489

DÉCLARATION DE M. LE JUGE REZEK

Rares sont les affirmations, en droit international classique, caractéri-
sées par autant d’inconsistance — et une inconsistance aussi peu admis-
sible sur le plan moral — que celles qui voudraient que les accords
conclus dans le passé entre des puissances coloniales et des communautés
indigènes — maîtresses de leurs territoires depuis des siècles, organisées et
soumises à une autorité reconnue — ne soient pas des traités, parce que
«les chefs et les tribus indigènes ne sont ni des Etats ni des organisations
internationales, et n’ont donc pas la capacité de conclure des traités»
(The Law of Treaties, 1961, p. 53). En employant ce langage pour expri-
mer la doctrine prédominante dans l’Europe de son temps, Arnold
McNair a néanmoins signalé que la question avait été comprise de
manière différente aux Etats-Unis, où la qualité de nations étrangères fut
reconnue aux communautés indigènes jusqu’à la promulgation de I’ Indian
Appropriations Act du 3 mars 1871, loi qui plaça ces communautés sous
la tutelle de l’Union et les intégra à celle-ci. Quant aux accords que ces
communautés avaient conclus avec le Gouvernement fédéral, ils étaient
considérés comme des traités et devaient être honorés comme tels — et
s’il fallait par ailleurs les interpréter, la Cour suprême appliquerait la
règle contra proferentem.

Dans l'affaire du Sahara occidental, la Cour semble avoir rejeté l’idée
qu'un pouvoir européen puisse s'approprier unilatéralement un territoire
occupé par des communautés indigènes. Elle a en effet estimé que même
des tribus nomades, présentes sur un territoire et dotées d’une organisa-
tion sociale et politique, possédaient une personnalité suffisante, au regard
du droit international, pour que leur territoire ne soit pas une terra nul-
lius. Le titre de souveraineté sur un territoire ainsi peuplé ne peut donc
pas, selon cette jurisprudence, être acquis par occupation, mais unique-
ment «au moyen d'accords conclus avec des chefs locaux» (CZ J. Recueil
1975, p. 39, par. 80).

Dans la présente affaire, la presqu’ile de Bakassi faisait partie du
domaine du Vieux-Calabar, soumis à l’autorité originaire de ses rois et
chefs. L’Etat demandeur lui-même, paradoxalement contraint par les cir-
constances de reprendre à son compte quelques adages particulièrement
inacceptables du discours colonialiste, a essayé de mettre en doute l’exis-
tence et l’indépendance d’une telle autorité, en ayant recours à des consi-
dérations qui les confirment plutôt. Par ailleurs, seul le traité de 1884,
conclu avec cette forme d’autorité locale, aurait pu justifier les fonctions
assumées par la Grande-Bretagne lorsqu'elle devint l'Etat protecteur de
ces territoires. Car, si les rois et chefs du Vieux-Calabar n'avaient pas
qualité pour conclure un engagement international, si le traité de 1884

190
490 FRONTIÈRE TERRESTRE ET MARITIME (DÉCL. REZEK)

n'était pas un traité et n’avait point de valeur juridique, il convient de se
demander sur quelle base la Grande-Bretagne a pu asseoir son autorité
sur ces territoires, en vertu de quel mystérieux droit divin s’est-elle érigée
en Etat protecteur de ces espaces africains.

Par la force du traité de 1884, la Grande-Bretagne s’est dotée d’un pou-
voir de contrôle sur les relations extérieures de la nation africaine, sans
s’attribuer le pouvoir de négocier en son nom, moins encore celui de tran-
siger ou de renoncer à quoi que ce soit lors d’une négociation internatio-
nale, et surtout pas celui d’aliéner une partie quelconque de son territoire.
Le défaut de légitimité qui caractérise l'acte de cession fait que le traité
anglo-allemand du 11 mars 1913 ne saurait être valable là où, définissant
le dernier secteur de la frontière terrestre, il décide du sort de Bakassi.

Cependant, le vice du dispositif concernant la presqu'île de Bakassi ne
remet pas en cause la validité du reste du traité. Nous sommes ici devant
le cas prévu à l’article 44, paragraphe 3, alinéa a), de la convention de
Vienne sur le droit des traités, qui pourrait d’ailleurs être écarté, en prin-
cipe, par l'application éventuelle de l’alinéa qui suit, s’il était possible
d'établir que la cession de Bakassi était une condition essentielle du
consentement de l’Allemagne à l’égard du reste du traité; mais, pour
autant que je me souvienne, nul n’a affirmé qu’il en fût ainsi.

*
* *

En outre, je n’arrive pas a considérer que la déclaration de Maroua du
I* juin 1975 constitue un traité et, partant, à en tirer les conséquences.
J'ai même quelque difficulté à y voir un traité qui aurait été conclu mais
qui simplement ne serait pas entré en vigueur, faute de ratification par les
deux parties. J’y vois plutôt une déclaration des deux chefs d’Etat, faisant
suite à d’autres déclarations analogues demeurées sans lendemain, ce qui
prouve qu'elles n'étaient pas définitives en tant que sources de droit. Il est
exact que l’adoption formelle du document par les organes investis du
treaty-making power aurait donné naissance à un instrument convention-
nel. Je veux dire qu’un texte, quel que soit son intitulé ou sa forme, quelle
que soit la procédure suivie pour sa négociation, peut de toute évidence
devenir un traité si les organes compétents des parties expriment finale-
ment leur consentement. Ici, l'Etat défendeur a soutenu, sans contesta-
tion, que la déclaration de Maroua n’avait pas été ratifiée par le Nigéria,
faute d'approbation par l'organe compétent, à la lumière de la Constitu-
tion en vigueur à l'époque.

La convention de Vienne est d’une remarquable simplicité lorsqu'elle
définit les circonstances exceptionnelles dans lesquelles un Etat peut nier
la valeur juridique d’un traité en raison d’un vice du consentement de
cette espèce. Il faut bien que la norme interne, dont l’application a été
méconnue, soit une norme fondamentale, et que sa violation ait été mani-
feste, c’est-à-dire qu’il s'agisse d’une violation qui ne pouvait manquer
d’être relevée par l’autre partie dans des circonstances normales. Or je
suis d’avis que le Cameroun n’était nullement en droit de croire que la

191
491 FRONTIÈRE TERRESTRE ET MARITIME (DÉCL. REZEK)

déclaration en cause était vraiment un traité achevé, en vigueur le jour
même de sa signature. Je ne connais pas d’ordre juridique qui autoriserait
le gouvernant à conclure seul, de manière définitive, et à mettre en
vigueur, sur la base de sa seule autorité, un traité concernant une fron-
tière, donc le territoire de l'Etat, qu'il soit terrestre ou maritime. Je me
demande s’il y a une partie du monde où ce non-respect des formalités les
plus élémentaires serait compatible avec le caractère complexe et éminent
d’un traité de frontière international.

