| |
[p91]
The court,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 22 February 1991, the Ambassador to the Netherlands of the Portuguese
Republic (hereinafter referred to as "Portugal") filed in the Registry of
the Court an Application instituting proceedings against the Commonwealth of
Australia (hereinafter referred to as "Australia") concerning "certain
activities of Australia with respect to East Timor". According to the
Application Australia had, by its conduct, "failed to observe . . . the
obligation to respect the duties and powers of [Portugal as] the
administering Power [of East Timor] . . . and . . . the right of the people
of East Timor to self-determination and the related rights". In consequence,
according to the Application, Australia had "incurred international
responsibility vis-a-vis both the people of East Timor and Portugal". As the
basis for the jurisdiction of the Court, the Application refers to the
declarations by which the two States have accepted the compulsory
jurisdiction of the Court under Article 36, paragraph 2, of its Statute.
2. In accordance with Article 40, paragraph 2, of the Statute, the
Application was communicated forthwith to the Australian Government by the
Registrar; and, in accordance with paragraph 3 of the same Article, all the
other States entitled to appear before the Court were notified by the
Registrar of the Application.
3. By an Order dated 3 May 1991, the President of the Court fixed 18
November 1991 as the time-limit for filing the Memorial of Portugal and 1
June 1992 as the time-limit for filing the Counter-Memorial of Australia,
and those pleadings were duly filed within the time-limits so fixed.
4. In its Counter-Memorial, Australia raised questions concerning [the
jurisdiction of the Court and the admissibility of the Application. In the
course of a meeting held by the President of the Court on 1 June 1992 with
the Agents of the Parties, pursuant to Article 31 of the Rules of Court, the
Agents agreed that these questions were inextricably linked to the merits
and that they should therefore be heard and determined within the framework
of the merits.[p93]
5. By an Order dated 19 June 1992, the Court, taking into account the
agreement of the Parties in this respect, authorized the filing of a Reply
by Portugal and of a Rejoinder by Australia, and fixed 1 December 1992 and 1
June 1993 respectively as the time-limits for the filing of those pleadings.
The Reply was duly filed within the time-limit so fixed. By an Order of 19
May 1993, the President of the Court, at the request of Australia, extended
to 1 July 1993 the time-limit for the filing of the Rejoinder. This pleading
was filed on 5 July 1993. Pursuant to Article 44, paragraph 3, of its Rules,
having given the other Party an opportunity to state its views, the Court
considered this filing as valid.
6. Since the Court included upon the Bench no judge of the nationality of
either of the Parties, each Party proceeded to exercise the right conferred
by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit
in the case; Portugal chose Mr. Antonio de Arruda Ferrer-Correia and
Australia Sir Ninian Martin Stephen. By a letter dated 30 June 1994, Mr.
Ferrer-Correia informed the President of the Court that he was no longer
able to sit, and, by a letter of 14 July 1994, the Agent of Portugal
informed the Court that its Government had chosen Mr. Krzysztof Jan
Skubiszewski to replace him.
7. In accordance with Article 53, paragraph 2, of its Rules, the Court,
after ascertaining the views of the Parties, decided that the pleadings and
annexed documents should be made accessible to the public from the date of
the opening of the oral proceedings.
8. Between 30 January and 16 February 1995, public hearings were held in the
course of which the Court heard oral arguments and replies by the following:
For Portugal: H.E. Mr. Antonio Cascais,
Mr. Jose Manuel Servulo Correia,
Mr. Miguel Galvao Teles,
Mr. Pierre-Marie Dupuy,
Mrs. Rosalyn Higgins, Q.C.
For Australia: Mr. Gavan Griffith, Q.C.,
H.E. Mr. Michael Tate,
Mr. James Crawford,
Mr. Alain Pellet,
Mr. Henry Burmester,
Mr. Derek W. Bowett, Q.C.,
Mr. Christopher Staker.
9. During the oral proceedings, each of the Parties, referring to Article
56, paragraph 4, of the Rules of Court, presented documents not previously
produced. Portugal objected to the presentation of one of these by
Australia, on the ground that the document concerned was not "part of a
publication readily available" within the meaning of that provision. Having
ascertained Australia's views, the Court examined the question and informed
the Parties that it had decided not to admit the document to the record in
the case.
*
10. The Parties presented submissions in each of their written pleadings; in
the course of the oral proceedings, the following final submissions were
presented:[p94]
On behalf of Portugal,
at the hearing on 13 February 1995 (afternoon):
"Having regard to the facts and points of law set forth,
Portugal has the honour to
-- Ask the Court to dismiss the objections raised by Australia and to
adjudge and declare that it has jurisdiction to deal with the Application of
Portugal and that that Application is admissible, and
-- Request that it may please the Court:
(1) To adjudge and declare that, first, the rights of the people of East
Timor to self-determination, to territorial integrity and unity and to
permanent sovereignty over its wealth and natural resources and, secondly,
the duties, powers and rights of Portugal as the administering Power of the
Territory of East Timor are opposable to Australia, which is under an
obligation not to disregard them, but to respect them.
(2) To adjudge and declare that Australia, inasmuch as in the first place it
has negotiated, concluded and initiated performance of the Agreement of 11
December 1989, has taken internal legislative measures for the application
thereof, and is continuing to negotiate, with the State party to that
Agreement, the delimitation of the continental shelf in the area of the
Timor Gap; and inasmuch as it has furthermore excluded any negotiation with
the administering Power with respect to the exploration and exploitation of
the continental shelf in that same area; and, finally, inasmuch as it
contemplates exploring and exploiting the subsoil of the sea in the Timor
Gap on the basis of a plurilateral title to which Portugal is not a party
(each of these facts sufficing on its own):
(a) has infringed and is infringing the right of the people of East Timor to
self-determination, to territorial integrity and unity and its permanent
sovereignty over its natural wealth and resources, and is in breach of the
obligation not to disregard but to respect that right, that integrity and
that sovereignty;
(b) has infringed and is infringing the powers of Portugal as the
administering Power of the Territory of East Timor, is impeding the
fulfilment of its duties to the people of East Timor and to the
international community, is infringing the right of Portugal to fulfil its
responsibilities and is in breach of the obligation not to disregard but to
respect those powers and duties and that right;
(c) is contravening Security Council resolutions 384 and 389 and is in
breach of the obligation to accept and carry out Security Council
resolutions laid down by the Charter of the United Nations, is disregarding
the binding character of the resolutions of United Nations organs that
relate to East Timor and, more generally, is in breach of the obligation
incumbent on Member States to co-operate in good faith with the United
Nations;
(3) To adjudge and declare that, inasmuch as it has excluded and is
excluding any negotiation with Portugal as the administering Power of the
Territory of East Timor, with respect to the exploration and exploitation of
the continental shelf in the area of the Timor Gap, Australia has failed and
is failing in its duty to negotiate in order to harmonize the respective
rights in the event of a conflict of rights or of claims over maritime
areas.[p95]
(4) To adjudge and declare that, by the breaches indicated in paragraphs 2
and 3 of the present submissions, Australia has incurred international
responsibility and has caused damage, for which it owes reparation to the
people of East Timor and to Portugal, in such form and manner as may be
indicated by the Court, given the nature of the obligations breached.
(5) To adjudge and declare that Australia is bound, in relation to the
people of East Timor, to Portugal and to the international community, to
cease from all breaches of the rights and international norms referred to in
paragraphs 1, 2 and 3 of the present submissions and in particular, until
such time as the people of East Timor shall have exercised its right to
self-determination, under the conditions laid down by the United Nations:
(a) to refrain from any negotiation, signature or ratification of any
agreement with a State other than the administering Power concerning the
delimitation, and the exploration and exploitation, of the continental
shelf, or the exercise of jurisdiction over that shelf, in the area of the
Timor Gap;
(b) to refrain from any act relating to the exploration and exploitation of
the continental shelf in the area of the Timor Gap or to the exercise of
jurisdiction over that shelf, on the basis of any plurilateral title to
which Portugal, as the administering Power of the Territory of East Timor,
is not a party";
On behalf of Australia,
at the hearing on 16 February 1995 (afternoon):
"The Government of Australia submits that, for all the reasons given by it
in the written and oral pleadings, the Court should:
(a) adjudge and declare that the Court lacks jurisdiction to decide the
Portuguese claims or that the Portuguese claims are inadmissible; or
(b) alternatively, adjudge and declare that the actions of Australia invoked
by Portugal do not give rise to any breach by Australia of rights under
international law asserted by Portugal."
***
11. The Territory of East Timor corresponds to the eastern part of the
island of Timor; it includes the island of Atauro, 25 kilometres to the
north, the islet of Jaco to the east, and the enclave of Oe-Cusse in the
western part of the island of Timor. Its capital is Dili, situated on its
north coast. The south coast of East Timor lies opposite the north coast of
Australia, the distance between them being approximately 430 kilometres.
In the sixteenth century, East Timor became a colony of Portugal; Portugal
remained there until 1975. The western part of the island came under Dutch
rule and later became part of independent Indonesia.
12. In resolution 1542 (XV) of 15 December 1960 the United Nations General
Assembly recalled "differences of views . . . concerning the status of
certain territories under the administrations of Portugal and Spain and
described by these two States as 'overseas provinces' of the metropolitan [p96] State concerned"; and it also stated that it considered that the
territories under the administration of Portugal, which were listed therein
(including "Timor and dependencies") were non-self-governing territories
within the meaning of Chapter XI of the Charter. Portugal, in the wake of
its "Carnation Revolution", accepted this position in 1974.
13. Following internal disturbances in East Timor, on 27 August 1975 the
Portuguese civil and military authorities withdrew from the mainland of East
Timor to the island of Atauro. On 7 December 1975 the armed forces of
Indonesia intervened in East Timor. On 8 December 1975 the Portuguese
authorities departed from the island of Atauro, and thus left East Timor
altogether. Since their departure, Indonesia has occupied the Territory, and
the Parties acknowledge that the Territory has remained under the effective
control of that State. Asserting that on 31 May 1976 the people of East
Timor had requested Indonesia "to accept East Timor as an integral part of
the Republic of Indonesia", on 17 July 1976 Indonesia enacted a law
incorporating the Territory as part of its national territory.
14. Following the intervention of the armed forces of Indonesia in the
Territory and the withdrawal of the Portuguese authorities, the question of
East Timor became the subject of two resolutions of the Security Council and
of eight resolutions of the General Assembly, namely, Security Council
resolutions 384 (1975) of 22 December 1975 and 389 (1976) of 22 April 1976,
and General Assembly resolutions 3485 (XXX) of 12 December 1975, 31/53 of 1
December 1976, 32/34 of 28 November 1977, 33/39 of 13 December 1978, 34/40
of 21 November 1979, 35/27 of 11 November 1980, 36/50 of 24 November 1981
and 37/30 of 23 November 1982.
15. Security Council resolution 384 (1975) of 22 December 1975 called upon
"all States to respect the territorial integrity of East Timor as well as
the inalienable right of its people to self-determination"; called upon "the
Government of Indonesia to withdraw without delay all its forces from the
Territory"; and further called upon
"the Government of Portugal as administering Power to co-operate fully with
the United Nations so as to enable the people of East Timor to exercise
freely their right to self-determination".
Security Council resolution 389 (1976) of 22 April 1976 adopted the same
terms with regard to the right of the people of East Timor to
self-determination; called upon "the Government of Indonesia to withdraw
without further delay all its forces from the Territory"; and further called
upon "all States and other parties concerned to co-operate fully with the
United Nations to achieve a peaceful solution to the existing situation. .
.".
General Assembly resolution 3485 (XXX) of 12 December 1975 referred to
Portugal "as the administering Power"; called upon it "to continue to make
every effort to find a solution by peaceful means"; and "strongly deplore[d]
the military intervention of the armed forces of Indonesia in [p97]
Portuguese Timor". In resolution 31/53 of 1 December 1976, and again in
resolution 32/34 of 28 November 1977, the General Assembly rejected
"the claim that East Timor has been incorporated into Indonesia, inasmuch as
the people of the Territory have not been able to exercise freely their
right to self-determination and independence".
Security Council resolution 389 (1976) of 22 April 1976 and General Assembly
resolutions 31/53 of 1 December 1976, 32/34 of 28 November 1977 and 33/39 of
13 December 1978 made no reference to Portugal as the administering Power.
Portugal is so described, however, in Security Council resolution 384 (1975)
of 22 December 1975 and in the other resolutions of the General Assembly.
Also, those resolutions which did not specifically refer to Portugal as the
administering Power recalled another resolution or other resolutions which
so referred to it.
16. No further resolutions on the question of East Timor have been passed by
the Security Council since 1976 or by the General Assembly since 1982.
However, the Assembly has maintained the item on its agenda since 1982,
while deciding at each session, on the recommendation of its General
Committee, to defer consideration of it until the following session. East
Timor also continues to be included in the list of non-self-governing
territories within the meaning of Chapter XI of the Charter; and the Special
Committee on the Situation with Regard to the Implementation of the
Declaration on the Granting of Independence to Colonial Countries and
Peoples remains seised of the question of East Timor. The Secretary-General
of the United Nations is also engaged in a continuing effort, in
consultation with all parties directly concerned, to achieve a comprehensive
settlement of the problem.
17. The incorporation of East Timor as part of Indonesia was recognized by
Australia de facto on 20 January 1978. On that date the Australian Minister
for Foreign Affairs stated: "The Government has made clear publicly its
opposition to the Indonesian intervention and has made this known to the
Indonesian Government."He added: "[Indonesia's] control is effective and
covers all major administrative centres of the territory." And further:
"This is a reality with which we must come to terms. Accordingly, the
Government has decided that although it remains critical of the means by
which integration was brought about it would be unrealistic to continue to
refuse to recognize de facto that East Timor is part of Indonesia."
On 23 February 1978 the Minister said: "we recognize the fact that East
Timor is part of Indonesia, but not the means by which this was brought
about".[p98]
On 15 December 1978 the Australian Minister for Foreign Affairs declared
that negotiations which were about to begin between Australia and Indonesia
for the delimitation of the continental shelf between Australia and East
Timor, "when they start, will signify de jure recognition by Australia of
the Indonesian incorporation of East Timor"; he added: "The acceptance of
this situation does not alter the opposition which the Government has
consistently expressed regarding the manner of incorporation." The
negotiations in question began in February 1979.
18. Prior to this, Australia and Indonesia had, in 1971-1972, established a
delimitation of the continental shelf between their respective coasts; the
delimitation so effected stopped short on either side of the continental
shelf between the south coast of East Timor and the north coast of
Australia. This undelimited part of the continental shelf was called the
"Timor Gap".
The delimitation negotiations which began in February 1979 between Australia
and Indonesia related to the Timor Gap; they did not come to fruition.
Australia and Indonesia then turned to the possibility of establishing a
provisional arrangement for the joint exploration and exploitation of the
resources of an area of the continental shelf. A Treaty to this effect was
eventually concluded between them on 11 December 1989, whereby a "Zone of
Cooperation" was created "in an area between the Indonesian Province of East
Timor and Northern Australia". Australia enacted legislation in 1990 with a
view to implementing the Treaty; this law came into force in 1991.
***
19. In these proceedings Portugal maintains that Australia, in negotiating
and concluding the 1989 Treaty, in initiating performance of the Treaty, in
taking internal legislative measures for its application, and in continuing
to negotiate with Indonesia, has acted unlawfully, in that it has infringed
the rights of the people of East Timor to self-determination and to
permanent sovereignty over its natural resources, infringed the rights of
Portugal as the administering Power, and contravened Security Council
resolutions 384 and 389. Australia raised objections to the jurisdiction of
the Court and to the admissibility of the Application. It took the position,
however, that these objections were inextricably linked to the merits and
should therefore be determined within the framework of the merits. The Court
heard the Parties both on the objections and on the merits. While Australia
concentrated its main arguments and submissions on the objections, it also
submitted that Portugal's case on the merits should be dismissed,
maintaining, in particular, that its actions did not in any way disregard
the rights of Portugal.
***[p99]
20. According to one of the objections put forward by Australia, there
exists in reality no dispute between itself and Portugal. In another
objection, it argued that Portugal's Application would require the Court to
rule on the rights and obligations of a State which is not a party to the
proceedings, namely Indonesia. According to further objections of Australia,
Portugal lacks standing to bring the case, the argument being that it does
not have a sufficient interest of its own to institute the proceedings,
notwithstanding the references to it in some of the resolutions of the
Security Council and the General Assembly as the administering Power of East
Timor, and that it cannot, furthermore, claim any right to represent the
people of East Timor; its claims are remote from reality, and the judgment
the Court is asked to give would be without useful effect; and finally, its
claims concern matters which are essentially not legal in nature which
should be resolved by negotiation within the framework of ongoing procedures
before the political organs of the United Nations. Portugal requested the
Court to dismiss all these objections.
21. The Court will now consider Australia's objection that there is in
reality no dispute between itself and Portugal. Australia contends that the
case as presented by Portugal is artificially limited to the question of the
lawfulness of Australia's conduct, and that the true respondent is
Indonesia, not Australia. Australia maintains that it is being sued in place
of Indonesia. In this connection, it points out that Portugal and Australia
have accepted the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of its Statute, but that Indonesia has not.
In support of the objection, Australia contends that it recognizes, and has
always recognized, the right of the people of East Timor to
self-determination, the status of East Timor as a non-self-governing
territory, and the fact that Portugal has been named by the United Nations
as the administering Power of East Timor; that the arguments of Portugal, as
well as its submissions, demonstrate that Portugal does not challenge the
capacity of Australia to conclude the 1989 Treaty and that it does not
contest the validity of the Treaty; and that consequently there is in
reality no dispute between itself and Portugal.
Portugal, for its part, maintains that its Application defines the real and
only dispute submitted to the Court.
22. The Court recalls that, in the sense accepted in its jurisprudence and
that of its predecessor, a dispute is a disagreement on a point of law or
fact, a conflict of legal views or interests between parties (see
Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A,
No. 2, p. 11; Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 27; and
Applicability of the Obligation to Arbitrate under Section 21 of the United
Nations Headquarters Agreement of 26 June 1947, Advisory [p100] Opinion, I.C.J. Reports 1988, p. 27, para. 35). In order to establish the existence
of a dispute, "It must be shown that the claim of one party is positively
opposed by the other" (South West Africa, Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 328); and further, "Whether there exists an
international dispute is a matter for objective determination"
(Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74).
For the purpose of verifying the existence of a legal dispute in the present
case, it is not relevant whether the "real dispute" is between Portugal and
Indonesia rather than Portugal and Australia. Portugal has, rightly or
wrongly, formulated complaints of fact and law against Australia which the
latter has denied. By virtue of this denial, there is a legal dispute.
On the record before the Court, it is clear that the Parties are in
disagreement, both on the law and on the facts, on the question whether the
conduct of Australia in negotiating, concluding and initiating performance
of the 1989 Treaty was in breach of an obligation due by Australia to
Portugal under international law.
Indeed, Portugal's Application limits the proceedings to these questions.
There nonetheless exists a legal dispute between Portugal and Australia.
This objection of Australia must therefore be dismissed.
**
23. The Court will now consider Australia's principal objection, to the
effect that Portugal's Application would require the Court to determine the
rights and obligations of Indonesia. The declarations made by the Parties
under Article 36, paragraph 2, of the Statute do not include any limitation
which would exclude Portugal's claims from the jurisdiction thereby
conferred upon the Court. Australia, however, contends that the jurisdiction
so conferred would not enable the Court to act if, in order to do so, the
Court were required to rule on the lawfulness of Indonesia's entry into and
continuing presence in East Timor, on the validity of the 1989 Treaty
between Australia and Indonesia, or on the rights and obligations of
Indonesia under that Treaty, even if the Court did not have to determine its
validity. Portugal agrees that if its Application required the Court to
decide any of these questions, the Court could not entertain it. The Parties
disagree, however, as to whether the Court is required to decide any of
these questions in order to resolve the dispute referred to it.
24. Australia argues that the decision sought from the Court by Portugal
would inevitably require the Court to rule on the lawfulness of the conduct
of a third State, namely Indonesia, in the absence of that State's consent.
In support of its argument, it cites the Judgment in the case concerning
Monetary Gold Removed from Rome in 1943, in which the Court ruled that, in
the absence of Albania's consent, it could not take any deci-[p101]sion on
the international responsibility of that State since "Albania's legal
interests would not only be affected by a decision, but would form the very
subject-matter of the decision" (I.C.J. Reports 1954, p. 32).
25. In reply, Portugal contends, first, that its Application is concerned
exclusively with the objective conduct of Australia, which consists in
having negotiated, concluded and initiated performance of the 1989 Treaty
with Indonesia, and that this question is perfectly separable from any
question relating to the lawfulness of the conduct of Indonesia. According
to Portugal, such conduct of Australia in itself constitutes a breach of its
obligation to treat East Timor as a non-self-governing territory and
Portugal as its administering Power; and that breach could be passed upon by
the Court by itself and without passing upon the rights of Indonesia. The
objective conduct of Australia, considered as such, constitutes the only
violation of international law of which Portugal complains.
26. The Court recalls in this respect that one of the fundamental principles
of its Statute is that it cannot decide a dispute between States without the
consent of those States to its jurisdiction. This principle was reaffirmed
in the Judgment given by the Court in the case concerning Monetary Gold
Removed from Rome in 1943 and confirmed in several of its subsequent
decisions (see Continental Shelf (Libyan Arab Jamahiriya/ Malta),
Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, p.
25, para. 40; Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1984, p. 431, para. 88; Frontier Dispute (Burkina
Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 579, para. 49;
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras),
Application to Intervene, Judgment, I.C.J. Reports 1990, pp. 114-116, paras.
54-56, and p. 112, para. 73; and Certain Phosphate Lands in Nauru (Nauru v.
Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp.
259-262, paras. 50-55).
27. The Court notes that Portugal's claim that, in entering into the 1989
Treaty with Indonesia, Australia violated the obligation to respect
Portugal's status as administering Power and that of East Timor as a
non-self-governing territory, is based on the assertion that Portugal alone,
in its capacity as administering Power, had the power to enter into the
Treaty on behalf of East Timor; that Australia disregarded this exclusive
power, and, in so doing, violated its obligations to respect the status of
Portugal and that of East Timor.
The Court also observes that Australia, for its part, rejects Portugal's
claim to the exclusive power to conclude treaties on behalf of East Timor,
and the very fact that it entered into the 1989 Treaty with Indonesia shows
that it considered that Indonesia had that power. Australia in substance
argues that even if Portugal had retained that power, on whatever basis,
after withdrawing from East Timor, the possibility existed that the power
could later pass to another State under general international law, [p102]
and that it did so pass to Indonesia; Australia affirms moreover that, if
the power in question did pass to Indonesia, it was acting in conformity
with international law in entering into the 1989 Treaty with that State, and
could not have violated any of the obligations Portugal attributes to it.
Thus, for Australia, the fundamental question in the present case is
ultimately whether, in 1989, the power to conclude a treaty on behalf of
East Timor in relation to its continental shelf lay with Portugal or with
Indonesia.
28. The Court has carefully considered the argument advanced by Portugal
which seeks to separate Australia's behaviour from that of Indonesia.
However, in the view of the Court, Australia's behaviour cannot be assessed
without first entering into the question why it is that Indonesia could not
lawfully have concluded the 1989 Treaty, while Portugal allegedly could have
done so; the very subject-matter of the Court's decision would necessarily
be a determination whether, having regard to the circumstances in which
Indonesia entered and remained in East Timor, it could or could not have
acquired the power to enter into treaties on behalf of East Timor relating
to the resources of its continental shelf. The Court could not make such a
determination in the absence of the consent of Indonesia.
29. However, Portugal puts forward an additional argument aiming to show
that the principle formulated by the Court in the case concerning Monetary
Gold Removed from Rome in 1943 is not applicable in the present case. It
maintains, in effect, that the rights which Australia allegedly breached
were rights erga omnes and that accordingly Portugal could require it,
individually, to respect them regardless of whether or not another State had
conducted itself in a similarly unlawful manner.
In the Court's view, Portugal's assertion that the right of peoples to
self-determination, as it evolved from the Charter and from United Nations
practice, has an erga omnes character, is irreproachable. The principle of
self-determination of peoples has been recognized by the United Nations
Charter and in the jurisprudence of the Court (see Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, pp. 31-32, paras. 52-53; Western Sahara,
Advisory Opinion, I.C.J. Reports 1975, pp. 31-33, paras. 54-59); it is one
of the essential principles of contemporary international law. However, the
Court considers that the erga omnes character of a norm and the rule of
consent to jurisdiction are two different things. Whatever the nature of the
obligations invoked, the Court could not rule on the lawfulness of the
conduct of a State when its judgment would imply an evaluation of the
lawfulness of the conduct of another State which is not a party to the case.
Where this is so, the Court cannot act, even if the right in question is a
right erga omnes. [p103]
30. Portugal presents a final argument to challenge the applicability to the
present case of the Court's jurisprudence in the case concerning Monetary
Gold Removed from Rome in 1943. It argues that the principal matters on
which its claims are based, namely the status of East Timor as a
non-self-governing territory and its own capacity as the administering Power
of the Territory, have already been decided by the General Assembly and the
Security Council, acting within their proper spheres of competence; that in
order to decide on Portugal's claims, the Court might well need to interpret
those decisions but would not have to decide de novo on their content and
must accordingly take them as "givens"; and that consequently the Court is
not required in this case to pronounce on the question of the use of force
by Indonesia in East Timor or upon the lawfulness of its presence in the
Territory.
Australia objects that the United Nations resolutions regarding East Timor
do not say what Portugal claims they say; that the last resolution of the
Security Council on East Timor goes back to 1976 and the last resolution of
the General Assembly to 1982, and that Portugal takes no account of the
passage of time and the developments that have taken place since then; and
that the Security Council resolutions are not resolutions which are binding
under Chapter VII of the Charter or otherwise and, moreover, that they are
not framed in mandatory terms.
31. The Court notes that the argument of Portugal under consideration rests
on the premise that the United Nations resolutions, and in particular those
of the Security Council, can be read as imposing an obligation on States not
to recognize any authority on the part of Indonesia over the Territory and,
where the latter is concerned, to deal only with Portugal. The Court is not
persuaded, however, that the relevant resolutions went so far.
For the two Parties, the Territory of East Timor remains a
non-self-governing territory and its people has the right to
self-determination. Moreover, the General Assembly, which reserves to itself
the right to determine the territories which have to be regarded as
non-self-governing for the purposes of the application of Chapter XI of the
Charter, has treated East Timor as such a territory. The competent
subsidiary organs of the General Assembly have continued to treat East Timor
as such to this day. Furthermore, the Security Council, in its resolutions
384 (1975) and 389 (1976) has expressly called for respect for "the
territorial integrity of East Timor as well as the inalienable right of its
people to self-determination in accordance with General Assembly resolution
1514 (XV)".
Nor is it at issue between the Parties that the General Assembly has
expressly referred to Portugal as the "administering Power" of East Timor in
a number of the resolutions it adopted on the subject of East Timor between
1975 and 1982, and that the Security Council has done so in its resolution
384 (1975). The Parties do not agree, however, on the [p104] legal
implications that flow from the reference to Portugal as the administering
Power in those texts.
32. The Court finds that it cannot be inferred from the sole fact that the
above-mentioned resolutions of the General Assembly and the Security Council
refer to Portugal as the administering Power of East Timor that they
intended to establish an obligation on third States to treat exclusively
with Portugal as regards the continental shelf of East Timor. The Court
notes, furthermore, that several States have concluded with Indonesia
treaties capable of application to East Timor but which do not include any
reservation in regard to that Territory. Finally, the Court observes that,
by a letter of 15 December 1989, the Permanent Representative of Portugal to
the United Nations transmitted to the Secretary-General the text of a note
of protest addressed by the Portuguese Embassy in Canberra to the Australian
Department of Foreign Affairs and Trade on the occasion of the conclusion of
the Treaty on 11 December 1989; that the letter of the Permanent
Representative was circulated, at his request, as an official document of
the forty-fifth session of the General Assembly, under the item entitled
"Question of East Timor", and of the Security Council; and that no
responsive action was taken either by the General Assembly or the Security
Council.
Without prejudice to the question whether the resolutions under discussion
could be binding in nature, the Court considers as a result that they cannot
be regarded as "givens" which constitute a sufficient basis for determining
the dispute between the Parties.
33. It follows from this that the Court would necessarily have to rule upon
the lawfulness of Indonesia's conduct as a prerequisite for deciding on
Portugal's contention that Australia violated its obligation to respect
Portugal's status as administering Power, East Timor's status as a
non-self-governing territory and the right of the people of the Territory to
self-determination and to permanent sovereignty over its wealth and natural
resources.
*
34. The Court emphasizes that it is not necessarily prevented from
adjudicating when the judgment it is asked to give might affect the legal
interests of a State which is not a party to the case. Thus, in the case
concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), it stated,
inter alia, as follows:
"In the present case, the interests of New Zealand and the United Kingdom do
not constitute the very subject-matter of the judgment to be rendered on the
merits of Nauru's Application . . . In the present case, the determination
of the responsibility of New Zealand or the United Kingdom is not a
prerequisite for the determination of the responsibility of Australia, the
only object of Nauru's claim... In the present case, a finding by the Court
regarding the existence or the content of the responsibility attributed to
Australia by Nauru [p105] might well have implications for the legal
situation of the two other States concerned, but no finding in respect of
that legal situation will be needed as a basis for the Court's decision on
Nauru's claims against Australia. Accordingly, the Court cannot decline to
exercise its jurisdiction." (I.C.J. Reports 1992, pp. 261-262, para. 55.)
However, in this case, the effects of the judgment requested by Portugal
would amount to a determination that Indonesia's entry into and continued
presence in East Timor are unlawful and that, as a consequence, it does not
have the treaty-making power in matters relating to the continental shelf
resources of East Timor. Indonesia's rights and obligations would thus
constitute the very subject-matter of such a judgment made in the absence of
that State's consent. Such a judgment would run directly counter to the
"well-established principle of international law embodied in the Court's
Statute, namely, that the Court can only exercise jurisdiction over a State
with its consent" (Monetary Gold Removed from Rome in 1943, Judgment, I.C.J.
Reports 1954, p. 32).
*
35. The Court concludes that it cannot, in this case, exercise the
jurisdiction it has by virtue of the declarations made by the Parties under
Article 36, paragraph 2, of its Statute because, in order to decide the
claims of Portugal, it would have to rule, as a prerequisite, on the
lawfulness of Indonesia's conduct in the absence of that State's consent.
This conclusion applies to all the claims of Portugal, for all of them raise
a common question: whether the power to make treaties concerning the
continental shelf resources of East Timor belongs to Portugal or Indonesia,
and, therefore, whether Indonesia's entry into and continued presence in the
Territory are lawful. In these circumstances, the Court does not deem it
necessary to examine the other arguments derived by Australia from the
non-participation of Indonesia in the case, namely the Court's lack of
jurisdiction to decide on the validity of the 1989 Treaty and the effects on
Indonesia's rights under that treaty which would result from a judgment in
favour of Portugal.
**
36. Having dismissed the first of the two objections of Australia which it
has examined, but upheld its second, the Court finds that it is not required
to consider Australia's other objections and that it cannot rule on
Portugal's claims on the merits, whatever the importance of the questions
raised by those claims and of the rules of international law which they
bring into play.
37. The Court recalls in any event that it has taken note in the present
Judgment (paragraph 31) that, for the two Parties, the Territory of East [p106] Timor remains a non-self-governing territory and its people has the
right to self-determination.
***
38. For these reasons,
The court,
By fourteen votes to two,
Finds that it cannot in the present case exercise the jurisdiction conferred
upon it by the declarations made by the Parties under Article 36, paragraph
2, of its Statute to adjudicate upon the dispute referred to it by the
Application of the Portuguese Republic.
In favour: President Bedjaoui; Vice-President Schwebel; Judges Oda, Sir
Robert Jennings, Guillaume, Shahabuddeen, Aguilar-Mawdsley, Ranjeva,
Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin; Judge ad hoc Sir Ninian
Stephen;
Against: Judge Weeramantry; Judge ad hoc Skubiszewski.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this thirtieth day of June, one thousand nine
hundred and ninety-five, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Portuguese Republic and the Government of the Commonwealth of Australia,
respectively.
(Signed) Mohammed Bedjaoui,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Judges Oda, Shahabuddeen, Ranjeva and Vereshchetin append separate opinions
to the Judgment of the Court.
Judge Weeramantry and Judge ad hoc Skubiszewski append dissenting opinions
to the Judgment of the Court.
(Initialled) M.B.
(Initialled) E.V.O.
[p107]
Separate opinion of judge Oda
1. I voted in favour of the Judgment because I agreed with the Court that
the Application brought by Portugal against Australia on 22 February 1991
should be dismissed, as the Court lacks jurisdiction to entertain it.
However, I am unable to subscribe to the reason given by the Court for this
finding, that is, that
"[the Court] cannot, in this case, exercise the jurisdiction it has by
virtue of the declarations made by the Parties under Article 36, paragraph
2, of its Statute because, in order to decide the claims of Portugal, it
would have to rule, as a prerequisite, on the lawfulness of Indonesia's
conduct in the absence of that State's consent" (Judgment, para. 35;
emphasis added.)
When it refers to the "consent" of Indonesia the Court itself seems to be
uncertain as to what this "consent" of Indonesia would have meant. Would it
have meant that, in order for the Court to exercise its jurisdiction,
Indonesia would have had to have intervened in these proceedings or would it
have meant that Indonesia would have had to have accepted that jurisdiction
under Article 36(2) of the Statute?
For my part, I believe that the Court cannot adjudicate upon the Application
of Portugal for the sole reason that Portugal lacked locus standi to bring
against Australia this particular case concerning the continental shelf in
the Timor Sea.
***
2. Portugal, in its Application, defined the dispute, on the one hand, as
"relate[d] to the opposability to Australia:
(a) of the duties of, and delegation of authority to, Portugal as the
administering Power of the Territory of East Timor; and
(b) of the right of the people of East Timor to self- determination, and the
related rights (right to territorial integrity and unity and permanent
sovereignty over natural wealth and resources)" (Application, para. 1).
On the other hand, Australia, which did not regard Portugal as having
authority over the Territory of East Timor in the late 1980's, has only been
accused by Portugal in its Application of having engaged in [p108]
"[the] activities ... [which] have taken the form of the negotiation and
conclusion by Australia with a third State [Indonesia] of an agreement
relating to the exploration and exploitation of the continental shelf in the
area of the 'Timor Gap' and the negotiation, currently in progress, of the
delimitation of that same shelf with that same third State [Indonesia]"
(Application, para. 2; emphasis added).
3. If there had been anything for Portugal to complain about this would not
have been "the opposability" to any State of either "the duties of, and
delegation of authority to, Portugal as the administering Power of the
Territory of East Timor", or "the right of the people of East Timor to self-
determination, and the related rights" (Application, para. 1). Any complaint
could only have related to Portugal's alleged title, whether as an
administering Power or otherwise, to the Territory of East Timor together
with the corresponding title to the area of continental shelf which would
overlap with that of Australia. In this respect Portugal, in its
Application, has given an incorrect definition of the dispute and seems to
have overlooked the difference between the opposability to any State of its
rights and duties as the administering Power or of the rights of the people
of East Timor and the more basic question of whether Portugal is the State
entitled to assert these rights and duties.
In particular Portugal contends, with regard to paragraph (b) in the
quotation in paragraph 2 above, that the right of the people of East Timor
to self- determination and the related rights guaranteed by the UN Charter
to a people still under the control of a colonial State or of an
administering Power for Non- Self- Governing territories should be respected
by the whole international community under whichever authority and control
that people may be placed. Australia has not challenged the "right of the
people of East Timor to self- determination, and the related rights". The
right of that people to self- determination and other related rights cannot
be made an issue - and is not an issue - of the present case.
The present case relates solely to the title to the continental shelf which
Portugal claims to possess as a coastal State. This point cannot be
over-emphasized.
*
4. What, then, did Australia actually do to Portugal or the people of East
Timor? It is essential to note that, in the area of the "Timor Gap",
Australia has not asserted a new claim to any seabed area intruding into the
area of any State or of the people of the Territory of East Timor, nor has
it acquired any new seabed area from any State or from that people (see
Sketch-map on page 109).
[p109]
Sketch Map
[p110]
In fact, Australia's original title to the continental shelf in the "Timor
Gap" cannot be challenged at all by any State or by any people. Under the
contemporary rules of international law, Australia is entitled ipso jure to
its own continental shelf in the southern part of the Timor Sea - but at the
same time a State which has territorial sovereignty over East Timor, and
which lies opposite to Australia at a distance of roughly 250 nautical
miles, has the title with respect to the continental shelf off its coast in
the northern part of the "Timor Gap" (see Sketch-map: vertical hatching).
How far each continental shelf extends is determined not in geographical
terms but by the legal concept of the continental shelf.
The continental shelves to which both States are thus entitled overlap
somewhere in the middle of the "Timor Gap". Just as in the cases
contemplated by Article 6(1) of the 1958 Convention on the Continental Shelf
and by Article 83(1) of the 1982 UN Convention on the Law of the Sea,
Australia should have negotiated with the coastal State lying opposite to it
across the Timor Sea (see Sketch-map: State X as indicated therein) and did
indeed negotiate with that State with respect to the overlapping continental
shelves.
5. A recital of the events which have taken place since the 1970s in
relation to the delimitation of the continental shelf in the relevant areas
can usefully be given at this stage.
Pursuant to the Agreement "establishing certain seabed boundaries" (UNTS,
Vol. 974, p. 307), Australia and Indonesia drew a line of delimitation east
of longitude 133o 23' E in the Arafura Sea on 18 May 1971 - in the area
between Australia, on the one hand, and West Irian (Indonesian territory on
the island of New Guinea) and Aru Island (Indonesian territory), on the
other. On 9 October 1972 the same two Governments, acting under the
Agreement "establishing certain seabed boundaries in the area of the Timor
and Arafura seas, supplementary to the Agreement of 18 May 1971" (UNTS, Vol.
974, p. 319)(N.B. the Chart attached to this Agreement is reproduced as page
5 of this opinion), defined other lines of delimitation west of longitude
133o 23' E extending to longitude 127o 56' E in the area of the Timor and
Arafura seas between Australia, on the one hand, and the Tanimbar Islands
(Indonesian territory), on the other. Another line was drawn westward from
longitude 126o 00' E. This latter agreement, however, left open a gap of
nearly 120 nautical miles between these two lines off the coast of
"Portuguese Timor" (as it is called on a chart attached to the Agreement),
which was commonly known as the "Timor Gap".
At that time Portugal did not, however, attempt to negotiate with Australia
on the delimitation of the continental shelf in the area thus left open for
Portugal's benefit by the 1972 Agreement between Indonesia and Australia.
This certainly leads one to question whether Portugal did, at that time,
deem itself to be in the position of a coastal State with sov-
[p111]
Chart Attached to the Agreement of 9
October 1972 [p112]ereignty over the eastern part of the island of Timor (East Timor)
and whether it in fact thought that it could claim a title to the
continental shelf in the "Timor Gap".
Instead of dividing the area by drawing a boundary, as in the case of the
1971/1972 Agreements with Indonesia as explained above, Australia agreed in
the 1989 Treaty with Indonesia "on the Zone of Cooperation in an area
between the Indonesian Province of East Timor and Northern Australia" to
constitute a "Zone of Cooperation". The content of the 1989 Treaty - what
was gained and lost in the "Timor Gap" both by Australia and by the State
lying opposite to it (see Sketch-map: State X as indicated therein) - cannot
be disputed, as the Treaty was drawn up with the consent of the States
concerned.
6. Indonesia had apparently claimed since the 1970s the status of a coastal
State for the Territory of East Timor, considered to be one of its provinces
(as explained in paragraph 13 below), and, as such, had negotiated with the
opposite State, Australia, on the overlapping part of their respective
continental shelves. On that basis, Australia concluded in 1989 a treaty
with Indonesia which would remain in force for an initial 40- year term and
successive terms of 20 years unless the two States agreed otherwise (Art.
33)(Annexes to the Application, p. 46). If Portugal had claimed the status
of a coastal State, whether as administering Power of the Non- Self-
Governing Territory or otherwise, and had thus claimed the corresponding
title to the continental shelf in the northern part of the "Timor Gap"
extending southward from the coast of East Timor, then Portugal could and
should have initiated a dispute over that title with Indonesia which had
made a similar claim. The party with which Portugal should have engaged in a
dispute over the conflicting titles to the continental shelf in the northern
part of the "Timor Gap" (see Sketch-map: vertical hatching) could only have
been Indonesia.
A dispute could have turned on which of the two States, Indonesia or
Portugal, was a coastal State located on the Territory of East Timor and
thus was entitled to the continental shelf extending southwards from the
coast of the Territory of East Timor, thus meeting the continental shelf of
Australia in the middle of the "Timor Gap". This is the dispute in relation
to which Portugal could have instituted proceedings against Indonesia on the
merits. However, any issue concerning the seabed area of the "Timor Gap"
could not have been the subject- matter of a dispute between Portugal and
Australia unless and until such time as Portugal had been established as
having the status of the coastal State entitled to the corresponding
continental shelf (in other words, Portugal would have to be designated as
State X, see Sketch-map).
7. If Portugal was the coastal State with a claim to the continental shelf
in the "Timor Gap" (see Sketch-map: vertical hatching), then the treaty
which Australia concluded with Indonesia in 1989 would certainly [p113]
have been null and void from the outset. Alternatively, if Indonesia was the
coastal State, and thus had a right over the relevant area of the
continental shelf (see Sketch-map: vertical hatching), then Portugal quite
simply had no right to bring this case. In order to do so, Portugal would
have had to have been a coastal State lying opposite to Australia.
In order to entertain the Application against Australia with respect to the
continental shelf in the "Timor Gap" or, more specifically, the area called
the "Zone of Cooperation" which Australia claims in part, the Court needs to
be convinced, as a preliminary issue, of the standing of Portugal in this
case as being a coastal State with a claim to the continental shelf in the
Timor Sea as of 1991, the year of the Application (see Sketch-map: State X
as indicated therein).
As I repeat, an issue on which Portugal could have initiated a dispute would
have been its own entitlement to the continental shelf off the coast of East
Timor, but could not have related to the competence of Australia to conclude
a treaty with Indonesia.
*
8. The present Judgment, in my view, seems to rely heavily on the
jurisprudence of the Monetary Gold case (1954). That case does not seem to
be relevant to the present case as the Court found in 1954 that "[t]o go
into the merits of [questions which relate to the lawful or unlawful
character of certain actions of Albania vis-à-vis Italy]" in a case brought
by Italy against France, among other co-Respondents, "would be to decide a
dispute between Italy and Albania" and that "[t]he Court cannot decide such
a dispute without the consent of Albania" (I.C.J. Reports 1954, p. 32). In
that case "Albania's legal interests would not only be affected by a
[Court's] decision, but would form the very subject-matter of the decision"
(ibid.).
The present case is quite different in nature. The dispute does not relate
to whether Indonesia, the third State, was entitled in principle to conclude
a treaty with Australia, but rather the subject-matter of the whole case
relates solely to the question of whether Portugal or Indonesia, as a State
lying opposite to Australia, was entitled to the continental shelf in the
"Timor Gap". This could have been the subject of a dispute between Portugal
and Indonesia, but cannot be a matter in which Portugal and Australia can be
seen to be in dispute with Indonesia as a State with "an interest of a legal
nature which may be affected".
***
9. East Timor was under Portuguese control from the 16th century onwards and
the Constitution of Portugal of 1933 stated that the territory of Portugal
comprised East Timor in Oceania. East Timor kept [p114] the status of an
overseas territory of Portugal even after the war, in contrast to Indonesia
which gained its independence from the Netherlands. There is no doubt that,
prior to 1974, Portugal had sovereignty over East Timor as one of its own
overseas provinces and that Portugal, as the coastal State, would have had a
right to the continental shelf in the seabed areas off the coast of East
Timor in the Timor Sea.
10. On the other hand, the UN Charter contains a "declaration regarding Non-
Self- Governing Territories" (Chapter XI) under which member States which
have or assume responsibilities for the administration of the colonial
territories, accept as a sacred trust the obligation to promote the well-
being of the inhabitants of these territories and, to this end, to transmit
regularly to the Secretary- General statistical and other information of a
technical nature relating to the territories. Portugal never supplied
regular information on its own colonies scattered throughout the world and
was not seen to have acknowledged that those colonies had the status of Non-
Self- Governing Territories under the UN system.
In 1960 the UN General Assembly, after having made the "Declaration on
Decolonization" proclaiming the right of all peoples to self- determination
(A/RES/1514(XV)), adopted a resolution addressed in particular to Portugal
in which it considered East Timor to be a Non- Self- Governing Territory
within the meaning of Chapter XI of the Charter and requested Portugal to
transmit to the Secretary- General information on East Timor, among other
Non- Self- Governing Territories under Portuguese control (A/RES/1542(XV)).
11. Between 1961 and 1973 the General Assembly repeatedly appealed to
Portugal to comply with the decolonization policy of the UN and continued to
condemn Portugal's colonial policy and its persistent refusal to carry out
that UN policy. In 1963 the Security Council for its part deprecated the
attitudes of the Portuguese Government and its repeated violations of the
principles of the Charter, urgently calling upon Portugal to implement the
decolonization policy (S/RES/180 (1963); S/RES/183 (1963)), and in 1965 once
again passed a resolution deploring Portugal's failure to comply with the
previous General Assembly and Security Council resolutions (S/RES/218
(1965)). In 1972, the Securty Council repeated its condemnation of the
persistent refusal of Portugal to implement the earlier resolutions
(S/RES/312 (1972); S/RES/322 (1972)).
Portugal did not take any steps to assume the duties and responsibilities of
a governing authority in relation to those territories which should have
been treated as Non- Self- Governing Territories in accordance with the UN
concept, and continued to regard them merely as its overseas provinces.
*[p115]
12. Following the "Carnation Revolution" in April 1974, the Government in
Portugal was replaced by a new regime. The "Law of 27 July 1974",
promulgated by the Council of State, revised the old Portuguese Constitution
and acknowledged the right to self- determination - including independence -
of the territories under Portuguese administration. The new Government of
Portugal convened conferences on decolonization in May 1975 in Dili and in
June 1975 in Macao, to which it invited the representatives of several East
Timorese political groups. The "Law of 17 July 1975" relating to the
decolonization of East Timor, which resulted from those conferences, was
intended to put an end to the sovereignty of Portugal over East Timor in
October 1978.
On the other hand Indonesia, which seems not to have sought previously to
annex East Timor to its own territory and had maintained friendly relations
with Portugal, appears to have begun considering the annexation of East
Timor in the 1970s. In July 1975, the President of Indonesia asserted that
East Timor would not be competent to attain its independence. The political
group UDT, which supported the approach of the Indonesian Government,
organized a coup d'etat on 11 August 1975. The local government in East
Timor did not receive any effective assistance from Portugal itself; its
members left in August 1975 for the island of Atauro north of Timor and, in
December 1975, moved away from that island and thus left the area. Portugal
did not accept the request of the FRETILIN group to return to East Timor and
Indonesia began to prepare for a large- scale military invasion of the
territory. These developments marked the end of Portuguese rule in East
Timor.
13. On 28 November 1975 the FRETILIN declared the full independence of the
territory and the establishment of the Democratic Republic of East Timor. On
the other hand, some other political parties, such as UDT and APODETI, which
considered that it would be difficult for East Timor to maintain its
independence, were willing to be annexed by Indonesia and on 30 November
1975 the representatives of those groups made a declaration of the
separation of the territory from Portugal and its incorporation into
Indonesia.
In early December 1975 Indonesia sent an army of 10,000 men to Dili. On 17
December 1975, the pro- Indonesian parties declared the establishment of a
provisional government of East Timor in Dili. Responding to an alleged
appeal from the people of East Timor, Indonesia passed a law on 15 July 1976
providing for annexation, which the President of Indonesia signed on 17 July
1976. East Timor was thus given the status of the 27th province of
Indonesia. The Portuguese authorities, which had already left the island,
have never returned to East Timor since that time.
*
14. As from the year 1974, which was marked by the change in Portuguese
colonial policy under the new regime, the General Assembly con-[p116]tinued
to adopt successive resolutions on the implementation of the Declaration on
Decolonization. In its 1974 resolution, the General Assembly welcomed the
acceptance by the new Government of Portugal of the principle of self-
determination and independence and its unqualified applicability to all the
peoples under Portuguese colonial domination, calling upon Portugal to
pursue the necessary steps to ensure the full implementation of the
"Declaration on Decolonization" (A/RES/3294(XXIX)).
In 1975 the General Assembly, for the first time, adopted a resolution
relating to East Timor in which it called upon Portugal as the administering
Power to continue to make every effort to find a solution by peaceful means
through talks between the Government of Portugal and the political parties
representing the people of Portuguese Timor; strongly deplored the military
intervention of the armed forces of Indonesia, and called upon Indonesia to
desist from further violation of the territorial integrity of Portuguese
Timor and to withdraw without delay its armed forces from the Territory in
order to enable the people of the Territory freely to exercise their right
to self- determination and independence (A/RES/3485(XXX)).
