224

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 colo-
nies, 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
Il. ExISTENCE OF THE DISPUTE 33-39
The dispute before the Court 34-38
The question before the political organs 39
TH. 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 determina-
tion 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

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EAST TIMOR (DISS. OP. SKUBISZEWSKI)

IV. Tue Territory or East TIMOR
A. Status

No change of status
The position of Australia
Recognition and non-recognition

. Self-determination

“Essential principle”
The position of Australia
Erosion through acquiescence in accomplished facts

. Administering Power

Administering Power as part of the status of the Territory

Administering Power as sovereign
Continuity of Portugal’s position as administering Power

V. CONCLUSION

139

113-155
113-133

114-116
117-121
122-133

134-141

134-138
139-140
141

142-155
142

143-146
147-155

156-167
226 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

1. Ï 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 Aus-
tralia’s objection that “there is in reality no dispute” between it and Por-
tugal (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 Ter-
ritory of East Timor remains a non-self-governing territory and its people
has the right to self-determination” (ibid., 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 mini-
mum. However, this approach is rather a matter of method than of sub-
stance: the Court itself subscribes to the continued legal existence of the
status of East Timor as a non-self-governing territory and the applicabil-
ity of the principle of self-determination. I am convinced that this restate-
ment of the law by the Court is important for the stand Portugal took in
the present proceedings and is taking beyond them. The restatement 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 prin-
ciples of the United Nations at heart must commend the Court for this
dictum.

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 descrip-
tion found in the Judgment.

Historical Background

4. The Portuguese and, subsequently, the Dutch navigators reached
the island of Timor in the sixteenth 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

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Australian forces entered Portuguese Timor to defend it against Japanese
invasion. They were not successful and the island remained under Japa-
nese 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 Indo-
nesian 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 Con-
stitution 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 main-
tained 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 1 of the
Constitution of 1933 prohibited alienation of any part of national terri-
tory; 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 régime 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 197] 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.

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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 inde-
pendence” (para. 5 (a)) and affirmed that

“the policies of Portugal in claiming the Territories under its admin-
istration as ‘overseas territories’ and as integral parts of metropoli-
tan 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 CXXIII) 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 weil as in General Assembly resolutions 2270
(XXID, 2395 (XXJII) and 2507 (XXIV). In resolution 2507 (XXIV) the
General Assembly further called upon all States, United Nations special-
ized agencies and other international organizations to “increase their
moral and material assistance to the peoples of the Territories under Por-
tuguese domination who are struggling for their freedom and indepen-
dence” (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

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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 1 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-determina-
tion”

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 United Nations 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 resolu-
tions of the United Nations Organization . . .” (Art. 1). 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-determina-
tion 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 Uniäo Democratica 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 Revolucionaria de Timor-
Leste Independente (FRETILIN;; this movement initially bore a different
name), which advocated independence; and the Associaçäo Popular
Democratica Timorense (APODETI) which favoured integration with
Indonesia. Later, the UDT joined a group of pro-Indonesian parties col-
lectively 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

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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’état. The
FRETILIN responded by staging a counter-coup. The capital of the Ter-
ritory, 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 pur-
sue their conflicting policies regarding the Territory’s future, Portugal
made preparations for further talks with and among them. But the situa-
tion became yet more complex when in November 1975 the MAC pro-
claimed the integration of East Timor with Indonesia and on 28 Novem-
ber 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-determi-
nation (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 authori-
ties 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), sev-
enth, eighth and ninth preambular paragraphs; that resolution was sub-
sequently recalled in resolution 389 (1976)). Equally, the General Assem-
bly “/s/trongly deplore{d] the military intervention” (resolution 3485
(XXX), para. 4). In its subsequent resolution (31/53, para. 4) the Assem-
bly reiterated the same strong regret in view of “the persistent refusal of
the Government of Indonesia to comply with the provisions” of the fore-
going 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-

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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” (resolu-
tions 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-determina-
tion and independence” (resolution 35/27, para. 3). In 1981 the Assembly
noted

“the initiative taken by the Government of Portugal, as stated in the
communiqué of the Council of Ministers of Portugal issued on
12 September 1980, and invite[d] the administering Power to con-
tinue 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 Inde-
pendence 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 practi-
cally 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 resolu-
tions “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.