Il est normal, dans un débat de cette nature, que l’on évoque l'affaire
du Statut juridique du Groënland oriental (C.P.J.I. série A/B n° 53,
p. 22}. On oublie parfois que la Cour n’a jamais dit que, parmi les modes
de conclusion des traités, on trouvait la formulation orale. La Cour n’a
pas dit que la déclaration Ihlen était un traité. Elle a dit que les garanties
données par le ministre norvégien à l'ambassadeur danois engageaient la
Norvège. Il y a donc d’autres modes, moins formalistes, par lesquels un
Etat peut créer pour lui-même des obligations internationales. Là n’est
pas la question. Ce qu’il faut se demander, c’est si un engagement inter-
national relatif à la détermination d’une frontière peut prendre une forme
autre que celle du traité au sens étroit, même lorsque les espaces terrestres
ou maritimes concernés sont peu étendus, ou lorsque ladite frontière n’est
pas caractérisée par une longue histoire de contestations et d’incertitudes.

Je ne puis donc m’associer à la majorité en ce qui concerne la souve-
raineté sur la presqu'île de Bakassi et les eaux adjacentes. A mon sens, ces
espaces relèvent de la souveraineté de l’Etat défendeur.

(Signé) Francisco REZEK.

192


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A
L’INCIDENT AERIEN DU
27 JUILLET 1955

(ISRAEL c. BULGARIE)

ORDONNANCE DU 17 DÉCEMBRE 1958

1958

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
AERIAL INCIDENT OF
JULY 27th, 1955

(ISRAEL v. BULGARIA)

ORDER OF DECEMBER 17th, 1958
La présente ordonnance doit étre citée comme suit:

« Affaire relative à Vincident aérien du 27 juillet 1955
(Israël c. Bulgarie},
Ordonnance du 17 décembre 1958: C. I. J. Recueil 1958, p. 163.»

This Order should be cited as follows:

“Case concerning the Aerial Incident of July 27th, 1955
(Israel v. Bulgaria),
Order of December 17th, 1958: I.C.J. Reports 1958, p. 163.”

N° de vente: 902
Sales number

163

INTERNATIONAL COURT OF JUSTICE

YEAR 1958

December 17th, 1958

CASE CONCERNING THE
AERIAL INCIDENT OF
JULY 27th, 1955

(ISRAEL v. BULGARIA)

ORDER

The President of the International Court of Justice,

having regard to Article 48 of the Statute of the Court and to
Article 62 of the Rules of Court;

Having regard to the Application filed in the Registry on
October 16th, 1957, whereby the Government of Israel instituted
proceedings against the Government of the People’s Republic of
Bulgaria ;

Having regard to the Order of November 26th, 1957, fixing
June 2nd, 1958, as the time-limit for the filing of the Memorial of
the Government of Israel;

Having regard to the Order of January 27th, 1958, fixing
December gth, 1958, as the time-limit for the filing of the Counter-
Memorial of the Government of Bulgaria;

Having regard to the Memorial filed by the Government of
Israel within the time-limit fixed;

Whereas on December 6th, 1958, the Government of Bulgaria
filed a document setting forth certain preliminary objections to the
jurisdiction of the Court, contending that the Application is

4

1958
December 17tk
General List:
No. 35
AERIAL INCIDENT (ISRAEL %. BULGARIA) (ORDER 17 XII 58) 164

inadmissible and reserving the right to develop other contentions
relating to admissibility and to jurisdiction should the occasion
arise;

Whereas, by a telegram of December 8th, 1958, received in the
Registry on December gth, the Government of Bulgaria submitted
in the alternative certain additional objections to the jurisdiction
of the Court;

Whereas both these documents reached the Registry within the
time-limit fixed for the filing of the Counter-Memorial;

Whereas, accordingly, by virtue of the provisions of Article 62,
paragraph 3, of the Rules of Court, the proceedings on the merits
are suspended and a time-limit has to be fixed for the presentation
by the other Party of a written statement of its observations and
submissions on the preliminary objections;

Fixes February 3rd, 1959, as the time-limit within which the
Government of Israel may present a written statement of its obser-
vations and submissions on the objections raised by the Govern-
ment of Bulgaria.

Done in French and in English, the French text being authori-
tative, at the Peace Palace, The Hague, this seventeenth day of
December, one thousand nine hundred and fifty-eight, in three
copies, one of which will be placed in the archives of the Court
and the others transmitted to the Government of Israel and to the
Government of the People’s Republic of Bulgaria, respectively.

(Signed) Helge KLAESTAD,
President.

(Signed) GARNIER-COIGNET,
Deputy-Registrar.


                      COUR INTERNATIONALE DE JUSTICE

                          RECUEIL DES ARRÊTS,
                   AVIS CONSULTATIFS ET ORDONNANCES

                    DÉLIMITATION MARITIME
                   DANS LA MER DES CARAÏBES
                     ET L’OCÉAN PACIFIQUE
                       (COSTA RICA c. NICARAGUA)

                      ORDONNANCE DU 16 JUIN 2016

                             2016
                      INTERNATIONAL COURT OF JUSTICE

                        REPORTS OF JUDGMENTS,
                     ADVISORY OPINIONS AND ORDERS

                    MARITIME DELIMITATION
                     IN THE CARIBBEAN SEA
                    AND THE PACIFIC OCEAN
                       (COSTA RICA v. NICARAGUA)

                         ORDER OF 16 JUNE 2016

4 CIJ1098.indb 1                                       23/02/17 08:55

                                           Mode officiel de citation :
                       Délimitation maritime dans la mer des Caraïbes et l’océan Pacifique
                            (Costa Rica c. Nicaragua), ordonnance du 16 juin 2016,
                                           C.I.J. Recueil 2016, p. 240

                                                Official citation :
                        Maritime Delimitation in the Caribbean Sea and the Pacific Ocean
                               (Costa Rica v. Nicaragua), Order of 16 June 2016,
                                           I.C.J. Reports 2016, p. 240

                                                                                1098
                                                                 No de vente:
                   ISSN 0074-4441                                Sales number
                   ISBN 978-92-1-157293-3

4 CIJ1098.indb 2                                                                             23/02/17 08:55

                                                16 JUIN 2016

                                               ORDONNANCE

                    DÉLIMITATION MARITIME
                   DANS LA MER DES CARAÏBES
                     ET L’OCÉAN PACIFIQUE
                   (COSTA RICA c. NICARAGUA)

                    MARITIME DELIMITATION
                     IN THE CARIBBEAN SEA
                    AND THE PACIFIC OCEAN
                   (COSTA RICA v. NICARAGUA)

                                               16 JUNE 2016

                                                 ORDER

4 CIJ1098.indb 3                                               23/02/17 08:55

                                                                                240

                                  INTERNATIONAL COURT OF JUSTICE

                                                   YEAR 2016                                         2016
                                                                                16 June
                                                                                General List
                                                  16 June 2016                                     No. 157

                                  MARITIME DELIMITATION
                                   IN THE CARIBBEAN SEA
                                  AND THE PACIFIC OCEAN
                                       (COSTA RICA v. NICARAGUA)

                                                    ORDER

                      The President of the International Court of Justice,
                       Having regard to Articles 48 and 50 of the Statute of the Court and
                    Article 67 of the Rules of Court,
                       Having regard to the Application filed in the Registry of the Court on
                    25 February 2014, whereby the Republic of Costa Rica (hereinafter
                    “Costa Rica”) instituted proceedings against the Republic of Nicaragua
                    (hereinafter “Nicaragua”) with regard to a dispute concerning maritime
                    delimitation in the Caribbean Sea and the Pacific Ocean,
                       Having regard to the Order made on 31 May 2016, whereby the Court
                    decided that an expert opinion will be obtained, in accordance with Arti-
                    cles 48 and 50 of its Statute, to provide it with information regarding the
                    state of the coast between the point suggested by Costa Rica and the
                    point suggested by Nicaragua in their pleadings as the starting‑point of
                    the maritime boundary in the Caribbean Sea, and that this expert opinion
                    will be entrusted to two independent experts appointed by Order of the
                    President of the Court after hearing the Parties;
                       Whereas, by letters dated 2 June 2016, the Registrar informed the Par-
                    ties of the Court’s decision and of the fact that it had identified two
                    potential experts to carry out the expert mission thus decided, namely
                    Mr. Eric Fouache and Mr. Francisco Gutiérrez, whose curricula vitae
                    were appended to the said letters; and whereas the Parties were invited to

