139

DISSENTING OPINION OF JUDGE WEERAMANTRY

TABLE OF CONTENTS

Pages
INTRODUCTION 142
Linkage between jurisdiction and the merits 143
The background 144
The Timor Gap Treaty 147
Scheme of opinion 149
PART A. THE PosiTIon oF THIRD PARTY STATES 150
1. The jurisdictional issue 150
(i) The contentions of the Parties 150
(ii) The circumstances before the Court 150

(tii) Do the circumstances of the case attract any necessity to con-
sider a third State’s conduct 153

(iv) Is the Court under an obligation to reinvestigate matters
dealt with in the United Nations resolutions? 154
2. The Monetary Gold principle 156
(i) Subject-matter 156
Gi) Parties 156
iii) Rationale 156
(iv) Italian and United Kingdom claims distinguished 157
(v) The third party principle and the judicial duty to decide 158
(vi) The test of reasonableness 161
(vii) Prior jurisprudence 163
(a) Advisory Opinions 163
(6) Contentious cases 164
(vi) Subsequent jurisprudence 167
3. Other relevant factors 169
(i) Third party safeguards 169
(ti) The principle of individual State responsibility 170
(iii) Rights erga omnes 172

(iv) Increasingly multilateral nature of modern international obli-
gations 173

(v) The distinction between a treaty and the unilateral acts from
which it results 173
(vi) Has the wrong party been sued? 174
(vii) Historical background 176
(vin) Conclusion 178

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140 EAST TIMOR (DISS. OP. WEERAMANTRY)

Part B. THE Jus STANDI OF PORTUGAL

(i) The respective positions of the Parties

(ii) Structure of United Nations Charter provisions regarding
dependent territories

(iii) Is the United Nations a substitute for a displaced administering
Power?

(iv) The right of representation

(v) Resolutions recognizing Portugal’s status as administering
Power

(vi) Legal force of the resolutions

(a) General Assembly resolutions
(b) Security Council resolutions

(vii) Does Portugal need prior United Nations authorization to main-
tain this action?

(viii) Are the resolutions affected by diminishing United Nations sup-
port?
(ix) Have the resolutions lapsed through desuetude?
(x) Have the resolutions been nullified by supervening events?

(xi) Is Portugal’s colonial record relevant?

Part C. THE Ricuts oF East Timor

(i) East Timor is a territory unquestionably entitled to self-deter-
mination
(ii) The principle of self-determination
(iii) The principle of permanent sovereignty over natural resources

(iv) The relevance of United Nations resolutions on self-determina-

tion
(v) Australia’s position in relation to self-determination

(vi) The incompatibility between recognition of Indonesian sover-
eignty over East Timor and the recognition of East Timor as a
non-self-governing territory

(vii) The suggested clash between the rights of the people of East
Timor and the rights of the people of Australia

Part D. THE OBLIGATIONS oF AUSTRALIA

A. Obligations under general international law

G) Obligations stemming from the general sources of interna-
tional law
(ii) Obligations expressly undertaken by treaty

B. Obligations under United Nations resolutions

C. Some juristic perspectives

(i) The correlativity of rights and duties
(ii) Is duty limited to compliance with specific directions and pro-
hibitions?
(ii) Obligations stemming from the erga omnes concept

54

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178

179

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181

182
185

185
188

188

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190
19]

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141 EAST TIMOR (DISS. OP. WEERAMANTRY)

Part E. AUSTRALIA’S OBJECTIONS BASED ON JUDICIAL PROPRIETY

(i) Absence of a justiciable dispute

(ii) Misuse of the process of the Court

(ii) The Judgment would not serve any legitimate object

(iv) The Judgment would serve no useful purpose in that it would not
promote the interests of East Timor

(v) The Court should not give a judgment which it has no authority
or ability to satisfy

(vi) Is the Court an inappropriate forum?

CONCLUSION

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217
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142 EAST TIMOR (DISS. OP. WEERAMANTRY)
INTRODUCTION

I respectfully agree with the first part of the Court’s decision, wherein
the Court dismisses Australia’s objection that no real dispute exists
between itself and Portugal. It is my view that such a real dispute does
exist and I support the Court’s Judgment on this point.

I am also in agreement with the Court’s observations in regard to the
right to self-determination of the people of East Timor, their right to per-
manent sovereignty over their natural resources, and the erga omnes
nature of these rights. The stress laid by the Court on self-determination
as “one of the essential principles of contemporary international law”
(Judgment, para. 29) has my complete and unqualified support.

However, I regret that my conclusions in regard to the second part of
the Judgment differ from those of the great majority of my colleagues,
who have held that the Court cannot adjudicate on Portugal’s claim in
the absence of Indonesia. In deference to their opinion and in recognition
of the importance of the issue, I feel obliged to set out in some detail the
reasons for my conclusion that the absence of Indonesia does not prevent
the Court from considering Portugal’s claim.

Apart from its being a crucial factor in this case, the principle involved
is important to the jurisprudence of the Court, for it concerns the Court’s
jurisdictional reach in the wide range of third-party-related disputes
which are increasingly brought before it in a more closely interrelated
world.

Had the Court ruled differently on the preliminary issue of jurisdic-
tion, there are numerous other issues of great importance which it would
have considered in its Judgment. In view of its preliminary ruling, the
Court’s Judgment stops, so to speak, “at the threshold of the case”!. It
therefore does not examine such seminal issues as the duties flowing to
Australia from the right to self-determination of the people of East
Timor or from their right to permanent sovereignty over their natural
resources. It does not examine the impact of the Timor Gap Treaty upon
their rights. It does not examine the jus standi of Portugal to institute this
action on behalf of the people of East Timor.

The preliminary objection to the jus standi of Portugal calls into ques-
tion the adequacy of the entire protective structure fashioned by the
United Nations Charter for safeguarding the interests of non-self-govern-
ing territories, not yet in a position themselves to look after their own
interests. |

Australia’s submission that it is not in breach of any international duty

! To use the language of Judge Jessup at the commencement of his dissenting opinion
in South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 325.

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143 EAST TIMOR (DISS. OP. WEERAMANTRY)

necessitates a consideration of State obligations implicit in the principle
of self-determination, the very basis of nationhood of the majority of
Member States of the United Nations. It raises also the important juristic
question of the nature of international duties correlative to rights erga
omnes. Are they limited to mere compliance with specific directions and
prohibitions, or are they set in the context of an overarching principle,
transcending specific directions and prohibitions?

The jurisdictional objections raised by Australia require some consid-
eration also of the status and legal consequences of resolutions of the
General Assembly and the Security Council. In addition, there are several
questions relating to judicial propriety which were stressed by Australia
in its submissions.

Linkage between Jurisdiction and the Merits

Since these issues were fully argued by both sides, since they are all of
deep significance, and since the view I take crosses the jurisdictional
threshold into the substance of the case, my judicial duty compels me to
address these questions!. In any event, the view I take of the jurisdic-
tional objection upheld by the Court requires a consideration of all these
matters, quite apart from their relevance to the merits. There is in this
case such a close interlinkage between the preliminary objections and the
merits that the former cannot be considered apart from the latter.

At a meeting convened by the President of the Court on 1 June 1992,
in terms of Article 31 of the Rules of Court, the Parties agreed that ques-
tions raised by Australia regarding jurisdiction and admissibility were
inextricably linked to the merits, and should therefore be heard and
determined along with the merits. There was therefore a full hearing,
both on the preliminary issues and on the merits.

This was in line with the position stated in the Australian Counter-
Memorial that:

“these bars to the Court’s right to hear the claim are, in this case,
inextricably linked with the merits so that it could be difficult to deal
with them separately and to establish that they possess an exclu-
sively preliminary character” (Counter-Memorial, para. 20).

In the result, this case does not present that sharp division between
questions of jurisdiction and admissibility, and questions relating to the

' See Judge Jessup, in South West Africa: “Since it is my finding that the Court has
jurisdiction, . . . I consider it my judicial duty to examine the legal issues in this case . . .”
(LC.J. Reports 1966, p. 325.)

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merits, that is often present in cases before this Court, such as the South
West Africa cases.

The Background

A short preliminary recital of some of the surrounding circumstances
will place in context the ensuing legal discussions.

Portugal’s long colonial occupation of East Timor, which had com-
menced in the sixteenth century, came to an end more than four centuries
later in 1975, when the Portuguese administration withdrew from the
Territory. Initially the Portuguese administration withdrew from the
mainland to the island of Atauro, also a part of the Territory, on
27 August 1975. Three months after the Portuguese evacuation of the
mainland, on 28 November 1975, FRETILIN (Frente Revolucionaria de
Timor-Leste Independente), a group seeking independence for the Terri-
tory, declared independence. A few days later, on 7 December 1975,
Indonesian military forces entered East Timor. The next day the Portu-
guese administration withdrew from Atauro.