Further to that General Assembly resolution, the Security Council, on 22
December 1975, deplored the intervention of the armed forces of Indonesia in
East Timor, regretting that the Government of Portugal was not discharging
fully its responsibilities as administering Power in the territory under
Chapter XI of the Charter, called upon Indonesia to withdraw all its forces
from the Territory without delay, and called upon Portugal as administering
Power to co- operate fully with the United Nations so as to enable the
people of East Timor to exercise freely their right to self- determination
(S/RES/384 (1975)). Several months later, on 22 April 1976, the Security
Council once again passed a resolution in which it did not refer to the
responsibility of Portugal as the administering Power of East Timor but was
only concerned with the military intervention of Indonesia in that territory
(S/RES/389 (1976)) .
15. In a resolution of 1976, the General Assembly, following the same
approach as the one adopted in the previous year, upheld the rights of the
people of East Timor and strongly criticised the action of Indonesia
(A/RES/31/53). It should be noted, however, that Indonesia's claim that East
Timor should be integrated into its territory was rejected solely in order
to uphold the rights of the people of East Timor but not to protect the
rights and duties of the State of Portugal in relation to East Timor or the
status of Portugal as the administering Power. In 1977 the General Assembly
kept to the outline of the previous year's resolution (A/RES/32/34); the
Government of Portugal did not feature in this resolution at all.
In 1978 the General Assembly desisted from its rejection of Indonesia's
claim that East Timor had been integrated. The 1978 resolution made no [p117] request for the withdrawal of the Indonesian military from East Timor,
but emphasised the inalienable right of the people of East Timor to self-
determination and independence, and the legitimacy of their struggle to
exercise that right (A/RES/33/39). Since then the position of the General
Assembly has remained the same; that is, the emphasis has been upon the
relief of the people of East Timor (see A/RES/34/40, A/RES/35/27 and
A/RES/36/50).
16. In 1980 the General Assembly welcomed the diplomatic initiative taken by
the Government of Portugal with a view to finding a comprehensive solution
to the problem of East Timor, and indicated that the General Assembly had
heard the statements of the representative of Portugal (as the administering
Power), the representative of Indonesia, various East Timorese petitioners
and representatives of non- governmental organizations, as well as the
representative of FRETILIN (A/RES/35/27).
In 1982 the General Assembly, after having heard the statements of the
representatives of Portugal, Indonesia, the FRETILIN and others, requested
the Secretary- General to initiate consultations with all parties directly
concerned with a view to exploring avenues for achieving a comprehensive
settlement of the problem (A/RES/37/30). The consultations thus requested in
the 1982 resolution have not yet yielded any fruitful result.
The General Assembly has included an item on the "Question of East Timor" on
the agenda of every session since 1983. However, on the recommendation of
the General Committee, the General Assembly has deferred consideration of
the item of East Timor to the subsequent session ever since that time. The
question of East Timor may be said to be a subject which has been shelved
since 1983.
17. Portugal, which was willing to grant independence to the people of East
Timor under the new Constitution of 1974, has not exercised any authority
over the territory ever since the local authority was forced to leave East
Timor in 1975 on account of the turmoil in the island. Portugal has not,
since 1974, supplied any information or statistics as required under the UN
Charter and
under the 1960 "Declaration on Decolonization". The United Nations, when
dealing with the problem of East Timor since 1976, has never indicated that
Portugal should have the right and the duty to administer this area as a
Non- Self- Governing Territory.
The authority of Indonesia has been exercised in the territory for nearly 20
years since that time. The United Nations has not given its approval to the
annexation of East Timor by Indonesia. However the rejection of Indonesia's
claim that East Timor should be integrated into its territory disappeared
from the 1978 resolution and the demand for the withdrawal of the Indonesian
army ceased to be made. The fact is that the interest of the General
Assembly was directed more to humanitarian aid than to the form of
administration of the territory.
18. The incident which took place in 1991 at the Santa Cruz Cemetery in Dili
in East Timor was extremely serious from this very standpoint. [p118]
Whether the right of the people of East Timor to self- determination has
been duly respected by Indonesia may well be questioned in some other
proceedings before the Court or in the different fora of the United Nations.
While the military intervention of Indonesia in East Timor and the
integration of East Timor into Indonesia in the mid-1970s were not approved
by the United Nations, there has not been any reason to assume that Portugal
has, since the late 1970s and up to the present time, been entrusted with
the rights and responsibilities of an administering Power for the Non- Self-
Governing Territory of East Timor. Few States in the international community
have in the recent past regarded, or at present regard, Portugal as a State
located in East Timor or would maintain that as such it may lay claim to the
continental shelf off the coast of East Timor.
***
19. Irrespective of the status of East Timor - which is still in abeyance
according to the United Nations - and irrespective of the rights of the
people of East Timor to self- determination guaranteed by the UN Charter, it
is clear that Portugal has not been considered - at least since the early
1980s - to be a coastal State lying opposite to Australia and that in 1991,
when Portugal's Application was filed in the Registry of the Court, it did
not have any authority over the region of East Timor, from the coast of
which the continental shelf extends southwards in the Timor Sea.
20. It follows that Portugal lacks standing as an Applicant State in this
proceeding which relates to the continental shelf extending southward into
the Timor Sea from the coast of East Timor in the "Timor Gap". For this
reason alone, the Court does not, in my view, have jurisdiction to entertain
the Application of Portugal and the Application must be dismissed.
(Signed) Shigeru Oda.
[p119]
Separate opoinion of judge Shahabuddeen
The case touches on important principles of contemporary international law -
principles which have changed the shape of the international community,
altered the composition of its leading institutions, affected their
orientation, and influenced their outlook. But, the mandate of the Court
being limited by the consensual nature of its jurisdiction, its decision has
turned on the preliminary question how far it may adjudicate where the
outcome would have consequences for the legal position of a third party. In
support of the Judgment, I would add the following observations.
I. The principle that the court cannot exercise jurisdiction over a State
without its consent
Reflecting a view generally held in municipal law, Article 59 of the Statute
of the Court provides that "[t]he decision of the Court has no binding force
except between the parties and in respect of that particular case". But it
does not follow that the Court is free to determine a dispute between
parties in entire disregard of the implications of the decision for the
legal position of a non- party. Under one form or another of an
"indispensable parties" rule, the problem involved is solved in domestic
legal systems through an appropriate exercise of the power of joinder. The
Court lacks that power; and the right of intervention, or to institute
separate legal proceedings where possible, is not always a sufficient
safeguard. Hence, when situations arise in which the requested judgment
would in fact, even though not in law, amount to a determination of the
rights and obligations of a non-party, the Court is being asked to exercise
jurisdiction over a State without its consent. Monetary Gold says it cannot
do that.
That precedent has given rise to questionsFN1. In a fundamental sense the
questions stem from the fact that, as was remarked by Judge Jessup, "Law is
constantly balancing conflicting interests" (Barcelona Traction, Light and
Power Company, Limited, Second Phase, I.C.J. [p120]Reports 1970, p. 206,
para. 81, separate opinion). The interests which are in conflict here, and
which need to be balanced against each other if collision is to be avoided,
are those of Portugal in having its case determined by the Court
notwithstanding possible effects of the decision on Indonesia, and those of
Indonesia in not having its rights and obligations determined by the Court
without its consent. Problems of this kind are apt to arise from the fact
that, in the increasingly complex character of international relations,
legal disputes between States are rarely purely bilateral. The argument
follows that, as it was put to the Court in another case, if
---------------------------------------------------------------------------------------------------------------------
FN1
Some were considered in D. H. N. Johnson, "The Case of the Monetary Gold
Removed from Rome in 1943", International and Comparative Law Quarterly,
1955, Vol. 4, p. 93. The Court had that article before it in 1984. See
Memorial of Nicaragua, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, dated 30 June 1984, para. 257.
---------------------------------------------------------------------------------------------------------------------
"the Court could not adjudicate without the presence of all such States,
even where the parties before it had consented fully to its jurisdiction,
the result would be a severe and unwarranted constriction of the Court's
ability to carry out its functions"FN1.
------------------------------------------------------------------------------------------------------------
FN1Memorial of Nicaragua, cited in the preceding note. para. 248.
------------------------------------------------------------------------------------------------------------
It is difficult to think of any point at which a balance may be struck
between these competing considerations without the Court having sometimes to
assume jurisdiction notwithstanding that the interests of a non-party State
would to some extent be affected, as has happened in some cases. A fair
interpretation is that what the Court has been doing was to identify some
limit beyond which the degree to which the non-party State would be affected
would exceed what is judicially tolerable. That limit is reached where, to
follow the language of the Court, the legal interests of the non-party would
not merely be affected by the judgment, but would constitute its very
subject-matter.
Possibly another formulation might have been invented; but the test adopted
is not in substance new to legal thought. The juridical problem to be solved
has recognisable parallels in other areas of the law: it concerns the extent
to which a given course of action could be regarded as lying within a
permissible field although it produces effects within a forbidden one. No
doubt with the constitutional jurisprudence of some countries in mind, in
the case of the Application of the Convention of 1902 Governing the
Guardianship of Infants Judge Spender remarked that a "law may produce an
effect in relation to a subject-matter without being a law on that subject
matter" (I.C.J. Reports 1958, p. 118). That approach could be redirected to
the problem before the Court: would the requested judgment produce an effect
in relation to the legal interests of Indonesia without being a judgment on
those interests?
Obviously, there could be argument concerning marginal situations; but there
is a dividing line, and it is often practicable to say that a given
situation falls on one side or the other of it. Monetary Gold represents [p121] that line. Whatever the academic criticisms, the essential principle of
the case has not been challenged. The case may be distinguished, but the
cases distinguishing it have also affirmed it. Nor would it be correct to
say, without important qualification, that since 1954 the principle of the
case has in no sense been applied; it is possible to attribute the shape of
the judgments given in some of the cases to the need to take account of
itFN1. Certainly, where a case cannot be distinguished, the principle
applies. In this case, the effort of Portugal was to distinguish and not to
attack Monetary Gold; its counsel rejected what he understood to be an
Australian attempt to "imply that Portugal is questioning the soundness of
the Monetary Gold case" (CR 95/6, p. 11, Professor Dupuy). It is not
necessary to examine all the cases, real or hypothetical, which may be
thought supportive of an attempt to distinguish Monetary Gold. Certain
Phosphate Lands in Nauru has been considered in the Judgment. I shall limit
myself to one other case.
---------------------------------------------------------------------------------------------------------------------
FN1Continental Shelf (Tunisia/Libyan Arab Jamahiriya ), Application for
Permission to Intervene, Judgment. I.C.J. Reports 1981, p. 20, para. 35;
Continental Shelf (Tunisia/ Libyan Arab Jamahiriya), Judgment, I.C.J.
Reports I9S2. pp. 61-62, para. 75, and p. 94, para. 133, subpara. C (3),
last sentence; Continental Shelf (Libyan Arab Jamahiriya/ Malta),
Application for Permission to Intervene. Judgment. I.C.J. Reports 1984. pp.
25-27, paras. 40-43; and Continental Shelf (Libyan Arab Jamahiriya/Malta).
Judgment, LC.J. Reports 1985, pp. 25-28, paras. 21-23.
---------------------------------------------------------------------------------------------------------------------
Corfu Channel, Merits, comes closest to the view that the Court is not
necessarily prevented from acting by the circumstance that the lawfulness of
the conduct of a third State may seem to be involved. In that case, the
argument of Albania, as correctly recalled in Judge Weeramantry's dissenting
opinion, should have been enough to alert the Court to the question whether
it could properly find against Albania if it could not do so without making
a determination as to Yugoslavia's international responsibility in its
absenceFN2. However, it does not appear to me that the evidence was examined
with a view to making a finding of international responsibility against
Yugoslavia in respect of its alleged conduct; it was examined as a method of
proof, or disproof, of the British allegation that the mines had been laid
with the connivance of Albania. Assuming that the minelaying operation had
been carried out by two Yugoslav warships, the United Kingdom argued that
this
---------------------------------------------------------------------------------------------------------------------
FN2See also, I.C.J. Pleadings, Corfu Channel, Vol. IV, pp. 609-610, duplique
de M. Joe Nordmann, conseil du Gouvernment albanais.
---------------------------------------------------------------------------------------------------------------------
"would imply collusion between the Albanian and the Yugoslav Governments,
consisting either of a request by the Albanian Gov-[p122]ernment to the
Yugoslav Government for assistance, or of acquiescence by the Albanian
authorities in the laying of the mines" (I.C.J. Reports 1949, p. 16; and
I.C.J. Pleadings, Corfu Channel, Vol. IV, p. 495, Sir Frank Soskice).
By its suggested request or acquiescence, Albania would make Yugoslavia's
acts its own; it would be by making Yugoslavia's acts its own that it would
engage international responsibility. In effect, proof of the mines having
been laid by Yugoslavia would be part of the factual material evidencing the
commission of acts by Albania which independently engaged its international
responsibility. A determination by the Court that Yugoslavia engaged
international responsibility by reason of its alleged conduct in laying the
mines would not have to be made for the purpose of making a finding of
international responsibility against Albania. The Court did not have before
it the type of issue later raised in Monetary Gold, in which a determination
that the absent State had engaged international responsibility would have
had to be made as a precondition to its admitted ownership of the gold being
legally set aside by the Court and passed on by it to others. Corfu Channel
is not at variance with Monetary Gold; nor does it show that the latter is
inapplicable to the circumstances of the instant case.
In 1984 the Court observed that the "circumstances of the Monetary Gold case
probably represent the limit of the power of the Court to refuse to exercise
its jurisdiction" (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, I.C.J. Reports 1984, p. 431, para. 88). True, too, outside of
the prohibited area, "it must be open to the Court, and indeed its duty, to
give the fullest decision it may in the circumstances of each case"
(Continental Shelf (Libyan Arab Jamahiriya/Malta) Application for Permission
to Intervene, I.C.J. Reports 1984, p. 25, para. 40). But these remarks also
recognized that the principle of the case remains intact, being directly
founded on the consensual nature of the Court's contentious jurisdiction.
Would it apply to prevent the Court from adjudicating on the merits of
Portugal's case?
II. Whether the requested judgment would require the court to determine
indonesia’s legal interests
The premise of Portugal's claim is that, whatever may be the basis, it
possesses the exclusive power to enter into treaties on behalf of East Timor
in respect of the resources of its continental shelf; Australia contends
that it is Indonesia which possesses the power. The premise of Portugal's
claim is thus in dispute. [p123]
The Court must first resolve this dispute relating to Portugal's premise, by
determining that the treaty-making power belonged to Portugal and therefore
of necessity that it did not belong to Indonesia, before it could go on to
determine whether Australia engaged international responsibility by
negotiating and concluding the 1989 Treaty with Indonesia and by commencing
to implement it. In effect, a prerequisite to a decision against Australia
is a determination that Indonesia did not possess the treaty-making power.
In the ordinary way, the Court could not make that determination without
considering whether the circumstances of Indonesia's entry into and
continuing presence in East Timor disqualified it from acquiring the power
under general international law. That would involve the determination of a
question of Indonesia's responsibility in the absence of its consent. The
Court cannot do that.
*
That would seem to end the case, but for an argument by Portugal that the
resolutions of the General Assembly and the Security Council conclusively
established its status as the administering Authority; that that status
carried with it the exclusive power to enter into treaties on behalf of East
Timor in respect of the resources of its continental shelf; that the
resolutions should in these respects be treated by the Court as donnees; and
that in consequence a decision by the Court on Indonesia's legal interests
would not be required.
However, this way of putting the matter does not efface the fact that what
Portugal is asking the Court to accept as donnees is not the mere text of
the resolutions, but the text of the resolutions as interpreted by Portugal.
The various resolutions would constitute the basis of the Court's decision;
they would not remove the need for a decision to be taken by the Court as to
what they meant. As the Parties accept, the Court has power to interpret the
resolutions.
Portugal's interpretation of the resolutions is closely contested by
Australia. The issue so raised by Australia is not frivolous; the Court
would have to decide it. The Court has done so. On the conclusion which it
has reached, the resolutions do not suffice to settle the question whether
the treaty-making power lay with Portugal, as Portugal claims, or with
Indonesia, as Australia claims. Other matters would have to be investigated
before that question could be answered. Such other matters would include the
question whether, by reason of its alleged conduct, Indonesia engaged
international responsibility which disqualified it from acquiring that power
under general international law. Portugal accepts that the Court cannot act
if the international responsibility of Indonesia would have to be passed
upon.
*[p124]
However, even if Portugal's interpretation of the resolutions is correct,
the result need not be affected. The prerequisite of which the Court must
ultimately be satisfied is that, whatever may be the basis, the
treaty-making power lay with Portugal and not with Indonesia. If the Court
were to accept Portugal's interpretation of the resolutions as correct, what
it would be deciding, without hearing Indonesia on a substantial question of
interpretation, is that it was Portugal and not Indonesia which possessed
the treaty-making power; acceptance of Portugal's interpretation as correct
would merely shorten the proof of Portugal's claim to the power. Indonesia's
legal interests would nonetheless be determined in its absence. In effect,
the question is not merely whether Portugal's interpretation is correct, but
whether, in reaching the conclusion that it is correct, the Court would be
passing on Indonesia's legal interests.
There is a further point. As the Court would be barred by the Monetary Gold
principle from acting even if Portugal's interpretation of the resolutions
were correct, it is possible to dispose of Portugal's Application without
the necessity for the Court to determine whether or not the resolutions do
indeed bear the interpretation proposed by it; the Court could arrive at its
judgment assuming, but without deciding, that Portugal's interpretation is
correct.
*
The matter may also be considered from the point of view of the effects of
the requested judgment on the rights of Indonesia under the 1989 Treaty and
on the validity of the Treaty itself.
First, as to Indonesia's rights under the Treaty. Submission 5(b) of the
requested judgment would require Australia to abstain from implementing the
Treaty; Indonesia would thus lose the benefit of implementation of the
Treaty by Australia. That is not a matter of theoretical interest; Indonesia
would be deprived of concrete benefits to which it is entitled under the
Treaty, including possible financial benefits, in much the same way as the
judgment requested in Monetary Gold would have deprived Albania of its right
to the property involved in that case. Article 59 of the Statute of the
Court would not protect Indonesia against these effects.
In El Salvador v. Nicaragua, El Salvador asked that "the Government of
Nicaragua be enjoined to abstain from fulfilling the ... Bryan-Chamorro
Treaty ..." (American Journal of International Law, 1917, Vol. 11, p.
683).FN1 The Central American Court of Justice replied:
---------------------------------------------------------------------------------------------------------------------
FN1
American Journal of International Law, 1917, Vol. 11, p. 683.
---------------------------------------------------------------------------------------------------------------------
"The Court is without competence to declare the Bryan-Chamorro Treaty to be
null and void, as in effect, the high party complainant requests it to do
when it prays that the Government of Nicaragua be [p125] enjoined 'to
abstain from fulfilling the said Bryan-Chamorro Treaty.' On this point the
Court refrains from pronouncing decision, because, as it has already
declared, its jurisdictional power extends only to establishing the legal
relations among the high parties litigant and to issuing orders affecting
them, and them exclusively, as sovereign entities subject to its judicial
power. To declare absolutely the nullity of the Bryan-Chamorro Treaty, or to
grant the lesser prayer for the injunction of abstention, would be
equivalent to adjudging and deciding respecting the rights of the other
party signatory to the treaty, without having heard that other party and
without its having submitted to the jurisdiction of the Court." FN1
---------------------------------------------------------------------------------------------------------------------
FN1 American Journal of International Law, 1917, Vol. II, p. 729
---------------------------------------------------------------------------------------------------------------------
Although El Salvador had not asked for an order declaring the Bryan/Chamorro
Treaty to be invalidFN2, in the view of the Central American Court of
Justice its prayer for an order enjoining Nicaragua "to abstain from
fulfilling" the Treaty was "in effect" a request that the Court should
"declare the ... Treaty to be null and void", which of course it could not
do in the absence of the other party to the Treaty. Thus, to grant "the
lesser prayer for the injunction of abstention" would have the same effect
as a declaration of invalidity; they would both "be equivalent to adjudging
and deciding respecting the rights of the other party signatory to the
treaty, without having heard that other party and without its having
submitted to the jurisdiction of the Court". The injunction was refused.
---------------------------------------------------------------------------------------------------------------------
FN2 Cf. the third prayer of Costa Rica in Costa Rica v. Nicaragua (American
Journal of International Law, 1917, Vol. II, p. 202), where the Central
American Court of Justice was asked to "declare and adjudge said treaty to
be null and void and without effect". The prayer was refused.
---------------------------------------------------------------------------------------------------------------------
Second, as to the validity of the 1989 Treaty. There are situations in which
the Court may determine that an international obligation has been breached
by the act of negotiating and concluding an inconsistent treaty, without the
decision being considered as passing on the validity of the treatyFN3. But a
situation of that kind is distinguishable from one in which the essential
ground of the alleged breach and of any relief sought necessarily implies
that a State which is a party to a bilateral treaty with the respondent but
not a party to the case lacked the capacity in international law to enter
into the treaty. Where this would be the true ground of decision, as it
would be here, it is difficult to avoid the conclusion that the validity of
the treaty was being passed upon in the absence of the State concerned.
Further, as pointed out above, an order enjoining Australia from
implementing the Treaty would itself presuppose a finding of invalidity.
---------------------------------------------------------------------------------------------------------------------
FN3 See the Vienna Convention on the Law of Treaties 1969, Art. 30, para. 5,
and the decisions of the Central American Court of Justice in Costa Rica v.
Nicaragua (American Journal of International Law, 1917, Vol. II, p. 181),
and El Salvador v. Nicaragua (ibid., p. 647); and consider Judge Schucking's
understanding of the judgment in Oscar Chinn (P.C.I.J., Series A/B, No. 63,
p. 148, third paragraph).
---------------------------------------------------------------------------------------------------------------------
[p126]
In El Salvador v. Nicaragua, the Central American Court of Justice made it
clear, and rightly so, that it would not decline to act on "the trivial
argument that a third nation ... possesses interests connected with the
matters or questions in controversy". FN1But the Court obviously did not
consider that the argument was "trivial" in so far as the requested judgment
would require it to determine the rights of a non-party State, inclusive of
the question of the validity of a treaty entered into between that State and
the respondent. It was on the clear basis that it could not and would not
determine these matters, either directly or indirectly, that it found it
possible to declare that the respondent "is under the obligation - availing
itself of all possible means provided by international law - to re-establish
and maintain the legal status that existed prior to the" treatyFN2. In
effect, the Court was able to assume competence to act in relation to some
of the reliefs claimed by El Salvador, but not in relation to all. Here, by
contrast, none of the reliefs requested by Portugal could be granted without
passing on the legal interests of an absent State.
---------------------------------------------------------------------------------------------------------------------
FN1 American
Journal of International Law, 1917, Vol. 11, p. 699.
FN2 Ibid., p.730, fifth paragraph of the dispositif.
--------------------------------------------------------------------------------------------------------------------
*
In an interesting and careful argument, counsel for Portugal submitted that
"other courts ... have ruled on the violation of obligations derived from a
treaty, in cases where there was a conflict of obligations, without ruling
on the resolution of the conflict, despite the absence of the other party to
the treaty from which the other incompatible obligation derived" (CR 95/13,
p. 55, Professor Galvão Teles).
Counsel cited Soering v. United Kingdom (EHRR, vol. 11, p. 439), The
Netherlands v. Short (ILM, 1990, Vol. 29-II, pp. 1375 et seq.) and Ng v.
Canada (CC PR/C/49/D.469/1991), adding that the judicial function of the
adjudicating bodies in those cases obliged them "to answer the questions
that were put to them. They were not, for example, required to decide on the
rights of the United States, which was a party to the treaty and absent from
the proceedings". As this argument of counsel seems to recognise, the
dividing line is set by asking whether the requested judgment would be
deciding not merely the rights of the parties, but those of the absent State
as well. In my opinion, the judgment requested in this case would decide the
rights of an absent State. Institutional and structural differences apart,
this is a point on which the three cited cases are distinguishable.
*[p127]
It was also argued for Portugal that, by virtue of Article 59 of the Statute
of the Court, a judgment of the Court in favour of it would be binding only
as between itself and Australia; Indonesia, as a non-party to the case,
would not be bound. But the problem involved is more fundamental than that
to which that provision is directed. The provision applies to a judgment
duly given as between the litigating parties; until such a judgment has been
given, the provision does not begin to speak (see, on this point, Monetary
Gold Removed from Rome in 1943, I.C.J. Reports 1954, p. 33, first
paragraph). For the reasons set out above, the judgment requested by
Portugal would not be a judgment duly given even as between the litigating
Parties. The fact that, by virtue of Article 59 of the Statute, Indonesia
would not be bound is not a reason why the Court should attempt to do what
it cannot legally do: the provision does not operate as a standing
reservation in law subject to which the Court is at liberty to pronounce on
the legal interests of a State in the absence of its consent.
III. Portugal‘s first submission
A word may be said on the question whether the grounds on which the Judgment
rests prevented the Court from granting the first of Portugal's five
submissions, in which the Court was asked
"[t]o adjudge and declare that, first, the rights of the people of East
Timor to self- determination, to territorial integrity and unity and to
permanent sovereignty over its wealth and natural resources and, secondly,
the duties, powers and rights of Portugal as the administering Power of the
Territory of East Timor are opposable to Australia, which is under an
obligation not to disregard them, but to respect them".
There is no need to dwell on the distinction between arguments and
conclusionsFN1. Portugal recognizes the distinction; it does not suggest
that the Court can grant its first submission considered as an argument
intended to support the requested judgment but not in itself constituting
part of the decision. It is necessary then to see what is the sense in which
Portugal's first submission could be regarded as part of the requested
decision.
---------------------------------------------------------------------------------------------------------------------
FN1 See the discussion of the cases in Sir Gerald Fitzmaurice, The law and
Procedure of the International Court of Justice, 1986, Vol.2, pp.578 ff.
---------------------------------------------------------------------------------------------------------------------
Portugal's first submission can only be considered as part of the requested
decision if, as the wording of the submission itself implies, a judicial
declaration that the claimed rights are opposable to Australia is required
to ensure that Australia recognises that it "is under an obligation not to
disregard them, but to respect them". The implication is that [p128]
Australia has been disregarding them, and not respecting them. But, if it is
asked why it should be thought that Australia has been disregarding them and
not respecting them, the answer can only be that Australia has negotiated
and concluded the 1989 Treaty with Indonesia and has commenced to implement
it.
Thus, the fundamental issue raised by Portugal's first submission is the
same as the question whether the treaty-making power is held in law by
Portugal or by Indonesia. As the Court cannot determine that question in the
absence of Indonesia, it cannot competently grant the submission. A
submission, however worded, can only be granted if the granting of it is
necessary for the resolution of the dispute between the parties to the case.
If the Court cannot determine the dispute, it cannot grant any of the
submissions sought.
IV. Conclusion
International law places the emphasis on substance rather than on form. When
the matter is thus regarded, it is apparent that Portugal's Application
would require the Court, in the absence of Indonesia, to determine
Indonesia's legal interests, inclusive of its claim to the treaty-making
power in respect of East Timor and a question of its international
responsibility, as a prerequisite to a determination of Portugal's claim
that Australia engaged international responsibility to Portugal by
negotiating and concluding the 1989 Treaty with Indonesia and by commencing
to implement it. I agree that the Court cannot act.
(Signed) Mohamed Shahabuddeen.
[p129]
SEPARATE OPINION OF JUDGE RANJEVA
[Translation]
While the Court is to be applauded for recalling that the right of peoples
to self- determination is one of the essential principles of customary
international law, possessing the characteristic of an absolute right erga
omnes and for upholding the Australian objection to the effect that
Portugal's application would necessitate a ruling on the rights and
obligations of Indonesia, it is nevertheless regrettable that this case
should not have led the Court to analyze the extent and limitations of the
jurisprudence in Monetary Gold. It would have been appropriate to highlight
the true overall economy of the 1954 Judgment, to ensure that no doubt
remained regarding questions of jurisdiction at a time when recourse to the
jurisdiction of the Court is receiving growing support from the
international community. The virtue of this approach would have been all the
more instructive in that it could usefully have been supplemented by
meticulous analysis of that State's request on the basis of a consideration
of its subject- matter. Such an improvement would not have affected the
operative part of the Judgment delivered by the Court in this case.
I. Analysis of the case law in Monetary Gold
The consensual nature of international jurisdiction prohibits the Court from
adjudicating on the legal interests of a State which has not clearly
expressed its consent to jurisdiction. Such was the basic principle evoked
by the Judgment of 1954. In the present case, was it necessary for the Court
to adjudicate, as a prerequisite, by applying the jurisprudence of the
Monetary Gold, on the lawfulness of Indonesia's presence in the territory of
East Timor? This is the crux of the matter. The Judgment responds positively
to this question by means of petitio principii, whereas it would perhaps
have been preferable to ponder how far the analysis of the structure of the
Court's reasoning, both in 1954 and in 1992, in the case of Certain
Phosphate Lands in Nauru, justified a conclusion as to whether or not it was
valid to transpose the jurisprudence of Monetary Gold.
The conclusive passage in the 1954 Judgment deserves to be recalled:
"In the present case, Albania's legal interests would not only be affected
by a decision, but would form the very subject- matter of the decision. In
such a case, the Statute cannot be regarded, by implica-[p130]tion, as
authorizing proceedings to be continued in the absence of Albania." (I.C.J.
Reports 1954, p. 32.)
This conclusion is explained by the logical sequence of propositions which
form the structure of the Court's reasoning. The sequence of this reasoning
is as follows: the reply to the question of the possible responsibility of
Albania vis-à-vis Italy, the determining proposition, subsequently
conditioned the possibility of the reply to the question of the definitive
attribution of the Albanian Gold, the substance of the dispute. In other
words, the determining proposition turned upon a question of subjective
personal rights governing mutual relations between two legal entities,
whereas the principal question turned upon a true objective point of law:
the attribution of the gold. This being so, it was impossible for a court of
a consensual nature to adjudicate upon a question of subjective rights
without the consent of all the parties concerned: the relevant decision, by
a constitutive act or by a declarative act, would have determined the
substance of the rights and obligations governing the relations between the
Parties.
On reading the conclusive paragraph of the Judgment of 1992 in the case of
Certain Phosphate Lands in Nauru, one may wonder whether one is not faced
with a departure from previous doctrine:
"In the present case, a finding by the Court regarding the existence or, the
content of the responsibility attributed to Australia by Nauru might well
have implications for the legal situation of the two other States concerned,
but no finding in respect of that legal situation will be needed as a basis
for the Court's decision on Nauru's claims against Australia. Accordingly,
the Court cannot decline to exercise its jurisdiction." (I.C.J. Reports
1992, pp. 261-262.)
The problem of the 1992 Judgment turns upon a preliminary objection relating
to the jus standi ut singuli of Australia as Respondent in a dispute about
responsibility, in other words in the context of subjective rights.
Notwithstanding the mandate or trusteeship agreements, which determined the
legal situation of the relations between the three mandatory or trust
powers, the Court did not find it necessary, as a prerequisite, to rule on
the legal problems relating to relations between the United Kingdom,
Australia and New Zealand.
To analyze these propositions, the elements pertinent to an understanding of
the decision by which the Court accepts the exercise of its jurisdiction
must be called to mind. To begin with, the very subject-matter of the
Judgment concerns Australia's obligation to reply before the Court to the
allegations that it has violated its obligations as mandatory then trust
power. Secondly, as regards the actual subject-matter [p131] of the
procedural rights, the act of seising the Court has the effect of imposing a
general, impersonal system, in other words, a system of objective law, upon
the various players involved, be they the Parties themselves or the Court;
in other words, the legal ties resulting from the seisin of the Court are
not contractual or subjective in nature, since the modifications proposed by
the parties to a case originate in Article 101 of the Rules.
It is therefore the objective nature of the legal relations which exist
between those involved in the proceedings, relations stemming from the act
of seisin, which explains, in the preliminary phase, the fact that the Court
did not deem it necessary to transpose the jurisprudence of the Monetary
Gold, inasmuch as that jurisprudence required that a dispute implicating a
State absent from the proceedings should first be settled.
In the present case, the structure of the Portuguese Application presupposes
that the givens of the dispute, which have given rise to an agreement of
principle by the two Parties in contention, concern a question of an
objective right erga omnes, namely, East Timor's acknowledged status as a
non-self-governing territory and the right of the people of Timor to self
determination. Hence, in logical terms, one is faced with a hypothesis which
is the inverse of that envisaged in the Monetary Gold. This observation
causes one to wonder whether it was adequate purely and simply to refer to
the principle set out in that Judgment.
In the case of the Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), moreover, did the Court
not recall the intrinsic limits on the scope of the jurisprudence in
Monetary Gold in the following terms?
"The circumstances of the Monetary Gold case probably represent the limit of
the power of the Court to refuse to exercise its jurisdiction; and none of
the States referred to can be regarded as in the same position as Albania in
that case, so as to be truly indispensable to the pursuance of the
proceedings." (Judgment of 26 November 1984, I.C.J. Reports 1984, p. 431,
para. 88.)
A prior decision, in the meaning in which it is understood in the Judgment
delivered in the case of the Monetary Gold would be essential, it seems to
me, when the object of that prior decision is subjective rights, in other
words, rights relating to the legal situation of a State which has not
consented to the jurisdiction or which does not appear before the Court. Can
the same principle be transposed in cases where the prior decision concerns
a question of objective rights opposable erga omnes? This question can no
longer be avoided since the jus cogens falls within the province of positive
law. The difficulty resides in the fact that, by nature, the rules of
objective law transcend the order of conventional rules and that disputes
involving objective law call into question the legal interests of third
States. Is the purpose of the rule of the Monetary Gold to limit the domain
of the Court's jurisdiction ratione juris solely to disputes involving
subject-[p132]ive rights? To refer without any explanation to the
jurisprudence in Monetary Gold leaves too many questions open for it to
satisfy the requirements of the good administration of justice, one of whose
components is the foreseeability of legal decisions; this observation is all
the more valid since the same results could have been obtained and
reinforced on the basis of an actual analysis of Portugal's Application.
II. Subject-Matter of Portugal’s application
In my view, a scrupulous examination of the subject- matter of Portugal's
Application did not oblige the Court, as a prerequisite, to adjudicate on
the lawfulness of the entry into and continued presence of Indonesia in the
territory of East Timor; such an approach would also have led to the
conclusion that the Court could not exercise the jurisdiction which it
possesses by virtue of the acceptance by Portugal and Australia of the
jurisdiction of the Court under Article 36, paragraph 2, of the Statute.
Portugal is simultaneously pursuing three objectives: first, the
preservation of the right of the people of East Timor to self-
determination; second, the "nullification" of the obligations stipulated by
Australia and Indonesia in the 1989 Treaty and, at the same time, depriving
Indonesia of the benefit of the legal effects of the principle pacta sunt
servanda. One is therefore faced with an Application concerning a dispute
relating to questions of objective rights and subjective rights. An
examination of the relations between the propositions concerning each type
of right shows that the questions of objective rights are the justification
for matters of subjective rights being taken into account, which must be
regarded as the Applicant's principal and final conclusion. Moreover, this
cause and effect relationship between the submissions of the Application
calls to mind the distinction between submissions and false submissions, as
highlighted by the Court in the Minquiers and Ecrehos case (Judgment of 17
November 1953, I.C.J. Reports 1953, p. 52).
In the present dispute, by partly but principally requiring the
"nullification" of the treaty obligations entered into by Australia
vis-à-vis Indonesia and thus depriving Indonesia of the benefit of the
effects of the principle pacta sunt servanda, a decision of the Court would
have adjudicated directly upon Indonesia's rights. Such a solution cannot be
accepted in international law without there being any need, as a
prerequisite, for a decision relating to the lawfulness of the entry into
and continued presence of Indonesia in the territory of East Timor.
Where the questions of objective rights are concerned, the Court observes
that there is no longer any reason to adjudicate on that part of Portugal's
submission which calls for the right of the people of East Timor to self-
determination to be declared opposable to Australia. The Judgment takes note
of the fact that the dispute in the relations between the two Parties on
this point has been resolved during the proceedings; but in so doing, has
the Court not deprived itself of the opportunity to [p133] indicate in
detail the fate it intended to reserve to its jurisdiction, since a dispute
arose turning upon an objective right?
On examination, the agreement of principle reached between Portugal and
Australia concerning the right of the people of Timor shows the acceptance,
by them, of a norm of international law, the expression of convictio juris,
whose legal consequences must be deduced, both as regards the Applicant and
the Respondent. In ruling that the case should be dismissed, the Judgment
has refrained from adjudicating upon a dispute between the Parties which is
still pending - the legal consequences of the agreement of principle
concerning the right of the people of East Timor to self- determination; the
Judgment should have done this by showing the need for a prior decision in
order to adjudicate upon this question of objective law, which it does not
do.
But could the Court, in the context of the interpretation it has given of
the jurisprudence of Monetary Gold, go beyond a simple acknowledgement, in
legal terms, of a situation of fact, from which it does not draw the legal
consequences?
In my view, the difficulties the Court had to confront resulted from the
fact that it was difficult to establish the summa divisio between the
parties and the third party in an international act: Australia is the centre
of gravity of the whole case. But is it realistic to consider that State as
an absolute third party, falling within the residual category exterior to
the circle of the Parties: Portugal vis- à- vis the 1989 Treaty and
Indonesia vis-à-vis the Judgment? This approach, bearing the hallmark of
realism, reveals the limitations of an [abstract and] theoretical view of
the principle of the relative effect of the conventions and of res judicata.
Realism in such a tricky case should have led the Court to offer the Parties
involved an appropriate legal framework for holding in check the undesirable
effects of a legal act or a situation. In acting thus, the Court would not
be concerned with choosing between the practical measures which the
interested States or the competent organs of the United Nations can take in
order to solve the more general problem of East Timor. In adjudicating on
the submissions relating to the fundamental questions of procedure, the
Court could have spelled out the scope of the jurisprudence relating to the
prior decision in its relations with the multiple facets which have
attracted the attention of the two Parties in dispute and precluded the
possibilities for erroneous interpretation of the Judgment.
It was a difficult exercise but one to which a solution proved possible,
inasmuch as the operative part itself did not pose any problems. But in
dealing with these difficulties, the Court is laying down the framework for
the development of international law and performing one of its principal
functions, described by Sir Robert Jennings in the following terms:
"Ad hoc tribunals can settle particular disputes; but the function of the
established 'principal judicial organ of the United Nations' must include
not only the settlement of disputes but also the scientific development of
general international law ... there is therefore [p134] nothing strange in
the ICJ fulfilling a similar function for the international community."
(Judge Sir Robert Jennings, "The Role of the International Court of Justice
in the Development of International Environmental Protection Law".)
(Signed) Raymond Ranjeva
[p135]
Separate opinion of judge Vereshchetin
While I am in agreement with the Judgment delivered by the Court, I feel
obliged to deal in this opinion with one important issue which, in my view,
although not addressed in the reasoning of the Judgment, also bars the Court
from adjudicating upon the submissions in the Application of the Portuguese
Republic.
***
Besides Indonesia, in the absence of whose consent the Court is prevented
from exercising its jurisdiction over the Application, there is another
"third party" in this case, whose consent was sought neither by Portugal
before filing the Application with the Court, nor by Australia before
concluding the Timor Gap Treaty. Nevertheless, the applicant State has acted
in this Court in the name of this "third party" and the Treaty has allegedly
jeopardized its natural resources. The "third party" at issue is the people
of East Timor.
Since the Judgment is silent on this matter, one might wrongly conclude that
the people, whose right to self-determination lies at the core of the whole
case, have no role to play in the proceedings. This is not to suggest that
the Court could have placed the States Parties to the case and the people of
East Timor on the same level procedurally. Clearly, only States may be
parties in cases before the Court (Article 34 of the Statute of the Court).
This is merely to say that the right of a people to self-determination, by
definition, requires that the wishes of the people concerned at least be
ascertained and taken into account by the Court.
To do so in this case the Court should have had reliable evidence on how far
the Application was supported by the people of East Timor. It was especially
important in the circumstances of the case, where the rights consequential
to the status of Portugal as administering Power, including the right to
litigate before the Court for the people of East Timor, were strongly
contested by the respondent State. I have no desire whatever to cast any
doubt on Portugal's good intentions in bringing the case before the Court.
However, without clear evidence to the contrary, the Court cannot easily
dismiss the contention that, 20 years after the loss of effective control of
the Territory, Portugal is not in a position to act in the Court with full
knowledge of the wishes and views of the majority of the East Timorese
people.
Even under normal circumstances, the denomination of an applicant State as
administering Power does not diminish the necessity for the Court to check
its claims by reference to the existing evidence of the will [p136] of the
people concerned. As was observed by Portugal in the oral pleadings, the
right of a people to self-determination presumes that:
"In the concrete situation it must be looked at to see whether the interests
of an administering Power (if as is usual, it is still in effective
control), or any other power, really coincide with those of the people." (CR
95/13, p. 36, para. 88 , Prof. Higgins).
This would seem to suggest that the same requirements apply a fortiori to an
administering Power which for many years has not been in effective control
of the territory concerned. Portugal also asserted that it represents the
territory of East Timor in the domain of relations between States "in close
contact with the representatives of the people of East Timor" (CR 95/12, p.
63, para. 21, Prof. Correia). It reproached Australia (in principle quite
rightly) for not having previously "secured the approval of the peoples of
the territory through their leaders" of the Treaty at issue (CR 95/13, p.
38, para. 94 ,Prof. Higgins).
After all these statements, one might have expected Portugal's Application
to be substantiated by credible evidence that Portugal had itself secured
the support of its Application by the East Timorese people. However, neither
in the written pleadings and annexed documents, nor in the course of the
oral arguments and replies, has the Court been provided with such evidence,
except for cursory press references which did not even mention the object of
the dispute - the Timor Gap Treaty (e.g., CR 95/12, pp. 69-70 ,Prof.
Correia).
The necessity for the Court to have this evidence was only reinforced by the
fact that the other Party in the dispute sought to disclaim the alleged
disregard and infringement of the legal rights and interests of the people
of East Timor. It argued, inter alia, that:
"if Australia had done nothing, and refused to negotiate this agreement [the
Timor Gap Treaty] with Indonesia, there would have been no chance of any
exploitation of any of the disputed areas: the economic benefits to the
people would have been nil" (CR 95/11, p. 42, Prof. Bowett).
Moreover, "[I]n Australia's view, the real situation is that East Timor will
be deriving economic benefits from resources on the Australian shelf."
(Ibid., p. 44.) In its Rejoinder, Australia also argues that: "The Treaty is
potentially far more beneficial to the people of East Timor provided
Indonesia passed on an equitable part of the benefits to the people." (p.
72, para. 160.) And that the: "Judicial recourse by Portugal against
Australia is not, therefore, 'le moyen le plus effectif' by which the rights
of the people of East Timor to their natural resources can be protected."
(Ibid., p. 73, para. 160.)
The argument of Australia on this crucial matter for the case has also not
been supported by any evidence of the previous consultation of the [p137]
people of East Timor, and therefore did not sound convincing. However, since
the Court, for the reasons stated in the body of the Judgment, stopped short
of deciding the dispute on the merits, it could not be expected to pronounce
on Australia's duty (or lack of it) to consult the East Timorese people.
The matter is quite different when it comes to Portugal's duty to consult
the leaders or representatives of the people before submitting the case to
the Court on its behalf. In the latter instance, the question was connected
with the admissibility of the Application and remained within the framework
of the preliminary jurisdictional finding of the Court. The Court should
have reacted to the repeated statements by Portugal that its rights and
interests in this case were only "functional" and that "the main interest in
bringing the present proceedings belongs to the people of East Timor" (CR
95/6, p. 56, para. 15, Prof. Correia).
True, in the Western Sahara Advisory Opinion the Court noted that:
"The validity of the principle of self-determination, defined as the need to
pay regard to the freely expressed will of peoples, is not affected by the
fact that in certain cases the General Assembly has dispensed with the
requirement of consulting the inhabitants of a given territory." (I.C.J.
Reports 1975, p. 25, para. 59.)
The Court went on to say that:
"Those instances were based either on the consideration that a certain
population did not constitute a 'people' entitled to self-determination or
on the conviction that a consultation was totally unnecessary, in view of
special circumstances." (Ibid.)
In the instance of East Timor, however, the General Assembly has found it
appropriate not "to dispense" with the requirement of consulting the
inhabitants of East Timor in "exploring avenues for achieving a
comprehensive settlement of the problem" (General Assembly resolution 37/30
of 23 November 1982). The Assembly required the Secretary-General "to
initiate consultations with all parties directly concerned" (ibid.; emphasis
added).
In accordance with this resolution, the Secretary-General has been holding
consultations, not only with the Governments of Indonesia and Portugal, but
"with a broad cross-section of East Timorese representing various trends of
opinion" as well (doc. SG/SM/5519 of 9 Jan. 1995). Thus, in the
consultations under way in the United Nations on the future of East Timor,
the East Timorese people is considered as a distinct party "directly
concerned", which can speak for itself through its representatives.
In contrast to the instances mentioned in the above dictum of the Court in
the Western Sahara case, where the consultation of the inhabitants of a
given territory "was totally unnecessary, in view of special circumstances",
in the case before the Court the "special circumstances" described above
dictate the necessity for the Court at least to ascertain [p138] the views
of the East Timorese representatives of various trends of opinion on the
subject matter of the Portuguese Application.
In the absence of direct evidence of these views, which admittedly may be
difficult to obtain given the present situation in East Timor, the Court
could have been provided with the opinion of the appropriate organs of the
United Nations, which exercise overall supervision of the non-self-governing
territories. However, the Court has not had its attention drawn to any
pronouncements of the Security Council, the General Assembly, the Committee
of 24 or any other organs of the United Nations which could serve as an
expression of the international community's concern regarding the concrete
matter under consideration in the Court. In the course of the pleadings no
reference was made to any resolutions of these organs challenging the Timor
Gap Treaty, or reflecting the overt discontent of the people of East Timor
with that Treaty (as is the case, for instance, with the human rights
situation in East Timor). This, moreover, despite the fact that the Treaty
had been under negotiation for ten years, and that Portugal had informed the
Secretary-General, and through him, all the Members of the United Nations of
her protest on the occasion of its conclusion in 1989.
The United Nations Charter, having been adopted at the very outset of the
process of decolonization, could not explicitly impose on the administering
Power the obligation to consult the people of a non-self-governing territory
when the matter at issue directly concerned that people. This does not mean,
however, that such a duty has no place at all in international law at the
present stage of its development and in the contemporary setting of the
decolonization process, after the adoption of the Declaration on the
Granting of Independence to Colonial Countries and Peoples (General Assembly
resolution 1514 (XV)).
In the Western Sahara Advisory Opinion the Court states that: "in certain
cases the General Assembly has dispensed with the requirement of consulting
the inhabitants of a given territory" (I.C.J. Reports 1975, p. 25, para. 59;
emphasis added). By implication, it means that, as a rule, the requirement
to consult does exist and only "in certain cases" may it be dispensed with.
The exceptions to this rule are stated in the same dictum of the Court and,
as has been shown above,
they could not be held to apply in the present case. I believe that nowadays
the mere denomination of a State as administering Power may not be
interpreted as automatically conferring upon that State general power to
take action on behalf of the people concerned, irrespective of any concrete
circumstances.
In light of the above considerations, I conclude that the absence of
Indonesia's consent is but one of the reasons leading to the inability of
the Court to decide the dispute. The other, in my opinion, no less
important, reason is the lack of any evidence as to the views of the people
of East Timor, on whose behalf the Application has been filed.
(Signed) Vladlen S. Vereshchetin
[p139]
Dissenting opinion of judge Weeramantry
|
Table of contents |
|
|
Pages |
|
|
|
|
Introduction |
142 |
|
|
|
|
Linkage between jurisdiction and the merits
|
143 |
|
The background |
144 |
|
The Timor Gap Treaty |
147 |
|
Scheme of opinion |
149 |
|
|
|
|
Part
A.
The
Position of Third Party States
|
150 |
|
|
|
|
1. The jurisdictional issue
|
150 |
|
|
|
|
(i) The contentions of the Parties
|
150 |
|
(ii) The circumstances before the Court
|
150 |
|
(iii) Do the circumstances of the case attract any
necessity to consider a third State's conduct
|
153 |
|
(iv) Is the Court under an obligation to
reinvestigate matters dealt with in the United Nations resolutions?
|
154 |
|
|
|
|
2. The
Monetary Gold
principle
|
156 |
|
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|
|
(i) Subject-matter |
156 |
|
(ii) Parties |
156 |
|
(iii) Rationale |
156 |
|
(iv) Italian and United Kingdom claims distinguished
|
157 |
|
(v) The third party principle and the judicial duty
to decide |
158 |
|
(vi) The test of reasonableness
|
161 |
|
(vii) Prior jurisprudence |
163 |
|
|
|
|
(a)
Advisory Opinions |
163 |
|
(b)
Contentious cases
|
164 |
|
|
|
|
(viii) Subsequent jurisprudence
|
167 |
|
|
|
|
3. Other relevant factors |
169 |
|
|
|
|
(i) Third party safeguards |
169 |
|
(ii) The principle of individual State responsibility
|
170 |
|
(iii) Rights
erga omnes
|
172 |
|
(iv) Increasingly multilateral nature of modern
international obligations |
173 |
|
(v) The distinction between a treaty and the
unilateral acts from which it results |
173 |
|
(vi) Has the wrong party been sued?
|
174 |
|
(vii) Historical background
|
176 |
|
(viii) Conclusion |
178 |
|
[p 140] |
|
|
Part B.