                                                                                4

4 CIJ1098.indb 19                                                                                23/02/17 08:55

                                    maritime delimitation (order 16 VI 16)                   241

                    communicate to the Court any observations they might wish to make on
                    the choice of experts by 10 June 2016, at the latest;
                      Whereas, by a letter dated 10 June 2016, Costa Rica stated that it had
                    no objections to the two experts identified by the Court and that it was
                    ready to provide any necessary assistance to the expert mission;

                       Whereas, in a letter dated 10 June 2016, Nicaragua made no specific
                    observations regarding the two experts identified by the Court, but
                    expressed its full disposition to assist the Court in the organization of the
                    mission;
                       Whereas it is therefore appropriate to appoint the experts, who may
                    inform the Registry, if need be, of any technical assistance which they
                    consider to be required for the performance of their task,
                      Appoints the following two experts:
                      Mr. Eric Fouache, of French nationality, Professor of Geography,
                    Vice‑Chancellor of Paris‑Sorbonne University Abu Dhabi (United Arab
                    Emirates), senior member of the Institut universitaire de France and Pres-
                    ident of the International Association of Geomorphologists;
                      Mr. Francisco Gutiérrez, of Spanish nationality, Professor of Geology
                    and Geomorphology at the University of Zaragoza (Spain), former mem-
                    ber of the Executive Committee of the International Association of Geo-
                    morphologists.

                       Done in French and English, the French text being authoritative, at the
                    Peace Palace, The Hague, this sixteenth day of June two thousand and
                    sixteen, in three copies, one of which will be placed in the archives of the
                    Court and the others transmitted to the Government of the Republic of
                    Costa Rica and the Government of the Republic of Nicaragua, respec-
                    tively.

                                                                (Signed) Ronny Abraham,
                                                                            President.
                                                               (Signed) Philippe Couvreur,
                                                                             Registrar.

                                                                                5

4 CIJ1098.indb 21                                                                                23/02/17 08:55


713

DISSENTING OPINION OF VICE-PRESIDENT
WEERAMANTRY

My opinion in this case is the same, mutatis mutandis, as that which
I have delivered in Yugoslavia v. Belgium.

I do not need to repeat the text of that opinion here and it will suffice
to observe that all that I have said there applies equally to this case, and
should be considered to be incorporated mutatis mutandis in this opinion.

In the result [ dissent from the Court’s Order dismissing the applica-
tion for provisional measures and hold that provisional measures should
have been issued for the reasons and in the manner indicated in my
opinion in Yugoslavia v. Belgium.

(Signed) Christopher G. WEERAMANTRY.

61


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING EAST TIMOR
(PORTUGAL v. AUSTRALIA)

JUDGMENT OF 30 JUNE 1995

1995

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE AU TIMOR ORIENTAL
(PORTUGAL c. AUSTRALIE)

ARRET DU 30 JUIN 1995
Official citation:

East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90

Mode officiel de citation:

Timor oriental (Portugal c. Australie),
arrêt, C.LJ. Recueil 1995, p. 90

Sales number
ISSN 0074-4441 N° de vente:

ISBN 92-1-070724-9

661

1995
30 June
General List
No. 84

90

INTERNATIONAL COURT OF JUSTICE
YEAR 1995

30 June 1995

CASE CONCERNING EAST TIMOR

(PORTUGAL v. AUSTRALIA)

Treaty of 1989 between Australia and Indonesia concerning the “Timor Gap”.

Objection that there exists in reality no dispute between the Parties — Dis-
agreement between the Parties on the law and on the facts — Existence of a
legal dispute.

Objection that the Application would require the Court to determine the
rights and obligations of a third State in the absence of the consent of that State
— Case concerning Monetary Gold Removed from Rome in 1943 — Question
whether the Respondent’s objective conduct is separable from the conduct of a
third State.

Right of peoples to self-determination as right erga omnes and essential prin-
ciple of contemporary international law — Difference between erga omnes char-
acter of a norm and rule of consent to jurisdiction.

Question whether resolutions of the General Assembly and of the Security
Council constitute “givens” on the content of which the Court would not have to
decide de novo.

For the two Parties, the Territory of East Timor remains a non-self-govern-
ing territory and its people has the right to self-determination.

Rights and obligations of a third State constituting the very subject-matter of
the decision requested — The Court cannot exercise the jurisdiction conferred
upon it by the declarations made by the Parties under Article 36, paragraph 2,
of its Statute to adjudicate on the dispute referred to it by the Application.

JUDGMENT

Present: President Bepsaout; Vice-President SCHWEBEL; Judges Opa, Sir
Robert JENNINGS, GUILLAUME, SHAHABUDDEEN, AGUILAR-MAWDSLEY,
WEERAMANTRY, RANJEVA, HERCZEGH, SHI, FLEISCHHAUER, KoroMa,
VERESHCHETIN; Judges ad hoc Sir Ninian STEPHEN, SKUBISZEWSKI;
Registrar VALENCIA-OSPINA.
91 EAST TIMOR (JUDGMENT)

In the case concerning East Timor,
between

the Portuguese Republic,
represented by

H.E. Mr. Antônio Cascais, Ambassador of the Portuguese Republic to the
Netherlands,

as Agent;

Mr. José Manuel Servulo Correia, Professor in the Faculty of Law of the
University of Lisbon and Member of the Portuguese Bar,

Mr. Miguel Galväo Teles, Member of the Portuguese Bar,

as Co-Agents, Counsel and Advocates ;

Mr. Pierre-Marie Dupuy, Professor at the University Panthéon-Assas (Paris II)
and Director of the Institut des hautes études internationales of Paris,

Mrs. Rosalyn Higgins, Q.C., Professor of International Law in the Univer-
sity of London,

as Counsel and Advocates;

Mr. Rui Quartin Santos, Minister Plenipotentiary, Ministry of Foreign
Affairs, Lisbon,

Mr. Francisco Ribeiro Telles, First Embassy Secretary, Ministry of Foreign
Affairs, Lisbon,

as Advisers;

Mr. Richard Meese, Advocate, Partner in Frere Cholmeley, Paris,

Mr. Paulo Canelas de Castro, Assistant in the Faculty of Law of the Uni-
versity of Coimbra,

Mrs. Luisa Duarte, Assistant in the Faculty of Law of the University of
Lisbon,

Mr. Paulo Otero, Assistant in the Faculty of Law of the University of Lisbon,

Mr. Iain Scobbie, Lecturer in Law in the Faculty of Law of the University of
Dundee, Scotland,

Miss Sasha Stepan, Squire, Sanders & Dempsey, Counsellors at Law,
Prague,

as Counsel;