Indonesia has been in control of the Territory since the entry of its mili-
tary forces, and enacted a law on 17 July 1976 incorporating East Timor
into its national territory, on the basis that the people of East Timor had
on 31 May 1976 requested Indonesia to accept East Timor as an integral
part of Indonesian territory. However, this incorporation has not thus far
been accepted or recognized by the United Nations which, in the language
of the Secretary-General, is engaged in the search for “a comprehensive
and internationally acceptable solution to the question of East Timor”!.
The question of East Timor, still not the subject of the internationally
acceptable solution sought by the Secretary-General, receives continuing
attention in the reports of the Secretary-General. It is also kept by the
General Assembly as an item on its agenda from year to year.

Several resolutions of the Security Council and the General Assembly
refer to the circumstances in which the Portuguese withdrawal and the
Indonesian occupation occurred. It will suffice to refer at this point to
two Security Council resolutions — resolutions 384 and 389 of 22 Decem-
ber 1975 and 22 April 1976, respectively.

The first of these noted that General Assembly resolution 3485 (XXX)
of 12 December 1975 had requested the Committee of Twenty-Four (the
Special Committee on the Situation with regard to the Implementation of
the Declaration on the Granting of Independence to Colonial Countries
and Peoples) to send a fact-finding mission to East Timor, and expressed
grave concern at the deterioration of the situation in that Territory.

! Progress Report of 11 September 1992, A/47/435, para. 1 (see Reply, Vol. II,
Ann. I.8). See, to the same effect, Report of the Secretary-General on the Work of the
Organization, 2 September 1994, A/49/1, para. 505.

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Expressing grave concern also at the loss of life in East Timor, it
deplored the intervention of the armed forces of Indonesia in East Timor.
The resolution further expressed regret that the Government of Portugal
had not discharged fully its responsibilities as administering Power in the
Territory under Chapter XI of the Charter.

Against this background, it:

“1. Calls upon all States to respect the territorial integrity of East
Timor as well as the inalienable right of its people to self-determina-
tion in accordance with General Assembly resolution 1514 (XV);

2. Calls upon the Government of Indonesia to withdraw without
delay all its forces from the Territory;

3. Calls upon the Government of Portugal as administering Power
to co-operate fully with the United Nations so as to enable the
people of East Timor to exercise freely their right to self-determina-
tion;

4. Urges all States and other parties concerned to co-operate fully
with the efforts of the United Nations to achieve a peaceful solution
to the existing situation and to facilitate the decolonization of the
Territory.”

The second resolution again reaffirmed:

“the inalienable right of the people of East Timor to self-determina-
tion and independence in accordance with the principles of the
Charter of the United Nations and the Declaration on the Granting
of Independence to Colonial Countries and Peoples, contained in
General Assembly resolution 1514 (XV) of 14 December 1960”

and called upon all States:

“to respect the territorial integrity of East Timor, as well as the
inalienable right of its people to self-determination in accordance
with General Assembly resolution 1514 (XV)”.

It also called upon the Government of Indonesia “to withdraw without
further delay all its forces from the Territory”.

Australia was heard before each of these Security Council resolutions
was passed.

Six days before the first resolution, at the 1865th meeting of the Secu-
rity Council, held on 16 December 1975, the Australian representative,
invited by the President to make a statement, observed:

“The immediate requirement as we see it, is for a cease-fire, to
spare the people of Timor further bloodshed and to create a climate
in which a constructive programme of decolonization can be
resumed” (United Nations, Official Records of the Security Council,

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146 EAST TIMOR (DISS. OP. WEERAMANTRY)

Thirtieth Year, 1865th Meeting, 16 December 1975, para. 99; see
Memorial, Vol. IT, Ann. IT.24)

and he concluded his statement as follows:

“In conclusion, I would once again emphasize, as indeed the Gen-
eral Assembly did in its resolution 3485 (XXX), that the purpose
and aim of the United Nations, underlying any action which the
Council may decide, is to enable the people of the Territory freely to
exercise their right to self-determination. The main question now is
to establish conditions in which the people of Timor can make its
own free choice.” (Jbid., para. 106; Memorial, ibid.)

Eight days before the second resolution, at the 1909th Meeting of the
Security Council held on 14 April 1976, the Australian representative,
again invited by the President to make his statement, said:

“In my last statement to the Council on East Timor [1865th meet-
ing] I emphasized that the Australian Government and people were
most conscious that a stable settlement in East Timor could rest only
on the free choice by the people concerned. It remains the firm
policy of the Australian Government that the people of the Territory
should exercise freely and effectively their right to self-determina-
tion, and, if their decision is to have any validity, it must be made in
the full knowledge of the alternatives from which they are to make
their choice. My Government does not, however, presume to lay
down any precise formula or modalities for self-determination. We
should prefer to respond to the wishes of the Timorese people them-
selves as to the best means by which they might genuinely exercise
their right of self-determination.” (United Nations, Official Records
of the Security Council, Thirty-first Year, 1909th Meeting, 14 April
1976, para. 38; see Memorial, Vol. II, Ann. 11.25.)

It is not necessary at this point to recapitulate the terms of the several
General Assembly resolutions (eight in all), each of which stressed the
importance of East Timor’s right to self-determination, and proceeded on
the basis that that right had yet to be exercised. They will be referred to
in due course later in this opinion.

Portugal, claiming that it is still the administering Power of East
Timor, seeks relief in this case against Australia in relation to a Treaty
entered into on 11 December 1989 between Australia and Indonesia. The
Treaty related to the resources lying between the coastal littorals of East
Timor and Australia. This Treaty has been referred to in the proceedings
as the Timor Gap Treaty, from the circumstance that the delimitation of
the continental shelf between Australia and Indonesia stopped short on
either side of that portion of the shelf lying between the south coast of
East Timor and the north coast of Australia. This undelimited part of the

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147 EAST TIMOR (DISS. OP. WEERAMANTRY)

continental shelf is referred to as the Timor Gap (Memorial, Vol. I,
para. 2.01).

It should be added that the jurisdiction of this Court is based upon
Australia’s declaration under Article 36 (2) of the Statute, by which Aus-
tralia has submitted to the jurisdiction of this Court. Indonesia has not
filed a declaration under Article 36 (2).

A word needs also to be said about Portugal’s past colonial record,
concerning the legal relevance of which there will be more discussion in a
later part of this opinion. Australia has argued that it has left much to be
desired. Portugal had indeed resolutely opposed the principle of self-
determination for its colonies. It should be noted, however, that after the
change of régime in Portugal on 25 April 1974, the Portuguese Govern-
ment reaffirmed its obligations under Chapter XI of the Charter and, on
24 July 1974, the Council of State of Portugal approved a constitutional
law abrogating the former territorial definition of the Republic of Portu-
gal and acknowledging the right of self-determination, including inde-
pendence, for Territories under Portuguese administration (Memorial,
Vol. IT, Ann. IT.6).

The Timor Gap Treaty

This Treaty, entered into on 11 December 1989 between Australia and
Indonesia, is alleged by Portugal to infringe the rights of the people of
East Timor. It is titled “Treaty between Australia and the Republic of
Indonesia on the Zone of Cooperation in an area between the Indonesian
Province of East Timor and northern Australia” (Application, Ann. 2,
text of the Agreement of 11 December 1989). The preamble recites the
desire of the Parties to

“enable the exploration for and exploitation of the petroleum
resources of the continental shelf of the area between the Indonesian
Province of East Timor and northern Australia yet to be the subject
of permanent continental shelf delimitation between the Contracting
States”.

These petroleum reserves have been estimated, according to Portugal, at
between 500 million and 5,000 million barrels!. Whatever their precise
extent, they may safely be assumed to be of considerable value.

Under the Treaty, a joint Australian/Indonesian régime was set up for
exploiting the oil resources on the continental shelf between Australia
and East Timor. The Treaty expressed the desire of the parties that
“exploration for and exploitation of these resources proceed without
delay”, and provided for a sharing of these resources as between the two

' Memorial, Vol. 1, para. 2.02 (citing Australian Yearbook of International Law, 1981-
1983, Vol. 10, p. 135). Some estimates, according to a source cited in the Portuguese
Memorial, arrive at a figure of “up to 7,000 million barrels, as well as a million barrels of
distillates” (Petroleum Gazette, No. 3, 1988, p. 18).

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148 EAST TIMOR (DISS. OP. WEERAMANTRY)

Governments in a Zone of Cooperation between the “Indonesian Prov-
ince of East Timor” and northern Australia, comprising three areas, A, B
and C, on the following basis:

“(a) In Area A, there shall be joint control by the Contracting
States of the exploration for and exploitation of petroleum
resources, aimed at achieving optimum commercial utilization
thereof and equal sharing between the two Contracting States
of the benefits of the exploitation of petroleum resources, as
provided for in this Treaty;

{b) In Area B, Australia shall make certain notifications and share
with the Republic of Indonesia Resource Rent Tax collections
arising from petroleum production on the basis of Article 4 of
this Treaty; and

(c) In Area C, the Republic of Indonesia shall make certain noti-
fications and share with Australia Contractors’ Income Tax
collections arising from petroleum production on the basis of
Article 4 of this Treaty.” (Application, Ann. 2, text of the
Agreement of 11 December 1989, Art. 2.)