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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 exam-
ined 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 inte-
gration (United Nations document S/12097, Ann. IT). 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 Indo-
nesia. 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 Indo-
nesia, 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.

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233 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

25. The Judgment points out that Australia recognized the incorpora-
tion 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. J 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” (Rejoin-
der, 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 Zea-
land, 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
States which granted recognition 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 sov-
ereignty 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 conti-
nental shelf between Australia and Indonesia. No boundary was estab-
lished 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 acknowledgment 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

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234 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

East Timor, was a matter for Australia and this Territory alone.
Moreover, such an acknowledgment is fully borne out by the con-
tacts established between Australia and Portugal, between 1970 and
1974, concerning the formal opening of negotiations for the delimi-
tation 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 Com-
pany Ltd.”

30. The attitude of Australia changed after Indonesia took over actual
control of East Timor. In 1979 Australia and Indonesia started negotia-
tions 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 Cooperation 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 Cooperation”, covering some 67,800 km, is divided into three
“areas”: Area A in the centre (the largest, at approximately 62,000 km’),
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 des-
tined for joint exploration, exploitation and jurisdiction. For this pur-
pose, 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.

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.

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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). Australia 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 man-
ner. 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 madmissibility 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. Shar-
ing the views expressed by Judge Morelli in the South West Africa cases,
Preliminary Objections, Judgment U.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”:

“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 lat-
ter 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

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a still subsisting legal situation” (Northern Cameroons, Judgment,
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 Coun-
cil) and is now called “The Question of East Timor”. By using in its reso-
lutions 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
General 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 Aus-
tralia. Among the countries recognizing the incorporation of East Timor
into Indonesia Australia went furthest in the consequences of its 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.

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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 . . . exer-
cise 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 inadmis-
sible” (CR 95/15, p. 56, 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 decid-
ing on the alleged responsibility of Australia. The Judgment relies on the
decision in Monetary Gold Removed from Rome in 1943 (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 juris-
diction 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 pos-
sesses “a measure of discretion . . . to decline to decide a case”; but it
should be “sparingly used” !.

43. With respect, I submit that the Court should have resolved the dis-
pute 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

l The Law and Practice of the International Court, 2nd rev. ed., 1985, p. 305.

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between law and justice is perennial. The Court has constantly been look-
ing 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 ele-
ments of the constitution of the organization and with certain fundamen-
tal 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” !.

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 [interna-
tional 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 develop-
ment, of a kind which will restore dignity to [the] peoples [of ‘new States’]
and put an end to relationships of domination” ?.

45. Does the Judgment give sufficient expression to the law so under-
stood? 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 contempo-
rary 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”*. The Court should and can look ahead. Otherwise there
would not be decisions such as the one in the case concerning Reparation
for Injuries Suffered in the Service of the United Nations.

47. I think that what Judge ad hoc Lauterpacht said in the case con-

1 José Sette-Camara, “Methods of Obligatory Settlement of Disputes”, in M. Bedjaoui
(ed.), International Law: Achievements and Prospects, 1991, p. 542.

2 M. Bedjaoui, General Introduction, op cit., pp. 1, 14 and 15, respectively.

3 Lectures on the Relation between Law and Public Opinion in England during the Nine-
teenth Century, 1905, pp. 32 and 367.

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cerning the Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide is applicable to the present case:

“the Court should [not] approach it with anything other than its tra-
ditional 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 con-
structive 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 posi-
tive 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 say-
ing 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 prin-
ciples covered by the first submission of Portugal. The present treat-
ment 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-

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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 that “it is the duty of the Court
... to reply to the questions as stated in the final submissions of the
parties...” (C.J. Reports 1950, p. 402)!. 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.

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 assump-
tions: 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
the use of force; when the active participation of the people is guaran-
teed, in contradistinction to arrangements arrived at by some States
alone with the exclusion of the people and/or the United Nations Mem-
ber 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 Por-
tuguese submissions (2) to (5). For these problems are part of self-deter-
mination. 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.

' The 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.

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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 sub-
mission can stand autonomously. The Court can and in fact, in its prac-
tice, 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 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 pri-
marily 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 require-
ments would be threatened if the Court decided to take up the first sub-
mission. 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 Portu-
gal as administering Power of East Timor. Consequently, Portugal
has the capacity to act before the Court in this case on behalf of East
Timor.

