally not view the mere presence of wrongdoing were integral to its very sub- cision on that issue binding on any a doubt, however slight, as a reason for stance. The judgment on this point was State, either the third State, or any of declining jurisdiction. unanimous. the parties before it.” (Ibid., p. 33.) It is by striking a balance between these The decision on the second claim, The Court was stressing, quite naturally, principles that the Court’s jurisdiction can though also soundly based on legal princi- that Albania’s interests would not merely be be best developed, rather than by focusing ple, could perhaps be differentiated in the affected by the decision, but would be the attention upon the third-party principle, to sense that, though the competing claims very subject-matter of the decision, and that the exclusion of the other. While the con- here were between Italy and the United “the vital issue” to be settled concerned the sensual principle must always furnish the Kingdom, the United Kingdom claim international responsibility of Albania itself. basis of jurisdiction, “It is a matter of com- against Albania was already res judicata in The generality of the phraseology adopted mon sense that too rigid an attraction to that terms of the judgment of this Court in the by the Court has sometimes led to a ten- principle will paralyse any international Corfu Channel case. Albania’s judgment dency to cite these passages as authority for tribunal” (Rosenne, ibid., p. 439). The in- debt to the United Kingdom, being res judi- propositions far wider than were warranted adequacies of Article 36 as it exists (ibid., cata, did not need to be proved afresh, and by the extremely limited circumstances of p. 316), and the need for “a well-defined could not be contested by Albania. How- the case - namely, that Albanian property functional and teleological approach to ever, the fact that Italy too had claims upon could not be appropriated on the basis of questions of jurisdiction” (ibid.) justify such the gold raised questions of priority (see ICJ Albanian wrongdoing in the absence of an approach to the problem[7]. It was thus East Timor Documents, Volume 38. Timor Gap Case decided. Page 33 for very good reason that, in Military and “Since the national law will nor- sion against A. B does not come to A’s Paramilitary Activities in and Against Nica- mally ensure that there is some do- relief. In an action by A against B, it is ragua (Nicaragua v. United States of Amer- mestic forum competent to hear and necessary, preliminarily, for A to prove ica), the Court expressed a note of caution determine all cases involving C’s act of aggression[11]. Since C is not against undue extensions of Monetary Gold, breaches of that law, or the assertion before the Court, A’s claim must be dis- in terms that its circumstances “probably of rights under it, it follows that do- missed. represent the limit of the power of the Court mestic jurisdictional issues are of sec- • Between A and C, there lies a narrow to refuse to exercise its jurisdiction” (ICJ ondary importance, because a claim- corridor of B’s territory. C discharges a Reports 1984, p. 431, para. 88; see, also, ant who fails on jurisdictional grounds large quantity of radioactive waste into Certain Phosphate Lands in Nauru, ICJ in one forum can start again in the B, whence it flows into A. A sues B. B Reports 1992, p. 260, and Land, Island and correct one. Thus, as a general rule, seeks to prove that the matter is beyond Maritime Frontier Dispute (El Salva- there is no avoiding a determination its control, inasmuch as the noxious ma- dor/Honduras), Application to Intervene, on the merits if the claimant persists, terial has come from C and, once on its ICJ Reports 1990, p. 116, para. 56)[8]. and the defendant obtains no ultimate territory, could not be contained. Since it As this Court observed in Continental advantage by raising jurisdictional is- is necessary for B to prove this wrongful Shelf (Libyan Arab Jamahiriya/Malta), sues. It is far otherwise in the interna- conduct on the part of C, B’s defence Application for Permission to Intervene: “it tional field where a jurisdictional ob- will be shut out. must be open to the Court, and indeed its jection, if successful, will normally • In furtherance of B’s plans to gather duty, to give the fullest decision it may in dispose of the case entirely, and rule military intelligence regarding A, B per- the circumstances of each case ...” (ICJ out any further proceedings, not only suades a potential ally, C, to overfly A’s Reports 1984, p. 25, para. 40; emphasis before the tribunal rendering the ju- territory for unlawful aerial surveillance. added). This compelling obligation to de- risdictional decision, but before any While overflying A’s territory, C’s plane cide the dispute before the Court distin- other. In the international field there- crashes over a crowded city, causing guishes the judge, properly seised of juris- fore, such issues assume a far greater, immense damage and loss of life. A diction, from many other functionaries, who and usually a fundamental impor- takes B to Court for damage caused. A is are not charged by their office with the tance.” (Sir Gerald Fitzmaurice, The in possession of material proving B’s obligation to reach a decision on every con- Law and Procedure of the Interna- instigation of C’s unlawful act. B can tentious matter properly referred to them tional Court of Justice, Vol. II, 1986, have the claim dismissed for lack of within the scope of their authority. Litera- p. 438; emphasis in original.) jurisdiction, on the basis that a ture on the nature of the judicial function is It is an important circumstance relating precondition to the claim is proof of C’s replete with emphasis on the judicial duty to to all jurisdictional questions that this Court unlawful act. decide. The Statute of the Court itself gives is the international system’s place of ulti- • C makes a raid against A and plunders, expression to this concept in Article 38, mate resort for upholding the principles of inter alia, a historic object belonging to which stipulates that the Court’s “function international law, when all other instrumen- A. B acquires the object from C. A sues is to decide in accordance with international talities fail. B to recover it and needs, as a pre- requisite, to prove that it was the identi- law such disputes as are submitted to it” [9] (vi) The test of reasonableness (emphasis added). Indeed, that is the func- cal object taken away in the raid by C. A It is sought, in this case, to interpret tion of the Court, around which all the other cannot maintain the action in the absence Monetary Gold as meaning that the Court provisions of the Statute are built[10]. of C, for proof of C’s wrongdoing is a has no jurisdiction because it cannot deter- If, therefore, too restrictive an interpreta- pre-requisite to A’s claim. (The example mine the question before it, without first tion be given to the Court’s jurisdiction, in does not take into account any special determining the legality or otherwise of consequence of which the Court does not treaty provisions relating to the return of Indonesia’s presence in the Territory. In decide a dispute properly referred to it cultural or historical treasures.) short, this proposition would mean that, within its jurisdiction, there can be a non- • A State corporation owned by A runs an where a claim by State A against State B performance of its express statutory obliga- industrial establishment in the territory cannot be made good without demonstrat- tion. of C. C wrongfully confiscates its highly ing, as a prerequisite, some wrongful con- While it is important, then, that objec- specialized plant and factory, and invites duct on the part of State C, State B can tions based on lack of third-party consent B, which commands special expertise in avoid an inquiry into its own conduct, how- must receive the Court’s most anxious scru- the relevant field, to participate in run- ever wrongful, by pointing to C’s wrongdo- tiny, there is to be weighed against it, in ning it with C as a joint profit-sharing ing as a precondition to its own liability. areas of doubt, the other consideration, venture. B agrees and participates. A A time-honoured test of the soundness of equally important, of the Court’s statutory sues B, alleging the illegality of the a legal interpretation is whether it will lead duty to decide a dispute properly brought whole enterprise. The claim must be re- to unreasonable, or indeed absurd, results. before it within its judicial authority. Too jected because the action is not main- That this proposition could lead to mani- strict an application of the first principle can tainable without proof of the wrongful festly unreasonable results will be evident result in an infringement of the second. In act of C. from the following illustrations, in each of the international judicial system, an appli- Examples could be multiplied. which A is the applicant State, B the re- cant seeking relief from this Court has, in In each case a third party’s wrongdoing spondent, and C the third party State, whose general, nowhere else to turn if the Court must be established as a prerequisite to the wrongdoing must be established as a pre- refuses to hear it, unlike in a domestic juris- claim or defence. In each case the rule ex- condition to the claim or the defence. In diction where, despite a refusal by one tri- cluding it produces manifest injustice and each illustration, B has subscribed to the bunal, there may well be other tribunals or an unreasonable result. It is difficult to Court’s jurisdiction, but not C, for which authorities to whom the petitioner may re- imagine that such a rule can truly represent reason C is not before the Court. sort. a “well-established” principle of interna- • After A and B enter into a mutual de- As Fitzmaurice observes: tional law, built into the Statute of the Court fence pact, C commits an act of aggres- - a principle on the basis of which the fun- Page 34 East Timor Documents, Volume 38. Timor Gap Case decided. damental question of jurisdiction is decided, take place without their consent” (op. alleged Australian wrongdoing, as argued on which in turn depend the ultimate rights cit., p. 71). by Australia. of parties in matters of great moment. If these cases were a basis on which this In proof of this collusion the United The conclusion is compelling that an in- Court described the third-party-rule as a Kingdom Government placed evidence terpretation of Monetary Gold to produce “well-established” principle in international before the Court and, in the Court’s own such a result clearly extends the decision far law, the point needs to be made that advi- words: beyond its permissible limits. Indeed, such sory opinions rest upon a different judicial “The Court gave much attention to an interpretation seems contrary to the prin- basis from contentious proceedings. The this evidence and to the documentary ciple of individual responsibility of each Court’s decision as to whether to proceed information supplied by the Parties. It State for its own acts. The mere allegation with a matter is clearly taken on different supplemented and checked all this in- of a third party’s wrongdoing as a prerequi- bases in advisory proceedings, where the formation by sending two experts ap- site to the proof of one’s own cannot deflect Statute may perhaps give the Court some- pointed by it to Sibenik: Commodore the course of justice and steer it away from what more discretion as to whether it will S.A. Forshell and Lieutenant- the principle of a State’s individual respon- render an opinion (Statute, Art. 65). Prece- Commander S.J.W. Elfferich.” (Ibid.) sibility for its individual actions. (On this, dents deriving from advisory opinions, “Apart from Kovacic’s evidence, see, further, section 3(ii) below.) where the Court declines to give an opinion the United Kingdom Government en- (vii) Prior jurisprudence in consequence of third party involvement, deavoured to prove collusion between are not therefore of direct applicability to Albania and Yugoslavia by certain In Monetary Gold, the Court stated that: jurisdictional decisions in contentious pro- presumptions of fact, or circumstan- “To adjudicate upon the interna- ceedings. tial evidence, such as possession, at tional responsibility of Albania with- It is significant moreover that in Status the time, by Yugoslavia, and by no out her consent would run counter to a of Eastern Carelia, the Court described it as other neighbouring State, of GY well-established principle of interna- “very inexpedient that the Court should mines, and by the bond of close po- tional law embodied in the Court’s attempt to deal with the present question” litical and military alliance between Statute, namely, that the Court can (op. cit., p. 28; emphasis added) and again Albania and Yugoslavia, resulting only exercise jurisdiction over a State stated “it is certainly expedient that the facts from the Treaty of friendship and mu- with its consent.” (ICJ Reports 1954, upon which the opinion of the Court is de- tual assistance signed by those two p. 32; emphasis added.) sired should not be in controversy” (ibid.; States on July 9th, 1946.” (Ibid., p. It is noteworthy that there was no cita- emphasis added). 17; emphasis added.) tion of precedent in Monetary Gold. It was The jurisprudence on this matter deriving The Yugoslav Government was not a a decision that formulated no new principle, from advisory opinions can thus be distin- party to the proceedings but it authorized and made no new advances. The decision guished[12]. Whether or not considerations the Albanian government to produce certain made no greater claim than that it was ap- of “expediency” can be taken into account Yugoslav documents. plying a principle already embodied in the in advisory opinions, they have no place in Sir Hartley Shawcross for the United Court’s Statute. contentious litigation where the Court must Kingdom made the following statements, It would be helpful, therefore, to look at reach a decision one way or the other (see among others, implicating Yugoslavia, not some prior cases. section (v) above[13]. merely peripherally, but indeed, in this part a) Advisory Opinions b) Contentious cases of the case, as the principal participant in Two well known prior cases are Status of the international wrongdoing alleged: As for the jurisprudence deriving from Eastern Carelia (P.C.I.J., Series B, No. 5) (a) that it was well known that, at the contentious proceedings, the manner in and Interpretation of Peace Treaties with relevant time, there was the closest as- which the Court handled the Corfu Channel Bulgaria, Hungary and Romania, First sociation and collaboration between Al- case, just a few years earlier, is not in line Phase, Advisory Opinion, ICJ Reports bania and Yugoslavia (ICJ Pleadings, with the general proposition formulated in 1950, p. 65), both Advisory Opinions, Corfu Channel, Vol. III, 239); Monetary Gold. where similarly strong statements were (b) that members of the Albanian In that case, the United Kingdom made in similar language. Forces were sent to Yugoslavia for claimed that the minefield which caused In the first case, the Permanent Court training (ibid., p. 240); damage to its shipping was laid by Albania. found that it was “impossible” to give an (c) that Yugoslavia, under a decree As an alternative argument it claimed that opinion which bears on an actual dispute contained in the Yugoslav Official Ga- the minefield was laid by Yugoslavia, with between Finland and Russia, as the Russian zette, was given “a virtual monopolistic the connivance of the Albanian government. Government was not before the Court. Us- position in regard to coastal traffic be- As the Court observed: ing the same expression later used in Mone- tween the two countries” (ibid.); “This would imply collusion between the tary Gold (ICJ Reports 1954, p. 32), that (d) that Yugoslavia conducted prac- Albanian and the Yugoslav Governments, case too described as “well established in tically the whole of Albania’s foreign consisting either of a request by the Alba- international law” the principle that no State relations and “had naval, military and nian Government to the Yugoslav Govern- could, “without its consent, be compelled to air-force missions in Albania guiding ment for assistance, or of acquiescence by submit its disputes ... to mediation or to the organization of the military ar- the Albanian authorities in the laying of the arbitration” (P.C.I.J., Series B, No. 5, p. rangements of that country” (ibid.); mines.” (ICJ Reports 1949, p. 16.) 27). (e) that Yugoslavia had the relevant In so far as concerned this alternative ar- In Interpretation of Peace Treaties with GY type of German mines, which were gument, the principal wrongdoer was Yugo- Bulgaria, Hungary and Romania, as well, laid in the Corfu Channel (ibid.); slavia. Yugoslavian wrongdoing was the the Court referred to the: (f) that the suspicion that Yugoslav prerequisite to the alleged Albanian wrong- “well-established principle of in- ships laid these mines is “converted into doing, very much in the manner of Indone- ternational law according to which no certainty” by the evidence of Lieutenant sian wrongdoing being the prerequisite to judicial proceedings relating to a legal Commander Kovacic, formerly of the question pending between States can Yugoslav navy (ibid.); East Timor Documents, Volume 38. Timor Gap Case decided. Page 35
(g) that the mines were hurriedly would have dismissed this aspect of the case third party was affected (Land, Island and loaded onto two Yugoslav ships which in limine. Maritime Frontier Dispute (El Salva- “silently steamed away” during the If, far from taking such a course, the dor/Honduras), ICJ Reports 1990, pp. 115- night to lay them in Albanian waters Court “gave much attention” to the evi- 116, para. 55); that the interests of the third (ibid., p. 243); dence, checked the documentary informa- State must be a part of “the very subject- (h) that there was a stock of GY tion and sent experts to investigate it, it was matter of the decision” (ibid., pp. 121-122, mines at Sibenik and the mines loaded not governing itself by the principle which paras. 72 and 73); that the “test is not on the vessels came from that stock Australia argues is fundamental and well merely one of sameness of subject-matter (ibid.); established. It even permitted the United but also of whether, in relation to the same (i) that the ships were seen again 4 Kingdom Government to attempt to prove subject-matter, the Court is making a judi- days later, but the mines were not upon collusion with the absent third State, to the cial determination of the responsibility of a them (ibid., pp. 243-244); and extent not only of possession of the mines, non-party State” (Nauru, ICJ Reports 1992, (j) that there was evidence that the but also of a military alliance resulting from p. 296, Judge Shahabuddeen, separate opin- duty carried out by the ships was to lay a treaty of friendship and mutual alliance. ion); that joint wrongdoers may be indi- a field of mines in Albanian territorial The attitude of the Court in Corfu Channel vidually sued (ibid., pp. 258-259; and that waters (ibid., p. 244). The Court did not is thus in sharp contrast to the Court’s deci- the circumstance that a third party would be dismiss these suggestions as beyond its sion in the present case. affected by the judgment is not by itself jurisdiction to investigate, but in fact, The Ambatielos case (ICJ Reports 1953, sufficient to bring Monetary Gold into op- by its Order of 17 January 1949 (ICJ p. 10) may also be mentioned as an instance eration (ibid., pp. 261-262). Reports 1949, p. 151), instructed naval where the position of third parties not be- Particular reference should be made to experts nominated by it to carry out in- fore the Court was likely to be affected by Certain Phosphate Lands in Nauru (ICJ vestigations on the spot at Sibenik, the decision the Court was invited to make. Reports 1992, p. 240), which is in a sense Yugoslavia, and in the Corfu Channel In the merits phase of that case, the closest to the principle involved in the pre- area. For two days, at Sibenik, the Ex- Greek government, in a case between itself sent case. In that case, although the admini- perts inspected the actual geographical and the United Kingdom, invited the Court stration of Nauru was entrusted jointly to layout of the spot where Kovacic testi- to consider certain articles of treaties be- three trustee Powers - Australia, New Zea- fied he had seen the two Yugoslav tween the United Kingdom and Denmark, land and the United Kingdom - and any minelayers being loaded with the United Kingdom and Sweden and the finding of breach of trust by Australia mines[14]. United Kingdom and Bolivia. The United would, it was alleged, necessarily mean a Clearly this was a very specific allega- Kingdom government, without objecting to finding against its partners as well, the tion of an internationally wrongful act by a the reference to those treaties, questioned Court was not deterred from dismissing that third State not before the Court. Indeed, it the correctness of the English translations of objection and setting the case down for provoked a strong response from Albania in certain of the provisions invoked. The Court hearing on the merits. The Court held that the following terms: was invited to place a construction upon the interests of New Zealand and the United “How could the Court decide on these treaties which would have helped the Kingdom did not constitute the very sub- the facts of alleged complicity and on Government of Greece in the interpretation ject-matter of the judgment to be rendered the demand for reparations against the it sought to place upon its treaty with the on the merits of Nauru’s Application. The accomplice without having given a United Kingdom. No exception seems to Court rejected Australia’s contention that decision against the principal offender have been taken to the reference to these there would be a simultaneous determina- accused arbitrarily and without proof treaties[16]. tion of the responsibility of all three States by the British Government?” [15] (viii) Subsequent jurisprudence and that, so far as concerns New Zealand The Court held, in fact, that “the authors and the United Kingdom, such a determina- A substantial jurisprudence has built up of the minelaying remain unknown” (ICJ tion would be precluded by the fundamental over the years in which, although the prin- Reports 1949, p. 17). Had the Court ac- reasons underlying Monetary Gold (ICJ ciple in Monetary Gold has been invoked as cepted the United Kingdom’s submissions, Reports 1992, p. 261, para. 55). The fact a bar to jurisdiction, the Court has held the it would have been making a clear finding that the Court’s judgment would clearly principle within its proper confines, refus- of the commission of an illegality by Yugo- affect third parties not before the Court does ing to allow it to be unduly extended. This slavia. The fact that such a wrongful act was not thus deter the Court from adjudicating accords with the Court’s view, already alleged against a third party did not deter upon the dispute between the parties who cited, that Monetary Gold had gone to “the the Court from considering the alternative are in fact before it[17]. limit of the power of the Court to refuse to argument placed before it. The undoubtedly necessary and unim- exercise its jurisdiction” (Military and Pa- The Corfu Channel case was thus a peachable principle enunciated in Monetary ramilitary Activities in and against Nicara- stronger instance of third-party involvement Gold has thus been kept within the ambit of gua, ICJ Reports 1984, p. 431, para. 88). than the present case. It may even be char- its rationale by a steadily developing body Among the cases so decided by the Court acterized as a case which went to the very of jurisprudence of this Court. With the are Military and Paramilitary Activities in edge of the principle, or even, conceivably, greatest respect to the Court’s decision in and against Nicaragua, Land, Island and somewhat beyond it, but it does not support this case, it would appear that it will step Maritime Frontier Dispute (El Salva- the suggestion in Monetary Gold of a steady back from that stream of development and, dor/Honduras), Continental Shelf (Libyan stream of prior authority. in so doing, both expand the limited princi- Arab Jamahiriya/Malta, Frontier Dispute If the proposition be correct that an ap- ple of that case, and diminish the area of the (Burkina Faso/Republic of Mali) and Cer- plication should be dismissed where the Court’s jurisdiction. The Monetary Gold tain Phosphate Lands in Nauru (Nauru v. illegal act of a third party State lies at the principle, thus applied, would be discharg- Australia). very foundation of the claim, the Court ing a function very different to what it did Principles that have received elaboration would have indicated to the United King- in the case in which it was formulated. in the Court’s developing jurisprudence on dom that this alternative claim was unsus- this point are that it did not suffice that a tainable in the absence of Yugoslavia and Page 36 East Timor Documents, Volume 38. Timor Gap Case decided.