The
Jus Standi
of
Portugal |
178 |
|
|
|
|
(i) The respective positions of the Parties
|
178 |
|
(ii) Structure of United Nations Charter provisions
regarding dependent territories |
179 |
|
(iii) Is the United Nations a substitute for a
displaced administering Power? |
181 |
|
(iv) The right of representation
|
181 |
|
(v) Resolutions recognizing Portugal's status as
administering Power |
182 |
|
(vi) Legal force of the resolutions
|
185 |
|
|
|
|
(a)
General Assembly resolutions
|
185 |
|
(b)
Security Council
resolutions |
188 |
|
|
|
|
(vii) Does Portugal need prior United Nations
authorization to maintain this action? |
188 |
|
(viii) Are the resolutions affected by diminishing
United Nations support? |
189 |
|
(ix) Have the resolutions lapsed through desuetude?
|
190 |
|
(x) Have the resolutions been nullified by
supervening events? |
191 |
|
(xi) Is Portugal's colonial record relevant?
|
191 |
|
|
|
|
Part
C.
The
Rights of East Timor
|
193 |
|
|
|
|
(i) East Timor is a territory unquestionably entitled
to self-determination |
193 |
|
(ii) The principle of self-determination
|
193 |
|
(iii) The principle of permanent sovereignty over
natural resources |
197 |
|
(iv) The relevance of United Nations resolutions on
self-determination |
199 |
|
(v) Australia's position in relation to
self-determination |
200 |
|
(vi) The incompatibility between recognition of
Indonesian sovereignty over East Timor and the recognition of East
Timor as a non-self-governing territory |
201 |
|
(vii) The suggested clash between the rights of the
people of East Timor and the rights of the people of Australia
|
202 |
|
|
|
|
Part
D.
The
Obligations of Australia
|
204 |
|
|
|
|
A. Obligations under general international law
|
205 |
|
|
|
|
(i) Obligations stemming from the general sources of
international law |
205 |
|
(ii) Obligations expressly undertaken by treaty
|
205 |
|
|
|
|
B.
Obligations under
United Nations resolutions |
205 |
|
|
|
|
C. Some juristic perspectives
|
208 |
|
|
|
|
(i) The correlativity of rights and duties
|
208 |
|
(ii) Is duty limited to compliance with specific
directions and prohibitions? |
209 |
|
(iii) Obligations stemming from the
erga omnes
concept
|
213 |
|
[p 141] |
|
|
Part
E.
Australia's Objections Based on Judicial Propriety
|
216 |
|
|
|
|
(i) Absence of a justiciable dispute
|
217 |
|
(ii) Misuse of the process of the Court
|
217 |
|
(iii) The Judgment would not serve any legitimate
object |
217 |
|
(iv) The Judgment would serve no useful purpose in
that it would not promote the interests of East Timor
|
218 |
|
(v) The Court should not give a judgment which it has
no authority
or ability to satisfy
|
219 |
|
(vi) Is the Court an inappropriate forum?
|
219 |
|
|
|
|
Conclusion
|
220 |
[p142]
Introduction
I respectfully agree with the first part of the Court's decision, wherein
the Court dismisses Australia's objection that no real dispute exists
between itself and Portugal. It is my view that such a real dispute does
exist and I support the Court's Judgment on this point.
I am also in agreement with the Court's observations in regard to the right
to self-determination of the people of East Timor, their right to permanent
sovereignty over their natural resources, and the erga omnes nature of these
rights. The stress laid by the Court on self-determination as "one of the
essential principles of contemporary international law" (Judgment, para. 29)
has my complete and unqualified support.
However, I regret that my conclusions in regard to the second part of the
Judgment differ from those of the great majority of my colleagues, who have
held that the Court cannot adjudicate on Portugal's claim in the absence of
Indonesia. In deference to their opinion and in recognition of the
importance of the issue, I feel obliged to set out in some detail the
reasons for my conclusion that the absence of Indonesia does not prevent the
Court from considering Portugal's claim.
Apart from its being a crucial factor in this case, the principle involved
is important to the jurisprudence of the Court, for it concerns the Court's
jurisdictional reach in the wide range of third- party-related disputes
which are increasingly brought before it in a more closely interrelated
world.
Had the Court ruled differently on the preliminary issue of jurisdiction,
there are numerous other issues of great importance which it would have
considered in its Judgment. In view of its preliminary ruling, the Court's
Judgment stops, so to speak, "at the threshold of the case"FN1. It therefore
does not examine such seminal issues as the duties flowing to Australia from
the right to self-determination of the people of East Timor or from their
right to permanent sovereignty over their natural resources. It does not
examine the impact of the Timor Gap Treaty upon their rights. It does not
examine the ius standi of Portugal to institute this action on behalf of the
people of East Timor.
---------------------------------------------------------------------------------------------------------------------
FN1 To use the language of Judge Jessup at the commencement of his dissenting
opinion in South West Africa, Second Phase, Judgment, I.C.J. Reports 1966,
p. 325.
---------------------------------------------------------------------------------------------------------------------
The preliminary objection to the ius standi of Portugal calls into question
the adequacy of the entire protective structure fashioned by the UN Charter
for safeguarding the interests of non-self-governing territories, not yet in
a position themselves to look after their own interests.
Australia's submission that it is not in breach of any international duty [p143] necessitates a consideration of State obligations implicit in the
principle of self- determination, the very basis of nationhood of the
majority of Member States of the United Nations. It raises also the
important juristic question of the nature of international duties
correlative to rights erga omnes. Are they limited to mere compliance with
specific directions and prohibitions, or are they set in the context of an
overarching principle, transcending specific directions and prohibitions?
The jurisdictional objections raised by Australia require some consideration
also of the status and legal consequences of resolutions of the General
Assembly and the Security Council. In addition, there are several questions
relating to judicial propriety which were stressed by Australia in its
submissions.
Linkage between Jurisdiction and the Merits
Since these issues were fully argued by both sides, since they are all of
deep significance, and since the view I take crosses the jurisdictional
threshold into the substance of the case, my judicial duty compels me to
address these questionsFN1. In any event, the view I take of the
jurisdictional objection upheld by the Court requires a consideration of all
these matters, quite apart from their relevance to the merits. There is in
this case such a close interlinkage between the preliminary objections and
the merits that the former cannot be considered apart from the latter.
---------------------------------------------------------------------------------------------------------------------
FN1 See Judge Jessup, in South West Africa: “Since it is my finding that the
Court has jurisdiction,…I consider it my judicial duty to examine the legal
issues in this case…”
---------------------------------------------------------------------------------------------------------------------
At a meeting convened by the President of the Court on 1 June 1992, in terms
of Article 31 of the Rules of Court, the Parties agreed that questions
raised by Australia regarding jurisdiction and admissibility were
inextricably linked to the merits, and should therefore be heard and
determined along with the merits. There was therefore a full hearing, both
on the preliminary issues and on the merits.
This was in line with the position stated in the Australian Counter-Memorial
that:
"these bars to the Court's right to hear the claim are, in this case,
inextricably linked with the merits so that it could be difficult to deal
with them separately and to establish that they possess an exclusively
preliminary character" (Counter-Memorial, p. 9, para. 20).
In the result, this case does not present that sharp division between
questions of jurisdiction and admissibility, and questions relating to the
[p144] merits, that is often present in cases before this Court, such as
the South West Africa cases.
The Background
A short preliminary recital of some of the surrounding circumstances will
place in context the ensuing legal discussions.
Portugal's long colonial occupation of East Timor, which had commenced in
the sixteenth century, came to an end more than four centuries later in
1975, when the Portuguese administration withdrew from the territory.
Initially the Portuguese administration withdrew from the mainland to the
island of Atauro, also a part of the Territory, on 27 August 1975. Three
months after the Portuguese evacuation of the mainland, on 28 November 1975,
the FRETILIN (Frente Revolucionária de Timor-Leste Independente), a group
seeking independence for the territory, declared independence. A few days
later, on 7 December 1975, Indonesian military forces entered East Timor.
The next day the Portuguese administration withdrew from Atauro.
Indonesia has been in control of the Territory since the entry of its
military forces, and enacted a law on 17 July 1976 incorporating East Timor
into its national territory, on the basis that the people of East Timor had
on 31 May 1976 requested Indonesia to accept East Timor as an integral part
of Indonesian territory. However, this incorporation has not thus far been
accepted or recognized by the United Nations which, in the language of the
Secretary-General, is engaged in the search for "a comprehensive and
internationally acceptable solution to the question of East Timor"FN1. The
question of East Timor, still not the subject of the internationally
acceptable solution sought by the Secretary-General, receives continuing
attention in the reports of the Secretary- General. It is also kept by the
General Assembly as an item on its agenda from year to year.
---------------------------------------------------------------------------------------------------------------------
FN1 Progress Report of 11 September 1992, A/47/435, para. 1 (see Reply, Vol.
II, Ann. 1.8). See, to the same effect, Report of the Secretary-General on
the Work of the Organization. 2 September 1994, A/49/1, para. 505.
---------------------------------------------------------------------------------------------------------------------
Several resolutions of the Security Council and the General Assembly refer
to the circumstances in which the Portuguese withdrawal and the Indonesian
occupation occurred. It will suffice to refer at this point to two Security
Council resolutions - resolutions 384 and 389 of 22 December 1975 and 22
April 1976, respectively.
The first of these noted that General Assembly resolution 3485 (XXX) of 12
December 1975 had requested the Committee of Twenty-four (the Special
Committee on the Situation with regard to the Implementation of the
Declaration on the Granting of Independence to Colonial Countries and
Peoples) to send a fact- finding mission to East Timor, and expressed grave
concern at the deterioration of the situation in that territory. [p145]
Expressing grave concern also at the loss of life in East Timor, it deplored
the intervention of the armed forces of Indonesia in East Timor. The
resolution further expressed regret that the Government of Portugal had not
discharged fully its responsibilities as administering Power in the
Territory under Chapter XI of the Charter.
Against this background, it:
"1. Calls upon all States to respect the territorial integrity of East Timor
as well as the inalienable right of its people to self-determination in
accordance with General Assembly resolution 1514 (XV);
2. Calls upon the Government of Indonesia to withdraw without delay all its
forces from the Territory;
3. Calls upon the Government of Portugal as administering Power to
co-operate fully with the United Nations so as to enable the people of East
Timor to exercise freely their right to self-determination;
4. Urges all States and other parties concerned to co- operate fully with
the efforts of the United Nations to achieve a peaceful solution to the
existing situation and to facilitate the decolonization of the Territory".
The second resolution again reaffirmed:
"the inalienable right of the people of East Timor to self- determination
and independence in accordance with the principles of the Charter of the
United Nations and the Declaration on the Granting of Independence to
Colonial Countries and Peoples, contained in General Assembly resolution
1514 (XV) of 14 December 1960"
and called upon all States:
"to respect the territorial integrity of East Timor, as well as the
inalienable right of its people to self-determination in accordance with
General Assembly resolution 1514 (XV)".
It also called upon the Government of Indonesia "to withdraw without further
delay all its forces from the Territory".
Australia was heard before each of these Security Council resolutions was
passed.
Six days before the first resolution, at the 1865th meeting of the Security
Council, held on 16 December 1975, the Australian representative, invited by
the President to make a statement, observed:
"The immediate requirement as we see it, is for a cease- fire, to spare the
people of Timor further bloodshed and to create a climate in which a
constructive programme of decolonization can be resumed" (United Nations,
Official Records of the Security Council,[p146] Thirtieth Year, 1865th
Meeting, 16 December 1975, para. 99; Memorial, Vol. II, Ann.,II.24)
and he concluded his statement as follows:
"In conclusion, I would once again emphasize, as indeed the General Assembly
did in its resolution 3485 (XXX), that the purpose and aim of the United
Nations, underlying any action which the Council may decide, is to enable
the people of the Territory freely to exercise their right to self-
determination. The main question now is to establish conditions in which the
people of Timor can make its own free choice." (Ibid., para. 106; Memorial,
ibid., p. 159.)
Eight days before the second resolution, at the 1909th Meeting of the
Security Council held on 14 April 1976, the Australian representative, again
invited by the President to make his statement, said:
"In my last statement to the Council on East Timor [1865th meeting] I
emphasized that the Australian Government and people were most conscious
that a stable settlement in East Timor could rest only on the free choice by
the people concerned. It remains the firm policy of the Australian
Government that the people of the Territory should exercise freely and
effectively their right to self-determination, and, if their decision is to
have any validity, it must be made in the full knowledge of the alternatives
from which they are to make their choice. My Government does not, however,
presume to lay down any precise formula or modalities for
self-determination. We should prefer to respond to the wishes of the
Timorese people themselves as to the best means by which they might
genuinely exercise their right of self-determination." (United Nations,
Official Records of the Security Council, Thirty-first Year, 1909th Meeting,
14 April 1976, para. 38; Memorial, ibid., p. 214.)
It is not necessary at this point to recapitulate the terms of the several
General Assembly resolutions (eight in all), each of which stressed the
importance of East Timor's right to self-determination, and proceeded on the
basis that that right had yet to be exercised. They will be referred to in
due course later in this opinion.
Portugal, claiming that it is still the administering Power of East Timor,
seeks relief in this case against Australia in relation to a treaty entered
into on 11 December 1989 between Australia and Indonesia. The treaty related
to the resources lying between the coastal littorals of East Timor and
Australia. This treaty has been referred to in the proceedings as the Timor
Gap Treaty, from the circumstance that the delimitation of the continental
shelf between Australia and Indonesia stopped short on either side of that
portion of the shelf lying between the south coast of East Timor and the
north coast of Australia. This undelimited part of the [p147] continental
shelf is referred to as the Timor Gap (Memorial, Vol. I, p. 52, para. 2.01).
It should be added that the jurisdiction of this Court is based upon
Australia's declaration under Article 36(2), by which Australia has
submitted to the jurisdiction of this Court. Indonesia has not filed a
declaration under Article 36(2).
The Timor Gap Treaty
This Treaty, entered into on 11 December 1989 between Australia and
Indonesia, is alleged by Portugal to infringe the rights of the people of
East Timor. It is titled "Treaty between Australia and the Republic of
Indonesia on the Zone of Cooperation in an area between the Indonesian
Province of East Timor and northern Australia". The preamble recites the
desire of the Parties to
"enable the exploration for and exploitation of the petroleum resources of
the continental shelf of the area between the Indonesian Province of East
Timor and northern Australia yet to be the subject of permanent continental
shelf delimitation between the Contracting States".
These petroleum reserves have been estimated, according to Portugal, at
between 500 million and 5000 million barrelsFN1. Whatever their precise
extent, they may safely be assumed to be of considerable value.
---------------------------------------------------------------------------------------------------------------------
FN1 Memorial, Vol. 1, para. 2.02 (citing Australian Yearbook of International
Law, 1981-1983, Vol. 10, p. 135). Some estimates, according to a source
cited in the Portuguese Memorial, arrive at a figure of "up to 7,000 million
barrels, as well as a million barrels of distillates'* {Petroleum Gazette,
No. 3, 1988, p. 18).
---------------------------------------------------------------------------------------------------------------------
Under the Treaty, a joint Australian/Indonesian regime was set up for
exploiting the oil resources on the continental shelf between Australia and
East Timor. The Treaty expressed the desire of the parties that "exploration
for and exploitation of these resources proceed without delay", and provided
for a sharing of these resources as between the two [p148] Governments in a
Zone of Cooperation between the "Indonesian Province of East Timor" and
northern Australia, comprising three areas, A, B and C, on the following
basis:
"(a) In Area A, there shall be joint control by the Contracting States of
the exploration for and exploitation of petroleum resources, aimed at
achieving optimum commercial utilization thereof and equal sharing between
the two Contracting States of the benefits of the exploitation of petroleum
resources, as provided for in this Treaty;
(b) In Area B, Australia shall make certain notifications and share with the
Republic of Indonesia Resource Rent Tax collections arising from petroleum
production on the basis of Article 4 of this Treaty; and
(c) In Area C, the Republic of Indonesia shall make certain notifications
and share with the Australia Contractors' Income Tax collections arising
from petroleum production on the basis of Article 4 of this Treaty."
(Portuguese Application Instituting Proceedings, Annexes, pp. 28- 29.)
Article 33 provides that the Treaty shall remain in force for an initial
period of forty years from the date of its entry into force. Unless the two
Contracting States agree otherwise, it shall continue in force after the
initial forty year term for successive terms of twenty years, unless by the
end of each term, including the initial term of forty years, the two States
have concluded an agreement on the permanent continental shelf delimitation
in the area covered by the Zone of Cooperation.
The preambular paragraph to the Treaty recites that they are provisional
arrangements which "do not jeopardize or hamper the reaching of final
agreement on the delimitation of the continental shelf".
To give effect to this Treaty, the Petroleum (Australia-Indonesia Zone of
Cooperation) Act 1990 (No. 36 of 1990) was passed by the Parliament of
Australia. Article 3 states that the object of the Act is to enable
Australia to fulfil its obligations under the Treaty. Under Article 8:
"A person must not undertake petroleum operations in Area A of the Zone of
Cooperation except under and in accordance with a production sharing
contract, or with the approval of the Joint Authority"(Application, Ann.2)
established under Article 7 of the Treaty.
The internal legislative measures taken by Australia for the implementation
of the Treaty are among the acts which are alleged by Portugal to infringe
the rights of the people of East Timor, the powers of Portugal as [p149]
administering authority, the relevant Security Council resolutions and the
obligations incumbent on Member States to co- operate in good faith with the
United Nations.
Scheme of opinion
This opinion will analyse in Part A the third-party rule, concentrating on
what has been described as the principle in Monetary Gold, which has been
urged by Australia as presenting a preliminary objection to the Court's
jurisdiction. This principle is the basis on which Portugal's action is
dismissed by the Court. The purpose of this analysis is to ascertain whether
Australia's actions, taken by themselves, can be viewed as constituting a
breach by Australia of its own duties under international law, quite apart
from the duties and actions of Indonesia. If the answer to this question is
in the affirmative, an independent cause of action would be maintainable
against Australia, without any necessity to pass judgment upon the legal
duties and conduct of Indonesia.
Part B will deal with the objection relating to Portugal's status to
institute these proceedings. Among the matters arising under this head are
the protective structure of the United Nations Charter in relation to
non-self-governing territories, the legal force of the relevant UN
resolutions, and the question whether Portugal needed prior UN authorization
to maintain this Application.
The question of jurisdiction depends on whether a cause of action can be
made out against Australia, based upon Australia's individual obligations
under international law, and Australia's individual actions, quite
independently of Indonesia. For this purpose, it will be necessary in this
opinion to examine the rights of East Timor under international law, and the
international obligations of Australia in relation to those rights.
Part C therefore examines the rights of self-determination and permanent
sovereignty over natural resources enjoyed by the people of East Timor.
These are the principles on which Portugal's substantive case depends.
Granted the applicability of these principles to East Timor, the central
question for determination is whether the actions of the Respondent State
are in accordance with those principles.
Part D will analyse the international obligations of Australia. It will
scrutinize the juristic nature of the general legal duties lying upon all
States in respect of self-determination, and the particular legal duties
lying upon Australia vis-à-vis East Timor. It will then examine whether,
through its conduct in entering into the Timor Gap Treaty, Australia was in
breach of its international legal duties.
Part E deals with matters relating to judicial propriety, on which a
many-faceted argument was presented by Australia. This opinion does [p150]
not deal with Australia's submission regarding the absence of a justiciable
dispute, as that has been dealt with in the Court's Judgment. However, it
considers briefly some of Australia's other contentions - such as the
contentions that the proceedings are a misuse of the processes of the Court,
that they have an illegitimate object, and that they have been instituted
before an inappropriate forum.
This opinion does not touch any matter which travels outside the scope of
the preliminary objections raised by Australia. Nor does it touch upon any
actions or conduct of Indonesia, apart from the circumstance of Indonesia's
military intervention, which has been referred to also in the Judgment of
the Court (para. 14).
Part A. The position of third party states
1. The jurisdictional issue
(i) The contentions of the Parties
In seeking relief against Australia in respect of this Treaty, is Portugal
entering judicial ground not traversable except in the presence of
Indonesia? Is this in fact a contest between Portugal and Indonesia under
guise of a contest with another State which is not the true respondent? If
the answers to these questions are in the affirmative, Australia's
submissions must be accepted, and Portugal's claim must be dismissed.
Australia invokes Monetary Gold Removed from Rome in 1943 (I.C.J. Reports
1954, p. 19) as a central authority on which it rests its contention that
the Court lacks jurisdiction to entertain Portugal's claim. Australia's
contention is that a determination against Australia necessarily involves as
a prerequisite a determination against Indonesia in regard to the illegality
of its occupation of East Timor. Since Indonesia is not before the Court, it
is argued that the principle of Monetary Gold, which decided that the Court
could not adjudicate upon Italian and United Kingdom claims to a certain
quantity of Albanian gold in the absence of Albania, operates as a
jurisdictional barrier to Portugal's claim.
Portugal, on the other hand, submits that its claim is not against
Indonesia, but against Australia, that the wrongdoing it alleges is not
against Indonesia, but against Australia, and that the totality of its case
is made up only of elements drawn from Australia's own international
obligations, and Australia's own unilateral actions. It submits that
Indonesia may well be affected by the Judgment, but that it is Australia's,
and not Indonesia's, conduct that is the very subject-matter of the case.
(ii) The circumstances before the Court
The question of jurisdiction is not an isolated question of law, but a mixed
question of law and fact. [p151]
As observed in a well known treatise on the Court's power to determine its
own jurisdiction:
"The power of the International Court to determine its jurisdiction has
therefore two aspects: the interpretation of the jurisdictional instruments
and the interpretation (and characterization) of the facts of the dispute
itself. In fact, the jurisdiction of the Court can result only from the
interaction of the elements involved in this process."FN1
------------------------------------------------------------------------------------------------------------
FN1Ibrahim
F.I. Shihata, The Power of the International Court to Determine its Own
Jurisdiction, 1965, p. 299.
------------------------------------------------------------------------------------------------------------
It becomes necessary, therefore, as a backdrop to the ensuing discussion, to
refer briefly to some of the salient facts.
The circumstances which are either admitted by Australia, or manifest on the
documents, or of sufficient notoriety for the Court to take judicial notice
of them, are as follows:
(a) the people of East Timor have a right to self- determination which
Australia is obliged to recognize (see Part C, infra.);
(b) the people of East Timor have a right to permanent sovereignty over the
natural resources of the territory, which Australia is obliged to recognize
(for a fuller discussion, see Part C, infra.);
(c) among these resources are a share of the maritime resources of the Timor
Gap area, i.e., the portion of sea situated between the opposite coasts of
East Timor and Australia - a resource they share with Australia;
(d) those resources continue to belong in law to East Timor, so long as East
Timor remains a non-self-governing territory;
(e) Australia has admitted throughout the case that East Timor still remains
a non-self-governing territoryFN2;
---------------------------------------------------------------------------------------------------------------------
FN2
Australia’s agent stated in the proceedings, on 16 February 1995:
“Australia recognizes that the people of East Timor have the right to
self-determination under Chapter XI of the United Nations Charter. East
Timor remains a non-self-governing territory under Chapter XI. Australia
recognized this position long before Portugal accepted it in 1974. It has
repeated this position, both before and after its recognition of Indonesian
sovereignty and it says so now.” (CR 95/14,p.13.)
---------------------------------------------------------------------------------------------------------------------
(f) the United Nations still regards East Timor as a non- self governing
territory;
(g) this area is extremely rich in oil and natural gas potential. Whatever
its extent, it forms in all probability the principal economic asset of the
East Timorese people, awaiting them at such time as they achieve
self-determination; [p152]
(h) Portugal, the former colonial authority, has left the territory, but is
still considered by the United Nations to be the administering authority;
(i) no other power has been recognized by the United Nations as having
authority over the territory;
(j) on 7 December 1975, Indonesian military forces occupied the territory,
and Indonesia is now in full control thereof;
(k) Indonesia has not, to this date, been recognized by the United Nations
as having authority over the territory, and, nearly twenty years after the
Indonesian occupation, the United Nations is still engaged in a search for
an "internationally acceptable solution to the question of East Timor"
(Reply, Vol. II, p. 59);
(l) Australia has entered into a Treaty with Indonesia, dividing between
Australia and Indonesia the resources of the Timor Gap area;
(m) in that Treaty, Australia expressly recognizes East Timor as "the
Indonesian Province of East Timor";
(n) confronted with the legitimate need to exploit its own resources, and
needing, for this purpose, a treaty with the opposite coastal State,
Australia did not seek directions or authorization from the United Nations
before entering into this Treaty, despite the facts that East Timor was
still a non-self-governing territory, and that the United Nations had not
recognized the incorporation of the territory into Indonesia. No suggestion
was made before the Court that any such direction or authorization was
sought;
(o) this Treaty has been entered into for an initial period of 40 years,
with possible renewals for 20 years at a time;
(p) the Treaty makes no provision for any proceeds of exploitation of the
area to be earmarked for the people of East Timor whenever their status is
determined;
(q) the people of East Timor have never at any stage, either directly or
through any duly constituted legal representative, given their consent to
the Treaty;
(r) while Australia is entitled to its share of the resources of the Timor
Gap area, no delimitation, in a manner recognized by law, has thus far taken
place between Australia and East Timor. Till such time, the exact division
between Australian and East Timorese resources must remain unclear. The
possibility must therefore exist of some benefit to Australia from East
Timorese resources which, upon another division according to law, might have
been allotted to East Timor;
(s) Australia has joined in a treaty under which a non- renewable natural
resource would, to the extent of its exploitation under the Treaty, be
permanently lost to the people of East Timor. Over a period of 40 years, the
entire resource could well be lost for ever;
(t) Portugal cannot, in law, obtain any financial benefits for itself from
[p153] this action, if successful, and will need to report to the United
Nations and to act under UN supervision.
The entirety of the opinion that follows does not travel beyond the
circumstances itemized above.
(iii) Do the circumstances of the case attract any necessity to consider a
third State's conduct?
It is against this specific background of admitted or manifest circumstances
that the preliminary objection must be considered as to whether the
"Monetary Gold principle" presents a barrier to the consideration of
Portugal's claim. It has been strenuously argued that Monetary Gold does
present such a barrier. Having regard to the multiplicity of circumstances
set out above, which relate to Australia's obligations and actions alone, I
regret very much that I am unable to agree. In my view, all the essentials
necessary for the Court to adjudicate upon Portugal's claim against
Australia are present, without the need for any adjudication against
Indonesia.
Australia is party to a treaty which deals, inter alia, with resources
acknowledgedly belonging to the East Timorese people, who are acknowledgedly
a non-self-governing people. So long as they continue to be a
non-self-governing people, those resources will continue to belong to them
by incontrovertible principles of the law of nations. At such time as they
achieve self-determination, they may deal with these resources in such
manner as they freely choose. Until such time, the international legal
system protects their rights for them, and must take serious note of any
event by which their rights are disposed of, or otherwise dealt with,
without their consent. Indeed, the deepest significance of the right of a
non-self-governing people to permanent sovereignty over natural resources
lies in the fact that the international community is under an obligation to
protect these assets for them.
The Respondent fully acknowledges that East Timor is still a
non-self-governing territory and so, also, does the United Nations, which is
the appropriate authority on these matters. While the United Nations still
awaits "an internationally acceptable solution" to the question, the Court
must examine whether it accords with the international rule of law that any
Member State of the United Nations should be in a position:
(a) to enter into a Treaty with another State, recognizing that the
territory awaiting self-determination has been incorporated into another
State as a province of that State; and
(b) to be party to arrangements in that Treaty which deal with the resources
of that Territory, without the consent either of the people of the
Territory, or of their authorized representative.
[p154]
That is the dominant issue before the Court. It centres on the actions of
the Respondent and not of the third State.
In the light of the totality of incontrovertible circumstances outlined
earlier in this section, the Court does not need to enter into an inquiry
into the lawfulness of the conduct of that third State or of its presence in
East Timor.
If East Timor is still a non-self-governing territory, every member of the
community of nations, including Australia, is under a duty to recognize its
right to self-determination and permanent sovereignty over its natural
resources. If this is so, as is indubitably the case, the Court would be in
possession of all the factual material necessary for the Court to pronounce
upon the responsibility of the Respondent State, which is in fact before it.
Nor would it, in the slightest degree, be encroaching upon the prohibited
judicial territory of making a judicial determination in relation to an
absent third party.
(iv) Is the Court under an obligation to reinvestigate matters dealt with in
the UN resolutions?
Australia submits that, despite the UN resolutions calling upon the
Government of Indonesia to withdraw its military forces from East Timor,
reaffirming the right of the people of East Timor to self- determination,
and rejecting the claim that East Timor has been incorporated into
Indonesia, the Court would itself have to determine the question of the
legality of Indonesia's control over East Timor, were it to proceed with
this case. In the absence of such a determination, according to the
Australian submission, the Court cannot hold that Indonesia could not
lawfully enter into the Treaty and, without such a finding, the Court cannot
hold that Australia has acted wrongfully in entering into the Treaty.
To enter upon such an inquiry would be to enter upon an immense factual and
political investigation. It would call for an examination de novo of
voluminous evidence regarding the circumstances of Indonesia's military
entry into and subsequent control over East Timor and of the numerous
intricate military, political and diplomatic activities involved in any such
military intervention, followed by continuing occupation. Upon this
evidentiary material, the Court would be required to reach a judicial
determination. Nor is it possible in any event to engage in such an inquiry
in the absence of Indonesia.
Such an argument disregards the fact that the materials essential to
decision are already before the Court. It disregards the practicalities of
the judicial process. It disregards the scheme of the UN Charter which
distributes appropriate tasks and responsibilities among the principal
organs of the United Nations. By postulating a virtual impossibility as a
prerequisite to justice, it denies justice, however legitimate the claim.[p155]
The Court cannot be reduced to inaction in this fashion by throwing upon it
a burden duly discharged by the appropriate UN organs, acting within their
proper authority. Such a position seems too artificial and removed from
reality to be the law or the procedure under which this Court functions.
Of course, this Court, as the principal judicial organ of the United
Nations, can in appropriate circumstances be called upon to consider whether
a particular organ of the United Nations has acted beyond its authority or
in a manner not authorized by law. Such issues have been brought before this
Court in cases such as Questions of Interpretation and Application of the
1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom) and (Libyan Arab Jamahiriya v.
United States of America) (I.C.J. Reports 1992, p. 3 and p. 114,
respectively). No suggestion has been made of any such circumstances in the
present case. The only grounds on which the force of the resolutions has
been attacked is that, owing to a supposedly diminishing support for them
upon a counting of votes and, owing to the lapse of time since their
adoption, they have in some way lost their authority. There is no warrant in
United Nations law for either of these contentions, as more fully discussed
later.
In short, the substantive and procedural principles governing this Court's
jurisdiction cannot operate so restrictively as to prevent it from reaching
a determination in a case such as this, where all the ingredients necessary
to such a decision are before it and where that decision can be reached
without trespassing upon the rule enshrined in the Court's Statute that its
jurisdiction flows only from consent. That the judgment will affect the
interests of a third party State is not a factor which, according to the
well established jurisprudence upon this matter, operates as a barrier to
jurisdiction. Such effects upon third parties are always part of the
judicial process and are manifesting themselves increasingly as the world
contracts into a more closely interknit community.
These aspects are more fully considered later in this opinion.
***
The purpose of the foregoing discussion has been to show that the
circumstances of this case render the Monetary Gold principle inapplicable,
in that the claim against the Respondent State does not in any way
necessitate the investigation of the conduct of a third party State and,
least of all, a judicial finding against it.
However, in view of the great importance attached to it in the argument
before the Court, and in deference to the Court's reliance on the principle,
this opinion turns now to a more detailed consideration of the Monetary Gold
case to ascertain whether, even if it were applicable, it would present any
barrier to Portugal's claim.[p156]
2. The Monetary Gold principle
(i) Subject-matter
One of the matters at issue in Monetary Gold was whether Albanian gold
should be awarded to Italy on the basis of Albanian wrongdoing. It was
clearly impossible for the Court to determine this question in the absence
of Albania, whose property and wrongdoing were the very subject-matter on
which the Italian claim was based.
The present case presents a totally different picture. The obligations and
the conduct of Indonesia are not the very subject- matter of this case. The
obligations and the conduct of Australia are, and Australia is before the
Court.
Independently of an inquiry into the conduct of Indonesia, the preceding
section of this opinion has shown that the Court has before it sufficient
materials relating to the duties, the responsibilities and the actions of
Australia, to enable it to make a pronouncement thereon. It does not need to
open up vast expanses of inquiry into Indonesia's conduct, or military
operations or any other items which may have provoked international concern,
to decide this matter. Far less does it need to adjudicate upon these. The
sharp focus upon Australia's acts and responsibilities which is necessary
for a determination of these issues can only be blurred by such an
undertaking.
(ii) Parties
In Monetary Gold the two States between whose rights the Court was called
upon to adjudicate were Italy and Albania in the first claim, and the United
Kingdom and Albania in regard to the second (see section (iv) below).
Albania, the State whose property was sought to be appropriated, and whose
wrongdoing was alleged, was not before the Court. In the present case,
unlike in Monetary Gold, no claim is made against an absent third party. The
two States between whose rights the Court has to adjudicate are Portugal and
Australia, both of whom are before the Court.
In Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
Objections (I.C.J. Reports 1992, p. 240), likewise, the two parties between
whose rights the Court had to adjudicate were Australia and Nauru, both
parties before the Court. In both Nauru and the present case, other parties
are affected, but in neither case is that factor an obstacle to
jurisdiction.
(iii) Rationale
Two of the most often cited pronouncements of principle in Monetary Gold are
the following:
[p157]
"In the present case, Albania's legal interests would not only be affected
by a decision, but would form the very subject matter of the decision. In
such a case, the Statute cannot be regarded, by implication, as authorizing
proceedings to be continued in the absence of Albania." (I.C.J. Reports
1954, p. 32.)
"Where, as in the present case, the vital issue to be settled concerns the
international responsibility of a third State, the Court cannot, without the
consent of that third State, give a decision on that issue binding on any
State, either the third State, or any of the parties before it." (Ibid., p.
33.)
The Court was stressing, quite naturally, that Albania's interests would not
merely be affected by the decision, but would be the very subject-matter of
the decision, and that "the vital issue" to be settled concerned the
international responsibility of Albania itself. The generality of the
phraseology adopted by the Court has sometimes led to a tendency to cite
these passages as authority for propositions far wider than were warranted
by the extremely limited circumstances of the case - namely, that Albanian
property could not be appropriated on the basis of Albanian wrongdoing in
the absence of Albania. In the present case, no claim is being made against
Indonesia, no decision is sought against Indonesia, and the vital issue is
not the international responsibility of Indonesia.
Indonesia's legal interests may be affected by the decision, but they are
not the very subject-matter of the decision, in the sense that Albanian gold
was the actual subject-matter of Monetary Gold.
The Court's determinations on matters pertaining to Australia's obligations
and actions may indeed have consequences, not only for Indonesia but for
other countries as well, for Australia has, in the course of its
submissions, informed the Court that several countries have dealt with
Indonesia in respect of East Timor (CR 95/10, pp. 20- 21). If the Judgment
of the Court raises doubts about the validity of those treaties, those other
countries who have acted upon the validity of the treaty may well be
affected. Yet, it cannot be suggested that they be all joined, or that, for
that reason, the Court is not competent to hear the claim before it.
The broad dicta in Monetary Gold must not be stretched beyond what the
context of the case allows.
(iv) Italian and United Kingdom claims distinguished
An analysis of the two claims in Monetary Gold brings its underlying
principle into clearer relief.
The first claim in Monetary Gold related to Italy's contention that the
Albanian gold should be delivered to Italy in partial satisfaction of the
damage caused to Italy by the Albanian law of January 13, 1945, which [p158] had expropriated certain Italian assets. The second related to Italy's
claim to priority over the claim of the United Kingdom to receive the gold
in partial satisfaction of the judgment in the Corfu Channel case.
The first claim, based upon an Albanian action alleged by Italy to be
wrongful, could not, quite clearly, be decided in the absence of Albania.
Albanian rights and Albanian wrongdoing were integral to its very substance.
The judgment on this point was unanimous.
The decision on the second claim, though also soundly based on legal
principle, could perhaps be differentiated in the sense that, though the
competing claims here were between Italy and the United Kingdom, the United
Kingdom claim against Albania was already res judicata in terms of the
judgment of this Court in the Corfu Channel case. Albania's judgment debt to
the United Kingdom, being res judicata, did not need to be proved afresh,
and could not be contested by Albania. However, the fact that Italy too had
claims upon the gold raised questions of priority (see I.C.J. Reports 1954,
p. 33) which complicated the issue.
It may be noted, in passing, that judgment on the second point was not
unanimous, for Judge Levi Carneiro registered a dissent, holding that the
Court could, and should have, adjudicated upon the second submission of
Italy, independently of the first, on the basis that the only States
directly interested in the question of the priority issue, namely, Italy and
the United Kingdom, were before the Court (ibid., p. 43, para. 7), and that
it could be resolved simply in the light of legal rules (ibid., para. 8).
(v) The third party principle and the judicial duty to decide
The opinion of Judge Carneiro is significant in that it represented a
concerned attempt to conserve the Court's jurisdiction without violating the
third party rule. This points to an important concern, always before the
Court, that, while the third party rule is important, and must at all times
be respected, there is also another principle within which the Court
functions, namely, the judicial duty to decide the cases brought before it
within its jurisdictional competence.
As in many areas of the law, the dividing line between the operation of the
two competing principles is not always discernible with clarity. There will
in many cases be an area of doubt, in which the case could well fall within
the operation of one principle or the other. In these areas, the Court is
the judge of its own jurisdiction, - a position expressly accorded to it by
Article 36(6) of its Statute.
A distinguished line of precedents, stretching back to the Alabama
Arbitration (1872) and beyondFN[1], has established that: "The fundamental
[p159] principle of international law governing these aspects is that an
international tribunal is master of its own jurisdiction."FN1 In exercising
that jurisdiction, a tribunal will naturally not view the mere presence of a
doubt, however slight, as a reason for declining jurisdiction.
--------------------------------------------------------------------------------------------------------------------- FN[1]For
these presedents, see Ibrahim Shihata, op.cit., pp.12 et seq.
FN1 Shabtai Rosenne, The Law and Practice of the International Court, 1985,
p. 438.
---------------------------------------------------------------------------------------------------------------------
It is by striking a balance between these principles that the Court's
jurisdiction can be best developed, rather than by focusing attention upon
the third-party principle, to the exclusion of the other. While the
consensual principle must always furnish the basis of jurisdiction, "It is a
matter of common sense that too rigid an attraction to that principle will
paralyse any international tribunal" FN2. The inadequacies of Article 36 as
it existsFN3 , and the need for "a well-defined functional and teleological
approach to questions of jurisdiction"FN4 justify such an approach to the
problemFN5.
---------------------------------------------------------------------------------------------------------------------
FN2Ibid.,
p. 439
FN3Ibid., p. 316
FN4Ibid.
FN5See, also, the discussion in Section 3(VII) below.
---------------------------------------------------------------------------------------------------------------------
It was thus for very good reason that, in Military and Paramilitary
Activities in and Against Nicaragua (Nicaragua v. United States of America),
the Court expressed a note of caution against undue extensions of Monetary
Gold, in terms that its circumstances "probably represent the limit of the
power of the Court to refuse to exercise its jurisdiction" (I.C.J. Reports
1984, p. 431, para. 88; see, also, Certain Phosphate Lands in Nauru, I.C.J.
Reports 1992, p. 260, and Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras), Application to Intervene, I.C.J. Reports 1990, p. 116,
para. 56)FN6
---------------------------------------------------------------------------------------------------------------------
FN6See
D.H.N.Johnson (“The Case of the Monetary Gold Removed from Rome in 1943”,
International and Comparative Law Quarterly, 1955, Vol. 4, at p.110) to the
effect that careful consideration should be given “before the already
limited jurisdiction of the Court is limited still further” by unduly wide
interpretations of the third party rule.
---------------------------------------------------------------------------------------------------------------------
As this Court observed in Continental Shelf (Libyan Arab Jamahiriya/Malta),
Application for Permission to Intervene: "it must be open to the Court, and
indeed its duty, to give the fullest decision it may in the circumstances of
each case ..." (I.C.J. Reports 1984, p. 25, para. 40; emphasis added). This
compelling obligation to decide the dispute before the Court distinguishes
the judge, properly seised of jurisdiction, from many other functionaries,
who are not charged by their office with the obligation to reach a decision
on every contentious matter properly referred to them within the scope of
their authority. Literature on the nature of the judicial function is
replete with emphasis on the judicial duty to decide. The Statute of the
Court itself gives expression to this concept in Article 38, which
stipulates that the Court's "function is to decide in accordance with
international law such disputes as are sub-[p160]mitted to it"FN1 (emphasis
added). Indeed, that is the function of the Court, around which all the
other provisions of the Statute are builtFN2.
---------------------------------------------------------------------------------------------------------------------
FN1See
Nuclear Tests (Australia v. France) (I.C.J. Reports 1974, p.271) for a
confirmation of this principle, and for the limited circumstances in which
the Court may legitimately decline to decide, as where no dispute exists.
FN2In The Republic of El Salvador v. The Republic of Nicaragua, the Central
American Court of Justice remarked, in regard to the third party rule, that:
“many questions that might arise among or between Central American
Governments would be excluded from its cognizance and decision if weight be
given to the trivial argument that a third nation…possesses interests
connected with the matters or questions in controversy.
To admit that argument would be to render almost negligible the judicial
power of the Court, since the fact of invoking interests connected with a
third nation would detract from the Court’s judicial mission…”(American
Journal of International Law, 1917, Vol.11, p.699.)
---------------------------------------------------------------------------------------------------------------------
If, therefore, too restrictive an interpretation be given to the Court's
jurisdiction, in consequence of which the Court does not decide a dispute
properly referred to it within its jurisdiction, there can be a
non-performance of its express statutory obligation.
While it is important, then, that objections based on lack of third-party
consent must receive the Court's most anxious scrutiny, there is to be
weighed against it, in areas of doubt, the other consideration, equally
important, of the Court's statutory duty to decide a dispute properly
brought before it within its judicial authority. Too strict an application
of the first principle can result in an infringement of the second.
In the international judicial system, an applicant seeking relief from this
Court has, in general, nowhere else to turn if the Court refuses to hear it,
unlike in a domestic jurisdiction where, despite a refusal by one tribunal,
there may well be other tribunals or authorities to whom the petitioner may
resort.
As Fitzmaurice observes:
"Since the national law will normally ensure that there is some domestic
forum competent to hear and determine all cases involving breaches of that
law, or the assertion of rights under it, it follows that domestic
jurisdictional issues are of secondary importance, because a claimant who
fails on jurisdictional grounds in one forum can start again in the correct
one. Thus, as a general rule, there is no avoiding a determination on the
merits if the claimant persists, and the defendant obtains no ultimate
advantage by raising jurisdictional issues. It is far otherwise in the
international field where a jurisdictional objection, if successful, will
normally dispose of the case entirely, and rule out any further proceedings,
not only before the tribunal rendering the jurisdictional decision, but
before any [p161] other. In the international field therefore, such issues
assume a far greater, and usually a fundamental importance."FN1
------------------------------------------------------------------------------------------------------------
FN1Sir Gerald Fitzmaurice, The Law and Procedure of the International Court
of Justice, Vol. II, 1986, p. 438; emphasis in original.
------------------------------------------------------------------------------------------------------------
It is an important circumstance relating to all jurisdictional questions
that this Court is the international system's place of ultimate resort for
upholding the principles of international law, when all other
instrumentalities fail.
(vi) The test of reasonableness
It is sought, in this case, to interpret Monetary Gold as meaning that the
Court has no jurisdiction because it cannot determine the question before
it, without first determining the legality or otherwise of Indonesia's
presence in the Territory. In short, this proposition would mean that, where
a claim by State A against State B cannot be made good without
demonstrating, as a prerequisite, some wrongful conduct on the part of State
C, State B can avoid an inquiry into its own conduct, however wrongful, by
pointing to C's wrongdoing as a precondition to its own liability.
A time-honoured test of the soundness of a legal interpretation is whether
it will lead to unreasonable, or indeed absurd, results. That this
proposition could lead to manifestly unreasonable results will be evident
from the following illustrations, in each of which A is the applicant State,
B the respondent, and C the third party State, whose wrongdoing must be
established as a precondition to the claim or the defence. In each
illustration, B has subscribed to the Court's jurisdiction, but not C, for
which reason C is not before the Court.
- After A and B enter into a mutual defence pact, C commits an act of
aggression against A. B does not come to A's relief. In an action by A
against B, it is necessary, preliminarily, for A to prove C's act of
aggressionFN2. Since C is not before the Court, A's claim must be dismissed.
---------------------------------------------------------------------------------------------------------------------
FN2 For
this illustration, see Johnson, op. cit., p. 110.
--------------------------------------------------------------------------------------------------------------------
- Between A and C, there lies a narrow corridor of B's territory. C
discharges a large quantity of radioactive waste into B, whence it flows
into A. A sues B. B seeks to prove that the matter is beyond its control,
inasmuch as the noxious material has come from C and, once on its territory,
could not be contained. Since it is necessary for B to [p162] prove this
wrongful conduct on the part of C, B's defence will be shut out.
- In furtherance of B's plans to gather military intelligence regarding A, B
persuades a potential ally, C, to overfly A's territory for unlawful aerial
surveillance. While overflying A's territory, C's plane crashes over a
crowded city, causing immense damage and loss of life. A takes B to Court
for damage caused. A is in possession of material proving B's instigation of
C's unlawful act. B can have the claim dismissed for lack of jurisdiction,
on the basis that a precondition to the claim is proof of C's unlawful act.
- C makes a raid against A and plunders, inter alia, a historic object
belonging to A. B acquires the object from C. A sues B to recover it and
needs, as a pre- requisite, to prove that it was the identical object taken
away in the raid by C. A cannot maintain the action in the absence of C, for
proof of C's wrongdoing is a pre- requisite to A's claim. (The example does
not take into account any special treaty provisions relating to the return
of cultural or historical treasures.)
- A State corporation owned by A runs an industrial establishment in the
territory of C. C wrongfully confiscates its highly specialized plant and
factory, and invites B, which commands special expertise in the relevant
field, to participate in running it with C as a joint profit-sharing
venture. B agrees and participates. A sues B, alleging the illegality of the
whole enterprise. The claim must be rejected because the action is not
maintainable without proof of the wrongful act of C.
Examples could be multiplied.
In each case a third party's wrongdoing must be established as a
prerequisite to the claim or defence. In each case the rule excluding it
produces manifest injustice and an unreasonable result. It is difficult to
imagine that such a rule can truly represent a "well-established" principle
of international law, built into the Statute of the Court - a principle on
the basis of which the fundamental question of jurisdiction is decided, on
which in turn depend the ultimate rights of parties in matters of great
moment.
The conclusion is compelling that an interpretation of Monetary Gold to
produce such a result clearly extends the decision far beyond its
permissible limits. Indeed, such an interpretation seems contrary to the
principle of individual responsibility of each State for its own acts. The
mere allegation of a third party's wrongdoing as a prerequisite to the proof
of one's own cannot deflect the course of justice and steer it away from the
[p163] principle of a State's individual responsibility for its individual
actions. (On this, see, further, section 3(ii) below.)
(vii) Prior jurisprudence
In Monetary Gold, the Court stated that:
"To adjudicate upon the international responsibility of Albania without her
consent would run counter to a well- established principle of international
law embodied in the Court's Statute, namely, that the Court can only
exercise jurisdiction over a State with its consent." (I.C.J. Reports 1954,
p. 32; emphasis added.)
It is noteworthy that there was no citation of precedent in Monetary Gold.
It was a decision that formulated no new principle, and made no new
advances. The decision made no greater claim than that it was applying a
principle already embodied in the Court's Statute.
It would be helpful, therefore, to look at some prior cases.
a) Advisory Opinions
Two well known prior cases are Status of Eastern Carelia (P.C.I.J., Series
B, No. 5) and Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 65), both
Advisory Opinions, where similarly strong statements were made in similar
language.
In the first case, the Permanent Court found that it was "impossible" to
give an opinion which bears on an actual dispute between Finland and Russia,
as the Russian Government was not before the Court. Using the same
expression later used in Monetary Gold (I.C.J. Reports 1954, p. 32), that
case too described as "well established in international law" the principle
that no State could, "without its consent, be compelled to submit its
disputes ... to mediation or to arbitration" (P.C.I.J., Series B, No. 5, p.