Mr. Fernando Figueirinhas, First Secretary, Portuguese Embassy in the
Netherlands,

as Secretary,
and

the Commonwealth of Australia,

represented by
Mr. Gavan Griffith, Q.C., Solicitor-General of Australia,
as Agent and Counsel;

H.E. Mr. Michael Tate, Ambassador of Australia to the Netherlands, former
Minister of Justice,

Mr. Henry Burmester, Principal International Law Counsel, Office of Inter-
national Law, Attorney-General’s Department,

as Co-Agents and Counsel;
92 EAST TIMOR (JUDGMENT)

Mr. Derek W. Bowett, Q.C., Whewell Professor emeritus, University of
Cambridge,

Mr. James Crawford, Whewell Professor of International Law, University of
Cambridge,

Mr. Alain Pellet, Professor of International Law, University of Paris X-
Nanterre and Institute of Political Studies, Paris,

Mr. Christopher Staker, Counsel assisting the Solicitor-General of Australia,

as Counsel;

Mr. Christopher Lamb, Legal Adviser, Australian Department of Foreign
Affairs and Trade,

Ms Cate Steains, Second Secretary, Australian Embassy in the Netherlands,

Mr. Jean-Marc Thouvenin, Head Lecturer, University of Maine and Insti-
tute of Political Studies, Paris,

as Advisers,

THE Court,

composed as above,
after deliberation,

delivers the following Judgment:

1. On 22 February 1991, the Ambassador to the Netherlands of the Portu-
guese Republic (hereinafter referred to as “Portugal”) filed in the Registry of
the Court an Application instituting proceedings against the Commonwealth of
Australia (hereinafter referred to as “Australia”) concerning “certain activities
of Australia with respect to East Timor”. According to the Application
Australia had, by its conduct, “failed to observe . . . the obligation to respect
the duties and powers of [Portugal as] the administering Power [of East Timor]
...and... the right of the people of East Timor to self-determination and the
related rights”. In consequence, according to the Application, Australia had
“incurred international responsibility vis-à-vis both the people of East Timor
and Portugal”. As the basis for the jurisdiction of the Court, the Application
refers to the declarations by which the two States have accepted the compul-
sory jurisdiction of the Court under Article 36, paragraph 2, of its Statute.

2. In accordance with Article 40, paragraph 2, of the Statute, the Applica-
tion was communicated forthwith to the Australian Government by the
Registrar; and, in accordance with paragraph 3 of the same Article, all the
other States entitled to appear before the Court were notified by the Registrar
of the Application.

3. By an Order dated 3 May 1991, the President of the Court fixed 18 Novem-
ber 1991 as the time-limit for filing the Memorial of Portugal and 1 June 1992
as the time-limit for filing the Counter-Memorial of Australia, and those plead-
ings were duly filed within the time-limits so fixed.

4. In its Counter-Memorial, Australia raised questions concerning the juris-
diction of the Court and the admissibility of the Application. In the course of a
meeting held by the President of the Court on 1 June 1992 with the Agents of
the Parties, pursuant to Article 31 of the Rules of Court, the Agents agreed that
these questions were inextricably linked to the merits and that they should
therefore be heard and determined within the framework of the merits.

6
93 EAST TIMOR (JUDGMENT)

5. By an Order dated 19 June 1992, the Court, taking into account the agree-
ment of the Parties in this respect, authorized the filing of a Reply by Portugal
and of a Rejoinder by Australia, and fixed 1 December 1992 and 1 June 1993
respectively as the time-limits for the filing of those pleadings. The Reply was
duly filed within the time-limit so fixed. By an Order of 19 May 1993, the Presi-
dent of the Court, at the request of Australia, extended to 1 July 1993 the time-
limit for the filing of the Rejoinder. This pleading was filed on 5 July 1993.
Pursuant to Article 44, paragraph 3, of its Rules, having given the other Party
an opportunity to state its views, the Court considered this filing as valid.

6. Since the Court included upon the Bench no judge of the nationality of
either of the Parties, each Party proceeded to exercise the right conferred by
Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the
case; Portugal chose Mr. Antonio de Arruda Ferrer-Correia and Australia Sir
Ninian Martin Stephen. By a letter dated 30 June 1994, Mr. Ferrer-Correia
informed the President of the Court that he was no longer able to sit, and, by
a letter of 14 July 1994, the Agent of Portugal informed the Court that its Gov-
ernment had chosen Mr. Krzysztof Jan Skubiszewski to replace him.

7. In accordance with Article 53, paragraph 2, of its Rules, the Court, after
ascertaining the views of the Parties, decided that the pleadings and annexed
documents should be made accessible to the public from the date of the open-
ing of the oral proceedings.

8. Between 30 January and 16 February 1995, public hearings were held in the
course of which the Court heard oral arguments and replies by the following:

For Portugal: H.E. Mr. Antonio Cascais,
Mr. José Manuel Servulo Correia,
Mr. Miguel Galväo Teles,
Mr. Pierre-Marie Dupuy,
Mrs. Rosalyn Higgins, Q.C.

For Australia: Mr. Gavan Griffith, Q.C.,
HE. Mr. Michael Tate,
Mr. James Crawford,
Mr. Alain Pellet,
Mr. Henry Burmester,
Mr. Derek W. Bowett, Q.C.,
Mr. Christopher Staker.

9. During the oral proceedings, each of the Parties, referring to Article 56,
paragraph 4, of the Rules of Court, presented documents not previously pro-
duced. Portugal objected to the presentation of one of these by Australia, on
the ground that the document concerned was not “part of a publication readily
available” within the meaning of that provision. Having ascertained Australia’s
views, the Court examined the question and informed the Parties that it had
decided not to admit the document to the record in the case.

*

10. The Parties presented submissions in each of their written pleadings;
in the course of the oral proceedings, the following final submissions were
presented:

7
94

EAST TIMOR (JUDGMENT)

On behalf of Portugal,
at the hearing on 13 February 1995 (afternoon):

“Having regard to the facts and points of law set forth,
Portugal has the honour to

— Ask the Court to dismiss the objections raised by Australia and to
adjudge and declare that it has jurisdiction to deal with the Applica-
tion of Portugal and that that Application is admissible, and

— Request that it may please the Court:

(1) To adjudge and declare that, first, the rights of the people of East
Timor to self-determination, to territorial integrity and unity and to per-
manent sovereignty over its wealth and natural resources and, secondly,
the duties, powers and rights of Portugal as the administering Power of the
Territory of East Timor are opposable to Australia, which is under an
obligation not to disregard them, but to respect them.