Article 33 provides that the Treaty shall remain in force for an initial
period of 40 years from the date of its entry into force. Unless the two
Contracting States agree otherwise, it shall continue in force after the ini-
tial 40-year term for successive terms of 20 years, unless by the end of
each term, including the initial term of 40 years, the two States have con-
cluded an agreement on the permanent continental shelf delimitation in
the area covered by the Zone of Cooperation.

The preambular paragraph to the Treaty recites that they are provi-
sional arrangements which “do not jeopardize or hamper the reaching of
final agreement on the delimitation of the continental shelf”.

To give effect to this Treaty, the Petroleum (Australia-Indonesia Zone
of Cooperation) Act 1990 (No. 36 of 1990) was passed by the Parliament
of Australia. Article 3 states that the object of the Act is to enable Aus-
tralia to fulfil its obligations under the Treaty. Under Article 8:

“A person must not undertake petroleum operations in Area A
of the Zone of Cooperation except under and in accordance with a
production sharing contract, or with the approval of the Joint
Authority” (Application, Ann. 2),

established under Article 7 of the Treaty.

The internal legislative measures taken by Australia for the implemen-
tation of the Treaty are among the acts which are alleged by Portugal to
infringe the rights of the people of East Timor, the powers of Portugal as

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administering authority, the relevant Security Council resolutions and
the obligations incumbent on Member States to co-operate in good faith
with the United Nations.

Scheme of Opinion

This opinion will analyse in Part A the third party rule, concentrating
on what has been described as the principle in Monetary Gold Removed
from Rome in 1943, which has been urged by Australia as presenting a
preliminary objection to the Court’s jurisdiction. This principle is the
basis on which Portugal’s action is dismissed by the Court. The purpose
of this analysis is to ascertain whether Australia’s actions, taken by them-
selves, can be viewed as constituting a breach by Australia of its own
duties under international law, quite apart from the duties and actions of
Indonesia. If the answer to this question is in the affirmative, an inde-
pendent cause of action would be maintainable against Australia, with-
out any necessity to pass judgment upon the legal duties and conduct of
Indonesia.

Part B will deal with the objection relating to Portugal’s status to insti-
tute these proceedings. Among the matters arising under this head are the
protective structure of the United Nations Charter in relation to non-self-
governing territories, the legal force of the relevant United Nations reso-
lutions, and the question whether Portugal needed prior United Nations
authorization to maintain this Application.

The question of jurisdiction depends on whether a cause of action can
be made out against Australia, based upon Australia’s individual obliga-
tions under international law, and Australia’s individual actions, quite
independently of Indonesia. For this purpose, it will be necessary in this
opinion to examine the rights of East Timor under international law, and
the international obligations of Australia in relation to those rights.

Part C therefore examines the rights of self-determination and perma-
nent sovereignty over natural resources enjoyed by the people of East
Timor. These are the principles on which Portugal’s substantive case
depends. Granted the applicability of these principles to East Timor, the
central question for determination is whether the actions of the Respon-
dent State are in accordance with those principles.

Part D will analyse the international obligations of Australia. It will
scrutinize the juristic nature of the general legal duties lying upon all
States in respect of self-determination, and the particular legal duties
lying upon Australia vis-à-vis East Timor. It will then examine whether,
through its conduct in entering into the Timor Gap Treaty, Australia was
in breach of its international legal duties.

Part E deals with matters relating to judicial propriety, on which a
many-faceted argument was presented by Australia. This opinion does

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not deal with Australia’s submission regarding the absence of a jus-
ticiable dispute, as that has been dealt with in the Court’s Judgment.
However, it considers briefly some of Australia’s other contentions —
such as the contentions that the proceedings are a misuse of the processes
of the Court, that they have an illegitimate object, and that they have been
instituted before an inappropriate forum.

This opinion does not touch upon any matter which travels outside the
scope of the preliminary objections raised by Australia. Nor does it touch
upon any actions or conduct of Indonesia, apart from the circumstance
of Indonesia’s military intervention, which has been referred to also in
the Judgment of the Court (para. 14).

PART A. THE POSITION OF THIRD PARTY STATES

1. The Jurisdictional Issue

(i) The contentions of the Parties

In seeking relief against Australia in respect of this Treaty, is Portugal
entering judicial ground not traversable except in the presence of Indo-
nesia? Is this in fact a contest between Portugal and Indonesia under
guise of a contest with another State which is not the true respondent? If
the answers to these questions are in the affirmative, Australia’s submis-
sions must be accepted, and Portugal’s claim must be dismissed.

Australia invokes Monetary Gold Removed from Rome in 1943 (1. C.J.
Reports 1954, p. 19) as a central authority on which it rests its contention
that the Court lacks jurisdiction to entertain Portugal’s claim. Australia’s
contention is that a determination against Australia necessarily involves
as a prerequisite a determination against Indonesia in regard to the ille-
gality of its occupation of East Timor. Since Indonesia is not before the
Court, it is argued that the principle of Monetary Gold, which decided
that the Court could not adjudicate upon Italian and United Kingdom
claims to a certain quantity of Albanian gold in the absence of Albania,
operates as a jurisdictional barrier to Portugal’s claim.

Portugal, on the other hand, submits that its claim is not against Indo-
nesia, but against Australia, that the wrongdoing it alleges is not against
Indonesia, but against Australia, and that the totality of its case is made
up only of elements drawn from Australia’s own international obliga-
tions, and Australia’s own unilateral actions. It submits that Indonesia
may well be affected by the Judgment, but that it is Australia’s, and not
Indonesia’s, conduct that is the very subject-matter of the case.

(Gi) The circumstances before the Court

The question of jurisdiction is not an isolated question of law, but a
mixed question of law and fact.

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As observed in a well-known treatise on the Court’s power to deter-
mine its own jurisdiction:

“The power of the International Court to determine its jurisdic-
tion has therefore two aspects: the interpretation of the jurisdic-
tional instruments and the interpretation (and characterization) of
the facts of the dispute itself. In fact, the jurisdiction of the Court
can result only from the interaction of the elements involved in this
process.” !

It becomes necessary, therefore, as a backdrop to the ensuing discussion,
to refer briefly to some of the salient facts.

The circumstances which are either admitted by Australia, or manifest
on the documents, or of sufficient notoriety for the Court to take judicial
notice of them, are as follows:

(a) the people of East Timor have a right to self-determination which
Australia is obliged to recognize (see Part C below);

(b) the people of East Timor have a right to permanent sovereignty over
the natural resources of the Territory, which Australia is obliged to
recognize (for a fuller discussion, see Part C below);

(c) among these resources are a share of the maritime resources of the
Timor Gap area, 1.e., the portion of sea situated between the oppo-
site coasts of East Timor and Australia — a resource they share with
Australia;

(d) those resources continue to belong in law to East Timor, so long as
East Timor remains a non-self-governing territory;

(e) Australia has admitted throughout the case that East Timor still
remains a non-self-governing territory’;

(f) the United Nations still regards East Timor as a non-self-governing
territory;

(g) this area is extremely rich in oil and natural gas potential. Whatever
its extent, it forms in all probability the principal economic asset
of the East Timorese people, awaiting them at such time as they
achieve self-determination;

! Ibrahim F. I. Shihata, The Power of the International Court to Determine Its Own
Jurisdiction, 1965, p. 299.
2 Australia’s agent stated in the proceedings, on 16 February 1995:

“Australia recognizes that the people of East Timor have the right to self-determi-
nation under Chapter XI of the United Nations Charter. East Timor remains a
non-self-governing territory under Chapter XI. Australia recognized this position
long before Portugal accepted it in 1974. It has repeated this position, both before
and after its recognition of Indonesian sovereignty and it says so now.” (CR 95/14,

p. 13.)

65
152
(h)

(i)
(i)
(k)

(1)
(m)
(n)

(0)
(p)

(q)

(r)

(s)

(t)
66

EAST TIMOR (DISS. OP. WEERAMANTRY)

Portugal, the former colonial authority, has left the Territory, but is
still considered by the United Nations to be the administering
authority ;

no other power has been recognized by the United Nations as
having authority over the Territory;

on 7 December 1975, Indonesian military forces occupied the Terri-
tory, and Indonesia is now in full control thereof;

Indonesia has not, to this date, been recognized by the United
Nations as having authority over the Territory, and, nearly twenty
years after the Indonesian occupation, the United Nations is
still engaged in a search for an “internationally acceptable solu-
tion to the question of East Timor” (Reply, Vol. II, Ann. 1.8,
para. 1);

Australia has entered into a Treaty with Indonesia, dividing between
Australia and Indonesia the resources of the Timor Gap area;

in that Treaty, Australia expressly recognizes East Timor as “the
Indonesian Province of East Timor”;

confronted with the legitimate need to exploit its own resources, and
needing, for this purpose, a treaty with the opposite coastal State,
Australia did not seek directions or authorization from the United
Nations before entering into this Treaty, despite the facts that East
Timor was still a non-self-governing territory, and that the United
Nations had not recognized the incorporation of the Territory into
Indonesia. No suggestion was made before the Court that any such
direction or authorization was sought;

this Treaty has been entered into for an initial period of 40 years,
with possible renewals for 20 years at a time;

the Treaty makes no provision for any proceeds of exploitation of
the area to be earmarked for the people of East Timor whenever
their status is determined;

the people of East Timor have never at any stage, either directly or
through any duly constituted legal representative, given their con-
sent to the Treaty;

while Australia is entitled to its share of the resources of the Timor
Gap area, no delimitation, in a manner recognized by law, has thus
far taken place between Australia and East Timor. Till such time,
the exact division between Australian and East Timorese resources
must remain unclear. The possibility must therefore exist of some
benefit to Australia from East Timorese resources which, upon
another division according to law, might have been allotted to East
Timor;

Australia has joined in a Treaty under which a non-renewable natu-
ral resource would, to the extent of its exploitation under the Treaty,
be permanently lost to the people of East Timor. Over a period of
40 years, the entire resource could well be lost for ever;

Portugal cannot, in law, obtain any financial benefits for itself from
153 EAST TIMOR (DISS. OP. WEERAMANTRY)

this action, if successful, and will need to report to the United
Nations and to act under United Nations supervision.