27).
In Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, as
well, the Court referred to the:
"well- established principle of international law according to which no
judicial proceedings relating to a legal question pending between States can
take place without their consent" (op. cit., p. 71).
If these cases were a basis on which this Court described the
third-party-rule as a "well- established" principle in international law,
the point needs to be made that advisory opinions rest upon a different
judicial basis from contentious proceedings. The Court's decision as to
whether [p164] to proceed with a matter is clearly taken on different bases
in advisory proceedings, where the Statute may perhaps give the Court
somewhat more discretion as to whether it will render an opinion (Statute,
Art. 65). Precedents deriving from advisory opinions, where the Court
declines to give an opinion in consequence of third party involvement, are
not therefore of direct applicability to jurisdictional decisions in
contentious proceedings.
It is significant moreover that in Status of Eastern Carelia, the Court
described it as "very inexpedient that the Court should attempt to deal with
the present question" (op. cit., p. 28; emphasis added) and again stated "it
is certainly expedient that the facts upon which the opinion of the Court is
desired should not be in controversy" (ibid.; emphasis added).
The jurisprudence on this matter deriving from advisory opinions can thus be
distinguishedFN1. Whether or not considerations of "expediency" can be taken
into account in advisory opinions, they have no place in contentious
litigation where the Court must reach a decision one way or the other (see
section (v) aboveFN2.
---------------------------------------------------------------------------------------------------------------------
FN1 See
D.H.N. Johnson:
“The Court’s judgment gives the impression that certain dicta, properly
applicable to the question whether or not the Court should exercise a
discretion in favour of giving an advisory opinion, were applied somewhat
too literally to the different circumstances of a contentious case.”(Op.
cit., p.110)
FN2 See, also, Anglo-Iranian Oil Co. (I.C.J. Reports 1952, p.103), and Rights
of Minorities in Upper Silesia (Minority Schools) (P.C.I.J., Series A, No.
15, p.22), for other cases which held that the jurisdiction of the Court
“depends on the will of the Parties”.
---------------------------------------------------------------------------------------------------------------------
(b) Contentious cases
As for the jurisprudence deriving from contentious proceedings, the manner
in which the Court handled the Corfu Channel case, just a few years earlier,
is not in line with the general proposition formulated in Monetary Gold.
In that case, the United Kingdom claimed that the minefield which caused
damage to its shipping was laid by Albania. As an alternative argument it
claimed that the minefield was laid by Yugoslavia, with the connivance of
the Albanian government. As the Court observed:
"This would imply collusion between the Albanian and the Yugoslav
Governments, consisting either of a request by the Albanian Government to
the Yugoslav Government for assistance, or of acquiescence by the Albanian
authorities in the laying of the mines." (I.C.J. Reports 1949, p. 16.)
In so far as concerned this alternative argument, the principal wrongdoer
was Yugoslavia. Yugoslavian wrongdoing was the prerequisite to [p165] the
alleged Albanian wrongdoing, very much in the manner of Indonesian
wrongdoing being the prerequisite to alleged Australian wrongdoing, as
argued by Australia.
In proof of this collusion the United Kingdom Government placed evidence
before the Court and, in the Court's own words:
"The Court gave much attention to this evidence and to the documentary
information supplied by the Parties. It supplemented and checked all this
information by sending two experts appointed by it to Sibenik: Commodore
S.A. Forshell and Lieutenant-Commander S.J.W. Elfferich." (Ibid.)
"Apart from Kovacic's evidence, the United Kingdom Government endeavoured to
prove collusion between Albania and Yugoslavia by certain presumptions of
fact, or circumstantial evidence, such as possession, at the time, by
Yugoslavia, and by no other neighbouring State, of GY mines, and by the bond
of close political and military alliance between Albania and Yugoslavia,
resulting from the Treaty of friendship and mutual assistance signed by
those two States on July 9th, 1946." (Ibid., p. 17; emphasis added.)
The Yugoslav Government was not a party to the proceedings but it authorized
the Albanian government to produce certain Yugoslav documents.
Sir Hartley Shawcross for the United Kingdom made the following statements,
among others, implicating Yugoslavia, not merely peripherally, but indeed,
in this part of the case, as the principal participant in the international
wrongdoing alleged:
(a) that it was well known that, at the relevant time, there was the closest
association and collaboration between Albania and Yugoslavia (I.C.J.
Pleadings, Corfu Channel, Vol. III, 239);
(b) that members of the Albanian Forces were sent to Yugoslavia for training
(ibid., p. 240);
(c) that Yugoslavia, under a decree contained in the Yugoslav Official
Gazette, was given "a virtual monopolistic position in regard to coastal
traffic between the two countries" (ibid.);
(d) that Yugoslavia conducted practically the whole of Albania's foreign
relations and "had naval, military and air- force missions in Albania
guiding the organization of the military arrangements of that country"
(ibid.);
(e) that Yugoslavia had the relevant GY type of German mines, which were
laid in the Corfu Channel (ibid.);
(f) that the suspicion that Yugoslav ships laid these mines is "converted
into certainty" by the evidence of Lieutenant Commander Kovacic, formerly of
the Yugoslav navy (ibid.); [p166]
(g) that the mines were hurriedly loaded onto two Yugoslav ships which
"silently steamed away" during the night to lay them in Albanian waters
(ibid., p. 243);
(h) that there was a stock of GY mines at Sibenik and the mines loaded on
the vessels came from that stock (ibid.);
(i) that the ships were seen again 4 days later, but the mines were not upon
them (ibid., pp. 243- 244); and
(j) that there was evidence that the duty carried out by the ships was to
lay a field of mines in Albanian territorial waters (ibid., p. 244).
The Court did not dismiss these suggestions as beyond its jurisdiction to
investigate, but in fact, by its Order of 17 January 1949 (I.C.J. Reports
1949, p. 151), instructed naval experts nominated by it to carry out
investigations on the spot at Sibenik, Yugoslavia, and in the Corfu Channel
area. For two days, at Sibenik, the Experts inspected the actual
geographical layout of the spot where Kovacic testified he had seen the two
Yugoslav minelayers being loaded with minesFN1.
---------------------------------------------------------------------------------------------------------------------
FN1 For
the arrangements regarding this visit, see I.C.J. Pleadings, Corfu Channel,
Vol.V, pp.257-274. See, also, for a more detailed study, II Yung Chung,
Legal Problems Involved in the Corfu Channel Incident, 1959, pp.146 et seq.
---------------------------------------------------------------------------------------------------------------------
Clearly this was a very specific allegation of an internationally wrongful
act by a third State not before the Court. Indeed, it provoked a strong
response from Albania in the following terms:
"How could the Court decide on the facts of alleged complicity and on the
demand for reparations against the accomplice without having given a
decision against the principal offender accused arbitrarily and without
proof by the British Government?"FN2
------------------------------------------------------------------------------------------------------------
FN2 I.C.J.
Pleadings, Corfu Channel, Vol.II, p.353, para.102, Rejoinder, Government of
Albania.
“Comment la Cour pourrait-elle statuer sur les faits de pretendue complicite
et sur la demande de reparations introduite contre ‘le complice’, sans avoir
rendu une decision contre ‘l’auteur principal’ accuse arbitrairement et sans
prevue par le Gouvernment britannique?”(Original French.)
------------------------------------------------------------------------------------------------------------
The Court held, in fact, that "the authors of the minelaying remain unknown"
(I.C.J. Reports 1949, p. 17). Had the Court accepted the United Kingdom's
submissions, it would have been making a clear finding of the commission of
an illegality by Yugoslavia. The fact that such a wrongful act was alleged
against a third party did not deter the Court from considering the
alternative argument placed before it.
The Corfu Channel case was thus a stronger instance of third-party
involvement than the present case. It may even be characterized as a case [p167] which went to the very edge of the principle, or even, conceivably,
somewhat beyond it, but it does not support the suggestion in Monetary Gold
of a steady stream of prior authority.
If the proposition be correct that an application should be dismissed where
the illegal act of a third party State lies at the very foundation of the
claim, the Court would have indicated to the United Kingdom that this
alternative claim was unsustainable in the absence of Yugoslavia and would
have dismissed this aspect of the case in limine.
If, far from taking such a course, the Court "gave much attention" to the
evidence, checked the documentary information and sent experts to
investigate it, it was not governing itself by the principle which Australia
argues is fundamental and well established. It even permitted the United
Kingdom Government to attempt to prove collusion with the absent third
State, to the extent not only of possession of the mines, but also of a
military alliance resulting from a treaty of friendship and mutual alliance.
The attitude of the Court in Corfu Channel is thus in sharp contrast to the
Court's decision in the present case.
The Ambatielos case (I.C.J. Reports 1953, p. 10) may also be mentioned as an
instance where the position of third parties not before the Court was likely
to be affected by the decision the Court was invited to make.
In the merits phase of that case, the Greek government, in a case between
itself and the United Kingdom, invited the Court to consider certain
articles of treaties between the United Kingdom and Denmark, the United
Kingdom and Sweden and the United Kingdom and Bolivia. The United Kingdom
government, without objecting to the reference to those treaties, questioned
the correctness of the English translations of certain of the provisions
invoked. The Court was invited to place a construction upon these treaties
which would have helped the Government of Greece in the interpretation it
sought to place upon its treaty with the United Kingdom. No exception seems
to have been taken to the reference to these treatiesFN1.
---------------------------------------------------------------------------------------------------------------------
FN1 See,
also, the Anglo-Iranian Oil Co. case (I.C.J.Reports 1952, p.93) where a
contention of the United Kingdom was that, upon the coming into force of the
Iranian-Danish Treaty on 6 March 1935, Iran became bound, by the operation
of the most-favoured-nation clause, “to trat British nationals on her
territory in accordance with the principles and practice of international
law”(ibid., p.109).
--------------------------------------------------------------------------------------------------------------------
(viii) Subsequent jurisprudence
A substantial jurisprudence has built up over the years in which, although
the principle in Monetary Gold has been invoked as a bar to [p168]
jurisdiction, the Court has held the principle within its proper confines,
refusing to allow it to be unduly extended. This accords with the Court's
view, already cited, that Monetary Gold had gone to "the limit of the power
of the Court to refuse to exercise its jurisdiction" (Military and
Paramilitary Activities in and against Nicaragua, I.C.J. Reports 1984, p.
431, para. 88).
Among the cases so decided by the Court are Military and Paramilitary
Activities in and against Nicaragua, Land, Island and Maritime Frontier
Dispute (El Salvador/Honduras), Continental Shelf (Libyan Arab
Jamahiriya/Malta, Frontier Dispute (Burkina Faso/Republic of Mali) and
Certain Phosphate Lands in Nauru (Nauru v. Australia).
Principles that have received elaboration in the Court's developing
jurisprudence on this point are that it did not suffice that a third party
was affected (Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras), I.C.J. Reports 1990, pp. 115- 116, para. 55); that the
interests of the third State must be a part of "the very subject- matter of
the decision" (ibid., pp. 121- 122, paras. 72 and 73); that the "test is not
merely one of sameness of subject-matter but also of whether, in relation to
the same subject-matter, the Court is making a judicial determination of the
responsibility of a non-party State" (Nauru, I.C.J. Reports 1992, p. 296,
Judge Shahabuddeen, separate opinion); that joint wrongdoers may be
individually sued (ibid., pp. 258- 259; and that the circumstance that a
third party would be affected by the judgment is not by itself sufficient to
bring Monetary Gold into operation (ibid., pp. 261- 262).
Particular reference should be made to Certain Phosphate Lands in Nauru
(I.C.J. Reports 1992, p. 240), which is in a sense closest to the principle
involved in the present case. In that case, although the administration of
Nauru was entrusted jointly to three trustee Powers - Australia, New Zealand
and the United Kingdom - and any finding of breach of trust by Australia
would, it was alleged, necessarily mean a finding against its partners as
well, the Court was not deterred from dismissing that objection and setting
the case down for hearing on the merits. The Court held that the interests
of New Zealand and the United Kingdom did not constitute the very
subject-matter of the judgment to be rendered on the merits of Nauru's
Application. The Court rejected Australia's contention that there would be a
simultaneous determination of the responsibility of all three States and
that, so far as concerns New Zealand and the United Kingdom, such a
determination would be precluded by the fundamental reasons underlying
Monetary Gold (I.C.J. Reports 1992, p. 261, para. 55). The fact that the
Court's judgment would clearly affect third parties not before the Court
does not thus deter the Court [p169] from adjudicating upon the dispute
between the parties who are in fact before itFN1.
------------------------------------------------------------------------------------------------------------------------------------------
FN1 Reference may be made, in this context, to the situation, rather similar
to that before the Court in the instant case, which confronted the Central
American Court of Justice in The Republic of El Salvador v. The Republic of
Nicaragua. El Salvador complained that the Bryan-Chamorro Treaty concluded
by Nicaragua with the United States for the construction of an
inter-oceanic canal was repugnant to previous Treaties of Washington between
El Salvador and Nicaragua. Nicaragua's position was that the Bryan-Chamorro
Treaty was with a State not subject to the jurisdiction of the Court and
hence that the Court lacked jurisdiction. The Central American Court of
Justice observed:
"What may be called the fundamental argument: that the Court has no
jurisdiction over the subject-matter of this suit because it involves
interests of a third nation that is not subject to the authority of the
Court, is also unsound in the opinion of the judges." (American Journal of
International Law, 1917, Vol. 11, p. 698.)
The Court went on to declare that the Government of Nicaragua was under the
obligation to re-establish and maintain the legal status that obtained prior
to the Bryan-Chamorro Treaty (ibid., p. 730), but it refused to go so far as
to declare the Bryan-Chamorro Treaty void, as that would involve the rights
of a third party who had not submitted to the jurisdiction of the Court.
Thus,
"The Central American Court did not allow the consideration that it might
have to pass upon issues closely concerning a third State without that
State's consent to deter it from giving a decision between the two States
actually parties to the dispute before the Court." (Johnson, op. cit., p.
109.)
---------------------------------------------------------------------------------------------------------------------
The undoubtedly necessary and unimpeachable principle enunciated in Monetary
Gold has thus been kept within the ambit of its rationale by a steadily
developing body of jurisprudence of this Court. With the greatest respect to
the Court's decision in this case, it would appear that it will step back
from that stream of development and, in so doing, both expand the limited
principle of that case, and diminish the area of the Court's jurisdiction.
The Monetary Gold principle, thus applied, would be discharging a function
very different to what it did in the case in which it was formulated.
3. Other relevant factors
(i) Third party safeguards
In Military and Paramilitary Activities in and against Nicaragua, the Court
observed that, in appropriate circumstances, it would decline, as in
Monetary Gold, to exercise the jurisdiction conferred upon it where the
legal interests of a State not party to the proceedings "would not only be
affected by a decision, but would form the very subject-matter of the
decision (I.C.J. Reports 1954, p. 32)" (I.C.J. Reports 1984, p. 431, para.
88).
Thereafter the Court went on to note the safeguards available to third
parties in the following terms:[p170]
"Where however claims of a legal nature are made by an Applicant against a
Respondent in proceedings before the Court, and made the subject of
submissions, the Court has in principle merely to decide upon those
submissions, with binding force for the parties only, and no other State, in
accordance with Article 59 of the Statute. As the Court has already
indicated ... other States which consider that they may be affected are free
to institute separate proceedings, or to employ the procedure of
intervention." (Ibid.)
Third party protection, which follows also from the general principles of
international law, is entrenched, so far as the Court's jurisdiction is
concerned, by Article 59 of its Statute.
Indeed, this concern for the protection of third States is carried even
further by Article 62 which ensures that, should a State consider that it
has an interest of a legal nature which may be affected by the decision in
the case, it may request that it be permitted to intervene.
When the Court's Statute was designed, it was no doubt clearly foreseen that
a judgment of the Court could well make an impact on the rights of third
parties. The Statute therefore embodied these carefully structured
safeguards protecting the interests of third party States which may be
affected by a decision - a structure which both protects them and enables
them to intervene. Monetary Gold did no more than give effect to these
statutory provisions. It was scarcely meant to be erected into an
independent principle in its own right, constituting a third and further
protection, travelling even beyond the Statute itself.
It is to be remembered, moreover, that, while in domestic jurisdictions
where the doctrine of stare decisis applies, the other parties in
transactions of an identical nature may find themselves bound by a principle
of law laid down in a case to which they are not parties, in international
law, third parties have the further safeguard of the absence of a doctrine
of stare decisis.
(ii) The principle of individual State responsibility
Principles of State responsibility, based on the autonomous and individual
nature of each State, require that where two States are accessory to a
wrongful act, each State must bear international responsibility for its own
internationally wrongful act.
This principle was well formulated by Portugal at the oral hearings:
"the security and the smooth running of the Organization are collective
under the Charter, because each member has duties that it owes to the others
and to the Organization itself, inasmuch as it constitutes their corporate
union. In other words, it is because the system is universal that, within
it, each member retains individual [p171] responsibility for its acts and a
duty to respect the principles common to all. It follows that none of the
members can shelter behind the fact that a situation has been created by
another in order to avoid itself reacting to that situation in pursuance of
the rules of law enshrined in the common Charter." (CR 95/5, p. 72.)
In the Seventh report on State Responsibility by Mr. Roberto Ago, Special
Rapporteur, that distinguished rapporteur treated as axiomatic the
proposition that a breach of international responsibility by a State would
engage that State's responsibility, irrespective of another State's
participation in the act. The report observed:
"It need hardly be said that, if the actions constituting participation by a
State in the commission of an internationally wrongful act by another State
constituted a breach of an international obligation in themselves, they
would on that account already engage the international responsibility of the
State which performed those actions, irrespective of any consequences that
might follow from the part taken in the internationally wrongful act of
another State." FN1
------------------------------------------------------------------------------------------------------------
FN1Ch. IV, "Implication of a State in the internationally wrongful act of
another State"FN1. Yearbook of the International Law Commission, 1978, Vol.
II (Part One), A/CN.4/307 and Add. 1&2, para. 52, fn. 99; Reply, Vol. I, pp.
220-221; see, also, Ian Brownlie, State Responsibility (Part I), 1983, p.
190.
------------------------------------------------------------------------------------------------------------
On these principles, the Respondent State must answer separately for its own
acts.
This separation of responsibility was illustrated also in this Court's
decision in Nauru, where, although the mandate and trusteeship in question
were given to the same three governments "jointly", the Court permitted the
case to proceed against one of the three trustees, despite the implications
this might have had upon the liability of others. The Court there pointed
out that it was not precluded from adjudicating upon the claims submitted to
it:
"provided that the legal interests of the third State which may possibly be
affected do not form the very subject-matter of the decision that is applied
for. Where the Court is so entitled to act, the interests of the third State
which is not a party to the case are protected by Article 59 of the Statute
of the Court, which provides that, 'The decision of the Court has no binding
force except between the parties and in respect of that particular case.'"
(I.C.J. Reports 1992, p. 261.)
It would be even more inappropriate that a State which has not accepted the
Court's jurisdiction can use the very fact of its non- accept-[p172]ance as
a means of preventing States that have accepted jurisdiction from settling
their disputes according to law.
Australia's submission that its responsibility "could at all events be no
more than consequential, derived from the responsibility of Indonesia" (CR
95/8, p. 8) does not accord with basic principles of State responsibility,
for, to use again the language of the same Rapporteur:
"One of the principles most deeply rooted in the doctrine of international
law and most strongly upheld by State practice and judicial decisions is the
principle that any conduct of a State which international law classifies as
a wrongful act entails the responsibility of that State in international
law." FN1
------------------------------------------------------------------------------------------------------------
Ago, Yearbook of the International Law Commission, 1971, Vol. II (Part One),
p. 205, para. 30.)
------------------------------------------------------------------------------------------------------------
Even if the responsibility of Indonesia is the prime source, from which
Australia's responsibility derives as a consequence, Australia cannot divert
responsibility from itself by pointing to that primary responsibility.
(iii) Rights erga omnes
Australia has very rightly stated that it "does not dispute that the right
to self- determination is an erga omnes principle" (Rejoinder, p. 42, para.
78). This position has been many times repeated in the oral submissions. The
concept of rights and obligations erga omnes is further discussed in Part D.
An erga omnes right is, needless to say, a series of separate rights erga
singulum, including inter alia, a separate right erga singulum against
Australia, and a separate right erga singulum against Indonesia. These
rights are in no way dependent one upon the other. With the violation by any
State of the obligation so lying upon it, the rights enjoyed erga omnes
become opposable erga singulum to the State so acting.
To suggest that Indonesia is a necessary party to the adjudication of that
breach of obligation by Australia is to hamper the practical operation of
the erga omnes doctrine. It would mean, very much along the lines of the
illustrations in section 2(vi) above, that Indonesia could protect any
country that has dealings with it in regard to East Timor, from being
impleaded before this Court, by Indonesia itself not consenting to the
Court's jurisdiction. In the judicial forum, the right erga omnes could to
that extent be substantially deprived of its effectiveness.
Moreover, in any event, Indonesia would be protected against any suggestion
of res judicata against it. The right erga omnes, when asserted against
Australia, becomes a right erga singulum which, in turn, becomes a res
judicata erga singulum against Australia, in the event of the success [p173] of the claim. It would have no adjudicatory quality against Indonesia,
thus preventing the "Monetary Gold principle" from operating to bar the
action against Australia.
(iv) Increasingly multilateral nature of modern international obligations
Reference has already been made to the fact that the multilateral aspect of
obligations is gaining increasing significance in modern international law.
Any instrumentality charged with administering international law in this
context needs to take account of this aspect so as not to restrict the
development of international law in keeping with this trend.
Foremost among the sources of multilateral obligations is the UN Charter,
under which all States alike are vested with rights and responsibilities
which all others must recognize.
In this network of interlocking international relationships, each State
which is impugned by another for failure to abide by its international
obligations must answer for itself, in accordance with the principle of
individual responsibility already outlined. It cannot plead another State's
responsibility as an excuse for its own failure to discharge its own
responsibility. That other State will answer for itself when the appropriate
situation arises and may perhaps be affected by the judgment the Court
renders in the case before it.
If, for example, the Court held with Portugal in this case, this finding
would have repercussions on many other States which may or may not have
acted in accordance with their individual obligations to recognize the
rights of East Timor. This Court cannot concern itself with all those
ramifications of a finding which it delivers in accordance with binding
norms of international law. The Court cannot anticipate them all, in a world
order of criss-crossing multilateral obligations.
As Judge Shahabuddeen observed in his separate opinion in Certain Phosphate
Lands in Nauru:
"It has been correctly pointed out that '[a]s interState relationships
become more complex, it is increasingly unlikely that any particular dispute
will be strictly bilateral in character' (L.F. Damrosch, "Multilateral
Disputes", in L.F. Damrosch (ed.), The International Court of Justice at a
Crossroads, 1987, p. 376)." (I.C.J. Reports 1992, p. 298.)
(v) The distinction between a treaty and the unilateral acts from which it
results
It is self-evident that while a treaty is a bilateral or multilateral
instrument, it comes into existence through the fusion of two or more
unilateral acts, as the case may be. What the Court is invited to consider
in this [p174] case is not the unlawfulness of the bilateral treaty, but
the unlawfulness of the Respondent's unilateral actions which went into the
making of that Treaty.
It is a clear principle in the domestic law of obligations that the
unlawfulness of a contract and the unlawfulness of the conduct of the
parties to it are different concepts. A similar principle is to be found in
the law of treaties, where there could, for example, be a valid treaty even
though one party acts unlawfully by its domestic law in entering into it
(Vienna Convention, Art. 46), or when a representative acts in violation of
a specific restriction validly placed upon him by his State (Art. 47). The
treaty is nevertheless binding.
The Court is not called upon to pronounce upon the unlawfulness or otherwise
of the Treaty, or upon the unlawfulness or otherwise of Indonesia's conduct,
but upon the unlawfulness or otherwise of Australia's unilateral act in
entering into it. What are the legal obligations of a particular party, what
are its acts, to what extent do those acts contravene its obligations -
those are the questions bearing upon the unilateral conduct of one party,
which the Court is called upon to decide. The invalidity of the Treaty, or
of the other Party's conduct, is not the precondition, as Australia
suggests, for the Court's finding on the unlawfulness of Australia's
conduct.
The acts of a contracting State, such as the decision to sign, the decision
to accord de jure recognition, the decision to ratify, the decision to
implement, the decision to legislate, are all unilateral acts upon which the
Court can adjudicate.
(vi) Has the wrong party been sued?
Australia's position is that the true respondent in this case is Indonesia.
According to this submission, Portugal's real opponent is Indonesia,
Portugal's grievance is against Indonesia and Portugal's true cause of
action is only against Indonesia.
At the oral hearings, Australia summarized its case in this regard in the
following terms:
"- on the one hand, Australia heartily subscribes to the legal settlement of
international disputes which lend themselves to it; but it also subscribes
to the principle of consent to jurisdiction (at least, until a consensus in
favour of the universal, compulsory jurisdiction of the Court has been
achieved); and it considers that this forum should not be diverted to ends
not properly its own; as a sovereign State, Indonesia has chosen not to
accept the optional clause; that is its business;
-on the other hand, Australia does not mean to be used as a scapegoat, whose
principal function would be to salve the conscience of Portugal which, being
unable to join issue with Indonesia, is attacking a State which, in reality,
can do nothing about the matter and whose alleged responsibility - a com-[p175]plete fabrication for the purposes of the case - could at all events be
no more than consequential, derived from the responsibility of
Indonesia."FN1(CR 95/8, p. 8).
---------------------------------------------------------------------------------------------------------------------------------
FN1 Public sitting of 7 February 1995, CR 95/8, p. 8. The French original of
the (second) translated paragraph of these oral submissions is as follows:
“— d'autre part, l'Australie entend ne pas être utilisee comme un bouc emissaire dont la principale fonction serait d*apaiser la mauvaise
conscience du Portugal qui, faute de pouvoir s'en prendre à l'Indonesie,
s'attaque à un Etat qui, vraiment, ... n'en peut mais et dont la pretendue
responsabilite, forgee de toutes pièces pour tes besoins de la cause, ne
pourrait, de toute manière, qu'être consecutive, derivee, de celle de
l'Indonesie “.
---------
---------------------------------------------------------------------------------------------------
If Indonesia had in fact been before this Court, one could see that Portugal
would probably have pleaded its case against Indonesia in very different
terms from its claim against Australia. A larger segment of factual material
pertinent only to Indonesia may have been placed before this Court, which is
not germane to the case against Australia. It may even be said that, had
both Indonesia and Australia been available as respondents, Portugal's claim
against Indonesia may have been the more important of the two.
Another way of approaching the submission that the wrong party has been sued
is perhaps as follows:
If Indonesia had been a party before the Court, Portugal's case against
Indonesia would either be the identical case, namely, that it too acted
unlawfully in entering into the identical treaty, or it would be a more
substantial case, involving other items of alleged illegal conduct against
Indonesia. In case of the first alternative, if it were the identical case,
the situation would be directly covered by the Nauru decision where the
claim against absent parties would have been identical, had they been sued,
to the claim actually before the Court. On the clear jurisprudence of this
Court, the Court would have jurisdiction. In case of the second alternative,
the case against Indonesia would be one of a different order, involving a
different range of evidence and a different set of issues. The case against
Australia depends upon Australia's obligations and their violation by
entering into the Treaty. The case against Indonesia would relate to the
circumstances of Indonesia's entry into East Timor, the political and
administrative arrangements that have followed, and numerous other details
pertinent to alleged unlawful conduct by Indonesia. It would, in short, be a
totally different case. Such a situation would run directly contrary to the
Australian contention that the case brought against Australia is in reality
a case against Indonesia, brought against the wrong respondent.
All that this Court is concerned with is whether a legally supportable [p176] claim has been made against Australia. If this be so, it matters little
whether or not a more important or substantial claim could have been made
against Indonesia had Indonesia consented to the jurisdiction.
The answer therefore to the contention that the wrong party has been sued is
that the Court needs only to go so far as to find that there is a legally
sustainable claim against the party that has in fact been sued.
(vii) Historical background
As a postscript to this discussion, it would not be out of place to look
back upon the deliberations at the League of Nations regarding the
particular clause of the Court's Statute upon which this entire case has
turned.
In regard to consulting travaux preparatoires regarding certain important
provisions of the Covenant of the League of Nations, Judge Jessup observed:
"In my opinion, it is not necessary - as some utterances of the two
international courts might suggest - to apologize for resorting to travaux
preparatoires as an aid to interpretation. In many instances the historical
record is valuable evidence to be taken into account in interpreting a
treaty." (South West Africa, I.C.J. Reports 1966, p. 352; dissenting
opinion.)
The First Assembly of the League, on December 13th, 1920, the day of
adoption of the Statute, was discussing the optional jurisdiction principle,
embodied in Article 36, paragraph 2, of the Statute of the Permanent Court,
which, subject to minor variations, became Article 36(2) of the Statute of
this Court. What were the expectations attending the adoption of this
clause, and how was it expected to work?
Some delegates criticized the principle of consent as a basis of the Court's
jurisdiction - for example, Mr. Tamayo (Bolivia) observed that this was
unstable and perishable material out of which to build the edifice of
justiceFN1.
---------------------------------------------------------------------------------------------------------------------
FN1 Documents concerning the Action Taken by the Council of the League of
Nations under Article 14 of the Covenant and the Adoption by the Assembly of
the Statute of the Permanent Court, p. 248.
--------------------------------------------------------------------------------------------------------------------
Others saw the Statute, and the principle of consent on which jurisdiction
was based, as an instrument which, through the experience of their
operation, would enable the new concept of international adjudication, never
in previous history available for universal recourseFN2, to grow in
usefulness and international service. That background of lofty purpose
always attends the work of this Court.
---------------------------------------------------------------------------------------------------------------------
FN2The Court was seen at the time of its creation as "the greatest
instrument which the world has ever yet been able to contrive for seeing
that international justice is carried out" (Mr. Balfour (British Empire),
ibid., p. 247).
---------------------------------------------------------------------------------------------------------------------
[p177]
Developing further the principle of progressive development, Mr. Balfour
stated:
"if these things are to be successful they must be allowed to grow. If they
are to achieve all that their framers desire for them, they must be allowed
to pursue that natural development which is the secret of all permanent
success in human affairs ..."FN1.
---------------------------------------------------------------------------------------------------------------------------------
FN1
Documents concerning the Action Taken by the Council of the League of
Nations under Article 14 of the Covenant and the Adoption by the Assembly of
the Statute of the Permanent Court, p. 247. In more dramatic terms, another
speaker observed:
"We must begin by building a little chapel, and in the course of time the
League of Nations will be able to build a cathedral. Already ... we hear the
noise of the hammers of those who are building." (Mr. de Aguerro (Cuba),
ibid.)
------------------------------------------------------------------------------------------------------------
The inadequacy of Article 36 was recognized in 1945 as well, when the
Statute for the present Court came under discussion, but no agreement was
possible as to how to rewrite itFN2
---------------------------------------------------------------------------------------------------------------------
FN2
Rosenne, op. cit., p. 316.
--------------------------------------------------------------------------------------------------------------------
Three quarters of a century have passed since the adoption of the provision
under discussion. This period has been rich in the experience out of which
this Court and its predecessor have been fashioning an interpretation
harmonious with the needs which the Statute intended it to serve. Observing
that "the very notion of a more broadly based conception of the jurisdiction
of the Court is gaining ground" FN3, and that: "[t]he principle that the
jurisdiction of an international tribunal derives from the consent of the
parties has long been subject to a process of refinement" FN4, Rosenne goes
on to observe: "The result is that the application of the principle is less
rigid than may be inferred from the manner in which it is enunciated."FN5
---------------------------------------------------------------------------------------------------------------------
FN3
ibid.
FN4 ibid.
FN5 Ibid., p. 317.
---------------------------------------------------------------------------------------------------------------------
As shown in section 2(viii) above, the jurisprudence of this Court in
relation to absent third parties has indeed been growing along the path of
the gradual and steady development envisaged at the time of the adoption of
the principle of consent as a basis of jurisdiction.
A continuous thread that runs through the jurisprudence that has evolved
around the "Monetary Gold principle" is the Court's concern, while giving
due weight to the interests of third parties, at the same time, to prevent
an extended application of that principle from hampering it in the
legitimate and proper exercise of its jurisdiction. Consistent with this
approach, and for the reasons already discussed, the Court should, in my
respectful view, have proceeded to adjudicate upon this case. I am of the
view, again expressed with the greatest respect for the contrary opinion of
the Court, that the present Judgment represents a break in the course of
steady development that has thus far elucidated and refined the application
of the "Monetary Gold principle". [p178]
(viii) Conclusion
In the result, the Australian objections based on the contentions that the
Monetary Gold principle stands in the way of the Court's competence, that
the Court would be required to make an adjudication on the conduct of
Indonesia, and that the wrong party has been sued should all be rejected.
The reasons for these conclusions have been sufficiently set out.
Australia's obligations under international law and Australia's actions such
as negotiating, concluding, and initiating performance of the Treaty, taking
internal legislative measures for the application thereof, and continuing to
negotiate with the State party to that Treaty are justiciable on the basis
of Australia's legal position viewed alone and Australia's actions viewed
alone.
Part B. The Jus Standi of Portugal
If the Court has jurisdiction to hear this case, as indicated in Part A of
this opinion, the matter cannot proceed further without a consideration of
the important Australian objection that Portugal lacks the necessary legal
status to act on behalf of East Timor.
(i) The respective positions of the Parties
Australia challenges the locus standi of Portugal to bring this action. It
asserts that since Portugal has lost control over the territory several
years ago, and another Power, namely Indonesia, has during all those years
been in effective control, Portugal lacks the status to act on behalf of the
Territory.
Moreover, with specific reference to its treaty- making powers, Australia
submits that Portugal totally lacks the capacity to implement any treaty it
may make relating to East Timor. Lacking this capacity, it lacks the ability
to enter into any meaningful treaty regarding the territory, or to complain
that a treaty has been entered into without reference to it by another Power
which is in effective control.
In support of this position, Australia points to the absence of any General
Assembly resolution recognizing the status of Portugal since 1982, and the
absence likewise of any resolution of the Security Council since 1976.
Australia consequently argues that, even if resolutions before these dates
validly recognized such a status at one stage, they have since fallen into
desuetude and been overtaken by the force of events. Australia points,
moreover, to the fact that successive votes in the General Assembly in
relation to East Timor have revealed a decreasing proportion of UN
membership in favour of the resolutions recognizing the position of
Portugal.
Portugal argues, on the other hand, that, although it has physically left
the territory and no longer controls it, it is nonetheless the administering
Power, charged with all the responsibility flowing from the provisions [p179] of Chapter XI of the United Nations Charter, and has been recognized as
such by a series of General Assembly and Security Council resolutions. It
submits further that there has been no revocation at any stage of Portugal's
authority as administering Power, no limitation placed upon it, and no
recognition of any other power as having authority over East Timor.
(ii) Structure of UN Charter provisions regarding dependent territories
A discussion of the status of Portugal to maintain this action necessitates
a brief overview of the structure of the UN Charter provisions framed for
the protection of dependent territories.
The Charter was so structured that the interests of territories not able to
speak for themselves in international forums were to be looked after by a
Member of the United Nations entrusted with their welfare, who would have
the necessary authority for this purpose. In other words, its underlying
philosophy in regard to dependent territories was to avoid leaving them
defenceless and voiceless in a world order which had not yet accorded them
an independent status.
This is not to be wondered at when one has regard to the high idealism which
is the essential spirit of the Charter - an idealism which spoke in terms of
a "sacred trust" lying upon the powers assuming responsibilities for their
administration, an idealism which stipulated that the interests of their
inhabitants were paramount. Translating this idealism into practical terms,
the Charter provided for United Nations supervision of the responsible
authorities through a requirement of regular transmission of information to
the Secretary- General (Art. 73(e)). They were further required to ensure
the political, economic, social and educational advancement, just treatment
and protection against abuses of the inhabitants thus placed under their
care.
It is against the background of such an overall scheme that the Australian
submissions in this case need to be tested. The submission under examination
is no less than that an administering Power's loss of physical control
deprives it of the status and functions of an administering authority, and
that the protective and reporting structure, so carefully fashioned by the
United Nations Charter can thus be brushed aside.
This is a proposition to be viewed with great concern. It means that,
whatever the reason for the administering Power's loss of control, that loss
of control brings in its wake a loss of legal status.
The proposition can be tested by taking an extreme example, at a purely
hypo-[p180] thetical level, of a non- self- governing territory being
militarily overrun by a third Power, anxious to ensure not the "political,
economic, social and educational advancement" of the people, but anxious
rather to use it as a military or industrial base. Suppose, in this
hypothetical example, that this invading Power completely displaces the
legal authority of the duly recognized administering Power. If the
administering Power cannot then speak for the territory that has been
overrun and the people of the territory themselves have no right of audience
before an international forum, that people would be denied access to the
international community, whether directly, in their own right, or
indirectly, through their administering Power. The deep concern for their
welfare, which is a primary object of Chapter XI of the Charter, and the
"sacred trust" notion which is its highest conceptual expression, would then
be reduced to futility; and the protective structure, so carefully built
upon these concepts, would disintegrate, in the presence of the most
untenable of reasons - the use of force. In that event, the use of force,
which is outlawed by the entire scheme of the UN Charter, would have won its
victory, and would indeed have won it over some of the loftiest concepts
enshrined in the Charter. It is difficult to subscribe to a view that thus
encourages and, indeed, rewards the use of force.
This example, offered at a purely hypothetical level, has been aimed at
testing the practical efficacy of a legal proposition that seems to run
counter to the entire scheme of the UN Charter. As so often in the law, the
hypothetical example assists in the understanding of the practical rule.
Grave reservations must be registered regarding any interpretation of the
Charter which leaves open so serious a gap in its scheme of protection and
so undermines the central tenets which are its very foundation.
Three major legal concerns arise from this argument. The first concern,
already referred to, is that it seems to concede that whatever the means
through which that control has been lost, the important factor is the
physical loss of control. This is a dangerous proposition which
international law cannot endorse.
Secondly, the precedents in the matter do not lend support to the Australian
argument. An instance that comes to mind is the case of Rhodesia, in respect
of which it was nowhere suggested that loss of United Kingdom physical
control over the territory meant a loss of United Kingdom legal authority in
respect of the territory. United Nations action was based entirely on the
assumption of the continuing status of United Kingdom authority.
Thirdly, there is more to the status of administering Power than mere
physical control. An administering Power is charged with many duties
relating to the welfare of the people of the territory. It may lose physical
control but, with that loss of physical control, its duties do not fade
away. The administrative Power is still obliged to extend such protections
as are still available to it for the welfare of the people and the
preservation of their assets and rights. The conservation of the territory's
right to permanent sovereignty over its natural resources is thus a major
responsibility of the administering Power, including particularly the
preserva-[p181]tion of its major economic asset, in the face of its
possible extinction for all time. Such legal responsibilities remain the
solemn duty of the administering Power, even though physical control may
have been lost.
(iii) Is the UN a substitute for a displaced administering Power?
In answer to such a line of reasoning, it may perhaps be suggested that the
General Assembly and the Security Council can, in such an event, take over
the responsibilities of the administering Power.
It is true indeed that the General Assembly and the Security Council, in all
their plenitude of power, preside over the great task of decolonization and
protection of dependent peoples. Yet, with all respect, they are no
substitutes for the particular attention to the needs of each territory
which the Charter clearly intended to achieve. Protection from internal
exploitation and external harm, day- to- day administration, development of
human rights, promotion of economic interests and well- being, recovery of
wrongful loss, fostering of self- government, representation in world
forums, including this Court - all these require particular attention from a
Power specifically charged with responsibility in that regard. Moreover, the
supervision of the United Nations depends also on transmission of
information under Article 73(e) and, in the absence of an administering
Power, there would be a total neglect of that function and hence an
impairment of UN supervision. The Charter scarcely envisaged that a
dependent people should be left to fend for themselves, denied all this
assistance. Least of all can it be envisaged that the use of force could
deprive them of these rights. The basic protective scheme of the Charter
cannot thus be negated.
(iv) The right of representation
Australia's contention that Portugal, by having lost control over the
territory for a period of years, has lost the right to represent the people
of East Timor is untenable for the same reasons. Any other view would result
in the anomalous situation of the current international system leaving a
territory and a people, who admittedly have important rights opposable to
all the world, defenceless and voiceless precisely when those rights are
sought to be threatened or violated. Indeed, Counsel for Portugal put this
well in describing the nexus provided by the administering Power as "the
umbilical cord" which ties East Timor to the international community.
[p182]
While recognizing that Portugal has not in this case sought to base its
locus standi on any footing other than that of an administering Power, this
anomaly can also be illustrated in another way. In South West Africa, Second
Phase (I.C.J. Reports 1966, p. 6), two States which had no direct connection
with the Territory in question sought to bring before the Court various
allegations of contraventions by South Africa of the League of Nations
Mandate. There was no direct nexus between these States and South West
Africa. Their locus standi was based solely on their membership of the
community of nations and their right as such to take legal action in
vindication of a public interest.
The present case is one where the applicant State has a direct nexus with
the Territory and has in fact been recognized by both the General Assembly
and the Security Council as the administering Power.
This case has similarities with South West Africa in that there is here, as
there, a Territory not in a position to speak for itself. There is here, as
there, a Power which is in occupation by a process other than one that is
legally recognized. There is here, as there, another State which is seeking
to make representations on the Territory's behalf to the Court. There is
here, as there, an objection taken to the locus standi of the Applicant.
A vital difference is that here, unlike there, the applicant State has a
direct nexus with the Territory and enjoys direct recognition by the United
Nations of its particular status vis- à- vis the Territory. The position of
the applicant State is thus stronger in the present case than the position
of the States whose locus standi was accepted by half the judges of the
Court in the South West Africa Judgment (ibid.), and, indeed, by the
majority of the judges in the earlier phase of that case (South West Africa,
Preliminary Objections, I.C.J. Reports 1962, p. 319).
(v) Resolutions recognizing Portugal's status as administering Power
The Court is called upon to decide, in regard to these resolutions, whether
the General Assembly resolutions are devoid of legal effect. As a prelude to
a discussion of this legal question, the content of these resolutions is
briefly set out.
The resolutions of the General Assembly are the following:
3485(XXX), 31/53, 32/34, 33/39, 34/40, 35/27, 36/50 and 37/30.
Some of these resolutions expressly recognize the status of Portugal as the
administering Power (resolutions 3485(XXX), 34/40, 35/27, 36/50 and 37/30)
and not one of them recognizes a legal status in Indonesia. Rather, some of
them (31/53, 32/34, 33/39) reaffirm the Security Council resolutions and
draw the attention of the Security Council to the critical situation in East
Timor, and recommend that it take all effective steps for the implementation
of its resolutions, with a view to secure-[p183]ing the full exercise by
the people of East Timor of their right to self- determination. Some of them
request the Special Committee on the Situation with regard to the
Implementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples to keep the situation in East Timor under
active consideration (resolutions 31/53 and 32/34 of 28 November 1977);
reject the claim that East Timor has been integrated into Indonesia inasmuch
as the people of the territory have not been able to exercise freely their
right to self- determination and independence (resolution 32/34 of 28
November 1977); declare that the people of East Timor must be enabled to
determine freely their own future within the framework of the United Nations
(resolution 35/27 of 11 November 1980); welcome the diplomatic initiative
taken by the Government of Portugal as the first step towards the free
exercise by the people of East Timor of their right to self- determination
and independence (ibid.); urge all parties directly concerned to co- operate
fully with a view to creating the conditions necessary for the speedy
implementation of General Assembly resolution 1514(XV) (ibid.); declare that
the people of East Timor must be enabled freely to determine their own
future on the basis of the relevant General Assembly resolutions and
internationally accepted procedures (resolution 36/50 of 24 November 1981)
and invite Portugal as the administering Power to continue its efforts with
a view to ensuring the proper exercise of the right to self- determination
and independence by the people of East Timor (ibid.).
Since there is no diminution in any of the resolutions of Portugal's status
as administering Power, one must therefore regard Portugal as continuing to
be vested with all the normal responsibilities and powers of an
administering authority. It is to be stressed, of course, that whatever
powers an administering Power is vested with are powers given to it solely
for the benefit of the territory and the people under its care and not for
the benefit in any way of the administering Power. This is a truism and is
mentioned here only because some suggestions were made in the oral
submissions that Portugal has instituted this case for reasons other than a
desire to conserve the interests of the territory and people of East Timor.
Not only will any success Portugal may achieve from this case be held
strictly for the benefit of the people of East Timor, but it will be held
strictly under UN supervision. The Australian argument that Chapter XI of
the UN Charter "is not a colonial charter intended legally to entrench the
rights of the former colonial State ..." (CR 95/10, p. 65) loses its thrust
in such a context.
Australia submits that Portugal not only has a poor colonial record [p184]
but, in fact, abandoned the people of East Timor. Whatever may have been the
facts regarding these aspects, they were not unknown to the General
Assembly, which nevertheless invited Portugal to continue its efforts. The
body best able to assess Portugal's conduct having decided, notwithstanding
all the information at its disposal, to issue such an invitation, this Court
must respect that decision. It is to be observed further that, in extending
that invitation, the General Assembly placed no restrictions on Portugal's
status as administering Power, nor has it done so since then. It is
significant also that, in resolution 384 (1975), the Security Council in
fact censured Portugal for its failure to discharge its responsibilities
fully as administering Power, but yet continued to recognize Portugal as the
administering Power.
The resolutions of the Security Council, resolution 384 (1975) and
resolution 389 (1976), have been quoted earlier in this opinion. Recognizing
and reaffirming the inalienable right of the people of East Timor to self-
determination, the Security Council, in both resolutions, calls upon all
States to respect the territorial integrity of East Timor, as well as the
inalienable right of its people to self- determination, and urges all States
and other parties concerned to co- operate fully with the efforts of the
United Nations to achieve a peaceful solution to the existing situation and
to facilitate the decolonization of the Territory.
These two resolutions of the Security Council have not at any stage been
revoked, nor have they been superseded by later resolutions rendering them
inapplicable.
Security Council resolution 384 expressly referred to Portugal as the
administering Power and specifically imposed upon it the duty of co-
operating fully with the United Nations so as to enable the people of East
Timor to exercise freely their right to self- determination. The resolution
thus contained a clear indication to Portugal of its duties in safeguarding
this right of the East Timorese people. Since economic sovereignty is an
important element of the concept of sovereignty, there was thus imposed upon
Portugal, by Security Council resolution, apart from Charter provisions, the
duty to safeguard the Territory's most valuable economic asset until the
right to self- determination was freely exercised.
As with the General Assembly, so also with the Security Council, Portugal's
prior colonial conduct did not prevent it from giving to Portugal the status
it did and imposing upon it the duties that went with that status.
That status thus recognized by the Security Council receives repeated
recognition in later resolutions of the General Assembly (see resolutions
35/27 (1980), 36/50 (1981) and 37/30 (1982)).
After these general observations, it is necessary to examine the legal
effects of the relevant resolutions in greater detail.[p185]
(vi) Legal force of the resolutions
1. General Assembly resolutions
Very early in the history of the United Nations, the General Assembly's
competence in regard to non-self-governing territories was recognized. Thus
Kelsen refers to:
"the competence the General Assembly has with respect to non-self-governing
territories not under trusteeship in accordance with Article 10 and
(together with the Security Council) under Article 6" FN1
------------------------------------------------------------------------------------------------------------
FN1
The Law of the United Nations, 1950, p. 553, fn. 1
------------------------------------------------------------------------------------------------------------
and suggests that the General Assembly may discuss the non-fulfilment by a
Member of its obligations under Chapter XI, leading even to the imposition
of sanctions, along with the Security Council, under Article 6 (see, also,
48 American Journal of International Law (1954), p. 103).
After the adoption of the Declaration on the Granting of Independence to
Colonial Countries and Peoples by the General Assembly in 1960, it
established a committee to follow up the implementation of the Declaration,
thus "bringing all non-self-governing territories under a form of
international supervision comparable to that of the trusteeship system"FN2.
So much are all aspects of self-determination regarded by the General
Assembly as pertaining to its sphere of authority that there has been a
tendency "to consider that no aspect of 'colonialism' should be treated as a
matter falling 'essentially' within the domestic jurisdiction of a
State"FN3.
-------------------------------------------------------------------------------------------------------------------
FN2
Goodrich, Hambro and Simons, Charter of the United Nations, 3rd and rev.
ed., 1969, p. 70. On the development of the practice in this regard, see
further, Bruno Simma (ed.), The Charter of the United Nations, 1994, pp.
925-928.
"In the course of time, the General Assembly succeeded in subjecting the
colonies to a similar system of supervision to that provided for trust
territories, even though, according to the wording of Art. 73 (e) of the UN
Charter, the control is restricted to the General Assembly's entitlement to
have statistical and technical information . . ." (Ibid, p. 925.)
FN3 Goodrich, Hambro and Simons, ibid.