(2) To adjudge and declare that Australia, inasmuch as in the first place
it has negotiated, concluded and initiated performance of the Agreement
of 11 December 1989, has taken internal legislative measures for the appli-
cation thereof, and is continuing to negotiate, with the State party to that
Agreement, the delimitation of the continental shelf in the area of the
Timor Gap; and inasmuch as it has furthermore excluded any negotiation
with the administering Power with respect to the exploration and exploita-
tion of the continental shelf in that same area; and, finally, inasmuch as it
contemplates exploring and exploiting the subsoil of the sea in the Timor
Gap on the basis of a plurilateral title to which Portugal is not a party
(each of these facts sufficing on its own):

(a) has infringed and is infringing the right of the people of East Timor
to self-determination, to territorial integrity and unity and its perma-
nent sovereignty over its natural wealth and resources, and is in
breach of the obligation not to disregard but to respect that right,
that integrity and that sovereignty;

(6) has infringed and is infringing the powers of Portugal as the admin-
istering Power of the Territory of East Timor, is impeding the fulfil-
ment of its duties to the people of East Timor and to the international
community, is infringing the right of Portugal to fulfil its responsibili-
ties and is in breach of the obligation not to disregard but to respect
those powers and duties and that right;

(c) is contravening Security Council resolutions 384 and 389 and is in
breach of the obligation to accept and carry out Security Council
resolutions laid down by the Charter of the United Nations, is dis-
regarding the binding character of the resolutions of United Nations
organs that relate to East Timor and, more generally, is in breach of
the obligation incumbent on Member States to co-operate in good
faith with the United Nations;

(3) To adjudge and declare that, inasmuch as it has excluded and is
excluding any negotiation with Portugal as the administering Power of the
Territory of East Timor, with respect to the exploration and exploitation
of the continental shelf in the area of the Timor Gap, Australia has failed
and is failing in its duty to negotiate in order to harmonize the respective
rights in the event of a conflict of rights or of claims over maritime areas.
95 EAST TIMOR (JUDGMENT)

(4) To adjudge and declare that, by the breaches indicated in para-
graphs 2 and 3 of the present submissions, Australia has incurred interna-
tional responsibility and has caused damage, for which it owes reparation
to the people of East Timor and to Portugal, in such form and manner as
may be indicated by the Court, given the nature of the obligations breached.

(5) To adjudge and declare that Australia is bound, in relation to the
people of East Timor, to Portugal and to the international community, to
cease from all breaches of the rights and international norms referred to in
paragraphs 1, 2 and 3 of the present submissions and in particular, until
such time as the people of East Timor shall have exercised its right to self-
determination, under the conditions laid down by the United Nations:

(a) to refrain from any negotiation, signature or ratification of any agree-
ment with a State other than the administering Power concerning the
delimitation, and the exploration and exploitation, of the continental
shelf, or the exercise of jurisdiction over that shelf, in the area of the
Timor Gap;

(b) to refrain from any act relating to the exploration and exploitation of
the continental shelf in the area of the Timor Gap or to the exercise
of jurisdiction over that shelf, on the basis of any plurilateral title to
which Portugal, as the administering Power of the Territory of East
Timor, is not a party”;

On behalf of Australia,
at the hearing on 16 February 1995 (afternoon):

“The Government of Australia submits that, for all the reasons given by
it in the written and oral pleadings, the Court should:
(a) adjudge and declare that the Court lacks jurisdiction to decide the
Portuguese claims or that the Portuguese claims are inadmissible; or
(b) alternatively, adjudge and declare that the actions of Australia
invoked by Portugal do not give rise to any breach by Australia of
rights under international law asserted by Portugal.”

x * x

11. The Territory of East Timor corresponds to the eastern part of the
island of Timor; it includes the island of Atauro, 25 kilometres to the
north, the islet of Jaco to the east, and the enclave of Oé-Cusse in the
western part of the island of Timor. Its capital is Dili, situated on its north
coast. The south coast of East Timor lies opposite the north coast of Aus-
tralia, the distance between them being approximately 430 kilometres.

In the sixteenth century, East Timor became a colony of Portugal;
Portugal remained there until 1975. The western part of the island came
under Dutch rule and later became part of independent Indonesia.

12. In resolution 1542 (XV) of 15 December 1960 the United Nations
General Assembly recalled “differences of views . .. concerning the status
of certain territories under the administrations of Portugal and Spain and
described by these two States as ‘overseas provinces’ of the metropolitan

9
96 EAST TIMOR (JUDGMENT)

State concerned”; and it also stated that it considered that the territories
under the administration of Portugal, which were listed therein (including
“Timor and dependencies”) were non-self-governing territories within the
meaning of Chapter XI of the Charter. Portugal, in the wake of its “Car-
nation Revolution”, accepted this position in 1974.

13. Following internal disturbances in East Timor, on 27 August 1975
the Portuguese civil and military authorities withdrew from the mainland
of East Timor to the island of Atauro. On 7 December 1975 the armed
forces of Indonesia intervened in East Timor. On 8 December 1975 the
Portuguese authorities departed from the island of Atauro, and thus left
East Timor altogether. Since their departure, Indonesia has occupied the
Territory, and the Parties acknowledge that the Territory has remained
under the effective control of that State. Asserting that on 31 May 1976
the people of East Timor had requested Indonesia “to accept East Timor
as an integral part of the Republic of Indonesia”, on 17 July 1976 Indo-
nesia enacted a law incorporating the Territory as part of its national ter-
ritory.

14. Following the intervention of the armed forces of Indonesia in the
Territory and the withdrawal of the Portuguese authorities, the question of
East Timor became the subject of two resolutions of the Security Council
and of eight resolutions of the General Assembly, namely, Security Coun-
cil resolutions 384 (1975) of 22 December 1975 and 389 (1976) of 22 April
1976, and General Assembly resolutions 3485 (XXX) of 12 December
1975, 31/53 of 1 December 1976, 32/34 of 28 November 1977, 33/39 of
13 December 1978, 34/40 of 21 November 1979, 35/27 of 11 November
1980, 36/50 of 24 November 1981 and 37/30 of 23 November 1982.

15. Security Council resolution 384 (1975) of 22 December 1975 called
upon “all States to respect the territorial integrity of East Timor as well
as the inalienable right of its people to self-determination”; called upon
“the Government of Indonesia to withdraw without delay all its forces
from the Territory”; and further called upon

“the Government of Portugal as administering Power to co-operate
fully with the United Nations so as to enable the people of East
Timor to exercise freely their right to self-determination”.

Security Council resolution 389 (1976) of 22 April 1976 adopted the same
terms with regard to the right of the people of East Timor to self-determi-
nation; called upon “the Government of Indonesia to withdraw without
further delay all its forces from the Territory” ; and further called upon “all
States and other parties concerned to co-operate fully with the United
Nations to achieve a peaceful solution to the existing situation . . .”.

General Assembly resolution 3485 (XXX) of 12 December 1975 referred
to Portugal “as the administering Power”; called upon it “to continue to
make every effort to find a solution by peaceful means”; and “strongly
deplore[d] the military intervention of the armed forces of Indonesia in

10
97 EAST TIMOR (JUDGMENT)

Portuguese Timor”. In resolution 31/53 of 1 December 1976, and again in
resolution 32/34 of 28 November 1977, the General Assembly rejected

“the claim that East Timor has been incorporated into Indonesia,
inasmuch as the people of the Territory have not been able to exer-
cise freely their right to self-determination and independence”.

Security Council resolution 389 (1976) of 22 April 1976 and General
Assembly resolutions 31/53 of 1 December 1976, 32/34 of 28 November
1977 and 33/39 of 13 December 1978 made no reference to Portugal as
the administering Power. Portugal is so described, however, in Security
Council resolution 384 (1975) of 22 December 1975 and in the other reso-
lutions of the General Assembly. Also, those resolutions which did not
specifically refer to Portugal as the administering Power recalled another
resolution or other resolutions which so referred to it.