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(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 Removed from Rome in 1943, Judgment,
LLC 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 (Nauru
v. Australia), Preliminary Objections, Judgment, I C.J. Reports 1992,
p. 261, para. 55; ibid., p. 296, Judge Shahabuddeen, separate opinion).
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 jurisdic-
tion, 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 pro-
tected 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.c., Indonesia. The
Court has jurisdiction.

61. In Land, Island and Maritime Frontier Dispute (El Salvador/Hon-
duras), Application to Intervene, the Chamber of the Court left no doubt

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as to the relevance of the distinction indicated in paragraphs 59 and 60
above. The Chamber interpreted the finding in the Monetary Gold case:

“while the presence in the Statute of Article 62 might impliediy
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.” (LC.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., p. 122, paras. 72
and 73).

62. The criterion of the “very subject-matter of the decision” is con-
clusive 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 circum-
stances of the Monetary Gold case probably represent the limit of the
power of the Court to refuse to exercise its jurisdiction”; otherwise,
J 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 (Con-
tinental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permis-
sion to Intervene, Judgment, I. C.J. Reports 1984, p. 25, para. 40; empha-
sis 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 inter-
pretation of the Monetary Gold rule. One might even say: an interpreta-
tion 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 Trus-
teeship 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-

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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.” (C.J. Reports 1992, pp. 261-262, para. 55.)

63. There is room for applying the concept inherent in the foregoing
dictum in Certain Phosphate Lands in Nauru to the present case: no find-
ing 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 prerequi-
site”).

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 juris-
diction 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 judg-
ments. 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-

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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 for-
ward 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 U.C.J. Reports 1954, p. 33), do not concern the
international responsibility of a third State, 1.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 Indo-
nesia 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, 1.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 ficti-
tious and not a genuine one.

69. In the case concerning Military and Paramilitary Activities in and
against Nicaragua, 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 inter-
national tribunals, of an ‘indispensable parties’ rule of the kind
argued for by the United States, which would only be conceivable in

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parallel to a power, which the Court does not possess, to direct that
a third State be made a party to proceedings.” (Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, I. CJ.
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 case concerning Military and Paramilitary
Activities in and against Nicaragua 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 Chap-
ter 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 rele-
vant resolutions of the General Assembly and the Security Council!.

71. Under the law and in the practice of the Organization the imple-
mentation of Chapter XI of the Charter is part and parcel of the func-
tions of the General Assembly. In at least some issues falling under that
Chapter Member 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 Ter-
ritory”. This was not a recommendation. In the Namibia case, the Court
explained:

“it would not be correct to assume that, because the General Assem-
bly is in principle vested with recommendatory powers, it is debarred
from adopting, in specific cases within the framework of its compe-
tence, resolutions which make determinations or have operative

' The Memorial speaks of “une donnée” (a “given”) of which “the Court will only need
to take note”. This “donnée” 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).

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247 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

design” (Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), 1 C.J. Reports 1971, p. 50,
para. 105).

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 differ-
ent angle. The Court neither denies nor confirms their binding force. The
Court says:

“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.” (Judgment,
para. 32.)

But in one, rather significant, instance the Court has recourse to a
“given”: it follows the United Nations resolutions and qualifies Indo-
nesian 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 continen-
tal shelf of East Timor”. An examination limited to that problem obvi-
ously 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 subpara-
graph 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 dif-
ficult 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 the 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 Por-
tugal’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 Appli-
cation of the 1971 Montreal Convention arising from the Aerial Incident

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at Lockerbie U.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 point-
ing to a different solution (see ibid., dissenting opinions, pp. 33 ef 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 deci-
sion by the United Nations validating its consequences or until there is
universal recognition.

78. The law of the United Nations is binding on all Member 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 Timor-
ese people to freely determine their future and the position of the admin-
istering 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” (Judgment, 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 coun-
try which has an interest in the case (although it made no request con-
cerning its possible intervention), is not a precondition of adjudication. If
the contrary were true, the Court would practically be barred from decid-
ing 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-

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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 Indo-
nesia. 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 essen-
tial requirement that, in the judicial proceedings devoted to that exami-
nation and determination, Indonesia be a party. It is enough for Portugal
to prove its claim against Australia.