The entirety of the opinion that follows does not travel beyond the cir-
cumstances itemized above.

(iti) Do the circumstances of the case attract any necessity to consider a
third State’s conduct ?

It is against this specific background of admitted or manifest circum-
stances that the preliminary objection must be considered as to whether
the “Monetary Gold principle” presents a barrier to the consideration of
Portugal’s claim. It has been strenuously argued that Monetary Gold
does present such a barrier. Having regard to the multiplicity of circum-
stances set out above, which relate to Australia’s obligations and actions
alone, I regret very much that J am unable to agree. In my view, all the
essentials necessary for the Court to adjudicate upon Portugal’s claim
against Australia are present, without the need for any adjudication
against Indonesia.

Australia is party to a treaty which deals, inter alia, with resources
acknowledgedly belonging to the East Timorese people, who are acknow-
ledgedly a non-self-governing people. So long as they continue to be a
non-self-governing people, those resources will continue to belong to
them by incontrovertible principles of the law of nations. At such time as
they achieve self-determination, they may deal with these resources in
such manner as they freely choose. Until such time, the international
legal system protects their rights for them, and must take serious note of
any event by which their rights are disposed of, or otherwise dealt with,
without their consent. Indeed, the deepest significance of the right of a
non-self-governing people to permanent sovereignty over natural
resources lies in the fact that the international community is under an
obligation to protect these assets for them.

The Respondent fully acknowledges that East Timor is still a non-self-
governing territory and so, also, does the United Nations, which is the
appropriate authority on these matters. While the United Nations still
awaits “an internationally acceptable solution” to the question, the Court
must examine whether it accords with the international rule of law that
any Member State of the United Nations should be in a position:

(a) to enter into a treaty with another State, recognizing that the terri-
tory awaiting self-determination has been incorporated into another
State as a province of that State; and

(b) to be party to arrangements in that treaty which deal with the
resources of that territory, without the consent either of the people
of the territory, or of their authorized representative.

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154 EAST TIMOR (DISS. OP. WEERAMANTRY)

That is the dominant issue before the Court. It centres on the actions
of the Respondent and not of the third State.

In the light of the totality of incontrovertible circumstances outlined
earlier in this section, the Court does not need to enter into an enquiry
into the lawfulness of the conduct of that third State or of its presence in
East Timor.

If East Timor is still a non-self-governing territory, every member of
the community of nations, including Australia, is under a duty to recog-
nize its right to self-determination and permanent sovereignty over its
natural resources. If this is so, as is indubitably the case, the Court would
be in possession of all the factual material necessary for the Court to pro-
nounce upon the responsibility of the Respondent State, which is in fact
before it. Nor would it, in the slightest degree, be encroaching upon the
prohibited judicial territory of making a judicial determination in rela-
tion to an absent third party.

(iv) Is the Court under an obligation to reinvestigate matters dealt with in
the United Nations resolutions ?

Australia submits that, despite the United Nations resolutions calling
upon the Government: of Indonesia to withdraw its military forces from
East Timor, reaffirming the right of the people of East Timor to self-deter-
mination, and rejecting the claim that East Timor has been mcorporated
into Indonesia, the Court would itself have to determine the question of
the legality of Indonesia’s control over East Timor, were it to proceed with
this case. In the absence of such a determination, according to the Aus-
tralian submission, the Court cannot hold that Indonesia could not law-
fully enter into the Treaty and, without such a finding, the Court cannot
hold that Australia has acted wrongfully in entering into the Treaty.

To enter upon such an enquiry would be to enter upon an immense
factual and political investigation. It would call for an examination de
novo of voluminous evidence regarding the circumstances of Indonesia’s
military entry into and subsequent control over East Timor and of the
numerous intricate military, political and diplomatic activities involved in
any such military intervention, followed by continuing occupation. Upon
this evidentiary material, the Court would be required to reach a judicial
determination. Nor is it possible in any event to engage in such an
enquiry in the absence of Indonesia.

Such an argument disregards the fact that the materials essential to
decision are already before the Court. It disregards the practicalities of
the judicial process. It disregards the scheme of the United Nations Char-
ter which distributes appropriate tasks and responsibilities among the
principal organs of the United Nations. By postulating a virtual impos-
sibility as a prerequisite to justice, it denies justice, however legitimate the
claim.

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155 EAST TIMOR (DISS. OP. WEERAMANTRY)

The Court cannot be reduced to inaction in this fashion by throwing
upon it a burden duly discharged by the appropriate United Nations
organs, acting within their proper authority. Such a position seems too
artificial and removed from reality to be the law or the procedure under
which this Court functions.

Of course, this Court, as the principal judicial organ of the United
Nations, can in appropriate circumstances be called upon to consider
whether a particular organ of the United Nations has acted beyond its
authority or in a manner not authorized by law. Such issues have been
brought before this Court in cases such as Questions of Interpretation
and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom)
(Libyan Arab Jamahiriya v. United States of America) U.C.J. Reports
1992, p. 3 and p. 114, respectively). No suggestion has been made of any
such circumstances in the present case. The only grounds on which the
force of the resolutions has been attacked is that, owing to a supposedly
diminishing support for them upon a counting of votes and, owing to the
lapse of time since their adoption, they have in some way lost their
authority. There is no warrant in United Nations law for either of these
contentions, as more fully discussed later.

In short, the substantive and procedural principles governing this
Court’s jurisdiction cannot operate so restrictively as to prevent it from
reaching a determination in a case such as this, where all the ingredients
necessary to such a decision are before it and where that decision can be
reached without trespassing upon the rule enshrined in the Court’s Stat-
ute that its jurisdiction flows only from consent. That the judgment will
affect the interests of a third party State is not a factor which, according
to the well-established jurisprudence upon this matter, operates as a bar-
rier to jurisdiction. Such effects upon third parties are always part of the
judicial process and are manifesting themselves increasingly as the world
contracts into a more closely interknit community.

These aspects are more fully considered later in this opinion.

The purpose of the foregoing discussion has been to show that the cir-
cumstances of this case render the Monetary Gold principle inapplicable,
in that the claim against the Respondent State does not in any way neces-
sitate the investigation of the conduct of a third party State and, least of
all, a judicial finding against it.

However, in view of the great importance attached to it in the argu-
ment before the Court, and in deference to the Court’s reliance on the
principle, this opinion turns now to a more detailed consideration of the
Monetary Gold case to ascertain whether, even if it were applicable, it
would present any barrier to Portugal’s claim.

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156 EAST TIMOR (DISS. OP. WEERAMANTRY)

2. The Monetary Gold Principle

(i) Subject-matter

One of the matters at issue in Monetary Gold was whether Albanian
gold should be awarded to Italy on the basis of Albanian wrongdoing. It
was clearly impossible for the Court to determine this question in the
absence of Albania, whose property and wrongdoing were the very sub-
ject-matter on which the Italian claim was based.

The present case presents a totally different picture. The obligations
and the conduct of Indonesia are not the very subject-matter of this case.
The obligations and the conduct of Australia are, and Australia is before
the Court.

Independently of an enquiry into the conduct of Indonesia, the preced-
ing section of this opinion has shown that the Court has before it suffi-
cient materials relating to the duties, the responsibilities and the actions
of Australia, to enable it to make a pronouncement thereon. It does not
need to open up vast expanses of enquiry into Indonesia’s conduct, or
military operations or any other items which may have provoked inter-
national concern, to decide this matter. Far less does it need to adjudicate
upon these. The sharp focus upon Australia’s acts and responsibilities
which is necessary for a determination of these issues can only be blurred
by such an undertaking.

(ii) Parties

In Monetary Gold the two States between whose rights the Court was
called upon to adjudicate were Italy and Albania in the first claim, and
the United Kingdom and Albania in regard to the second (see para. (iv)
below). Albania, the State whose property was sought to be appropri-
ated, and whose wrongdoing was alleged, was not before the Court. In
the present case, unlike in Monetary Gold, no claim is made against an
absent third party. The two States between whose rights the Court has to
adjudicate are Portugal and Australia, both of whom are before the
Court.