16. No further resolutions on the question of East Timor have been
passed by the Security Council since 1976 or by the General Assembly
since 1982. However, the Assembly has maintained the item on its agenda
since 1982, while deciding at each session, on the recommendation of its
General Committee, to defer consideration of it until the following ses-
sion. East Timor also continues to be included in the list of non-self-
governing territories within the meaning of Chapter XI of the Charter;
and the Special Committee on the Situation with Regard to the Implemen-
tation of the Declaration on the Granting of Independence to Colonial
Countries and Peoples remains seised of the question of East Timor. The
Secretary-General of the United Nations is also engaged in a continuing
effort, in consultation with all parties directly concerned, to achieve a
comprehensive settlement of the problem.

17. The incorporation of East Timor as part of Indonesia was recog-
nized by Australia de facto on 20 January 1978. On that date the Aus-
tralian Minister for Foreign Affairs stated: “The Government has made
clear publicly its opposition to the Indonesian intervention and has made
this known to the Indonesian Government.” He added: “[Indonesia’s]
control is effective and covers all major administrative centres of the ter-
ritory.” And further:

“This is a reality with which we must come to terms. Accordingly,
the Government has decided that although it remains critical of the
means by which integration was brought about it would be unreal-
istic to continue to refuse to. recognize de facto that East Timor is
part of Indonesia.”

On 23 February 1978 the Minister said: “we recognize the fact that East
Timor is part of Indonesia, but not the means by which this was brought
about”.

11
98 EAST TIMOR (JUDGMENT)

On 15 December 1978 the Australian Minister for Foreign Affairs
declared that negotiations which were about to begin between Australia
and Indonesia for the delimitation of the continental shelf between Aus-
tralia and East Timor, “when they start, will signify de jure recognition
by Australia of the Indonesian incorporation of East Timor”; he added:
“The acceptance of this situation does not alter the opposition which the
Government has consistently expressed regarding the manner of incorpo-
ration.” The negotiations in question began in February 1979.

18. Prior to this, Australia and Indonesia had, in 1971-1972, estab-
lished a delimitation of the continental shelf between their respective
coasts; the delimitation so effected stopped short on either side of the
continental shelf between the south coast of East Timor and the north
coast of Australia. This undelimited part of the continental shelf was
called the “Timor Gap”.

The delimitation negotiations which began in February 1979 between
Australia and Indonesia related to the Timor Gap; they did not come to
fruition. Australia and Indonesia then turned to the possibility of estab-
lishing a provisional arrangement for the joint exploration and exploita-
tion of the resources of an area of the continental shelf. A Treaty to this
effect was eventually concluded between them on 11 December 1989,
whereby a “Zone of Cooperation” was created “in an area between the
Indonesian Province of East Timor and Northern Australia”. Australia
enacted legislation in 1990 with a view to implementing the Treaty; this
law came into force in 1991.

* * *

19. In these proceedings Portugal maintains that Australia, in nego-
tiating and concluding the 1989 Treaty, in initiating performance of the
Treaty, in taking internal legislative measures for its application, and in
continuing to negotiate with Indonesia, has acted unlawfully, in that it
has infringed the rights of the people of East Timor to self-determination
and to permanent sovereignty over its natural resources, infringed the
rights of Portugal as the administering Power, and contravened Security
Council resolutions 384 and 389. Australia raised objections to the juris-
diction of the Court and to the admissibility of the Application. It took
the position, however, that these objections were inextricably linked to
the merits and should therefore be determined within the framework of
the merits. The Court heard the Parties both on the objections and on the
merits. While Australia concentrated its main arguments and submissions
on the objections, it also submitted that Portugal’s case on the merits
should be dismissed, maintaining, in particular, that its actions did not in
any way disregard the rights of Portugal.

12
99 EAST TIMOR (JUDGMENT)

20. According to one of the objections put forward by Australia, there
exists in reality no dispute between itself and Portugal. In another objec-
tion, it argued that Portugal’s Application would require the Court to
rule on the rights and obligations of a State which is not a party to the
proceedings, namely Indonesia. According to further objections of Aus-
tralia, Portugal lacks standing to bring the case, the argument being that
it does not have a sufficient interest of its own to institute the proceed-
ings, notwithstanding the references to it in some of the resolutions of the
Security Council and the General Assembly as the administering Power
of East Timor, and that it cannot, furthermore, claim any right to repre-
sent the people of East Timor; its claims are remote from reality, and the
judgment the Court is asked to give would be without useful effect; and
finally, its claims concern matters which are essentially not legal in nature
which should be resolved by negotiation within the framework of on-
going procedures before the political organs of the United Nations.
Portugal requested the Court to dismiss all these objections.

* OK

21. The Court will now consider Australia’s objection that there is in
reality no dispute between itself and Portugal. Australia contends that
the case as presented by Portugal is artificially limited to the question of
the lawfuiness of Australia’s conduct, and that the true respondent is
Indonesia, not Australia. Australia maintains that it is being sued in
place of Indonesia. In this connection, it points out that Portugal and
Australia have accepted the compulsory jurisdiction of the Court under
Article 36, paragraph 2, of its Statute, but that Indonesia has not.

In support of the objection, Australia contends that it recognizes, and
has always recognized, the right of the people of East Timor to self-
determination, the status of East Timor as a non-self-governing territory,
and the fact that Portugal has been named by the United Nations as the
administering Power of East Timor; that the arguments of Portugal, as
well as its submissions, demonstrate that Portugal does not challenge the
capacity of Australia to conclude the 1989 Treaty and that it does not
contest the validity of the Treaty; and that consequently there is in reality
no dispute between itself and Portugal.

Portugal, for its part, maintains that its Application defines the real
and only dispute submitted to the Court.

22. The Court recalls that, in the sense accepted in its jurisprudence
and that of its predecessor, a dispute is a disagreement on a point of law
or fact, a conflict of legal views or interests between parties (see Mavrom-
matis Palestine Concessions, Judgment No. 2, 1924, P.C.LJ., Series A,
No. 2, p. 11; Northern Cameroons, Judgment, I. C.J. Reports 1963, p. 27;
and Applicability of the Obligation to Arbitrate under Section 21 of the
United Nations Headquarters Agreement of 26 June 1947, Advisory

13
100 EAST TIMOR (JUDGMENT)

Opinion, LC.J. Reports 1988, p. 27, para. 35). In order to establish the
existence of a dispute, “It must be shown that the claim of one party is
positively opposed by the other” (South West Africa, Preliminary Objec-
tions, Judgment, I.C.J. Reports 1962, p. 328); and further, “Whether
there exists an international dispute is a matter for objective determina-
tion” (Interpretation of Peace Treaties with Bulgaria, Hungary and Roma-
nia, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74).

For the purpose of verifying the existence of a legal dispute in the
present case, it is not relevant whether the “real dispute” is between Por-
tugal and Indonesia rather than Portugal and Australia. Portugal has,
rightly or wrongly, formulated complaints of fact and law against Aus-
tralia which the latter has denied. By virtue of this denial, there is a legal
dispute.

On the record before the Court, it is clear that the Parties are in dis-
agreement, both on the law and on the facts, on the question whether the
conduct of Australia in negotiating, concluding and initiating perfor-
mance of the 1989 Treaty was in breach of an obligation due by Australia
to Portugal under international law.