81. The conclusion is that Indonesia is not a necessary party, 1.e., one
without whose participation the Court would be prevented by its Statute
from entertaining the Application. Nor is Indonesia the “true” party!.
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.

Subject-matter of the decision

82. The rights of Indonesia could not, need not and would not consti-
tute 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 imagi-
nary 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) con-
formed to rules of law governing East Timor. That problem can be
decided by the Court without linking its decision to any prior or simul-
taneous finding on the conduct of another State (Indonesia) in the same
matter. To exercise jurisdiction with regard to Australia it is not neces-
sary for the Court to decide on the question of Indonesian duties con-
cerning the Territory.

83. In the case concerning Military and Paramilitary Activities in and
against Nicaragua, the Court said:

‘ 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 the interested States with regard to the
“Question of East Timor”, and not with regard to a future Court case, whatever its rami-
fications. For a contrary view, see Counter-Memorial, paras. 214 and 215.

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“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’ (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.”
(Military and Paramilitary Activities in and against Nicaragua
{Nicaragua v. United States of America), Jurisdiction and Admissi-
bility, Judgment, 1 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 case concerning Military and Paramilitary Activities in and
against Nicaragua (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 non-controversial rule (or principle) of the consen-
sual basis of jurisdiction. The Court has been corroborating this rule
since the very outset of its activity (cf. Corfu Channel case, Preliminary
Objection, Judgment, I. C.J. Reports 1948, p. 27). It is a rule of its Stat-
ute, 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 Removed
from Rome in 1943, Judgment, 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 com-
mitted 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
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

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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 pro-
ceedings. The Court, as already indicated (para. 70 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 Nations!. 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”.

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 lawful-
ness, 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 pronounce-
ments 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 reso-
lutions. 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),

! That 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.

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Application for Permission to Intervene, Judgment, 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” (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 incorpo-
ration 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. 59 and 62
above). But the said decision is implicit in the description of the Indo-
nesian 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 admini-
stration of East Timor at and since 11 December 1989, ï.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 Indo-
nesia’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-a-vis Aus-
tralia and the claims Portugal has or might have made elsewhere against

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Indonesia (1.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 exist-
ing) 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 Phos-
phate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
Judgment, I.C.J. Reports 1992, p. 297, separate opinion).

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.” (1 C.J. Reports 1992, pp. 296-297.)

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 determina-
tion 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 par-
ticipation 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-

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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 per-
formance 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 contradistinc-
tion 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 Ar-
ticle 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, conclu-
sion 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 judi-
clary, 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 espe-
cially 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 its maritime rights and taking steps
to preserve its natural resources, Australia had (in the circumstances)
some obligations towards the Territory: it dealt not with the administer-
ing 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 equat-
ing 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

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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 jurisdic-
tion. In view of its conclusion, there was no room for considering admis-
sibility. 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, its “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 D.

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” !. East Timor is such an entity.

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.

! Tan Brownlie, Principles of Public International Law, 4th ed., 1990, pp. 466-467.

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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, it still remains the State which has respon-
sibility for East Timor. This standing follows from the competence Por-
tugal has in its capacity as administering Power. One of the basic ele-
ments 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 Chap-
ter 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 Chap-
ter 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 Mem-
bers: the Members wish the tasks set down in Chapter XI to be accom-
plished. 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 distin-
guished 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 Presi-
dent Winiarski with regard to having “a subjective right, a real and exist-
ing individual interest which is legally protected” (South West Africa,

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Preliminary Objections, Judgment, 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,
Judgment, I.C.J. Reports 1963, p. 106, separate opinion).

The Charter does not provide any guidance as to the problem which legal
disputes “politically speaking might be considered as prima facie suitable
for judicial settlement .. .”'. 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.

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 co-ordinated with the
United Nations, which are or can be related to the task of self-determina-
tion. 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 respon-
sibility, including the choice of means, is a matter to be decided by the
administering Power acting alone or in conjunction with the United
Nations.

' Cf. S. Rosenne, The Law and Practice of the International Court, 2nd rev. ed., 1985,
p. 92.