3. Other relevant factors have the further safeguard of the absence of the three trustees, despite the implications a doctrine of stare decisis. this might have had upon the liability of (i) Third party safeguards others. The Court there pointed out that it In Military and Paramilitary Activities in (ii) The principle of individual State respon- sibility was not precluded from adjudicating upon and against Nicaragua, the Court observed the claims submitted to it: Principles of State responsibility, based that, in appropriate circumstances, it would “provided that the legal interests of on the autonomous and individual nature of decline, as in Monetary Gold, to exercise the third State which may possibly be each State, require that where two States are the jurisdiction conferred upon it where the affected do not form the very subject- accessory to a wrongful act, each State must legal interests of a State not party to the matter of the decision that is applied bear international responsibility for its own proceedings “would not only be affected by for. Where the Court is so entitled to internationally wrongful act. a decision, but would form the very subject- act, the interests of the third State This principle was well formulated by matter of the decision (ICJ Reports 1954, p. which is not a party to the case are Portugal at the oral hearings: “the security 32)” (ICJ Reports 1984, p. 431, para. 88). protected by Article 59 of the Statute and the smooth running of the Organization Thereafter the Court went on to note the of the Court, which provides that, are collective under the Charter, because safeguards available to third parties in the ‘The decision of the Court has no each member has duties that it owes to the following terms: binding force except between the par- others and to the Organization itself, inas- “Where however claims of a legal ties and in respect of that particular much as it constitutes their corporate union. nature are made by an Applicant case.’” (ICJ Reports 1992, p. 261.) In other words, it is because the system is against a Respondent in proceedings It would be even more inappropriate that universal that, within it, each member re- before the Court, and made the sub- a State which has not accepted the Court’s tains individual responsibility for its acts ject of submissions, the Court has in jurisdiction can use the very fact of its non- and a duty to respect the principles common principle merely to decide upon those acceptance as a means of preventing States to all. It follows that none of the members submissions, with binding force for that have accepted jurisdiction from settling can shelter behind the fact that a situation the parties only, and no other State, in their disputes according to law. has been created by another in order to accordance with Article 59 of the Australia’s submission that its responsi- avoid itself reacting to that situation in pur- Statute. As the Court has already in- bility “could at all events be no more than suance of the rules of law enshrined in the dicated ... other States which consider consequential, derived from the responsibil- common Charter.” (CR 95/5, p. 72.) that they may be affected are free to ity of Indonesia” (CR 95/8, p. 8) does not In the Seventh report on State Responsi- institute separate proceedings, or to accord with basic principles of State re- bility by Mr. Roberto Ago, Special Rappor- employ the procedure of interven- sponsibility, for, to use again the language teur, that distinguished rapporteur treated as tion.” (Ibid.) of the same Rapporteur: axiomatic the proposition that a breach of Third party protection, which follows “One of the principles most deeply international responsibility by a State would also from the general principles of interna- rooted in the doctrine of international engage that State’s responsibility, irrespec- tional law, is entrenched, so far as the law and most strongly upheld by State tive of another State’s participation in the Court’s jurisdiction is concerned, by Article practice and judicial decisions is the act. The report observed: 59 of its Statute. principle that any conduct of a State “It need hardly be said that, if the Indeed, this concern for the protection of which international law classifies as a actions constituting participation by a third States is carried even further by Arti- wrongful act entails the responsibility State in the commission of an interna- cle 62 which ensures that, should a State of that State in international law.” tionally wrongful act by another State consider that it has an interest of a legal (Ago, Yearbook of the International constituted a breach of an interna- nature which may be affected by the deci- Law Commission, 1971, Vol. II (Part tional obligation in themselves, they sion in the case, it may request that it be One), p. 205, para. 30.) would on that account already engage permitted to intervene. When the Court’s Even if the responsibility of Indonesia is the international responsibility of the Statute was designed, it was no doubt the prime source, from which Australia’s State which performed those actions, clearly foreseen that a judgment of the responsibility derives as a consequence, irrespective of any consequences that Court could well make an impact on the Australia cannot divert responsibility from might follow from the part taken in rights of third parties. The Statute therefore itself by pointing to that primary responsi- the internationally wrongful act of embodied these carefully structured safe- bility. guards protecting the interests of third party another State.” (Ch. IV, “Implication States which may be affected by a decision of a State in the internationally (iii) Rights erga omnes - a structure which both protects them and wrongful act of another State,” Year- Australia has very rightly stated that it enables them to intervene. Monetary Gold book of the International Law Com- “does not dispute that the right to self- did no more than give effect to these statu- mission, 1978, Vol. II (Part One), determination is an erga omnes principle” tory provisions. It was scarcely meant to be A/CN.4/307 and Add. 1&2, para. 52, (Rejoinder, p. 42, para. 78). This position erected into an independent principle in its fn. 99; Reply, Vol. I, pp. 220-221; has been many times repeated in the oral own right, constituting a third and further see, also, Ian Brownlie, State Respon- submissions. The concept of rights and protection, travelling even beyond the Stat- sibility (Part I), 1983, p. 190.) obligations erga omnes is further discussed ute itself. On these principles, the Respondent in Part D. It is to be remembered, moreover, that, State must answer separately for its own An erga omnes right is, needless to say, a while in domestic jurisdictions where the acts. series of separate rights erga singulum, doctrine of stare decisis applies, the other This separation of responsibility was il- including inter alia, a separate right erga parties in transactions of an identical nature lustrated also in this Court’s decision in singulum against Australia, and a separate may find themselves bound by a principle Nauru, where, although the mandate and right erga singulum against Indonesia. of law laid down in a case to which they are trusteeship in question were given to the These rights are in no way dependent one not parties, in international law, third parties same three governments “jointly,” the Court upon the other. With the violation by any permitted the case to proceed against one of State of the obligation so lying upon it, the East Timor Documents, Volume 38. Timor Gap Case decided. Page 37 rights enjoyed erga omnes become oppos- them all, in a world order of criss-crossing ponent is Indonesia, Portugal’s grievance is able erga singulum to the State so acting. multilateral obligations. against Indonesia and Portugal’s true cause To suggest that Indonesia is a necessary As Judge Shahabuddeen observed in his of action is only against Indonesia. party to the adjudication of that breach of separate opinion in Certain Phosphate At the oral hearings, Australia summa- obligation by Australia is to hamper the Lands in Nauru: rized its case in this regard in the following practical operation of the erga omnes doc- “It has been correctly pointed out terms: trine. It would mean, very much along the that ‘[a]s inter-State relationships be- “- on the one hand, Australia heart- lines of the illustrations in section 2(vi) come more complex, it is increasingly ily subscribes to the legal settlement above, that Indonesia could protect any unlikely that any particular dispute of international disputes which lend country that has dealings with it in regard to will be strictly bilateral in character’ themselves to it; but it also subscribes East Timor, from being impleaded before (L.F. Damrosch, “Multilateral Dis- to the principle of consent to jurisdic- this Court, by Indonesia itself not consent- putes,” in L.F. Damrosch (ed.), The tion (at least, until a consensus in fa- ing to the Court’s jurisdiction. In the judi- International Court of Justice at a vour of the universal, compulsory ju- cial forum, the right erga omnes could to Crossroads, 1987, p. 376).” (ICJ Re- risdiction of the Court has been that extent be substantially deprived of its ports 1992, p. 298.) achieved); and it considers that this effectiveness. (v) The distinction between a treaty and the forum should not be diverted to ends Moreover, in any event, Indonesia would unilateral acts from which it results not properly its own; as a sovereign be protected against any suggestion of res State, Indonesia has chosen not to ac- It is self-evident that while a treaty is a judicata against it. The right erga omnes, cept the optional clause; that is its bilateral or multilateral instrument, it comes when asserted against Australia, becomes a business; into existence through the fusion of two or right erga singulum which, in turn, becomes “on the other hand, Australia does more unilateral acts, as the case may be. a res judicata erga singulum against Austra- not mean to be used as a scapegoat, What the Court is invited to consider in this lia, in the event of the success of the claim. whose principal function would be to case is not the unlawfulness of the bilateral It would have no adjudicatory quality salve the conscience of Portugal treaty, but the unlawfulness of the Respon- against Indonesia, thus preventing the which, being unable to join issue with dent’s unilateral actions which went into the “Monetary Gold principle” from operating Indonesia, is attacking a State which, making of that Treaty. to bar the action against Australia. in reality, can do nothing about the It is a clear principle in the domestic law matter and whose alleged responsibil- (iv) Increasingly multilateral nature of mod- of obligations that the unlawfulness of a ity - a complete fabrication for the ern international obligations contract and the unlawfulness of the con- purposes of the case - could at all Reference has already been made to the duct of the parties to it are different con- events be no more than consequential, fact that the multilateral aspect of obliga- cepts. A similar principle is to be found in derived from the responsibility of In- tions is gaining increasing significance in the law of treaties, where there could, for donesia.” [18] (CR 95/8, p. 8). modern international law. Any example, be a valid treaty even though one instrumentality charged with administering party acts unlawfully by its domestic law in If Indonesia had in fact been before this international law in this context needs to entering into it (Vienna Convention, Art. Court, one could see that Portugal would take account of this aspect so as not to 46), or when a representative acts in viola- probably have pleaded its case against In- restrict the development of international law tion of a specific restriction validly placed donesia in very different terms from its in keeping with this trend. Foremost among upon him by his State (Art. 47). The treaty claim against Australia. A larger segment of the sources of multilateral obligations is the is nevertheless binding. factual material pertinent only to Indonesia UN Charter, under which all States alike are The Court is not called upon to pro- may have been placed before this Court, vested with rights and responsibilities which nounce upon the unlawfulness or otherwise which is not germane to the case against all others must recognize. of the Treaty, or upon the unlawfulness or Australia. It may even be said that, had both In this network of interlocking interna- otherwise of Indonesia’s conduct, but upon Indonesia and Australia been available as tional relationships, each State which is the unlawfulness or otherwise of Australia’s respondents, Portugal’s claim against Indo- impugned by another for failure to abide by unilateral act in entering into it. What are nesia may have been the more important of its international obligations must answer for the legal obligations of a particular party, the two. itself, in accordance with the principle of what are its acts, to what extent do those Another way of approaching the submis- individual responsibility already outlined. It acts contravene its obligations - those are sion that the wrong party has been sued is cannot plead another State’s responsibility the questions bearing upon the unilateral perhaps as follows: as an excuse for its own failure to discharge conduct of one party, which the Court is If Indonesia had been a party before the its own responsibility. That other State will called upon to decide. The invalidity of the Court, Portugal’s case against Indonesia answer for itself when the appropriate situa- Treaty, or of the other Party’s conduct, is would either be the identical case, namely, tion arises and may perhaps be affected by not the precondition, as Australia suggests, that it too acted unlawfully in entering into the judgment the Court renders in the case for the Court’s finding on the unlawfulness the identical treaty, or it would be a more before it. of Australia’s conduct. substantial case, involving other items of If, for example, the Court held with Por- The acts of a contracting State, such as alleged illegal conduct against Indonesia. In tugal in this case, this finding would have the decision to sign, the decision to accord case of the first alternative, if it were the repercussions on many other States which de jure recognition, the decision to ratify, identical case, the situation would be di- may or may not have acted in accordance the decision to implement, the decision to rectly covered by the Nauru decision where with their individual obligations to recog- legislate, are all unilateral acts upon which the claim against absent parties would have nize the rights of East Timor. This Court the Court can adjudicate. been identical, had they been sued, to the cannot concern itself with all those ramifi- (vi) Has the wrong party been sued? claim actually before the Court. On the cations of a finding which it delivers in Australia’s position is that the true re- clear jurisprudence of this Court, the Court accordance with binding norms of interna- spondent in this case is Indonesia. Accord- would have jurisdiction. In case of the sec- tional law. The Court cannot anticipate ing to this submission, Portugal’s real op- ond alternative, the case against Indonesia Page 38 East Timor Documents, Volume 38. Timor Gap Case decided. would be one of a different order, involving Others saw the Statute, and the principle application of the “Monetary Gold princi- a different range of evidence and a different of consent on which jurisdiction was based, ple.” set of issues. The case against Australia as an instrument which, through the experi- (viii) Conclusion depends upon Australia’s obligations and ence of their operation, would enable the In the result, the Australian objections their violation by entering into the Treaty. new concept of international adjudication, based on the contentions that the Monetary The case against Indonesia would relate to never in previous history available for uni- Gold principle stands in the way of the the circumstances of Indonesia’s entry into versal recourse[20], to grow in usefulness Court’s competence, that the Court would East Timor, the political and administrative and international service. That background be required to make an adjudication on the arrangements that have followed, and nu- of lofty purpose always attends the work of conduct of Indonesia, and that the wrong merous other details pertinent to alleged this Court. party has been sued should all be rejected. unlawful conduct by Indonesia. It would, in Developing further the principle of pro- The reasons for these conclusions have been short, be a totally different case. Such a gressive development, Mr. Balfour stated: sufficiently set out. Australia’s obligations situation would run directly contrary to the “if these things are to be successful under international law and Australia’s Australian contention that the case brought they must be allowed to grow. If they actions such as negotiating, concluding, and against Australia is in reality a case against are to achieve all that their framers initiating performance of the Treaty, taking Indonesia, brought against the wrong Re- desire for them, they must be allowed internal legislative measures for the applica- spondent. to pursue that natural development tion thereof, and continuing to negotiate All that this Court is concerned with is which is the secret of all permanent with the State party to that Treaty are justi- whether a legally supportable claim has success in human affairs ...” [21] ciable on the basis of Australia’s legal posi- been made against Australia. If this be so, it The inadequacy of Article 36 was recog- tion viewed alone and Australia’s actions matters little whether or not a more impor- nized in 1945 as well, when the Statute for viewed alone. tant or substantial claim could have been the present Court came under discussion, made against Indonesia had Indonesia con- but no agreement was possible as to how to PART B. THE IUS STANDI OF sented to the jurisdiction. rewrite it (Rosenne, op. cit., p. 316). Three PORTUGAL The answer therefore to the contention quarters of a century have passed since the that the wrong party has been sued is that adoption of the provision under discussion. If the Court has jurisdiction to hear this the Court needs only to go so far as to find This period has been rich in the experience case, as indicated in Part A of this opinion, that there is a legally sustainable claim out of which this Court and its predecessor the matter cannot proceed further without a against the party that has in fact been sued. have been fashioning an interpretation har- consideration of the important Australian (vii) Historical background monious with the needs which the Statute objection that Portugal lacks the necessary As a postscript to this discussion, it intended it to serve. Observing that “the legal status to act on behalf of East Timor. would not be out of place to look back upon very notion of a more broadly based con- (i) The respective positions of the Parties the deliberations at the League of Nations ception of the jurisdiction of the Court is Australia challenges the locus standi of regarding the particular clause of the gaining ground” (ibid.), and that: “[t]he Portugal to bring this action. It asserts that Court’s Statute upon which this entire case principle that the jurisdiction of an interna- since Portugal has lost control over the terri- has turned. tional tribunal derives from the consent of tory several years ago, and another Power, In regard to consulting travaux prepara- the parties has long been subject to a proc- namely Indonesia, has during all those years toires regarding certain important provi- ess of refinement” (ibid.), Rosenne goes on been in effective control, Portugal lacks the sions of the Covenant of the League of Na- to observe: “The result is that the applica- status to act on behalf of the Territory. tions, Judge Jessup observed: tion of the principle is less rigid than may Moreover, with specific reference to its “In my opinion, it is not necessary be inferred from the manner in which it is treaty-making powers, Australia submits - as some utterances of the two inter- enunciated.” (Ibid., p. 317.) that Portugal totally lacks the capacity to national courts might suggest - to As shown in section 2(viii) above, the ju- implement any treaty it may make relating apologize for resorting to travaux pre- risprudence of this Court in relation to ab- to East Timor. Lacking this capacity, it paratoires as an aid to interpretation. sent third parties has indeed been growing lacks the ability to enter into any meaning- In many instances the historical re- along the path of the gradual and steady ful treaty regarding the territory, or to com- cord is valuable evidence to be taken development envisaged at the time of the plain that a treaty has been entered into into account in interpreting a treaty.” adoption of the principle of consent as a without reference to it by another Power (South West Africa, ICJ Reports basis of jurisdiction. which is in effective control. 1966, p. 352; dissenting opinion.) A continuous thread that runs through In support of this position, Australia The First Assembly of the League, on the jurisprudence that has evolved around points to the absence of any General As- December 13th, 1920, the day of adoption the “Monetary Gold principle” is the sembly resolution recognizing the status of of the Statute, was discussing the optional Court’s concern, while giving due weight to Portugal since 1982, and the absence like- jurisdiction principle, embodied in Article the interests of third parties, at the same wise of any resolution of the Security Coun- 36, paragraph 2, of the Statute of the Per- time, to prevent an extended application of cil since 1976. Australia consequently ar- manent Court, which, subject to minor that principle from hampering it in the le- gues that, even if resolutions before these variations, became Article 36(2) of the Stat- gitimate and proper exercise of its jurisdic- dates validly recognized such a status at one ute of this Court. What were the expecta- tion. Consistent with this approach, and for stage, they have since fallen into desuetude tions attending the adoption of this clause, the reasons already discussed, the Court and been overtaken by the force of events. and how was it expected to work? should, in my respectful view, have pro- Australia points, moreover, to the fact that Some delegates criticized the principle of ceeded to adjudicate upon this case. I am of successive votes in the General Assembly in consent as a basis of the Court’s jurisdiction the view, again expressed with the greatest relation to East Timor have revealed a de- - for example, Mr. Tamayo (Bolivia) ob- respect for the contrary opinion of the creasing proportion of UN membership in served that this was unstable and perishable Court, that the present Judgment represents favour of the resolutions recognizing the material out of which to build the edifice of a break in the course of steady development position of Portugal. justice[19]. that has thus far elucidated and refined the East Timor Documents, Volume 38. Timor Gap Case decided. Page 39
Portugal argues, on the other hand, that, The proposition can be tested by taking Thirdly, there is more to the status of although it has physically left the territory an extreme example, at a purely hypotheti- administering Power than mere physical and no longer controls it, it is nonetheless cal level, of a non-self-governing territory control. An administering Power is charged the administering Power, charged with all being militarily overrun by a third Power, with many duties relating to the welfare of the responsibility flowing from the provi- anxious to ensure not the “political, eco- the people of the territory. It may lose sions of Chapter XI of the United Nations nomic, social and educational advance- physical control but, with that loss of physi- Charter, and has been recognized as such by ment” of the people, but anxious rather to cal control, its duties do not fade away. The a series of General Assembly and Security use it as a military or industrial base. Sup- administrative Power is still obliged to ex- Council resolutions. It submits further that pose, in this hypothetical example, that this tend such protections as are still available to there has been no revocation at any stage of invading power completely displaces the it for the welfare of the people and the pres- Portugal’s authority as administering legal authority of the duly recognized ad- ervation of their assets and rights. The con- Power, no limitation placed upon it, and no ministering Power. If the administering servation of the territory’s right to perma- recognition of any other power as having Power cannot then speak for the territory nent sovereignty over its natural resources authority over East Timor. that has been overrun and the people of the is thus a major responsibility of the (ii) Structure of UN Charter provisions territory themselves have no right of audi- administering Power, including particularly regarding dependent territories ence before an international forum, that the preservation of its major economic people would be denied access to the inter- asset, in the face of its possible extinction A discussion of the status of Portugal to national community, whether directly, in for all time. Such legal responsibilities maintain this action necessitates a brief their own right, or indirectly, through their remain the solemn duty of the administering overview of the structure of the UN Charter administering Power. The deep concern for Power, even though physical control may provisions framed for the protection of de- their welfare, which is a primary object of have been lost. pendent territories. Chapter XI of the Charter, and the “sacred The Charter was so structured that the in- (iii) Is the UN a substitute for a displaced trust” notion which is its highest conceptual terests of territories not able to speak for administering Power? expression, would then be reduced to futil- themselves in international forums were to In answer to such a line of reasoning, it ity; and the protective structure, so carefully be looked after by a Member of the United may perhaps be suggested that the General built upon these concepts, would disinte- Nations entrusted with their welfare, who Assembly and the Security Council can, in grate, in the presence of the most untenable would have the necessary authority for this such an event, take over the responsibilities of reasons - the use of force. In that event, purpose. In other words, its underlying phi- of the administering Power. the use of force, which is outlawed by the losophy in regard to dependent territories It is true indeed that the General Assem- entire scheme of the UN Charter, would was to avoid leaving them defenceless and bly and the Security Council, in all their have won its victory, and would indeed voiceless in a world order which had not yet plenitude of power, preside over the great have won it over some of the loftiest con- accorded them an independent status. task of decolonization and protection of cepts enshrined in the Charter. It is difficult This is not to be wondered at when one dependent peoples. Yet, with all respect, to subscribe to a view that thus encourages has regard to the high idealism which is the they are no substitutes for the particular and, indeed, rewards the use of force. essential spirit of the Charter - an idealism attention to the needs of each territory This example, offered at a purely hypo- which spoke in terms of a “sacred trust” which the Charter clearly intended to thetical level, has been aimed at testing the lying upon the powers assuming responsi- achieve. Protection from internal exploita- practical efficacy of a legal proposition that bilities for their administration, an idealism tion and external harm, day-to-day admini- seems to run counter to the entire scheme of which stipulated that the interests of their stration, development of human rights, the UN Charter. As so often in the law, the inhabitants were paramount. Translating promotion of economic interests and well- hypothetical example assists in the under- this idealism into practical terms, the Char- being, recovery of wrongful loss, fostering standing of the practical rule. ter provided for United Nations supervision of self-government, representation in world Grave reservations must be registered of the responsible authorities through a forums, including this Court - all these re- regarding any interpretation of the Charter requirement of regular transmission of in- quire particular attention from a Power which leaves open so serious a gap in its formation to the Secretary-General (Art. specifically charged with responsibility in scheme of protection and so undermines the 73(e)). They were further required to ensure that regard. Moreover, the supervision of central tenets which are its very foundation. the political, economic, social and educa- the United Nations depends also on trans- Three major legal concerns arise from tional advancement, just treatment and pro- mission of information under Article 73(e) this argument. The first concern, already tection against abuses of the inhabitants and, in the absence of an administering referred to, is that it seems to concede that thus placed under their care. Power, there would be a total neglect of that whatever the means through which that It is against the background of such an function and hence an impairment of UN control has been lost, the important factor is overall scheme that the Australian submis- supervision. The Charter scarcely envisaged the physical loss of control. This is a dan- sions in this case need to be tested. The that a dependent people should be left to gerous proposition which international law submission under examination is no less fend for themselves, denied all this assis- cannot endorse. than that an administering Power’s loss of tance. Least of all can it be envisaged that Secondly, the precedents in the matter do physical control deprives it of the status and the use of force could deprive them of these not lend support to the Australian argument. functions of an administering authority, and rights. The basic protective scheme of the An instance that comes to mind is the case that the protective and reporting structure, Charter cannot thus be negated. of Rhodesia, in respect of which it was no- so carefully fashioned by the United Na- where suggested that loss of United King- (iv) The right of representation tions Charter can thus be brushed aside. dom physical control over the territory Australia’s contention that Portugal, by This is a proposition to be viewed with meant a loss of United Kingdom legal au- having lost control over the territory for a great concern. It means that, whatever the thority in respect of the territory. United period of years, has lost the right to repre- reason for the administering Power’s loss of Nations action was based entirely on the sent the people of East Timor is untenable control, that loss of control brings in its assumption of the continuing status of for the same reasons. Any other view would wake a loss of legal status. United Kingdom authority. result in the anomalous situation of the cur- Page 40 East Timor Documents, Volume 38. Timor Gap Case decided. rent international system leaving a territory The resolutions of the General Assembly tioned here only because some suggestions and a people, who admittedly have impor- are the following: 3485(XXX), 31/53, were made in the oral submissions that Por- tant rights opposable to all the world, de- 32/34, 33/39, 34/40, 35/27, 36/50 and tugal has instituted this case for reasons fenceless and voiceless precisely when 37/30. Some of these resolutions expressly other than a desire to conserve the interests those rights are sought to be threatened or recognize the status of Portugal as the ad- of the territory and people of East Timor. violated. Indeed, Counsel for Portugal put ministering Power (resolutions 3485(XXX), Not only will any success Portugal may this well in describing the nexus provided 34/40, 35/27, 36/50 and 37/30) and not one achieve from this case be held strictly for by the administering Power as “the umbili- of them recognizes a legal status in Indone- the benefit of the people of East Timor, but cal cord” which ties East Timor to the inter- sia. Rather, some of them (31/53, 32/34, it will be held strictly under UN supervi- national community. 33/39) reaffirm the Security Council resolu- sion. The Australian argument that Chapter While recognizing that Portugal has not tions and draw the attention of the Security XI of the UN Charter “is not a colonial in this case sought to base its locus standi Council to the critical situation in East charter intended legally to entrench the on any footing other than that of an admin- Timor, and recommend that it take all effec- rights of the former colonial State ...” (CR istering Power, this anomaly can also be tive steps for the implementation of its reso- 95/10, p. 65) loses its thrust in such a con- illustrated in another way. In South West lutions, with a view to securing the full text. Africa, Second Phase (ICJ Reports 1966, p. exercise by the people of East Timor of Australia submits that Portugal not only 6), two States which had no direct connec- their right to self-determination. Some of has a poor colonial record but, in fact, tion with the Territory in question sought to them request the Special Committee on the abandoned the people of East Timor. What- bring before the Court various allegations of Situation with regard to the Implementation ever may have been the facts regarding contraventions by South Africa of the of the Declaration on the Granting of Inde- these aspects, they were not unknown to the League of Nations Mandate. There was no pendence to Colonial Countries and Peoples General Assembly, which nevertheless in- direct nexus between these States and South to keep the situation in East Timor under vited Portugal to continue its efforts. The West Africa. Their locus standi was based active consideration (resolutions 31/53 and body best able to assess Portugal’s conduct solely on their membership of the commu- 32/34 of 28 November 1977); reject the having decided, notwithstanding all the nity of nations and their right as such to claim that East Timor has been integrated information at its disposal, to issue such an take legal action in vindication of a public into Indonesia inasmuch as the people of the invitation, this Court must respect that deci- interest. territory have not been able to exercise sion. It is to be observed further that, in The present case is one where the appli- freely their right to self-determination and extending that invitation, the General As- cant State has a direct nexus with the Terri- independence (resolution 32/34 of 28 No- sembly placed no restrictions on Portugal’s tory and has in fact been recognized by both vember 1977); declare that the people of status as administering Power, nor has it the General Assembly and the Security East Timor must be enabled to determine done so since then. It is significant also that, Council as the administering Power. freely their own future within the frame- in resolution 384 (1975), the Security This case has similarities with South work of the United Nations (resolution Council in fact censured Portugal for its West Africa in that there is here, as there, a 35/27 of 11 November 1980); welcome the failure to discharge its responsibilities fully Territory not in a position to speak for it- diplomatic initiative taken by the Govern- as administering Power, but yet continued self. There is here, as there, a Power which ment of Portugal as the first step towards to recognize Portugal as the administering is in occupation by a process other than one the free exercise by the people of East Power. that is legally recognized. There is here, as Timor of their right to self-determination The resolutions of the Security Council, there, another State which is seeking to and independence (ibid.); urge all parties resolution 384 (1975) and resolution 389 make representations on the Territory’s directly concerned to co-operate fully with a (1976), have been quoted earlier in this behalf to the Court. There is here, as there, view to creating the conditions necessary opinion. Recognizing and reaffirming the an objection taken to the locus standi of the for the speedy implementation of General inalienable right of the people of East Timor Applicant. Assembly resolution 1514(XV) (ibid.); to self-determination, the Security Council, A vital difference is that here, unlike declare that the people of East Timor must in both resolutions, calls upon all States to there, the applicant State has a direct nexus be enabled freely to determine their own respect the territorial integrity of East with the Territory and enjoys direct recogni- future on the basis of the relevant General Timor, as well as the inalienable right of its tion by the United Nations of its particular Assembly resolutions and internationally people to self-determination, and urges all status vis-à-vis the Territory. The position accepted procedures (resolution 36/50 of 24 States and other parties concerned to co- of the applicant State is thus stronger in the November 1981) and invite Portugal as the operate fully with the efforts of the United present case than the position of the States administering Power to continue its efforts Nations to achieve a peaceful solution to the whose locus standi was accepted by half the with a view to ensuring the proper exercise existing situation and to facilitate the de- judges of the Court in the South West Af- of the right to self-determination and inde- colonization of the Territory. rica Judgment (ibid.), and, indeed, by the pendence by the people of East Timor These two resolutions of the Security majority of the judges in the earlier phase of (ibid.). Council have not at any stage been revoked, that case (South West Africa, Preliminary Since there is no diminution in any of the nor have they been superseded by later Objections, ICJ Reports 1962, p. 319). resolutions of Portugal’s status as adminis- resolutions rendering them inapplicable. (v) Resolutions recognizing Portugal’s tering Power, one must therefore regard Security Council resolution 384 ex- status as administering Power Portugal as continuing to be vested with all pressly referred to Portugal as the adminis- the normal responsibilities and powers of an tering Power and specifically imposed upon The Court is called upon to decide, in re- administering authority. It is to be stressed, it the duty of co- operating fully with the gard to these resolutions, whether the Gen- of course, that whatever powers an adminis- United Nations so as to enable the people of eral Assembly resolutions are devoid of tering Power is vested with are powers East Timor to exercise freely their right to legal effect. As a prelude to a discussion of given to it solely for the benefit of the terri- self-determination. The resolution thus con- this legal question, the content of these tory and the people under its care and not tained a clear indication to Portugal of its resolutions is briefly set out. for the benefit in any way of the administer- duties in safeguarding this right of the East ing Power. This is a truism and is men- Timorese people. Since economic sover- East Timor Documents, Volume 38. Timor Gap Case decided. Page 41 eignty is an important element of the con- determination have thus long been matters the General Assembly ‘on important ques- cept of sovereignty, there was thus imposed recognized as being within the scope of the tions.’ These ‘decisions’ do indeed include upon Portugal, by Security Council resolu- General Assembly’s authority. In resolution certain recommendations, but others have tion, apart from Charter provisions, the duty 1541(XV) of 15 December 1960, it specifi- dispositive force and effect.” (Certain Ex- to safeguard the Territory’s most valuable cally addressed (in Principle VI) the ques- penses of the United Nations, Advisory economic asset until the right to self- tion whether a Non-self-Governing Terri- Opinion, ICJ Reports 1962, p. 163; empha- determination was freely exercised. tory can be said to have reached a full sis in original.) As with the General Assembly, so also measure of self-government. Waldock, in his General Course (Recueil with the Security Council, Portugal’s prior When, therefore, the General Assembly des cours de l’Academie de droit interna- colonial conduct did not prevent it from determines that a particular dependent terri- tional, 1962, vol. 106, p. 26), referring to giving to Portugal the status it did and im- tory has not exercised the right of self- this judicial pronouncement, stressed the posing upon it the duties that went with that determination or that a particular State is General Assembly’s competence to make status. recognized as the Administering Power over decisions having dispositive force and ef- That status thus recognized by the Secu- a dependent territory, the Assembly is mak- fect[24]. rity Council receives repeated recognition ing a determination within the area of its In more than one of its resolutions, the in later resolutions of the General Assembly competence, and upon a review of a vast General Assembly has referred to its com- (see resolutions 35/27 (1980), 36/50 (1981) range of material available to it. Legal con- petence and 37/30 (1982)). sequences follow from these determina- “to decide whether a Non-Self- After these general observations, it is tions. Governing Territory has or has not at- necessary to examine the legal effects of the Of course there are resolutions of the tained a full measure of self- relevant resolutions in greater detail. General Assembly which are of an entirely government as referred to in Chapter (vi) Legal force of the resolutions hortatory character. Many resolutions of the XI of the Charter” (resolution General Assembly are. But a resolution 748(VIII) of 27 November 1953, re- 1. General Assembly resolutions containing a decision within its proper lating to Puerto Rico; and resolution Very early in the history of the United sphere of competence may well be produc- 849(IX) of 22 November 1954, relat- Nations, the General Assembly’s compe- tive of legal consequences. As this Court ing to Greenland; emphasis added). tence in regard to non-self-governing terri- observed in Namibia, the General Assembly The General Assembly has also asserted tories was recognized. Thus Kelsen refers is not “debarred from adopting, ... within this power in relation to Surinam and the to: the framework of its competence, resolu- Netherlands Antilles, Alaska and Hawaii “the competence the General Assembly tions which make determinations or have (see Goodrich, Hambro and Simons, op. has with respect to non-self-governing terri- operative design” (Legal Consequences for cit., pp. 460-461, and the references therein tories not under trusteeship in accordance States of the Continued Presence of South cited to the relevant resolutions). The Gen- with Article 10 and (together with the Secu- Africa in Namibia (South West Africa) eral Assembly has not hesitated to use this rity Council) under Article 6” (The Law of notwithstanding Security Council Resolu- power as, for example, when Portugal and the United Nations, 1950, p. 553, fn. 1) tion 276 (1970), ICJ Reports 1971, p. 50, Spain, following their admission to UN and suggests that the General Assembly para. 105). membership, asserted that they did not ad- may discuss the non-fulfilment by a Mem- Even more is this so when those resolu- minister any territories covered by Chapter ber of its obligations under Chapter XI, tions have been expressly accepted and XI. In 1960, the Assembly declared that the leading even to the imposition of sanctions, endorsed by the Security Council, which is territories of Portugal were non-self- along with the Security Council, under Ar- the case in relation to the resolutions on the governing “within the meaning of Chapter ticle 6 (see, also, 48 American Journal of status of Portugal as administering Power. XI of the Charter” (General Assembly reso- International Law (1954), p. 103). Thus resolutions of the General Assem- lution 1542(XV) of 15 December 1960). It After the adoption of the Declaration on bly which expressly reject the claim that asserted its powers in this regard even more the Granting of Independence to Colonial East Timor has been integrated into Indone- strongly the following year, condemning Countries and Peoples by the General As- sia (32/34 of 28 November 1977) declare Portugal for “continuing non-compliance” sembly in 1960, it established a committee that the people of East Timor must be en- with its obligations under Chapter XI and to follow up the implementation of the Dec- abled to determine their own future freely for its refusal to co-operate with the Com- laration, thus “bringing all non-self- within the framework of the United Nations mittee on Information from Non-Self- governing territories under a form of inter- (35/27 of 11 November 1980) and expressly Governing Territories, and established a national supervision comparable to that of recognize Portugal as the administering special committee authorized to receive the trusteeship system” [22]. So much are Power (3485(XXX), 34/40, 35/27, 36/50 petitions and hear petitioners on this matter all aspects of self-determination regarded by and 37/30) are resolutions which are pro- (General Assembly resolution 1699(XVI) of the General Assembly as pertaining to its ductive of legal effects. 