---------------------------------------------------------------------------------------------------------------------
The Assembly maintains a vigilant eye over all aspects relating to
non-self-governing territories through the Fourth or Decolonization
CommitteeFN4 and the Committee of Twenty-four. Questions of the termination
of dependent territory status upon the exercise of the right of self-
determination have thus long been matters recognized as being within the
scope of the General Assembly's authority. In resolution 1541(XV) of 15
December 1960, it specifically addressed (in Principle VI) the question
whether a Non-self-Governing Territory can be said to have reached a full
measure of self-government.
---------------------------------------------------------------------------------------------------------------------
FN4
Renamed the Special Political and Decolonization Committee, after its merger
with the Special Political Committee, by resolution 47/233 of 17 August
1993.
---------------------------------------------------------------------------------------------------------------------
When, therefore, the General Assembly determines that a particular dependent
territory has not exercised the right of self- determination or that a
particular State is recognized as the Administering Power over a dependent
territory, the Assembly is making a determination within the area of its
competence, and upon a review of a vast range of material available to it.
Legal consequences follow from these determinations.
Of course there are resolutions of the General Assembly which are of an
entirely hortatory character. Many resolutions of the General Assembly are.
But a resolution containing a decision within its proper sphere of
competence may well be productive of legal consequences. As this Court
observed in Namibia, the General Assembly is not "debarred from adopting,
... within the framework of its competence, resolutions which make
determinations or have operative design" (Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971,
p. 50, para. 105).
Even more is this so when those resolutions have been expressly accepted and
endorsed by the Security Council, which is the case in relation to the
resolutions on the status of Portugal as administering Power.
Thus resolutions of the General Assembly which expressly reject the claim
that East Timor has been integrated into Indonesia (32/34 of 28 November
1977) declare that the people of East Timor must be enabled to determine
their own future freely within the framework of the United Nations (35/27 of
11 November 1980) and expressly recognize Portugal as the administering
Power (3485(XXX), 34/40, 35/27, 36/50 and 37/30) are resolutions which are
productive of legal effects.
Article 18 of the Charter makes it clear that, on "important questions", the
General Assembly may make "[d]ecisions". Adverting to this provision, this
Court has observed:
"Thus while it is the Security Council which, exclusively, may order
coercive action, the functions and powers conferred by the Charter on the
General Assembly are not confined to discussion, consideration, the
initiation of studies and the making of recommendations; they are not merely
hortatory. Article 18 deals with 'decisions' of the General Assembly 'on
important questions'. These 'decisions' do indeed include certain
recommendations, but others have dispositive force and effect." (Certain
Expenses of the United Nations, Advisory Opinion, I.C.J. Reports 1962, p.
163; emphasis in original.)
Waldock, in his General Course (Recueil des cours de l'Academie de [p187]
droit international de la Haye, 1962, vol. 106, p. 26), referring to this
judicial pronouncement, stressed the General Assembly's competence to make
decisions having dispositive force and effectFN1.
---------------------------------------------------------------------------------------------------------------------
FN1On the role of the General Assembly in the formulation of international
law see, further, Gaetano Arangio-Ruiz, "The Normative Role of the General
Assembly of the United Nations and the Declaration of Principles of Friendly
Relations", Recueil des cours de l'Academie de droit international, 1972,
Vol. 137, p. 421; Obed Y. Asamoah, The Legal Significance of the
Declarations of the General Assembly of the United Nations, 1966; and
Christoph Schreuer, "Recommendations and the Traditional Sources of
International Law", German Yearbook of International Law, 1977, Vol. 20,
pp. 103-118.
---------------------------------------------------------------------------------------------------------------------
In more than one of its resolutions, the General Assembly has referred to
its competence
"to decide whether a Non- Self- Governing Territory has or has not attained
a full measure of self- government as referred to in Chapter XI of the
Charter" (resolution 748(VIII) of 27 November 1953, relating to Puerto Rico;
and resolution 849(IX) of 22 November 1954, relating to Greenland; emphasis
added).
The General Assembly has also asserted this power in relation to Surinam and
the Netherlands Antilles, Alaska and Hawaii FN2. The General Assembly has
not hesitated to use this power as, for example, when Portugal and Spain,
following their admission to UN membership, asserted that they did not
administer any territories covered by Chapter XI. In 1960, the Assembly
declared that the territories of Portugal were non- self- governing "within
the meaning of Chapter XI of the Charter" (General Assembly resolution
1542(XV) of 15 December 1960). It asserted its powers in this regard even
more strongly the following year, condemning Portugal for "continuing
non-compliance" with its obligations under Chapter XI and for its refusal to
co- operate with the Committee on Information from Non-Self-Governing
Territories, and established a special committee authorized to receive
petitions and hear petitioners on this matter (General Assembly resolution
1699(XVI) of 19 December 1961). United Nations practice has not questioned
the General Assembly's competence so to act as the appropriate UN organ for
determining whether a non-self-governing territory has or has not achieved
self-determination.
---------------------------------------------------------------------------------------------------------------------
FN2 See Goodrich, Hambro and Simons, op. cit., pp. 460- 461, and the
references therein cited to the relevant resolutions.
---------------------------------------------------------------------------------------------------------------------
In a treatise on Legal Effects of United Nations Resolutions, Castaneda
makes a juristic analysis of this power, observing that a General Assembly
resolution does not express a duty, but rather establishes in a definite
manner the hypothesis or condition from which flows a legal consequence,
which makes possible the application of a rule of law. "By its nature, this
consequence may be an order to act or not to act, [p188] an authorization,
or the granting or denial of legal competence to an organ."FN1
---------------------------------------------------------------------------------------------------------------------
FN1
Jorge Castaneda, The Legal Effects of UN Resolutions, 1969, p. 121.)
---------------------------------------------------------------------------------------------------------------------
The foregoing observations have a bearing on the definitive effects of
General Assembly resolutions regarding Portugal's status, East Timor's
status as a non-self-governing territory, and East Timor's right to
self-determination. Additionally, since the General Assembly is the
appropriate body for recognition of the Power holding authority over a
non-self-governing territory, the absence of any General Assembly resolution
recognizing Indonesia's authority over East Timor is also a circumstance
from which a legal inference may be drawn. The General Assembly resolutions
also have a bearing on the responsibility of all nations to co- operate
fully in the achievement of self- determination by East Timor. The various
resolutions of the General Assembly relating to this right in general terms,
which have helped shape public international law, and are an important
material source of customary international law in this regard FN2, are
specifically strengthened so far as concerns the situation in East Timor, by
the particular resolutions relating to that Territory.
---------------------------------------------------------------------------------------------------------------------
FN2
Simma, op cit., p. 240
---------------------------------------------------------------------------------------------------------------------
2. Security Council resolutions
These resolutions are also confirmatory of the status of Portugal. They are
dealt with in Part D in the context of the substantive obligations of
Australia.
(vii) Does Portugal need prior UN authorization to maintain this action?
Portugal's authority as administering Power has not been subject to any
limitation by the UN in the resolutions recognizing Portugal's status.
Australia's submission that Portugal needs UN authority to bring this action
(Rejoinder, paras. 136, 144) suggests a limitation on an administering
Power's authority which does not seem to be envisaged in the UN Charter.
There is another aspect as well to be considered, namely, that it is the
duty of an administering Power to conserve the interests of the people of
the territory. As part of their fiduciary duties, administering Powers
recognize in terms of Article 73 of the Charter "the obligation to promote
to the utmost ... the well- being of the inhabitants of these territories"
and, to that end, "to ensure ... their ... economic ... advancement" (Art.
73(a); emphasis added) and "to promote constructive measures of [p100]
development" (Art. 73(d)). Such obligations necessitate the most careful
protection of the economic resources of the territory. Such a duty cannot be
fulfilled without a legal ability on the part of the administering Power to
take the necessary action for protecting those interests. If the
administering Power receives information that the economic interests of the
territory are being dealt with by other entities, to the possible prejudice
of the interests of the territory's people, it is the administering Power's
duty to intervene in defence of those rights. Indeed, failure to do so would
be culpable
.
To suggest that the Charter would impose these heavy responsibilities upon
administering Powers and, at the same time, deny them the right of
representation on behalf of the territory, is to deprive these Charter
provisions of a workable meaning. Such a restrictive interpretation of the
authority of an administering Power receives no support, so far as I am
aware, from UN practice or from the relevant literature.
Supervision of the administering Power is amply provided for in the Charter
and it is difficult to see any warrant in law or in principle for further
fettering a fiduciary Power in the proper and effective discharge of its
duties under the Charter.
Further, the power given by the Charter under Chapter XI is clearly the
power of a trustee. The power derives expressly from the concept of "a
sacred trust", thus underlining its fiduciary character. The very concept of
trusteeship carries with it the power of representation, whether one looks
at the common law concept of trusteeship or the civil law concept of tutela.
A trustee, once appointed, always carries out his or her duties under
supervision, but is not required to seek afresh the right of representation
each time it is to be exercised, for that is part and parcel of the concept
of trusteeship itself.
(viii) Are the resolutions affected by diminishing UN support?
One of Australia's contentions was that the progressively lessening vote in
favour of the General Assembly resolutions cited by Portugal showed that
those resolutions were of a diminishing level of authority. This suggestion
in effect calls upon this Court to venture into the uncertain area of the
political history of resolutions of the General Assembly and to indulge in a
vote- counting exercise to assess the strength of a particular resolution.
Speculation on the possible meaning of voting procedures in the General
Assembly is not the province of this Court. Rather the Court's concern is
whether that General Assembly resolution has been duly passed by that
principal organ of the United Nations within the ambit of its legal
authority. Once thus passed, it commands recognition and it is part of the
courtesy due by one principal organ of the [p190] United Nations to another
to respect that resolution, irrespective of its political history or the
voting strength it reflects.
As Judge Lauterpacht has observed:
"Whatever may be the content of the recommendation and whatever may be the
nature and the circumstances of the majority by which it has been reached,
it is nevertheless a legal act of the principal organ of the United Nations
which Members of the United Nations are under a duty to treat with a degree
of respect appropriate to a resolution of the General Assembly." (Voting
Procedure on Questions relating to Reports and Petitions concerning the
Territory of South West Africa, I.C.J. Reports 1955; Judge Lauterpacht,
separate opinion, p. 120; emphasis added.)
Indeed, this Australian submission has grave implications in the
circumstances of this case, for the resolutions which Australia would have
the Court ignore are resolutions affirming the important principle of
self-determination which is a well-established principle of customary
international law. A heavy burden would lie upon a party contending that the
validity of such a resolution has been affected by declining support for it
in the United Nations.
(ix) Have the resolutions lapsed through desuetude?
Another Australian submission which was strenuously advanced is the
suggestion that a long period of years during which similar resolutions are
not passed discounts in some way the value and obligatory nature of such
resolutions. Resolutions of the General Assembly or of the Security Council
do not have to be repeated to retain their validity. Once these resolutions
are duly passed, it is to be presumed that they would retain their validity
until duly revoked or superseded by some later resolution.
The proposition that lapse of time wears down the binding force of
resolutions needs to be viewed with great caution. In cases where
resolutions in fact impose obligations at international law, this Court
would then, in effect, be nullifying obligations which the appropriate organ
of the United Nations, properly seised of that matter, has chosen to impose.
More especially is caution required from the Court in regard to resolutions
dealing with obligations erga omnes and rights such as self- determination
which are fundamental to the international legal system. The Court would, in
the absence of compelling reasons to the contrary, show due respect for the
valid resolutions duly passed by its sister organs.
It is to be noted that Australia's argument that the resolutions of the [p191] Security Council have fallen into desuetude cannot be accepted for a
further reason.
The argument of desuetude breaks down before the fact that the Committee of
Twenty-four, which is the General Assembly's organ for overseeing the matter
of decolonization, has kept the East Timor question alive on its agenda year
after year. Moreover, the Committee has in its report to the General
Assembly referred to this in successive years. The Committee would not be
expected to keep this matter on their books if it is, as Australia has
suggested, a dead issue.
The Secretary-General's progress reports to the General Assembly continue to
this date. In his Report of 11 September 1992 (A/47/435, para. 1; Reply,
Vol. II, p. 59), he refers to the search for "a comprehensive and
internationally acceptable solution to the question of East Timor", and, in
his most recent annual report of 2 September 1994, he states:"I have
continued to provide my good offices in the search for a just, comprehensive
and internationally acceptable solution to the question of East Timor."
(A/49/1, 2 September 1994, para. 505.)The General Assembly's action in
keeping this item on its agenda from year to year is also a clear indication
that the situation has not thus far proved acceptable to the international
community.
The argument of desuetude, implying as it does that the matter is a dead
issue, cannot succeed if the United Nations itself elects to treat the issue
as live FN1
---------------------------------------------------------------------------------------------------------------------
FN1 See
Thomas M. Franck (“Fairness in the International Legal and Institutional
System”, Recueil des cours de l’Academie de droit international, 1993,
Vol.240, p.165), to the effect that this activity concerning East Timor “at
a minimum, keeps the item alive and helps keep it on the agenda”.
---------------------------------------------------------------------------------------------------------------------
(x) Have the resolutions been nullified by supervening events?
Similar considerations apply to this submission of Australia. If supervening
events have nullified duly passed resolutions of the Security Council or the
General Assembly, it is for those bodies to take note of the altered
situation and to act accordingly. Those bodies do not appear, as stated
already, to have treated the issues as dead.
(xi) Is Portugal's colonial record relevant?
Australia has suggested that Portugal's colonial record has been such as to
disentitle it to maintain this action. The past colonial record of Portugal
leaves much indeed to be desired and, Portugal's counsel have freely
conceded no less. One recalls that, in Namibia, it was noted that, when the
General Assembly passed its resolutions against apartheid, these resolutions
received the unanimous support of the entire Assembly, [p192] with only two
exceptions - Portugal and South Africa (I.C.J. Reports 1971, p. 79; Judge
Ammoun, separate opinion). Further comment is scarcely necessary regarding
the past colonial attitudes of Portugal.
However, when the status at law of an administering Power has been duly
recognized as such by the appropriate political authority, this Court cannot
take it upon itself to grant or withhold that status, depending on whether
it had a good or bad colonial record. Most colonial Powers would fail to
qualify on such a test, which could make the system of administering Powers
unworkable. The legal question for this Court is whether, in law, it enjoys
that status.
At the commencement of this opinion, reference was made to the change that
has occurred since 1974 in regard to Portugal's attitude towards self-
determination of its coloniesFN1.
---------------------------------------------------------------------------------------------------------------------
FN1The
Supplement to the Portugese Constitution, contained in Annex II.6 of
Portugal’s Memorial, and dated 27 July 1974, provides by Article 2 that
“Recognition of the right to self-determination, with all its implications,
comprises acceptance of the independence of the overseas territories and the
waving of the corresponding part of Article I of the Political Constitution
of 1933.”
Portugal is thus unequivocally committed to acceptance of the principle of
self-determination of its former colonies.
---------------------------------------------------------------------------------------------------------------------
It bears re-emphasizing that the question at issue is the protection of the
rights of the people of East Timor, and not the question of Portugal's
record of conduct. The contention seems untenable that a protected people or
territory, blameless in this respect, should be denied representation or
relief owing to the fault of its administering Power.
Such a contention contradicts basic principles of trusteeship and tutelage,
which always accord paramount importance to the interests of entities under
fiduciary or tutelary care. This is so in international, no less than in
domestic, law.
***
The several grounds on which Australia sought to impugn Portugal's status to
maintain this action seem thus, on examination, to be unsustainable. Charter
principles combine with well established fiduciary principles and principles
of tutelage to underline the paramount importance of the interests of the
non-self-governing territory over all other interests. That priority of
interest is not easily defeated. It is the function of the administering
Power to watch over it, and the function of international law to ensure its
protection.
It does not serve the Territory's interest that an administrator, duly
recognized by the United Nations, and legally accountable to it, should be
viewed as having been displaced by another Power, neither recognized by the
United Nations, nor legally accountable to it. Power over a
[p193] non-self-governing people, without accountability to the
international community, is a contradiction of the Charter principle of
protection.
Part C. The rights of East Timor
The central principle around which this case revolves is the principle of
self-determination, and its ancillary, the principle of permanent
sovereignty over natural resources. From those principles stem whatever
rights are claimed for East Timor in this case.
(i) East Timor is a territory unquestionably entitled to self- determination
The Court is not in this case confronted with the difficulty of entering
into the much discussed area of defining which are the entities or peoples
entitled to self-determination. Australia has at all times admitted that
East Timor was and is a non-self-governing territoryFN1. It was specifically
mentioned in the list of non-self-governing territories, within the meaning
of Chapter XI of the Charter, contained in General Assembly resolution
1542(XV) of 15 December 1960 (Memorial, Vol. II, p. 30FN2).
---------------------------------------------------------------------------------------------------------------------
FN1 Australia
has, in its pleadings(Counter-Memorial, para.322), referred, in another
context, to the uncertainty attending the question of which people are
entitled to self-determination (citing H.Blix, Sovereignty, Aggression and
neutrality, 1970, pp.13-14). This uncertainty has no applicability to East
Timor for the reasons stated.
FN2 In regard to the word “self-government” in Article 73 (b), this term
“should today only be understood in the meaning of unrestricted
self-determination” (Simma. The Charter of the United Nations, op.cit.,
p.928, citing, inter alia, Namibia and Western Sahara.
---------------------------------------------------------------------------------------------------------------------
One must therefore address the question of self-determination in this case
from the firm foundation of a territory unquestionably entitled to
self-determination. The question for examination is what consequences follow
from that fact.
(ii) The principle of self-determination
The Judgment of the Court (para. 29) has categorically reaffirmed the
principle of self-determination, pointing out that it has evolved from the
Charter and from United Nations practice, and observing further that the
normative status of the right of the people of East Timor to
self-determination is not in dispute. This opinion sets out, from that base,
to examine the manner in which practical effect is to be given to the
principle of self-determination, in the circumstances of the present case.
Australia has accepted the existence of the principle, but placed a somewhat
limited view upon the State obligations which follow. [p194]
For example, it has advanced the argument, at the oral hearings, that:
"There is in the United Nations Charter no express obligation on States
individually to promote self-determination in relation to territories over
which they individually have no control. The general obligation of
solidarity contained in Article 2, paragraph 5, of the Charter extends only
to assistance to the United Nations 'in any action it takes in accordance
with the present Charter'." (CR 95/9, p. 64.)
In its pleadings, it has taken up such positions as that there is no
independent basis for a duty of non-recognition which would prevent the
conclusion of the Timor Gap Treaty (Counter-Memorial, paras. 360- 367); that
there has been no criticism by the international community of States
(including Australia) which have recognized or dealt with Indonesia in
respect of East Timor (ibid., paras. 368- 372); and that, in concluding the
Timor Gap Treaty, Australia did not impede any act of self-determination by
the people of East Timor that might result from such negotiations (ibid.,
373- 375). Although it has recognized East Timor as a province of Indonesia
in the Treaty, Australia contends that, "By concluding the Timor Gap Treaty
with Indonesia, Australia did nothing to affect the ability of the people of
East Timor to make a future act of self-determination." (Ibid., para. 375.)
All of these submissions make it important to note briefly the central
nature of this right in contemporary international law, the steady
development of the concept, and the wide acceptance it has commanded
internationally. Against that background, any interpretations of that right
which give it less than a full and effective content of meaning would need
careful scrutiny.
In the first place, the principle receives confirmation from all the sources
of international law, whether they be international conventions (as with the
International Conventions on Civil and Political Rights and Economic and
Social Rights), customary international law, the general principles of law,
judicial decisions, or the teachings of publicists. From each of these
sources, cogent authority can be collected supportive of the right, details
of which it is not necessary to recapitulate here.
Secondly, it occupies a central place in the structure of the United Nations
Charter, receiving mention from it in more than one context.
Enshrined in Article 1(2) is the principle that friendly relations among
nations must be developed by the United Nations on the basis of equal rights
and self-determination. Developing such friendly relations is one of the
Purposes of the United Nations - central to its existence and mission. There
is thus an inseparable link between a major Purpose of the United Nations
and the concept of self-determination. The same conceptual structure is
repeated in Article 55, which observes that respect for [p195] equal rights
and self-determination is the basis on which are built the ideal of peaceful
and friendly relations among nations.
Article 55 proceeds to translate this conceptual structure into practical
terms. It recognizes that peaceful and friendly relations, though based on
the principle of equal rights and self-determination, need conditions of
stability and well-being, among which conditions of economic progress and
development are specified.
Since the development of friendly relations among nations is central to the
Charter, and since equal rights and self-determination are stated to be the
basis of friendly relations, the principle of self-determination can itself
be described as central to the Charter.
The Charter spells out its concern regarding self-determination with more
particularity in Chapter XI. Dealing specifically with the economic aspect
of self-determination, it stresses, in Article 55, that stability and
well-being are necessary for peaceful and friendly relations, which are in
their turn based on respect for the principle of equal rights and
self-determination. With a view to the creation of these conditions of
stability and well-being, the United Nations is under a duty to promote,
inter alia, conditions of economic progress and development (emphasis
added).
This is followed by Article 56 which contains an express pledge by every
Member "to take joint and separate action, in co- operation with the
Organization for the achievement of the purposes set forth in Article 55".
This is a solemn contractual duty, expressly and separately assumed by every
Member State to promote conditions of economic progress and development,
based upon respect for the principle of self-determination.
With specific reference to non-self-governing territories, Article 73 of the
UN Charter sets out one of the objects of the administration of
non-self-governing territories as being:
"to develop self-government, to take due account of the political
aspirations of the peoples, and to assist them in the progressive
development of their free political institutions ..." (Art. 73(b)).
This responsibility is imposed upon the administering power under the
principle that the interests of the inhabitants of these territories are
paramount. The solemn nature of this responsibility is highlighted in its
description as a "sacred trust".
The central importance of the concept, and the desire to translate it into
practical terms, are thus built into the law of the United Nations. Its
Charter is instinct with the spirit of co- operation among nations towards
the achievement of the Purposes it has set before itself. Integral to those
Purposes, and providing a basis on which they stand, is the principle of
self-determination.
Thirdly, the basic provisions of the Charter have provided the foundation
upon which, through the continuing efforts of the United Nations, a
superstructure has been built which again aims at practical implementation
of the theoretical concept. Through its practical contribution to the
liberty of nations, the world community has demonstrated its resolve to
translate its conceptual content into reality.
Indeed, the General Assembly's special concern to translate this legal
concept into practical terms has been unwavering and continuous, as
reflected in its appointment of the Committee on Information from
Non-self-governing Territories and the conversion of the Committee into a
semi-permanent organ as a result of a General Assembly resolution of
December 1961. The Special Committee (the Committee of Twenty-four) on the
Situation with regard to the Implementation of the Declaration on the
Granting of Independence to Colonial Countries and Peoples keeps this
concern alive as a successor to the Committee of Information. That Committee
has consistently retained the case of East Timor on its list of matters
awaiting a satisfactory solution.
Landmark declarations of the United Nations on this matter have strengthened
the international community's acceptance of this principle. The Declaration
on the granting of independence to colonial countries and peoples (General
Assembly resolution 1514(XV) of 20 December 1960), and the Declaration on
Principles of International Law concerning Friendly Relations and
Cooperation among States in accordance with the Charter of the United
Nations (General Assembly resolution 2625(XXV) of 24 October 1970) are among
these Declarations. The International Covenant on Civil and Political Rights
(1966), and the International Covenant on Economic, Social and Cultural
Rights (1966), constitute an unequivocal acceptance by treaty of the
obligation to recognize this right.
The importance accorded to this right by all sections of the international
community was well reflected in the discussions in the United Nations which
preceded the acceptance of the Declaration of Friendly Relations. A recent
study of these discussions (V.S. Mani, Basic Principles of Modern
International Law, 1993, p. 224) collects these sentiments in a form which
reflects the central importance universally accorded to this principle. As
that study observes, the principle was variously characterized at those
discussions as "one of the most important principles embodied in the
Charter" (Japan); "one of the foundation stones upon which the United
Nations was built" (Burma); "basic to the United Nations Charter" (Canada);
"one of the basic ideals constituting the raison d'être of the Organization"
(France); "the most significant example of the vitality of the Charter and
its capacity to respond to the changing conditions of international life"
(Czechoslovakia); "a universally recog-[p197]nized principle of
contemporary international law" (Cameroon); "one of the fundamental norms of
contemporary international law" (Yugoslavia); "a fundamental principle of
contemporary international law binding on all States" (Poland); "one of
paramount importance in the present era of decolonization" (Kenya); and
"indispensable for the existence of [the] community of nations" (USA).
Reference should be made finally to this Court's contribution, which has
itself played a significant role in the establishment of the concept on a
firm juridical basis (Namibia, Advisory Opinion, I.C.J. Reports 1971, p. 16;
Western Sahara, I.C.J. Reports 1975, p. 12).
Such is the central principle on which this case is built. In adjudging
between the two interpretations of this right presented to the Court by the
two Parties, this brief survey of its centrality to contemporary
international law is not without significance.
On the one hand, there is an interpretation of this right which claims that
it is not violated in the absence of violation of an express provision of a
United Nations resolution. It is pointed out, in this connection, that there
are no UN resolutions prohibiting or criticizing the recognition of East
Timor as a province of Indonesia. On the other hand, it is argued that being
party to an agreement which recognizes the incorporation of a
non-self-governing territory in another State and deals with the principal
non-renewable asset of a people admittedly entitled to self-determination,
before they have exercised their right to self-determination, and without
their consent, does in fact constitute such a violation. The history of the
right, and of its development and universal acceptance make it clear that
the second interpretation is more in consonance with the content and spirit
of the right than the first.
Against this background, it is difficult to accept that, in regard to so
important a right, the duty of States rests only at the level of assistance
to the United Nations in such specific actions as it may take, but lies
dormant otherwise.
(iii) The principle of permanent sovereignty over natural resources
As the General Assembly has stressed, the right to permanent sovereignty
over natural resources is "a basic constituent of the right to self-
determination" (resolution 1803(XVII) of 14 December 1962). So, also, in
resolution 1515(XV) of 15 December 1960, the General Assembly recommended
that "the sovereign right of every State to dispose of its wealth and its
natural resources should be respected".
Sovereignty over their economic resources is, for any people, an important
component of the totality of their sovereignty. For a fledgling nation, this
is particularly so. This is the wisdom underlying the doctrine [p198] of
permanent sovereignty over natural resources, and the wisdom which underlies
the protection of this resource for a non-self-governing people until they
achieve self- determination.
In the present case, it is impossible to venture a prediction as to how long
it will be before the East Timorese people achieve self- determination. It
may be a very brief period or it may take many years. The matter has
remained unresolved already for nearly twenty years, since the Indonesian
military intervention.
Should a period of years elapse until such time, and the Treaty is in full
operation in the meantime, a substantial segment of this invaluable resource
may well be lost to East Timor for all time. This would be a loss of a
significant segment of the sovereignty of the people.
This is not a situation which international law, in its present state of
development, can contemplate with equanimity.
At such time as the East Timorese people exercise their right to
self-determination, they would become entitled as a component of their
sovereign right, to determine how their wealth and natural resources should
be disposed of. Any action prior to that date which may in effect deprive
them of this right must thus fall clearly within the category of acts which
infringe on their right to self-determination, and their future sovereignty,
if indeed full and independent sovereignty be their choice. This right is
described by the General Assembly, in its resolution on Permanent
Sovereignty over Natural Resources, as "the inalienable right of all States
freely to dispose of their natural wealth and resources in accordance with
their national interests ..." (General Assembly resolution 1803(XVII)). The
same resolution notes that strengthening permanent sovereignty over natural
resources reinforces the economic independence of States.
Resolution 1803(XVII) is even more explicit in that it stresses that:
"The exploration, development and disposition of such resources ... should
be in conformity with the rules and conditions which the peoples and nations
freely consider to be necessary or desirable with regard to the
authorization, restriction or prohibition of such activities." (Art. 2;
emphasis added.)
The exploration, development and disposition of the resources of the Timor
Gap, for which the Timor Gap Treaty provides a detailed specification, has
most certainly not been worked out in accordance with the principle that the
people of East Timor should "freely consider" these matters, in regard to
their "authorization, restriction or prohibition".
The Timor Gap Treaty, to the extent that it deals with East Timorese
resources prior to the achievement of self- determination by the East
Timorese people, is thus in clear violation of this principle. [p199]
Further, resolution 1803(XVII) states:
"Violation of the rights of peoples and nations to sovereignty over their
natural wealth and resources is contrary to the spirit and principles of the
Charter of the United Nations ..." (Para. 7.)
Australia has submitted (Counter-Memorial, p. 168, paras. 379- 380) that,
even assuming that in exercising their right to self- determination the
people of East Timor become in the future an independent State, it would be
for the new State to decide whether or not to reject the Treaty. The Court
has been referred in this connection to the observation of the Arbitration
Tribunal in the dispute between Guinea- Bissau and Senegal to the effect
that a "newly independent State enjoys a total and absolute freedom" to
accept or reject treaties concluded by the colonial power after the
initiation of the process of national liberationFN1.
--------------------------------------------------------------------------------------------------------------------
FN1 International Law Reports ,1989. Vol.83, p. 26, para. 44).
---------------------------------------------------------------------------------------------------------------------
While this proposition is incontrovertible, it seems purely academic in the
present context as it loses sight of three facts. In the first place, it may
be many years before East Timor exercises the right of self- determination.
Secondly, the treaty is set to last for an initial period of forty years,
and thirdly the resources dealt with are of a non- renewable nature. By the
time the East Timorese people achieve this right, those resources or some
part of them could well have been lost to them irretrievably. Had the
resources dealt with been renewable resources, it might have been arguable
that a temporary use of the resource would not amount to a permanent
deprivation to the owners of the resource which is rightfully theirs. That
argument is not available in the present case.
When, against this firm background of legal obligation, a treaty is entered
into which expressly describes East Timor as an Indonesian province, and
proceeds without the consent of its people to deal with the natural
resources of East Timor in a manner which may have the effect of
compromising or alienating them, there can be no doubt that any nation that
claims rights under that treaty to what may be the resources of East Timor
is in breach of obligations imposed upon it by general principles of
international law.
A further consideration is that with the increasing international
recognition of the right to development, any action that may hinder the free
exercise of this right assumes more importance now than in the past.
(iv) The relevance of UN resolutions on self- determination
The various resolutions cited provide more than sufficient reason, both in
express terms and by implication, for the Court to proceed on the basis [p200] that the right of self-determination has not been exercised. It is a
corollary to that proposition that the right of permanent sovereignty over
natural resources has, likewise, not been exercised, for self- determination
includes by very definition the right of permanent sovereignty over natural
resources. Any act dealing with those resources, otherwise than by the East
Timorese people or their duly constituted representative, thus points
inexorably to a violation of a fundamental principle, both of general
international law and of the UN Charter.
(v) Australia's position in relation to self- determination
The Australian position in regard to self- determination is that Australia
fully recognizes this right in the people of East Timor and continues to
support that right. Australia has drawn the Court's attention in this regard
to the prominent role played by Australia at the San Francisco Conference in
relation to the inclusion of Chapter XI in the Charter (Rejoinder, pp. 81-
82, fn. 209) and to Australia's strong affirmation that the advancement of
all colonial peoples was a matter of international concern. This valuable
contribution by Australia to the concept of self-determination has no doubt
played a significant role in elevating the doctrine to its current status.
In those early days, when this concept was as yet in its formative stage,
the conceptual and political support thus given to them was crucial.
In full accordance with the high recognition accorded to self- determination
in international law, Australia continues to express support for the
continuing rights of the people of East Timor to self- determination.
Implicit in this Australian stance is a recognition that, for whatever
reason, the people of East Timor have not thus far exercised that right in
the manner contemplated by international law and the UN Charter.
At the oral hearings, Australia submitted that:
"before and after 1975 Australia repeatedly, and strongly, supported the
right of the East Timorese to an informed act of self-determination.
Australia's position was put bluntly to Indonesia, was clearly stated at the
United Nations, and was repeated by Australian Prime Ministers and Foreign
Ministers, and elsewhere as public statements of Australia's policy." (CR
95/14, p. 12.)
In contrast with this unimpeachable position there is the fact that
Australia has accorded de facto recognition to the annexation of East Timor
by Indonesia and, indeed, gone beyond that to what appears to be an
unreserved de jure recognition of Indonesia's rights over East Timor. The
explicit statement in that Treaty, which presumably represents the common
ground of both parties, is that East Timor is an "Indonesian Prov-[p201]ince". Indeed, the preamble to the Treaty recites that Australia and the
Republic of Indonesia are "Determined to cooperate further for the mutual
benefit of their peoples in the development of the resources of the area of
the continental shelf". The people of East Timor are not included among
those for whose benefit the Treaty is entered into.
(vi) The incompatibility between recognition of Indonesian sovereignty over
East Timor and the recognition of East Timor as a non-self-governing
territory
The inconsistency between Australia's stated position and its practical
actions is, in the submission of Portugal, so fundamental as to negative
Australia's recognition of the East Timorese right to self- determination.
There is an inconsistency here which has not been adequately explained,
either in the pleadings or in the oral submissions. As Portugal pointed out,
it is not possible to meet the obligation of respecting the territorial
integrity of East Timor by merely so asserting, while, in fact, recognizing
it as annexed by Indonesia (CR 95/4, p. 29)
.
Australia has stated (Rejoinder, p. 150, para. 267) that recognition of
Indonesian sovereignty over East Timor does not involve a denial of its
status as a non-self-governing territory. It has also stated (ibid., p. 146,
para. 263) that, while noting that Indonesia has incorporated East Timor
into the Republic of Indonesia, the Australian Government has expressed deep
concern that an internationally recognized act of self-determination has not
taken place in East Timor. Australia further submits that recognition of
Indonesian sovereignty over East Timor does not by logical necessity signify
that Australia no longer recognizes East Timor as a non-self-governing
territory or its people as having a right to self-determination (ibid., p.
147, para. 264). I must confess to some difficulty in understanding these
positions.
Such submissions seem moreover to overlook the distinction between the
nature of the authority exercised by an administering Power and the nature
of the authority of Indonesia, implicit in the recognition of East Timor as
a province. The character of Portugal's authority was clearly
distinguishable in at least three major respects:
(a) the authority of Portugal was entirely of a fiduciary or tutelary
nature;
(b) the authority of Portugal was under the supervision of the United
Nations; and
(c) the authority of Portugal was by its very nature co- terminous with its
fiduciary or tutelary status.
These distinctions are further affirmed by the relevant UN resolutions
discussed in this opinion.[p202]
It may be noted also in this context that Australia, in the course of its
oral arguments, submitted that, "In 1975 the people of East Timor
involuntarily exchanged Portuguese 'domination' ... for the control of
Indonesia." (CR 95/9, p. 49, para. 59; emphasis added.) What this means is
unclear, but it is manifestly in contradiction of the voluntariness which is
a central feature of self-determination.
Portugal has also referred the Court to some variations in the positions
taken up by Australia at the United Nations when resolutions on East Timor
came before the General Assembly. In 1975, though with some initial
reservations, it voted for the resolution calling upon Indonesia to desist
from further violation of the territorial integrity of East Timor and to
withdraw its forces without delay to enable the people to exercise their
right of self- determination (resolution 3485 (XXX) of 12 December 1975). In
1976, it abstained from voting on General Assembly resolution 31/53,
rejecting the Indonesian claim of annexation. It abstained again in 1977,
but in 1979, voted against the resolution that "the people of East Timor
must be enabled freely to determine their own future, under the auspices of
the United Nations" (Res. 34/40). It repeated its contrary vote in 1980,
1981 and 1982.
However this may be, the central issue before the Court is whether the
acceptance of this right of East Timor accords with the conclusion of a
Treaty recognizing East Timor as a province of Indonesia, and whether that
act of concluding the Treaty militates against such rights as East Timor may
enjoy to the natural resources that are dealt with by the Treaty. There is
no qualification anywhere in that Treaty of the recognition it accords to
Indonesian sovereignty, such as appears in the statements of Australia made
outside the Treaty.
Upon the basis of the averments in the Treaty, it would seem therefore that
Portugal's assertion of an incompatibility between Australia's action in
entering into the Timor Gap Treaty, and Australia's recognition of the
principle of self- determination, raises issues requiring close
consideration.
If self- determination is a right assertible erga omnes, and is thus a right
opposable to Australia, and if Australia's action in entering into the
Treaty is incompatible with that right, Australia's individual action, quite
apart from any conduct of Indonesia, would not appear to be in conformity
with the duties it owes to East Timor under international law.
(vii) The suggested clash between the rights of the people of East Timor and
the rights of the people of Australia
Australia has submitted that Australia too enjoys the right of permanent
sovereignty over its natural resources and that what is involved in this
case is "'peremptory norm versus peremptory norm', 'permanent sovereignty of
Australia versus sovereign rights of Portugal'" (CR 95/11,
[p203] p. 29). The undeniable rights of Australia cannot, of course, be
matched by the purely fiduciary rights of Portugal, for Portugal has no
sovereign rights, save in its capacity as custodian of the rights of the
East Timorese people. More properly stated, the suggestion is then of a
clash between the peremptory norm of Australia's permanent sovereignty over
its natural resources and the peremptory norm of East Timor's permanent
sovereignty over its natural resources.
It cannot be said that Australia enjoys an absolute right to permanent
sovereignty over its natural resources in the Timor Gap which can be
delineated independently of the rights of East Timor. With only 430
kilometres of ocean space between them (Judgment, para. 11), the extent of
Australia's entitlement is obviously determined, inter alia, by the claims
of East Timor - hence the need for a treaty. Since Australia's rights cannot
be considered independently of East Timor, Australia's claim to deal with no
more than its own entitlement is unsustainable.
Competing interests to a limited ocean space can only be resolved by the
consent of parties or by some equitable external determination in a manner
recognized by law. An agreement that does not embody the consent of the East
Timorese people does not fall within the first category and a determination
by Indonesia as to how much it is equitable to give to Australia does not
fall within the second. It is not such a determination as would bring it
within the means of resolution indicated by the Court's case- law and
Article 83, read with Part XV, of the Montego Bay Convention.
It is not within the ambit of this case or within the Court's competence to
determine whether the division of resources between Australia and Indonesia
is indeed an equitable one from the point of view of the East Timorese
people. This is simply not a matter before the Court, and must await
determination at the proper time and in the proper manner. All that arises
for decision is whether a treaty has been entered into which deals with the
natural resources of the East Timorese people without their consent or the
consent of the administering Power recognized by the United Nations.
It may be that the Treaty obtains for Australia exactly its equitable
rights, or it may be that it obtains for the Australian people even less
than their proper entitlement. Portugal's claim is that a treaty not entered
into in the manner recognized by international law may sign away in
perpetuity certain non- renewable resources of the East Timorese people. If
this is the case, and if the authority charged by the United Nations with
administering the affairs of the East Timorese people brings up the matter
in the form of an East Timorese right which is opposable to Australia, that
complaint deserves the closest attention.
Portugal contends that Australia, inasmuch as it has negotiated, con-[p204]
cluded and initiated performance of the agreement of 11 December 1989, and
has taken internal legislative measures for the application thereof, has
thus infringed the right of the people of East Timor to self-determination
and permanent sovereignty over its natural wealth and resources. If this is
so, Australia, through its individual conduct, is in breach of the
obligation to respect that right.
The Australian argument that there was no option available to Australia but
to enter into this Treaty opens up an important issue of international law
relating to recognition. Where a territory has been acquired in a manner
which leaves open the question whether legal sovereignty has been duly
acquired, countries entering into treaty relations in respect of that
territory have a range of options stretching all the way from de facto
recognition through many variations to the highest level of recognition - de
jure recognition.
It is to be observed that, in this Treaty, Australia has made no
qualification whatever of its recognition of Indonesia's sovereignty over
East Timor. Indeed, the very title of the Treaty is "Treaty between
Australia and the Republic of Indonesia on the Zone of Cooperation in an
area between the Indonesian Province of East Timor and northern Australia".
The description of East Timor as a province of Indonesia is more than once
repeated in the text of the Treaty. Such an unreserved recognition of
Indonesia's sovereignty over East Timor in an important Treaty is perhaps
one of the highest forms of de jure recognition.
This high form of recognition focuses attention more sharply on the alleged
incompatibility of the Australian action with East Timor's rights of
self-determination and permanent sovereignty.
***
In the result, I would reaffirm the importance of the right of the people of
East Timor to self-determination and to permanent sovereignty over natural
resources, and would stress that, in regard to rights so important to
contemporary international law, the duty of respect for them extends beyond
mere recognition, to a duty to abstain from any State action which is
incompatible with those rights or which would impair or nullify them. By
this standard, Australia's action in entering into the Timor Gap Treaty may
well be incompatible with the rights of the people of East Timor.
Part D. The obligations of Australia
The preceding Part of this opinion has examined the central importance of
the rights of self-determination and permanent sovereignty over natural
resources of the people of East Timor. It has also considered to [p205]
what extent Australia's action in entering into the Timor Gap Treaty is
compatible with the rights enjoyed in this regard by the people of East
Timor.
This Part concentrates on the duties that result from those rights.
A. Obligations under general international law
(i) Obligations stemming from the general sources of international law
The multiplicity of sources of international law which support the right of
self-determination have been dealt with in Part C of this opinion.
Corresponding to the rights so generated, which are enjoyed by the people of
East Timor, there are corresponding duties lying upon the members of the
community of nations. Just as the rights associated with the concept of
self-determination can be supported from every one of the sources of
international law, so also can the duties, for a right without a
corresponding duty is no right at all.
It suffices for present purposes to draw attention to this multiplicity of
sources and to the fact that they concur in recognizing those rights as
existing erga omnes. It is not necessary for the purposes of this opinion to
explore them all. Australia, in common with all other nations, would, under
general international law, be obliged to recognize the obligations stemming
from these rights. Australia unhesitatingly acknowledges the right. Its
acceptance of the corresponding duties does not clearly appear from its
submissions.
(ii) Obligations expressly undertaken by treaty
It is pertinent to note at least three significant occasions on which the
Respondent, in common with other States, has solemnly undertaken by treaty
the duty to act in furtherance of these rights. These have been referred to
in Part C, and it will suffice here to draw attention to these treaty
commitments - under the Charter and under the two International Human Rights
Covenants of 1966. The Charter provisions on self-determination have been
outlined earlier. Under the two Covenants, every party accepts the
obligation to promote the realization of the right to self-determination and
to respect that right (Arts. 1 and 2 of each Covenant).
These references are sufficient to place the duty to respect
self-determination on a firm foundation of treaty obligation.
B. Obligations under UN resolutions
It is not proposed to enter here into a discussion of the broad question of
the binding nature of Security Council decisions. It is more to the pur-[p206]pose to consider whether, having regard to the particular circumstances
of this case, the Security Council resolutions which reaffirm principles of
general international law may be considered to give added force to them.
As observed earlier, there was no suggestion at any stage in this case that
the General Assembly or the Security Council had acted outside their
province or beyond the scope of their legitimate authority in regard to any
of the resolutions on East Timor which were discussed in this case. The
objections to their binding effect were rather on the basis of other
considerations, such as declining majorities and desuetude. These have
already been considered. In relation to the Security Council resolutions,
the technical consideration was urged as to whether in the resolutions the
Security Council spoke in the language of decision or exhortation.
Resolution 384 "urges all States ... to co- operate fully with ... the
United Nations ... to facilitate the decolonization of the Territory" and
resolution 389 "calls upon all States" to do likewise.
Each resolution also calls upon all States "to respect the territorial
integrity of East Timor, as well as the inalienable right of its people to
self- determination in accordance with General Assembly resolution 1514(XV)"
(emphasis added in all quotations).
Words such as urges and calls upon are not necessarily of a purely hortatory
nature. As with all documents that come under legal analysis, the totality
of the document, rather than any particular words, must be the guide to its
overall import. In this case, one can treat them as imposing no obligation,
if one takes the words "urges" and "calls upon" in isolation, but not in the
context of the overall construction of the document. That is not the method
of legal construction and it is not a method I would employ.
We have here two documents which state categorically the Security Council's
position that self- determination was an imperative and that it had not yet
taken place. They urge all States to co- operate, and call upon all States
to respect the territorial integrity of East Timor. Does a Member State
faced with such resolutions, reaffirming a cardinal rule of international
law, have the freedom to disregard the need for self- determination at its
will and pleasure? In the face of the Security Council's considered
assertion that self- determination has not taken place, is it open to an
individual State to recognize de jure the annexation of a non-self-governing
territory by another State, and to enter into treaty relations with that
State regarding the assets of the territory? The overall circumstances of
this case would point to a negative answer to these questions.
Without any attempt at an exhaustive survey of this matter, it may be noted
that the lack of phraseology such as "decides" and "determines" does not
appear in the past to have prevented Security Council resolu-[p207]tions
from being considered as decisionsFN1. For example, Security Council
resolution 145(1960) of 22 July 1960, in relation to the Congo, nowhere uses
such words as "decides" or "determines", but "calls upon" the Government of
Belgium to implement speedily Security Council resolution 143(1960) on the
withdrawal of its troops. It "requests" all States to refrain from any
action which might tend to impede the restoration of law and order and the
exercise by the Government of the Congo of its authority and also to refrain
from any action which might undermine the territorial integrity and the
political independence of the Republic of the Congo. Is this language merely
hortatory or is it the language of a decision?
---------------------------------------------------------------------------------------------------------------------
FN1
See Goodrich, Hambro and Simons, op. cit., p. 210
---------------------------------------------------------------------------------------------------------------------
After this resolution was passed, the Secretary-General drew the attention
of the Council to the obligations of members under Articles 25 and 49. The
Secretary-General's observations were made on the basis that the resolution
was binding under Articles 25 and 49. Having cited these two sections, the
Secretary-General observed to the Council:
"Could there be a more explicit basis for my hope that we may now count on
active support, in the ways which emerge from what I have said, from the
Governments directly concerned?" (United Nations, Official Records of the
Security Council, Fifteenth Year, 884th Meeting, 8 August 1960, para. 23.)
Thereafter, resolution 146 (1960) of 9 August 1960 was passed. That
resolution, which still lacked the phraseology of decision and
determination, "Calls upon the Government of Belgium to withdraw immediately
its troops from the province of Katanga ..." and again:
"Calls upon all Member States, in accordance with Articles 25 and 49 of the
Charter of the United Nations, to accept and carry out the decisions of the
Security Council and to afford mutual assistance in carrying out measures
decided upon by the Council." (Emphasis added.)
There is here a clear indication by the Security Council itself that its
earlier resolution was a decision.
In this context, mention should also be made of resolution 143(1960) of 14
July 1960 which "Calls upon the Government of Belgium to withdraw its troops
from the territory of the Republic of the Congo" and "Decides to authorize
the Secretary- General to take the necessary steps ... to provide the
Government with such military assistance as may be necessary ...".
Thereafter the General Assembly made a "request" to all Member States to
accept and carry out the decisions of the Security Council, this [p208]
resolution again carrying the implication that the Security Council
resolutions constituted decisions and imposed obligations.
Secretary-General Hammerskjold stressed, in his intervention, that if the
co- operation needed to make the Charter a living reality were not to be
achieved, "this would spell the end of the possibilities of the Organization
to grow into what the Charter indicates as the clear intention of the
founders ..."FN1 The words of Hammarskjöld assume particular significance in
the context of resolutions dealing with such rights as those relating to
self- determination and permanent sovereignty over natural resources.
---------------------------------------------------------------------------------------------------------------------
FN1United
Nations, Official Records of the General Assembly, Sixteenth Session,
Supplement No. IA, A/4800/Add.I, p.4; see, also, the similar view expressed
by U Thant, in aspeech on 28 October 1969, UN Monthly Chronicle, Vol. 6,
No.10, November 1969, p.86.
---------------------------------------------------------------------------------------------------------------------
The resolutions of the Security Council involved in this case, (resolutions
384 and 389), use phraseology similar to that of the first resolution cited
above relating to the Congo. Each of these resolutions calls upon all States
to respect the territorial integrity of East Timor, as well as the
inalienable right of its people to self- determination in accordance with
General Assembly resolution 1514(XV).
Each resolution likewise "calls upon" the Government of Indonesia to
withdraw without further delay all its forces from the Territory.
Thus, on United Nations precedent, it would appear that the absence of words
of determination or decision does not necessarily relegate Security Council
resolutions to the level of mere hortatory declarations.
Against the background of the Security Council reaffirming a right
admittedly of fundamental importance, and admittedly enjoyed erga omnes, it
seems academic to examine its obligatory nature in terms of the precise
phraseology used. Especially is this so when one has regard to the fact that
the resolutions were made after hearing Australia, and were in line with the
Australian submissions made to the Council.
C. Some juristic perspectives
(i) The correlativity of rights and duties
This section surveys the obligations under examination, from what may be
described as a jurisprudential or conceptual angle. While the right to
self-determination has attracted much attention in modern international law,
the notion of duties corresponding to that right has not received the same
degree of analysis. This is well illustrated in the present case, where the
concept of self-determination is freely accepted, but not the corresponding
duties. A conceptual examination of the [p209] question will underscore the
importance of duties in the context of this case.