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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 adju-
dicate. A policy of abstention does not seem a better solution. Consid-
erations 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 inter-
national 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, Judgment, I.C.J. Reports 1963, p. 38). In other
words, adjudication on the merits will be consistent with the Court’s judi-
cial 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, Judgment, 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 Mor-
elli, 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, and
CR 95/15, p. 51, para. 9, Professor 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 negotia-
tion” (Counter-Memorial, para. 316), it is not true that the dispute

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submitted to the Court (which should be distinguished from the “under-
lying” 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” !.

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.

IV. THE TERRITORY OF EAST TIMOR
A. Status

113. “The Court recalls .. . that it has taken note in the present Judg-
ment (paragraph 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 politi-
cal approach and the effect of the search for a solution through channels
other than the Security Council or the General Assembly. The constitu-
tional position under Chapter XI of the Charter has not changed. Nor

' “Comité restreint sur le règlement pacifique des différends. Note préliminaire”, Insti-
tute of International Law, Yearbook, Vol. 65, Part Il, Session of Milan, 1993, Pedone,
Paris, 1994, p. 281.

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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 under-
stand how, at the same time, Australia argues the effectiveness of the
incorporation of East Timor into Indonesia, and in particular the contri-
bution made to this effectiveness by acts of recognition of that incorpora-
tion. 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 intro-
duced in presenting this part of the case, it must be assumed, on the
strength of its words, that it acknowledges that East Timor is still a
non-self-governing territory. “Australia has never recognized the legal-
ity 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:

“Australia recognizes that the people of East Timor have the right
to self-determination under Chapter XI of the United Nations Char-
ter. East Timor remains a non-self-governing territory under Chap-
ter 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.)

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 140 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.

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261 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

119. First, there is the basic difficulty in reconciling Australia’s recog-
nition of Indonesian sovereignty with the continuing status of non-self-
government, a difficulty all the greater since Indonesia denies the exist-
ence 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 coun-
tries (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 Declaration!.

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 Indo-
nesia 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, 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” (Judg-
ment, 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 Indo-
nesian 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

! “The territory of a colony or other non-self-governing territory has, under the Char-
ter, 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.”

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262 EAST TIMOR (DISS. OP. SKUBISZEWSKI)}

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 per-
spective 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 con-
sent 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 vari-
ous “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 prob-
lem 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 development!. The rule or, as Sir Hersch Lauterpacht
says’, 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 prin-
ciple of which it is a corollary, ie., the principle of the non-use of force.
In that hypothesis non-recognition would acquire the rank of a peremp-
tory norm of that law (jus cogens). But that is a future development
which is uncertain and has still to happen. The Friendly Relations Dec-
laration? correctly states the law on the subject: “No territorial acquisi-
tion resulting from the threat or use of force shall be recognized as legal.”

'R. Langner, Seizure of Territory. The Stimson Doctrine and Related Principles in
Legal Theory and Diplomatic Practice, 1947.

2 Recognition in International Law, 1947, Chap. XXI.

3 Declaration 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 Gen-
eral Assembly. The rule figures in the section dealing with the prohibition of use of force.

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263 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

Contrary to what has been asserted (Counter-Memorial, para. 365;
Rejoinder, para. 74) the obligation not to recognize 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.

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), paragraph 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 Assem-
bly 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-recognition!. Sometimes less precise language was used: it was
said during the oral pleadings that Australia “recognized the presence of
Indonesia in East Timor” (CR 95/8, p. 10, para. 3, Professor Pellet).
Strictly speaking “presence” could mean less than “sovereignty”.

! Senator Gareth Evans, Minister for Resources and Energy (as he then was), made the
following statement in the Australian Senate on 20 March 1986:

“T 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 recogni-
tion, 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 IIT.28.)

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264 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

128. The Australian justification was expressed in the following
terms:

“As a practical matter, Australia could not have avoided the deci-
sion 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 legiti-
mate 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 argu-
ment, 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 dis-
cretionary nature of the act has been changed by the rule on the prohibi-
tion of the threat or use of force.

130. As indicated above (para. 125) the rule of non-recognition oper-
ates 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 interna-
tional 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 declara-
tion 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 sover-
elgnty 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 its 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, con-
trary to Australia’s view (Counter-Memorial, para. 350), means more
than mere acknowledgment 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 the territory”.

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265 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

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 collectivi-
sation of the process, possibly through the United Nations itself . . .”!.
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.