In Certain Phosphate Lands in Nauru (Nauru v. Australia), Prelimi-
nary Objections (I.C.J. Reports 1992, p. 240), likewise, the two parties
between whose rights the Court had to adjudicate were Australia and
Nauru, both parties before the Court. In both Nauru and the present
case, other parties are affected, but in neither case is that factor an
obstacle to jurisdiction.

(iii) Rationale

Two of the most often cited pronouncements of principle in Monetary
Gold are the following:

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157 EAST TIMOR (DISS. OP. WEERAMANTRY)

“In the present case, Albania’s legal interests would not only be
affected by a decision, but would form the very subject-matter of the
decision. In such a case, the Statute cannot be regarded, by implica-
tion, as authorizing proceedings to be continued in the absence of
Albania.” (C.J. Reports 1954, p. 32.)

“Where, as in the present case, the vital issue to be settled con-
cerns the international responsibility of a third State, the Court can-
not, without the consent of that third State, give a decision on that
issue binding on any State, either the third State, or any of the
parties before it.” ({bid., p. 33.)

The Court was stressing, quite naturally, that Albania’s interests would
not merely be affected by the decision, but would be the very subject-
matter of the decision, and that “the vital issue” to be settled concerned
the international responsibility of Albania itself. The generality of the
phraseology adopted by the Court has sometimes led to a tendency to
cite these passages as authority for propositions far wider than were war-
ranted by the extremely limited circumstances of the case — namely, that
Albanian property could not be appropriated on the basis of Albanian
wrongdoing in the absence of Albania. In the present case, no claim is
being made against Indonesia, no decision is sought against Indonesia,
and the vital issue is not the international responsibility of Indonesia.

Indonesia’s legal interests may be affected by the decision, but they are
not the very subject-matter of the decision, in the sense that Albanian
gold was the actual subject-matter of Monetary Gold.

The Court’s determinations on matters pertaining to Australia’s obli-
gations and actions may indeed have consequences, not only for Indo-
nesia but for other countries as well, for Australia has, in the course of
its submissions, informed the Court that several countries have dealt
with Indonesia in respect of East Timor (CR 95/10, pp. 20-21). If the
Judgment of the Court raises doubts about the validity of those treaties,
those other countries who have acted upon the validity of the treaty
may well be affected. Yet, it cannot be suggested that they be all joined,
or that, for that reason, the Court is not competent to hear the claim
before it.

The broad dicta in Monetary Gold must not be stretched beyond what
the context of the case allows.

(iv) Italian and United Kingdom claims distinguished

An analysis of the two claims in Monetary Gold brings its underlying
principle into clearer relief.

The first claim in Monetary Gold related to Italy’s contention that the
Albanian gold should be delivered to Italy in partial satisfaction of the
damage caused to Italy by the Albanian law of 13 January 1945, which

71
158 EAST TIMOR (DISS. OP. WEERAMANTRY)

had expropriated certain Italian assets. The second related to Italy’s
claim to priority over the claim of the United Kingdom to receive the
gold in partial satisfaction of the Judgment in the Corfu Channel case.

The first claim, based upon an Albanian action alleged by Italy to be
wrongful, could not, quite clearly, be decided in the absence of Albania.
Albanian rights and Albanian wrongdoing were integral to its very sub-
stance. The judgment on this point was unanimous.

The decision on the second claim, though also soundly based on legal
principle, could perhaps be differentiated in the sense that, though the
competing claims here were between Italy and the United Kingdom, the
United Kingdom claim against Albania was already res judicata in terms
of the Judgment of this Court in the Corfu Channel case. Albania’s judg-
ment debt to the United Kingdom, being res judicata, did not need to be
proved afresh, and could not be contested by Albania. However, the fact
that Italy too had claims upon the gold raised questions of priority (see
ICT. Reports 1954, p. 33) which complicated the issue.

It may be noted, in passing, that judgment on the second point was not
unanimous, for Judge Levi Carneiro registered a dissent, holding that the
Court could, and should, have adjudicated upon the second submission
of Italy, independently of the first, on the basis that the only States
directly interested in the question of the priority issue, namely, Italy and
the United Kingdom, were before the Court (ibid., p. 43, para. 7), and
that it could be resolved simply in the light of legal rules (ibid., para. 8).

(v) The third party principle and the judicial duty to decide

The opinion of Judge Carneiro is significant in that it represented a
concerned attempt to conserve the Court’s jurisdiction without violating
the third party rule. This points to an important concern, always before
the Court, that, while the third party rule is important, and must at all
times be respected, there is also another principle within which the Court
functions, namely, the judicial duty to decide the cases brought before it
within its jurisdictional competence.

As in many areas of the law, the dividing line between the operation of
the two competing principles is not always discernible with clarity. There
will in many cases be an area of doubt, in which the case could well fall
within the operation of one principle or the other. In these areas, the
Court is the judge of its own jurisdiction — a position expressly accorded
to it by Article 36 (6) of its Statute.

A distinguished line of precedents, stretching back to the Alabama
Arbitration (1872) and beyond !, has established that: “The fundamental

! For these precedents, see [brahim Shihata, op. cit., pp. 12 et seq.

72
159 EAST TIMOR (DISS. OP. WEERAMANTRY)

principle of international law governing these aspects is that an interna-
tional tribunal is master of its own jurisdiction.” ! In exercising that juris-
diction, a tribunal will naturally not view the mere presence of a doubt,
however slight, as a reason for declining jurisdiction.

It is by striking a balance between these principles that the Court’s
jurisdiction can be best developed, rather than by focusing attention
upon the third party principle, to the exclusion of the other. While the
consensual principle must always furnish the basis of jurisdiction, “Tt is a
matter of common sense that too rigid an attraction to that principle will
paralyse any international tribunal.”? The inadequacies of Article 36 as it
exists*, and the need for “a well-defined functional and teleological
approach to questions of jurisdiction” * justify such an approach to the
problems.

It was thus for very good reason that, in Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of
America), the Court expressed a note of caution against undue exten-
sions of Monetary Gold, in terms that its circumstances “probably repre-
sent the limit of the power of the Court to refuse to exercise its jurisdic-
tion” (C.J. Reports 1984, p. 431, para. 88; see, also, Certain Phosphate
Lands in Nauru (Nauru v. Australia), Judgment, I.C.J. Reports 1992,
p. 260, and Land, Island and Maritime Frontier Dispute (El Salvador/
Honduras), Application to Intervene, Judgment, I C.J. Reports 1990,
p. 116, para. 56)°.

As this Court observed in Continental Shelf (Libyan Arab Jamahiriya/
Malta), Application for Permission to Intervene: “it must be open to the
Court, and indeed its duty, to give the fullest decision it may in the cir-
cumstances of each case...” (LC.J. Reports 1984, p. 25, para. 40;
emphasis added). This compelling obligation to decide the dispute before
the Court distinguishes the judge, properly seised of jurisdiction, from
many other functionaries, who are not charged by their office with the
obligation to reach a decision on every contentious matter properly
referred to them within the scope of their authority. Literature on the
nature of the judicial function is replete with emphasis on the judicial
duty to decide. The Statute of the Court itself gives expression to this
concept in Article 38, which stipulates that the Court’s “function is to
decide in accordance with international law such disputes as are sub-

! Shabtai Rosenne, The Law and Practice of the International Court, 1985, p. 438.

2 Ibid., p. 439.

3 Jbid., p. 316.

4 Ibid.

5 See, also, the discussion in Section 3 (vii) below.

$ See D. H. N. Johnson (“The Case of the Monetary Gold Removed from Rome in
1943”, International and Comparative Law Quarterly, 1955, Vol. 4, at p. 110) to the effect
that careful consideration should be given “before the already limited jurisdiction of the
Court is limited still further” by unduly wide interpretations of the third party rule.

73
160 EAST TIMOR (DISS. OP. WEERAMANTRY)

mitted to it”! (emphasis added). Indeed, that is the function of the
Court, around which all the other provisions of the Statute are built?.

If, therefore, too restrictive an interpretation be given to the Court’s
jurisdiction, in consequence of which the Court does not decide a dispute
properly referred to it within its jurisdiction, there can be a non-perform-
ance of its express statutory obligation.

While it is important, then, that objections based on lack of third party
consent must receive the Court’s most anxious scrutiny, there is to be
weighed against it, in areas of doubt, the other consideration, equally
important, of the Court’s statutory duty to decide a dispute properly
brought before it within its judicial authority. Too strict an application of
the first principle can result in an infringement of the second.

In the international judicial system, an applicant seeking relief from
this Court has, in general, nowhere else to turn if the Court refuses to
hear it, unlike in a domestic jurisdiction where, despite a refusal by one
tribunal, there may well be other tribunals or authorities to whom the
petitioner may resort.

As Fitzmaurice observes:

“Since the national law will normally ensure that there is some
domestic forum competent to hear and determine all cases involving
breaches of that law, or the assertion of rights under it, it follows
that domestic jurisdictional issues are of secondary importance,
because a claimant who fails on jurisdictional grounds in one forum
can start again in the correct one. Thus, as a general rule, there is no
avoiding a determination on the merits if the claimant persists, and
the defendant obtains no ultimate advantage by raising jurisdic-
tional issues. It is far otherwise in the international field where a
jurisdictional objection, if successful, will normally dispose of the
case entirely, and rule out any further proceedings, not only before
the tribunal rendering the jurisdictional decision, but before any

' See Nuclear Tests { Australia v. France) U.C.J. Reports 1974, p. 271) for a confirma-
tion of this principle, and for the limited circumstances in which the Court may legiti-
mately decline to decide, as where no dispute exists.