The existence of a right is juristically incompatible with the absence of a
corresponding duty. The correlativity of rights and duties, well established
in law as in logic (see, especially, Hohfeld, Fundamental Legal Conceptions,
1923), means that if the people of East Timor have a right erga omnes to
self-determination, there is a duty lying upon all Member States to
recognize that right. To argue otherwise is to empty the right of its
essential content and, thereby, to contradict the existence of the right
itself. It is too late in the day, having regard to the entrenched nature of
the rights of self- determination and permanent sovereignty over natural
resources in modern international law, for the accompanying duties to be
kept at a level of non- recognition or semi-recognition.
(ii) Is duty limited to compliance with specific directions and
prohibitions?
An important submission made to the Court by Australia needs now to be
addressed. It has juristic implications transcending this particular case.
This argument was summarized by Australia in the penultimate paragraph of
its Counter-Memorial in terms that:
"By entering into the Treaty in December 1989, Australia did not contravene
any direction of the United Nations with respect to East Timor, for none had
been made." (Counter- Memorial, p. 178, para. 412.)
This point was further emphasized at the oral hearings in terms that:
"The Security Council has not spelt out or imposed a single legal obligation
on Australia or any other Member State which would preclude Australia from
entering into the Timor Gap Treaty with Indonesia." (CR 95/10, p. 31.)
Again, it was submitted that:
"Neither resolution calls on Australia or Member States generally to
negotiate only with Portugal. Neither resolution calls on Australia not to
deal with Indonesia. And neither resolution condemns Australia for any
violation of the United Nations Charter or of international law." (Ibid., p.
26; see, also, Counter-Memorial, paras. 328- 346.)
This argument suggests that obligations owed by States in relation to
self-determination are confined to compliance with express directions or
prohibitions. [p210]
A further development of this argument was that there are no sanctions laid
down by the United Nations of which Australia is in breach.
In the first place, the obligation exists under customary international law
which, by its very nature, consists of general principles and norms rather
than specific directions and prohibitions. In the analogy of a domestic
setting, customary or common law (as opposed to specific legislation)
provides the guiding norms and principles in the light of which the specific
instance is judged.
So it is with international law, making due allowance, of course, for the
differences in its sources. Customary law provides the general principles,
while other sources, such as treaties and binding resolutions, may deal with
specifics.
Thus conduct which merely avoids violations of express directions or
prohibitions is not necessarily in conformity with the international
obligations lying upon a State in terms of customary international law. The
obligations to respect self- determination and the right to permanent
sovereignty over natural resources are among these and extend far further
than mere compliance with specific rules or directions and the avoidance of
prohibited conduct.
If further elucidation be necessary, one can approach the question also from
the standpoint of analytical jurisprudence.
Reference needs to be made in this connection to the major jurisprudential
discussions that have in recent years explored the nature of legal
obligations. While it is self-evident that legal obligations consist not
only of obedience to specific directions and prohibitions, but also of
adherence to norms or principles of conduct, this distinction has been much
illuminated by recent discussions in this department of juristic
literatureFN1.
---------------------------------------------------------------------------------------------------------------------
FN1Without
entering into the details of this far-ranging analysis, it will suffice to
refer to some well-known expositions of the nature of rights and duties. See
Dworkin, Taking Rights Seriously, 1977, especially Chaps.2 and 3; see, also,
the similar approach of Roscoe Pound, “The Theory of Judicial Decision”,
Harvard Law Review, 1923, Vol.36, p.645, which anticipates the studies of
Dworkin; and see, further, Roscoe Pound, “Juristic Science and Law”, Harvard
Law Review, 1918, vol. 31, pp.1047 ff. These demonstrations that principles
and standards are as integral to a legal system as rules (Dworkin, “Is Law a
System of Rules?”, in Dworkin(ed.), The Philosophy of Law, 1977, p.38) have
applicability to the international legal system as well.
---------------------------------------------------------------------------------------------------------------------
To take the analogy of domestic law, the corpus of law on which conduct
according to law is based consists not only of commands and prohibitions,
but of norms, principles and standards of conduct. Commands and prohibitions
cover only a very small area of the vast spectrum of obligations. Quite
clearly, duties under international law, like duties under domestic law, are
dependent not only on specific directions and prohibitions but also on norms
and principles.
[p211]
Indeed, the extension of obligations beyond mere obedience to specific
directions and prohibitions, if true of domestic law, must apply a fortiori
in the field of international law which grew out of the broad principles of
natural law and has no specific rule- making authority in the manner so
familiar in domestic jurisdictions. The dependence of international law for
its development and effectiveness on principles, norms and standards needs
no elaboration.
If rights are to be taken seriously, one cannot ignore the principles on
which they are basedFN1. If the right of self- determination is to be taken
seriously, attention must focus on the underlying principles implicit in the
right, rather than on the itemization of specified incidents of direction
and prohibition which, useful so far as they go, are not a complete
statement of the duties that follow from the right. It is impossible to
define in terms of specific directions and prohibitions the numerous duties
these impose. As Australia itself has observed, "the obligation to promote
self- determination is an example of an obligation where no particular means
are prescribed" (CR 95/10, p. 21).
---------------------------------------------------------------------------------------------------------------------
FN1See,
furthr, Dworkin, Taking Rights Seriously (op. cit., p.22). The author
contends that if rights are not taken seriously, law is not taken seriously
either (ibid., p.205).
---------------------------------------------------------------------------------------------------------------------
Juristically analysed, it is not appropriate to view self- determination as
though the totality of the duties it entails consist only in obedience to
specific directions of the United Nations. Performance of duties and
obligations must be tested against the basic underlying norms and
principles, rather than against such specific directions or prohibitions as
might have been prescribed. Quite clearly, an obligation cannot cease to
exist merely because specific means of compliance are not prescribed, nor is
its underlying general principle exhausted by the enumeration of particular
itemized duties. The duty of respect and compliance extends beyond the
letter of specific command and prohibition.
To illustrate from domestic law, such a general principle as that under
which a manufacturer of motor cars "is under a special obligation in
connection with the construction ... of his cars"FN2 , is one which "does
not even purport to define the specific duties such a special obligation
entails"FN3 . Yet the obligation applies in the particular unspecified
eventualities which might occur. When a claim arises from a breach of some
specific duty within the general principle, the manufacturer cannot avoid
the principle on the ground that it does not specify the particular duty.
The argument that no breach of duty has occurred because the respondent's
conduct violates no specific direction can be answered in much the same
manner, because the conduct required by law consists not only of [p212]
compliance with specified directions or prohibitions, but of compliance with
a principle of conduct.
---------------------------------------------------------------------------------------------------------------------
FN2Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (1960).
FN3 Dworkin, supra., p. 26, citing Henningsen v. Bloomfield Motors, Inc.,
supra.
---------------------------------------------------------------------------------------------------------------------
The jurisprudential discussions referred to have not passed unnoticed in the
literature of modern international lawFN1
---------------------------------------------------------------------------------------------------------------------
FN1 See, for example, Kratochwil, Rules, Norms, and Decisions, 1989.
---------------------------------------------------------------------------------------------------------------------
In the circumstances of this case, the act of being party to the Timor Gap
Treaty would appear to be incompatible with recognition of and respect for
the principle of East Timor's rights to self-determination and permanent
sovereignty over natural resources inasmuch as, inter alia, the Treaty:
1) expressly recognizes East Timor as a province of Indonesia without its
people exercising their right;
2) deals with non-renewable natural resources that may well belong to that
territory;
3) makes no mention of the rights of the people of East Timor, but only of
the mutual benefit of the peoples of Australia and Indonesia in the
development of the resources of the area (Preamble, para. 6);
4) makes no provision for the event of the East Timorese people deciding to
repudiate the Treaty upon the exercise of their right to self-determination;
5) specifies an initial period of operation of forty years, with possible
renewals for successive terms of twenty years; and
6) creates a real possibility of the exhaustion of this resource before it
can be enjoyed by the people of East Timor.
These aspects, all prima facie contradictory of the essence of
self-determination and permanent sovereignty over natural resources, do not
cease to have that character because treaty-making with Indonesia has not
been expressly prohibited.
Attention was also drawn to the aspect of sanctions. It was pointed out, for
example, that issues such as arms supplies, oil supplies and new investments
in South Africa were singled out for condemnation when sanctions were
imposed on South Africa. On this basis, Australia submitted that the General
Assembly has shown willingness, when appropriate, to condemn particular
actions or recommend and urge others. It was submitted that the United
Nations has issued no such specific directions requiring States to abstain
from dealings with a State involved in a self-determination dispute (CR
95/9, p. 78), and that there has been no specific pronouncement on the Timor
Gap Treaty. [p213]
Sanctions may point to an obligation, but they are clearly not the only
source of obligations. Indeed, Oscar Schachter, in a study of the bases of
obligation in international law, lists thirteen possible items, of which
sanctions is only oneFN1
---------------------------------------------------------------------------------------------------------------------
FN1Oscar Schachter, "Towards a Theory of International Obligation", 8
Virginia Journal of International Law (1968), p. 301.
---------------------------------------------------------------------------------------------------------------------.
Further,
"The most thorough research, in both domestic and international law, shows
that in reality, compulsion is neither an integral nor a constitutive part
of legal rule, but that it represents a distinct element added to the rule
to perfect it. Sanction does not represent a condition for the existence of
obligation but only for its enforcement."FN2
------------------------------------------------------------------------------------------------------------
FN2Mohammed Bedjaoui, Towards a New International Economic Order, 1979, p.
179.)
------------------------------------------------------------------------------------------------------------
International law in its present stage of development, serving the needs of
an integrated world community, demands a broader view of international
obligations than that which is implicit in the Australian submissions.
Security Council resolutions 384 and 389 clearly formulate certain
principles of conduct in relation to self- determination and permanent
sovereignty. Those principles were already well recognized and entrenched in
international law before being applied by those resolutions to the specific
case of East Timor. Australia is, in my view, in violation of those
principles, contradicting by its conduct its obligation to respect the right
of self- determination of the people of East Timor and their right to
permanent sovereignty over their natural resources. The plea that Australia
did not contravene any direction of the United Nations does not exempt it
from responsibility.
(iii) Obligations stemming from the erga omnes concept
The Court has found that "Portugal's assertion that the right of peoples to
self-determination, as it evolved from the Charter and from United Nations
practice, has an erga omnes character, is irreproachable" (Judgment, para.
29).
This section bases itself upon that finding. It is a position, moreover,
which has been accepted by Australia and assumed throughout the hearings.
The Court's jurisprudence has played a significant role in the evolution of
the erga omnes concept.
In Barcelona Traction, Light and Power Company, Limited, Second Phase
(I.C.J. Reports 1970, p. 3), this Court, drawing a distinction between
obligations of a State towards the international community as a whole, and
[p214] those arising vis-à-vis another State in the field of diplomatic
protection, observed:
"Such obligations derive, for example, in contemporary international law,
from the outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of general
international law (Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951,
p. 23); others are conferred by international instruments of a universal or
quasi-universal character." (I.C.J. Reports 1970, p. 32, para. 34.)
In paragraph 35, the Court followed this principle through by observing that
in obligations of this category, unlike the obligation which is the subject
of diplomatic protection, "all States have a legal interest in its
observance" (emphasis added). In Barcelona Traction, the Court was, of
course, dealing with obligations that are owed erga omnes.
In that case, the Court was spelling out that, where a State has an
obligation towards all other States, each of those other States has a legal
interest in its observance. If, therefore, Australia has a obligation erga
omnes towards all States to respect the right of self- determination,
Portugal (as the administering Power of East Timor) and East Timor would
have a legal interest in the observance of that duty.
Other cases in which this Court was confronted with erga omnes obligations
were Northern Cameroons (I.C.J. Reports 1963, p. 15); the South West Africa
cases, Preliminary Objections (I.C.J. Reports 1962, p. 319) and Second Phase
(I.C.J. Reports 1966, p. 6); Nuclear Tests (Australia v. France) (I.C.J.
Reports 1974, p. 253) and Nuclear Tests (New Zealand v. France) (ibid., p.
457); United States Diplomatic and Consular Staff in Tehran (I.C.J. Reports
1980, p. 3); and Border and Transborder Armed Actions (Nicaragua v.
Honduras), Jurisdiction and Admissibility (I.C.J. Reports 1988, p. 69).
Although in this fashion the erga omnes principle has played an apparently
frequent role in the Court's recent jurisprudence, it has not yet drawn a
definitive decision from the Court in relation to the manner in which the
principle will operate in case of breach. For example, in Northern
Cameroons, the question whether a Member State has a right of action
consequent upon an erga omnes breach was left undecided as the case was
dismissed on grounds of judicial propriety. The dismissal of the South West
Africa case in the merits phase, in 1966, left no scope for any [p215]
conclusions regarding erga omnes obligations. The Nuclear Tests cases did
not pronounce on the erga omnes character of the rights of all States to be
free from atmospheric nuclear tests.
It has thus happened that no Judgment of this Court thus far has addressed
the consequences of violation of an erga omnes obligation. The present case,
had it passed the jurisdictional stage, would have been just such a case
where the doctrine's practical effects would have been considered. Since
this opinion proceeds on the basis that the merits must be considered, it
must advert to the consequences of violation of an erga omnes obligation.
All the prior cases before this Court raised the question of duties owed
erga omnes. That aspect is present in this case as well, for every State has
an erga omnes duty to recognize self-determination and, to that extent, if
Portugal's claim is correct, Australia is in breach of that general erga
omnes duty towards East TimorFN1.
---------------------------------------------------------------------------------------------------------------------
FN1 For a recent survey of erga omnes as a source of obligations generally,
see Claudia Annacker, “The Legal Regime of Erga Omnes Obligations in
International Law”, Austrian Journal of Public and International Law, 1994,
Vol. 46, pp. 131 ff.
---------------------------------------------------------------------------------------------------------------------
However, this case has stressed the obverse aspect of rights opposable erga
omnes - namely, the right erga omnes of the people of East Timor to the
recognition of their self-determination and permanent sovereignty over their
natural resources. The claim is based on the opposability of the right to
Australia.
In Barcelona Traction, the Court's observations regarding obligations owed
to the international community as a whole were not necessary to the case
before it. Yet, though its observations were obiter, the notion of
obligations erga omnes developed apace thereafterFN2.
---------------------------------------------------------------------------------------------------------------------
FN2 See
Bruno Simma, “Does the Charter Provide an Adequate Legal Basis for
Individual or Collective Responses to Violations of Obligations Erga
Omnes?”, in Jost Delbrück(ed), The Future of International Law Enforcement:
New Scenarios – New Law?, 1993, pp.125 ff.
---------------------------------------------------------------------------------------------------------------------
The present case is one where quite clearly the consequences of the erga
omnes principle follow through to their logical conclusion - that the
obligation which is a corollary of the right may well have been contravened.
This would lead, in my view, to the grant of judicial relief for the
violation of the right.
I am conscious, in reaching this conclusion, that the violation of an erga
omnes right has not thus far been the basis of judicial relief before this
Court. Yet the principles are clear, and the need is manifest for a
recognition that the right, like all rights, begets corresponding duties. [p216]
The erga omnes concept has been at the door of this Court for many years. A
disregard of erga omnes obligations makes a serious tear in the web of
international obligations, and the current state of international law
requires that violations of the concept be followed through to their logical
and legal conclusion.
Partly because the erga omnes obligation has not thus far been the subject
of judicial determination, it has been said that: "Viewed realistically, the
world of obligations erga omnes is still the world of the 'ought' rather
than the 'is'."FN1
---------------------------------------------------------------------------------------------------------------------
FN1
Simma, "Violations of Obligations erga omnes?", op. cit., p. 126.
---------------------------------------------------------------------------------------------------------------------
This case raises issues which bridge that gap.
I would end this section as it began, by adopting the Court's pronouncement
on the erga omnes character of East Timor's right, and I would follow that
principle through to what I have indicated to be its logical and legal
conclusion.
***
In the result, the obligations of Australia towards East Timor can be shown
to stem from a multiplicity of sources and juristic considerations. Any one
of them by itself would be sufficient to sustain these obligations in law.
Cumulatively, their weight is compelling.
Part E. Australia’s objections based on judicial propriety
Australia has submitted that there are reasons of judicial propriety, in
consideration of which the Court should not decide this case
(Counter-Memorial, para. 306).
Among the supportive reasons adduced are
(i) that there is no justiciable dispute in this case (ibid., paras. 315-
316);
(ii) that these proceedings are a misuse of the processes of the Court
(ibid., paras. 306- 316);
(iii) that the proceedings have an illegitimate object (Rejoinder, paras.
155- 166);
(iv) that the Judgment would serve no useful purpose in that it would not
promote the interests allegedly requiring protection (Counter-Memorial, p.
122, paras. 271- 278);
(v) that the Court should not, in any event, give a judgment which the Court
has no authority or ability to satisfy (Rejoinder, paras. 160- 166); and
(vi) that the Court is an inappropriate forum for the resolution of the
dispute (Rejoinder, paras. 167- 169) inasmuch as other U [p217] N organs
have assumed responsibility for negotiating a settlement of the East Timor
question (Counter-Memorial, paras. 288- 297).
(i) Absence of a justiciable dispute
The Court has held that there is in fact a justiciable dispute in this case
and I respectfully concur in that finding.
(ii) Misuse of the process of the Court
Australia has argued that this case is:
"a sham - a blatant artifice, by which, under the guise of attacking
Australia's capacity to conclude the Treaty, in reality Portugal seeks to
deprive Indonesia of the benefits of its control over East Timor" (CR 95/11,
pp. 47- 48).
This contention is linked to Australia's submission that there is in reality
no dispute in this case. If there is indeed a justiciable dispute, as the
Court has held, the resort to the processes of the Court for resolution is
right and proper, for it is for the resolution of justiciable disputes that
the Court exists.
Moreover, if the expression "administering Power" has any meaning, it means
a commitment to the solemn duties associated with the "sacred trust" on
behalf of the people of East Timor. As pointed out earlier in this opinion,
Portugal would be in violation of that basic obligation if, while being the
administering Power, and while claiming to be such, it has failed to take
such action as was available to it in law for protecting the rights of the
people of East Timor in relation to their rights which are dealt with under
the Treaty. This case involves no less than the assertion, on behalf of a
territory that has no locus standi before the Court, of the denial of two
rights which are considered fundamental under modern international law.
Whatever be the result, this is eminently a justiciable dispute, brought
before an appropriate forum.
(iii) that the Judgment would not serve any legitimate object
Under this head, Australia argues that a judgment in Portugal's favour
cannot fulfil any legitimate object inasmuch as the Court cannot require
Australia to breach valid treaty obligations owed to third States, and
judgment for Portugal would deny Australia's ability to protect its
sovereign rights (Counter-Memorial, paras. 269- 286). These have been
sufficiently answered in the course of this opinion. It was also suggested
at various stages of the case that Portugal's objectives included the
gaining of benefits for itself as the former colonial power. It has been
indicated elsewhere in this opinion that whatever Portugal gains from these
pro-[p218]ceedings will be held strictly for the benefit of the people of
East Timor, and under United Nations supervision.
(iv) that the Judgment would serve no useful purpose in that it would not
promote the interests of East Timor
Portugal has submitted that a Judgment in Portugal's favour would serve the
useful purpose of conserving the rights of the people of East Timor.
Australia submits, on the other hand, that:
"Faced with a situation such as postulated by Portugal, both Australia and
Indonesia are likely unilaterally to exploit the area, without the Treaty,
avoiding jurisdictional conflicts on a purely pragmatic basis." (Rejoinder,
p. 72, para. 160.)
Australia also submits that the Treaty is potentially more beneficial to the
people of East Timor, "provided Indonesia passes on an equitable part of the
benefits to the people" (ibid.). The qualification introduced to this
proposition goes to the crux of the matter. One does not know whether, when
or how this will occur.
To dismiss this claim on the basis that, in any event, an equitable part of
the benefits derived by a third country will somehow be passed on to the
people does not answer the concerns which lie at the root of the principles
of self- determination and permanent sovereignty.
In its Rejoinder, Australia states:
"No matter how hard Portugal emphasises its alleged formal status and
responsibilities, it gives no indication of how a judgment in its favour
will make one iota of difference to the rights of the East Timorese over
their offshore resources. Those rights, as well as Australia's, will
continue. No judgment of this Court can affect them, given the limited issue
which Portugal asks the Court to adjudge." (Para. 162; emphasis in
original.)
It is somewhat difficult to understand this passage, for the judgment sought
by Portugal is not merely a judgment affirming the rights of East Timor to
self-determination and permanent sovereignty over its natural resources, but
one which holds, in relation to those rights, that they are opposable to
Australia, and that they have been infringed by Australia in entering into
the Timor Gap Treaty. Such a judgment, had it been obtained, would not have
been without legal consequences.
In Northern Cameroons, the adjudication sought would have been devoid of any
purpose. It concerned a dispute about the interpretation and application of
a treaty which was no longer in force and in which there could be no
opportunity for a future act of interpretation or appli-[p219] cation of
that treaty in accordance with any judgment the Court might render (I.C.J.
Reports 1963, p. 37). In that case, if the Court made a declaration after
the termination of the trusteeship agreement, it would have no continuing
applicability. In the words of a recent treatise, the distinction between
Northern Cameroons and the present case was noted as follows:
"In Northern Cameroons the Court did not proceed to the merits of the case
because its judgment could have had no practical effect and would have had
no impact upon existing legal rights or obligations. To give a judgment
under the circumstances would not have accorded with the judicial function;
Case Concerning the Northern Cameroons (Cameroon v. United Kingdom),
Preliminary Objections, 1963 ICJ Rep. 15, (Judgment of 2 Dec. 1963). In the
East Timor case this limitation does not appear to apply."FN1
------------------------------------------------------------------------------------------------------------
FN1
C. Chinkin, Third Parties in International Law, 1993, p. 211, fn. 105.
------------------------------------------------------------------------------------------------------------
The judgment sought here is in respect not of a defunct treaty but of two
basic international obligations which are very much a part of current law.
It cannot be said that there will be no opportunities for any future
application of those principles to the rights of the East Timorese people.
The Cameroons case is thus clearly distinguishable.
(v) that the Court should not give a judgment which it has no authority or
ability to satisfy
The Court, by its very constitution, lacks the means of enforcement and is
not to be deterred from pronouncing upon the proper legal determination of a
dispute it would otherwise have decided, merely because, for political or
other reasons, that determination is unlikely to be implemented. The raison
d'être of the Court's jurisdiction is adjudication and clarification of the
law, not enforcement and implementation. The very fact that a justiciable
dispute has been duly determined judicially can itself have a practical
value which cannot be anticipated, and the consequences of which may well
reach into the area of practicalities. Those are matters beyond the purview
of the Court, which must discharge its proper judicial functions
irrespective of questions of enforceability and execution, which are not its
province.
(vi) Is the Court an inappropriate forum?
The fact that other United Nations organs are seised of the same matter and
may be considering it is no basis for a suggestion that the Court should not
consider that matter to the extent that is proper within the limits of its
jurisdiction. This matter does not need elaboration in view of
[p220] the extensive case-law upon the subject. Each organ of the United
Nations has its own allotted responsibility in its appropriate area. A
matter for adjudication under the judicial function of the Court within its
proper sphere of competence is not to be considered extraneous to the
Court's concerns merely because political results may flow from it or
because another organ of the United Nations is examining it from the
standpoint of its own area of authority. As the late Judge Lachs observed
with his customary clarity in the Lockerbie case, the Court is:
"the guardian of legality for the international community as a whole, both
within and without the United Nations. One may therefore legitimately
suppose that the intention of the founders was not to encourage a blinkered
parallelism of functions but a fruitful interaction." (Application of the
1971 Montreal Convention arising from the Aerial Incident at Lockerbie,
Provisional Measures, I.C.J. Reports 1992; separate opinion, p. 138.)
The Australian submission that other organs of the United Nations have
assumed responsibility for negotiating a settlement of the East Timor
question (Counter-Memorial, p. 128, para. 288, et. seq.) does not absolve
the Court of its own responsibility within its own allotted area.
Moreover, this is not a case, as indicated earlier in this opinion, which
opens out a full range of inquiry into all the military, diplomatic and
political nuances of the East Timor situation. Since this is not so, the
Australian submission that the case is unsuitable for adjudication in these
proceedings (see Counter-Memorial, paras. 298- 300) must fail.
The complementarity of the various organs of the United Nations, all
pursuing in their different ways the Purposes of the Organization to which
they belong, requires each organ, within its appropriate and legitimate
sphere of authority, to further those Purposes in the manner appropriate to
its constitution. This Court, properly seised of a justiciable dispute
within its legitimate sphere of authority, does not abdicate its judicial
responsibilities merely because of the pendency of the matter in another
forum.
Conclusion
A. I concur in the Court's finding that there is a justiciable dispute
between the Parties.
B. I concur with the Court in its reaffirmation of the importance of the
principle of self-determination. [p221]
C. The Applicant has the necessary jus standi to maintain this action, and
is under a duty under international law to take necessary steps to conserve
the rights of the people of East Timor. Any benefits obtained by such action
will be held strictly for the people of East Timor.
D. The various objections based on judicial propriety must be rejected.
E. This Application is maintainable in the absence of a third State for the
following reasons:
(i) East Timor is a non-self-governing territory recognized as such by the
General Assembly and the Security Council, and acknowledged by the
Respondent to be still of that status.
(ii) Since East Timor is a non-self-governing territory, its people are
unquestionably entitled to the right to self-determination.
(iii) The right to self-determination constitutes a fundamental norm of
contemporary international law, binding on all States.
(iv) The right to permanent sovereignty over natural resources is a basic
constituent of the right to self-determination.
(v) The rights to self-determination and permanent sovereignty over natural
resources are recognized as rights erga omnes, under well-established
principles of international law, and are recognized as such by the
Respondent.
(vi) An erga omnes right generates a corresponding duty in all States, which
duty, in case of non-compliance or breach, can be the subject of a claim for
redress against the State so acting.
(vii) The duty thus generated in all States includes the duty to recognize
and respect those rights. Implicit in such recognition and respect is the
duty not to act in any manner that will in effect deny those rights or
impair their exercise.
(viii) The duty to recognize and respect those rights is an overarching
general duty, binding upon all States, and is not restricted to particular
or specific directions or prohibitions issued by the United Nations.
(ix) The Respondent has entered into a treaty with another State, dealing
with a valuable, non-renewable natural resource of East Timor for an initial
period of forty years, subject to twenty year extensions.
(x) The Respondent has in the Treaty expressly acknowledged and accepted
East Timor's incorporation in that other State as a province of that State.
(xi) That other State has at no time been recognized by the United Nations
as having any authority over the non- self- governing [p222] Territory of
East Timor, or as having displaced the administering Power duly recognized
by the General Assembly and the Security Council.
(xii) The Treaty thus entered into has the potential to deplete or even
exhaust this non-renewable and valuable resource of East Timor.
(xiii) The Treaty makes no provision conserving the rights of the people of
East Timor, or providing for the eventuality that, after exercising their
right to self-determination, the people of East Timor may choose to
repudiate the Treaty.
(xiv) Neither the people of that territory, nor their duly recognized
administering Power have been consulted in regard to the said Treaty.
(xv) The Treaty has been entered into by the Respondent and another State
"for the mutual benefit of their peoples in the development of the resources
of the area" with no mention of any benefits for the people of East Timor
from the valuable natural resource belonging to them.
(xvi) the Respondent's individual actions:
(a) in entering into the said treaty;
(b) in expressly acknowledging the incorporation of East Timor into another
State;
(c) in being party to an arrangement dealing with the non- renewable
resources of East Timor in a manner likely to cause their serious depletion
or exhaustion;
(d) in being party to an arrangement dealing with the non- renewable
resources of East Timor without consultation with the people of East Timor,
or their duly recognized representative;
(e) in being party to an arrangement which makes no mention of the rights of
the people of East Timor, but only of the peoples of Australia and
Indonesia; and
(f) in taking steps for the implementation of the treaty
raise substantial doubts regarding their compatibility with
(a) The rights of the people of East Timor to self- determination and
permanent sovereignty over their natural resources
(b) the Respondent's express acknowledgment of those rights
(c) the Respondent's obligations, correlative to East Timor's rights, to
recognize and respect those rights, and not to act in such a manner as to
impair those rights
(d) the Respondent's obligations under relevant resolutions of the General
Assembly and the Security Council
(xvii) The circumstance that a Judgment of this Court against a Party may
have effects upon an absent State does not by itself, [p223] according to
the settled jurisprudence of this Court, deprive the Court of jurisdiction
to make an order against a Party which is in fact present before it.
claim against the Respondent can be determined on the basis of:
(a) the Respondent's individual obligations under international law;
(b) the Respondent's individual actions; and
(c) the principle of a State's individual responsibility under international
law for its individual actions
without any need for an examination of the conduct of another State.
F. Since the conclusions set out above can be reached upon the basis of the
unilateral acts of the Respondent, without any necessity to investigate or
pronounce upon the conduct of a third State, the case of Monetary Gold is
not relevant to a determination of this case.
G. Were it necessary to consider the case of Monetary Gold, the facts of
that case are clearly distinguishable from those in the present case.
Consequently, that decision is inapplicable.
***
My conclusion therefore is that the Application before the Court is within
the Court's competence to determine, and that the objection based upon the
absence of a third State should have been overruled and the case proceeded
with to a final determination. The materials necessary for that
determination were before the Court, as they were inextricably linked with
the preliminary issue of jurisdiction.
(Signed) Christopher Gregory Weeramantry.
[p224]
Dissenting opinion of judge Skubiszewski
|
Table of contents |
|
|
Paragraphs |
|
Introduction: dissent and
concurrence |
1-2 |
|
|
|
|
I.
Basic
Facts on East Timor |
3-32 |
|
|
|
|
Historical background
|
4 |
|
Portuguese constitutional
law and policies relating to its colonies, including East Timor,
prior to the democratic revolution of 1974 |
5-6 |
|
Action by the United
Nations prior to 1974 |
7-9 |
|
|
|
|
Change in Portugal's stand
(1974) |
10-12 |
|
Developments in East Timor
1974-1975, including Indonesian invasion and occupation
|
13-16 |
|
Reaction by the United
Nations |
17-22 |
|
Attitude towards Indonesian
rule in East Timor |
23-27 |
|
|
|
|
Timor Gap Treaty
|
28-32 |
|
|
|
|
II.
Existence of the Dispute
|
33-39 |
|
|
|
|
The dispute before the
Court |
34-38 |
|
The question before the
political organs |
39 |
|
|
|
|
III.
Jurisdiction, Admissibility, Propriety
|
40-112 |
|
|
|
|
A. Jurisdiction
|
40-96 |
|
|
|
|
Law and justice
|
42-48 |
|
Portugal's first submission
|
49-58 |
|
Distinction between
involvement of interests and determination of rights or duties
|
59-67 |
|
United Nations law and the
question whether Indonesia is a necessary party |
68-81 |
|
Subject-matter of the
decision |
82-88 |
|
Indonesian control over
East Timor |
89-92 |
|
Timor Gap Treaty
|
93-96 |
|
|
|
|
B.
Admissibility |
97-104 |
|
|
|
|
General
|
97-99 |
|
Applicant State's
jus standi
|
100-104 |
|
|
|
|
C. "Judicial propriety"
|
105-112 |
|
|
|
|
General
|
105-108 |
|
A justiciable dispute?
|
109-112 |
|
[p
225] |
|
|
IV.
The
Territory of East Timor
|
113-155 |
|
|
|
|
A. Status
|
113-133 |
|
|
|
|
No change of status
|
114-116 |
|
The position of Australia
|
117-121 |
|
Recognition and
non-recognition |
122-133 |
|
|
|
|
B. Self-determination
|
134-141 |
|
|
|
|
"Essential principle"
|
134-138 |
|
The position of Australia
|
139-140 |
|
Erosion through
acquiescence in accomplished facts |
141 |
|
|
|
|
C. Administering Power
|
142-155 |
|
|
|
|
Administering Power as part
of the status of the Territory |
142 |
|
Administering Power as
sovereign |
143-146 |
|
Continuity of Portugal's
position as administering Power |
147-155 |
|
|
|
|
V.
Conclusion
|
156-167 |
[p226]
Dissenting opinion of judge Skubiszewski
1. I am unable to concur with the Judgment of the Court which finds that
"it cannot in the present case exercise the jurisdiction conferred upon it
by the declarations made by the Parties under Article 36, paragraph 2, of
its Statute to adjudicate upon the dispute referred to it by the Application
of the Portuguese Republic" (Judgment, para. 38).
Nor am I able to agree with the reasons upon which this finding is based.
2. On the other hand, I concur with the dismissal by the Court of
Australia's objection that "there is in reality no dispute" between it and
Portugal (Judgment, paras. 21 and 22). I agree with the Court when in the
reasons for the Judgment it takes note that, "for the two Parties, the
Territory of East Timor remains a non-self-governing territory and its
people has the right to self-determination" (Judgment, para. 37). It might
be said that the narrowing down of the relevancy of the status of the
Territory and of the said right to the position of the Parties constitutes
the absolute minimum. However, this approach is rather a matter of method
than substance: the Court itself subscribes to the continued legal existence
of the status of East Timor as a non-self-governing territory and the
applicability of the principle of self-determination. I am convinced that
this re-statement of the law by the Court is important for the stand
Portugal took in the present proceedings and is taking beyond them. The
re-statement in the Judgment is significant for an equitable settlement of
the question of East Timor. I think that everybody who has the purposes and
the principles of the United Nations at heart must commend the Court for
this dictum.
Section I: basic facts on East Timor
3. In paragraphs 11-18 the Judgment succinctly recalls those facts on East
Timor of which a knowledge is necessary for an understanding of the dispute.
This section is in the nature of a supplement to the description found in
the Judgment.
Historical Background
4. The Portuguese and, subsequently, the Dutch navigators reached the island
of Timor in the 16th century. In the process of colonial conquest the
eastern part of the island was subjected to Portuguese and the western part
to Dutch sovereignty. The boundary was delimited in 1859 by virtue of a
Treaty concluded by the two States. The Convention and Declaration of 1893
and another Convention of 1904 also dealt with the frontier. In 1914 The
Netherlands and Portugal were parties to an arbitration concerning part of
the boundary. In 1941-1942 Dutch and [p227] Australian forces entered
Portuguese Timor to defend it against Japanese invasion. They were not
successful and the island remained under Japanese occupation until the end
the Second World War. The Portuguese authorities then came back to East
Timor. On the other hand, following Indonesia's independence and recognition
as a State, Dutch sovereignty over western Timor was terminated and the area
became part of Indonesian territory.
Portuguese Constitutional Law and Policies relating to its Colonies,
including East Timor, Prior to the Democratic Revolution of 1974
5. Under Portuguese constitutional law East Timor was a colony or dependency
of Portugal and, consequently, part of Portuguese territory. It was
described either as a "colony" or "overseas province". The Constitution of
1933 chose the latter term. There was a legal concept in it: these areas
would be part of the Unitary State of Portugal and their populations part of
the Portuguese
nation. At that time the Head of State defined the constitutional position
in the following words: "the overseas provinces are already independent
through the independence of the Nation as a whole" (Memorial, para. 1.07).
But the Constitution maintained the notion of the "parent country", which
concept was in formal contradiction to the interpretation quoted. Thus the
constitutional law of Portugal excluded self-determination by colonial
peoples and, eo ipso, prevented the acquisition of independence by the
colonies. Article I of the Constitution of 1933 prohibited alienation of any
part of national territory; East Timor, together with all the other
colonies, was a constituent element of that territory. Consequently, when
admitted to the United Nations (1955), Portugal opposed the application of
Chapter XI of the Charter to its overseas possessions, including East Timor.
For a few years the Government in Lisbon succeeded in stopping the
Organization from subjecting the Portuguese colonies to the regime of that
Chapter, but since 1960 East Timor has been classified by the United Nations
as a non-self-governing territory (General Assembly resolution 1542 (XV)).
6. In 1971 the overseas provinces were categorized, in Portuguese law, as
"regions possessing political and administrative autonomy, able to assume
the name of States" (Memorial, para. 1.07). However, this new classification
did not bring about any change either in the treatment of East Timor (and
the other colonies) in the internal affairs of the State or in the
Portuguese attitude towards the application of Chapter XI of the Charter.
Moreover, how could it, once they remained part of the Unitary State? The
breakthrough came three years later with the introduction of democracy in
Portugal. [p228]
Action by the United Nations Prior to 1974
7. The United Nations was at pains to bring about, in regard to the
Portuguese colonies, a state of affairs that would conform to the Charter.
8. In resolution 180 (1963), the Security Council called upon Portugal to
implement "the immediate recognition of the right of the peoples of the
Territories under its administration to self-determination and independence"
(para. 5 (a)) and affirmed that
"the policies of Portugal in claiming the Territories under its
administration as 'overseas territories' and as integral parts of
metropolitan Portugal [were] contrary to the principles of the Charter and
the relevant resolutions of the General Assembly and of the Security
Council" (para. 2).
The Council repeated its calls and affirmations in resolutions 183 (1963)
and 218 (1965). In resolution 312 (1972), the Security Council reaffirmed
"the inalienable right of the peoples of Angola, Mozambique and Guinea
(Bissau) to self-determination and independence" and recognized "the
legitimacy of their struggle to achieve that right" (para. 1). The same
position is reflected by Council resolution 322 (1972) and by General
Assembly resolutions 2270(XXII), 2395(XXIII) and 2507(XXIV).
9. The United Nations also decided to take steps which went further than
mere calls and affirmations. In resolution 180 (1963) the Security Council
requested that "all States should refrain forthwith from offering the
Portuguese Government any assistance which would enable it to continue its
repression of the peoples of the Territories under its administration, and
take all measures to prevent the sale and supply of arms and military
equipment for this purpose to the Portuguese Government" (para. 6). Similar
requests and calls were made in Security Council resolutions 218 (1965) and
312 (1972) as well as in General Assembly resolutions 2270(XXII),
2395(XXIII) and 2507(XXIV). In resolution 2507(XXIV) the General Assembly
further called upon all States, United Nations specialized agencies and
other international organizations to "increase ... their moral and material
assistance to the peoples of the Territories under Portuguese domination who
are struggling for their freedom and independence" (para. 11).
Change in Portugal's Stand (1974)
10. It was not surprising that the Armed Forces Movement (MFA) which
triggered off the Democratic Revolution of 25 April 1974 (known as the
"Carnation Revolution"), laid emphasis on a political solution of the
colonial problem, in contradistinction to military action. The colonial [p229] war which pre-1974 Portugal waged in Africa (viz., in Angola,
Guinea-Bissau and Mozambique) was the direct cause of the Revolution. The
first Provisional Government spoke of self-determination of the colonies.
That policy found expression in decree-law 203/74. Another legislative act,
viz., constitutional law 7/74 provides in Article I that
"the solution to the overseas wars is political and not military ... [and]
implies, in accordance with the United Nations Charter, the recognition by
Portugal of the right of the peoples to self-determination"
and in Article 2 that
"the recognition of the right to self-determination, with all that it
implies, includes the acceptance of the independence of the overseas
territories and exemption from the corresponding part of Article 1 of the
Political Constitution of 1933".
11. By resolution 3294 (XXIX) the UN General Assembly welcomed the new
policy of Portugal. That policy conformed to the Charter.
12. Constitutional law 7/75 reaffirmed "the right of the people of Timor to
self-determination ... in conformity with the relevant resolutions of the
United Nations Organization ..." (Art. I). It may be added that Article 307
of the Portuguese Constitution of 1976 safeguarded East Timor's "right to
independence", while Article 293 of the Constitution of 1989 (now in force)
is broader as it refers to "the right to self-determination and
independence".
Developments in East Timor 1974-1975, Including Indonesian Invasion and
Occupation
13. In contrast with other Portuguese colonies there was, in East Timor, no
liberation movement or armed struggle, though there were sporadic riots or
other manifestations of unrest. In 1974 three political associations were
formed: the Uniao Democrática Timorense (UDT) which first supported gradual
autonomy, and subsequently the granting of independence after a period of
association with Portugal, but finally opted for union with Indonesia; the
Frente Revolucionária de Timor-Leste Independente (FRETILIN; this movement
initially bore a different name), which advocated independence; and the
Associaçao Popular Democrática Timorense (APODETI) which favoured
integration with Indonesia. Later, the UDT joined a group of pro-Indonesian
parties collectively known as the Anti-Communist Movement (MAC).
14. In 1975 Portugal engaged in consultations with these organizations on
the future of the Territory. The choice was between independence,
integration into a State other than Portugal (which in practice meant [p230] Indonesia), or association with Portugal. The Government in Lisbon made
preparations for a general election on the island. The plan was to set up a
Popular Assembly. In the meantime local elections took place. But
immediately following them the UDT launched a coup d'etat. The FRETILIN
responded by staging a counter-coup. The capital of the Territory, Dili,
found itself in the hands of the FRETILIN. The fighting involved the various
political movements. The Portuguese authorities emphasized that they did not
side with any of them. For reasons of safety the authorities left the
capital on 26/27 August 1975 and established themselves on the island of
Atauro which was part of the Territory.
15. While the East Timorese political organizations continued to pursue
their conflicting policies regarding the Territory's future, Portugal made
preparations for further talks with and among them. But the situation became
yet more complex when in November 1975 the MAC proclaimed the integration of
East Timor with Indonesia and on 28 November 1975 the FRETILIN, for its
part, proclaimed the Democratic Republic of East Timor (RDTL). The United
Nations did not regard these proclamations as implementing East Timor's
right to self-determination (in 1984 the FRETILIN itself abandoned its
position on the alleged existence of the RDTL).
16. The situation was under discussion in the United Nations General
Assembly when, on 7 December 1975, Indonesian armed forces invaded East
Timor and occupied it. On 8 December 1975 the Portuguese authorities left
the Territory.
Reaction by the United Nations
17. In paragraphs 14-16 the Judgment describes the stand taken by the United
Nations, in particular in the light of the resolutions adopted by the
Security Council (1975-1976) and the General Assembly (1975-1982) after
Indonesian invasion and occupation. I shall limit myself to a few additional
points.
18. First, apart from calling upon "the Government of Indonesia to withdraw
without delay all its forces from the Territory" the Security Council also
deplored "the intervention" of these forces in East Timor and expressed its
grave concern "at the deterioration of the situation in East Timor",
including "the loss of life" there (resolution 384 (1975), seventh, eighth
and ninth preambular paragraphs; that resolution was subsequently recalled
in resolution 389 (1976)). Equally, the General Assembly "[s]trongly
deplore[d] the military intervention" (resolution 3485 (XXX), para. 4). In
its subsequent resolution (31/53, para. 4) the Assembly reiterated the same
strong regret in view of "the persistent refusal of the Government of
Indonesia to comply with the provisions" of the foregoing resolutions. The
Assembly reaffirmed this attitude in its resolutions 32/34 (para. 2) and
33/39 (para. 2). The Assembly was also "[d]eeply con-[p231]cerned at the
critical situation in the Territory" (later described as the "continuing
critical situation") resulting from the intervention and, as stated in
subsequent resolutions, from "the persistent refusal on the part of the
Government of Indonesia to comply with the provisions of the resolutions of
the General Assembly and the Security Council" (resolutions cited and
resolution 33/39).
19. Second, in 1980 the General Assembly welcomed "the diplomatic initiative
taken by the Government of Portugal as a first step towards the free
exercise by the people of East Timor of their right to self-determination
and independence" (resolution 35/27, para. 3). In 1981 the Assembly noted
"the initiative taken by the Government of Portugal, as stated in the
communique of the Council of Ministers of Portugal issued on 12 September
1980, and invite[d] the administering Power to continue its efforts with a
view to ensuring the proper exercise of the right to self-determination and
independence by the people of East Timor, in accordance with General
Assembly resolution 1514 (XV), and to report to the Special Committee on the
Situation with regard to the Implementation of the Declaration on the
Granting of Independence to Colonial Countries and Peoples on the progress
of its initiative" (resolution 36/50, para. 4).
It may be observed that there is a link between the efforts of Portugal and
the institution of the present Geneva "consultations" conducted under the
auspices of the Secretary-General of the United Nations with "all parties
directly concerned" (resolution 37/30, para. 1), namely "Portugal, as the
administering Power, and the representatives of the East Timorese people, as
well as Indonesia" (resolution 36/50, para. 3).
20. Third, as long as these "consultations" continue, there is practically
no room or need for any of the principal political organs of the United
Nations to vote on any resolution on East Timor.
21. Fourth, the Judgment enumerates those United Nations resolutions "which
did not specifically refer to Portugal as the administering Power" but
which, at the same time, "recalled another resolution or other resolutions
which so referred to it" (Judgment, para. 15). Thus such non-reference is
without significance. It may be added that the silence of three resolutions
is more apparent than real. For they speak of statements by Portugal; now
these statements were made by it solely in its capacity as administering
Power (Security Council resolution 389 (1976); General Assembly resolutions
31/53 and 32/34). In effect, only one resolution, viz., General Assembly
resolution 33/39 of 1978, makes no allusion to Portugal. Nevertheless it
recalls resolutions which contain a reference to Portugal. [p232]
22. Fifth, the wording of the resolutions referred to in paragraphs 17-21
above is silent on human rights. However, in its resolutions (1975-1982) the
General Assembly points to the principles of the Charter and of the
Declaration on the Granting of Independence to Colonial Countries and
Peoples (resolution 1514 (XV)). Some of these principles specifically
protect human rights. Each year the Assembly stated that it had examined the
relevant chapter of the report of the Committee of Twenty-Four. Again,
concern with human rights in the colonies has always been part of the work
of that organ. In resolution 37/30 the Assembly took note of both the report
by the Secretary-General and of resolution 1982/20 of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities. The name of the
Sub-Commission speaks for itself. Thus the human rights factor is also
present, albeit indirectly, and it is relevant to the evaluation of the East
Timor situation. There is also a direct link: the 1993 resolution of the
Commission on Human Rights on the violation of human rights and fundamental
freedoms in East Timor (United Nations document E/CN.4/1993/L.81/Rev.1).
Attitude Towards Indonesian Rule in East Timor
23. On 31 May 1976 a Popular Assembly meeting in the East Timorese capital
Dili under Indonesian occupation petitioned Indonesia for integration
(United Nations document S/12097, Annex II). Official observers from India,
Indonesia, Iran, Malaysia, New Zealand, Nigeria, Saudi Arabia and Thailand
were present. In the reports on these events there were references to the
"wishes of the people" which were subsequently "verified" by a fact-finding
team from the National Parliament of Indonesia. Some foreign diplomatic
observers accompanied that team. The United Nations was not represented
during any of these activities. The Indonesian Parliament incorporated East
Timor into Indonesia on 16 July 1976. Under Indonesian law East Timor became
a part of the territory of Indonesia as that country's twenty-seventh
province.
24. The United Nations clearly refused and still continues to refuse to
acknowledge the situation created in East Timor by Indonesian invasion,
occupation and annexation. In 1976, in resolution 31/53, paragraph 5, the
General Assembly
"Rejects the claim that East Timor has been integrated into Indonesia,
inasmuch as the people of the Territory have not been able to exercise
freely their right to self-determination and independence."
A similar rejection is found in paragraph 3 of resolution 32/34. [p233]
25. The Judgment points out that Australia recognized the incorporation of
East Timor into Indonesia (Judgment, para. 17).
26. Other States have also granted their recognition, in one way or another,
sometimes de facto only and without committing themselves to confirming that
self-determination took place. According to information in the
Counter-Memorial and Rejoinder of Australia (paras. 175 and 45-48,
respectively), they include, in alphabetical order, Bangladesh, India, Iran,
Iraq, Jordan, Malaysia, Morocco, Papua New Guinea, Philippines, Singapore,
Suriname, Sweden, Thailand and the United States of America. I have not
listed all the States referred to by Australia as "accepting the
incorporation of East Timor" (Counter- Memorial, title of paragraph 175) or
recognizing the "reality of Indonesian control" (Rejoinder, para. 44). The
reason for the omission of some States (included by Australia) is that,
having examined their statements, I doubt whether they could be classified
under the rubric of recognition (e.g., New Zealand, Rejoinder, para. 48).
And what is more, there is room for hesitation with regard to some of the
States enumerated above. In all, the group of recognizing States is small.
27. Whether territorial clauses in some of the tax treaties concluded by
various other States with Indonesia imply recognition of the latter's
sovereignty over East Timor is considered in paragraph 122 below.
Timor Gap Treaty
28. Submissions (2) to (5) presented by Portugal (Judgment, para. 10) assert
several claims in connection with the conclusion by Australia of that
Treaty.