Indeed, Portugal’s Application limits the proceedings to these ques-
tions. There nonetheless exists a legal dispute between Portugal and Aus-
tralia. This objection of Australia must therefore be dismissed.

x OF

23. The Court will now consider Australia’s principal objection, to the
effect that Portugal’s Application would require the Court to determine
the rights and obligations of Indonesia. The declarations made by the
Parties under Article 36, paragraph 2, of the Statute do not include any
limitation which would exclude Portugal’s claims from the jurisdiction
thereby conferred upon the Court. Australia, however, contends that the
jurisdiction so conferred would not enable the Court to act if, in order to
do so, the Court were required to rule on the lawfulness of Indonesia’s
entry into and continuing presence in East Timor, on the validity of the
1989 Treaty between Australia and Indonesia, or on the rights and obli-
gations of Indonesia under that Treaty, even if the Court did not have to
determine its validity. Portugal agrees that if its Application required the
Court to decide any of these questions, the Court could not entertain it.
The Parties disagree, however, as to whether the Court is required to
decide any of these questions in order to resolve the dispute referred to it.

24. Australia argues that the decision sought from the Court by Por-
tugal would inevitably require the Court to rule on the lawfulness of the
conduct of a third State, namely Indonesia, in the absence of that State’s
consent. In support of its argument, it cites the Judgment in the case con-
cerning Monetary Gold Removed from Rome in 1943, in which the Court
ruled that, in the absence of Albania’s consent, it could not take any deci-

14
101 EAST TIMOR (JUDGMENT)

sion on the international responsibility of that State since “Albania’s
legal interests. would not only be affected by a decision, but would form
the very subject-matter of the decision” (.C.J. Reports 1954, p. 32).

25. In reply, Portugal contends, first, that its Application is concerned
exclusively with the objective conduct of Australia, which consists in
having negotiated, concluded and initiated performance of the 1989
Treaty with Indonesia, and that this question is perfectly separable from
any question relating to the lawfulness of the conduct of Indonesia.
According to Portugal, such conduct of Australia in itself constitutes a
breach of its obligation to treat East Timor as a non-self-governing ter-
ritory and Portugal as its administering Power; and that breach could be
passed upon by the Court by itself and without passing upon the rights of
Indonesia. The objective conduct of Australia, considered as such, con-
stitutes the only violation of international law of which Portugal com-
plains.

26. The Court recalls in this respect that one of the fundamental prin-
ciples of its Statute is that it cannot decide a dispute between States with-
out the consent of those States to its jurisdiction. This principle was
reaffirmed in the Judgment given by the Court in the case concerning
Monetary Gold Removed from Rome in 1943 and confirmed in several of
its subsequent decisions (see Continental Shelf (Libyan Arab Jamahiriya/
Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports
1984, p. 25, para. 40; Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, p. 431, para. 88; Frontier
Dispute (Burkina Faso/Republic of Mali), Judgment, C.J. Reports
1986, p. 579, para. 49; Land, [sland and Maritime Frontier Dispute (El
Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports
1990, pp. 114-116, paras. 54-56, and p. 112, para. 73; and Certain Phos-
phate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
Judgment, I.C.J. Reports 1992, pp. 259-262, paras. 50-55).

27. The Court notes that Portugal’s claim that, in entering into the
1989 Treaty with Indonesia, Australia violated the obligation to respect
Portugal’s status as administering Power and that of East Timor as a
non-self-governing territory, is based on the assertion that Portugal
alone, in its capacity as administering Power, had the power to enter into
the Treaty on behalf of East Timor; that Australia disregarded this exclu-
sive power, and, in so doing, violated its obligations to respect the status
of Portugal and that of East Timor.

The Court also observes that Australia, for its part, rejects Portugal’s
claim to the exclusive power to conclude treaties on behalf of East Timor,
and the very fact that it entered into the 1989 Treaty with Indonesia
shows that it considered that Indonesia had that power. Australia in sub-
stance argues that even if Portugal had retained that power, on whatever
basis, after withdrawing from East Timor, the possibility existed that the
power could later pass to another State under general international law,

15
102 EAST TIMOR (JUDGMENT)

and that it did so pass to Indonesia; Australia affirms moreover that, if
the power in question did pass to Indonesia, it was acting in conformity
with international law in entering into the 1989 Treaty with that State,
and could not have violated any of the obligations Portugal attributes to
it. Thus, for Australia, the fundamental question in the present case is
ultimately whether, in 1989, the power to conclude a treaty on behalf of
East Timor in relation to its continental shelf lay with Portugal or with
Indonesia.

28. The Court has carefully considered the argument advanced by
Portugal which seeks to separate Australia’s behaviour from that of
Indonesia. However, in the view of the Court, Australia’s behaviour can-
not be assessed without first entering into the question why it is that
Indonesia could not lawfully have concluded the 1989 Treaty, while Por-
tugal allegedly could have done so; the very subject-matter of the Court’s
decision would necessarily be a determination whether, having regard to
the circumstances in which Indonesia entered and remained in East
Timor, it could or could not have acquired the power to enter into trea-
ties on behalf of East Timor relating to the resources of its continental
shelf. The Court could not make such a determination in the absence of
the consent of Indonesia.

29. However, Portugal puts forward an additional argument aiming
to show that the principle formulated by the Court in the case concern-
ing Monetary Gold Removed from Rome in 1943 is not applicable in
the present case. It maintains, in effect, that the rights which Australia
allegedly breached were rights erga omnes and that accordingly Portugal
could require it, individually, to respect them regardless of whether or
not another State had conducted itself in a similarly unlawful manner.

In the Court’s view, Portugal’s assertion that the right of peoples to
self-determination, as it evolved from the Charter and from United
Nations practice, has an erga omnes character, is irreproachable. The
principle of self-determination of peoples has been recognized by the
United Nations Charter and in the jurisprudence of the Court (see
Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Coun-
cil Resolution 276 (1970), Advisory Opinion, 1 C.J. Reports 1971, pp. 31-
32, paras. 52-53; Western Sahara, Advisory Opinion, .C.J. Reports
1975, pp. 31-33, paras. 54-59); it is one of the essential principles of con-
temporary international law. However, the Court considers that the erga
omnes character of a norm and the rule of consent to jurisdiction are two
different things. Whatever the nature of the obligations invoked, the
Court could not rule on the lawfulness of the conduct of a State when its
judgment would imply an evaluation of the lawfulness of the conduct of
another State which is not a party to the case. Where this is so, the
Court cannot act, even if the right in question is a right erga omnes.

16
103 EAST TIMOR (JUDGMENT)

30. Portugal presents a final argument to challenge the applicability to
the present case of the Court’s jurisprudence in the case concerning Mon-
etary Gold Removed from Rome in 1943. It argues that the principal mat-
ters on which its claims are based, namely the status of East Timor as a
non-self-governing territory and its own capacity as the administering
Power of the Territory, have already been decided by the General Assem-
bly and the Security Council, acting within their proper spheres of com-
petence; that in order to decide on Portugal’s claims, the Court might
well need to interpret those decisions but would not have to decide de
novo on their content and must accordingly take them as “givens”; and
that consequently the Court is not required in this case to pronounce on
the question of the use of force by Indonesia in East Timor or upon the
lawfulness of its presence in the Territory.

Australia objects that the United Nations resolutions regarding East
Timor do not say what Portugal claims they say; that the last resolution
of the Security Council on East Timor goes back to 1976 and the last
resolution of the General Assembly to 1982, and that Portugal takes no
account of the passage of time and the developments that have taken
place since then; and that the Security Council resolutions are not reso-
lutions which are binding under Chapter VII of the Charter or otherwise
and, moreover, that they are not framed in mandatory terms.