2 In The Republic of El Salvador v. The Republic of Nicaragua, the Central American
Court of Justice remarked, in regard to the third party rule, that:

“many questions that might arise among or between Central American Governments
would be excluded from its cognizance and decision if weight be given to the trivial
argument that a third nation . . . possesses interests connected with the matters or
questions in controversy.

To admit that argument would be to render almost negligible the judicial power of
the Court, since the fact of invoking interests connected with a third nation would
detract from the Court’s judicial mission . . .” (American Journal of International
Law, 1917, Vol. 11, p. 699.)

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161 EAST TIMOR (DISS. OP. WEERAMANTRY)

other. In the international field therefore, such issues assume a far
greater, and usually a fundamental importance.” !

It is an important circumstance relating to all jurisdictional questions
that this Court is the international system’s place of ultimate resort for
upholding the principles of international law, when all other instrumen-
talities fail.

(vi) The test of reasonableness

It is sought, in this case, to interpret Monetary Gold as meaning that
the Court has no jurisdiction because it cannot determine the question
before it, without first determining the legality or otherwise of Indo-
nesia’s presence in the Territory. In short, this proposition would mean
that, where a claim by State A against State B cannot be made good
without demonstrating, as a prerequisite, some wrongful conduct on the
part of State C, State B can avoid an enquiry into its own conduct, how-
ever wrongful, by pointing to C’s wrongdoing as a precondition to its
own liability.

A time-honoured test of the soundness of a legal interpretation is
whether it will lead to unreasonable, or indeed absurd, results. That this
proposition could lead to manifestly unreasonable results will be evident
from the following illustrations, in each of which A is the applicant State,
B the respondent, and C the third party State, whose wrongdoing must
be established as a precondition to the claim or the defence. In each illus-
tration, B has subscribed to the Court’s jurisdiction, but not C, for which
reason C is not before the Court:

— After A and B enter into a mutual defence pact, C commits an act of
aggression against A. B does not come to A’s relief. In an action by A
against B, it is necessary, preliminarily, for A to prove C’s act of
aggression”. Since C is not before the Court, A’s claim must be dis-
missed.

— Between A and C, there lies a narrow corridor of B’s territory. C dis-
charges a large quantity of radioactive waste into B, whence it flows
into A. A sues B. B seeks to prove that the matter is beyond its con-
trol, inasmuch as the noxious material has come from C and, once on
its territory, could not be contained. Since it is necessary for B to

' Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice,
1986, Vol. II, p. 438; emphasis in original.
2 For this illustration, see Johnson, op. cit., p. 110.

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162 EAST TIMOR (DISS. OP. WEERAMANTRY)

prove this wrongful conduct on the part of C, B’s defence will be shut
out.

— In furtherance of B’s plans to gather military intelligence regarding
A, B persuades a potential ally, C, to overfly A’s territory for unlaw-
ful aerial surveillance. While overflying A’s territory, C’s plane crashes
over a crowded city, causing immense damage and loss of life. A
takes B to Court for damage caused. A is in possession of material
proving B’s instigation of C’s unlawful act. B can have the claim dis-
missed for lack of jurisdiction, on the basis that a precondition to the
claim is proof of C’s unlawful act.

— C makes a raid against A and plunders, inter alia, a historic object
belonging to A. B acquires the object from C. A sues B to recover it
and needs, as a prerequisite, to prove that it was the identical object
taken away in the raid by C. A cannot maintain the action in the
absence of C, for proof of C’s wrongdoing is a prerequisite to A’s
claim. (The example does not take into account any special treaty
provisions relating to the return of cultural or historical treasures.)

— A State corporation owned by A runs an industrial establishment in
the territory of C. C wrongfully confiscates its highly specialized plant
and factory, and invites B, which commands special expertise in the
relevant field, to participate in running it with C as a joint profit-shar-
ing venture. B agrees and participates. A sues B, alleging the illegality
of the whole enterprise. The claim must be rejected because the action
is not maintainable without proof of the wrongful act of C.

Examples could be multiplied.

In each case a third party’s wrongdoing must be established as a pre-
requisite to the claim or defence. In each case the rule excluding it pro-
duces manifest injustice and an unreasonable result. It is difficult to ima-
gine that such a rule can truly represent a “well-established” principle of
international law, built into the Statute of the Court — a principle on the
basis of which the fundamental question of jurisdiction is decided, on
which in turn depend the ultimate rights of parties in matters of great
moment.

The conclusion is compelling that an interpretation of Monetary Gold
to produce such a result clearly extends the decision far beyond its per-
missible limits. Indeed, such an interpretation seems contrary to the prin-
ciple of individual responsibility of each State for its own acts. The mere
allegation of a third party’s wrongdoing as a prerequisite to the proof of
one’s own cannot deflect the course of justice and steer it away from the

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163 EAST TIMOR (DISS. OP, WEERAMANTRY)

principle of a State’s individual responsibility for its individual actions.
(On this, see, further, Section 3 (ii) below.)

(vii) Prior jurisprudence

In Monetary Gold, the Court stated that:

“To adjudicate upon the international responsibility of Albania
without her consent would run counter to a well-established prin-
ciple of international law embodied in the Court's Statute, namely,
that the Court can only exercise jurisdiction over a State with its
consent.” (C.J. Reports 1954, p. 32; emphasis added.)

It is noteworthy that there was no citation of precedent in Monetary
Gold. It was a decision that formulated no new principle, and made no
new advances. The decision made no greater claim than that it was apply-
ing a principle already embodied in the Court’s Statute.

It would be helpful, therefore, to look at some prior cases.

(a) Advisory Opinions

Two well-known prior cases are Status of Eastern Carelia (P.C.LJ.,
Series B, No. 5) and Interpretation of Peace Treaties with Bulgaria, Hun-
gary and Romania, First Phase (I. C.J. Reports 1950, p. 65), both Advi-
sory Opinions, where similarly strong statements were made in similar
language.

In the first case, the Permanent Court found that it was “impossible”
to give an opinion which bears on an actual dispute between Finland and
Russia, as the Russian Government was not before the Court. Using the
same expression later used in Monetary Gold (I.C.J. Reports 1954, p. 32),
that case too described as “well established in international law” the prin-
ciple that no State could, “without its consent, be compelled to submit its
disputes . . . to mediation or to arbitration” (P.C.LJ., Series B, No. 5,
p. 27).

In Interpretation of Peace Treaties with Bulgaria, Hungary and Roma-
nia, as well, the Court referred to the

“well-established principle of international law according to which
no judicial proceedings relating to a legal question pending between
States can take place without their consent” (7 C.J. Reports 1950,
p. 71).

If these cases were a basis on which this Court described the third
party rule as a “well-established” principle in international law, the point
needs to be made that advisory opinions rest upon a different judicial
basis from contentious proceedings. The Court’s decision as to whether

77
164 EAST TIMOR (DISS. OP. WEERAMANTRY)

to proceed with a matter is clearly taken on different bases in advisory
proceedings, where the Statute may perhaps give the Court somewhat
more discretion as to whether it will render an opinion (Statute, Art. 65).
Precedents deriving from advisory opinions, where the Court declines to
give an opinion in consequence of third party involvement, are not there-
fore of direct applicability to jurisdictional decisions in contentious pro-
ceedings.

It is significant moreover that in Status of Eastern Carelia, the Court
described it as “very inexpedient that the Court should attempt to deal
with the present question” (P.C.IJ., Series B, No. 5, p. 28; emphasis
added) and again stated “it is certainly expedient that the facts upon
which the opinion of the Court is desired should not be in controversy”
(ibid. ; emphasis added).

The jurisprudence on this matter deriving from advisory opinions can
thus be distinguished'. Whether or not considerations of “expediency”
can be taken into account in advisory opinions, they have no place in
contentious litigation where the Court must reach a decision one way or
the other (see para. (v) above)?.

(b) Contentious cases

As for the jurisprudence deriving from contentious proceedings, the
manner in which the Court handled the Corfu Channel case, just a few
years earlier, is not in line with the general proposition formulated in
Monetary Gold.

In that case, the United Kingdom claimed that the minefield which
caused damage to its shipping was laid by Albania. As an alternative
argument it claimed that the minefield was laid by Yugoslavia, with the
connivance of the Albanian Government. As the Court observed:

“This would imply collusion between the Albanian and the Yugo-
slav Governments, consisting either of a request by the Albanian
Government to the Yugoslav Government for assistance, or of
acquiescence by the Albanian authorities in the laying of the mines.”
(I C.J. Reports 1949, p. 16.)