19 December 1961). United Nations prac- sphere of authority that there has been a Article 18 of the Charter makes it clear tice has not questioned the General Assem- tendency “to consider that no aspect of ‘co- that, on “important questions,” the General bly’s competence so to act as the appropri- lonialism’ should be treated as a matter Assembly may make “[d]ecisions.” Advert- ate UN organ for determining whether a falling ‘essentially’ within the domestic ing to this provision, this Court has ob- non-self-governing territory has or has not jurisdiction of a State” (Goodrich, Hambro served: achieved self-determination. and Simons, ibid.). “Thus while it is the Security Council In a treatise on Legal Effects of United The Assembly maintains a vigilant eye which, exclusively, may order coercive Nations Resolutions, Castaneda makes a over all aspects relating to non-self- action, the functions and powers conferred juristic analysis of this power, observing governing territories through the Fourth or by the Charter on the General Assembly are that a General Assembly resolution does not Decolonization Committee[23] and the not confined to discussion, consideration, express a duty, but rather establishes in a Committee of Twenty-four. Questions of the initiation of studies and the making of definite manner the hypothesis or condition the termination of dependent territory status recommendations; they are not merely hor- from which flows a legal consequence, upon the exercise of the right of self- tatory. Article 18 deals with ‘decisions’ of Page 42 East Timor Documents, Volume 38. Timor Gap Case decided. which makes possible the application of a economic resources of the territory. Such a United Nations to another to respect that rule of law. duty cannot be fulfilled without a legal resolution, irrespective of its political his- “By its nature, this consequence ability on the part of the administering tory or the voting strength it reflects. may be an order to act or not to act, Power to take the necessary action for pro- As Judge Lauterpacht has observed: an authorization, or the granting or tecting those interests. If the administering “Whatever may be the content of denial of legal competence to an or- Power receives information that the eco- the recommendation and whatever gan.” (Jorge Castaneda, The Legal Ef- nomic interests of the territory are being may be the nature and the circum- fects of UN Resolutions, 1969, p. dealt with by other entities, to the possible stances of the majority by which it 121.) prejudice of the interests of the territory’s has been reached, it is nevertheless a The foregoing observations have a bear- people, it is the administering Power’s duty legal act of the principal organ of the ing on the definitive effects of General As- to intervene in defence of those rights. In- United Nations which Members of the sembly resolutions regarding Portugal’s deed, failure to do so would be culpable. To United Nations are under a duty to status, East Timor’s status as a non-self- suggest that the Charter would impose these treat with a degree of respect appro- governing territory, and East Timor’s right heavy responsibilities upon administering priate to a resolution of the General to self-determination. Additionally, since Powers and, at the same time, deny them Assembly.” (Voting Procedure on the General Assembly is the appropriate the right of representation on behalf of the Questions relating to Reports and Pe- body for recognition of the Power holding territory, is to deprive these Charter provi- titions concerning the Territory of authority over a non-self-governing terri- sions of a workable meaning. Such a restric- South West Africa, ICJ Reports 1955; tory, the absence of any General Assembly tive interpretation of the authority of an Judge Lauterpacht, separate opinion, resolution recognizing Indonesia’s authority administering Power receives no support, so p. 120; emphasis added.) over East Timor is also a circumstance from far as I am aware, from UN practice or from Indeed, this Australian submission has which a legal inference may be drawn. The the relevant literature. grave implications in the circumstances of General Assembly resolutions also have a Supervision of the administering Power this case, for the resolutions which Australia bearing on the responsibility of all nations is amply provided for in the Charter and it would have the Court ignore are resolutions to co-operate fully in the achievement of is difficult to see any warrant in law or in affirming the important principle of self- self-determination by East Timor. The vari- principle for further fettering a fiduciary determination which is a well-established ous resolutions of the General Assembly Power in the proper and effective discharge principle of customary international law. A relating to this right in general terms, which of its duties under the Charter. heavy burden would lie upon a party con- have helped shape public international law, Further, the power given by the Charter tending that the validity of such a resolution and are an important material source of under Chapter XI is clearly the power of a has been affected by declining support for it customary international law in this regard trustee. The power derives expressly from in the United Nations. (Simma, op cit., p. 240), are specifically the concept of “a sacred trust,” thus under- (ix) Have the resolutions lapsed through strengthened so far as concerns the situation lining its fiduciary character. The very con- desuetude? in East Timor, by the particular resolutions cept of trusteeship carries with it the power Another Australian submission which relating to that territory. of representation, whether one looks at the was strenuously advanced is the suggestion common law concept of trusteeship or the 2. Security Council resolutions that a long period of years during which civil law concept of tutela. A trustee, once These resolutions are also confirmatory similar resolutions are not passed discounts appointed, always carries out his or her of the status of Portugal. They are dealt in some way the value and obligatory nature duties under supervision, but is not required with in Part D in the context of the substan- of such resolutions. Resolutions of the Gen- to seek afresh the right of representation tive obligations of Australia. eral Assembly or of the Security Council do each time it is to be exercised, for that is not have to be repeated to retain their valid- (vii) Does Portugal need prior UN authori- part and parcel of the concept of trusteeship ity. Once these resolutions are duly passed, zation to maintain this action? itself. it is to be presumed that they would retain Portugal’s authority as administering (viii) Are the resolutions affected by di- their validity until duly revoked or super- Power has not been subject to any limitation minishing UN support? seded by some later resolution. by the UN in the resolutions recognizing One of Australia’s contentions was that The proposition that lapse of time wears Portugal’s status. Australia’s submission the progressively lessening vote in favour of down the binding force of resolutions needs that Portugal needs UN authority to bring the General Assembly resolutions cited by to be viewed with great caution. In cases this action (Rejoinder, paras. 136, 144) Portugal showed that those resolutions were where resolutions in fact impose obligations suggests a limitation on an administering of a diminishing level of authority. This at international law, this Court would then, Power’s authority which does not seem to suggestion in effect calls upon this Court to in effect, be nullifying obligations which be envisaged in the UN Charter. venture into the uncertain area of the politi- the appropriate organ of the United Nations, There is another aspect as well to be con- cal history of resolutions of the General properly seised of that matter, has chosen to sidered, namely, that it is the duty of an Assembly and to indulge in a vote-counting impose. More especially is caution required administering Power to conserve the inter- exercise to assess the strength of a particular from the Court in regard to resolutions deal- ests of the people of the territory. As part of resolution. Speculation on the possible ing with obligations erga omnes and rights their fiduciary duties, administering Powers meaning of voting procedures in the Gen- such as self-determination which are fun- recognize in terms of Article 73 of the eral Assembly is not the province of this damental to the international legal system. Charter “the obligation to promote to the Court. Rather the Court’s concern is The Court would, in the absence of compel- utmost ... the well-being of the inhabitants whether that General Assembly resolution ling reasons to the contrary, show due re- of these territories” and, to that end, “to has been duly passed by that principal organ spect for the valid resolutions duly passed ensure ... their ... economic ... advance- of the United Nations within the ambit of its by its sister organs. ment” (Art. 73(a); emphasis added) and “to legal authority. Once thus passed, it com- It is to be noted that Australia’s argu- promote constructive measures of develop- mands recognition and it is part of the cour- ment that the resolutions of the Security ment” (Art. 73(d)). Such obligations neces- tesy due by one principal organ of the sitate the most careful protection of the East Timor Documents, Volume 38. Timor Gap Case decided. Page 43
Council have fallen into desuetude cannot However, when the status at law of an (i) East Timor is a territory unquestiona- be accepted for a further reason. administering Power has been duly recog- bly entitled to self-determination The argument of desuetude breaks down nized as such by the appropriate political The Court is not in this case confronted before the fact that the Committee of authority, this Court cannot take it upon with the difficulty of entering into the much Twenty-four, which is the General Assem- itself to grant or withhold that status, de- discussed area of defining which are the bly’s organ for overseeing the matter of pending on whether it had a good or bad entities or peoples entitled to self- decolonization, has kept the East Timor colonial record. Most colonial Powers determination. Australia has at all times question alive on its agenda year after year. would fail to qualify on such a test, which admitted that East Timor was and is a non- Moreover, the Committee has in its report could make the system of administering self-governing territory[27]. It was specifi- to the General Assembly referred to this in Powers unworkable. The legal question for cally mentioned in the list of non-self- successive years. The Committee would not this Court is whether, in law, it enjoys that governing territories, within the meaning of be expected to keep this matter on their status. Chapter XI of the Charter, contained in books if it is, as Australia has suggested, a At the commencement of this opinion, General Assembly resolution 1542(XV) of dead issue. reference was made to the change that has 15 December 1960 (Memorial, Vol. II, p. The Secretary-General’s progress reports occurred since 1974 in regard to Portugal’s 30[28]). One must therefore address the to the General Assembly continue to this attitude towards self-determination of its question of self-determination in this case date. In his Report of 11 September 1992 colonies[26]. from the firm foundation of a territory un- (A/47/435, para. 1; Reply, Vol. II, p. 59), he It bears re-emphasizing that the question questionably entitled to self-determination. refers to the search for “a comprehensive at issue is the protection of the rights of the The question for examination is what con- and internationally acceptable solution to people of East Timor, and not the question sequences follow from that fact. the question of East Timor,” and, in his of Portugal’s record of conduct. The conten- (ii) The principle of self-determination most recent annual report of 2 September tion seems untenable that a protected people 1994, he states: or territory, blameless in this respect, should The Judgment of the Court (para. 29) has “I have continued to provide my be denied representation or relief owing to categorically reaffirmed the principle of good offices in the search for a just, the fault of its administering Power. self-determination, pointing out that it has comprehensive and internationally Such a contention contradicts basic prin- evolved from the Charter and from United acceptable solution to the question of ciples of trusteeship and tutelage, which Nations practice, and observing further that East Timor.” (A/49/1, 2 September always accord paramount importance to the the normative status of the right of the peo- 1994, para. 505.) interests of entities under fiduciary or tute- ple of East Timor to self-determination is The General Assembly’s action in keep- lary care. This is so in international, no less not in dispute. This opinion sets out, from ing this item on its agenda from year to year than in domestic, law. that base, to examine the manner in which is also a clear indication that the situation The several grounds on which Australia practical effect is to be given to the princi- has not thus far proved acceptable to the sought to impugn Portugal’s status to main- ple of self-determination, in the circum- international community. tain this action seem thus, on examination, stances of the present case. The argument of desuetude, implying as to be unsustainable. Charter principles Australia has accepted the existence of it does that the matter is a dead issue, can- combine with well established fiduciary the principle, but placed a somewhat limited not succeed if the United Nations itself principles and principles of tutelage to un- view upon the State obligations which fol- elects to treat the issue as live[25]. derline the paramount importance of the low. interests of the non-self-governing territory For example, it has advanced the argu- (x) Have the resolutions been nullified ment, at the oral hearings, that: “There is in by supervening events? over all other interests. That priority of interest is not easily defeated. It is the func- the United Nations Charter no express obli- Similar considerations apply to this sub- tion of the administering Power to watch gation on States individually to promote mission of Australia. If supervening events over it, and the function of international law self-determination in relation to territories have nullified duly passed resolutions of the to ensure its protection. over which they individually have no con- Security Council or the General Assembly, It does not serve the Territory’s interest trol. The general obligation of solidarity it is for those bodies to take note of the that an administrator, duly recognized by contained in Article 2, paragraph 5, of the altered situation and to act accordingly. the United Nations, and legally accountable Charter extends only to assistance to the Those bodies do not appear, as stated al- to it, should be viewed as having been dis- United Nations ‘in any action it takes in ready, to have treated the issues as dead. placed by another Power, neither recog- accordance with the present Charter.’” (CR (xi) Is Portugal’s colonial record rele- nized by the United Nations, nor legally 95/9, p. 64.) vant? accountable to it. Power over a non-self- In its pleadings, it has taken up such po- Australia has suggested that Portugal’s governing people, without accountability to sitions as that there is no independent basis colonial record has been such as to disen- the international community, is a contradic- for a duty of non-recognition which would title it to maintain this action. The past co- tion of the Charter principle of protection. prevent the conclusion of the Timor Gap lonial record of Portugal leaves much in- Treaty (Counter-Memorial, paras. 360-367); deed to be desired and, Portugal’s counsel PART C. THE RIGHTS OF EAST that there has been no criticism by the inter- have freely conceded no less. One recalls TIMOR national community of States (including that, in Namibia, it was noted that, when the The central principle around which this Australia) which have recognized or dealt General Assembly passed its resolutions case revolves is the principle of self- with Indonesia in respect of East Timor against apartheid, these resolutions received determination, and its ancillary, the princi- (ibid., paras. 368-372); and that, in conclud- the unanimous support of the entire Assem- ple of permanent sovereignty over natural ing the Timor Gap Treaty, Australia did not bly, with only two exceptions - Portugal and resources. From those principles stem what- impede any act of self-determination by the South Africa (ICJ Reports 1971, p. 79; ever rights are claimed for East Timor in people of East Timor that might result from Judge Ammoun, separate opinion). Further this case. such negotiations (ibid., 373-375). Although comment is scarcely necessary regarding it has recognized East Timor as a province the past colonial attitudes of Portugal. of Indonesia in the Treaty, Australia con- Page 44 East Timor Documents, Volume 38. Timor Gap Case decided. tends that, “By concluding the Timor Gap friendly relations, which are in their turn to the Implementation of the Declaration on Treaty with Indonesia, Australia did nothing based on respect for the principle of equal the Granting of Independence to Colonial to affect the ability of the people of East rights and self-determination. With a view Countries and Peoples keeps this concern Timor to make a future act of self- to the creation of these conditions of stabil- alive as a successor to the Committee of determination.” (Ibid., para. 375.) ity and well-being, the United Nations is Information. That Committee has consis- All of these submissions make it impor- under a duty to promote, inter alia, condi- tently retained the case of East Timor on its tant to note briefly the central nature of this tions of economic progress and develop- list of matters awaiting a satisfactory solu- right in contemporary international law, the ment (emphasis added). tion. steady development of the concept, and the This is followed by Article 56 which Landmark declarations of the United Na- wide acceptance it has commanded interna- contains an express pledge by every Mem- tions on this matter have strengthened the tionally. Against that background, any in- ber “to take joint and separate action, in co- international community’s acceptance of terpretations of that right which give it less operation with the Organization for the this principle. The Declaration on the grant- than a full and effective content of meaning achievement of the purposes set forth in ing of independence to colonial countries would need careful scrutiny. Article 55.” This is a solemn contractual and peoples (General Assembly resolution In the first place, the principle receives duty, expressly and separately assumed by 1514(XV) of 20 December 1960), and the confirmation from all the sources of interna- every Member State to promote conditions Declaration on Principles of International tional law, whether they be international of economic progress and development, Law concerning Friendly Relations and conventions (as with the International Con- based upon respect for the principle of self- Cooperation among States in accordance ventions on Civil and Political Rights and determination. with the Charter of the United Nations Economic and Social Rights), customary With specific reference to non-self- (General Assembly resolution 2625(XXV) international law, the general principles of governing territories, Article 73 of the UN of 24 October 1970) are among these Decla- law, judicial decisions, or the teachings of Charter sets out one of the objects of the rations. The International Covenant on Civil publicists. From each of these sources, co- administration of non-self-governing territo- and Political Rights (1966), and the Interna- gent authority can be collected supportive ries as being: tional Covenant on Economic, Social and of the right, details of which it is not neces- “to develop self-government, to Cultural Rights (1966), constitute an un- sary to recapitulate here. take due account of the political aspi- equivocal acceptance by treaty of the obli- Secondly, it occupies a central place in rations of the peoples, and to assist gation to recognize this right. the structure of the United Nations Charter, them in the progressive development The importance accorded to this right by receiving mention from it in more than one of their free political institutions ...” all sections of the international community context. (Art. 73(b)). This responsibility is im- was well reflected in the discussions in the Enshrined in Article 1(2) is the principle posed upon the administering power United Nations which preceded the accep- that friendly relations among nations must under the principle that the interests tance of the Declaration of Friendly Rela- be developed by the United Nations on the of the inhabitants of these territories tions. A recent study of these discussions basis of equal rights and self-determination. are paramount. The solemn nature of (V.S. Mani, Basic Principles of Modern Developing such friendly relations is one of this responsibility is highlighted in its International Law, 1993, p. 224) collects the Purposes of the United Nations - central description as a “sacred trust.” these sentiments in a form which reflects to its existence and mission. There is thus The central importance of the concept, the central importance universally accorded an inseparable link between a major Pur- and the desire to translate it into practical to this principle. As that study observes, the pose of the United Nations and the concept terms, are thus built into the law of the principle was variously characterized at of self-determination. The same conceptual United Nations. Its Charter is instinct with those discussions as “one of the most structure is repeated in Article 55, which the spirit of co-operation among nations important principles embodied in the observes that respect for equal rights and towards the achievement of the Purposes it Charter” (Japan); “one of the foundation self-determination is the basis on which are has set before itself. Integral to those Pur- stones upon which the United Nations was built the ideal of peaceful and friendly rela- poses, and providing a basis on which they built” (Burma); “basic to the United Nations tions among nations. stand, is the principle of self-determination. Charter” (Canada); “one of the basic ideals Article 55 proceeds to translate this con- Thirdly, the basic provisions of the Char- constituting the raison d’être of the ceptual structure into practical terms. It ter have provided the foundation upon Organization” (France); “the most recognizes that peaceful and friendly rela- which, through the continuing efforts of the significant example of the vitality of the tions, though based on the principle of equal United Nations, a superstructure has been Charter and its capacity to respond to the rights and self-determination, need condi- built which again aims at practical imple- changing conditions of international life” tions of stability and well-being, among mentation of the theoretical concept. (Czechoslovakia); “a universally recognized which conditions of economic progress and Through its practical contribution to the principle of contemporary international development are specified. liberty of nations, the world community has law” (Cameroon); “one of the fundamental Since the development of friendly rela- demonstrated its resolve to translate its norms of contemporary international law” tions among nations is central to the Char- conceptual content into reality. (Yugoslavia); “a fundamental principle of ter, and since equal rights and self- Indeed, the General Assembly’s special contemporary international law binding on determination are stated to be the basis of concern to translate this legal concept into all States” (Poland); “one of paramount friendly relations, the principle of self- practical terms has been unwavering and importance in the present era of determination can itself be described as continuous, as reflected in its appointment decolonization” (Kenya); and central to the Charter. of the Committee on Information from Non- “indispensable for the existence of [the] The Charter spells out its concern regard- self-governing Territories and the conver- comReferencemunity of should nations” be (USA).made finally to this ing self-determination with more particular- sion of the Committee into a semi- Court’s contribution, which has itself ity in Chapter XI. Dealing specifically with permanent organ as a result of a General played a significant role in the establish- the economic aspect of self-determination, Assembly resolution of December 1961. ment of the concept on a firm juridical basis it stresses, in Article 55, that stability and The Special Committee (the Committee of (Namibia, Advisory Opinion, ICJ Reports well-being are necessary for peaceful and Twenty-four) on the Situation with regard East Timor Documents, Volume 38. Timor Gap Case decided. Page 45
1971, p. 16; Western Sahara, ICJ Reports nearly twenty years, since the Indonesian Australia has submitted (Counter- 1975, p. 12). military intervention. Memorial, p. 168, paras. 379-380) that, Such is the central principle on which Should a period of years elapse until even assuming that in exercising their right this case is built. In adjudging between the such time, and the Treaty is in full operation to self-determination the people of East two interpretations of this right presented to in the meantime, a substantial segment of Timor become in the future an independent the Court by the two Parties, this brief sur- this invaluable resource may well be lost to State, it would be for the new State to de- vey of its centrality to contemporary inter- East Timor for all time. This would be a cide whether or not to reject the Treaty. The national law is not without significance. loss of a significant segment of the sover- Court has been referred in this connection to On the one hand, there is an interpreta- eignty of the people. the observation of the Arbitration Tribunal tion of this right which claims that it is not This is not a situation which international in the dispute between Guinea- Bissau and violated in the absence of violation of an law, in its present state of development, can Senegal to the effect that a “newly inde- express provision of a United Nations reso- contemplate with equanimity. pendent State enjoys a total and absolute lution. It is pointed out, in this connection, At such time as the East Timorese people freedom” to accept or reject treaties con- that there are no UN resolutions prohibiting exercise their right to self-determination, cluded by the colonial power after the or criticizing the recognition of East Timor they would become entitled as a component initiation of the process of national as a province of Indonesia. On the other of their sovereign right, to determine how liberation (83 International Law Reports hand, it is argued that being party to an their wealth and natural resources should be (1989), p. 26, para. 44). agreement which recognizes the incorpora- disposed of. Any action prior to that date While this proposition is incontroverti- tion of a non-self-governing territory in which may in effect deprive them of this ble, it seems purely academic in the present another State and deals with the principal right must thus fall clearly within the cate- context as it loses sight of three facts. In the non-renewable asset of a people admittedly gory of acts which infringe on their right to first place, it may be many years before entitled to self-determination, before they self-determination, and their future sover- East Timor exercises the right of self- have exercised their right to self- eignty, if indeed full and independent sov- determination. Secondly, the treaty is set to determination, and without their consent, ereignty be their choice. This right is de- last for an initial period of forty years, and does in fact constitute such a violation. The scribed by the General Assembly, in its thirdly the resources dealt with are of a non- history of the right, and of its development resolution on Permanent Sovereignty over renewable nature. By the time the East and universal acceptance make it clear that Natural Resources, as “the inalienable right Timorese people achieve this right, those the second interpretation is more in conso- of all States freely to dispose of their natural resources or some part of them could well nance with the content and spirit of the right wealth and resources in accordance with have been lost to them irretrievably. Had than the first. their national interests ...” (General Assem- the resources dealt with been renewable Against this background, it is difficult to bly resolution 1803(XVII)). The same reso- resources, it might have been arguable that accept that, in regard to so important a right, lution notes that strengthening permanent a temporary use of the resource would not the duty of States rests only at the level of sovereignty over natural resources rein- amount to a permanent deprivation to the assistance to the United Nations in such forces the economic independence of States. owners of the resource which is rightfully specific actions as it may take, but lies dor- Resolution 1803(XVII) is even more ex- theirs. That argument is not available in the mant otherwise. plicit in that it stresses that: present case. (iii) The principle of permanent sover- “The exploration, development and When, against this firm background of eignty over natural resources disposition of such resources ... legal obligation, a treaty is entered into should be in conformity with the rules which expressly describes East Timor as an As the General Assembly has stressed, and conditions which the peoples and Indonesian province, and proceeds without the right to permanent sovereignty over nations freely consider to be neces- the consent of its people to deal with the natural resources is “a basic constituent of sary or desirable with regard to the natural resources of East Timor in a manner the right to self-determination” (resolution authorization, restriction or prohibi- which may have the effect of compromising 1803(XVII) of 14 December 1962). So, tion of such activities.” (Art. 2; em- or alienating them, there can be no doubt also, in resolution 1515(XV) of 15 Decem- phasis added.) that any nation that claims rights under that ber 1960, the General Assembly recom- The exploration, development and dispo- treaty to what may be the resources of East mended that “the sovereign right of every sition of the resources of the Timor Gap, for Timor is in breach of obligations imposed State to dispose of its wealth and its natural which the Timor Gap Treaty provides a upon it by general principles of interna- resources should be respected.” detailed specification, has most certainly tional law. Sovereignty over their economic re- not been worked out in accordance with the A further consideration is that with the sources is, for any people, an important principle that the people of East Timor increasing international recognition of the component of the totality of their sover- should “freely consider” these matters, in right to development, any action that may eignty. For a fledgling nation, this is par- regard to their “authorization, restriction or hinder the free exercise of this right as- ticularly so. This is the wisdom underlying prohibition.” sumes more importance now than in the the doctrine of permanent sovereignty over The Timor Gap Treaty, to the extent that past. natural resources, and the wisdom which it deals with East Timorese resources prior underlies the protection of this resource for (iv) The relevance of UN resolutions on to the achievement of self-determination by a non-self-governing people until they self-determination the East Timorese people, is thus in clear achieve self-determination. The various resolutions cited provide violation of this principle. In the present case, it is impossible to more than sufficient reason, both in express Further, resolution 1803(XVII) states: venture a prediction as to how long it will terms and by implication, for the Court to “Violation of the rights of peoples be before the East Timorese people achieve proceed on the basis that the right of self- and nations to sovereignty over their self-determination. It may be a very brief determination has not been exercised. It is a natural wealth and resources is con- period or it may take many years. The mat- corollary to that proposition that the right of trary to the spirit and principles of the ter has remained unresolved already for permanent sovereignty over natural re- Charter of the United Nations ...” sources has, likewise, not been exercised, (Para. 7.) Page 46 East Timor Documents, Volume 38. Timor Gap Case decided. for self-determination includes by very Republic of Indonesia are “Determined to ments, submitted that, “In 1975 the people definition the right of permanent sover- cooperate further for the mutual benefit of of East Timor involuntarily exchanged Por- eignty over natural resources. Any act deal- their peoples in the development of the tuguese ‘domination’ ... for the control of ing with those resources, otherwise than by resources of the area of the continental Indonesia.” (CR 95/9, p. 49, para. 59; em- the East Timorese people or their duly con- shelf.” The people of East Timor are not phasis added.) What this means is unclear, stituted representative, thus points inexora- included among those for whose benefit the but it is manifestly in contradiction of the bly to a violation of a fundamental princi- Treaty is entered into. voluntariness which is a central feature of ple, both of general international law and of (vi) The incompatibility between recogni- self-determination. the UN Charter. tion of Indonesian sovereignty over East Portugal has also referred the Court to (v) Australia’s position in relation to self- Timor and the recognition of East Timor some variations in the positions taken up by determination as a non-self-governing territory Australia at the United Nations when reso- lutions on East Timor came before the Gen- The Australian position in regard to self- The inconsistency between Australia’s eral Assembly. In 1975, though with some determination is that Australia fully recog- stated position and its practical actions is, in initial reservations, it voted for the resolu- nizes this right in the people of East Timor the submission of Portugal, so fundamental tion calling upon Indonesia to desist from and continues to support that right. Austra- as to negative Australia’s recognition of the further violation of the territorial integrity lia has drawn the Court’s attention in this East Timorese right to self-determination. of East Timor and to withdraw its forces regard to the prominent role played by Aus- There is an inconsistency here which has without delay to enable the people to exer- tralia at the San Francisco Conference in not been adequately explained, either in the cise their right of self-determination (resolu- relation to the inclusion of Chapter XI in the pleadings or in the oral submissions. As tion 3485 (XXX) of 12 December 1975). In Charter (Rejoinder, pp. 81-82, fn. 209) and Portugal pointed out, it is not possible to 1976, it abstained from voting on General to Australia’s strong affirmation that the meet the obligation of respecting the territo- Assembly resolution 31/53, rejecting the advancement of all colonial peoples was a rial integrity of East Timor by merely so Indonesian claim of annexation. It abstained matter of international concern. This valu- asserting, while, in fact, recognizing it as again in 1977, but in 1979, voted against the able contribution by Australia to the con- annexed by Indonesia (CR 95/4, p. 29). resolution that “the people of East Timor cept of self-determination has no doubt Australia has stated (Rejoinder, p. 150, must be enabled freely to determine their played a significant role in elevating the para. 267) that recognition of Indonesian own future, under the auspices of the United doctrine to its current status. In those early sovereignty over East Timor does not in- Nations” (Res. 34/40). It repeated its con- days, when this concept was as yet in its volve a denial of its status as a non-self- trary vote in 1980, 1981 and 1982. formative stage, the conceptual and political governing territory. It has also stated (ibid., However this may be, the central issue support thus given to them was crucial. p. 146, para. 263) that, while noting that before the Court is whether the acceptance In full accordance with the high recogni- Indonesia has incorporated East Timor into of this right of East Timor accords with the tion accorded to self-determination in inter- the Republic of Indonesia, the Australian conclusion of a Treaty recognizing East national law, Australia continues to express Government has expressed deep concern Timor as a province of Indonesia, and support for the continuing rights of the peo- that an internationally recognized act of whether that act of concluding the Treaty ple of East Timor to self-determination. self-determination has not taken place in militates against such rights as East Timor Implicit in this Australian stance is a recog- East Timor. Australia further submits that may enjoy to the natural resources that are nition that, for whatever reason, the people recognition of Indonesian sovereignty over dealt with by the Treaty. There is no quali- of East Timor have not thus far exercised East Timor does not by logical necessity fication anywhere in that Treaty of the that right in the manner contemplated by signify that Australia no longer recognizes recognition it accords to Indonesian sover- international law and the UN Charter. East Timor as a non-self-governing territory eignty, such as appears in the statements of At the oral hearings, Australia submitted or its people as having a right to self- Australia made outside the Treaty. that: determination (ibid., p. 147, para. 264). I Upon the basis of the averments in the “before and after 1975 Australia must confess to some difficulty in under- Treaty, it would seem therefore that Portu- repeatedly, and strongly, supported standing these positions. gal’s assertion of an incompatibility be- the right of the East Timorese to an Such submissions seem moreover to tween Australia’s action in entering into the informed act of self-determination. overlook the distinction between the nature Timor Gap Treaty, and Australia’s recogni- Australia’s position was put bluntly to of the authority exercised by an administer- tion of the principle of self-determination, Indonesia, was clearly stated at the ing Power and the nature of the authority of raises issues requiring close consideration. United Nations, and was repeated by Indonesia, implicit in the recognition of If self-determination is a right assertible Australian Prime Ministers and For- East Timor as a province. The character of erga omnes, and is thus a right opposable to eign Ministers, and elsewhere as pub- Portugal’s authority was clearly distin- Australia, and if Australia’s action in enter- lic statements of Australia’s policy.” guishable in at least three major respects: ing into the Treaty is incompatible with that (CR 95/14, p. 12.) (a) the authority of Portugal was en- right, Australia’s individual action, quite In contrast with this unimpeachable posi- tirely of a fiduciary or tutelary nature; apart from any conduct of Indonesia, would tion there is the fact that Australia has ac- (b) the authority of Portugal was un- not appear to be in conformity with the corded de facto recognition to the annexa- der the supervision of the United Na- duties it owes to East Timor under interna- tion of East Timor by Indonesia and, in- tions; and tional law. deed, gone beyond that to what appears to (c) the authority of Portugal was by be an unreserved de jure recognition of its very nature coterminous with its fi- (vii) The suggested clash between the Indonesia’s rights over East Timor. The duciary or tutelary status. rights of the people of East Timor and the explicit statement in that Treaty, which These distinctions are further affirmed rights of the people of Australia presumably represents the common ground by the relevant UN resolutions discussed in Australia has submitted that Australia of both parties, is that East Timor is an “In- this opinion. too enjoys the right of permanent sover- donesian Province.” Indeed, the preamble to It may be noted also in this context that eignty over its natural resources and that the Treaty recites that Australia and the Australia, in the course of its oral argu- what is involved in this case is “‘peremp- East Timor Documents, Volume 38. Timor Gap Case decided. Page 47 tory norm versus peremptory norm,’ ‘per- Nations with administering the affairs of the PART D. THE OBLIGATIONS OF manent sovereignty of Australia versus East Timorese people brings up the matter AUSTRALIA sovereign rights of Portugal’” (CR 95/11, p. in the form of an East Timorese right which The preceding Part of this opinion has 29). The undeniable rights of Australia can- is opposable to Australia, that complaint examined the central importance of the not, of course, be matched by the purely deserves the closest attention. rights of self-determination and permanent fiduciary rights of Portugal, for Portugal has Portugal contends that Australia, inas- sovereignty over natural resources of the no sovereign rights, save in its capacity as much as it has negotiated, concluded and people of East Timor. It has also considered custodian of the rights of the East Timorese initiated performance of the agreement of to what extent Australia’s action in entering people. More properly stated, the suggestion 11 December 1989, and has taken internal into the Timor Gap Treaty is compatible is then of a clash between the peremptory legislative measures for the application with the rights enjoyed in this regard by the norm of Australia’s permanent sovereignty thereof, has thus infringed the right of the people of East Timor. over its natural resources and the peremp- people of East Timor to self-determination This Part concentrates on the duties that tory norm of East Timor’s permanent sov- and permanent sovereignty over its natural result from those rights. ereignty over its natural resources. wealth and resources. If this is so, Australia, It cannot be said that Australia enjoys an through its individual conduct, is in breach A) Obligations under general interna- absolute right to permanent sovereignty of the obligation to respect that right. tional law over its natural resources in the Timor Gap The Australian argument that there was (i) Obligations stemming from the general which can be delineated independently of no option available to Australia but to enter sources of international law the rights of East Timor. With only 430 into this Treaty opens up an important issue The multiplicity of sources of interna- kilometres of ocean space between them of international law relating to recognition. tional law which support the right of self- (Judgment, para. 11), the extent of Austra- Where a territory has been acquired in a determination have been dealt with in Part lia’s entitlement is obviously determined, manner which leaves open the question C of this opinion. Corresponding to the inter alia, by the claims of East Timor - whether legal sovereignty has been duly rights so generated, which are enjoyed by hence the need for a treaty. Since Austra- acquired, countries entering into treaty rela- the people of East Timor, there are corre- lia’s rights cannot be considered independ- tions in respect of that territory have a range sponding duties lying upon the members of ently of East Timor, Australia’s claim to of options stretching all the way from de the community of nations. Just as the rights deal with no more than its own entitlement facto recognition through many variations associated with the concept of self- is unsustainable. to the highest level of recognition - de jure determination can be supported from every Competing interests to a limited ocean recognition. one of the sources of international law, so space can only be resolved by the consent It is to be observed that, in this Treaty, also can the duties, for a right without a of parties or by some equitable external Australia has made no qualification what- corresponding duty is no right at all. determination in a manner recognized by ever of its recognition of Indonesia’s sover- It suffices for present purposes to draw law. An agreement that does not embody eignty over East Timor. Indeed, the very attention to this multiplicity of sources and the consent of the East Timorese people title of the Treaty is “Treaty between Aus- to the fact that they concur in recognizing does not fall within the first category and a tralia and the Republic of Indonesia on the those rights as existing erga omnes. It is not determination by Indonesia as to how much Zone of Cooperation in an area between the necessary for the purposes of this opinion to it is equitable to give to Australia does not Indonesian Province of East Timor and explore them all. Australia, in common with fall within the second. It is not such a de- northern Australia.” The description of East all other nations, would, under general in- termination as would bring it within the Timor as a province of Indonesia is more ternational law, be obliged to recognize the means of resolution indicated by the Court’s than once repeated in the text of the Treaty. obligations stemming from these rights. case-law and Article 83, read with Part XV, Such an unreserved recognition of Indone- Australia unhesitatingly acknowledges the of the Montego Bay Convention. sia’s sovereignty over East Timor in an right. Its acceptance of the corresponding It is not within the ambit of this case or important Treaty is perhaps one of the high- duties does not clearly appear from its sub- within the Court’s competence to determine est forms of de jure recognition. missions. whether the division of resources between This high form of recognition focuses at- Australia and Indonesia is indeed an equita- tention more sharply on the alleged incom- (ii) Obligations expressly undertaken by ble one from the point of view of the East patibility of the Australian action with East treaty Timorese people. This is simply not a mat- Timor’s rights of self-determination and It is pertinent to note at least three sig- ter before the Court, and must await deter- permanent sovereignty. nificant occasions on which the Respon- mination at the proper time and in the In the result, I would reaffirm the impor- dent, in common with other States, has sol- proper manner. All that arises for decision tance of the right of the people of East emnly undertaken by treaty the duty to act is whether a treaty has been entered into Timor to self-determination and to perma- in furtherance of these rights. These have which deals with the natural resources of nent sovereignty over natural resources, and been referred to in Part C, and it will suffice the East Timorese people without their con- would stress that, in regard to rights so im- here to draw attention to these treaty com- sent or the consent of the administering portant to contemporary international law, mitments - under the Charter and under the Power recognized by the United Nations. the duty of respect for them extends beyond two International Human Rights Covenants It may be that the Treaty obtains for mere recognition, to a duty to abstain from of 1966. The Charter provisions on self- Australia exactly its equitable rights, or it any State action which is incompatible with determination have been outlined earlier. may be that it obtains for the Australian those rights or which would impair or nul- Under the two Covenants, every party ac- people even less than their proper entitle- lify them. By this standard, Australia’s ac- cepts the obligation to promote the realiza- ment. Portugal’s claim is that a treaty not tion in entering into the Timor Gap Treaty tion of the right to self-determination and to entered into in the manner recognized by may well be incompatible with the rights of respect that right (Arts. 1 and 2 of each international law may sign away in perpetu- the people of East Timor. Covenant). ity certain non-renewable resources of the These references are sufficient to place East Timorese people. If this is the case, the duty to respect self-determination on a and if the authority charged by the United firm foundation of treaty obligation. Page 48 East Timor Documents, Volume 38. Timor Gap Case decided.