29. Australian-Indonesian Agreements of 18 May 1971 and 9 October 1972 on
their respective rights to the continental shelf in the areas of the Arafura
and Timor Seas left outside the delimitation the shelf facing the coast of
East Timor. Thus a kind of gap was left in the delimitation of the
continental shelf in those Seas, the "Timor Gap". This name was soon
extended to the whole area between East Timor and Australia. The lines
recorded by these Agreements identify the whole boundary of the continental
shelf between Australia and Indonesia. No boundary was established in the
area between Australia and East Timor. In the opinion of Portugal (Memorial,
para. 2.01)
"the 1971 and 1972 Agreements, and particularly the latter, signify an
acknowledgement by Australia that the question of rights over the
continental shelf between territories whose coasts face one another and the
question of the 'frontal' delimitation of the shelf in the area referred to
as the Timor Gap, in other words, in the area opposite [p234] East Timor,
was a matter for Australia and this Territory alone. Moreover, such an
acknowledgement is fully borne out by the contacts established between
Australia and Portugal, between 1970 and 1974, concerning the formal opening
of negotiations for the delimitation of the shelf in the area in question,
as well as by the dispute which arose between them as a result, among other
things, of the concession granted by Portugal to the Oceanic Exploration
Company Ltd."
30. The attitude of Australia changed after Indonesia took over actual
control of East Timor. In 1979 Australia and Indonesia started negotiations
concerning the exploration, exploitation and delimitation of the continental
shelf in the area of the Timor Gap. The two States agreed not to fish in an
area which included the Timor Gap (Memorandum of Understanding of 1981).
Pending the delimitation of the continental shelf in the Timor Gap they
signed, on 11 December 1989, the Treaty on the Zone of Co-operation in an
Area between the Indonesian Province of East Timor and Northern Australia
(which was to be known as the Timor Gap Treaty). This Zone serves to enable
the exploration and exploitation of the petroleum resources of the
continental shelf in the Timor Gap. The "Zone of Co-operation", covering
some 67,800 km2, is divided into three "areas": Area A in the centre (the
largest, at approximately 62,000 km2), Area B in the south and Area C in the
north. Areas B and C are areas of exploration, exploitation and jurisdiction
of Australia and Indonesia, respectively. However, each State is entitled to
certain notifications on the other Area and to part of the revenue collected
there. Area A is destined for joint exploration, exploitation and
jurisdiction. For this purpose, the two States have set up a bilateral Joint
Authority under the control of a bilateral Ministerial Council.
31. Since 1985, in its capacity of administering Power, Portugal has been
protesting to Australia first against the latter's negotiations with
Indonesia and subsequently against the conclusion of the Treaty itself.
Australia has excluded any negotiations with Portugal on the Timor Gap.
32. The available information points to very rich oil and natural gas
deposits in the Timor Gap area.
Section II: existence of the dispute
33. While I dissent from the Court's decision on jurisdiction, and this is
the heart of the matter, I obviously concur with the Court on the issue of
the existence of a dispute between the Parties. Hence in this section my
opinion is not a dissenting but a separate one. [p235]
The Dispute before the Court
34. The Court rightly dismisses Australia's objection that in this case
there is no "dispute" between itself and Portugal (Judgment, para. 22).
35. Clarification whether there is a dispute is, obviously, the first step.
In the absence of a dispute the questions of jurisdiction and admissibility
would, by definition, not arise. Australia has introduced the distinction
between the "alleged" dispute and the "real" dispute (Counter-Memorial,
paras. 4-17) and has asserted the "abstract and unreal character of the
'dispute' presented by Portugal" (Rejoinder, para. 34). She has occasionally
put the actual word itself in quotation-marks (as exemplified by the
preceding reference) and has used the phrase "if there is a dispute"
(Counter-Memorial, para. 2). However, the purported non-existence of the
dispute has not been presented in any systematic or exhaustive manner. The
Respondent State did not seem to go to the lengths of definitely rejecting
any notion of a dispute between itself and the Applicant State. It devoted
much attention to arguing the inadmissibility of the claims, which fact
implies the existence of a dispute.
36. The Court recalls its jurisprudence and that of its predecessor
(Judgment, para. 22). Let me quote Judge Sir Gerald Fitzmaurice. Sharing the
views expressed by Judge Morelli in the South West Africa cases, Preliminary
Objections (I.C.J. Reports 1962, pp. 566-568) the learned Judge defined the
minimum required to establish the existence of "a dispute capable of
engaging the judicial function of the Court" (Northern Cameroons, I.C.J.
Reports 1963, pp. 109 and 110, respectively).
"This minimum is that the one party should be making, or should have made, a
complaint, claim, or protest about an act, omission or course of conduct,
present or past, of the other party, which the latter refutes, rejects, or
denies the validity of, either expressly, or else implicitly by persisting
in the acts, omissions or conduct complained of, or by failing to take the
action, or make the reparation, demanded."
Quoting the definition of a legal dispute given by the United Kingdom
(which, as he put it, he "slightly emend[ed]") the learned Judge stated:
"there exists, properly speaking, a legal dispute (such as a court of law
can take account of, and which will engage its judicial function), only if
its outcome or result, in the form of a decision of the Court, is capable of
affecting the legal interests or relations of the parties, in the sense of
conferring or imposing upon (or confirming for) one or other of them, a
legal right or obligation, or of operating as an injunction or a prohibition
for the future, or as a ruling material to [p236] a still subsisting legal
situation". (Northern Cameroons, Judgement, I.C.J. reports 1963, pp. 109 and
110, respectively).
37. A perusal of the Application instituting proceedings and of the
pleadings shows that the dispute submitted to the Court fulfils the criteria
of the foregoing definitions. The case of East Timor is a dispute which
falls under Article 36, paragraph 2, of the Court's Statute. The dispute is
a legal one within the meaning of that provision and the Court's practice.
38. From any vantage point, including (it seems) that of the East Timorese
people, the dispute brought before the Court is a different one from a
potential or existing dispute between Portugal and Indonesia, even though
some questions at issue are or may be identical.
The Question before the Political Organs
39. The specific dispute before the Court should not be confused or
identified with the broader problem which in the United Nations bore the
name "The Question of Territories under Portuguese Administration" (General
Assembly) or that of "The Situation in Timor" (Security Council) and is now
called "The Question of East Timor". By using in its resolutions the
expressions "all interested parties" (resolution 36/50) and "all parties
directly concerned" (resolution 37/30) - and these expressions cover
Indonesia - the General Assembly identified those concerned with the
"Question of East Timor", and not the parties to a future Court case,
whatever its ramifications. The "Question of East Timor" involves the United
Nations, Portugal, the representatives of the East Timorese people and
Indonesia. But this does not mean that according to the Assembly resolutions
the settlement of any issue concerning East Timor must always include all
these participants, and especially Indonesia, and that the consultations are
the only road to a solution. The holding of consultations among the
interested parties does not exclude the recourse to other means of
settlement. A specific dispute embracing, as parties to it, only one of the
States taking part in the consultations and a third State is not by
definition artificial. Certainly it is not so with regard to Australia.
Among the countries recognizing the incorporation of East Timor into
Indonesia Australia went furthest in the consequences of her act of
recognition: Australia concluded the Timor Gap Treaty, which deals with East
Timorese interests regarding continental shelf and maritime resources. This
is a domain of the highest importance to any State or to a non-State
territorial entity such as East Timor. [p237]
Section III: Jurisdiction, Admissibility, Propriety
A. Jurisdiction
40. As indicated in paragraph 1, I dissent from the Court's finding on
jurisdiction and from the reasons behind this finding. I assume that what
the Court means is that it is without jurisdiction to decide the case. It is
true that the Court uses different words, saying that "it cannot ...
exercise the jurisdiction conferred upon it" (Judgment, para. 38). The Court
arrives at this conclusion after having examined "Australia's principal
objection to the effect that Portugal's Application would require the Court
to determine the rights and obligations of Indonesia" (Judgment, para. 23).
In the written pleadings Australia presented this objection under the rubric
of inadmissibility, but the submissions referred, first of all, to lack of
jurisdiction and only then to inadmissibility (Rejoinder, para. 288). In its
final submissions Australia took the same position: "the Court should ...
adjudge and declare that the Court lacks jurisdiction to decide the
Portuguese claims or that the Portuguese claims are inadmissible" (CR 95/15,
p. 56, 16 February 1995, Mr. Griffith, Agent and counsel; Judgment, para.
10).
41. According to the Judgment (paras. 33 and 34) the reason for not
exercising jurisdiction in this case is the impossibility for the Court to
adjudicate on the lawfulness of Indonesia's conduct without its consent.
Such adjudication is, in the opinion of the Court, a prerequisite for
deciding on the alleged responsibility of Australia. The Judgment relies on
the decision in Monetary Gold (I.C.J. Reports 1954, p. 19). Consequently, in
explaining my dissent I concentrate on the significance to be ascribed to
Indonesia's absence from the proceedings in the present case and on the
meaning and relevance of Monetary Gold. But at the outset I discuss the
broader ramifications of the issue of jurisdiction and the special problem
with regard to the first submission of Portugal.
Law and Justice
42. Undoubtedly, as Dr. Shabtai Rosenne has put it, the Court possesses "a
measure of discretion ... to decline to decide a case"; but it should be
"sparingly used"FN1
---------------------------------------------------------------------------------------------------------------------
FN1The
Law and Practice of the International Court, 2nd rev.ed., 1985, p. 305
---------------------------------------------------------------------------------------------------------------------
43. With respect, I submit that the Court should have resolved the dispute
between Portugal and Australia not only on the basis of the rules governing
jurisdiction and/or admissibility (these rules have to be applied), but also
in accordance with the demands of justice. The dichotomy
[p238] between law and justice is perennial. The Court has constantly been
looking for an answer to it. The search for a solution becomes difficult,
and the contours of the dichotomy gain in sharpness, when too narrow an
interpretation of the principles governing competence restrains justice. I
am, therefore, also concerned with the possibility that the Judgment might
revive past fears regarding a restrictive concept of the Court's function.
The problem cannot be reduced to legal correctness alone. This is especially
so whenever the Court is confronted with certain basic elements of the
constitution of the Organization and with certain fundamental principles of
international law. There is a real interest in maintaining and strengthening
the Court's role in what Judge Sette Camara described as "the
institutionalization of the rule of law among nations"FN1
---------------------------------------------------------------------------------------------------------------------
FN1Jose Sette-Camara, “methods of Obligatory Settlement of Disputes”, in M.Bedjaoui
(ed.), International Law: Achievements and Prospects, 1991, p..542.
---------------------------------------------------------------------------------------------------------------------
44. A few years ago President Bedjaoui wrote that "it is through an
awareness of the lines of force of [international] society, and of their
articulations, that we can gain a better understanding ... of [international
law's] possible future conquests". In the opinion of the President the
present phase of international law is that of a transition "[f]rom a law of
co-ordination to a law of finalities". And the learned commentator states
that "one of the essential finalities" is development, "true development, of
a kind which will restore dignity to [the] peoples [of "new States"] and put
an end to relationships of domination"FN2.
---------------------------------------------------------------------------------------------------------------------
FN2
M.Bedjaoui, General Introduction, op cit., pp. 1, 14 and 15, respectively.
---------------------------------------------------------------------------------------------------------------------
45. Does the Judgment give sufficient expression to the law so understood?
The subject matter of the dispute and its wider ramifications would justify
the adoption of the President's approach. East Timor has not been well
served by the traditional interests and sovereignties of the strong, hence
the importance of the Court's position on the Territory and the rights of
its people
(para. 2 above). But that position would be of more consequence if the
holding was not silent on self-determination and on the status of the
Territory. It is a telling silence, because it is coupled with a quasi-total
rejection of the Portuguese claims. Was the Court not too cautious?
46. And yet, I think, this Court has had its great moments and was most
faithful to its function when, without abandoning the domain of positive
law, it remained in touch with the great currents of contemporary
development. A court of justice need not be and, indeed, should not be an
exponent of the law-making opinion of "yesterday" or still worse - to use
Albert V. Dicey's expression - "the opinion of the day before yesterday"FN3.
The Court should and can look ahead. Otherwise there would not be decisions
such as the one in the Reparations case.
---------------------------------------------------------------------------------------------------------------------
FN3
Lectures on the Relation between Law and Public Opinion in England during
the Nineteenth Century, 1905, pp. 32 and 367.
---------------------------------------------------------------------------------------------------------------------
47. I think that what Judge ad hoc Lauterpacht said in the case con-[p239]
cerning the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide is applicable to the present case:
"the Court should approach it with anything other than its traditional
impartiality and firm adherence to legal standards. At the same time, the
circumstances call for a high degree of understanding of, and sensitivity
to, the situation and must exclude any narrow or overly technical approach
to the problems involved. While the demands of legal principle cannot be
ignored, it has to be recalled that the rigid maintenance of principle is
not an end in itself but only an element - albeit one of the greatest
importance - in the constructive application of law to the needs of the
ultimate beneficiaries of the legal system, individuals no less than the
political structures in which they are organized."( Application of the
Convention on the Prevention and Punishment of the Crime of Genocide ,
Provisional Measures , I.C..J. Reports 1993, p. 408, para. 3.)
48. There is a certain lack of balance in the dispositif: it is all too
positive for Australia, all too negative for Portugal; but it still remains
to be seen whether the real winner is not a third State. This is an effect
the Court wishes to avoid, for it might easily frustrate the Court's
undoubted concern not to have any third State in the picture.
Portugal's First Submission
49. For all these reasons, I think that the Court should deal with the first
submission of Portugal. In this submission Portugal requests the Court
"(1) To adjudge and declare that, first, the rights of the people of East
Timor to self-determination, to territorial integrity and unity and to
permanent sovereignty over its wealth and natural resources and, secondly,
the duties, powers and rights of Portugal as the administering Power of the
Territory of East Timor are opposable to Australia, which is under an
obligation not to disregard them, but to respect them."
50. The heart of the matter is that the Court cannot limit itself to saying
that it has no jurisdiction in questions pertaining to the Timor Gap Treaty.
The substance of the case is broader and goes deeper than that Treaty. In a
nutshell, the Court should deal extensively with the principles covered by
the first submission of Portugal. The present treatment of them in the
reasons, though important, is too short. It is also insufficient in the
sense that the subject, in my view, belongs equally to the dispositif.
51. Though the Court says that its "conclusion applies to all the claims"
(para. 35) the Judgment does not actually deal with the first sub-[p240]mission. Nor was its admissibility questioned. Consequently, one should
apply the rule repeated in the Request for interpretation of the Judgment of
20 November 1950 in the Asylum Case (I.C.J. Reports 1950, p. 402) that "it
is the duty of the Court ... to reply to the questions as stated in the
final submissions of the parties ..." (I.C.J. Reports 1950, p.402)FN1. In
the present case there is no conflict between that duty and judicial
self-restraint, if the latter were to arise at all, which I do not think it
would.
---------------------------------------------------------------------------------------------------------------------
FN1The
omitted part of the rule speaks of the duty “to abstain from deciding points
not included in those submissions”. The danger of infringing upon this rule
does not arise in view of the general attitude of abstention and caution on
the part of the Court in this case. Nor, it is submitted, does this opinion
go beyond this rule when suggesting the broadening of the Judgment.
---------------------------------------------------------------------------------------------------------------------
52. In this connection it is convenient to include a word of comment on the
observation that, during the proceedings, both Parties invoked the interests
of the East Timorese people, but they presented us with little or no
evidence of what the actual wishes of that people were. Be this as it may, I
think that the Court can base itself on certain elementary assumptions: the
interests of the people are enhanced when recourse is made to peaceful
mechanisms, not to military intervention; when there is free choice, not
incorporation into another State brought about essentially by use the of
force; when the active participation of the people is guaranteed, in
contradistinction to arrangements arrived at by some States alone with the
exclusion of the people and/or the United Nations Member who accepted "the
sacred trust" under Chapter XI of the Charter. The Court could have examined
these and related problems without changing its present holding on lack of
competence with regard to Portuguese submissions 2 to 5. For these problems
are part of self-determination. They belong also to submission 1. To
reiterate, it is not clear to me why the Judgment preferred to remain silent
on that submission.
53. The statements (in the reasons for the Judgment) on the status of East
Timor and on self-determination might have been elaborated upon. The status
of non-self-government obviously implies the "integrity" of the Territory.
Here the Judgment limits itself to quoting the Security Council resolutions
(para. 31). There is nothing on the application of the right of self-
determination to the present situation of the East Timorese people and on
the view of each Party regarding the implementation of that right. The
Judgment is silent on permanent sovereignty over natural wealth and
resources. The Parties differ on the position of Portugal: another issue to
be resolved by the Court. There is a lot that is in dispute between the
Parties under the first submission, irrespective of the Timor Gap Treaty.
The first submission cannot be reduced to the issue of treaty- making power,
especially regarding the delimitation of maritime areas. [p241]
54. The first submission of Portugal is couched in such terms that by
addressing the merits of it the Court runs no danger of dealing with
Indonesia's rights, duties or position. The rule of consent (repeated in
Monetary Gold) will be fully observed.
55. There is no justification for Indonesia to see in the Judgment an
implicit legalization or legitimization of the annexation of East Timor.
Nonetheless, I am concerned with the present operative clause, where there
is no reference to the principles enumerated in the first submission. It
should be emphasized that this submission differs considerably from the
other ones (2-5). The latter centre on the Timor Gap Treaty and problems of
responsibility, the former asks the Court to state the law and the duty of
Australia to respect that law. What could be the difficulty in accepting
that submission, wholly or in part?
56. I am prepared to agree with the proposition that the granting of the
first submission constitutes the juridical (and also logical) prerequisite
to the consideration and possible granting of the subsequent submissions.
But not vice-versa. The link does not work the other way. The first
submission can stand autonomously. The Court can and in fact, in its
practice, did construe the submissions of the Parties. The Court could take
up the first submission and resolve the relevant issue without going into
the remaining claims.
57. The Court is not merely an organ of States which has with the function
of adjudicating upon disputes between those of them willing to bestow upon
it jurisdiction and to submit to that jurisdiction. The Court is primarily
the "principal judicial organ of the United Nations". It is thus part of an
international structure. Its judicial function, as defined in Chapter II of
its Statute and especially in Article 36, must be exercised in accordance
with the purposes and principles of the Organization. The Court has been
contributing to the elucidation and growth of United Nations law. This case
has created an opportunity for the continuation of this task. "The Question
of East Timor" is still being dealt with by the political organs of the
United Nations. Once regularly seised (hence the importance of elucidating
Portugal's locus standi), the Court has its role to play, provided its
independence and the limits of its participation in the activities of the
Organization are respected. None of these requirements would be threatened,
if the Court decided to take up the first submission. This submission is
indeed separable from the issue of the Timor Gap Treaty. Portugal's first
submission is no abuse of the Court.
58. To sum up, the operative clause of the Judgment could contain the
following findings:
(1) The United Nations has continued to recognize the status of Portugal as
administering Power of East Timor. Consequently, Portugal has the capacity
to act before the Court in this case on behalf of East Timor. [p242]
(2) The status of the territory of East Timor as non-self-governing, and the
right of the people of East Timor to self-determination, including its right
to permanent sovereignty over wealth and natural resources, which are
recognized by the United Nations, require observance by all Members of the
United Nations. The Court takes note that in these proceedings Australia has
placed on record that it regards East Timor as a non-self-governing
Territory and that it acknowledges the right of its people to
self-determination.
Distinction between Involvement of Interests and Determination of Rights or
Duties
59. I shall start by recalling the distinction between, on the one hand, a
legal interest or interests of a third State (here Indonesia) being possibly
or actually involved in, or affected by, the case (but no more than that)
and, on the other hand, the ruling by the Court on such an interest or
interests. In the latter hypothesis the legal interest or interests "would
not only be affected by a decision, but would form the very subject-matter
of the decision" (Monetary Gold, I.C.J. Reports 1954, p. 32), and that
decision (i.e., the decision on the responsibility of the third State) would
become "a prerequisite" for the determination of the claim (cf. Certain
Phosphate Lands in Nauru, I.C.J. Reports 1992, p. 261, para. 55; Judge
Shahabuddeen, ibid., p. 296). The present case merely "affects" or in a
different manner "involves" an interest or interests of Indonesia. The rule
of consent, as embodied in Article 36 of the Statute, is maintained; had the
Court assumed jurisdiction, it would not, and could not, pass on any rights
and/or duties of Indonesia. That country is, in particular, protected by
Article 59 of the Statute, whatever the possible broader effects of the
Judgment.
60. The nature, extent or degree of the involvement of the legally protected
interests, including the rights and duties, of a third State differ from
case to case. The Court must see whether it can decide on the claim without
ruling on the interests of a third State. The involvement of these interests
cannot simply be equated with the determination of the rights and/or duties
of a third State by the Court, or with any determination concerning that
State's responsibility. If a decision on the claim can be separated from
adjudicating with regard to a State which is not party to the litigation,
the Court has jurisdiction on that claim. It is submitted that this is the
position in the triangle Portugal-Australia-Indonesia. Here the said
separation is not only possible, but already exists. Portugal did not put at
issue the legal interests of a third State, i.e., Indonesia. The Court has
jurisdiction.
61. In Land, Island and Maritime Frontier Dispute (El Salvador/Honduras),
Application for Permission to Intervene, the Chamber of the Court left no
doubt [p243] as to the relevance of the distinction indicated in paragraphs
59 and 60 above. The Chamber interpreted the finding in the Monetary Gold:
"while the presence in the Statute of Article 62 might impliedly authorize
continuance of the proceedings in the absence of a State whose 'interests of
a legal nature' might be 'affected', this did not justify continuance of
proceedings in the absence of a State whose international responsibility
would be 'the very subject-matter of the decision'. The Court did not need
to decide what the position would have been had Albania applied for
permission to intervene under Article 62." (I.C.J. Reports 1990, pp.
115-116, para. 55.)
The Chamber then proceeded to explore whether there existed, on the part of
the third State (Nicaragua), an "interest of a legal nature which [might] be
affected by the decision", so as to justify an intervention, and then
whether that interest might in fact form "the very subject-matter of the
decision" (ibid., p. 116, para. 56). The Chamber found that there existed,
on the part of that third State, "an interest of a legal nature which
[might] be affected by its decision"; but it came to the conclusion that
"that interest would not be the 'very subject-matter of the decision' in the
way that the interests of Albania were in the case concerning the Monetary
Gold removed from Rome in 1943" (ibid., pp. 121-122, paras. 72 and 73).
62. The criterion of the "very subject-matter of the decision" is conclusive
in establishing the Court's jurisdiction when the interests of a third State
are or seem to be at stake. As the Court said: "The circumstances of the
Monetary Gold case probably represent the limit of the power of the Court to
refuse to exercise its jurisdiction;" otherwise, I think, there would be
doubt whether the Court was fulfilling its task and mission: "it must be
open to the Court, and indeed its duty, to give the fullest decision it may
in the circumstances of each case, unless of course" the factor of the
subject-matter of the decision intervenes (Continental Shelf (Libyan Arab
Jamahiriya/Malta), Application for Permission to Intervene, I.C.J. Reports
1984, p. 25, para. 40; emphasis added). The duty to fulfil its function is a
primary one for the Court. Hence in its previous decisions the Court has
adopted a reasonable interpretation of the Monetary Gold rule. One might
even say: an interpretation which is not broad. This stance was adopted by
the Court in Certain Phosphate Lands in Nauru, Preliminary Objections. In
this case, where Nauru was claimant, the Court found that it had
jurisdiction in spite of the fact that the Respondent State (Australia) was
only one of three States (the other two being New Zealand and the United
Kingdom) who jointly constituted the Administering Authority of Nauru under
the Trusteeship Agreement. A decision on Australia's duties in that capacity
would inevitably and at the same time be a decision on the identical duties
of the remaining two States. In other words, though the "subject-[p244]matter" was the same, the Court could exercise its jurisdiction with
regard to only one component State of the tripartite Administering
Authority. The Court said:
"In the present case, a finding by the Court regarding the existence or the
content of the responsibility attributed to Australia by Nauru might well
have implications for the legal situation of the two other States concerned,
but no finding in respect of that legal situation will be needed as a basis
for the Court's decision on Nauru's claim against Australia. Accordingly,
the Court cannot decline to exercise its jurisdiction." (I.C.J. Reports
1992, pp. 261-262, para. 55.)
63. There is room for applying the concept inherent in the foregoing dictum
in Nauru to the present case: no finding on Indonesia creates a necessary
"basis" for the jurisdiction with regard to Portuguese claims against
Australia, nor is there any necessary ("logical", ibid., p. 261, para. 55)
link between the findings regarding Indonesia and those concerning Australia
(the element of "a prerequisite").
64. But our problem is not limited to what results from applying the test of
the distinction made by the Monetary Gold rule. The practice of the Court
amply shows that it is competent to decide bilateral disputes on territorial
titles (including titles to submarine areas), the delimitation of boundaries
and the status of a territory or territorial entity. The latter subject is
present in the case under consideration. What the Court decides on these and
similar issues may be asserted with regard to all States. In spite of the
dispute being one between two States such a decision of the Court is
effective erga omnes. In the practice of the Court (and the same is true of
the Permanent Court) the said category or categories of subject-matter did
not, and could not, constitute a bar to the exercise of the jurisdiction in
a dispute between two States only, though the effect of the decision went
beyond the bilateral relationship. The latter circumstance was not regarded
by the Court as preventing it from rendering judgments. Examples are the
Fisheries, Minquiers and Ecrehos, and Temple of Preah Vihear cases, as well
as the decisions on various continental shelves.
65. Jurisdiction (and/or admissibility) cannot be questioned (as was done in
the present case) because the bringing of a claim against a State may have
consequences which in fact go beyond that claim as would the decision of the
Court were it to find in favour of the Claimant State. In similar or
identical circumstances another State can reasonably expect a similar or
identical decision by the Court. But here we are moving on the plane of a
factual situation or factual possibilities. Such factual conse-[p245]quences of a claim and of a judgment in which the Court found in favour
of the Claimant State are something other than that claim itself. These
facts or factual possibilities do not turn the claim into a moot one, nor do
they make a third State the only object of the claim. The claims put forward
by Portugal are real and are addressed to the Respondent State; the
non-participation in the proceedings of a third State (Indonesia) does not
deprive the Court of jurisdiction, nor does it make the Portuguese claims
inadmissible.
66. For in the present case the separation of the rights and/or duties of
Australia and Indonesia is both possible and necessary. A judgment on the
merits should and could have given expression to this separation. In this
case the vital issues to be settled (to borrow an expression from the
Monetary Gold case, I.C.J. Reports 1954, p. 33), do not concern the
international responsibility of a third State, i.e., Indonesia.
67. The case, there can be no doubt, involves or affects some interests of
Indonesia. But this fact is not a bar to the Court's jurisdiction, nor does
it make the various claims inadmissible. The Court's practice, referred to
above, corroborates this conclusion. The interests of Indonesia are
sufficiently protected by the Statute of the Court. They do not constitute
"the very subject-matter of the decision". Hence the Monetary Gold rule
excluding jurisdiction cannot be invoked in the present case: its premise is
lacking in the East Timor controversy.
United Nations Law and the Question whether Indonesia is a Necessary Party
68. Contrary to what has been contended by Australia, Portugal has not
chosen the "wrong opponent". In other words, this is the issue of the
"prerequisite" in the sense of Monetary Gold (paras. 59 and 63 above). But
in the present proceedings Portugal asserts claims against Australia only,
and not against any absent State, i.e., Indonesia. The Court is not required
to exercise jurisdiction over any such State. Australia is not the "wrong"
opponent in the present proceedings, while Indonesia is not an opponent at
all in them. The whole distinction in this case is both fictitious and not a
genuine one.
69. In the Nicaragua case, Jurisdiction and Admissibility, the United States
asserted that the adjudication of Nicaragua's claim would necessarily
implicate the rights and obligations of some other Central American States,
viz., Costa Rica, El Salvador and Honduras. While rejecting this assertion
and pointing out that it had "in principle" merely to decide upon the
submissions of the Applicant State, the Court said:
"There is no trace, either in the Statute or in the practice of
international tribunals, of an 'indispensable parties' rule of the kind
argued by the United States, which would only be conceivable in [p246]
parallel to a power, which the Court does not possess, to direct that a
third State be made a party to proceedings." (I.C.J. Reports 1984, p. 431,
para. 88.)
Mutatis mutandis, this dictum is helpful in resolving the issue of the
"right" or "wrong" opponent. Let me explain that I regard the rule stated as
sound. I am not expressing any opinion on whether there was room for its
application in the Nicaragua case or whether it was correctly applied in the
light of the existing evidence.
70. The basis for the decision on jurisdiction and admissibility and,
further, on the merits is the status of East Timor. Under the law of the
United Nations, East Timor was and, in spite of its incorporation into
Indonesia, remains a non-self-governing territory in the sense of Chapter XI
of the United Nations Charter. This issue, fundamental to the case, is
governed by the law of the United Nations. Unless the Court finds that the
Organization acted ultra vires, the Court's opinion cannot diverge from that
law and from the implementation of the rules of that law in the practice of
the Organization, especially as reflected in the relevant resolutions of the
General Assembly and the Security CouncilFN1.
---------------------------------------------------------------------------------------------------------------------
FN1The
Memorial speaks of “une donnee” (a “given”) of which “the Court will only
need to take note”. This “donnee” is constituted by the “affirmations” that
“the people of East Timor enjoy the right of self-determination, that the
Territory of East Timor is a non-self-governing Territory, and lastly, that
Portugal is de jure the administering Power thereof”(para. 3.02)
---------------------------------------------------------------------------------------------------------------------
71. Under the law and in the practice of the Organization the implementation
of Chapter XI of the Charter is part and parcel of the functions of the
General Assembly. In at least some issues falling under that Chapter Members
States are not confronted with mere recommendations: the Assembly is
competent to make binding determinations, including determinations on the
continued classification of an area as a non-self-governing territory or on
the administering Power.
72. The Court accepts that in some matters the General Assembly has the
power to adopt binding resolutions. By resolution 2145 (XXI) the Assembly
terminated the Mandate for South West Africa and stated that the Republic of
South Africa had "no other right to administer the Territory". This was not
a recommendation. In the Namibia case the Court explained (I.C.J. Reports
1971, p. 50, para. 105):
"it would not be correct to assume that, because the General Assembly is in
principle vested with recommendatory powers, it is debarred from adopting,
in specific cases within the framework of its competence, resolutions which
make determinations or have operative [p247]design."
73. It is not clear why in the present case the Court seems in fact to look
at the resolutions of the Assembly on colonial issues from a different
angle. The Court neither denies nor confirms their binding force. The Court
says (Judgment, para. 32):
"Without prejudice to the question whether the resolutions under discussion
could be binding in nature, the Court considers as a result that they cannot
be regarded as 'givens' which constitute a sufficient basis for determining
the dispute between the Parties."
But in one, rather significant, instance the Court has recourse to a
"given": it follows the United Nations resolutions and qualifies Indonesian
action against and in East Timor as intervention (Judgment, paras. 13 and
14).
74. The words, quoted in paragraph 73 above, raise another question. Do they
concern jurisdiction or merits? The whole paragraph 32 of the Judgment seems
to deal with the merits. At the same time the Court reduces this paragraph
to consideration of the problem of "an obligation on third States to treat
exclusively with Portugal as regards the continental shelf of East Timor".
An examination limited to that problem obviously does not put the Court in a
position enabling it to bring forward all the arguments which would justify
its negative conclusion on the "givens". The latter constitute a wider
problem, not restricted to the issue of who can treat with whom. Also, the
conclusion at the end of the first subparagraph of paragraph 31 of the
Judgment resolves an issue of merits.
75. The Court links the continuity of the status of the Territory, including
the relevance of the principle of self-determination, first of all to the
Parties' position (Judgment, paras. 31 and 37). But it is rather difficult
to define the Court's stance because in the following passages the
resolutions regain their autonomous significance. It is not clear why the
Court, after having surveyed the United Nations acts, does not take up the
problem of "the legal implications that flow from the reference to Portugal
as administering Power in those texts" (Judgment, para. 31); instead, the
Court concentrates on treaty-making. That question is not fully examined and
yet the Court expresses some doubts regarding Portugal's claim to
exclusivity in concluding agreements in and on behalf of East Timor. Again,
incidentally, a problem of merits.
76. The Court's stance commented upon in paragraphs 74-75 is in some
contrast with the Orders in Questions of Interpretation and Application of
the 1971 Montreal Convention arising from the Aerial Incident [p248] at
Lockerbie (I.C.J. Reports 1992, pp. 3 and 114). These Orders respect the
decision of the Security Council on the merits of the two cases, though that
decision was adopted after the close of the hearings (ibid., pp. 14-15,
paras. 34-42; and pp. 125-127, paras. 37-45) and the law, while leaving the
Court some freedom of choice, could be understood as pointing to a different
solution (see the dissenting opinions, ibid., pp. 33 et seq. and 143 et
seq.). In regard to East Timor, the subject-matter is regulated by law and
by resolutions which make binding determinations. One would think that the
Court cannot avoid applying the relevant rules. But the Court prefers to
maintain a certain distance.
77. By taking cognizance of the status of East Timor in United Nations law,
resolutions included, the Court, would not be passing upon any Indonesian
territorial or other rights, duties, jurisdiction or powers. In this case
the Court would not require any proof of that status on the part of
Portugal. Nor is any finding on Indonesian conduct and position necessary to
adjudication upon Portuguese claims. Interestingly enough, the Judgment
qualifies the Indonesian action as intervention (paras. 13 and 14). Will
this have its effects? Intervention (particularly military) is by definition
unlawful and produces no rights or title until there is a decision by the
United Nations validating its consequences or until there is universal
recognition.
78. The law of the United Nations is binding on all Members States. The
status of a territory, in view of its objective nature, is opposable not
only to each of them but also to non-Members. This applies to the
non-self-governing Territory of East Timor. Also, the right of the East
Timorese people to freely determine their future and the position of the
administering Power are opposable to every State (and this includes
Australia). Therefore, in this context, it is erroneous to regard Australia
as the "wrong" respondent and Indonesia as the "true" one. The present case
does not justify such a contradistinction. Nor, as the Court explains, is it
"relevant whether the 'real dispute' is between Portugal and Indonesia
rather than Portugal and Australia" (para. 22). There is, no doubt, more
than one dispute with regard to East Timor, but in this case the Court has
been seised of a specific dispute which qualifies for being decided on the
merits.
79. There is yet another reason why the presence of Indonesia, a country
which has an interest in the case (although it made no request concerning
its possible intervention), is not a precondition of adjudication. If the
contrary were true, the Court would practically be barred from deciding
whenever the application of the erga omnes rule or rules and the
opposability of the legal situation so created were at stake; the Court's
practice does not corroborate such a limitation (paras. 64 and 65 above).
The presence of a third State in the proceedings before the Court (whether
as party or intervening) is not necessary for that organ to apply and
inter-[p249]pret the United Nations resolutions, in particular to take note
of their effect.
80. Australia has presented itself to the Court as simply a third State
which has responded to a situation brought about by Portugal and Indonesia.
Without entering into the issue of the treatment of these two States on the
same level of causation, the Court can examine and determine the lawfulness
of Australia's response to the said situation. There is no essential
requirement that, in the judicial proceedings devoted to that examination
and determination, Indonesia be a party. It is enough for Portugal to prove
her claim against Australia.
81. The conclusion is that Indonesia is not a necessary party, i.e., one
without whose participation the Court would be prevented by its Statute from
entertaining the Application. Nor is Indonesia the "true" partyFN1. The
dispute brought before the Court is one different from a potential or
existing dispute between Portugal and Indonesia, even though some questions
at issue are or may be identical.
---------------------------------------------------------------------------------------------------------------------
FN1By
using in its resolutions the expressions “all interested parties”
(resolution 36/50) and “all parties directly concerned” (resolution 37/30) –
and these expressions cover Indonesia – the general Assembly identified the
interested States with regard to the “Question of East Timor”. And not with
regard to a future Count case, whatever its ramifications. For a contrary
view, see Counter-Memorial, paras. 214 and 215.
---------------------------------------------------------------------------------------------------------------------
Subject-matter of the Decision
82. The rights of Indonesia could not, need not and would not constitute any
"formal" or "actual" subject-matter of the decision on the merits. The
claims submitted by Portugal are distinct from the alleged rights, duties
and powers of Indonesia. There is no difficulty in separating the
subject-matter of the present case from that of a theoretical case between
Portugal and Indonesia. The fact of the incorporation of East Timor is (or
would be) the same for the two cases, the existing one and the imaginary
one. But the rights and duties of Indonesia and Australia are not mutually
interdependent; the contents of some of them are identical, yet this is
irrelevant to the problem whether a specific State (Australia) conformed to
rules of law governing East Timor. That problem can be decided by the Court
without linking its decision to any prior or simultaneous finding on the
conduct of another State (Indonesia) in the same matter. To exercise
jurisdiction with regard to Australia it is not necessary for the Court to
decide on the question of Indonesian duties concerning the Territory.
83. In the Nicaragua case (Judgment on Jurisdiction and Admissibility) the
Court said: [p250]
"There is no doubt that in appropriate circumstances the Court will decline,
as it did in the case concerning Monetary Gold Removed from Rome in 1943, to
exercise the jurisdiction conferred upon it where the legal interests of a
State not party to the proceedings 'would not only be affected by a
decision, but would form the very subject-matter of the decision' (I.C.J.
Reports 1954, p. 32). Where however claims of a legal nature are made by an
Applicant against a Respondent in proceedings before the Court, and made the
subject of submissions, the Court has in principle merely to decide upon
those submissions, with binding force for the parties only, and no other
State, in accordance with Article 59 of the Statute. ... [O]ther States
which consider that they may be affected are free to institute separate
proceedings, or to employ the procedure of intervention." (I.C.J. Reports
1984, p. 431, para. 88.)
Without there being any need to express an opinion on the issue of third
States in the Nicaragua case (see para. 69 above), the approach exemplified
by this dictum should have been followed in this case.
84. In the present case the judgment in Monetary Gold is fully relevant as a
statement of the noncontroversial rule (or principle) of the consensual
basis of jurisdiction. The Court has been corroborating this rule since the
very outset of its activity (cf. Corfu Channel case, Preliminary Objection,
I.C.J. Reports 1948, p. 27). It is a rule of its Statute, which fact is
decisive. Further, there can be no doubt regarding the relevance of the
distinction between legal interests of a third State which are merely
affected by the decision and its legal interests which "would form the very
subject-matter" of the decision (Monetary Gold, I.C.J. Reports 1954, p. 32).
But the whole structure of the problem in Monetary Gold is different from
that in East Timor. In the former the determination whether one country
(Italy) was entitled to receive the property of another (Albanian gold)
depended on a prior determination whether the other State (Albania) had
committed an internationally wrongful act against the former (Italy) and was
under an obligation to pay compensation to it. In the East Timor case the
position of Indonesia cannot be compared to that of Albania in the Monetary
Gold. In the present case we are dealing with the duties which the countries
have by virtue of their obligation to respect the status of East Timor as
determined by the United Nations. These duties are not interconnected: the
obligation of any Member State of the United Nations to abide by the law
governing East Timor is autonomous. In Monetary Gold one claim could be
adjudicated only after a different claim to compensation was first granted.
That is not the construction of the case now before the Court. With respect,
I have the impression that [p251] in this case the Court has gone beyond
the limit of the operation of Monetary Gold.
85. Moreover, the rule of Monetary Gold is one governing jurisdiction, and
not one preventing the Court from basing itself on determinations made by
the Security Council or the General Assembly with regard to a dispute or a
situation, including the position or conduct of another State. By taking
account of such "external" determinations the Court is not making any
finding of its own on the interests of a non-party to the proceedings. The
Court, as already indicated (para. 100 above), cannot ignore the law of the
United Nations as applied by the Organization's other principal organs
provided they act within their Charter powers. Thus it is not Portugal
which, before the Court, challenges Indonesia's occupation of East Timor,
its position as the proper State to represent the interests of the
Territory, and generally the conformity of its actions with the
self-determination of the East Timorese people. The challenge came much
earlier from the United NationsFN1. By now taking judicial notice of the
relevant United Nations decisions the Court does not adjudicate on any
claims of Indonesia nor does it turn the interests of that country into the
"very subject-matter of the dispute".
---------------------------------------------------------------------------------------------------------------------
FN1That
challenge is decisive. The fact that Portugal does not challenge the
lawfulness of Indonesia’s acts does not make it obligatory for the Court to
presume that these acts are lawful. There is no such presumption. For a
contrary view, see rejoinder, para. 94.
---------------------------------------------------------------------------------------------------------------------
86. The Court is competent, and this is shown by several judgments and
advisory opinions, to interpret and apply the resolutions of the
Organization. The Court is competent to make findings on their lawfulness,
in particular whether they were intra vires. This competence follows from
its function as the principal judicial organ of the United Nations. The
decisions of the Organization (in the broad sense which this notion has
under the Charter provisions on voting) are subject to scrutiny by the Court
with regard to their legality, validity and effect. The pronouncements of
the Court on these matters involve the interests of all Member States or at
any rate those which are the addressees of the relevant resolutions. Yet
these pronouncements remain within the limits of Monetary Gold. By assessing
the various United Nations resolutions on East Timor in relation to the
rights and duties of Australia the Court would not be breaking the rule of
the consensual basis of its jurisdiction.
87. The Court has always been sensitive regarding the limits of its
jurisdiction. In Continental Shelf (Tunisia/Libyan Arab Jamahiriya),[p252]
Application for Permission to Intervene, the Court emphasized that "no
conclusions or inferences may legitimately be drawn from [its] findings or
[its] reasoning with respect to rights or claims of other States not parties
to the case" (I.C.J. Reports 1981, p. 20, para. 35). Applied, as it was, in
the quoted case to Malta, there is no doubt that this rule protects the
interests of Indonesia in the present litigation.
88. One can also add that in all systems of law courts take judicial notice
of matters of public knowledge. This category comprises, inter alia,
historical events such as war, aggression, invasion and the incorporation of
territory. Indonesia's action in regard of East Timor falls under this
heading. Taking account of such facts and drawing conclusions on their basis
is not a usurpation of jurisdiction.
Indonesian Control over East Timor
89. A decision on the legality of "the presence of Indonesia in East Timor"
is not a prerequisite to a decision on Australia's responsibility. That is
the difference as compared with Monetary Gold, especially as interpreted in
Certain Phosphate Lands in Nauru (paras. 86 and 89 above). But the said
decision is implicit in the description of the Indonesian conduct as
intervention (Judgment, paras. 13 and 14).
90. In the present case there it is not necessarily implied that the Court
should determine the status of Indonesia in East Timor. The Court need only
refer to the status of East Timor in the law of the United Nations and its
implementing resolutions. It is on Australia's own acts related to the
latter status that Portugal rests its claim. It is also in that status alone
that one would possibly find the answer to the question regarding which
country is competent to conclude treaties concerning East Timorese
interests. Contrary to what is stated in the Counter-Memorial (para. 212)
the Court need not determine "the legal status of the Indonesian
administration of East Timor at and since 11 December 1989, i.e., at the
time of and since the making of the Timor Gap Treaty". The Court needs only
to say what, under United Nations law and resolutions, the status of East
Timor in the relevant period was and now is. Nor is a "decision on
Indonesia's claim to sovereignty ... a prerequisite to any finding of
Australian responsibility" (contra: ibid.). Again, the key to the problem is
the status of the Territory under United Nations norms. To declare how these
norms define that status the Court need not make any finding concerning
Indonesia.
91. The link between the claims which Portugal makes vis-à-vis Australia and
the claims Portugal has or might have made elsewhere against [p253]
Indonesia (i.e., not before this Court) is of a factual nature. Both groups
of claims concern the situation in East Timor. That link does not suffice to
make the adjudication between Portugal and Australia dependent upon a prior
or at least simultaneous decision on the (potential or existing) claims of
Portugal against Indonesia. In contrast with the situation in the Monetary
Gold case, the decision of the Court in the dispute between Portugal and
Australia would not be based on the obligation and responsibility of
Indonesia (cf. Judge Shahabuddeen in Certain Phosphate Lands in Nauru,
I.C.J. Reports 1992, p. 297).
92. Australia's obligations resulting from the duty to respect the United
Nations status of East Timor are identical with or similar to those of other
Member States of the Organization. But that identity (or similarity) does
not mean that Portugal needs to rely on this fact or that the Court must or
needs to found its judgment on it. One might reiterate here what Judge
Shahabuddeen said on the position of Australia in another case, viz., in
Certain Phosphate Lands in Nauru:
"That others had the same obligation does not lessen the fact that Australia
had the obligation. It is only with Australia's obligation that the Court is
concerned." (I.C.J. Reports 1992, p. 297.)
The Portuguese Application is directed towards certain Australian acts and
their conformity, or otherwise, with the United Nations status of East
Timor, not towards the acts of Indonesia. In this case a decision on the
submissions of the Applicant State would not constitute a determination of
the responsibility of the non-party (Indonesia), with all the legally
dispositive effects such a determination would or might carry.
Timor Gap Treaty
93. Let us begin by clarifying one point. The Court has no jurisdiction to
make a finding on the invalidity of the Timor Gap Treaty: the Court must
stop short of a determination to this effect. For the purpose of the present
proceedings the Treaty remains valid. That validity prevents the Court from
ordering any measures aimed at the non- performance of the Treaty. Its
actual, possible or potential consequences of a harmful nature for the
people of East Timor cannot be determined by the Court. A ruling on the
validity, or otherwise, of the Treaty would require the participation of
Indonesia in the present case. Both the Applicant and the Respondent (though
in somewhat different contexts) quote the judgments of the Central American
Court of Justice in Costa Rica v. Nicaragua (1916) and El Salvador v.
Nicaragua (1917) (Counter-[p254] Memorial, para. 189; Reply, paras. 7.21
and 7.22). The validity of the Timor Gap Treaty is not a subject of the
dispute. Portugal does not request the Court to declare the Treaty invalid.
94. But a finding on the lawfulness of some unilateral acts of Australia
leading to the conclusion of the Treaty or constituting its application is
another matter. Juridically speaking the negotiation, conclusion and
performance of a treaty are acts in law (expressions of the will or
intention of a legal person). To be effective in law, they must conform to
the legal rules governing them. Several of these acts are unilateral in
contradistinction to the treaty itself. If a case involves the lawfulness or
validity of any of these acts, and this is a "question of international law"
under Article 36, paragraph 2, of the Statute, the Court is competent to
review the said conformity and, consequently, decide on the lawfulness or
validity of the act. Historically and sociologically speaking the
negotiation, conclusion and performance of a treaty are facts. And various
facts are also subject to judicial review the extent of that review
depending on the law of the country or, in international relations where
there is no central judiciary, on the particular provisions of treaty law.
95. The Court is competent to make a finding on whether any of the
unilateral acts of Australia conducive to the conclusion, entry into force
and application of the Timor Gap Treaty constituted an international wrong.
By concentrating exclusively on such acts the Court in no way deals with any
treaty-making acts of Indonesia. The Court remains within the limits of an
assessment which is covered by its jurisdiction and which is admissible. The
Court would fulfil its task by examining these acts in the light of
Australia's duties under United Nations law and especially that body of its
provisions which is being called the "law of decolonization".
96. In order to examine whether Australia's conduct leading to the
conclusion of the Timor Gap Treaty was or was not wrongful, it is not
necessary for the Court to determine the wrongfulness of Indonesia's control
over East Timor. It is enough to test the Australian conduct against the
duty Australia had and has to treat East Timor as a non-self-governing
territory. While protecting her maritime rights and taking steps to preserve
her natural resources, Australia had (in the circumstances) some obligations
towards the Territory: she dealt not with the administering Power, but with
Indonesia, a State which was not authorized by the United Nations to take
over the administration of the Territory, and yet controlled it. Maritime
and related interests of the Territory were also at stake, not only those of
Australia. There is no question of equating the position of third States
(one of them being Australia) to the responsibilities of States which, like
Portugal, have been charged with the administration of a territory or
territories under Chapter XI of the [p255] Charter. But the
non-administrators also have some duties. Did Australia fulfil them? This
question does not trigger the Monetary Gold rule; the Court is competent to
answer it.
B. Admissibility
General
97. Generally, the issue of admissibility has already been touched upon in
some of the preceding paragraphs. In this case, before starting a discussion
on admissibility, the Court had first to decide on its jurisdiction. In view
of its conclusion, there was no room for considering admissibility. In the
present case admissibility or otherwise can be resolved after the
examination of the substance of the several claims submitted by Portugal.
Indeed, Australia points to the inextricable link between the issue of
admissibility and the merits (Counter-Memorial, para. 20).
98. It has already been noted that although it asked the Court to adjudge
and declare that it lacked jurisdiction, Australia dealt with the case
principally under the heading of admissibility, her "submissions on the
merits [having] only a subsidiary character" (Counter-Memorial, para. 20; as
to the admissibility, or rather inadmissibility, see ibid., Part II, and
Rejoinder, Part I).
99. The emphasis on admissibility or otherwise has not been lessened, let
alone eliminated, by what Australia alleged on the non-existence of the
dispute in the present case (paras. 34-38 above).
Applicant State's jus standi
100. The present case does not "involve direct harm to the legal rights of
the plaintiff State in a context of delict", but it is one in which the
claim is grounded "either in a broad concept of legal interest or in special
conditions which give the individual State locus standi in respect of legal
interests of other entities"FN1 East Timor is such an entity.