In so far as concerned this alternative argument, the principal wrong-
doer was Yugoslavia. Yugoslavian wrongdoing was the prerequisite to

1 See D. H. N. Johnson:

“The Court’s judgment gives the impression that certain dicta, properly applicable
to the question whether or not the Court should exercise a discretion in favour of
giving an advisory opinion, were applied somewhat too literally to the different cir-
cumstances of a contentious case.” (Op. cit., p. 110.)

2 See, also, Anglo-Iranian Oil Co. (I.C.J. Reports 1952, p. 103), and Rights of Minori-
ties in Upper Silesia (Minority Schools) (P.C.I.J., Series A, No. 15, p. 22), for other cases
which held that the jurisdiction of the Court “depends on the will of the Parties”.

78
165 EAST TIMOR (DISS. OP. WEERAMANTRY)

the alleged Albanian wrongdoing, very much in the manner of Indo-
nesian wrongdoing being the prerequisite to alleged Australian wrong-
doing, as argued by Australia.

In proof of this collusion the United Kingdom Government placed
evidence before the Court and, in the Court’s own words:

“The Court gave much attention to this evidence and to the docu-
mentary information supplied by the Parties. It supplemented and
checked all this information by sending two experts appointed by it
to Sibenik: Commodore S. A. Forshell and Lieutenant-Commander
S. J. W. Elfferich.” (Z.C.J. Reports 1949, p. 16.)

“Apart from Kovacic’s evidence, the United Kingdom Govern-
ment endeavoured to prove collusion between Albania and Yugosla-
via by certain presumptions of fact, or circumstantial evidence, such
as the possession, at that time, by Yugoslavia, and by no other
neighbouring State, of GY mines, and by the bond of close political
and military alliance between Albania and Yugoslavia, resulting
from the Treaty of friendship and mutual assistance signed by those
two States on July 9th, 1946.” (Ibid., p. 17; emphasis added.)

The Yugoslav Government was not a party to the proceedings but it author-
ized the Albanian Government to produce certain Yugoslav documents.

Sir Hartley Shawcross for the United Kingdom made the following
statements, among others, implicating Yugoslavia, not merely peripher-
ally, but indeed, in this part of the case, as the principal participant in the
international wrongdoing alleged:

(a) that it was well known that, at the relevant time, there was the
closest association and collaboration between Albania and Yugo-
slavia (.C.J. Pleadings, Corfu Channel, Vol. Til, p. 239);

(6) that members of the Albanian Forces were sent to Yugoslavia for
training (ibid., p. 240);

(c) that Yugoslavia, under a decree contained in the Yugoslav Official
Gazette, was given “a virtual monopolistic position in regard to
coastal traffic between the two countries” (ibid. );

(d) that Yugoslavia conducted practically the whole of Albania’s for-
eign relations and “had naval, military and air-force missions in
Albania guiding the organization of the military arrangements of
that country” (ibid. );

fe) that Yugoslavia had the relevant GY type of German mines, which
were laid in the Corfu Channel (ibid. );

(f) that the suspicion that Yugoslav ships laid these mines is “converted
into certainty” by the evidence of Lieutenant-Commander Kovacic,
formerly of the Yugoslav navy (ibid. ) ;

79
166 EAST TIMOR (DISS. OP. WEERAMANTRY)

(g) that the mines were hurriedly loaded onto two Yugoslav ships which
“silently steamed away” during the night to lay them in Albanian
waters (1 C.J. Pleadings, Corfu Channel, Vol. III, p. 243);

(h) that there was a stock of GY mines at Sibenik and the mines loaded
on the vessels came from that stock (ibid. );

(i) that the ships were seen again 4 days later, but the mines were not
upon them (ibid, pp. 243-244); and

{j) that there was evidence that the duty carried out by the ships was to
lay a field of mines in Albanian territorial waters (ibid., p. 244).

The Court did not dismiss these suggestions as beyond its jurisdiction
to investigate, but in fact, by its Order of 17 January 1949 (Z C.J. Reports
1949, p. 151), instructed naval experts nominated by it to carry out inves-
tigations on the spot at Sibenik, Yugoslavia, and in the Corfu Channel
area. For two days, at Sibenik, the experts inspected the actual geo-
graphical layout of the spot where Kovacic testified he had seen the two
Yugoslav minelayers being loaded with mines!.

Clearly this was a very specific allegation of an internationally wrong-
ful act by a third State not before the Court. Indeed, it provoked a strong
response from Albania in the following terms:

“How could the Court decide on the facts of alleged complicity
and on the demand for reparations against ‘the accomplice’ without
having given a decision against ‘the principal offender’ accused arbi-
trarily and without proof by the British Government?”?

The Court held, in fact, that “the authors of the minelaying remain un-
known” (1. C.J. Reports 1949, p. 17). Had the Court accepted the United
Kingdom’s submissions, it would have been making a clear finding of the
commission of an illegality by Yugoslavia. The fact that such a wrongful
act was alleged against a third party did not deter the Court from con-
sidering the alternative argument placed before it.

The Corfu Channel case was thus a stronger instance of third party
involvement than the present case. It may even be characterized as a case-

' For the arrangements regarding this visit, see .C.J. Pleadings, Corfu Channel, Vol. V,
pp. 257-274. See, also, for a more detailed study, Il Yung Chung, Legal Problems Involved
in the Corfu Channel Incident, 1959, pp. 146 et seq.

2 L.C.J. Pleadings, Corfu Channel, Vol. I, p. 353, para. 102, Rejoinder, Government of
Albania.

“Comment la Cour pourrait-elle statuer sur les faits de prétendue complicité et sur
la demande de réparations introduite contre ‘le complice’, sans avoir rendu une déci-
sion contre ‘l’auteur principal’ accusé arbitrairement et sans preuve par le Gou-
vernement britannique ?” (Original French.)

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167 EAST TIMOR (DISS. OP. WEERAMANTRY)

which went to the very edge of the principle, or even, conceivably, some-
what beyond it, but it does not support the suggestion in Monetary Gold
of a steady stream of prior authority.

If the proposition be correct that an application should be dismissed
where the illegal act of a third party State lies at the very foundation of
the claim, the Court would have indicated to the United Kingdom that
this alternative claim was unsustainable in the absence of Yugoslavia and
would have dismissed this aspect of the case in limine.

If, far from taking such a course, the Court “gave much attention” to
the evidence, checked the documentary information and sent experts to
investigate it, it was not governing itself by the principle which Australia
argues is fundamental and well established. It even permitted the United
Kingdom Government to attempt to prove collusion with the absent
third State, to the extent not only of possession of the mines, but also of
a military alliance resulting from a treaty of friendship and mutual alli-
ance. The attitude of the Court in Corfu Channel is thus in sharp contrast
to the Court’s decision in the present case.

The Ambatielos case U.C.J. Reports 1953, p. 10) may also be men-
tioned as an instance where the position of third parties not before the
Court was likely to be affected by the decision the Court was invited to
make.

In the merits phase of that case, the Greek Government, in a case
between itself and the United Kingdom, invited the Court to consider
certain articles of treaties between the United Kingdom and Denmark,
the United Kingdom and Sweden and the United Kingdom and Bolivia.
The United Kingdom Government, without objecting to the reference to
those treaties, questioned the correctness of the English translations of
certain of the provisions invoked. The Court was invited to place a con-
struction upon these treaties which would have helped the Government
of Greece in the interpretation it sought to place upon its treaty with the
United Kingdom. No exception seems to have been taken to the refer-
ence to these treaties!.

(villi) Subsequent jurisprudence

A substantial jurisprudence has built up over the years in which,
although the principle in Monetary Gold has been invoked as a bar to

1 See, also, the Anglo-Iranian Oil Co. case U.C.J. Reports 1952, p. 93) where a conten-
tion of the United Kingdom was that, upon the coming into force of the Iranian-Danish
Treaty on 6 March 1935, Iran became bound, by the operation of the most-favoured-
nation clause, “to treat British nationals on her territory in accordance with the principles
and practice of international law” (ibid., p. 109).

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168 EAST TIMOR (DISS. OP. WEERAMANTRY)

jurisdiction, the Court has held the principle within its proper confines,
refusing to allow it to be unduly extended. This accords with the Court’s
view, already cited, that Monetary Gold had gone to “the limit of the
power of the Court to refuse to exercise its jurisdiction” (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, I. CJ.
Reports 1984, p. 431, para. 88).

Among the cases so decided by the Court are Military and Paramili-
tary Activities in and against Nicaragua (Nicaragua v. United States of
America), Land, Island and Maritime Frontier Dispute (El Salvador/
Honduras), Continental Shelf (Libyan Arab Jamahiriya/Malta), Fron-
tier Dispute (Burkina Faso/Republic of Mali) and Certain Phosphate
Lands in Nauru (Nauru v. Australia).