B) Obligations under UN resolutions a non-self-governing territory by another In this context, mention should also be It is not proposed to enter here into a dis- State, and to enter into treaty relations with made of resolution 143(1960) of 14 July cussion of the broad question of the binding that State regarding the assets of the terri- 1960 which “Calls upon the Government of nature of Security Council decisions. It is tory? The overall circumstances of this case Belgium to withdraw its troops from the more to the purpose to consider whether, would point to a negative answer to these territory of the Republic of the Congo” and having regard to the particular circum- questions. “Decides to authorize the Secretary-General stances of this case, the Security Council Without any attempt at an exhaustive to take the necessary steps ... to provide the resolutions which reaffirm principles of survey of this matter, it may be noted that Government with such military assistance general international law may be considered the lack of phraseology such as “decides” as may be necessary ....” to give added force to them. and “determines” does not appear in the Thereafter the General Assembly made a As observed earlier, there was no past to have prevented Security Council “request” to all Member States to accept suggestion at any stage in this case that the resolutions from being considered as deci- and carry out the decisions of the Security General Assembly or the Security Council sions (see Goodrich, Hambro and Simons, Council, this resolution again carrying the had acted outside their province or beyond op. cit., p. 210). For example, Security implication that the Security Council the scope of their legitimate authority in Council resolution 145(1960) of 22 July resolutions constituted decisions and regard to any of the resolutions on East 1960, in relation to the Congo, nowhere imposed obligations. Timor which were discussed in this case. uses such words as “decides” or “deter- Secretary-General Hammerskjöld The objections to their binding effect were mines,” but “calls upon” the Government of stressed, in his intervention, that if the co- rather on the basis of other considerations, Belgium to implement speedily Security operation needed to make the Charter a such as declining majorities and desuetude. Council resolution 143(1960) on the with- living reality were not to be achieved, “this These have already been considered. In drawal of its troops. It “requests” all States would spell the end of the possibilities of relation to the Security Council resolutions, to refrain from any action which might tend the Organization to grow into what the the technical consideration was urged as to to impede the restoration of law and order Charter indicates as the clear intention of whether in the resolutions the Security and the exercise by the Government of the the founders. The words of Hammarskjold Council spoke in the language of decision Congo of its authority and also to refrain assume particular significance in the context or exhortation. from any action which might undermine the of resolutions dealing with such rights as Resolution 384 “urges all States ... to co- territorial integrity and the political inde- those relating to self-determination and operate fully with ... the United Nations ... pendence of the Republic of the Congo. Is permanent sovereignty over natural re- to facilitate the decolonization of the Terri- this language merely hortatory or is it the sources. tory” and resolution 389 “calls upon all language of a decision? The resolutions of the Security Council States” to do likewise. After this resolution was passed, the Sec- involved in this case, (resolutions 384 and Each resolution also calls upon all States retary-General drew the attention of the 389), use phraseology similar to that of the “to respect the territorial integrity of East Council to the obligations of members un- first resolution cited above relating to the Timor, as well as the inalienable right of its der Articles 25 and 49. The Secretary- Congo. Each of these resolutions calls upon people to self-determination in accordance General’s observations were made on the all States to respect the territorial integrity with General Assembly resolution basis that the resolution was binding under of East Timor, as well as the inalienable 1514(XV)” (emphasis added in all quota- Articles 25 and 49. Having cited these two right of its people to self-determination in tions). sections, the Secretary-General observed to accordance with General Assembly resolu- Words such as urges and calls upon are the Council: tion 1514(XV). not necessarily of a purely hortatory nature. “Could there be a more explicit ba- Each resolution likewise “calls upon” the As with all documents that come under sis for my hope that we may now Government of Indonesia to withdraw with- legal analysis, the totality of the document, count on active support, in the ways out further delay all its forces from the Ter- rather than any particular words, must be which emerge from what I have said, ritory. the guide to its overall import. In this case, from the Governments directly con- Thus, on United Nations precedent, it one can treat them as imposing no obliga- cerned?” (United Nations, Official would appear that the absence of words of tion, if one takes the words “urges” and Records of the Security Council, Fif- determination or decision does not necessar- “calls upon” in isolation, but not in the con- teenth Year, 884th Meeting, 8 August ily relegate Security Council resolutions to text of the overall construction of the docu- 1960, para. 23.) the level of mere hortatory declarations. ment. That is not the method of legal con- Thereafter, resolution 146 (1960) of 9 Against the background of the Security struction and it is not a method I would August 1960 was passed. That resolution, Council reaffirming a right admittedly of employ. which still lacked the phraseology of deci- fundamental importance, and admittedly We have here two documents which state sion and determination, “Calls upon the enjoyed erga omnes, it seems academic to categorically the Security Council’s posi- Government of Belgium to withdraw im- examine its obligatory nature in terms of the tion that self-determination was an impera- mediately its troops from the province of precise phraseology used. Especially is this tive and that it had not yet taken place. Katanga ...” and again: so when one has regard to the fact that the They urge all States to co-operate, and call “Calls upon all Member States, in resolutions were made after hearing Austra- upon all States to respect the territorial in- accordance with Articles 25 and 49 of lia, and were in line with the Australian tegrity of East Timor. Does a Member State the Charter of the United Nations, to submissions made to the Council. faced with such resolutions, reaffirming a accept and carry out the decisions of C) Some juristic perspectives cardinal rule of international law, have the the Security Council and to afford freedom to disregard the need for self- mutual assistance in carrying out (i) The correlativity of rights and duties determination at its will and pleasure? In measures decided upon by the Coun- This section surveys the obligations un- the face of the Security Council’s consid- cil.” (Emphasis added.) der examination, from what may be de- ered assertion that self-determination has There is here a clear indication by the scribed as a jurisprudential or conceptual not taken place, is it open to an individual Security Council itself that its earlier resolu- angle. While the right to self-determination State to recognize de jure the annexation of tion was a decision. has attracted much attention in modern East Timor Documents, Volume 38. Timor Gap Case decided. Page 49 international law, the notion of duties corre- determination are confined to compliance opment and effectiveness on principles, sponding to that right has not received the with express directions or prohibitions. norms and standards needs no elaboration. same degree of analysis. This is well illus- A further development of this argument If rights are to be taken seriously, one trated in the present case, where the concept was that there are no sanctions laid down by cannot ignore the principles on which they of self-determination is freely accepted, but the United Nations of which Australia is in are based[31]. If the right of self- not the corresponding duties. A conceptual breach. determination is to be taken seriously, atten- examination of the question will underscore In the first place, the obligation exists tion must focus on the underlying principles the importance of duties in the context of under customary international law which, implicit in the right, rather than on the this case. by its very nature, consists of general prin- itemization of specified incidents of direc- The existence of a right is juristically in- ciples and norms rather than specific direc- tion and prohibition which, useful so far as compatible with the absence of a corre- tions and prohibitions. In the analogy of a they go, are not a complete statement of the sponding duty. The correlativity of rights domestic setting, customary or common law duties that follow from the right. It is im- and duties, well established in law as in (as opposed to specific legislation) provides possible to define in terms of specific direc- logic (see, especially, Hohfeld, Fundamen- the guiding norms and principles in the light tions and prohibitions the numerous duties tal Legal Conceptions, 1923), means that if of which the specific instance is judged. these impose. As Australia itself has ob- the people of East Timor have a right erga So it is with international law, making served, “the obligation to promote self- omnes to self-determination, there is a duty due allowance, of course, for the differences determination is an example of an obliga- lying upon all Member States to recognize in its sources. Customary law provides the tion where no particular means are pre- that right. To argue otherwise is to empty general principles, while other sources, such scribed” (CR 95/10, p. 21). the right of its essential content and, as treaties and binding resolutions, may deal Juristically analysed, it is not appropriate thereby, to contradict the existence of the with specifics. to view self-determination as though the right itself. It is too late in the day, having Thus conduct which merely avoids viola- totality of the duties it entails consist only regard to the entrenched nature of the rights tions of express directions or prohibitions is in obedience to specific directions of the of self-determination and permanent sover- not necessarily in conformity with the inter- United Nations. Performance of duties and eignty over natural resources in modern national obligations lying upon a State in obligations must be tested against the basic international law, for the accompanying terms of customary international law. The underlying norms and principles, rather than duties to be kept at a level of non- obligations to respect self-determination against such specific directions or prohibi- recognition or semi-recognition. and the right to permanent sovereignty over tions as might have been prescribed. Quite (ii) Is duty limited to compliance with spe- natural resources are among these and ex- clearly, an obligation cannot cease to exist cific directions and prohibitions? tend far further than mere compliance with merely because specific means of compli- specific rules or directions and the avoid- ance are not prescribed, nor is its underlying An important submission made to the ance of prohibited conduct. general principle exhausted by the enumera- Court by Australia needs now to be ad- If further elucidation be necessary, one tion of particular itemized duties. The duty dressed. It has juristic implications tran- can approach the question also from the of respect and compliance extends beyond scending this particular case. standpoint of analytical jurisprudence. the letter of specific command and prohibi- This argument was summarized by Aus- Reference needs to be made in this con- tion. tralia in the penultimate paragraph of its nection to the major jurisprudential discus- To illustrate from domestic law, such a Counter-Memorial in terms that: sions that have in recent years explored the general principle as that under which a “By entering into the Treaty in De- nature of legal obligations. While it is self- manufacturer of motor cars “is under a spe- cember 1989, Australia did not con- evident that legal obligations consist not cial obligation in connection with the con- travene any direction of the United only of obedience to specific directions and struction ... of his cars” (Henningsen v. Nations with respect to East Timor, prohibitions, but also of adherence to norms Bloomfield Motors, Inc., 32 N.J. 358 for none had been made.” (Counter- or principles of conduct, this distinction has (1960)), is one which “does not even pur- Memorial, p. 178, para. 412.) been much illuminated by recent discus- port to define the specific duties such a This point was further emphasized at the sions in this department of juristic literature. special obligation entails” (Dworkin, supra., oral hearings in terms that: To take the analogy of domestic law, the p. 26, citing Henningsen v. Bloomfield “The Security Council has not corpus of law on which conduct according Motors, Inc. (supra.). Yet the obligation spelt out or imposed a single legal ob- to law is based consists not only of com- applies in the particular unspecified eventu- ligation on Australia or any other mands and prohibitions, but of norms, prin- alities which might occur. When a claim Member State which would preclude ciples and standards of conduct. Commands arises from a breach of some specific duty Australia from entering into the Timor and prohibitions cover only a very small within the general principle, the manufac- Gap Treaty with Indonesia.” (CR area of the vast spectrum of obligations. turer cannot avoid the principle on the 95/10, p. 31.) Quite clearly, duties under international ground that it does not specify the particular Again, it was submitted that: law, like duties under domestic law, are duty. The argument that no breach of duty “Neither resolution calls on dependent not only on specific directions has occurred because the respondent’s con- Australia or Member States generally and prohibitions but also on norms and duct violates no specific direction can be to negotiate only with Portugal. principles. answered in much the same manner, be- Neither resolution calls on Australia Indeed, the extension of obligations be- cause the conduct required by law consists not to deal with Indonesia. And yond mere obedience to specific directions not only of compliance with specified direc- neither resolution condemns Australia and prohibitions, if true of domestic law, tions or prohibitions, but of compliance for any violation of the United must apply a fortiori in the field of interna- with a principle of conduct. Nations Charter or of international tional law which grew out of the broad prin- The jurisprudential discussions referred law.” (Ibid., p. 26; see, also, Counter- ciples of natural law and has no specific to have not passed unnoticed in the litera- Memorial, paras. 328-346.) rule-making authority in the manner so ture of modern international law (see, for This argument suggests that obligations familiar in domestic jurisdictions. The de- example, Kratochwil, Rules, Norms, and owed by States in relation to self- pendence of international law for its devel- Decisions, 1989). Page 50 East Timor Documents, Volume 38. Timor Gap Case decided.
In the circumstances of this case, the act it represents a distinct element added to the or quasi-universal character.” (ICJ Reports of being party to the Timor Gap Treaty rule to perfect it. Sanction does not repre- 1970, p. 32, para. 34.) would appear to be incompatible with rec- sent a condition for the existence of obliga- In paragraph 35, the Court followed this ognition of and respect for the principle of tion but only for its enforcement.” (Mo- principle through by observing that in obli- East Timor’s rights to self-determination hammed Bedjaoui, Towards a New Interna- gations of this category, unlike the obliga- and permanent sovereignty over natural tional Economic Order, 1979, p. 179.) tion which is the subject of diplomatic pro- resources inasmuch as, inter alia, the International law in its present stage of tection, “all States have a legal interest in its Treaty: development, serving the needs of an inte- observance” (emphasis added). In Barce- 1) expressly recognizes East Timor as a grated world community, demands a lona Traction, the Court was, of course, province of Indonesia without its people broader view of international obligations dealing with obligations that are owed erga exercising their right; than that which is implicit in the Australian omnes. 2) deals with non-renewable natural re- submissions. In that case, the Court was spelling out sources that may well belong to that terri- Security Council resolutions 384 and 389 that, where a State has an obligation to- tory; clearly formulate certain principles of con- wards all other States, each of those other 3) makes no mention of the rights of the duct in relation to self-determination and States has a legal interest in its observance. people of East Timor, but only of the mu- permanent sovereignty. Those principles If, therefore, Australia has a obligation erga tual benefit of the peoples of Australia and were already well recognized and en- omnes towards all States to respect the right Indonesia in the development of the re- trenched in international law before being of self-determination, Portugal (as the ad- sources of the area (Preamble, para. 6); applied by those resolutions to the specific ministering Power of East Timor) and East 4) makes no provision for the event of case of East Timor. Australia is, in my Timor would have a legal interest in the the East Timorese people deciding to repu- view, in violation of those principles, con- observance of that duty. diate the Treaty upon the exercise of their tradicting by its conduct its obligation to Other cases in which this Court was con- right to self-determination; respect the right of self-determination of the fronted with erga omnes obligations were 5) specifies an initial period of operation people of East Timor and their right to per- Northern Cameroons (ICJ Reports 1963, p. of forty years, with possible renewals for manent sovereignty over their natural re- 15); the South West Africa cases, Prelimi- successive terms of twenty years; and sources. The plea that Australia did not nary Objections (ICJ Reports 1962, p. 319) 6) creates a real possibility of the contravene any direction of the United Na- and Second Phase (ICJ Reports 1966, p. 6); exhaustion of this resource before it can be tions does not exempt it from responsibility. Nuclear Tests (Australia v. France) (ICJ enjoyed by the people of East Timor. (iii) Obligations stemming from the erga Reports 1974, p. 253) and Nuclear Tests These aspects, all prima facie contradic- omnes concept (New Zealand v. France) (ibid., p. 457); tory of the essence of self-determination United States Diplomatic and Consular The Court has found that “Portugal’s as- and permanent sovereignty over natural Staff in Tehran (ICJ Reports 1980, p. 3); sertion that the right of peoples to self- resources, do not cease to have that charac- and Border and Transborder Armed Actions determination, as it evolved from the Char- ter because treaty-making with Indonesia (Nicaragua v. Honduras), Jurisdiction and ter and from United Nations practice, has an has not been expressly prohibited. Admissibility (ICJ Reports 1988, p. 69). erga omnes character, is irreproachable” Attention was also drawn to the aspect of Although in this fashion the erga omnes (Judgment, para. 29). sanctions. It was pointed out, for example, principle has played an apparently frequent This section bases itself upon that find- that issues such as arms supplies, oil sup- role in the Court’s recent jurisprudence, it ing. It is a position, moreover, which has plies and new investments in South Africa has not yet drawn a definitive decision from been accepted by Australia and assumed were singled out for condemnation when the Court in relation to the manner in which throughout the hearings. sanctions were imposed on South Africa. the principle will operate in case of breach. The Court’s jurisprudence has played a On this basis, Australia submitted that the For example, in Northern Cameroons, the significant role in the evolution of the erga General Assembly has shown willingness, question whether a Member State has a omnes concept. when appropriate, to condemn particular right of action consequent upon an erga In Barcelona Traction, Light and Power actions or recommend and urge others. It omnes breach was left undecided as the case Company, Limited, Second Phase (ICJ Re- was submitted that the United Nations has was dismissed on grounds of judicial pro- ports 1970, p. 3), this Court, drawing a dis- issued no such specific directions requiring priety. The dismissal of the South West tinction between obligations of a State to- States to abstain from dealings with a State Africa case in the merits phase, in 1966, left wards the international community as a involved in a self-determination dispute no scope for any conclusions regarding erga whole, and those arising vis-à-vis another (CR 95/9, p. 78), and that there has been no omnes obligations. The Nuclear Tests cases State in the field of diplomatic protection, specific pronouncement on the Timor Gap did not pronounce on the erga omnes char- observed: Treaty. acter of the rights of all States to be free “Such obligations derive, for example, in Sanctions may point to an obligation, but from atmospheric nuclear tests. contemporary international law, from the they are clearly not the only source of obli- It has thus happened that no Judgment of outlawing of acts of aggression, and of gations. Indeed, Oscar Schachter, in a study this Court thus far has addressed the conse- genocide, as also from the principles and of the bases of obligation in international quences of violation of an erga omnes obli- rules concerning the basic rights of the hu- law, lists thirteen possible items, of which gation. The present case, had it passed the man person, including protection from slav- sanctions is only one (Oscar Schachter, jurisdictional stage, would have been just ery and racial discrimination. Some of the “Towards a Theory of International Obliga- such a case where the doctrine’s practical corresponding rights of protection have tion,” 8 Virginia Journal of International effects would have been considered. Since entered into the body of general interna- Law (1968), p. 301). this opinion proceeds on the basis that the tional law (Reservations to the Convention Further, merits must be considered, it must advert to on the Prevention and Punishment of the “The most thorough research, in both the consequences of violation of an erga Crime of Genocide, Advisory Opinion, ICJ domestic and international law, shows that omnes obligation. Reports 1951, p. 23); others are conferred in reality, compulsion is neither an integral All the prior cases before this Court by international instruments of a universal nor a constitutive part of legal rule, but that raised the question of duties owed erga East Timor Documents, Volume 38. Timor Gap Case decided. Page 51 omnes. That aspect is present in this case as PART E. AUSTRALIA’S tion to their rights which are dealt with well, for every State has an erga omnes duty OBJECTIONS BASED ON under the Treaty. This case involves no less to recognize self-determination and, to that JUDICIAL PROPRIETY than the assertion, on behalf of a territory extent, if Portugal’s claim is correct, that has no locus standi before the Court, of Australia is in breach of that general erga Australia has submitted that there are the denial of two rights which are consid- omnes duty towards East Timor. reasons of judicial propriety, in considera- ered fundamental under modern interna- However, this case has stressed the ob- tion of which the Court should not decide tional law. Whatever be the result, this is verse aspect of rights opposable erga omnes this case (Counter-Memorial, para. 306). eminently a justiciable dispute, brought - namely, the right erga omnes of the people Among the supportive reasons adduced before an appropriate forum. of East Timor to the recognition of their are (i) that there is no justiciable dispute in (iii) that the Judgment would not serve any self-determination and permanent sover- legitimate object eignty over their natural resources. The this case (ibid., paras. 315-316); Under this head, Australia argues that a claim is based on the opposability of the (ii) that these proceedings are a misuse judgment in Portugal’s favour cannot fulfil right to Australia. of the processes of the Court (ibid., paras. any legitimate object inasmuch as the Court In Barcelona Traction, the Court’s ob- 306-316); cannot require Australia to breach valid servations regarding obligations owed to the (iii) that the proceedings have an ille- treaty obligations owed to third States, and international community as a whole were gitimate object (Rejoinder, paras. 155-166); judgment for Portugal would deny Austra- not necessary to the case before it. Yet, (iv) that the Judgment would serve no lia’s ability to protect its sovereign rights though its observations were obiter, the useful purpose in that it would not promote (Counter-Memorial, paras. 269-286). notion of obligations erga omnes developed the interests allegedly requiring protection These have been sufficiently answered in apace thereafter. (Counter-Memorial, p. 122, paras. 271- the course of this opinion. It was also sug- The present case is one where quite 278); gested at various stages of the case that clearly the consequences of the erga omnes (v) that the Court should not, in any Portugal’s objectives included the gaining principle follow through to their logical event, give a judgment which the Court has of benefits for itself as the former colonial conclusion - that the obligation which is a no authority or ability to satisfy (Rejoinder, power. It has been indicated elsewhere in corollary of the right may well have been paras. 160-166); this opinion that whatever Portugal gains contravened. This would lead, in my view, and from these proceedings will be held strictly to the grant of judicial relief for the viola- (vi) that the Court is an inappropriate fo- for the benefit of the people of East Timor, tion of the right. rum for the resolution of the dispute (Re- and under United Nations supervision. I am conscious, in reaching this conclu- joinder, paras. 167-169) inasmuch as other sion, that the violation of an erga omnes UN organs have assumed responsibility for (iv) that the Judgment would serve no use- right has not thus far been the basis of judi- negotiating a settlement of the East Timor ful purpose in that it would not promote cial relief before this Court. Yet the princi- question (Counter-Memorial, paras. 288- the interests of East Timor ples are clear, and the need is manifest for a 297). Portugal has submitted that a Judgment recognition that the right, like all rights, (i) Absence of a justiciable dispute in Portugal’s favour would serve the useful begets corresponding duties. The Court has held that there is in fact a purpose of conserving the rights of the peo- The erga omnes concept has been at the justiciable dispute in this case and I respect- ple of East Timor. door of this Court for many years. A disre- fully concur in that finding. Australia submits, on the other hand, gard of erga omnes obligations makes a that: (ii) Misuse of the process of the Court serious tear in the web of international obli- “Faced with a situation such as gations, and the current state of interna- Australia has argued that this case is: postulated by Portugal, both Australia tional law requires that violations of the “a sham - a blatant artifice, by and Indonesia are likely unilaterally concept be followed through to their logical which, under the guise of attacking to exploit the area, without the Treaty, and legal conclusion. Australia’s capacity to conclude the avoiding jurisdictional conflicts on a Partly because the erga omnes obligation Treaty, in reality Portugal seeks to purely pragmatic basis.” (Rejoinder, has not thus far been the subject of judicial deprive Indonesia of the benefits of its p. 72, para. 160.) determination, it has been said that: control over East Timor” (CR 95/11, Australia also submits that the Treaty is “Viewed realistically, the world of obliga- pp. 47-48). potentially more beneficial to the people of tions erga omnes is still the world of the This contention is linked to Australia’s East Timor, “provided Indonesia passes on ‘ought’ rather than the ‘is.’” (Simma, “Vio- submission that there is in reality no dispute an equitable part of the benefits to the peo- lations of Obligations erga omnes?,” op. in this case. If there is indeed a justiciable ple” (ibid.). The qualification introduced to cit., p. 126.) This case raises issues which dispute, as the Court has held, the resort to this proposition goes to the crux of the mat- bridge that gap. the processes of the Court for resolution is ter. One does not know whether, when or I would end this section as it began, by right and proper, for it is for the resolution how this will occur. adopting the Court’s pronouncement on the of justiciable disputes that the Court exists. To dismiss this claim on the basis that, in erga omnes character of East Timor’s right, Moreover, if the expression “administer- any event, an equitable part of the benefits and I would follow that principle through to ing Power” has any meaning, it means a derived by a third country will somehow be what I have indicated to be its logical and commitment to the solemn duties associated passed on to the people does not answer the legal conclusion. with the “sacred trust” on behalf of the peo- concerns which lie at the root of the princi- In the result, the obligations of Australia ple of East Timor. As pointed out earlier in ples of self-determination and permanent towards East Timor can be shown to stem this opinion, Portugal would be in violation sovereignty. from a multiplicity of sources and juristic of that basic obligation if, while being the In its Rejoinder, Australia states: considerations. Any one of them by itself administering Power, and while claiming to “No matter how hard Portugal em- would be sufficient to sustain these obliga- be such, it has failed to take such action as phasises its alleged formal status and tions in law. Cumulatively, their weight is was available to it in law for protecting the responsibilities, it gives no indication compelling. rights of the people of East Timor in rela- of how a judgment in its favour will Page 52 East Timor Documents, Volume 38. Timor Gap Case decided.