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 ele-
ment, 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 fac-
tual configuration. Even in apparently hopeless situations respect for the
law is called for. In such circumstances that respect should not mean tak-
ing an unrealistic posture. History gives us surprises. Contemporary his-
tory has shown that, in the vast area stretching from Berlin to Vladivos-
tok, 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 (paragraph 31) that, for the two Parties, . . . [the]
people [of East Timor] has the right to self-determination” (para. 37).

! The Acquisition of Territory in International Law, 1963, p. 61.

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266 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

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 découlent les autres principes qui régissent la société inter-
nationale”). It is part of jus cogens; consequently, the “international com-
munity could not remain indifferent to its respect” (“la communauté inter-
nationale ne pouvait pas rester indifférente 4 son respect”). States, both
“individually and collectively”, have the duty to contribute to decoloniza-
tion which has become a “matter for all” (“une affaire de tous”)'. Accord-
ing to Judge Ranjeva “[t]he inalienability of the rights of peoples means
that they have an imperative and absolute character that the whole inter-
national order must observe”?. Judge Mbaye interprets self-determination
in conjunction with “the principle of inviolability of borders”?. That link
additionally emphasizes the incompatibility of the forcible incorporation of
a non-self-governing territory with the requirement of self-determination.

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 particu-
lar, the duty to comply with the principle of self-determination in regard
to East Timor does not rest with Portugal and Indonesia alone. Depend-
ing 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 itself 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-determina-
tion 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 imple-
mentation of the principle . . .”

! M. Bedjaoui, in J.-P. Cot and A. Pellet (eds.), La Charte des Nations Unies, 2nd ed.,
1991, pp. 1082-1083.

2 Raymond Ranjeva, “Peoples and National Liberation Movements”, in M. Bedjaoui
(ed.), International Law: Achievements and Prospects, 1991, p. 105, para. 16.

3 Kéba Mbaye, Introduction (to Part Four, “Human Rights and Rights of Peoples”),
ibid., p. 1055, para. 62.

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267 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

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 its acknowledgment 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 sub-
sequently 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 con-
text, 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 meas-
ures 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 the Foreign Minister explained “the framework of sovereignty”,
indicating that:

“The situation is that before 1975 Australia recognized Portu-
guese sovereignty over East Timor while, at the same time, simulta-

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268 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

neously recognizing 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 formalized 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.” (Current Senate Hansard, Database, p. 572.)

This time the Minister referred to the whole gamut of solutions:

“[Slelf-determination can involve a number of quite different out-
comes, 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 recognizes 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; . . .” (Ibid. )

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 declara-
tory) 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 perma-
nency of incorporation, while self-determination is, in fact, suspended.
Recognition has its petrifying impact. “[The question remains” said
George H. Aldrich, Deputy Legal Adviser, United States 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 incor-
poration, 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. ).

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269 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

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-govern-
ing 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 appear-
ing 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 administra-
tion 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 terri-
tory. 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-govern-
ing territories’ is derived from the United Nations Charter itself (see the
title to 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 “Car-
nation Revolution”) Portugal has reiterated its view that it has “no terri-
torial claims whatsoever to East Timor” (e.g., United Nations docu-
ment A/36/PV.6, para. 264). 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 sixteenth 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

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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 pre-
rogatives in regard to sovereignty and administration. The preroga-
tives 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 comple-
tion of the decolonization process. The process was nevertheless not
completed by the scheduled date"! 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 incom-
patible with the ‘otherness’ of East Timor and the right to self-
determination of the Timorese people.” (Reply, para. 4.54.)

145. It may be added that the renunciation of sovereignty has some-
times 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 trea-
ties 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 itself a duty to pursue the interests of
the people of East Timor, but did not divest itself of sovereignty.

146. Here the distinction between sovereignty and its exercise is a use-
ful 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

! Under Article 5, paragraph 1, of Constitutional Law 7/75 “the third Sunday of Octo-
ber 1978” was fixed as the date for the completion of decolonization.