---------------------------------------------------------------------------------------------------------------------
FN1Ian
Brownlie, Principles of Public International Law, 4th ed., 1990, pp.466-467
---------------------------------------------------------------------------------------------------------------------
101. In this case there is a conflict of legal interests between Portugal
and Australia. Several times during the proceedings Australia admitted that
Portugal was one of the States concerned. That admission was made in order
to contrast it with the capacity to appear before the Court in this case,
which Australia denied. However, to have jus standi before the Court it is
enough to show direct concern in the outcome of the case. Portugal has amply
shown that it has a claim for the protection of its powers which serve the
interests of the people of East Timor. [p256]
102. It was said by a Co-Agent and counsel of Australia that "to have
standing, Portugal must point to rights which it possesses" (CR 95/8, p. 80,
Mr. Burmester). Portugal has standing because, in spite of all the factual
changes in the area, she still remains the State which has responsibility
for East Timor. This standing follows from the competence Portugal has in
its capacity as administering Power. One of the basic elements of that
competence is the maintenance and defence of the status of East Timor as a
non-self-governing territory; this is the administering Power's duty.
Portugal has the capacity to sue in defence of the right of the East
Timorese people to self-determination. Portugal could also rely generally on
the remaining attributes of its sovereignty over East Timor, such attributes
being conducive to the fulfilment of the task under Chapter XI of the
Charter. On the one hand, Portugal says that it does not raise any claim
based on its own sovereign rights; in some contexts it even denies their
existence (Memorial, paras. 3.08 and 5.41 and Reply, para. 4.57). On the
other hand, Portugal invokes its "prerogatives in regard to sovereignty"
(Reply, para. 4.54). At any rate, it is erroneous to argue that the
departure from East Timor in 1975 of the Portuguese authorities resulted in
bringing "to an end any capacity [Portugal] had to act as a coastal State in
relation to the territory" (Counter-Memorial, para. 237). Such an opinion is
contrary to both the law of belligerent or military occupation and the
United Nations law on the position of the administering Power.
103. Portugal may be said not to have any interest of its own in the narrow
sense of the term, i.e., a national interest, one of a myriad of interests
which States have as individual members of the international community.
However, Portugal received a "sacred trust" under Chapter XI of the Charter.
It is taking care of interests which, it is true, are also its own, but
primarily they are shared by all United Nations Members: the Members wish
the tasks set down in Chapter XI to be accomplished. Australia also adopts
the stance of favouring the implementation of Chapter XI. Yet there is a
sharp difference between the two States on how to proceed in the complex
question of East Timor and what is lawful in the circumstances. That is a
matter which should have been decided by the Court. However, through its
decision on jurisdiction, this distinguished Court barred itself from that
possibility. Had this not been the case, the Judgment would have eliminated
a number of uncertainties from the legal relations between the Parties and,
more generally, some uncertainties regarding a non- self- governing
territory which has been incorporated into a State without the consent of
the United Nations. At any rate, it is clear that an actual controversy
exists. What doubt could there be regarding the locus standi?
104. I think that Portugal meets the rigid criteria laid down by President
Winiarski with regard to having "a subjective right, a real and existing
individual interest which is legally protected", (South West Africa, [p257]
Preliminary Objections, I.C.J. Reports 1962, p. 455). In that case Ethiopia
and Liberia asserted that they had "a legal interest in seeing to it through
judicial process that the sacred trust of civilization created by the
Mandate is not violated". To this the learned Judge replied: "But such a
legally protected interest has not been conferred on them by any
international instrument ..." (ibid., p. 456). Portugal has the United
Nations Charter behind it.
C. "Judicial Propriety"
General
105. There is no mention of the issue of propriety in the Judgment. But
would it be going too far to say that, implicitly, the Court has admitted
that at least entertaining this case was not, at the stage reached by the
Court, contrary to "judicial propriety"? The Court might as well begin
consideration of the case by examining the issue of propriety. For, as Judge
Sir Gerald Fitzmaurice has pointed out, that issue
"is one which, if it arises, will exist irrespective of competence, and will
make it unnecessary and undesirable for competence to be gone into, so that
there will be no question of the Court deciding that it has jurisdiction but
refusing to exercise it" (Northern Cameroons, I.C.J. Reports 1963, p. 106).
Neither in the Charter nor in the Statute is there any suggestion as to
which legal disputes "might be regarded as prima facie suitable for judicial
settlement ..."FN1. Here the question should be asked whether the political
stratum and implications of the case (including those of a judgment on the
merits) are of a nature to make the judicial process inappropriate.
---------------------------------------------------------------------------------------------------------------------
FN1
Cf.S.Rosenne, The Law and Practice of the International Court, 2nd rev.ed.,
1985, p.92.
---------------------------------------------------------------------------------------------------------------------
106. Meanwhile it may be pointed out that Portugal "as administering Power"
was called upon by the Security Council in its resolution 384 (1975) "to
co-operate fully with the United Nations so as to enable the people of East
Timor to exercise freely their right to self- determination". The reference
to co- operation with the Organization does not exclude individual actions
by Portugal, i.e., actions not coordinated with the United Nations, which
are or can be related to the task of self-determination. Portugal's
Application instituting proceedings in the present case falls under this
heading. General Assembly resolution 3485 (XXX) speaks of "the
responsibility of the administering Power to undertake all efforts to create
conditions enabling the people of Portuguese Timor to exercise freely their
right to self-determination ...". The exercise of that responsibility,
including the choice of means, is a matter to be decided by the
administering Power acting alone or in conjunction with the United
Nations.[p258]
107. In the present case the choice was between, on the one hand,
entertaining the case upon the merits and, on the other, refusing to
adjudicate. A policy of abstention does not seem a better solution.
Considerations of public policy speak in favour of the pronouncement of the
Court on the merits. Such a pronouncement is more likely to contribute to
the settlement of the problems submitted to it. These problems, or at any
rate some of them, are ripe for solution by the application of international
law.
108. The legal components of a dispute resulting from the question of East
Timor need not necessarily be submitted to the Court only by way of a
request for an advisory opinion (as Australia asserted). Litigation is not
excluded.
A Justiciable Dispute?
109. The resolution of the dispute between Portugal and Australia does not
conflict with the Court's "duty to safeguard the judicial function"
(Northern Cameroons, I.C.J. Reports 1963, p. 38). In other words,
adjudication on the merits will be consistent with the Court's judicial
function (cf. ibid., p. 37). The present dispute is justiciable.
110. The written and oral pleadings amply show that there is, in this case,
"an actual controversy involving a conflict of legal interests between the
parties". By addressing itself to the submissions of Portugal the Court and
its judgment will affect the legal rights and obligations of the parties,
"thus removing uncertainty from their legal relations". Consequently, the
"essentials of the judicial function" could and, indeed, would be satisfied
(Northern Cameroons, I.C.J. Reports 1963, p. 34). In this case there is a
legal dispute between the two parties which the Court, if it wishes to be
true to its function, cannot refuse to resolve. For a necessary consequence
of the existence of any dispute, including the present one, is the party's
(i.e., Portugal's) interest in securing a decision on the merits (here I am
following the concept of dispute as explained by Judge Morelli, ibid., p.
133, para. 3). Portugal has shown sufficient interest for the Court to
consider the case. That interest persists, and the controversy between the
two States has not yet come to an end.
111. In the question of East Timor there are points of interpretation and
application of law where recourse to the Court is useful. These points are
not abstract, they are not "an issue remote from reality" (to use the
expression employed in Northern Cameroons, I.C.J. Reports 1963, p. 33, and
referred to in the oral pleadings, CR 95/9, p. 27, para. 17, 8 February 1995
and CR 95/15, p. 51, para. 9, 16 February 1995, Prof. Crawford; he expressed
a contrary view). The pleadings have shown that there are legal issues
between the parties which the Court could resolve without the participation
in the case of any other State (i.e., Indonesia). Even if it is taken for
granted that "the underlying dispute is only suitable for resolution by
negotiation" (Counter-Memorial, para. 316), it is not true that the dispute
[p259] submitted to the Court (which should be distinguished from the
"underlying" one) is not suited to adjudication. Judge Sir Robert Jennings
reminds us that
"it could usefully be more generally realized that the adjudication method
is not necessarily an independent one and can very well be used as a
complement to others such as negotiation"FN1.
------------------------------------------------------------------------------------------------------------
FN1“Comite
restraint sur le règlement pacifique des differends. Note preliminaire”,
Institute of International Law, Yearbook, Vol. 65, Part II, Session of
Milan, 1993, Pedone, Paris, 1994, p.281.
------------------------------------------------------------------------------------------------------------
The learned Judge gave the example of the North Sea Continental Shelf cases,
but that model is not exclusive.
112. One can also look at our problem from a somewhat different angle: there
are disputes where the settlement does not constitute a single operation.
The settlement is or becomes a process. Such is the nature of the question
of East Timor. Adjudication is part of the process and there is no reason
for eliminating it.
Section IV: The territory of East Timor
A. Status
113. "The Court recalls ... that it has taken note in the present Judgment
(para. 31) that, for the two Parties, the Territory of East Timor remains a
non-self-governing territory ..." (Judgment, para. 37). And so it is, one
may conclude on the basis of the decision, for the Court. It is a matter of
regret that this important affirmation did not find its place in the
dispositif.
No Change of Status
114. Since 1960 East Timor has continually appeared and still appears on the
United Nations list of non- self- governing territories. The United Nations
maintains that status of East Timor. Only the Organization can bring about a
change. Rejection of the status by the original sovereign power; or the use
of force by another country to gain control over the territory; or
recognition by individual States of the factual consequences of the recourse
to force - none of these unilateral acts can abolish or modify the status of
non-self-government. That status has its basis in the law of the
Organization and no unilateral act can prevail over that law.
115. It is true that over the years and in some respects, the language of
the resolutions of the General Assembly has become less decisive and less
definite and the majorities smaller. But this is a development of the
political approach and the effect of the search for a solution through
channels other than the Security Council or the General Assembly. The
constitutional position under Chapter XI of the Charter has not changed. Nor
[p260] have the Geneva consultations under General Assembly resolution
37/30, currently in progress, brought about any modification of the
Territory's status.
116. Obviously, we are confronted by certain facts which may be long- lived.
Australia rightly maintained that the rejection of the United Nations status
of the Territory by Portugal in the period 1955- 1974 did not change the
legal status of East Timor. It is therefore difficult to understand how, at
the same time, Australia argues the effectiveness of the incorporation of
East Timor into Indonesia, and in particular the contribution made to this
effectiveness by acts of recognition of that incorporation. The status of
East Timor in law has remained the same ever since Portugal became a Member
of the Organization and the United Nations subsumed East Timor under Chapter
XI of the Charter. It is a status defined by the law of the United Nations.
Unilateral acts - by Portugal during the dictatorship period, and now by
Indonesia since 1975 and by the few States which granted recognition - have
had and continue to have no primacy over that law.
The Position of Australia
117. In spite of various qualifications which Australia sometimes introduced
in presenting this part of the case, it must be assumed, on the strength of
her words, that she acknowledges that East Timor is still a
non-self-governing territory. "Australia has never recognized the legality
of Indonesia's original acquisition of the territory of East Timor"
(Rejoinder, para. 224). It also refers to the change in the person of the
State now in control of the non-self-governing territory (Indonesia taking
the place of Portugal). This implies that, in this respect, the status (as
such) of East Timor did not change. The Agent and counsel for Australia said
(CR 95/14, p. 13):
"Australia recognizes that the people of East Timor have the right to
self-determination under Chapter XI of the United Nations Charter. East
Timor remains a non-self-governing territory under Chapter XI. Australia
recognized this position long before Portugal accepted it in 1974. It has
repeated this position, both before and after its recognition of Indonesian
sovereignty and it says so now."
118. At the same time Australia does not seem to exclude that, in the
meantime, the Territory's legal position might have become adjusted to the
facts created by Indonesia. Has there been such an adjustment? The language
of the Timor Gap Treaty and of some official statements (cf. paras. 127 and
139 below) can be perceived as supporting the concept of change, not of
continuity. To be more specific, the position of Australia is ambivalent for
three reasons. [p261]
119. First, there is the basic difficulty in reconciling Australia's
recognition of Indonesian sovereignty with the continuing status of non-
self- government, a difficulty all the greater since Indonesia denies the
existence of that status. Does not recognition inevitably mean that
Australia has consented to the Indonesian concept of what the Territory now
is?
120. Second, another source of difficulty is doubts regarding the legal
basis for an identical and equal treatment by Australia of the two countries
(Portugal and Indonesia) as successive sovereigns of East Timor (see para.
117 above). Portugal's title to sovereignty is not comparable with
Indonesia's claim. Since 1974 Portugal has conformed to the rule of the
Friendly Relations DeclarationFN1.
---------------------------------------------------------------------------------------------------------------------
FN1”The
territory of a colony or other non-self-governing territory has, under the
Charter, a status separate and distinct from the territory of the State
administering it; and such separate and distinct status under the Charter
shall exist until the people of the colony or non-self-governing territory
have exercised their right of self-determination in accordance with the
Charter, and particularly its purposes and principles.”
---------------------------------------------------------------------------------------------------------------------
121. Third, one must equally note a general tendency on the part of
Australia to emphasize the significance of the fact that Portugal "has no
governmental control" over East Timor and has no "territorial presence"
there (CR 95/8, p. 79). I would not contend that such an assertion
necessarily shows preference of fact over law, yet the tendency blurs the
attitude of Australia on the status of the Territory, especially as
Indonesia does not regard itself as a new "administering Power".
Recognition and Non-recognition
122. It is convenient to dispose, at the outset, of the argument on the
analogy between the Timor Gap Treaty and some of the treaties for the
avoidance of double taxation concluded by Indonesia. Australia has drawn
attention to these treaties (Counter-Memorial, pp. 213-218, Appendix C;
Rejoinder, paras. 52-54; for the Portuguese view, see Reply, para. 6.14).
The Court mentions in general terms (i.e., without indicating their category
or subject) "treaties capable of application to East Timor but which do not
include any reservation in regard to that Territory" (Judgment, para. 32).
The Court does not make any explicit inference from these treaties but
points to them in the context of treaty-making power, not of recognition.
The latter point is made by Australia. That argument is misleading in the
sense that no recognition can be implied from the tax treaties. They do not
deal with territorial problems, and they do not refer explicitly to East
Timor, but concern Indonesian territory under Indonesian legislation for tax
purposes alone. This is an issue that could be regulated by the contracting
parties without detracting from the posture of non-recognition (if it was
adopted) or without entailing recognition. On [p262] the other hand, the
Timor Gap Treaty refers to "the Indonesian Province of East Timor" and is
based on the assumption of Indonesian sovereignty over that area, which
sovereignty Australia has recognized.
123. Let me observe that in matters of violent changes resulting in the
imposition of foreign rule or dominant foreign influence a longer
perspective is necessary. Recent history has again shown that what for many
years was regarded as almost permanent and immutable collapsed under our
eyes - an outcome which the proponents of Realpolitik and of consent to
accomplished facts did not foresee. We were told, in connection with East
Timor, that "the realities of the situation would not be changed by our
opposition to what had occurred" (the position of the United States, quoted
in Rejoinder, para. 47). For the time being, that may be true. Yet we all
know of instances where there was opposition and various "realities" proved
to be less resistant to change than Governments might have thought.
124. In the present case the Court preferred not to consider the problem of
the non-recognition of a situation, treaty or arrangement which came into
being by means contrary to the prohibition of "the threat or use of force
against the territorial integrity or political independence of any State, or
in any other manner inconsistent with the Purposes of the United Nations"
(Art. 2, para. 4, of the Charter). However, when stating or confirming the
principles relevant to the case this restraint is not the only possible
posture.
125. The policy of non-recognition, which goes back to before the First
World War, started to be transformed into an obligation of non- recognition
in the thirties. Through the Stimson doctrine, the United States of America
played a pioneering - and beneficial - role in this developmentFN1. The rule
or, as Sir Hersch Lauterpacht saysFN2, the principle of non-recognition now
constitutes part of general international law. The rule may be said to be at
present in the course of possibly reaching a stage when it would share in
the nature of the principle of which it is a corollary, i.e., the principle
of the non-use of force. In that hypothesis non-recognition would acquire
the rank of a peremptory norm of that law (jus cogens). But that is a future
development which is uncertain and has still to happen. The Friendly
Relations DeclarationFN3 correctly states the law on the subject: "No
territorial acquisition resulting from the threat or use of force shall be
recognized as legal".[p263] Contrary to what has been asserted (Counter-
Memorial, para. 365; Rejoinder, para. 74) the obligation not to recognise a
situation created by the unlawful use of force does not arise only as a
result of a decision by the Security Council ordering non-recognition. The
rule is self-executory.
---------------------------------------------------------------------------------------------------------------------
FN1R.Langer, Seizure of Territory. The Stimson Doctrine and Related
Principles in Legal Theory and Diplomatic Practice, 1947.
FN2Recognition in International Law, 1947, Chap. XXI.
FN3Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in Accordance with the Charter of
the United Nations. This Declaration is contained in the Annex to resolution
2625(XXV) of the United Nations General Assembly. The rule figures in the
section dealing with the prohibition of use of force.
---------------------------------------------------------------------------------------------------------------------
126. But apart from what has been said in paragraph 125 above, there is room
for the view that the United Nations rejected the possibility of
recognition. For the Security Council called upon "all States to respect the
territorial integrity of East Timor" (resolutions 384 (1975) and 389 (1976),
para. 1 in each of them) and the General Assembly also made a reference to
East Timor's territorial integrity (resolution 3485 (XXX), para. 5; this
resolution was reaffirmed by the Assembly in 1976-1978). What else can this
mean but prohibition to do anything that would encroach upon the integrity
of the Territory? Recognition of it as a province of Indonesia is contrary
to the resolutions cited. The Assembly rejected the integration of East
Timor into Indonesia (para. 24 above).
127. Yet Australia recognized Indonesia's sovereignty over East Timor; on
this occasion it also questioned the legal character of the rule of
non-recognitionFN1. Sometimes less precise language was used: it was said
during the oral pleadings that Australia "recognized the presence of
Indonesia in East Timor" (Pellet, 7 February 1995, CR 95/8, p. 10, para. 3).
Strictly speaking "presence" could mean less than "sovereignty".
---------------------------------------------------------------------------------------------------------------------
FN1
Senator Gareth Evans, Minister for Resources and Energy (as he then was),
made the following statement in the Australian Senate on 20 March 1986:
"I make it plain that the legal status of this declaration [cited in
footnote 3, p. 262, above], which is not a treaty in any sense, has long
been very hotly contested. It is our understanding that there is no binding
international legal obligation not to recognise the acquisition of territory
that was acquired by force. In international law, the legality of the
original acquisition of territory by a state must be distinguished from
subsequent dealings between third states and the state acquiring new
territory. It is the sovereign right of each state to determine what
dealings it will have with states acquiring, by whatever means, new
territory and to determine whether or not to recognise sovereignty over such
a territory.
As the Prime Minister (Mr. Hawke) stated in the House on 22 August 1985, in
an answer to Mr. Peacock, Australia has recognised Indonesia's sovereignty
over East Timor since February 1979. Of course, that statement was
accompanied by a recognition, again by Mr. Hawke which has been expressed
by Government representatives on many occasions, of our concern at the way
in which East Timor was incorporated. The recognition does not modify in any
way the continuing concern at that historical fact.
Let me go on to say that it is perfectly consistent with Australia's
recognition of Indonesia's sovereignty over East Timor to engage in
negotiations with Indonesia now on the Timor Gap." (Reproduced in the
Memorial, Annex III.28.)
---------------------------------------------------------------------------------------------------------------------
[p264]
128. The Australian justification was expressed in the following terms:
"As a practical matter, Australia could not have avoided the decision to
recognize Indonesia [sic], and to negotiate with a view to making a treaty
with it on the Timor Gap, if it was to secure and enjoy its sovereign rights
there. There was no other State with which it could have negotiated and
concluded an effective agreement. No arrangement with Portugal could have
achieved Australia's legitimate object, since Portugal did not control the
area in question and there was not the slightest prospect that it would do
so in the future." (Counter-Memorial, para. 354.)
However, the problem cannot be reduced to "practical" considerations. They
do not relieve the State of the duty of non-recognition. The argument, if
put forward without any qualification, is unacceptable; admitted
unconditionally, it could sap the foundation of any legal rule.
129. While recognition of States or Governments is still "a free act", it is
not so with regard to the irregular acquisition of territory: here the
discretionary nature of the act has been changed by the rule on the
prohibition of the threat or use of force.
130. As indicated above (para. 125) the rule of non-recognition operates in
a self-executory way. To be operative it does not need to be repeated by the
United Nations or other international organizations. Consequently, the
absence of such direction on the part of the international organization in a
particular instance does not relieve any State from the duty of
non-recognition. Nor does the absence of "collective sanctions" have that
effect. Australia espouses a contrary view (Counter-Memorial, paras. 355 and
356; and Rejoinder, para. 229).
131. The Court has not been asked to adjudicate or make a declaration on
non-recognition in regard to the Indonesian control over East Timor. But let
me restate the question: can the Court avoid this issue when it states
certain principles? Non-recognition might protect or indeed does protect the
rights to self-determination and to permanent sovereignty over natural
resources. Any country has the corresponding duty to respect these rights
and no act of recognition can release it from that duty. In other words, it
might be necessary to consider whether there is any link between Australia's
attitude towards the Indonesian annexation and her duties with regard to
East Timor. Such a determination would not amount to delivering any judgment
on Indonesia, for the Court would limit itself to passing upon a unilateral
act of Australia. That act, contrary to Australia's view (Counter-Memorial,
para. 350), means more than mere acknowledgement that Indonesia "is in
effective control of the territory" while the recognizing Government is
willing "to enter into dealings with that State or government in respect of
territory". [p265] Recognition leads to the validation of factual control
over territory and to the establishment of corresponding rights.
132. The attitude of non-recognition may undergo a change by virtue of a
collective decision of the international community. In law, there is a
fundamental difference between such a decision and individual acts of
recognition. Judge Sir Robert Jennings wrote of "some sort of
collectivisation of the process, possibly through the United Nations itself
..."FN1. But up till now nothing of the sort has happened with regard to
East Timor. Nor is there any consolidation of the Indonesian "title" through
other means.
---------------------------------------------------------------------------------------------------------------------
FN1The
Acquisition of Territory in International Law, 1963, p.61.
---------------------------------------------------------------------------------------------------------------------
133. The dichotomy between fact and law permeates this case. I have already
touched upon one aspect of it in paragraph 123 above. In this opinion it is
not possible to discuss generally the role of the factual element, of facts,
as a source of rights, obligations and powers. But it would be too simple to
dismiss the continued United Nations status of East Timor and of Portugal as
being remote from the facts. Whenever it comes to an unlawful use of force,
one should be careful not to blur the difference between facts and law,
between the legal position and the factual configuration. Even in apparently
hopeless situations respect for the law is called for. In such circumstances
that respect should not mean taking an unrealistic posture. History gives us
surprises. Contemporary history has shown that, in the vast area stretching
from Berlin to Vladivostok, the so-called "realities", which more often than
not consisted of crime and lawlessness on a massive scale, proved to be less
real and less permanent than many assumed. In matters pertaining to military
invasion, decolonization and self-determination, that peculiar brand of
realism should be kept at a distance. And one cannot accept that Chapter XI
disregards the problem of the legality of the administration of a
non-self-governing territory.
B. Self-determination
"Essential Principle"
134. The Court states that the principle of self-determination "is one of
the essential principles of contemporary international law". The right of
peoples to self-determination "has an erga omnes character". The Court
describes the relevant assertion of Portugal as "irreproachable" (Judgment,
para. 29). The Court also recalls that "it has taken note in the present
Judgment (para. 31) that, for the two Parties, ... [the] people [of East
Timor] has the right to self-determination" (para. 37). [p266] It is a
matter of regret that these important statements have not been repeated in
the operative clause of the Judgment.
135. In the opinion of Judge Bedjaoui, President of the Court, self-
determination has, in the course of time, become "a primary principle from
which other principles governing international society follow" (un principe
primaire, d'où decoulent les autres principes qui regissent la societe
internationale). It is part of jus cogens; consequently, the "international
community could not remain indifferent to its respect" ("la
communaute
internationale ne pouvait pas rester indifferente à son respect"). States,
both "individually and collectively", have the duty to contribute to
decolonization which has become a "matter for all" ("une affaire de
tous")FN1. According to Judge Ranjeva "[t]he inalienability of the rights of
peoples means that they have an imperative and absolute character that the
whole international order must observe"FN2. Judge Mbaye interprets
self-determination in conjunction with "the principle of inviolability of
borders"FN3. That link additionally emphasizes the incompatibility of the
forcible incorporation of a non-self-governing territory with the
requirement of self- determination.
---------------------------------------------------------------------------------------------------------------------
FN1M.Bedjaoui,
in J.-P.Cot and A.Pellet (eds.), La Charte des Nations Unies, 2nd ed., 1991,
pp.1082-1083.
FN2Raymond Ranjeva, “Peoples and national Liberation Movements”, in
M.Bedjaoui (ed.), International Law: Achievements and Prospects, 1991, p.
105, para.16.
FN3Keba Mbaye, Introduction (to Part Four, “Human Rights and Rights of
Peoples”), ibid., p.1055, para.62.
---------------------------------------------------------------------------------------------------------------------
136. By virtue of Chapter XI of the Charter the East Timorese right to
self-determination is the focal point of the status of the Territory. This
has been confirmed by several United Nations resolutions which have been
adopted since the invasion of East Timor by Indonesia and since the
incorporation of the Territory into that State.
137. The issue is not limited to the quadrilateral relationship (which today
finds its expression in the Geneva consultations), that is, the people of
East Timor, the United Nations, Portugal and Indonesia. In particular, the
duty to comply with the principle of self-determination in regard to East
Timor does not rest with Portugal and Indonesia alone. Depending on
circumstances, other States may or will also have some obligations in this
respect. By negotiating and concluding, and by beginning to implement the
Timor Gap Treaty, Australia placed herself in such a position.
138. The Friendly Relations Declaration provides as follows:
"Every State has the duty to promote, through joint and separate action,
realization of the principle of equal rights and self-determination of
peoples, in accordance with the provisions of the Charter, and to render
assistance to the United Nations in carrying out the responsibilities
entrusted to it by the Charter regarding the implementation of the principle
..." [p267]
Self-determination creates a responsibility not only for those who are
directly concerned.
The Position of Australia
139. Australia adheres to the principle of self-determination. In the
pleadings Australia emphasized her acknowledgement of the right of the
people of East Timor to self-determination.
140. However, some official Australian statements combine that broad general
stance with a somewhat qualified approach regarding East Timor specifically.
During the Senate debate on 14 November 1994 Senator Gareth Evans, Minister
for Foreign Affairs, said:
"The self-determination that Australia talks about and wants to encourage is
self-determination within the framework of Indonesian sovereignty. That is
the implication of de jure recognition which the other side of Australian
politics initiated in 1979 and which we subsequently endorsed when we came
into office.
Self-determination in that context, and in the way in which that expression
is being used a lot internationally these days, does mean genuine respect
for different ethnicity and genuine respect for human rights claims of
particular groups within larger national or State entities. That is the kind
of thing we are talking about. In that context, some kind of special
political autonomy or special status - of the kind, for example, that exists
in Jogjakarta or Aceh - might be thought to be helpful in that larger
process of reconciliation. It is not by itself enough to solve the whole
problem but it is at least part of the answer. The other elements of the
answer are those I have described, in particular the military drawdown as
well as other measures being taken to respect local, religious and cultural
sensitivities to a greater extent than has been the case so far." (Senate,
p. 2973.)
The reference to "self-determination within the framework of Indonesian
sovereignty" should be noted, as well as "respect for different ethnicity",
"respect for human rights claims of particular groups", and measures to be
taken "to respect local, religious and cultural sensitivities" of the people
of East Timor; also "political autonomy or special status" of a particular
kind. These are important aims, entirely in line with a certain type of
self-determination. But that statement does not fully meet the requirements
of General Assembly resolution 1541 (XV). On 7 February 1995 (Current Senate
Hansard, Database, p. 572) the Foreign Minister explained "the framework of
sovereignty", indicating that:
"The situation is that before 1975 Australia recognized Portuguese
sovereignty over East Timor while, at the same time, simulta-[p268]neously
recognising the right to self-determination of the Timorese people. There is
no difference between the situation then and now. A claim of a right to
self-determination can exist with a recognition of sovereignty. We
recognized Portuguese sovereignty then - and, in fact until 1979 before we
formalised it - and since 1979 we have recognized Indonesian sovereignty,
but we have also recognized right through that period the right to
self-determination by the people of East Timor."
This time the Minister referred to the whole gamut of solutions:
"[S]elf-determination can involve a number of quite different outcomes,
including of course the emergence of an independent State, but also
integration, or some form of association within or with another State, or a
degree of autonomy within another State. I think that is important
background.
In the case of East Timor, Australia recognises that the people of East
Timor do have a right of self-determination - to choose, in effect, how they
are governed. This has been Australia's position since before the events of
1975, and it has never been reversed. The United Nations, in relation to
East Timor, has certainly recognized that there can be no solution to
self-determination and related issues without the cooperation of the
Indonesian government; ..."
Thus, in dealing with East Timor the statement adopts a narrower approach:
self-determination is reduced to the choice of the form of government ("how
they are governed").
Erosion through Acquiescence in Accomplished Facts
141. It may be observed that the parallelism represented by, on the one
hand, recognition of sovereignty (no matter how its extension over a
territory was achieved) and on the other hand by support (albeit
declaratory) for self-determination cannot be assessed in the abstract. The
present situation of East Timor is characterized by a lack of balance
between these two factors. Recognition militates in favour of the permanency
of incorporation, while self-determination is, in fact, suspended.
Recognition has its petrifying impact. "[T]he question remains" said George
H. Aldrich, Deputy Legal Adviser, U.S. Department of State, "what we are
required to do if this right [of self-determination] is not observed as we
might wish ..." (quoted in Rejoinder, para. 47). The question is still with
us. The United States, which recognized the incorporation, did not have an
answer; "the prevailing factual situation" (i.e., Indonesian rule in East
Timor) is for it "the basis" of any action (ibid.). [p269]
C. Administering Power
Administering Power as Part of the Status of the Territory
142. Australia asserts that "Chapter XI of the Charter makes no reference to
the concept of an 'administering Power'" (Rejoinder, para. 186). In its view
the practice of the Organization "reveals that the expression 'administering
Power', unlike the expression 'non- self- governing territory', has not been
regarded by the United Nations as a term of art or as a reference to a
particular juridical status" (ibid., para. 185). This is not true.
"Administering Power", a term which has been appearing in the United Nations
resolutions for more than thirty years (since 1962), is a shorthand
expression of the Charter phrase "Members of the United Nations which have
or assume responsibilities for the administration of territories whose
people have not yet attained a full measure of self-government" (Art. 73).
Such a Member State, or administering Power, has a position which is part of
the status of the non-self-governing territory. That position consists of
powers, rights and duties as established by United Nations law and practice.
Chapter XI contains the basic rules on the position of the administering
Power. If it is said, and rightly so, and this is also the Australian stand,
that "[t]he concept of 'non-self-governing territories' is derived from the
United Nations Charter itself (see the title of Chapter XI), and is
acknowledged to be a juridical status having legal consequences in
international law" (Rejoinder, para. 185), then inevitably the
"administering Power" shares in that "juridical status": in the sense of
Chapter XI there is no "administering Power" without a non-self-governing
territory and vice-versa.
Administering Power as Sovereign
143. Since the Democratic Revolution of 25 April 1974 (the "Carnation
Revolution") Portugal has reiterated its view that she has "no territorial
claims whatsoever to East Timor" (e.g., United Nations Document A/36/PV. 6,
p. 101). This attitude points to the paramountcy of East Timorese interests.
It is for the people of East Timor to decide on their future; Portugal will
accept that decision, including the Territory's independence if such is the
result of the exercise of the right to self-determination.
144. Under Constitutional Law 7/74 East Timor ceased to be part of the
"national Territory" in the sense which the Constitution of 1933 gave to
this notion. However, priority of self-determination, before it has been
freely implemented, does not amount to renunciation of the sovereignty which
Portugal has held over that Territory since the 16th century. The abolition
of the 1933 rule on colonies as part of "national Territory" introduced, in
the municipal law of Portugal, a difference between them and the
metropolitan area, that difference being already part of United [p270]
Nations law, in particular Chapter XI of the Charter and the Friendly
Relations Declaration (para. 53 above). In international law the position
with regard to sovereignty remained unchanged:
"without prejudice to immediate recognition of the 'otherness' of the
Territory of East Timor and the sovereign right of its people to determine
freely its political future, Portugal reserved its own prerogatives in
regard to sovereignty and administration. The prerogatives in question are
of course all those that accompany, in general, exercise of the jurisdiction
of States over territories belonging in full to them, except only for
prerogatives incompatible with the status in international law of
non-self-governing territories. Such prerogatives would be temporary by
nature since they would lapse upon completion of the decolonization process.
The process was nevertheless not completed by the scheduled dateFN[1] for
reasons beyond Portugal's control. It must therefore be understood that
Portugal maintains, de jure, over East Timor all the powers pertaining to
the jurisdiction of a State over any of its territories, provided that they
are not incompatible with the 'otherness' of East Timor and the right to
self-determination of the Timorese people." (Reply, para. 4.54.)
------------------------------------------------------------------------------------------------------------
FN[1]Under
Article 5, paragraph 1, of Constitutional Law 7/75 “the third Sunday of
October 1978” was fixed as the date for the completion of decolonisation
------------------------------------------------------------------------------------------------------------
145. It may be added that the renunciation of sovereignty has sometimes
resulted in turning a territory into one that would not be subject to the
sovereignty of any State; it becomes an area where the element of State
sovereignty is absent (e.g., the Free City of Danzig under the treaties of
1919 and 1920). The status of a non-self-governing territory under the
United Nations Charter is different. With regard to overseas colonies of
Western countries that status comprises the administering State which has
sovereignty over the colony. Nor is there any renunciation of sovereignty in
the post-revolution Constitutions of Portugal: 1976, Article 307; 1982,
Article 297; 1989, Article 293. By virtue of these provisions Portugal
imposed on herself a duty to pursue the interests of the people of East
Timor, but did not divest herself of sovereignty.
146. Here the distinction between sovereignty and its exercise is a useful
one. As already recalled, the Friendly Relations Declaration provides that
"[t]he territory of a colony or other non-self-governing territory has,
under the Charter, a status separate and distinct from the [metropolitan]
territory of the State administering it". The reason for that separateness
and distinctness is self-determination. But the provision quoted does not
aim at depriving the State of its title to sovereignty which it held prior
to [p271] the Charter and the Declaration. The State has remained
sovereign. The said provision imposes restrictions on the exercise of the
State's sovereignty. These restrictions are far- reaching. Portugal rightly
referred to her "prerogatives [of] sovereignty" (para. 75 above), though on
occasions she has avoided the word "sovereignty" in describing her position
with regard to East Timor. Instead she has used the terms "jurisdiction"
(Co-Agent, counsel and advocate of Portugal, J.M.S. Correia, Public Sitting,
1 February 1995, CR 95/4, para. 2) and "authority" (idem, CR 95/12, para. 3,
13 February 1995,). Nonetheless Portugal explains that the
"Administering Powers are independent States which keep their attributes as
such when they act on the international scene in relation to the
non-self-governing territories for whose administration they are
responsible" (ibid.).
It is submitted that these "attributes" are nothing more than sovereignty,
the exercise of which has been restricted in favour of the
self-determination of the people concerned. Portugal stresses that the
people of the Territory is "the holder of the sovereignty inherent in the
capacity to decide for itself its future international legal status" (loc.
cit., CR 95/4, para. 6) and that "the international law of decolonization
has transferred the sovereignty relating to such territories to their own
peoples" (loc. cit., CR 95/12, para. 3). Under international law these
contentions must be understood as referring to self-determination: it is the
people which decides on its implementation; but "people" as the holder of
"sovereignty" is a concept which, at least in part, lies beyond the realm of
law.
Continuity of Portugal's Position as Administering Power
147. Portugal remains the administering Power of the Territory of East
Timor. This status of Portugal has been corroborated expressly by Security
Council resolution 384 (1975) and General Assembly resolutions 3485 (XXX),
34/40, 35/27, 36/50 and 37/30. The position of Portugal was implicitly
maintained in a number of other resolutions (cf. para. 22 above). In
resolution 384 (1975) the Security Council regretted that "the Government of
Portugal did not discharge fully its responsibilities as administering Power
in the Territory under Chapter XI of the Charter". This statement did not
lead to any change in Portugal's responsibilities; on the contrary, Portugal
was called upon, in her capacity of administering Power , "to co-operate
fully with the United Nations". In spite of the loss of territorial control
over East Timor, Portugal was thus confirmed in her mission and functions.
148. The issue of sovereignty is relevant to the question of continuity. As
explained in paragraphs 144 and 145, under Chapter XI of the Charter it is
the State which has sovereignty of the colony who becomes and remains
administrator. It is an automatic consequence of being sovereign and a
contracting party to the Charter, i.e., a Member of the Organiza-[p272]tion. There is no "appointment" or election to the "function" of
administering authority. But sovereignty should not be confused with factual
effective control over the Territory. Such control does not of itself bestow
on its holder the status of administering Power.
149. At the time of the Indonesian invasion, Australia admitted that
Portugal had, "of course, the continuing legal responsibility" (United
Nations, Official Records of the Security Council, 1865th Meeting, 16
December 1975, para. 101). But some time later Australia changed her
position.
150. The fact that the General Assembly, unlike in resolution 3458 A (XXX)
on Western Sahara, did not expressly refer to "the responsibility of the
Administering Power and of the United Nations with regard to the
decolonization of the territory" is without significance. The resolutions on
East Timor maintain that "responsibility" by using other terms.
151. Australia admits that "Portugal may be the administering Power for
certain United Nations purposes" (Rejoinder, para. 98). Loss of control over
the territory in question no doubt resulted in the actual disappearance of
Portuguese administration on the spot. And there may be room for dealing
with the State in effective control with regard to certain specific
questions (cf. Namibia case, I.C.J. Reports 1971, p. 56, para. 125).
152. But foreign invasion has not eliminated all the elements which
constitute the competence of the lawful administrator. Nor is there a right
"for others to recognise that there has been a change in the State
administering that Territory" (contra: Rejoinder, para. 183). That change is
a matter exclusively within the domain of the United Nations. Until such
time as the Organization has taken a new decision, the status of the
administering Power continues, legally unaffected, notwithstanding the loss
of control over the Territory.
153. Australia contends (Counter-Memorial, para. 41) that
"Portugal did not make any attempt to prevent or repel the Indonesian
military intervention. The withdrawal of its administration to Atauro in
August 1975, its inaction while there, and its departure from Atauro the day
after the Indonesian intervention in December 1975 constituted a clear
abandonment by Portugal of its responsibilities as administering Power."
154. It is not possible to agree with the foregoing interpretation. The
transfer to Atauro was dictated by security reasons, Dili having been taken
by the forces of FRETILIN (para. 14 above). The physical separa-[p273]tion
from the capital prevented any involvement of the Portuguese authorities in
the fighting among East Timorese factions. Such involvement was to be
avoided in the interests of the administration of East Timor. As to the
Indonesian invasion, Portugal did not have any troops at her disposal in
East Timor to offer any resistance: the Governor was left with two platoons
of parachutists. Apart from the factual impossibility, it was probably in
the interest of all concerned not to extend or intensify the military
operations. When the invasion took place Portugal had no other choice but to
withdraw her authorities from East Timor. But that withdrawal did not, and
could not, amount to abandoning the function of the administering Power.
This is so because, first, Portugal had no such intention and, second, no
administering Power is competent to give up its position without the consent
of the United Nations. A unilateral act would remain ineffective in law.
Portugal's international action in the United Nations following the invasion
gives ample proof of her decision to continue to exercise the function of
the administering authority. At the same time the Organization did not
release Portugal from her duties.
155. It would be erroneous to contend that Portugal lost its status of
administering Power because some resolutions passed over that status in
silence or the United Nations political organs ceased adopting any
resolutions on East Timor. The status could be changed only by an explicit
decision, including acknowledgement that another State (i.e., Indonesia) had
now assumed the responsibility for the Territory. Hitherto this has not
happened.
V: Conclusion
156. The Court's decision that it cannot exercise jurisdiction in the East
Timor case cannot be regarded as weakening the concept of non- self-
governing Territories, though an elaboration on the merits would be welcome.
At the present time the United Nations list of these Territories is short as
the decolonization process reaches its end. But non-self-government (or
governance) need not be a closed chapter: ideologies, political systems and
many individual countries are in transition and undergoing transformation.
Legal strategy requires that old institutions (like that of Chapter XI of
the Charter) adapt to new challenges. It would be better if the Court
assumed jurisdiction: better for the prospective developments, better for
the rule of law.
157. It is to be regretted that, in its operative part, the Judgment does [p274] not recite as relevant the prohibition of force; non-recognition; the
self-determination of peoples; the status of East Timor under United Nations
law, including the rule that only the Organization can change that status;
the position of Portugal as administering Power; the duty of States to
respect that status; in particular the duty of States which enter into some
arrangements with the government in control of the Territory to consult,
when these arrangements reach a certain level of political and legal
importance, with Portugal, with the representatives of the East Timorese
people and with the United Nations. It is not only appropriate but also
highly significant that the reasons for the Judgment affirm some of these
principles. But the subject is too important for a cautious presentation of
the reasons. The Court's responsibility and function are also involved.
158. The case created an opportunity for assessing the activities of a
Member of the United Nations in the light of the Charter. That is a capital
issue at a time of crisis for the Organization and, more generally, in the
present climate of the growing weakness of legality throughout the world.
159. The conduct of Australia, like that of any other member State, can be
assessed in the light of the United Nations resolutions. Such an assessment
does not logically presuppose or require that the lawfulness of the
behaviour of another country should first be examined. Member States have
obligations towards the United Nations which in many instances are
individual and do not depend on what another State has done or is doing. To
that extent the Court has jurisdiction. Here no prerequisite is imperative.
The principal judicial organ of the United Nations cannot desist from such
assessment when the dispute submitted to the Court falls under Article 36,
paragraph 2, of the Statute. On the other hand, in the present case, because
of the non-participation of Indonesia, the Court has no jurisdiction to pass
upon the conduct of Indonesia.
160. It has been said that, as Australia accepts the right of the people of
East Timor to self-determination, there is nothing for the Court to decide.
On the contrary. Portugal raised several issues regarding that right; also,
some other ingredients of the status of the Territory have been discussed.
And in this opinion I have tried to show that there are various points which
are unclear in this respect. Consequently, the Court should adjudicate. In
the Judgment there should be an operative part on the merits, or at least on
some of them.
161. Doubts were expressed regarding the effectiveness of such a judgment.
Let me here take up one specific argument against "judicial propriety" which
might appear to have some weight, viz., the view that the judgment would not
be capable of execution. It has been pointed out that the present case
differs in this respect from Northern Cameroons because Portugal is not
requesting the nullification of the Timor Gap [p275] Treaty. Why would it
be improper for the Court to assess Australia's conduct consisting in the
negotiation, conclusion and application of the Treaty? Would a decision on
this subject be unenforceable? The implementation of the Treaty is an
everyday concern. While the post- adjucative phase is not part of the
function of the Court, there is no basis for anticipating non-compliance.
Australia has been praised for her loyalty to the Court.
162. This Court administers justice within the bounds of the law. In the
present case, on the one hand, we have insistence on national interests -
legitimate, it is true - and on Realpolitik: we have been told that
recognition of conquest was unavoidable. On the other hand we have the
defence of the principle of self-determination, the principle of the
prohibition of military force, the protection of the human rights of the
East Timorese people. And last but not least, the defence of the United
Nations procedures for solving problems left over by West European, in this
case Portuguese colonization. We may safely say that in this case no
Portuguese national self- interest is present. Portugal does not want to be
the sovereign of East Timor and to get from it various benefits, maritime
ones for example. Her stand is a negation of selfishness. Portugal has
espoused a good cause. This should have been recognized by the Court within
the bounds of judicial propriety. How could this cause be dismissed on the
basis of debatable jurisdictional arguments?
163. What are the duties of third States (and one of them is Australia)
towards East Timor? First, not to do anything that would harm or weaken the
status of the Territory, including the exercise by the people of its right
to self-determination. Second, when a third country (i.e., one which is
neither the administering Power nor controls the Territory de facto)
concludes a treaty or enters into another arrangement which concerns the
interests of the Territory and/or its people, special care is required on
its part to safeguard these interests in so far as the third State is in a
position to do it. That duty may be said to be comprised by the Security
Council's exhortation addressed to "all States or other parties concerned to
co-operate fully with the efforts of the United Nations to achieve a
peaceful solution to the existing situation and to facilitate the
decolonization of the Territory" (resolution 384 (1975), para. 4, and
resolution 389 (1976), para. 5; these resolutions were reaffirmed by the
General Assembly in 1976-1978). In regard to East Timor, in view of the
prevailing circumstances (including the human rights situation), a third
State has the obligation to consult the administering Power and the
legitimate representatives of the Territory. Finally, some other duties may
follow from both the legal and factual situation in and of the Territory.
These duties may be dictated by various considerations, including the fact
that the third State is part of the same region. [p276]
164. It is true that legitimate maritime interests of Australia had to be
taken care of. But as they also concern a maritime area of East Timor, that
Territory's status made it imperative for Australia to be in touch on this
matter with the United Nations and/or the administering Power.
165. The negotiation, conclusion and performance of the Timor Gap Treaty by
Australia are subject to the requirement of conformity with legal rules and
legal standards stemming from the duty to respect the status of the
Territory, in particular from the requirement of self- determination.
Depending on the result of the analysis, there may indeed be responsibility.
For instance, the Timor Gap Treaty is silent on any material benefit to be
derived by, and possibly assigned to, the people of East Timor. Under United
Nations law a large part of the resources covered by the Treaty belongs to
that people. How will it be compensated?
166. The duties referred to in the preceding paragraphs are independent of,
and do not concern, the bilateral relationship of the parties to the Timor
Gap Treaty. They relate to the status of the Territory and the competence of
the administering Power as its guardian. It is a question of United Nations
law and resolutions and that law and resolutions are to be applied by the
Court. Australia assured the Court that, in concluding the Timor Gap Treaty,
she also protected the rights and interests of East Timor. The Court is
competent to verify this assurance.
167. To conclude, the Court has jurisdiction in this case and the Portuguese
claims are admissible. There is nothing improper in dealing with the merits
of the case. A judgment on the merits could be rendered along the following
lines:
(1) The United Nations has continued to recognize the status of Portugal as
administering Power of East Timor. Consequently, Portugal has the capacity
to act before the Court in this case on behalf of East Timor.
(2) The non- self- governing status of the Territory of East Timor, and the
right of the people of East Timor to self-determination, including its right
to permanent sovereignty over natural wealth and resources, which are
recognized by the United Nations, require observance by all Members of the
United Nations. The Court takes note that in these proceedings Australia has
placed on record that it regards East Timor as a non-self-governing
territory and that it acknowledges the right of its people to
self-determination.
(3) Any change in the status of East Timor can only take place by virtue of
a United Nations decision. According to the law of the United Nations no use
of force nor any act of recognition by an individual State or States could
of itself effect a change in the status of the Territory.
[p277]
(4) Australia should fulfil its duties resulting from subparagraph (2) in
accordance with the law and resolutions of the United Nations. Its national
interests cannot be a bar to the fulfilment of these duties.
(5) Portugal is the administering Power of East Timor, and Australia, like
any other State, is under a duty to respect that position of Portugal. The
fact that Portugal lost the territorial administration of East Timor did not
deprive her of other attributes of her competence which are relevant to this
case. Portugal did not abandon her responsibilities as administering Power.
Portugal continues to hold the "sacred trust" under Chapter XI of the
Charter.
(6) In protecting its maritime rights and interests Australia cannot avoid
acting in conformity with the duties which are hers as a result of the
status of East Timor. These duties include the obligation to respect and
take account of the competence of the administering Power. The fact that
another State or States failed to respect the position of the administering
Power does not relieve Australia of her duties.
(7) Australia did not make recourse to any of the available United Nations
mechanisms, and particularly consultations on the negotiation of the Timor
Gap Treaty and on how the Treaty could be put into effect without prejudice
to the people of East Timor. In particular, it had a duty to consultation to
at least some extent with the administering Power and the representatives of
the people of East Timor. None of this was done and Australia bears
responsibility for this.
(8) In some respects (sub- para. 7) Australia's conduct did not conform to
her duties (obligations) resulting from the law of the United Nations on the
status of East Timor. A finding by the Court to this effect would in itself
constitute an appropriate satisfaction. In particular, the Court could
enjoin Australia that in applying and implementing the Timor Gap Treaty she
should fully respect the rights of the East Timorese people in view of that
people's future self-determination.
(9) There is no evidence of any material damage at present; therefore, no
reparatory provision can be imposed on Australia.
(10) The Treaty would not be opposable to an independent or autonomous East
Timor.
(Signed) Krzysztof Skubiszewski.
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