make one iota of difference to the The Court, by its very constitution, lacks Timor situation. Since this is not so, the rights of the East Timorese over their the means of enforcement and is not to be Australian submission that the case is un- offshore resources. Those rights, as deterred from pronouncing upon the proper suitable for adjudication in these proceed- well as Australia’s, will continue. No legal determination of a dispute it would ings (see Counter-Memorial, paras. 298- judgment of this Court can affect otherwise have decided, merely because, for 300) must fail. them, given the limited issue which political or other reasons, that determination The complementarity of the various or- Portugal asks the Court to adjudge.” is unlikely to be implemented. The raison gans of the United Nations, all pursuing in (Para. 162; emphasis in original.) d’être of the Court’s jurisdiction is their different ways the Purposes of the It is somewhat difficult to understand adjudication and clarification of the law, not Organization to which they belong, requires this passage, for the judgment sought by enforcement and implementation. The very each organ, within its appropriate and le- Portugal is not merely a judgment affirming fact that a justiciable dispute has been duly gitimate sphere of authority, to further those the rights of East Timor to self- determined judicially can itself have a prac- Purposes in the manner appropriate to its determination and permanent sovereignty tical value which cannot be anticipated, and constitution. This Court, properly seised of over its natural resources, but one which the consequences of which may well reach a justiciable dispute within its legitimate holds, in relation to those rights, that they into the area of practicalities. Those are sphere of authority, does not abdicate its are opposable to Australia, and that they matters beyond the purview of the Court, judicial responsibilities merely because of have been infringed by Australia in entering which must discharge its proper judicial the pendency of the matter in another fo- into the Timor Gap Treaty. Such a judg- functions irrespective of questions of en- rum. ment, had it been obtained, would not have forceability and execution, which are not its been without legal consequences. province. CONCLUSION In Northern Cameroons, the adjudication (vi) Is the Court an inappropriate forum? A. I concur in the Court’s finding that sought would have been devoid of any pur- there is a justiciable dispute between the The fact that other United Nations organs pose. It concerned a dispute about the inter- Parties. are seised of the same matter and may be pretation and application of a treaty which B. I concur with the Court in its reaf- considering it is no basis for a suggestion was no longer in force and in which there firmation of the importance of the principle that the Court should not consider that mat- could be no opportunity for a future act of of self-determination. ter to the extent that is proper within the interpretation or application of that treaty in C. The Applicant has the necessary jus limits of its jurisdiction. This matter does accordance with any judgment the Court standi to maintain this action, and is under a not need elaboration in view of the exten- might render (ICJ Reports 1963, p. 37). In duty under international law to take neces- sive case-law upon the subject. Each organ that case, if the Court made a declaration sary steps to conserve the rights of the peo- of the United Nations has its own allotted after the termination of the trusteeship ple of East Timor. Any benefits obtained by responsibility in its appropriate area. A agreement, it would have no continuing such action will be held strictly for the peo- matter for adjudication under the judicial applicability. In the words of a recent trea- ple of East Timor. function of the Court within its proper tise, the distinction between Northern Cam- D. The various objections based on judi- sphere of competence is not to be consid- eroons and the present case was noted as cial propriety must be rejected. ered extraneous to the Court’s concerns follows: E. This Application is maintainable in merely because political results may flow “In Northern Cameroons the Court the absence of a third State for the follow- from it or because another organ of the did not proceed to the merits of the ing reasons: United Nations is examining it from the case because its judgment could have (i) East Timor is a non-self-governing standpoint of its own area of authority. As had no practical effect and would territory recognized as such by the General the late Judge Lachs observed with his cus- have had no impact upon existing le- Assembly and the Security Council, and tomary clarity in the Lockerbie case, the gal rights or obligations. To give a acknowledged by the Respondent to be still Court is: judgment under the circumstances of that status. “the guardian of legality for the in- would not have accorded with the ju- (ii) Since East Timor is a non-self- ternational community as a whole, dicial function; Case Concerning the governing territory, its people are unques- both within and without the United Northern Cameroons (Cameroon v. tionably entitled to the right to self- Nations. One may therefore legiti- United Kingdom), Preliminary Objec- determination. mately suppose that the intention of tions, 1963 ICJ Rep. 15, (Judgment of (iii) The right to self-determination con- the founders was not to encourage a 2 Dec. 1963). In the East Timor case stitutes a fundamental norm of contempo- blinkered parallelism of functions but this limitation does not appear to ap- rary international law, binding on all States. a fruitful interaction.” (Application of ply.” (C. Chinkin, Third Parties in In- (iv) The right to permanent sovereignty the 1971 Montreal Convention arising ternational Law, 1993, p. 211, fn. over natural resources is a basic constituent from the Aerial Incident at Lockerbie, 105.) of the right to self-determination. Provisional Measures, ICJ Reports The judgment sought here is in respect (v) The rights to self-determination and 1992; separate opinion, p. 138.) not of a defunct treaty but of two basic in- permanent sovereignty over natural re- The Australian submission that other or- ternational obligations which are very much sources are recognized as rights erga omnes, gans of the United Nations have assumed a part of current law. It cannot be said that under well-established principles of interna- responsibility for negotiating a settlement of there will be no opportunities for any future tional law, and are recognized as such by the East Timor question (Counter- application of those principles to the rights the Respondent. Memorial, p. 128, para. 288, et. seq.) does of the East Timorese people. The Camer- (vi) An erga omnes right generates a cor- not absolve the Court of its own responsibil- oons case is thus clearly distinguishable. responding duty in all States, which duty, in ity within its own allotted area. case of non-compliance or breach, can be (v) that the Court should not give a judg- Moreover, this is not a case, as indicated the subject of a claim for redress against the ment which it has no authority or ability earlier in this opinion, which opens out a State so acting. to satisfy full range of inquiry into all the military, (vii) The duty thus generated in all diplomatic and political nuances of the East States includes the duty to recognize and East Timor Documents, Volume 38. Timor Gap Case decided. Page 53 respect those rights. Implicit in such recog- the peoples of Australia and Indonesia; DISSENTING OPINION OF nition and respect is the duty not to act in and any manner that will in effect deny those (f) in taking steps for the implemen- JUDGE SKUBISZEWSKI rights or impair their exercise. tation of the treaty raise substantial 1. I am unable to concur with the Judg- (viii) The duty to recognize and respect doubts regarding their compatibility ment of the Court which finds that “it can- those rights is an overarching general duty, with not in the present case exercise the jurisdic- binding upon all States, and is not restricted (a) The rights of the people of tion conferred upon it by the declarations to particular or specific directions or prohi- East Timor to self-determination made by the Parties under Article 36, para- bitions issued by the United Nations. and permanent sovereignty over graph 2, of its Statute to adjudicate upon the (ix) The Respondent has entered into a their natural resources dispute referred to it by the Application of treaty with another State, dealing with a (b) the Respondent’s express ac- the Portuguese Republic” (Judgment, para. valuable, non-renewable natural resource of knowledgment of those rights 38). Nor am I able to agree with the reasons East Timor for an initial period of forty (c) the Respondent’s obligations, upon which this finding is based. years, subject to twenty year extensions. correlative to East Timor’s rights, to 2. On the other hand, I concur with the (x) The Respondent has in the Treaty ex- recognize and respect those rights, dismissal by the Court of Australia’s objec- pressly acknowledged and accepted East and not to act in such a manner as to tion that “there is in reality no dispute” Timor’s incorporation in that other State as impair those rights between it and Portugal (Judgment, paras. a province of that State. (d) the Respondent’s obligations 21 and 22). I agree with the Court when in (xi) That other State has at no time been under relevant resolutions of the the reasons for the Judgment it takes note recognized by the United Nations as having General Assembly and the Security that, “for the two Parties, the Territory of any authority over the non-self-governing Council East Timor remains a non-self-governing territory of East Timor, or as having dis- (xvii) The circumstance that a Judgment territory and its people has the right to self- placed the administering Power duly recog- of this Court against a Party may have ef- determination” (Judgment, para. 37). It nized by the General Assembly and the fects upon an absent State does not by itself, might be said that the narrowing down of Security Council. according to the settled jurisprudence of this the relevancy of the status of the Territory (xii) The Treaty thus entered into has Court, deprive the Court of jurisdiction to and of the said right to the position of the the potential to deplete or even exhaust this make an order against a Party which is in Parties constitutes the absolute minimum. non-renewable and valuable resource of fact present before it. However, this approach is rather a matter of East Timor. (xviii) The claim against the Respondent method than substance: the Court itself (xiii) The Treaty makes no provision can be determined on the basis of: subscribes to the continued legal existence conserving the rights of the people of East (i) the Respondent’s individual obli- of the status of East Timor as a non-self- Timor, or providing for the eventuality that, gations under international law; governing territory and the applicability of after exercising their right to self- (ii) the Respondent’s individual ac- the principle of self-determination. I am determination, the people of East Timor tions; and convinced that this re-statement of the law may choose to repudiate the Treaty. (iii) the principle of a State’s indi- by the Court is important for the stand Por- (xiv) Neither the people of that territory, vidual responsibility under international tugal took in the present proceedings and is nor their duly recognized administering law for its individual actions without taking beyond them. The re-statement in the Power have been consulted in regard to the any need for an examination of the con- Judgment is significant for an equitable said Treaty. duct of another State. settlement of the question of East Timor. I (xv) The Treaty has been entered into by F. Since the conclusions set out above think that everybody who has the purposes the Respondent and another State “for the can be reached upon the basis of the unilat- and the principles of the United Nations at mutual benefit of their peoples in the devel- eral acts of the Respondent, without any heart must commend the Court for this dic- opment of the resources of the area” with no necessity to investigate or pronounce upon tum. mention of any benefits for the people of the conduct of a third State, the case of East Timor from the valuable natural re- Monetary Gold is not relevant to a determi- SECTION I: BASIC FACTS ON source belonging to them. nation of this case. EAST TIMOR (xvi) the Respondent’s individual ac- G. Were it necessary to consider the case 3. In paragraphs 11-18 the Judgment tions: of Monetary Gold, the facts of that case are succinctly recalls those facts on East Timor (a) in entering into the said treaty; clearly distinguishable from those in the of which a knowledge is necessary for an (b) in expressly acknowledging the present case. Consequently, that decision is understanding of the dispute. This section is incorporation of East Timor into an- inapplicable. in the nature of a supplement to the descrip- other State; * * * tion found in the Judgment. (c) in being party to an arrangement My conclusion therefore is that the Ap- Historical Background dealing with the non- renewable re- plication before the Court is within the 4. The Portuguese and, subsequently, the sources of East Timor in a manner Court’s competence to determine, and that Dutch navigators reached the island of likely to cause their serious depletion or the objection based upon the absence of a Timor in the 16th century. In the process of exhaustion; third State should have been overruled and colonial conquest the eastern part of the (d) in being party to an arrangement the case proceeded with to a final determi- island was subjected to Portuguese and the dealing with the non- renewable re- nation. The materials necessary for that western part to Dutch sovereignty. The sources of East Timor without consulta- determination were before the Court, as boundary was delimited in 1859 by virtue tion with the people of East Timor, or they were inextricably linked with the pre- of a Treaty concluded by the two States. their duly recognized representative; liminary issue of jurisdiction. (e) in being party to an arrangement The Convention and Declaration of 1893 which makes no mention of the rights of Christopher Gregory WEERAMANTRY and another Convention of 1904 also dealt the people of East Timor, but only of with the frontier. In 1914 The Netherlands and Portugal were parties to an arbitration Page 54 East Timor Documents, Volume 38. Timor Gap Case decided. concerning part of the boundary. In 1941- State? The breakthrough came three years of the colonial problem, in contradistinction 1942 Dutch and Australian forces entered later with the introduction of democracy in to military action. The colonial war which Portuguese Timor to defend it against Japa- Portugal. pre-1974 Portugal waged in Africa (viz., in nese invasion. They were not successful and Action by the United Nations Prior to Angola, Guinea-Bissau and Mozambique) the island remained under Japanese occupa- 1974 was the direct cause of the Revolution. The tion until the end the Second World War. first Provisional Government spoke of self- 7. The United Nations was at pains to The Portuguese authorities then came back determination of the colonies. That policy bring about, in regard to the Portuguese to East Timor. On the other hand, following found expression in decree-law 203/74. colonies, a state of affairs that would con- Indonesia’s independence and recognition Another legislative act, viz., constitutional form to the Charter. as a State, Dutch sovereignty over western law 7/74 provides in Article I that 8. In resolution 180 (1963), the Security Timor was terminated and the area became “the solution to the overseas wars Council called upon Portugal to implement part of Indonesian territory. is political and not military ... [and] “the immediate recognition of the right of implies, in accordance with the Portuguese Constitutional Law and Poli- the peoples of the Territories under its ad- United Nations Charter, the recogni- cies relating to its Colonies, including ministration to self-determination and inde- tion by Portugal of the right of the East Timor, Prior to the Democratic pendence” (para. 5 (a)) and affirmed that peoples to self-determination” and in Revolution of 1974 “the policies of Portugal in claiming the Article 2 that 5. Under Portuguese constitutional law Territories under its administration as ‘over- “the recognition of the right to self- East Timor was a colony or dependency of seas territories’ and as integral parts of met- determination, with all that it implies, Portugal and, consequently, part of Portu- ropolitan Portugal [were] contrary to the includes the acceptance of the inde- guese territory. It was described either as a principles of the Charter and the relevant pendence of the overseas territories “colony” or “overseas province.” The Con- resolutions of the General Assembly and of and exemption from the correspond- stitution of 1933 chose the latter term. the Security Council” (para. 2). ing part of Article 1 of the Political There was a legal concept in it: these areas The Council repeated its calls and affir- Constitution of 1933.” would be part of the Unitary State of Portu- mations in resolutions 183 (1963) and 218 11. By resolution 3294 (XXIX) the UN gal and their populations part of the Portu- (1965). In resolution 312 (1972), the Secu- General Assembly welcomed the new pol- guese nation. At that time the Head of State rity Council reaffirmed “the inalienable icy of Portugal. That policy conformed to defined the constitutional position in the right of the peoples of Angola, Mozambique the Charter. following words: “the overseas provinces and Guinea (Bissau) to self-determination 12. Constitutional law 7/75 reaffirmed are already independent through the inde- and independence” and recognized “the “the right of the people of Timor to self- pendence of the Nation as a whole” (Memo- legitimacy of their struggle to achieve that determination ... in conformity with the rial, para. 1.07). But the Constitution main- right” (para. 1). The same position is re- relevant resolutions of the United Nations tained the notion of the “parent country,” flected by Council resolution 322 (1972) Organization ...” (Art. I). It may be added which concept was in formal contradiction and by General Assembly resolutions that Article 307 of the Portuguese Constitu- to the interpretation quoted. Thus the consti- 2270(XXII), 2395(XXIII) and 2507(XXIV). tion of 1976 safeguarded East Timor’s tutional law of Portugal excluded self- 9. The United Nations also decided to “right to independence,” while Article 293 determination by colonial peoples and, eo take steps which went further than mere of the Constitution of 1989 (now in force) is ipso, prevented the acquisition of independ- calls and affirmations. In resolution 180 broader as it refers to “the right to self- ence by the colonies. Article I of the Consti- (1963) the Security Council requested that determination and independence.” tution of 1933 prohibited alienation of any “all States should refrain forthwith from part of national territory; East Timor, to- offering the Portuguese Government any Developments in East Timor 1974-1975, gether with all the other colonies, was a assistance which would enable it to con- Including Indonesian Invasion and Oc- constituent element of that territory. Conse- tinue its repression of the peoples of the cupation quently, when admitted to the United Na- Territories under its administration, and 13. In contrast with other Portuguese tions (1955), Portugal opposed the applica- take all measures to prevent the sale and colonies there was, in East Timor, no libera- tion of Chapter XI of the Charter to its over- supply of arms and military equipment for tion movement or armed struggle, though seas possessions, including East Timor. For this purpose to the Portuguese Government” there were sporadic riots or other manifesta- a few years the Government in Lisbon suc- (para. 6). Similar requests and calls were tions of unrest. In 1974 three political asso- ceeded in stopping the Organization from made in Security Council resolutions 218 ciations were formed: the União De- subjecting the Portuguese colonies to the (1965) and 312 (1972) as well as in General mocrática Timorense (UDT) which first regime of that Chapter, but since 1960 East Assembly resolutions 2270(XXII), supported gradual autonomy, and subse- Timor has been classified by the United 2395(XXIII) and 2507(XXIV). In resolution quently the granting of independence after a Nations as a non-self-governing territory 2507(XXIV) the General Assembly further period of association with Portugal, but (General Assembly resolution 1542 (XV)). called upon all States, United Nations spe- finally opted for union with Indonesia; the 6. In 1971 the overseas provinces were cialized agencies and other international Frente Revolucionària de Timor-Leste In- categorized, in Portuguese law, as “regions organizations to “increase ... their moral and dependente (FRETILIN; this movement possessing political and administrative material assistance to the peoples of the initially bore a different name), which ad- autonomy, able to assume the name of Territories under Portuguese domination vocated independence; and the Associacao States” (Memorial, para. 1.07). However, who are struggling for their freedom and Popular Democrática Timorense this new classification did not bring about independence” (para. 11). Change in Portu- (APODETI) which favoured integration any change either in the treatment of East gal’s Stand (1974) with Indonesia. Later, the UDT joined a Timor (and the other colonies) in the inter- 10. It was not surprising that the Armed group of pro-Indonesian parties collectively nal affairs of the State or in the Portuguese Forces Movement (MFA) which triggered known as the Anti-Communist Movement attitude towards the application of Chapter off the Democratic Revolution of 25 April (MAC). XI of the Charter. Moreover, how could it, 1974 (known as the “Carnation Revolu- 14. In 1975 Portugal engaged in consul- once they remained part of the Unitary tion”), laid emphasis on a political solution tations with these organizations on the fu- East Timor Documents, Volume 38. Timor Gap Case decided. Page 55 ture of the Territory. The choice was be- Assembly reiterated the same strong regret were made by it solely in its capacity as tween independence, integration into a State in view of “the persistent refusal of the administering Power (Security Council other than Portugal (which in practice Government of Indonesia to comply with resolution 389 (1976); General Assembly meant Indonesia), or association with Por- the provisions” of the foregoing resolutions. resolutions 31/53 and 32/34). In effect, only tugal. The Government in Lisbon made The Assembly reaffirmed this attitude in its one resolution, viz., General Assembly preparations for a general election on the resolutions 32/34 (para. 2) and 33/39 (para. resolution 33/39 of 1978, makes no allusion island. The plan was to set up a Popular 2). The Assembly was also “[d]eeply con- to Portugal. Nevertheless it recalls resolu- Assembly. In the meantime local elections cerned at the critical situation in the Terri- tions which contain a reference to Portugal. took place. But immediately following them tory” (later described as the “continuing 22. Fifth, the wording of the resolutions the UDT launched a coup d’état. The critical situation”) resulting from the inter- referred to in paragraphs 17-21 above is FRETILIN responded by staging a counter- vention and, as stated in subsequent resolu- silent on human rights. However, in its reso- coup. The capital of the Territory, Dili, tions, from “the persistent refusal on the lutions (1975-1982) the General Assembly found itself in the hands of the FRETILIN. part of the Government of Indonesia to points to the principles of the Charter and of The fighting involved the various political comply with the provisions of the resolu- the Declaration on the Granting of Inde- movements. The Portuguese authorities tions of the General Assembly and the Se- pendence to Colonial Countries and Peoples emphasized that they did not side with any curity Council” (resolutions cited and reso- (resolution 1514 (XV)). Some of these prin- of them. For reasons of safety the authori- lution 33/39). ciples specifically protect human rights. ties left the capital on 26/27 August 1975 19. Second, in 1980 the General Assem- Each year the Assembly stated that it had and established themselves on the island of bly welcomed “the diplomatic initiative examined the relevant chapter of the report Atauro which was part of the Territory. taken by the Government of Portugal as a of the Committee of Twenty-Four. Again, 15. While the East Timorese political or- first step towards the free exercise by the concern with human rights in the colonies ganizations continued to pursue their con- people of East Timor of their right to self- has always been part of the work of that flicting policies regarding the Territory’s determination and independence” (resolu- organ. In resolution 37/30 the Assembly future, Portugal made preparations for fur- tion 35/27, para. 3). In 1981 the Assembly took note of both the report by the Secre- ther talks with and among them. But the noted “the initiative taken by the Govern- tary-General and of resolution 1982/20 of situation became yet more complex when in ment of Portugal, as stated in the commu- the Sub-Commission on Prevention of Dis- November 1975 the MAC proclaimed the niqué of the Council of Ministers of Portu- crimination and Protection of Minorities. integration of East Timor with Indonesia gal issued on 12 September 1980, and in- The name of the Sub-Commission speaks and on 28 November 1975 the FRETILIN, vite[d] the administering Power to continue for itself. Thus the human rights factor is for its part, proclaimed the Democratic Re- its efforts with a view to ensuring the proper also present, albeit indirectly, and it is rele- public of East Timor (RDTL). The United exercise of the right to self-determination vant to the evaluation of the East Timor Nations did not regard these proclamations and independence by the people of East situation. There is also a direct link: the as implementing East Timor’s right to self- Timor, in accordance with General Assem- 1993 resolution of the Commission on Hu- determination (in 1984 the FRETILIN itself bly resolution 1514 (XV), and to report to man Rights on the violation of human rights abandoned its position on the alleged exis- the Special Committee on the Situation with and fundamental freedoms in East Timor tence of the RDTL). regard to the Implementation of the Decla- (United Nations document 16. The situation was under discussion in ration on the Granting of Independence to E/CN.4/1993/L.81/Rev.1). the United Nations General Assembly Colonial Countries and Peoples on the pro- Attitude Towards Indonesian Rule in when, on 7 December 1975, Indonesian gress of its initiative” (resolution 36/50, East Timor armed forces invaded East Timor and occu- para. 4). 23. On 31 May 1976 a Popular Assembly pied it. On 8 December 1975 the Portuguese It may be observed that there is a link be- meeting in the East Timorese capital Dili authorities left the Territory. tween the efforts of Portugal and the institu- under Indonesian occupation petitioned Reaction by the United Nations tion of the present Geneva “consultations” Indonesia for integration (United Nations 17. In paragraphs 14-16 the Judgment conducted under the auspices of the Secre- document S/12097, Annex II). Official ob- describes the stand taken by the United tary-General of the United Nations with “all servers from India, Indonesia, Iran, Malay- Nations, in particular in the light of the parties directly concerned” (resolution sia, New Zealand, Nigeria, Saudi Arabia resolutions adopted by the Security Council 37/30, para. 1), namely “Portugal, as the and Thailand were present. In the reports on (1975-1976) and the General Assembly administering Power, and the representa- these events there were references to the (1975-1982) after Indonesian invasion and tives of the East Timorese people, as well as “wishes of the people” which were subse- occupation. I shall limit myself to a few Indonesia” (resolution 36/50, para. 3). quently “verified” by a fact-finding team additional points. 20. Third, as long as these “consulta- from the National Parliament of Indonesia. 18. First, apart from calling upon “the tions” continue, there is practically no room Some foreign diplomatic observers accom- Government of Indonesia to withdraw with- or need for any of the principal political panied that team. The United Nations was out delay all its forces from the Territory” organs of the United Nations to vote on any not represented during any of these activi- the Security Council also deplored “the resolution on East Timor. ties. The Indonesian Parliament incorpo- intervention” of these forces in East Timor 21. Fourth, the Judgment enumerates rated East Timor into Indonesia on 16 July and expressed its grave concern “at the those United Nations resolutions “which did 1976. Under Indonesian law East Timor deterioration of the situation in East Timor,” not specifically refer to Portugal as the ad- became a part of the territory of Indonesia including “the loss of life” there (resolution ministering Power” but which, at the same as that country’s twenty-seventh province. 384 (1975), seventh, eighth and ninth pre- time, “recalled another resolution or other 24. The United Nations clearly refused ambular paragraphs; that resolution was resolutions which so referred to it” (Judg- and still continues to refuse to acknowledge subsequently recalled in resolution 389 ment, para. 15). Thus such non-reference is the situation created in East Timor by Indo- (1976)). Equally, the General Assembly without significance. It may be added that nesian invasion, occupation and annexation. “[s]trongly deplore[d] the military interven- the silence of three resolutions is more ap- In 1976, in resolution 31/53, paragraph 5, tion” (resolution 3485 (XXX), para. 4). In parent than real. For they speak of state- the General Assembly its subsequent resolution (31/53, para. 4) the ments by Portugal; now these statements Page 56 East Timor Documents, Volume 38. Timor Gap Case decided.