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271 EAST TIMOR (DISS. OP. SKUBISZEWSKI)

the Charter and the Declaration. The State has remained sovereign. The
said provision imposes restrictions on the exercise of the State’s sover-
eignty. These restrictions are far-reaching. Portugal rightly referred to its
“prerogatives [of] sovereignty” (para. 75 above), though on occasions it
has avoided the word “sovereignty” in describing its position with regard
to East Timor. Instead it has used the terms “jurisdiction” (CR 95/4,
p. 10, para. 2, Co-Agent, counsel and advocate of Portugal, J. M.S. Cor-
reia), and “authority” (CR 95/12, p. 44, para. 3, idem). Nonetheless
Portugal explains that the

“Administering Powers are independent States which keep their
attributes as such when they act on the international scene in rela-
tion 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-determina-
tion of the people concerned. Portugal stresses that the people of the Terri-
tory is “the holder of the sovereignty inherent in the capacity to decide for
itself its future international legal status” (CR 95/4, p. 13, para. 6, idem)
and that “the international law of decolonization has transferred the
sovereignty relating to such territories to their own peoples” (CR 95/12,
p. 44, para. 3, idem). 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 “sov-
ereignty” 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 its capacity of administer-
ing 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 its 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 Char-
ter 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-

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tion. There is no “appointment” or election to the “function” of admin-
istering 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 its
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 con-
trol over the Territory in question no doubt resulted in the actual dis-
appearance 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. the case concerning Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advi-
sory Opinion, 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 that

“Portugal did not make any attempt to prevent or repel the Indo-
nesian 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 responsi-
bilities as administering Power.” (Counter-Memorial, para. 41.)

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-

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tion from the capital prevented any involvement of the Portuguese
authorities in the fighting among East Timorese factions. Such involve-
ment 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 its disposal in East Timor to offer any resistance: the Governor was
left with two platoons of parachutists. Apart from the factual impossibil-
ity, it was probably in the interest of all concerned not to extend or inten-
sify the military operations. When the invasion took place Portugal had
no other choice but to withdraw its 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 its decision
to continue to exercise the function of the administering authority. At the
same time the Organization did not release Portugal from its 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 reso-
lutions on East Timor. The status could be changed only by an explicit
decision, including acknowledgment that another State (ï.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-govern-
ment (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

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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 presen-
tation 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 pre-
requisite 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

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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 imple-
mentation of the Treaty is an everyday concern. While the post-adjudi-
cative phase is not part of the function of the Court, there is no basis for
anticipating non-compliance. Australia has been praised for its 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 pro-
hibition 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. Its 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 dis-
missed 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 (1.e., one
which is netther the administering Power nor controls the Territory de
facto) concludes a treaty or enters into another arrangement which con-
cerns 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 reso-
lution 389 (1976), para. 5; these resolutions were reaffirmed by the Gen-
eral 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 legiti-
mate representatives of the Territory. Finally, some other duties may fol-
low 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.

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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 sta-
tus of the Territory, in particular from the requirement of self-determina-
tion. Depending on the result of the analysis, there may indeed be res-
ponsibility. 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 indepen-
dent 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, it 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 Por-
tuguese 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 Por-
tugal as administering Power of East Timor. Consequently, Portu-
gal 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, includ-
ing 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 vir-
tue 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.

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(4)

(5)

(6)

(7)

(8)

(9)
(10)

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EAST TIMOR (DISS. OP. SKUBISZEWSKI)

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.

Portugal is the administering Power of East Timor, and Australia,
like any other State, is under a duty to respect that position of Por-
tugal. The fact that Portugal lost the territorial administration of
East Timor did not deprive it of other attributes of its competence
which are relevant to this case. Portugal did not abandon its respon-
sibilities as administering Power. Portugal continues to hold the
“sacred trust” under Chapter XI of the Charter.

In protecting its maritime rights and interests Australia cannot
avoid acting in conformity with the duties which it has 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 its
duties.

Australia did not make recourse to any of the available United
Nations mechanisms, and particularly consultations on the negotia-
tion of the Timor Gap Treaty and on how the Treaty could be put
into effect without prejudice to the people of East Timor. In par-
ticular, 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.

In some respects (subpara. 7) Australia’s conduct did not conform
to its 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 par-
ticular, the Court could enjoin Australia that in applying and imple-
menting the Timor Gap Treaty it should fully respect the rights
of the East Timorese people in view of that people’s future self-
determination.

There is no evidence of any material damage at present; therefore,
no reparatory provision can be imposed on Australia.

The Treaty would not be opposable to an independent or autono-
mous East Timor.

(Signed) Krzysztof SKUBISZEWSKI.