31. The Court notes that the argument of Portugal under considera-
tion rests on the premise that the United Nations resolutions, and in par-
ticular those of the Security Council, can be read as imposing an obliga-
tion on States not to recognize any authority on the part of Indonesia
over the Territory and, where the latter is concerned, to deal only with
Portugal. The Court is not persuaded, however, that the relevant resolu-
tions went so far.

For the two Parties, the Territory of East Timor remains a non-self-
governing territory and its people has the right to self-determination.
Moreover, the General Assembly, which reserves to itself the right to
determine the territories which have to be regarded as non-self-governing
for the purposes of the application of Chapter XI of the Charter, has
treated East Timor as such a territory. The competent subsidiary organs
of the General Assembly have continued to treat East Timor as such to
this day. Furthermore, the Security Council, in its resolutions 384 (1975)
and 389 (1976) has expressly called for respect for “the territorial integ-
rity of East Timor as well as the inalienable right of its people to self-
determination in accordance with General Assembly resolution 1514 (XV)”.

Nor is it at issue between the Parties that the General Assembly has
expressly referred to Portugal as the “administering Power” of East
Timor in a number of the resolutions it adopted on the subject of East
Timor between 1975 and 1982, and that the Security Council has done so
in its resolution 384 (1975). The Parties do not agree, however, on the

17
104 EAST TIMOR (JUDGMENT)

legal implications that flow from the reference to Portugal as the admin-
istering Power in those texts.

32. The Court finds that it cannot be inferred from the sole fact that
the above-mentioned resolutions of the General Assembly and the Secu-
rity Council refer to Portugal as the administering Power of East Timor
that they intended to establish an obligation on third States to treat
exclusively with Portugal as regards the continental shelf of East Timor.
The Court notes, furthermore, that several States have concluded with
Indonesia treaties capable of application to East Timor but which do not
include any reservation in regard to that Territory. Finally, the Court
observes that, by a letter of 15 December 1989, the Permanent Repre-
sentative of Portugal to the United Nations transmitted to the Secretary-
General the text of a note of protest addressed by the Portuguese Embassy
in Canberra to the Australian Department of Foreign Affairs and Trade
on the occasion of the conclusion of the Treaty on 11 December 1989;
that the letter of the Permanent Representative was circulated, at his
request, as an official document of the forty-fifth session of the General
Assembly, under the item entitled “Question of East Timor”, and of the
Security Council; and that no responsive action was taken either by the
General Assembly or the Security Council.

Without prejudice to the question whether the resolutions under dis-
cussion could be binding in nature, the Court considers as a result that
they cannot be regarded as “givens” which constitute a sufficient basis for
determining the dispute between the Parties.

33. It follows from this that the Court would necessarily have to rule
upon the lawfulness of Indonesia’s conduct as a prerequisite for deciding
on Portugal’s contention that Australia violated its obligation to respect
Portugal’s status as administering Power, East Timor’s status as a non-
self-governing territory and the right of the people of the Territory to
self-determination and to permanent sovereignty over its wealth and
natural resources.

*

34. The Court emphasizes that it is not necessarily prevented from
adjudicating when the judgment it is asked to give might affect the legal
interests of a State which is not a party to the case. Thus, in the case
concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), it
stated, inter alia, as follows:

“In the present case, the interests of New Zealand and the United
Kingdom do not constitute the very subject-matter of the judgment
to be rendered on the merits of Nauru’s Application . . . In the
present case, the determination of the responsibility of New Zealand
or the United Kingdom is not a prerequisite for the determination of
the responsibility of Australia, the only object of Nauru’s claim . . .
In the present case, a finding by the Court regarding the existence or
the content of the responsibility attributed to Australia by Nauru

18
105 EAST TIMOR (JUDGMENT)

might well have implications for the legal situation of the two other
States concerned, but no finding in respect of that legal situation will
be needed as a basis for the Court’s decision on Nauru’s claims
against Australia. Accordingly, the Court cannot decline to exercise
its jurisdiction.” (C.J. Reports 1992, pp. 261-262, para. 55.)

However, in this case, the effects of the judgment requested by Portu-
gal would amount to a determination that Indonesia’s entry into and
continued presence in East Timor are unlawful and that, as a conse-
quence, it does not have the treaty-making power in matters relating to
the continental! shelf resources of East Timor. Indonesia’s rights and obli-
gations would thus constitute the very subject-matter of such a judgment
made in the absence of that State’s consent. Such a judgment would run
directly counter to the “well-established principle of international law
embodied in the Court’s Statute, namely, that the Court can only exercise
jurisdiction over a State with its consent” (Monetary Gold Removed from
Rome in 1943, Judgment, I. C.J. Reports 1954, p. 32).

*

35. The Court concludes that it cannot, in this case, exercise the juris-
diction it has by virtue of the declarations made by the Parties under
Article 36, paragraph 2, of its Statute because, in order to decide the claims
of Portugal, it would have to rule, as a prerequisite, on the lawfulness of
Indonesia’s conduct in the absence of that State’s consent. This conclu-
sion applies to all the claims of Portugal, for all of them raise a common
question: whether the power to make treaties concerning the continental
shelf resources of East Timor belongs to Portugal or Indonesia, and,
therefore, whether Indonesia’s entry into and continued presence in the
Territory are lawful. In these circumstances, the Court does not deem it
necessary to examine the other arguments derived by Australia from the
non-participation of Indonesia in the case, namely the Court’s lack of
jurisdiction to decide on the validity of the 1989 Treaty and the effects on
Indonesia’s rights under that treaty which would result from a judgment
in favour of Portugal.

* O*

36. Having dismissed the first of the two objections of Australia which
it has examined, but upheld its second, the Court finds that it is not
required to consider Australia’s other objections and that it cannot rule
on Portugal’s claims on the merits, whatever the importance of the ques-
tions raised by those claims and of the rules of international law which
they bring into play.

37. The Court recalls in any event that it has taken note in the present
Judgment (paragraph 31) that, for the two Parties, the Territory of East

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106 EAST TIMOR (JUDGMENT)

Timor remains a non-self-governing territory and its people has the right
to self-determination.

38. For these reasons,
THE Court,
By fourteen votes to two,

Finds that it cannot in the present case exercise the jurisdiction con-
ferred upon it by the declarations made by the Parties under Article 36,
paragraph 2, of its Statute to adjudicate upon the dispute referred to it by
the Application of the Portuguese Republic.

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Sir
Robert Jennings, Guillaume, Shahabuddeen, Aguilar-Mawdsley, Ranjeva,
Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin; Judge ad hoc Sir
Ninian Stephen;

AGAINST: Judge Weeramantry; Judge ad hoc Skubiszewski.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this thirtieth day of June, one thousand
nine hundred and ninety-five, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Govern-
ment of the Portuguese Republic and the Government of the Common-
wealth of Australia, respectively.

(Signed) Mohammed BEDJAOUI,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judges ODA, SHAHABUDDEEN, RANJEVA and VERESHCHETIN append
separate opinions to the Judgment of the Court.

Judge WEERAMANTRY and Judge ad hoc SKUBISZEWSKI append dissent-
ing opinions to the Judgment of the Court.

(Initialled) M.B.
(Initialled) EN.O.

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