“Rejects the claim that East Timor acknowledgement by Australia that SECTION II: EXISTENCE OF THE has been integrated into Indonesia, in- the question of rights over the conti- DISPUTE asmuch as the people of the Territory nental shelf between territories whose 33. While I dissent from the Court’s de- have not been able to exercise freely coasts face one another and the ques- cision on jurisdiction, and this is the heart of their right to self-determination and tion of the ‘frontal’ delimitation of the the matter, I obviously concur with the independence.” shelf in the area referred to as the Court on the issue of the existence of a dis- A similar rejection is found in paragraph Timor Gap, in other words, in the area pute between the Parties. Hence in this sec- 3 of resolution 32/34. opposite East Timor, was a matter for tion my opinion is not a dissenting but a 25. The Judgment points out that Austra- Australia and this Territory alone. separate one. lia recognized the incorporation of East Moreover, such an acknowledgement Timor into Indonesia (Judgment, para. 17). is fully borne out by the contacts es- The Dispute before the Court 26. Other States have also granted their tablished between Australia and Por- 34. The Court rightly dismisses Austra- recognition, in one way or another, some- tugal, between 1970 and 1974, con- lia’s objection that in this case there is no times de facto only and without committing cerning the formal opening of “dispute” between itself and Portugal themselves to confirming that self- negotiations for the delimitation of the (Judgment, para. 22). determination took place. According to shelf in the area in question, as well 35. Clarification whether there is a dis- information in the Counter-Memorial and as by the dispute which arose between pute is, obviously, the first step. In the ab- Rejoinder of Australia (paras. 175 and 45- them as a result, among other things, sence of a dispute the questions of jurisdic- 48, respectively), they include, in alphabeti- of the concession granted by Portugal tion and admissibility would, by definition, cal order, Bangladesh, India, Iran, Iraq, to the Oceanic Exploration Company not arise. Australia has introduced the dis- Jordan, Malaysia, Morocco, Papua New Ltd.” tinction between the “alleged” dispute and Guinea, Philippines, Singapore, Suriname, 30. The attitude of Australia changed the “real” dispute (Counter-Memorial, Sweden, Thailand and the United States of after Indonesia took over actual control of paras. 4-17) and has asserted the “abstract America. I have not listed all the States East Timor. In 1979 Australia and Indonesia and unreal character of the ‘dispute’ pre- referred to by Australia as “accepting the started negotiations concerning the explora- sented by Portugal” (Rejoinder, para. 34). incorporation of East Timor” (Counter- tion, exploitation and delimitation of the She has occasionally put the actual word Memorial, title of paragraph 175) or recog- continental shelf in the area of the Timor itself in quotation-marks (as exemplified by nizing the “reality of Indonesian control” Gap. The two States agreed not to fish in an the preceding reference) and has used the (Rejoinder, para. 44). The reason for the area which included the Timor Gap (Memo- phrase “if there is a dispute” (Counter- omission of some States (included by Aus- randum of Understanding of 1981). Pending Memorial, para. 2). However, the purported tralia) is that, having examined their state- the delimitation of the continental shelf in non-existence of the dispute has not been ments, I doubt whether they could be classi- the Timor Gap they signed, on 11 Decem- presented in any systematic or exhaustive fied under the rubric of recognition (e.g., ber 1989, the Treaty on the Zone of Co- manner. The Respondent State did not seem New Zealand, Rejoinder, para. 48). And operation in an Area between the Indone- to go to the lengths of definitely rejecting what is more, there is room for hesitation sian Province of East Timor and Northern any notion of a dispute between itself and with regard to some of the States enumer- Australia (which was to be known as the the Applicant State. It devoted much atten- ated above. In all, the group of recognizing Timor Gap Treaty). This Zone serves to tion to arguing the inadmissibility of the States is small. enable the exploration and exploitation of claims, which fact implies the existence of a 27. Whether territorial clauses in some of the petroleum resources of the continental dispute. the tax treaties concluded by various other shelf in the Timor Gap. The “Zone of Co- 36. The Court recalls its jurisprudence States with Indonesia imply recognition of operation,” covering some 67,800 km2, is and that of its predecessor (Judgment, para. the latter’s sovereignty over East Timor is divided into three “areas": Area A in the 22). Let me quote Judge Sir Gerald Fitz- considered in paragraph 122 below. Timor centre (the largest, at approximately 62,000 maurice. Sharing the views expressed by Gap Treaty km2), Area B in the south and Area C in the Judge Morelli in the South West Africa 28. Submissions (2) to (5) presented by north. Areas B and C are areas of explora- cases, Preliminary Objections (ICJ Reports Portugal (Judgment, para. 10) assert several tion, exploitation and jurisdiction of Austra- 1962, pp. 566-568) the learned Judge de- claims in connection with the conclusion by lia and Indonesia, respectively. However, fined the minimum required to establish the Australia of that Treaty. each State is entitled to certain notifications existence of “a dispute capable of engaging 29. Australian-Indonesian Agreements of on the other Area and to part of the revenue the judicial function of the Court” (Northern 18 May 1971 and 9 October 1972 on their collected there. Area A is destined for joint Cameroons, ICJ Reports 1963, pp. 109 and respective rights to the continental shelf in exploration, exploitation and jurisdiction. 110, respectively). the areas of the Arafura and Timor Seas left For this purpose, the two States have set up “This minimum is that the one outside the delimitation the shelf facing the a bilateral Joint Authority under the control party should be making, or should coast of East Timor. Thus a kind of gap was of a bilateral Ministerial Council. have made, a complaint, claim, or left in the delimitation of the continental 31. Since 1985, in its capacity of admin- protest about an act, omission or shelf in those Seas, the “Timor Gap.” This istering Power, Portugal has been protesting course of conduct, present or past, of name was soon extended to the whole area to Australia first against the latter’s negotia- the other party, which the latter re- between East Timor and Australia. The tions with Indonesia and subsequently futes, rejects, or denies the validity of, lines recorded by these Agreements identify against the conclusion of the Treaty itself. either expressly, or else implicitly by the whole boundary of the continental shelf Australia has excluded any negotiations persisting in the acts, omissions or between Australia and Indonesia. No with Portugal on the Timor Gap. conduct complained of, or by failing boundary was established in the area be- 32. The available information points to to take the action, or make the repara- tween Australia and East Timor. In the very rich oil and natural gas deposits in the tion, demanded.” opinion of Portugal (Memorial, para. 2.01) Timor Gap area. Quoting the definition of a legal dispute “the 1971 and 1972 Agreements, given by the United Kingdom (which, as he and particularly the latter, signify an put it, he “slightly emend[ed]”) the learned East Timor Documents, Volume 38. Timor Gap Case decided. Page 57
Judge stated: “there exists, properly speak- consequences of her act of recognition: of the rules governing jurisdiction and/or ing, a legal dispute (such as a court of law Australia concluded the Timor Gap Treaty, admissibility (these rules have to be ap- can take account of, and which will engage which deals with East Timorese interests plied), but also in accordance with the de- its judicial function), only if its outcome or regarding continental shelf and maritime mands of justice. The dichotomy between result, in the form of a decision of the resources. This is a domain of the highest law and justice is perennial. The Court has Court, is capable of affecting the legal in- importance to any State or to a non-State constantly been looking for an answer to it. terests or relations of the parties, in the territorial entity such as East Timor. The search for a solution becomes difficult, sense of conferring or imposing upon (or and the contours of the dichotomy gain in confirming for) one or other of them, a legal SECTION III: JURISDICTION, sharpness, when too narrow an interpreta- right or obligation, or of operating as an ADMISSIBILITY, PROPRIETY tion of the principles governing competence injunction or a prohibition for the future, or A. Jurisdiction restrains justice. I am, therefore, also con- as a ruling material to a still subsisting legal cerned with the possibility that the Judg- situation.” 40. As indicated in paragraph 1, I dissent ment might revive past fears regarding a 37. A perusal of the Application institut- from the Court’s finding on jurisdiction and restrictive concept of the Court’s function. ing proceedings and of the pleadings shows from the reasons behind this finding. I as- The problem cannot be reduced to legal that the dispute submitted to the Court ful- sume that what the Court means is that it is correctness alone. This is especially so fils the criteria of the foregoing definitions. without jurisdiction to decide the case. It is whenever the Court is confronted with cer- The case of East Timor is a dispute which true that the Court uses different words, tain basic elements of the constitution of the falls under Article 36, paragraph 2, of the saying that “it cannot ... exercise the juris- Organization and with certain fundamental Court’s Statute. The dispute is a legal one diction conferred upon it” (Judgment, para. principles of international law. There is a within the meaning of that provision and the 38). The Court arrives at this conclusion real interest in maintaining and strengthen- Court’s practice. after having examined “Australia’s princi- ing the Court’s role in what Judge Sette 38. From any vantage point, including (it pal objection to the effect that Portugal’s Camara described as “the institutionaliza- seems) that of the East Timorese people, the Application would require the Court to tion of the rule of law among nations” [2]. dispute brought before the Court is a differ- determine the rights and obligations of In- 44. A few years ago President Bedjaoui ent one from a potential or existing dispute donesia” (Judgment, para. 23). In the writ- wrote that “it is through an awareness of the between Portugal and Indonesia, even ten pleadings Australia presented this objec- lines of force of [international] society, and though some questions at issue are or may tion under the rubric of inadmissibility, but of their articulations, that we can gain a be identical. the submissions referred, first of all, to lack better understanding ... of [international of jurisdiction and only then to inadmissi- The Question before the Political Organs law’s] possible future conquests.” In the bility (Rejoinder, para. 288). In its final opinion of the President the present phase of 39. The specific dispute before the Court submissions Australia took the same posi- international law is that of a transition should not be confused or identified with tion: “the Court should ... adjudge and de- “[f]rom a law of co-ordination to a law of the broader problem which in the United clare that the Court lacks jurisdiction to finalities.” And the learned commentator Nations bore the name “The Question of decide the Portuguese claims or that the states that “one of the essential finalities” is Territories under Portuguese Administra- Portuguese claims are inadmissible” (CR development, “true development, of a kind tion” (General Assembly) or that of “The 95/15, p. 56, 16 February 1995, Mr. Grif- which will restore dignity to [the] peoples Situation in Timor” (Security Council) and fith, Agent and counsel; Judgment, para. [of “new States”] and put an end to relation- is now called “The Question of East 10). ships of domination” [3]. Timor.” By using in its resolutions the ex- 41. According to the Judgment (paras. 33 45. Does the Judgment give sufficient pressions “all interested parties” (resolution and 34) the reason for not exercising juris- expression to the law so understood? The 36/50) and “all parties directly concerned” diction in this case is the impossibility for subject matter of the dispute and its wider (resolution 37/30) - and these expressions the Court to adjudicate on the lawfulness of ramifications would justify the adoption of cover Indonesia - the General Assembly Indonesia’s conduct without its consent. the President’s approach. East Timor has identified those concerned with the “Ques- Such adjudication is, in the opinion of the not been well served by the traditional in- tion of East Timor,” and not the parties to a Court, a prerequisite for deciding on the terests and sovereignties of the strong, future Court case, whatever its ramifica- alleged responsibility of Australia. The hence the importance of the Court’s posi- tions. The “Question of East Timor” in- Judgment relies on the decision in Monetary tion on the Territory and the rights of its volves the United Nations, Portugal, the Gold (ICJ Reports 1954, p. 19). Conse- people (para. 2 above). But that position representatives of the East Timorese people quently, in explaining my dissent I concen- would be of more consequence if the hold- and Indonesia. But this does not mean that trate on the significance to be ascribed to ing was not silent on self-determination and according to the Assembly resolutions the Indonesia’s absence from the proceedings in on the status of the Territory. It is a telling settlement of any issue concerning East the present case and on the meaning and silence, because it is coupled with a quasi- Timor must always include all these partici- relevance of Monetary Gold. But at the total rejection of the Portuguese claims. pants, and especially Indonesia, and that the outset I discuss the broader ramifications of Was the Court not too cautious? consultations are the only road to a solution. the issue of jurisdiction and the special 46. And yet, I think, this Court has had The holding of consultations among the problem with regard to the first submission its great moments and was most faithful to interested parties does not exclude the re- of Portugal. its function when, without abandoning the course to other means of settlement. A spe- Law and Justice domain of positive law, it remained in touch cific dispute embracing, as parties to it, only with the great currents of contemporary one of the States taking part in the consulta- 42. Undoubtedly, as Dr. Shabtai Rosenne development. A court of justice need not be tions and a third State is not by definition has put it, the Court possesses “a measure of and, indeed, should not be an exponent of artificial. Certainly it is not so with regard discretion ... to decline to decide a case"; the law-making opinion of “yesterday” or to Australia. Among the countries recogniz- but it should be “sparingly used” [1]. still worse - to use Albert V. Dicey’s ex- ing the incorporation of East Timor into 43. With respect, I submit that the Court pression - “the opinion of the day before Indonesia Australia went furthest in the should have resolved the dispute between Portugal and Australia not only on the basis yesterday” [4]. The Court should and can Page 58 East Timor Documents, Volume 38. Timor Gap Case decided. look ahead. Otherwise there would not be 51. Though the Court says that its “con- regarding the delimitation of maritime ar- decisions such as the one in the Reparations clusion applies to all the claims” (para. 35) eas. case. the Judgment does not actually deal with 54. The first submission of Portugal is 47. I think that what Judge ad hoc Lau- the first submission. Nor was its admissibil- couched in such terms that by addressing terpacht said in the Application of Genocide ity questioned. Consequently, one should the merits of it the Court runs no danger of Convention, Further Requests for the Indi- apply the rule repeated in the Request for dealing with Indonesia’s rights, duties or cation of Provisional Measures (ICJ Reports interpretation of the Judgment of 20 No- position. The rule of consent (repeated in 1993, p. 408, para. 3) is applicable to the vember 1950 in the Asylum Case (ICJ Re- Monetary Gold) will be fully observed. present case: ports 1950, p. 402) that “it is the duty of the 55. There is no justification for Indonesia “the Court should approach it with Court ... to reply to the questions as stated to see in the Judgment an implicit legaliza- anything other than its traditional im- in the final submissions of the parties ...” tion or legitimization of the annexation of partiality and firm adherence to legal [5]. In the present case there is no conflict East Timor. Nonetheless, I am concerned standards. At the same time, the cir- between that duty and judicial self-restraint, with the present operative clause, where cumstances call for a high degree of if the latter were to arise at all, which I do there is no reference to the principles enu- understanding of, and sensitivity to, not think it would. merated in the first submission. It should be the situation and must exclude any 52. In this connection it is convenient to emphasized that this submission differs narrow or overly technical approach include a word of comment on the observa- considerably from the other ones (2-5). The to the problems involved. While the tion that, during the proceedings, both Par- latter centre on the Timor Gap Treaty and demands of legal principle cannot be ties invoked the interests of the East problems of responsibility, the former asks ignored, it has to be recalled that the Timorese people, but they presented us with the Court to state the law and the duty of rigid maintenance of principle is not little or no evidence of what the actual Australia to respect that law. What could be an end in itself but only an element - wishes of that people were. Be this as it the difficulty in accepting that submission, albeit one of the greatest importance - may, I think that the Court can base itself on wholly or in part? in the constructive application of law certain elementary assumptions: the inter- 56. I am prepared to agree with the to the needs of the ultimate ests of the people are enhanced when re- proposition that the granting of the first beneficiaries of the legal system, course is made to peaceful mechanisms, not submission constitutes the juridical (and individuals no less than the political to military intervention; when there is free also logical) prerequisite to the considera- structures in which they are choice, not incorporation into another State tion and possible granting of the subsequent organized.”48. There is a certain lack of balance in brought about essentially by use the of submissions. But not vice-versa. The link the dispositif: it is all too positive for Aus- force; when the active participation of the does not work the other way. The first sub- tralia, all too negative for Portugal; but it people is guaranteed, in contradistinction to mission can stand autonomously. The Court still remains to be seen whether the real arrangements arrived at by some States can and in fact, in its practice, did construe winner is not a third State. This is an effect alone with the exclusion of the people the submissions of the Parties. The Court the Court wishes to avoid, for it might eas- and/or the United Nations Member who could take up the first submission and re- ily frustrate the Court’s undoubted concern accepted “the sacred trust” under Chapter solve the relevant issue without going into not to have any third State in the picture. XI of the Charter. The Court could have the remaining claims. Portugal’s First Submission examined these and related problems with- 57. The Court is not merely an organ of 49. For all these reasons, I think that the out changing its present holding on lack of States which has with the function of adju- Court should deal with the first submission competence with regard to Portuguese sub- dicating upon disputes between those of of Portugal. In this submission Portugal missions 2 to 5. For these problems are part them willing to bestow upon it jurisdiction requests the Court of self-determination. They belong also to and to submit to that jurisdiction. The Court “(1) To adjudge and declare that, submission 1. To reiterate, it is not clear to is primarily the “principal judicial organ of first, the rights of the people of East me why the Judgment preferred to remain the United Nations.” It is thus part of an Timor to self-determination, to territo- silent on that submission. international structure. Its judicial function, rial integrity and unity and to perma- 53. The statements (in the reasons for the as defined in Chapter II of its Statute and nent sovereignty over its wealth and Judgment) on the status of East Timor and especially in Article 36, must be exercised natural resources and, secondly, the on self-determination might have been in accordance with the purposes and princi- duties, powers and rights of Portugal elaborated upon. The status of non-self- ples of the Organization. The Court has as the administering Power of the Ter- government obviously implies the “integ- been contributing to the elucidation and ritory of East Timor are opposable to rity” of the Territory. Here the Judgment growth of United Nations law. This case has Australia, which is under an obliga- limits itself to quoting the Security Council created an opportunity for the continuation tion not to disregard them, but to re- resolutions (para. 31). There is nothing on of this task. “The Question of East Timor” spect them.” the application of the right of self- is still being dealt with by the political or- 50. The heart of the matter is that the determination to the present situation of the gans of the United Nations. Once regularly Court cannot limit itself to saying that it has East Timorese people and on the view of seised (hence the importance of elucidating no jurisdiction in questions pertaining to the each Party regarding the implementation of Portugal’s locus standi), the Court has its Timor Gap Treaty. The substance of the that right. The Judgment is silent on perma- role to play, provided its independence and case is broader and goes deeper than that nent sovereignty over natural wealth and the limits of its participation in the activities Treaty. In a nutshell, the Court should deal resources. The Parties differ on the position of the Organization are respected. None of extensively with the principles covered by of Portugal: another issue to be resolved by these requirements would be threatened, if the first submission of Portugal. The present the Court. There is a lot that is in dispute the Court decided to take up the first sub- treatment of them in the reasons, though between the Parties under the first submis- mission. This submission is indeed separa- important, is too short. It is also insufficient sion, irrespective of the Timor Gap Treaty. ble from the issue of the Timor Gap Treaty. in the sense that the subject, in my view, The first submission cannot be reduced to Portugal’s first submission is no abuse of belongs equally to the dispositif. the issue of treaty-making power, especially the Court. East Timor Documents, Volume 38. Timor Gap Case decided. Page 59
58. To sum up, the operative clause of State which is not party to the litigation, the primary one for the Court. Hence in its pre- the Judgment could contain the following Court has jurisdiction on that claim. It is vious decisions the Court has adopted a findings: submitted that this is the position in the reasonable interpretation of the Monetary (1) The United Nations has continued to triangle Portugal-Australia-Indonesia. Here Gold rule. One might even say: an interpre- recognize the status of Portugal as adminis- the said separation is not only possible, but tation which is not broad. This stance was tering Power of East Timor. Consequently, already exists. Portugal did not put at issue adopted by the Court in Certain Phosphate Portugal has the capacity to act before the the legal interests of a third State, i.e., Indo- Lands in Nauru, Preliminary Objections. In Court in this case on behalf of East Timor. nesia. The Court has jurisdiction. this case, where Nauru was claimant, the (2) The status of the territory of East 61. In Land, Island and Maritime Fron- Court found that it had jurisdiction in spite Timor as non-self-governing, and the right tier Dispute (El Salvador/Honduras), Appli- of the fact that the Respondent State (Aus- of the people of East Timor to self- cation for Permission to Intervene, the tralia) was only one of three States (the determination, including its right to perma- Chamber of the Court left no doubt as to the other two being New Zealand and the nent sovereignty over wealth and natural relevance of the distinction indicated in United Kingdom) who jointly constituted resources, which are recognized by the paragraphs 59 and 60 above. The Chamber the Administering Authority of Nauru under United Nations, require observance by all interpreted the finding in the Monetary the Trusteeship Agreement. A decision on Members of the United Nations. The Court Gold: “while the presence in the Statute of Australia’s duties in that capacity would takes note that in these proceedings Austra- Article 62 might impliedly authorize con- inevitably and at the same time be a deci- lia has placed on record that it regards East tinuance of the proceedings in the absence sion on the identical duties of the remaining Timor as a non-self-governing Territory and of a State whose ‘interests of a legal nature’ two States. In other words, though the “sub- that it acknowledges the right of its people might be ‘affected,’ this did not justify con- ject-matter” was the same, the Court could to self-determination. tinuance of proceedings in the absence of a exercise its jurisdiction with regard to only Distinction between Involvement of In- State whose international responsibility one component State of the tripartite Ad- terests and Determination of Rights or would be ‘the very subject-matter of the ministering Authority. The Court said: “In Duties decision.’ The Court did not need to decide the present case, a finding by the Court what the position would have been had regarding the existence or the content of the 59. I shall start by recalling the distinc- Albania applied for permission to intervene responsibility attributed to Australia by tion between, on the one hand, a legal inter- under Article 62.” (ICJ Reports 1990, pp. Nauru might well have implications for the est or interests of a third State (here Indone- 115-116, para. 55.) legal situation of the two other States con- sia) being possibly or actually involved in, The Chamber then proceeded to explore cerned, but no finding in respect of that or affected by, the case (but no more than whether there existed, on the part of the legal situation will be needed as a basis for that) and, on the other hand, the ruling by third State (Nicaragua), an “interest of a the Court’s decision on Nauru’s claim the Court on such an interest or interests. In legal nature which [might] be affected by against Australia. Accordingly, the Court the latter hypothesis the legal interest or the decision,” so as to justify an interven- cannot decline to exercise its jurisdiction.” interests “would not only be affected by a tion, and then whether that interest might in (ICJ Reports 1992, pp. 261-262, para. 55.) decision, but would form the very subject- fact form “the very subject-matter of the 63. There is room for applying the con- matter of the decision” (Monetary Gold, ICJ decision” (ibid., p. 116, para. 56). The cept inherent in the foregoing dictum in Reports 1954, p. 32), and that decision (i.e., Chamber found that there existed, on the Nauru to the present case: no finding on the decision on the responsibility of the part of that third State, Indonesia creates a necessary “basis” for the third State) would become “a prerequisite” “an interest of a legal nature which jurisdiction with regard to Portuguese for the determination of the claim (cf. Cer- [might] be affected by its decision"; claims against Australia, nor is there any tain Phosphate Lands in Nauru, ICJ Reports but it came to the conclusion that necessary (“logical,” ibid., p. 261, para. 55) 1992, p. 261, para. 55; Judge Shahabud- “that interest would not be the ‘very link between the findings regarding Indone- deen, ibid., p. 296). The present case merely subject-matter of the decision’ in the sia and those concerning Australia (the “affects” or in a different manner “in- way that the interests of Albania were element of “a prerequisite”). volves” an interest or interests of Indonesia. in the case concerning the Monetary 64. But our problem is not limited to The rule of consent, as embodied in Article Gold removed from Rome in 1943” what results from applying the test of the 36 of the Statute, is maintained; had the (ibid., pp. 121-122, paras. 72 and 73). distinction made by the Monetary Gold Court assumed jurisdiction, it would not, 62. The criterion of the “very subject- rule. The practice of the Court amply shows and could not, pass on any rights and/or matter of the decision” is conclusive in that it is competent to decide bilateral dis- duties of Indonesia. That country is, in par- establishing the Court’s jurisdiction when putes on territorial titles (including titles to ticular, protected by Article 59 of the Stat- the interests of a third State are or seem to submarine areas), the delimitation of ute, whatever the possible broader effects of be at stake. As the Court said: “The circum- boundaries and the status of a territory or the Judgment. stances of the Monetary Gold case probably territorial entity. The latter subject is pre- 60. The nature, extent or degree of the represent the limit of the power of the Court sent in the case under consideration. What involvement of the legally protected inter- to refuse to exercise its jurisdiction;” other- the Court decides on these and similar is- ests, including the rights and duties, of a wise, I think, there would be doubt whether sues may be asserted with regard to all third State differ from case to case. The the Court was fulfilling its task and mission: States. In spite of the dispute being one Court must see whether it can decide on the “it must be open to the Court, and indeed its between two States such a decision of the claim without ruling on the interests of a duty, to give the fullest decision it may in Court is effective erga omnes. In the prac- third State. The involvement of these inter- the circumstances of each case, unless of tice of the Court (and the same is true of the ests cannot simply be equated with the de- course” the factor of the subject-matter of Permanent Court) the said category or cate- termination of the rights and/or duties of a the decision intervenes (Continental Shelf gories of subject-matter did not, and could third State by the Court, or with any deter- (Libyan Arab Jamahiriya/Malta), Applica- not, constitute a bar to the exercise of the mination concerning that State’s responsi- tion for Permission to Intervene, ICJ Re- jurisdiction in a dispute between two States bility. If a decision on the claim can be ports 1984, p. 25, para. 40; emphasis only, though the effect of the decision went separated from adjudicating with regard to a added). The duty to fulfil its function is a beyond the bilateral relationship. The latter Page 60 East Timor Documents, Volume 38. Timor Gap Case decided. circumstance was not regarded by the Court The Court is not required to exercise juris- adopt binding resolutions. By resolution as preventing it from rendering judgments. diction over any such State. Australia is not 2145 (XXI) the Assembly terminated the Examples are the Fisheries, Minquiers and the “wrong” opponent in the present pro- Mandate for South West Africa and stated Ecrhos, and Temple of Preah Vihear cases, ceedings, while Indonesia is not an oppo- that the Republic of South Africa had “no as well as the decisions on various continen- nent at all in them. The whole distinction in other right to administer the Territory.” This tal shelves. this case is both fictitious and not a genuine was not a recommendation. In the Namibia 65. Jurisdiction (and/or admissibility) one. case the Court explained (ICJ Reports 1971, cannot be questioned (as was done in the 69. In the Nicaragua case, Jurisdiction p. 50, para. 105): present case) because the bringing of a and Admissibility, the United States as- “it would not be correct to assume claim against a State may have conse- serted that the adjudication of Nicaragua’s that, because the General Assembly is quences which in fact go beyond that claim claim would necessarily implicate the rights in principle vested with recommenda- as would the decision of the Court were it to and obligations of some other Central tory powers, it is debarred from find in favour of the Claimant State. In American States, viz., Costa Rica, El Salva- adopting, in specific cases within the similar or identical circumstances another dor and Honduras. While rejecting this as- framework of its competence, resolu- State can reasonably expect a similar or sertion and pointing out that it had “in prin- tions which make determinations or identical decision by the Court. But here we ciple” merely to decide upon the submis- have operative design.” are moving on the plane of a factual situa- sions of the Applicant State, the Court said: 73. It is not clear why in the present case tion or factual possibilities. Such factual “There is no trace, either in the the Court seems in fact to look at the resolu- consequences of a claim and of a judgment Statute or in the practice of interna- tions of the Assembly on colonial issues in which the Court found in favour of the tional tribunals, of an ‘indispensable from a different angle. The Court neither Claimant State are something other than parties’ rule of the kind argued by the denies nor confirms their binding force. The that claim itself. These facts or factual pos- United States, which would only be Court says (Judgment, para. 32): sibilities do not turn the claim into a moot conceivable in parallel to a power, “Without prejudice to the question one, nor do they make a third State the only which the Court does not possess, to whether the resolutions under discus- object of the claim. The claims put forward direct that a third State be made a sion could be binding in nature, the by Portugal are real and are addressed to the party to proceedings.” (ICJ Reports Court considers as a result that they Respondent State; the non-participation in 1984, p. 431, para. 88.) cannot be regarded as ‘givens’ which the proceedings of a third State (Indonesia) Mutatis mutandis, this dictum is helpful constitute a sufficient basis for deter- does not deprive the Court of jurisdiction, in resolving the issue of the “right” or mining the dispute between the Par- nor does it make the Portuguese claims “wrong” opponent. Let me explain that I ties.” inadmissible. regard the rule stated as sound. I am not But in one, rather significant, instance 66. For in the present case the separation expressing any opinion on whether there the Court has recourse to a “given": it fol- of the rights and/or duties of Australia and was room for its application in the Nicara- lows the United Nations resolutions and Indonesia is both possible and necessary. A gua case or whether it was correctly applied qualifies Indonesian action against and in judgment on the merits should and could in the light of the existing evidence. East Timor as intervention (Judgment, have given expression to this separation. In 70. The basis for the decision on jurisdic- paras. 13 and 14). this case the vital issues to be settled (to tion and admissibility and, further, on the 74. The words, quoted in paragraph 73 borrow an expression from the Monetary merits is the status of East Timor. Under the above, raise another question. Do they con- Gold case, ICJ Reports 1954, p. 33), do not law of the United Nations, East Timor was cern jurisdiction or merits? The whole para- concern the international responsibility of a and, in spite of its incorporation into Indo- graph 32 of the Judgment seems to deal third State, i.e., Indonesia. nesia, remains a non-self-governing terri- with the merits. At the same time the Court 67. The case, there can be no doubt, in- tory in the sense of Chapter XI of the reduces this paragraph to consideration of volves or affects some interests of Indone- United Nations Charter. This issue, funda- the problem of “an obligation on third sia. But this fact is not a bar to the Court’s mental to the case, is governed by the law States to treat exclusively with Portugal as jurisdiction, nor does it make the various of the United Nations. Unless the Court regards the continental shelf of East Timor.” claims inadmissible. The Court’s practice, finds that the Organization acted ultra vires, An examination limited to that problem referred to above, corroborates this conclu- the Court’s opinion cannot diverge from obviously does not put the Court in a posi- sion. The interests of Indonesia are suffi- that law and from the implementation of the tion enabling it to bring forward all the ciently protected by the Statute of the rules of that law in the practice of the Or- arguments which would justify its negative Court. They do not constitute “the very ganization, especially as reflected in the conclusion on the “givens.” The latter con- subject-matter of the decision.” Hence the relevant resolutions of the General Assem- stitute a wider problem, not restricted to the Monetary Gold rule excluding jurisdiction bly and the Security Council[6]. issue of who can treat with whom. Also, the cannot be invoked in the present case: its 71. Under the law and in the practice of conclusion at the end of the first subpara- premise is lacking in the East Timor contro- the Organization the implementation of graph of paragraph 31 of the Judgment re- versy. Chapter XI of the Charter is part and parcel solves an issue of merits. United Nations Law and the Question of the functions of the General Assembly. 75. The Court links the continuity of the whether Indonesia is a Necessary Party In at least some issues falling under that status of the Territory, including the rele- Chapter Members States are not confronted vance of the principle of self-determination, 68. Contrary to what has been contended with mere recommendations: the Assembly first of all to the Parties’ position (Judg- by Australia, Portugal has not chosen the is competent to make binding determina- ment, paras. 31 and 37). But it is rather “wrong opponent.” In other words, this is tions, including determinations on the con- difficult to define the Court’s stance be- the issue of the “prerequisite” in the sense tinued classification of an area as a non- cause in the following passages the resolu- of Monetary Gold (paras. 59 and 63 above). self-governing territory or on the adminis- tions regain their autonomous significance. But in the present proceedings Portugal tering Power. It is not clear why the Court, after having asserts claims against Australia only, and 72. The Court accepts that in some mat- surveyed the United Nations acts, does not not against any absent State, i.e., Indonesia. ters the General Assembly has the power to take up the problem of “the legal implica- East Timor Documents, Volume 38. Timor Gap Case decided. Page 61 tions that flow from the reference to Portu- rather than Portugal and Australia” (para. formed to rules of law governing East gal as administering Power in those texts” 22). There is, no doubt, more than one dis- Timor. That problem can be decided by the (Judgment, para. 31); instead, the Court pute with regard to East Timor, but in this Court without linking its decision to any concentrates on treaty-making. That ques- case the Court has been seised of a specific prior or simultaneous finding on the con- tion is not fully examined and yet the Court dispute which qualifies for being decided on duct of another State (Indonesia) in the expresses some doubts regarding Portugal’s the merits. same matter. To exercise jurisdiction with claim to exclusivity in concluding agree- 79. There is yet another reason why the regard to Australia it is not necessary for the ments in and on behalf of East Timor. presence of Indonesia, a country which has Court to decide on the question of Indone- Again, incidentally, a problem of merits. an interest in the case (although it made no sian duties concerning the Territory. 83. In 76. The Court’s stance commented upon request concerning its possible interven- the Nicaragua case (Judgment on Jurisdic- in paragraphs 74-75 is in some contrast with tion), is not a precondition of adjudication. tion and Admissibility) the Court said: the Orders in Questions of Interpretation If the contrary were true, the Court would “There is no doubt that in appro- and Application of the 1971 Montreal Con- practically be barred from deciding when- priate circumstances the Court will vention arising from the Aerial Incident at ever the application of the erga omnes rule decline, as it did in the case concern- Lockerbie (ICJ Reports 1992, pp. 3 and or rules and the opposability of the legal ing Monetary Gold Removed from 114). These Orders respect the decision of situation so created were at stake; the Rome in 1943, to exercise the juris- the Security Council on the merits of the Court’s practice does not corroborate such a diction conferred upon it where the two cases, though that decision was adopted limitation (paras. 64 and 65 above). The legal interests of a State not party to after the close of the hearings (ibid., pp. 14- presence of a third State in the proceedings the proceedings ‘would not only be 15, paras. 34-42; and pp. 125-127, paras. before the Court (whether as party or inter- affected by a decision, but would 37-45) and the law, while leaving the Court vening) is not necessary for that organ to form the very subject-matter of the some freedom of choice, could be under- apply and interpret the United Nations reso- decision’ (ICJ Reports 1954, p. 32). stood as pointing to a different solution (see lutions, in particular to take note of their Where however claims of a legal na- the dissenting opinions, ibid., pp. 33 et seq. effect. ture are made by an Applicant against and 143 et seq.). In regard to East Timor, 80. Australia has presented itself to the a Respondent in proceedings before the subject-matter is regulated by law and Court as simply a third State which has the Court, and made the subject of by resolutions which make binding deter- responded to a situation brought about by submissions, the Court has in princi- minations. One would think that the Court Portugal and Indonesia. Without entering ple merely to decide upon those sub- cannot avoid applying the relevant rules. into the issue of the treatment of these two missions, with binding force for the But the Court prefers to maintain a certain States on the same level of causation, the parties only, and no other State, in ac- distance. Court can examine and determine the law- cordance with Article 59 of the Stat- 77. By taking cognizance of the status of fulness of Australia’s response to the said ute. ... [O]ther States which consider East Timor in United Nations law, resolu- situation. There is no essential requirement that they may be affected are free to tions included, the Court, would not be that, in the judicial proceedings devoted to institute separate proceedings, or to passing upon any Indonesian territorial or that examination and determination, Indo- employ the procedure of interven- other rights, duties, jurisdiction or powers. nesia be a party. It is enough for Portugal to tion.” (ICJ Reports 1984, p. 431, para. In this case the Court would not require any prove her claim against Australia. 88.) proof of that status on the part of Portugal. 81. The conclusion is that Indonesia is Without there being any need to express Nor is any finding on Indonesian conduct not a necessary party, i.e., one without an opinion on the issue of third States in the and position necessary to adjudication upon whose participation the Court would be Nicaragua case (see para. 69 above), the Portuguese claims. Interestingly enough, the prevented by its Statute from entertaining approach exemplified by this dictum should Judgment qualifies the Indonesian action as the Application. Nor is Indonesia the “true” have been followed in this case. intervention (paras. 13 and 14). Will this party[7]. The dispute brought before the 84. In the present case the judgment in have its effects? Intervention (particularly Court is one different from a potential or Monetary Gold is fully relevant as a state- military) is by definition unlawful and pro- existing dispute between Portugal and Indo- ment of the noncontroversial rule (or prin- duces no rights or title until there is a deci- nesia, even though some questions at issue ciple) of the consensual basis of jurisdic- sion by the United Nations validating its are or may be identical. tion. The Court has been corroborating this consequences or until there is universal Subject-matter of the Decision rule since the very outset of its activity (cf. recognition. Corfu Channel case, Preliminary Objection, 82. The rights of Indonesia could not, 78. The law of the United Nations is ICJ Reports 1948, p. 27). It is a rule of its need not and would not constitute any binding on all Members States. The status Statute, which fact is decisive. Further, “formal” or “actual” subject-matter of the of a territory, in view of its objective nature, there can be no doubt regarding the rele- decision on the merits. The claims submit- is opposable not only to each of them but vance of the distinction between legal inter- ted by Portugal are distinct from the alleged also to non-Members. This applies to the ests of a third State which are merely af- rights, duties and powers of Indonesia. non-self-governing Territory of East Timor. fected by the decision and its legal interests There is no difficulty in separating the sub- Also, the right of the East Timorese people which “would form the very subject-matter” ject-matter of the present case from that of a to freely determine their future and the posi- of the decision (Monetary Gold, ICJ Re- theoretical case between Portugal and Indo- tion of the administering Power are oppos- ports 1954, p. 32). But the whole structure nesia. The fact of the incorporation of East able to every State (and this includes Aus- of the problem in Monetary Gold is differ- Timor is (or would be) the same for the two tralia). Therefore, in this context, it is erro- ent from that in East Timor. In the former cases, the existing one and the imaginary neous to regard Australia as the “wrong” the determination whether one country (It- one. But the rights and duties of Indonesia respondent and Indonesia as the “true” one. aly) was entitled to receive the property of and Australia are not mutually interdepend- The present case does not justify such a another (Albanian gold) depended on a ent; the contents of some of them are identi- contradistinction. Nor, as the Court ex- prior determination whether the other State cal, yet this is irrelevant to the problem plains, is it “relevant whether the ‘real dis- (Albania) had committed an internationally whether a specific State (Australia) con- pute’ is between Portugal and Indonesia wrongful act against the former (Italy) and Page 62 East Timor Documents, Volume 38. Timor Gap Case decided. was under an obligation to pay compensa- assessing the various United Nations resolu- under United Nations norms. To declare tion to it. In the East Timor case the posi- tions on East Timor in relation to the rights how these norms define that status the Court tion of Indonesia cannot be compared to and duties of Australia the Court would not need not make any finding concerning In- that of Albania in the Monetary Gold. In the be breaking the rule of the consensual basis donesia. present case we are dealing with the duties of its jurisdiction. 91. The link between the claims which which the countries have by virtue of their 87. The Court has always been sensitive Portugal makes vis-à-vis Australia and the obligation to respect the status of East regarding the limits of its jurisdiction. In claims Portugal has or might have made Timor as determined by the United Nations. Continental Shelf (Tunisia/Libyan Arab elsewhere against Indonesia (i.e., not before These duties are not interconnected: the Jamahiriya), Application for Permission to this Court) is of a factual nature. Both obligation of any Member State of the Intervene, the Court emphasized that “no groups of claims concern the situation in United Nations to abide by the law govern- conclusions or inferences may legitimately East Timor. That link does not suffice to ing East Timor is autonomous. In Monetary be drawn from [its] findings or [its] reason- make the adjudication between Portugal and Gold one claim could be adjudicated only ing with respect to rights or claims of other Australia dependent upon a prior or at least after a different claim to compensation was States not parties to the case” (ICJ Reports simultaneous decision on the (potential or first granted. That is not the construction of 1981, p. 20, para. 35). Applied, as it was, in existing) claims of Portugal against Indone- the case now before the Court. With respect, the quoted case to Malta, there is no doubt sia. In contrast with the situation in the I have the impression that in this case the that this rule protects the interests of Indo- Monetary Gold case, the decision of the Court has gone beyond the limit of the op- nesia in the present litigation. Court in the dispute between Portugal and eration of Monetary Gold. 88. One can also add that in all systems Australia would not be based on the obliga- 85. Moreover, the rule of Monetary Gold of law courts take judicial notice of matters tion and responsibility of Indonesia (cf. is one governing jurisdiction, and not one of public knowledge. This category com- Judge Shahabuddeen in Certain Phosphate preventing the Court from basing itself on prises, inter alia, historical events such as Lands in Nauru, ICJ Reports 1992, p. 297). determinations made by the Security Coun- war, aggression, invasion and the incorpora- 92. Australia’s obligations resulting from cil or the General Assembly with regard to a tion of territory. Indonesia’s action in re- the duty to respect the United Nations status dispute or a situation, including the position gard of East Timor falls under this heading. of East Timor are identical with or similar or conduct of another State. By taking ac- Taking account of such facts and drawing to those of other Member States of the Or- count of such “external” determinations the conclusions on their basis is not a usurpa- ganization. But that identity (or similarity) Court is not making any finding of its own tion of jurisdiction. does not mean that Portugal needs to rely on on the interests of a non-party to the pro- Indonesian Control over East Timor this fact or that the Court must or needs to ceedings. The Court, as already indicated found its judgment on it. One might reiter- 89. A decision on the legality of “the (para. 100 above), cannot ignore the law of ate here what Judge Shahabuddeen said on presence of Indonesia in East Timor” is not the United Nations as applied by the Or- the position of Australia in another case, a prerequisite to a decision on Australia’s ganization’s other principal organs provided viz., in Certain Phosphate Lands in Nauru: responsibility. That is the difference as they act within their Charter powers. Thus it “That others had the same obliga- compared with Monetary Gold, especially is not Portugal which, before the Court, tion does not lessen the fact that Aus- as interpreted in Certain Phosphate Lands in challenges Indonesia’s occupation of East tralia had the obligation. It is only Nauru (paras. 86 and 89 above). But the Timor, its position as the proper State to with Australia’s obligation that the said decision is implicit in the description of represent the interests of the Territory, and Court is concerned.” (ICJ Reports the Indonesian conduct as intervention generally the conformity of its actions with 1992, p. 297.) (Judgment, paras. 13 and 14). the self-determination of the East Timorese The Portuguese Application is directed 90. In the present case there it is not nec- people. The challenge came much earlier towards certain Australian acts and their essarily implied that the Court should de- from the United Nations[8]. By now taking conformity, or otherwise, with the United termine the status of Indonesia in East judicial notice of the relevant United Na- Nations status of East Timor, not towards Timor. The Court need only refer to the tions decisions the Court does not adjudi- the acts of Indonesia. In this case a decision status of East Timor in the law of the United cate on any claims of Indonesia nor does it on the submissions of the Applicant State Nations and its implementing resolutions. It turn the interests of that country into the would not constitute a determination of the is on Australia’s own acts related to the “very subject-matter of the dispute.” responsibility of the non-party (Indonesia), latter status that Portugal rests its claim. It is 86. The Court is competent, and this is with all the legally dispositive effects such a also in that status alone that one would pos- shown by several judgments and advisory determination would or might carry. Timor sibly find the answer to the question regard- opinions, to interpret and apply the resolu- Gap Treaty ing which country is competent to conclude tions of the Organization. The Court is 93. Let us begin by clarifying one point. treaties concerning East Timorese interests. competent to make findings on their lawful- The Court has no jurisdiction to make a Contrary to what is stated in the Counter- ness, in particular whether they were intra finding on the invalidity of the Timor Gap Memorial (para. 212) the Court need not vires. This competence follows from its Treaty: the Court must stop short of a de- determine “the legal status of the Indone- function as the principal judicial organ of termination to this effect. For the purpose of sian administration of East Timor at and the United Nations. The decisions of the the present proceedings the Treaty remains since 11 December 1989, i.e., at the time of Organization (in the broad sense which this valid. That validity prevents the Court from and since the making of the Timor Gap notion has under the Charter provisions on ordering any measures aimed at the non- Treaty.” The Court needs only to say what, voting) are subject to scrutiny by the Court performance of the Treaty. Its actual, possi- under United Nations law and resolutions, with regard to their legality, validity and ble or potential consequences of a harmful the status of East Timor in the relevant pe- effect. The pronouncements of the Court on nature for the people of East Timor cannot riod was and now is. Nor is a “decision on these matters involve the interests of all be determined by the Court. A ruling on the Indonesia’s claim to sovereignty ... a pre- Member States or at any rate those which validity, or otherwise, of the Treaty would requisite to any finding of Australian re- are the addressees of the relevant resolu- require the participation of Indonesia in the sponsibility” (contra: ibid.). Again, the key tions. Yet these pronouncements remain present case. Both the Applicant and the to the problem is the status of the Territory within the limits of Monetary Gold. By Respondent (though in somewhat different East Timor Documents, Volume 38. Timor Gap Case decided. Page 63 contexts) quote the judgments of the Central Maritime and related interests of the Terri- claim for the protection of its powers which American Court of Justice in Costa Rica v. tory were also at stake, not only those of serve the interests of the people of East Nicaragua (1916) and El Salvador v. Nica- Australia. There is no question of equating Timor. ragua (1917) (Counter-Memorial, para. 189; the position of third States (one of them 102. It was said by a Co-Agent and Reply, paras. 7.21 and 7.22). The validity of being Australia) to the responsibilities of counsel of Australia that “to have standing, the Timor Gap Treaty is not a subject of the States which, like Portugal, have been Portugal must point to rights which it pos- dispute. Portugal does not request the Court charged with the administration of a terri- sesses” (CR 95/8, p. 80, Mr. Burmester). to declare the Treaty invalid. tory or territories under Chapter XI of the Portugal has standing because, in spite of all 94. But a finding on the lawfulness of Charter. But the non-administrators also the factual changes in the area, she still some unilateral acts of Australia leading to have some duties. Did Australia fulfil them? remains the State which has responsibility the conclusion of the Treaty or constituting This question does not trigger the Monetary for East Timor. This standing follows from its application is another matter. Juridically Gold rule; the Court is competent to answer the competence Portugal has in its capacity speaking the negotiation, conclusion and it. as administering Power. One of the basic performance of a treaty are acts in law (ex- elements of that competence is the mainte- pressions of the will or intention of a legal B. ADMISSIBILITY nance and defence of the status of East person). To be effective in law, they must General Timor as a non-self-governing territory; this conform to the legal rules governing them. 97. Generally, the issue of admissibility is the administering Power’s duty. Portugal Several of these acts are unilateral in con- has already been touched upon in some of has the capacity to sue in defence of the tradistinction to the treaty itself. If a case the preceding paragraphs. In this case, be- right of the East Timorese people to self- involves the lawfulness or validity of any of fore starting a discussion on admissibility, determination. Portugal could also rely these acts, and this is a “question of interna- the Court had first to decide on its jurisdic- generally on the remaining attributes of its tional law” under Article 36, paragraph 2, of tion. In view of its conclusion, there was no sovereignty over East Timor, such attributes the Statute, the Court is competent to re- room for considering admissibility. In the being conducive to the fulfilment of the task view the said conformity and, consequently, present case admissibility or otherwise can under Chapter XI of the Charter. On the one decide on the lawfulness or validity of the be resolved after the examination of the hand, Portugal says that it does not raise act. Historically and sociologically speaking substance of the several claims submitted any claim based on its own sovereign rights; the negotiation, conclusion and performance by Portugal. Indeed, Australia points to the in some contexts it even denies their exis- of a treaty are facts. And various facts are inextricable link between the issue of ad- tence (Memorial, paras. 3.08 and 5.41 and also subject to judicial review the extent of missibility and the merits (Counter- Reply, para. 4.57). On the other hand, Por- that review depending on the law of the Memorial, para. 20). tugal invokes its “prerogatives in regard to country or, in international relations where 98. It has already been noted that al- sovereignty” (Reply, para. 4.54). At any there is no central judiciary, on the particu- though it asked the Court to adjudge and rate, it is erroneous to argue that the depar- lar provisions of treaty law. declare that it lacked jurisdiction, Australia ture from East Timor in 1975 of the Portu- 95. The Court is competent to make a dealt with the case principally under the guese authorities resulted in bringing “to an finding on whether any of the unilateral acts heading of admissibility, her “submissions end any capacity [Portugal] had to act as a of Australia conducive to the conclusion, on the merits [having] only a subsidiary coastal State in relation to the territory” entry into force and application of the character” (Counter-Memorial, para. 20; as (Counter-Memorial, para. 237). Such an Timor Gap Treaty constituted an interna- to the admissibility, or rather inadmissibil- opinion is contrary to both the law of bel- tional wrong. By concentrating exclusively ity, see ibid., Part II, and Rejoinder, Part I). ligerent or military occupation and the on such acts the Court in no way deals with 99. The emphasis on admissibility or United Nations law on the position of the any treaty-making acts of Indonesia. The otherwise has not been lessened, let alone administering Power. Court remains within the limits of an as- eliminated, by what Australia alleged on the 103. Portugal may be said not to have sessment which is covered by its jurisdic- non-existence of the dispute in the present any interest of its own in the narrow sense tion and which is admissible. The Court case (paras. 34-38 above). of the term, i.e., a national interest, one of a would fulfil its task by examining these acts myriad of interests which States have as Applicant State’s jus standi in the light of Australia’s duties under individual members of the international United Nations law and especially that body 100. The present case does not “involve community. However, Portugal received a of its provisions which is being called the direct harm to the legal rights of the plain- “sacred trust” under Chapter XI of the Char- “law of decolonization.” tiff State in a context of delict,” but it is one ter. It is taking care of interests which, it is 96. In order to examine whether Austra- in which the claim is grounded “either in a true, are also its own, but primarily they are lia’s conduct leading to the conclusion of broad concept of legal interest or in special shared by all United Nations Members: the the Timor Gap Treaty was or was not conditions which give the individual State Members wish the tasks set down in Chap- wrongful, it is not necessary for the Court to locus standi in respect of legal interests of ter XI to be accomplished. Australia also determine the wrongfulness of Indonesia’s other entities” [9]. East Timor is such an adopts the stance of favouring the imple- control over East Timor. It is enough to test entity. mentation of Chapter XI. Yet there is a the Australian conduct against the duty 101. In this case there is a conflict of le- sharp difference between the two States on Australia had and has to treat East Timor as gal interests between Portugal and Austra- how to proceed in the complex question of a non-self-governing territory. While pro- lia. Several times during the proceedings East Timor and what is lawful in the cir- tecting her maritime rights and taking steps Australia admitted that Portugal was one of cumstances. That is a matter which should to preserve her natural resources, Australia the States concerned. That admission was have been decided by the Court. However, had (in the circumstances) some obligations made in order to contrast it with the capac- through its decision on jurisdiction, this towards the Territory: she dealt not with the ity to appear before the Court in this case, distinguished Court barred itself from that administering Power, but with Indonesia, a which Australia denied. However, to have possibility. Had this not been the case, the State which was not authorized by the jus standi before the Court it is enough to Judgment would have eliminated a number United Nations to take over the administra- show direct concern in the outcome of the of uncertainties from the legal relations tion of the Territory, and yet controlled it. case. Portugal has amply shown that it has a between the Parties and, more generally, Page 64 East Timor Documents, Volume 38. Timor Gap Case decided. some uncertainties regarding a non- self- sent case falls under this heading. General 111. In the question of East Timor there governing territory which has been incorpo- Assembly resolution 3485 (XXX) speaks of are points of interpretation and application rated into a State without the consent of the “the responsibility of the administering of law where recourse to the Court is useful. United Nations. At any rate, it is clear that Power to undertake all efforts to create con- These points are not abstract, they are not an actual controversy exists. What doubt ditions enabling the people of Portuguese “an issue remote from reality” (to use the could there be regarding the locus standi? Timor to exercise freely their right to self- expression employed in Northern Camer- 104. I think that Portugal meets the rigid determination ....” The exercise of that re- oons, ICJ Reports 1963, p. 33, and referred criteria laid down by President Winiarski sponsibility, including the choice of means, to in the oral pleadings, CR 95/9, p. 27, with regard to having “a subjective right, a is a matter to be decided by the administer- para. 17, 8 February 1995 and CR 95/15, p. real and existing individual interest which is ing Power acting alone or in conjunction 51, para. 9, 16 February 1995, Prof. Craw- legally protected,” (South West Africa, with the United Nations. ford; he expressed a contrary view). The Preliminary Objections, ICJ Reports 1962, 107. In the present case the choice was pleadings have shown that there are legal p. 455). In that case Ethiopia and Liberia between, on the one hand, entertaining the issues between the parties which the Court asserted that they had “a legal interest in case upon the merits and, on the other, re- could resolve without the participation in seeing to it through judicial process that the fusing to adjudicate. A policy of abstention the case of any other State (i.e., Indonesia). sacred trust of civilization created by the does not seem a better solution. Considera- Even if it is taken for granted that “the un- Mandate is not violated.” To this the tions of public policy speak in favour of the derlying dispute is only suitable for resolu- learned Judge replied: “But such a legally pronouncement of the Court on the merits. tion by negotiation” (Counter-Memorial, protected interest has not been conferred on Such a pronouncement is more likely to para. 316), it is not true that the dispute them by any international instrument ...” contribute to the settlement of the problems submitted to the Court (which should be (ibid., p. 456). Portugal has the United Na- submitted to it. These problems, or at any distinguished from the “underlying” one) is tions Charter behind it. rate some of them, are ripe for solution by not suited to adjudication. Judge Sir Robert the application of international law. Jennings reminds us that C. “JUDICIAL PROPRIETY” 108. The legal components of a dispute “it could usefully be more gener- General resulting from the question of East Timor ally realized that the adjudication 105. There is no mention of the issue of need not necessarily be submitted to the method is not necessarily an inde- propriety in the Judgment. But would it be Court only by way of a request for an advi- pendent one and can very well be going too far to say that, implicitly, the sory opinion (as Australia asserted). Litiga- used as a complement to others such Court has admitted that at least entertaining tion is not excluded. as negotiation” [11]. this case was not, at the stage reached by A Justiciable Dispute? The learned Judge gave the example of the North Sea Continental Shelf cases, but the Court, contrary to “judicial propriety”? 109. The resolution of the dispute be- that model is not exclusive. The Court might as well begin considera- tween Portugal and Australia does not con- 112. One can also look at our problem tion of the case by examining the issue of flict with the Court’s “duty to safeguard the from a somewhat different angle: there are propriety. For, as Judge Sir Gerald Fitzmau- judicial function” (Northern Cameroons, disputes where the settlement does not con- rice has pointed out, that issue ICJ Reports 1963, p. 38). In other words, stitute a single operation. The settlement is “is one which, if it arises, will exist adjudication on the merits will be consistent or becomes a process. Such is the nature of irrespective of competence, and will with the Court’s judicial function (cf. ibid., the question of East Timor. Adjudication is make it unnecessary and undesirable p. 37). The present dispute is justiciable. part of the process and there is no reason for for competence to be gone into, so 110. The written and oral pleadings am- eliminating it. that there will be no question of the ply show that there is, in this case, “an ac- Court deciding that it has jurisdiction tual controversy involving a conflict of SECTION IV: THE TERRITORY but refusing to exercise it” (Northern legal interests between the parties.” By OF EAST TIMOR Cameroons, ICJ Reports 1963, p. addressing itself to the submissions of Por- 106). tugal the Court and its judgment will affect A. STATUS Neither in the Charter nor in the Statute the legal rights and obligations of the par- 113. “The Court recalls ... that it has is there any suggestion as to which legal ties, “thus removing uncertainty from their disputes “might be regarded as prima facie taken note in the present Judgment (para. legal relations.” Consequently, the “essen- 31) that, for the two Parties, the Territory of suitable for judicial settlement ...” [10]. tials of the judicial function” could and, Here the question should be asked whether East Timor remains a non-self-governing indeed, would be satisfied (Northern Cam- territory ...” (Judgment, para. 37). And so it the political stratum and implications of the eroons, ICJ Reports 1963, p. 34). In this case (including those of a judgment on the is, one may conclude on the basis of the case there is a legal dispute between the two decision, for the Court. It is a matter of merits) are of a nature to make the judicial parties which the Court, if it wishes to be process inappropriate. regret that this important affirmation did not true to its function, cannot refuse to resolve. find its place in the dispositif. 106. Meanwhile it may be pointed out For a necessary consequence of the exis- that Portugal “as administering Power” was tence of any dispute, including the present No Change of Status called upon by the Security Council in its one, is the party’s (i.e., Portugal’s) interest 114. Since 1960 East Timor has continu- resolution 384 (1975) “to co-operate fully in securing a decision on the merits (here I ally appeared and still appears on the with the United Nations so as to enable the am following the concept of dispute as ex- United Nations list of non-self-governing people of East Timor to exercise freely their plained by Judge Morelli, ibid., p. 133, territories. The United Nations maintains right to self-determination.” The reference para. 3). Portugal has shown sufficient in- that status of East Timor. Only the Organi- to co-operation with the Organization does terest for the Court to consider the case. zation can bring about a change. Rejection not exclude individual actions by Portugal, That interest persists, and the controversy of the status by the original sovereign i.e., actions not coordinated with the United between the two States has not yet come to power; or the use of force by another coun- Nations, which are or can be related to the an end. try to gain control over the territory; or task of self-determination. Portugal’s Ap- recognition by individual States of the fac- plication instituting proceedings in the pre- East Timor Documents, Volume 38. Timor Gap Case decided. Page 65 tual consequences of the recourse to force - territory under Chapter XI. Australia but points to them in the context of treaty- none of these unilateral acts can abolish or recognized this position long before making power, not of recognition. The latter modify the status of non-self-government. Portugal accepted it in 1974. It has point is made by Australia. That argument That status has its basis in the law of the repeated this position, both before and is misleading in the sense that no recogni- Organization and no unilateral act can pre- after its recognition of Indonesian tion can be implied from the tax treaties. vail over that law. sovereignty and it says so now.” They do not deal with territorial problems, 115. It is true that over the years and in 118. At the same time Australia does not and they do not refer explicitly to East some respects, the language of the resolu- seem to exclude that, in the meantime, the Timor, but concern Indonesian territory tions of the General Assembly has become Territory’s legal position might have be- under Indonesian legislation for tax pur- less decisive and less definite and the ma- come adjusted to the facts created by Indo- poses alone. This is an issue that could be jorities smaller. But this is a development of nesia. Has there been such an adjustment? regulated by the contracting parties without the political approach and the effect of the The language of the Timor Gap Treaty and detracting from the posture of non- search for a solution through channels other of some official statements (cf. paras. 127 recognition (if it was adopted) or without than the Security Council or the General and 139 below) can be perceived as entailing recognition. On the other hand, the Assembly. The constitutional position under supporting the concept of change, not of Timor Gap Treaty refers to “the Indonesian Chapter XI of the Charter has not changed. continuity. To be more specific, the position Province of East Timor” and is based on the Nor have the Geneva consultations under of Australia is ambivalent for three reasons. assumption of Indonesian sovereignty over General Assembly resolution 37/30, cur- 119. First, there is the basic difficulty in that area, which sovereignty Australia has rently in progress, brought about any modi- reconciling Australia’s recognition of Indo- recognized. fication of the Territory’s status. nesian sovereignty with the continuing 123. Let me observe that in matters of 116. Obviously, we are confronted by status of non-self-government, a difficulty violent changes resulting in the imposition certain facts which may be long- lived. all the greater since Indonesia denies the of foreign rule or dominant foreign influ- Australia rightly maintained that the rejec- existence of that status. Does not recogni- ence a longer perspective is necessary. Re- tion of the United Nations status of the Ter- tion inevitably mean that Australia has con- cent history has again shown that what for ritory by Portugal in the period 1955-1974 sented to the Indonesian concept of what the many years was regarded as almost perma- did not change the legal status of East Territory now is? nent and immutable collapsed under our Timor. It is therefore difficult to understand 120. Second, another source of difficulty eyes - an outcome which the proponents of how, at the same time, Australia argues the is doubts regarding the legal basis for an Realpolitik and of consent to accomplished effectiveness of the incorporation of East identical and equal treatment by Australia facts did not foresee. We were told, in con- Timor into Indonesia, and in particular the of the two countries (Portugal and Indone- nection with East Timor, that “the realities contribution made to this effectiveness by sia) as successive sovereigns of East Timor of the situation would not be changed by acts of recognition of that incorporation. (see para. 117 above). Portugal’s title to our opposition to what had occurred” (the The status of East Timor in law has re- sovereignty is not comparable with Indone- position of the United States, quoted in mained the same ever since Portugal be- sia’s claim. Since 1974 Portugal has con- Rejoinder, para. 47). For the time being, came a Member of the Organization and the formed to the rule of the Friendly Relations that may be true. Yet we all know of in- United Nations subsumed East Timor under Declaration[12]. stances where there was opposition and Chapter XI of the Charter. It is a status de- 121. Third, one must equally note a gen- various “realities” proved to be less resis- fined by the law of the United Nations. eral tendency on the part of Australia to tant to change than Governments might Unilateral acts - by Portugal during the emphasize the significance of the fact that have thought. dictatorship period, and now by Indonesia Portugal “has no governmental control” 124. In the present case the Court pre- since 1975 and by the few States which over East Timor and has no “territorial ferred not to consider the problem of the granted recognition - have had and continue presence” there (CR 95/8, p. 79). I would non-recognition of a situation, treaty or to have no primacy over that law. not contend that such an assertion necessar- arrangement which came into being by The Position of Australia ily shows preference of fact over law, yet means contrary to the prohibition of “the the tendency blurs the attitude of Australia threat or use of force against the territorial 117. In spite of various qualifications on the status of the Territory, especially as integrity or political independence of any which Australia sometimes introduced in Indonesia does not regard itself as a new State, or in any other manner inconsistent presenting this part of the case, it must be “administering Power.” with the Purposes of the United Nations” assumed, on the strength of her words, that (Art. 2, para. 4, of the Charter). However, she acknowledges that East Timor is still a Recognition and Non-recognition when stating or confirming the principles non-self-governing territory. “Australia has 122. It is convenient to dispose, at the relevant to the case this restraint is not the never recognized the legality of Indonesia’s outset, of the argument on the analogy be- only possible posture. original acquisition of the territory of East tween the Timor Gap Treaty and some of 125. The policy of non-recognition, Timor” (Rejoinder, para. 224). It also refers the treaties for the avoidance of double which goes back to before the First World to the change in the person of the State now taxation concluded by Indonesia. Australia War, started to be transformed into an obli- in control of the non-self-governing terri- has drawn attention to these treaties gation of non- recognition in the thirties. tory (Indonesia taking the place of Portu- (Counter-Memorial, pp. 213-218, Appendix Through the Stimson doctrine, the United gal). This implies that, in this respect, the C; Rejoinder, paras. 52-54; for the Portu- States of America played a pioneering - and status (as such) of East Timor did not guese view, see Reply, para. 6.14). The beneficial - role in this development[13]. change. The Agent and counsel for Austra- Court mentions in general terms (i.e., with- The rule or, as Sir Hersch Lauterpacht lia said (CR 95/14, p. 13): out indicating their category or subject) says[14], the principle of non-recognition “Australia recognizes that the peo- “treaties capable of application to East now constitutes part of general international ple of East Timor have the right to Timor but which do not include any reser- law. The rule may be said to be at present in self-determination under Chapter XI vation in regard to that Territory” (Judg- the course of possibly reaching a stage of the United Nations Charter. East ment, para. 32). The Court does not make when it would share in the nature of the Timor remains a non-self-governing any explicit inference from these treaties principle of which it is a corollary, i.e., the Page 66 East Timor Documents, Volume 38. Timor Gap Case decided. principle of the non-use of force. In that recognition. The argument, if put forward 133. The dichotomy between fact and hypothesis non-recognition would acquire without any qualification, is unacceptable; law permeates this case. I have already the rank of a peremptory norm of that law admitted unconditionally, it could sap the touched upon one aspect of it in paragraph (jus cogens). But that is a future develop- foundation of any legal rule. 123 above. In this opinion it is not possible ment which is uncertain and has still to 129. While recognition of States or Gov- to discuss generally the role of the factual happen. The Friendly Relations Declara- ernments is still “a free act,” it is not so with element, of facts, as a source of rights, obli- tion[15] correctly states the law on the sub- regard to the irregular acquisition of terri- gations and powers. But it would be too ject: “No territorial acquisition resulting tory: here the discretionary nature of the act simple to dismiss the continued United Na- from the threat or use of force shall be rec- has been changed by the rule on the prohibi- tions status of East Timor and of Portugal as ognized as legal.” Contrary to what has tion of the threat or use of force. being remote from the facts. Whenever it been asserted (Counter- Memorial, para. 130. As indicated above (para. 125) the comes to an unlawful use of force, one 365; Rejoinder, para. 74) the obligation not rule of non-recognition operates in a self- should be careful not to blur the difference to recognise a situation created by the executory way. To be operative it does not between facts and law, between the legal unlawful use of force does not arise only as need to be repeated by the United Nations position and the factual configuration. Even a result of a decision by the Security Coun- or other international organizations. Conse- in apparently hopeless situations respect for cil ordering non-recognition. The rule is quently, the absence of such direction on the law is called for. In such circumstances self-executory. the part of the international organization in that respect should not mean taking an un- 126. But apart from what has been said a particular instance does not relieve any realistic posture. History gives us surprises. in paragraph 125 above, there is room for State from the duty of non-recognition. Nor Contemporary history has shown that, in the the view that the United Nations rejected does the absence of “collective sanctions” vast area stretching from Berlin to Vladi- the possibility of recognition. For the Secu- have that effect. Australia espouses a con- vostok, the so-called “realities,” which more rity Council called upon “all States to re- trary view (Counter-Memorial, paras. 355 often than not consisted of crime and law- spect the territorial integrity of East Timor” and 356; and Rejoinder, para. 229). lessness on a massive scale, proved to be (resolutions 384 (1975) and 389 (1976), 131. The Court has not been asked to ad- less real and less permanent than many para. 1 in each of them) and the General judicate or make a declaration on non- assumed. In matters pertaining to military Assembly also made a reference to East recognition in regard to the Indonesian con- invasion, decolonization and self- Timor’s territorial integrity (resolution 3485 trol over East Timor. But let me restate the determination, that peculiar brand of real- (XXX), para. 5; this resolution was reaf- question: can the Court avoid this issue ism should be kept at a distance. And one firmed by the Assembly in 1976-1978). when it states certain principles? Non- cannot accept that Chapter XI disregards the What else can this mean but prohibition to recognition might protect or indeed does problem of the legality of the administration do anything that would encroach upon the protect the rights to self-determination and of a non-self-governing territory. integrity of the Territory? Recognition of it to permanent sovereignty over natural re- as a province of Indonesia is contrary to the sources. Any country has the corresponding B. SELF-DETERMINATION resolutions cited. The Assembly rejected the duty to respect these rights and no act of “Essential Principle” integration of East Timor into Indonesia recognition can release it from that duty. In 134. The Court states that the principle (para. 24 above). other words, it might be necessary to con- of self-determination “is one of the essential 127. Yet Australia recognized Indone- sider whether there is any link between principles of contemporary international sia’s sovereignty over East Timor; on this Australia’s attitude towards the Indonesian law.” The right of peoples to self- occasion it also questioned the legal charac- annexation and her duties with regard to determination “has an erga omnes charac- ter of the rule of non-recognition[16]. East Timor. Such a determination would not ter.” The Court describes the relevant asser- Sometimes less precise language was used: amount to delivering any judgment on In- tion of Portugal as “irreproachable” (Judg- it was said during the oral pleadings that donesia, for the Court would limit itself to ment, para. 29). The Court also recalls that Australia “recognized the presence of Indo- passing upon a unilateral act of Australia. “it has taken note in the present Judgment nesia in East Timor” (Pellet, 7 February That act, contrary to Australia’s view (para. 31) that, for the two Parties, ... [the] 1995, CR 95/8, p. 10, para. 3). Strictly (Counter-Memorial, para. 350), means more people [of East Timor] has the right to self- speaking “presence” could mean less than than mere acknowledgement that Indonesia determination” (para. 37). It is a matter of “sovereignty.” “is in effective control of the territory” regret that these important statements have 128. The Australian justification was ex- while the recognizing Government is will- not been repeated in the operative clause of pressed in the following terms: “As a prac- ing “to enter into dealings with that State or the Judgment. tical matter, Australia could not have government in respect of territory.” Recog- 135. In the opinion of Judge Bedjaoui, avoided the decision to recognize Indonesia nition leads to the validation of factual con- President of the Court, self-determination [sic], and to negotiate with a view to mak- trol over territory and to the establishment has, in the course of time, become “a pri- ing a treaty with it on the Timor Gap, if it of corresponding rights. mary principle from which other principles was to secure and enjoy its sovereign rights 132. The attitude of non-recognition may governing international society follow” (un there. There was no other State with which undergo a change by virtue of a collective principe primaire, d’o dcoulent les autres it could have negotiated and concluded an decision of the international community. In principes qui régissent la socièté interna- effective agreement. No arrangement with law, there is a fundamental difference be- tionale). It is part of jus cogens; conse- Portugal could have achieved Australia’s tween such a decision and individual acts of quently, the “international community could legitimate object, since Portugal did not recognition. Judge Sir Robert Jennings not remain indifferent to its respect” (“la control the area in question and there was wrote of “some sort of collectivisation of communauté internationale ne pouvait pas not the slightest prospect that it would do so the process, possibly through the United rester indifférente son respect”). States, both in the future.” (Counter-Memorial, para. Nations itself ...” [17]. But up till now noth- “individually and collectively,” have the 354.) ing of the sort has happened with regard to duty to contribute to decolonization which However, the problem cannot be reduced East Timor. Nor is there any consolidation has become a “matter for all” (“une affaire to “practical” considerations. They do not of the Indonesian “title” through other de tous”)[18]. According to Judge Ranjeva relieve the State of the duty of non- means. “[t]he inalienability of the rights of peoples East Timor Documents, Volume 38. Timor Gap Case decided. Page 67 means that they have an imperative and which we subsequently endorsed within or with another State, or a degree of absolute character that the whole interna- when we came into office. autonomy within another State. I think that tional order must observe” [19]. Judge Self-determination in that context, is important background. Mbaye interprets self-determination in con- and in the way in which that expres- In the case of East Timor, Australia rec- junction with “the principle of inviolability sion is being used a lot internationally ognises that the people of East Timor do of borders” [20]. That link additionally these days, does mean genuine respect have a right of self-determination - to emphasizes the incompatibility of the forci- for different ethnicity and genuine re- choose, in effect, how they are governed. ble incorporation of a non-self-governing spect for human rights claims of par- This has been Australia’s position since territory with the requirement of self- ticular groups within larger national before the events of 1975, and it has never determination. or State entities. That is the kind of been reversed. The United Nations, in rela- 136. By virtue of Chapter XI of the thing we are talking about. In that tion to East Timor, has certainly recognized Charter the East Timorese right to self- context, some kind of special political that there can be no solution to self- determination is the focal point of the status autonomy or special status - of the determination and related issues without the of the Territory. This has been confirmed by kind, for example, that exists in Jog- cooperation of the Indonesian government; several United Nations resolutions which Jakarta or Aceh - might be thought to ...” have been adopted since the invasion of be helpful in that larger process of Thus, in dealing with East Timor the East Timor by Indonesia and since the in- reconciliation. It is not by itself statement adopts a narrower approach: self- corporation of the Territory into that State. enough to solve the whole problem determination is reduced to the choice of the 137. The issue is not limited to the quad- but it is at least part of the answer. form of government (“how they are gov- rilateral relationship (which today finds its The other elements of the answer are erned”). expression in the Geneva consultations), those I have described, in particular Erosion through Acquiescence in Accom- that is, the people of East Timor, the United the military drawdown as well as plished Facts Nations, Portugal and Indonesia. In particu- other measures being taken to respect 141. It may be observed that the parallel- lar, the duty to comply with the principle of local, religious and cultural sensitivi- ism represented by, on the one hand, recog- self-determination in regard to East Timor ties to a greater extent than has been nition of sovereignty (no matter how its does not rest with Portugal and Indonesia the case so far.” (Senate, p. 2973.) extension over a territory was achieved) and alone. Depending on circumstances, other The reference to “self-determination on the other hand by support (albeit declara- States may or will also have some obliga- within the framework of Indonesian sover- tory) for self-determination cannot be as- tions in this respect. By negotiating and eignty” should be noted, as well as “respect sessed in the abstract. The present situation concluding, and by beginning to implement for different ethnicity,” “respect for human of East Timor is characterized by a lack of the Timor Gap Treaty, Australia placed rights claims of particular groups,” and balance between these two factors. herself in such a position. measures to be taken “to respect local, reli- Recognition militates in favour of the 138. The Friendly Relations Declaration gious and cultural sensitivities” of the peo- permanency of incorporation, while self- provides as follows: “Every State has the ple of East Timor; also “political autonomy determination is, in fact, suspended. duty to promote, through joint and separate or special status” of a particular kind. These Recognition has its petrifying impact. action, realization of the principle of equal are important aims, entirely in line with a “[T]he question remains” said George H. rights and self-determination of peoples, in certain type of self-determination. But that Aldrich, Deputy Legal Adviser, U.S. accordance with the provisions of the Char- statement does not fully meet the require- Department of State, “what we are required ter, and to render assistance to the United ments of General Assembly resolution 1541 to do if this right [of self-determination] is Nations in carrying out the responsibilities (XV). On 7 February 1995 (Current Senate not observed as we might wish ...” (quoted entrusted to it by the Charter regarding the Hansard, Database, p. 572) the Foreign in Rejoinder, para. 47). The question is still implementation of the principle ...” Minister explained “the framework of sov- with us. The United States, which ereignty,” indicating that: Self-determination creates a responsibil- recognized the incorporation, did not have “The situation is that before 1975 ity not only for those who are directly an answer; “the prevailing factual situation” Australia recognized Portuguese sov- concerned. (i.e., Indonesian rule in East Timor) is for it ereignty over East Timor while, at the “the basis” of any action (ibid.). The Position of Australia same time, simultaneously recognis- 139. Australia adheres to the principle of ing the right to self-determination of C. ADMINISTERING POWER self-determination. In the pleadings Austra- the Timorese people. There is no dif- Administering Power as Part of the lia emphasized her acknowledgement of the ference between the situation then and Status of the Territory 142. Australia asserts right of the people of East Timor to self- now. A claim of a right to self- that “Chapter XI of the Charter makes no determination. determination can exist with a recog- reference to the concept of an ‘administer- 140. However, some official Australian nition of sovereignty. We recognized ing Power’” (Rejoinder, para. 186). In its statements combine that broad general Portuguese sovereignty then - and, in view the practice of the Organization “re- stance with a somewhat qualified approach fact until 1979 before we formalised it veals that the expression ‘administering regarding East Timor specifically. During - and since 1979 we have recognized Power,’ unlike the expression ‘non-self- the Senate debate on 14 November 1994 Indonesian sovereignty, but we have governing territory,’ has not been regarded Senator Gareth Evans, Minister for Foreign also recognized right through that pe- by the United Nations as a term of art or as Affairs, said: riod the right to self-determination by a reference to a particular juridical status” “The self-determination that Aus- the people of East Timor.” (ibid., para. 185). This is not true. “Admin- tralia talks about and wants to encour- This time the Minister referred to the istering Power,” a term which has been age is self-determination within the whole gamut of solutions: “[S]elf- appearing in the United Nations resolutions framework of Indonesian sovereignty. determination can involve a number of quite for more than thirty years (since 1962), is a That is the implication of de jure rec- different outcomes, including of course the shorthand expression of the Charter phrase ognition which the other side of Aus- emergence of an independent State, but also “Members of the United Nations which tralian politics initiated in 1979 and integration, or some form of association have or assume responsibilities for the ad- Page 68 East Timor Documents, Volume 38. Timor Gap Case decided. ministration of territories whose people full to them, except only for preroga- the “Administering Powers are independent have not yet attained a full measure of self- tives incompatible with the status in States which keep their attributes as such government” (Art. 73). Such a Member international law of non-self- when they act on the international scene in State, or administering Power, has a posi- governing territories. Such preroga- relation to the non-self-governing territories tion which is part of the status of the non- tives would be temporary by nature for whose administration they are responsi- self-governing territory. That position con- since they would lapse upon comple- ble” (ibid.). It is submitted that these “at- sists of powers, rights and duties as estab- tion of the decolonization process. tributes” are nothing more than sovereignty, lished by United Nations law and practice. The process was nevertheless not the exercise of which has been restricted in Chapter XI contains the basic rules on the completed by the scheduled date[21] favour of the self-determination of the peo- position of the administering Power. If it is for reasons beyond Portugal’s control. ple concerned. Portugal stresses that the said, and rightly so, and this is also the Aus- It must therefore be understood that people of the Territory is “the holder of the tralian stand, that “[t]he concept of ‘non- Portugal maintains, de jure, over East sovereignty inherent in the capacity to de- self-governing territories’ is derived from Timor all the powers pertaining to the cide for itself its future international legal the United Nations Charter itself (see the jurisdiction of a State over any of its status” (loc. cit., CR 95/4, para. 6) and that title of Chapter XI), and is acknowledged to territories, provided that they are not “the international law of decolonization has be a juridical status having legal conse- incompatible with the ‘otherness’ of transferred the sovereignty relating to such quences in international law” (Rejoinder, East Timor and the right to self- territories to their own peoples” (loc. cit., para. 185), then inevitably the “administer- determination of the Timorese peo- CR 95/12, para. 3). Under international law ing Power” shares in that “juridical status": ple.” (Reply, para. 4.54.) these contentions must be understood as in the sense of Chapter XI there is no “ad- 145. It may be added that the renuncia- referring to self-determination: it is the ministering Power” without a non-self- tion of sovereignty has sometimes resulted people which decides on its implementa- governing territory and vice-versa. in turning a territory into one that would not tion; but “people” as the holder of “sover- Administering Power as Sovereign be subject to the sovereignty of any State; it eignty” is a concept which, at least in part, becomes an area where the element of State lies beyond the realm of law. Continuity of 143. Since the Democratic Revolution of sovereignty is absent (e.g., the Free City of Portugal’s Position as Administering Power 25 April 1974 (the “Carnation Revolution”) Danzig under the treaties of 1919 and 147. Portugal remains the administering Portugal has reiterated its view that she has 1920). The status of a non-self-governing Power of the Territory of East Timor. This “no territorial claims whatsoever to East territory under the United Nations Charter is status of Portugal has been corroborated Timor” (e.g., United Nations Document different. With regard to overseas colonies expressly by Security Council resolution A/36/PV. 6, p. 101). This attitude points to of Western countries that status comprises 384 (1975) and General Assembly resolu- the paramountcy of East Timorese interests. the administering State which has sover- tions 3485 (XXX), 34/40, 35/27, 36/50 and It is for the people of East Timor to decide eignty over the colony. Nor is there any 37/30. The position of Portugal was implic- on their future; Portugal will accept that renunciation of sovereignty in the post- itly maintained in a number of other resolu- decision, including the Territory’s inde- revolution Constitutions of Portugal: 1976, tions (cf. para. 22 above). In resolution 384 pendence if such is the result of the exercise Article 307; 1982, Article 297; 1989, Arti- (1975) the Security Council regretted that of the right to self-determination. cle 293. By virtue of these provisions Por- “the Government of Portugal did not dis- 144. Under Constitutional Law 7/74 East tugal imposed on herself a duty to pursue charge fully its responsibilities as adminis- Timor ceased to be part of the “national the interests of the people of East Timor, tering Power in the Territory under Chapter Territory” in the sense which the Constitu- but did not divest herself of sovereignty. XI of the Charter.” This statement did not tion of 1933 gave to this notion. However, 146. Here the distinction between sover- lead to any change in Portugal’s responsi- priority of self-determination, before it has eignty and its exercise is a useful one. As bilities; on the contrary, Portugal was called been freely implemented, does not amount already recalled, the Friendly Relations upon, in her capacity of administering to renunciation of the sovereignty which Declaration provides that “[t]he territory of Power , “to co-operate fully with the United Portugal has held over that Territory since a colony or other non-self-governing terri- Nations.” In spite of the loss of territorial the 16th century. The abolition of the 1933 tory has, under the Charter, a status separate control over East Timor, Portugal was thus rule on colonies as part of “national Terri- and distinct from the [metropolitan] terri- confirmed in her mission and functions. tory” introduced, in the municipal law of tory of the State administering it.” The rea- 148. The issue of sovereignty is relevant Portugal, a difference between them and the son for that separateness and distinctness is to the question of continuity. As explained metropolitan area, that difference being self-determination. But the provision quoted in paragraphs 144 and 145, under Chapter already part of United Nations law, in par- does not aim at depriving the State of its XI of the Charter it is the State which has ticular Chapter XI of the Charter and the title to sovereignty which it held prior to the sovereignty of the colony who becomes and Friendly Relations Declaration (para. 53 Charter and the Declaration. The State has remains administrator. It is an automatic above). In international law the position remained sovereign. The said provision consequence of being sovereign and a con- with regard to sovereignty remained un- imposes restrictions on the exercise of the tracting party to the Charter, i.e., a Member changed: State’s sovereignty. These restrictions are of the Organization. There is no “appoint- “without prejudice to immediate far- reaching. Portugal rightly referred to ment” or election to the “function” of ad- recognition of the ‘otherness’ of the her “prerogatives [of] sovereignty” (para. ministering authority. But sovereignty Territory of East Timor and the sov- 75 above), though on occasions she has should not be confused with factual effec- ereign right of its people to determine avoided the word “sovereignty” in describ- tive control over the Territory. Such control freely its political future, Portugal re- ing her position with regard to East Timor. does not of itself bestow on its holder the served its own prerogatives in regard Instead she has used the terms “jurisdiction” status of administering Power. to sovereignty and administration. (Co-Agent, counsel and advocate of Portu- 149. At the time of the Indonesian inva- The prerogatives in question are of gal, J.M.S. Correia, Public Sitting, 1 Febru- sion, Australia admitted that Portugal had, course all those that accompany, in ary 1995, CR 95/4, para. 2) and “authority” “of course, the continuing legal responsibil- general, exercise of the jurisdiction of (idem, CR 95/12, para. 3, 13 February ity” (United Nations, Official Records of States over territories belonging in 1995,). Nonetheless Portugal explains that the Security Council, 1865th Meeting, 16 East Timor Documents, Volume 38. Timor Gap Case decided. Page 69
December 1975, para. 101). But some time But that withdrawal did not, and could not, Court’s responsibility and function are also later Australia changed her position. amount to abandoning the function of the involved. 150. The fact that the General Assembly, administering Power. This is so because, 158. The case created an opportunity for unlike in resolution 3458 A (XXX) on first, Portugal had no such intention and, assessing the activities of a Member of the Western Sahara, did not expressly refer to second, no administering Power is compe- United Nations in the light of the Charter. “the responsibility of the Administering tent to give up its position without the con- That is a capital issue at a time of crisis for Power and of the United Nations with re- sent of the United Nations. A unilateral act the Organization and, more generally, in the gard to the decolonization of the territory” would remain ineffective in law. Portugal’s present climate of the growing weakness of is without significance. The resolutions on international action in the United Nations legality throughout the world. East Timor maintain that “responsibility” following the invasion gives ample proof of 159. The conduct of Australia, like that by using other terms. her decision to continue to exercise the of any other member State, can be assessed 151. Australia admits that “Portugal may function of the administering authority. At in the light of the United Nations resolu- be the administering Power for certain the same time the Organization did not re- tions. Such an assessment does not logically United Nations purposes” (Rejoinder, para. lease Portugal from her duties. presuppose or require that the lawfulness of 98). Loss of control over the territory in 155. It would be erroneous to contend the behaviour of another country should question no doubt resulted in the actual that Portugal lost its status of administering first be examined. Member States have disappearance of Portuguese administration Power because some resolutions passed obligations towards the United Nations on the spot. And there may be room for over that status in silence or the United which in many instances are individual and dealing with the State in effective control Nations political organs ceased adopting do not depend on what another State has with regard to certain specific questions (cf. any resolutions on East Timor. The status done or is doing. To that extent the Court Namibia case, ICJ Reports 1971, p. 56, could be changed only by an explicit deci- has jurisdiction. Here no prerequisite is para. 125). sion, including acknowledgement that an- imperative. The principal judicial organ of 152. But foreign invasion has not elimi- other State (i.e., Indonesia) had now as- the United Nations cannot desist from such nated all the elements which constitute the sumed the responsibility for the Territory. assessment when the dispute submitted to competence of the lawful administrator. Nor Hitherto this has not happened. the Court falls under Article 36, paragraph is there a right “for others to recognise that 2, of the Statute. On the other hand, in the there has been a change in the State admin- SECTION V: CONCLUSION present case, because of the non- istering that Territory” (contra: Rejoinder, 156. The Court’s decision that it cannot participation of Indonesia, the Court has no para. 183). That change is a matter exclu- exercise jurisdiction in the East Timor case jurisdiction to pass upon the conduct of sively within the domain of the United Na- cannot be regarded as weakening the con- Indonesia. tions. Until such time as the Organization cept of non-self-governing Territories, 160. It has been said that, as Australia has taken a new decision, the status of the though an elaboration on the merits would accepts the right of the people of East administering Power continues, legally be welcome. At the present time the United Timor to self-determination, there is noth- unaffected, notwithstanding the loss of con- Nations list of these Territories is short as ing for the Court to decide. On the contrary. trol over the Territory. the decolonization process reaches its end. Portugal raised several issues regarding that 153. Australia contends (Counter- But non-self-government (or governance) right; also, some other ingredients of the Memorial, para. 41) that need not be a closed chapter: ideologies, status of the Territory have been discussed. “Portugal did not make any attempt to political systems and many individual coun- And in this opinion I have tried to show that prevent or repel the Indonesian military tries are in transition and undergoing trans- there are various points which are unclear in intervention. The withdrawal of its admini- formation. Legal strategy requires that old this respect. Consequently, the Court should stration to Atauro in August 1975, its inac- institutions (like that of Chapter XI of the adjudicate. In the Judgment there should be tion while there, and its departure from Charter) adapt to new challenges. It would an operative part on the merits, or at least Atauro the day after the Indonesian inter- be better if the Court assumed jurisdiction: on some of them. vention in December 1975 constituted a better for the prospective developments, 161. Doubts were expressed regarding clear abandonment by Portugal of its re- better for the rule of law. the effectiveness of such a judgment. Let sponsibilities as administering Power.” 157. It is to be regretted that, in its opera- me here take up one specific argument 154. It is not possible to agree with the tive part, the Judgment does not recite as against “judicial propriety” which might foregoing interpretation. The transfer to relevant the prohibition of force; non- appear to have some weight, viz., the view Atauro was dictated by security reasons, recognition; the self-determination of peo- that the judgment would not be capable of Dili having been taken by the forces of ples; the status of East Timor under United execution. It has been pointed out that the FRETILIN (para. 14 above). The physical Nations law, including the rule that only the present case differs in this respect from separation from the capital prevented any Organization can change that status; the Northern Cameroons because Portugal is involvement of the Portuguese authorities in position of Portugal as administering not requesting the nullification of the Timor the fighting among East Timorese factions. Power; the duty of States to respect that Gap Treaty. Why would it be improper for Such involvement was to be avoided in the status; in particular the duty of States which the Court to assess Australia’s conduct con- interests of the administration of East enter into some arrangements with the gov- sisting in the negotiation, conclusion and Timor. As to the Indonesian invasion, Por- ernment in control of the Territory to con- application of the Treaty? Would a decision tugal did not have any troops at her disposal sult, when these arrangements reach a cer- on this subject be unenforceable? The im- in East Timor to offer any resistance: the tain level of political and legal importance, plementation of the Treaty is an everyday Governor was left with two platoons of with Portugal, with the representatives of concern. While the post-adjucative phase is parachutists. Apart from the factual impos- the East Timorese people and with the not part of the function of the Court, there is sibility, it was probably in the interest of all United Nations. It is not only appropriate no basis for anticipating non-compliance. concerned not to extend or intensify the but also highly significant that the reasons Australia has been praised for her loyalty to military operations. When the invasion took for the Judgment affirm some of these prin- the Court. place Portugal had no other choice but to ciples. But the subject is too important for a 162. This Court administers justice withdraw her authorities from East Timor. cautious presentation of the reasons. The within the bounds of the law. In the present Page 70 East Timor Documents, Volume 38. Timor Gap Case decided. case, on the one hand, we have insistence 165. The negotiation, conclusion and State, is under a duty to respect that position on national interests - legitimate, it is true - performance of the Timor Gap Treaty by of Portugal. The fact that Portugal lost the and on Realpolitik: we have been told that Australia are subject to the requirement of territorial administration of East Timor did recognition of conquest was unavoidable. conformity with legal rules and legal stan- not deprive her of other attributes of her On the other hand we have the defence of dards stemming from the duty to respect the competence which are relevant to this case. the principle of self-determination, the prin- status of the Territory, in particular from the Portugal did not abandon her responsibili- ciple of the prohibition of military force, the requirement of self-determination. Depend- ties as administering Power. Portugal con- protection of the human rights of the East ing on the result of the analysis, there may tinues to hold the “sacred trust” under Timorese people. And last but not least, the indeed be responsibility. For instance, the Chapter XI of the Charter. defence of the United Nations procedures Timor Gap Treaty is silent on any material (6) In protecting its maritime rights and for solving problems left over by West benefit to be derived by, and possibly as- interests Australia cannot avoid acting in European, in this case Portuguese coloniza- signed to, the people of East Timor. Under conformity with the duties which are hers as tion. We may safely say that in this case no United Nations law a large part of the re- a result of the status of East Timor. These Portuguese national self-interest is present. sources covered by the Treaty belongs to duties include the obligation to respect and Portugal does not want to be the sovereign that people. How will it be compensated? take account of the competence of the ad- of East Timor and to get from it various 166. The duties referred to in the preced- ministering Power. The fact that another benefits, maritime ones for example. Her ing paragraphs are independent of, and do State or States failed to respect the position stand is a negation of selfishness. Portugal not concern, the bilateral relationship of the of the administering Power does not relieve has espoused a good cause. This should parties to the Timor Gap Treaty. They relate Australia of her duties. have been recognized by the Court within to the status of the Territory and the compe- (7) Australia did not make recourse to the bounds of judicial propriety. How could tence of the administering Power as its any of the available United Nations mecha- this cause be dismissed on the basis of de- guardian. It is a question of United Nations nisms, and particularly consultations on the batable jurisdictional arguments? law and resolutions and that law and resolu- negotiation of the Timor Gap Treaty and on 163. What are the duties of third States tions are to be applied by the Court. Austra- how the Treaty could be put into effect (and one of them is Australia) towards East lia assured the Court that, in concluding the without prejudice to the people of East Timor? First, not to do anything that would Timor Gap Treaty, she also protected the Timor. In particular, it had a duty to consul- harm or weaken the status of the Territory, rights and interests of East Timor. The tation to at least some extent with the ad- including the exercise by the people of its Court is competent to verify this assurance. ministering Power and the representatives right to self-determination. Second, when a 167. To conclude, the Court has jurisdic- of the people of East Timor. None of this third country (i.e., one which is neither the tion in this case and the Portuguese claims was done and Australia bears responsibility administering Power nor controls the Terri- are admissible. There is nothing improper in for this. tory de facto) concludes a treaty or enters dealing with the merits of the case. A judg- (8) In some respects (sub- para. 7) Aus- into another arrangement which concerns ment on the merits could be rendered along tralia’s conduct did not conform to her du- the interests of the Territory and/or its peo- the following lines: ties (obligations) resulting from the law of ple, special care is required on its part to (1) The United Nations has continued to the United Nations on the status of East safeguard these interests in so far as the recognize the status of Portugal as adminis- Timor. A finding by the Court to this effect third State is in a position to do it. That duty tering Power of East Timor. Consequently, would in itself constitute an appropriate may be said to be comprised by the Security Portugal has the capacity to act before the satisfaction. In particular, the Court could Council’s exhortation addressed to “all Court in this case on behalf of East Timor. enjoin Australia that in applying and im- States or other parties concerned to co- (2) The non-self-governing status of the plementing the Timor Gap Treaty she operate fully with the efforts of the United Territory of East Timor, and the right of the should fully respect the rights of the East Nations to achieve a peaceful solution to the people of East Timor to self-determination, Timorese people in view of that people’s existing situation and to facilitate the de- including its right to permanent sovereignty future self-determination. colonization of the Territory” (resolution over natural wealth and resources, which (9) There is no evidence of any material 384 (1975), para. 4, and resolution 389 are recognized by the United Nations, re- damage at present; therefore, no reparatory (1976), para. 5; these resolutions were reaf- quire observance by all Members of the provision can be imposed on Australia. firmed by the General Assembly in 1976- United Nations. The Court takes note that in (10) The Treaty would not be opposable 1978). In regard to East Timor, in view of these proceedings Australia has placed on to an independent or autonomous East the prevailing circumstances (including the record that it regards East Timor as a non- Timor. human rights situation), a third State has the self-governing territory and that it acknowl- Krzysztof SKUBISZEWSKI. obligation to consult the administering edges the right of its people to self- Power and the legitimate representatives of determination. the Territory. Finally, some other duties (3) Any change in the status of East may follow from both the legal and factual Timor can only take place by virtue of a situation in and of the Territory. These du- United Nations decision. According to the ties may be dictated by various considera- law of the United Nations no use of force tions, including the fact that the third State nor any act of recognition by an individual is part of the same region. State or States could of itself effect a 164. It is true that legitimate maritime in- change in the status of the Territory. terests of Australia had to be taken care of. (4) Australia should fulfil its duties re- But as they also concern a maritime area of sulting from subparagraph (2) in accordance East Timor, that Territory’s status made it with the law and resolutions of the United imperative for Australia to be in touch on Nations. Its national interests cannot be a this matter with the United Nations and/or bar to the fulfilment of these duties. the administering Power. (5) Portugal is the administering Power of East Timor, and Australia, like any other