Principles that have received elaboration in the Court’s developing
jurisprudence on this point are that it did not suffice that a third party
was affected (Land, Island and Maritime Frontier Dispute (El Salvador/
Honduras), Application to Intervene, Judgment, L.C.J. Reports 1990,
pp. 115-116, para. 55); that the interests of the third State must be a part
of “the very subject-matter of the decision” (ibid., pp. 121-122, paras. 72
and 73); that the “test is not merely one of sameness of subject-matter
but also of whether, in relation to the same subject-matter, the Court is
making a judicial determination of the responsibility of a non-party
State” (Certain Phosphate Lands in Nauru (Nauru v. Australia), Prelimi-
nary Objections, Judgment, .C.J. Reports 1992, p. 296, Judge Shaha-
buddeen, separate opinion); that joint wrongdoers may be individually
sued (ibid., pp. 258-259); and that the circumstance that a third party
would be affected by the Judgment is not by itself sufficient to bring
Monetary Gold into operation (ibid., pp. 261-262).

Particular reference should be made to Certain Phosphate Lands in
Nauru (C.J. Reports 1992, p. 240), which is in a sense closest to the
principle involved in the present case. In that case, although the admini-
stration of Nauru was entrusted jointly to three trustee Powers — Aus-
tralia, New Zealand and the United Kingdom — and any finding of
breach of trust by Australia would, it was alleged, necessarily mean a
finding against its partners as well, the Court was not deterred from dis-
missing that objection and setting the case down for hearing on the
merits. The Court held that the interests of New Zealand and the United
Kingdom did not constitute the very subject-matter of the judgment to be
rendered on the merits of Nauru’s Application. The Court rejected Aus-
tralia’s contention that there would be a simultaneous determination of
the responsibility of all three States and that, so far as concerns New Zea-
land and the United Kingdom, such a determination would be precluded
by the fundamental reasons underlying Monetary Gold (I C.J. Reports
1992, p. 261, para. 55). The fact that the Court’s judgment would clearly
affect third parties not before the Court does not thus deter the Court

82
169 EAST TIMOR (DISS. OP. WEERAMANTRY)

from adjudicating upon the dispute between the parties who are in fact
before it!.

The undoubtedly necessary and unimpeachable principle enunciated in
Monetary Gold has thus been kept within the ambit of its rationale by a
steadily developing body of jurisprudence of this Court. With the greatest
respect to the Court’s decision in this case, it would appear that it will
step back from that stream of development and, in so doing, both expand
the limited principle of that case and diminish the area of the Court’s
jurisdiction. The Monetary Gold principle, thus applied, would be dis-
charging a function very different to what it did in the case in which it
was formulated.

3. Other Relevant Factors
Gi) Third party safeguards

In Military and Paramilitary Activities in and against Nicaragua, the
Court observed that, in appropriate circumstances, it would decline, as in
Monetary Gold, to exercise the jurisdiction conferred upon it where the
legal interests of a State not party to the proceedings “ ‘would not only be
affected by a decision, but would form the very subject-matter of the
decision’ U.C.J. Reports 1954, p. 32)” U.C.J. Reports 1984, p. 431,
para. 88).

Thereafter the Court went on to note the safeguards available to third
parties in the following terms:

! Reference may be made, in this context, to the situation, rather similar to that before
the Court in the instant case, which confronted the Central American Court of Justice in
The Republic of El Salvador v. The Republic of Nicaragua. El Salvador complained that
the Bryan-Chamorro Treaty concluded by Nicaragua with the United States for the con-
struction of an inter-oceanic canal was repugnant to previous Treaties of Washington
between El Salvador and Nicaragua. Nicaragua’s position was that the Bryan-Chamorro
Treaty was with a State not subject to the jurisdiction of the Court and hence that the
Court lacked jurisdiction. The Central American Court of Justice observed:

“What may be called the fundamental argument: that the Court has no jurisdic-
tion over the subject-matter of this suit because it involves interests of a third nation
that is not subject to the authority of the Court, is also unsound in the opinion of the
judges.” (American Journal of International Law, 1917, Vol. 11, p. 698.)

The Court went on to declare that the Government of Nicaragua was under the obligation
to re-establish and maintain the legal status that obtained prior to the Bryan-Chamorro
Treaty (ibid., p. 730), but it refused to go so far as to declare the Bryan-Chamorro Treaty
void, as that would involve the rights of a third party who had not submitted to the juris-
diction of the Court. Thus,

“The Central American Court did not allow the consideration that it might have to
pass upon issues closely concerning a third State without that State’s consent to deter
it from giving a decision between the two States actually parties to the dispute before
the Court.” (Johnson, op. cit., p. 109.)

83
170 EAST TIMOR (DISS. OP. WEERAMANTRY)

“Where however claims of a legal nature are made by an Appli-
cant 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 Stat-
ute. As the Court has already indicated . . . other States which con-
sider that they may be affected are free to institute separate proceed-
ings, or to employ the procedure of intervention.” (C.J. Reports
1984, p. 431, para. 88.)

Third party protection, which follows also from the general principles
of international law, is entrenched, so far as the Court’s jurisdiction is
concerned, by Article 59 of its Statute.

Indeed, this concern for the protection of third States is carried even
further by Article 62 which ensures that, should a State consider that it
has an interest of a legal nature which may be affected by the decision in
the case, it may request that it be permitted to intervene.

When the Court’s Statute was designed, it was no doubt clearly fore-
seen that a judgment of the Court could well make an impact on the
rights of third parties. The Statute therefore embodied these carefully
structured safeguards protecting the interests of third party States which
may be affected by a decision — a structure which both protects them
and enables them to intervene. Monetary Gold did no more than give
effect to these statutory provisions. It was scarcely meant to be erected
into an independent principle in its own right, constituting a third and
further protection, travelling even beyond the Statute itself.

It is to be remembered, moreover, that, while in domestic jurisdictions
where the doctrine of stare decisis applies, the other parties in transac-
tions of an identical nature may find themselves bound by a principle of
law laid down in a case to which they are not parties, in international
law, third parties have the further safeguard of the absence of a doctrine
of stare decisis.

(li) The principle of individual State responsibility

Principles of State responsibility, based on the autonomous and indi-
vidual nature of each State, require that where two States are accessory
to a wrongful act, each State must bear international responsibility for its
own internationally wrongful act.

This principle was well formulated by Portugal at the oral hearings:

“the security and the smooth running of the Organization are col-
lective under the Charter, because each member has duties that it
owes to the others and to the Organization itself, inasmuch as it con-
stitutes their corporate union. In other words, it is because the
system is universal that, within it, each member retains individual

84
171 EAST TIMOR (DISS. OP. WEERAMANTRY)

responsibility for its acts and a duty to respect the principles com-
mon to all. It follows that none of the members can shelter behind
the fact that a situation has been created by another in order to
avoid itself reacting to that situation in pursuance of the rules of law
enshrined in the common Charter.” (CR 95/5, p. 72.)

In the Seventh Report on State Responsibility by Mr. Roberto Ago,
Special Rapporteur, that distinguished rapporteur treated as axiomatic
the proposition that a breach of international responsibility by a State
would engage that State’s responsibility, irrespective of another State’s
participation in the act. The report observed:

“Jt need hardly be said that, if the actions constituting participa-
tion by a State in the commission of an internationally wrongful act
by another State constituted a breach of an international obligation
in themselves, they would on that account already engage the inter-
national responsibility of the State which performed those actions,
irrespective of any consequences that might follow from the part
taken in the internationally wrongful act of another State.” !

On these principles, the Respondent State must answer separately for
its own acts.

This separation of responsibility was illustrated also in this Court’s
decision in Nauru, where, although the mandate and trusteeship in ques-
tion were given to the same three Governments “jointly”, the Court per-
mitted the case to proceed against one of the three trustees, despite the
implications this might have had upon the liability of others. The Court
there pointed out that it was not precluded from adjudicating upon the
claims submitted to it:

“provided that the legal interests of the third State which may pos-
sibly be affected do not form the very subject-matter of the decision
that is applied for. Where the Court is so entitled to act, the interests
of the third State which is not a party to the case are protected by'
Article 59 of the Statute of the Court, which provides that, ‘The
decision of the Court has no binding force except between the
parties and in respect of that particular case.’” (Z C.J. Reports 1992,
p. 261, para. 54.)

It would be even more inappropriate that a State which has not
accepted the Court’s jurisdiction can use the very fact of its non-accept-

' Chap. IV, “Implication of a State in the Internationally Wrongful Act of Another
State”, Yearbook of the International Law Commission, 1978, Vol. IJ (Part One), A/CN.4/
307 and Adds.1 and 2, para. 52, footnote 99; Reply, Vol. I, paras. 7.35-7.37; see, also, Ian
Brownlie, State Responsibility (Part I), 1983, p. 190.

85
172 EAST TIMOR (DISS. OP. WEERAMANTRY)

ance as a means of preventing States that have accepted jurisdiction from
settling their disputes according to law.

Australia’s submission that its responsibility “could at all events be no
more than consequential, derived from the responsibility of Indonesia”
(CR 95/8, p. 8) does not accord with basic principles of State responsi-
bility, for, to use again the language of the same rapporteur:

“One of the principles most deeply rooted in the doctrine of inter-
national law and most strongly upheld by State practice and judicial
decisions is the principle that any conduct of a State which inter-
national law classifies as a wrongful act entails the responsibility of
that State in international law.”!

Even if the responsibility of Indonesia is the prime source, from which
Australia’s responsibility derives as a consequence, Australia cannot
divert responsibility from itself by pointing to that primary responsibility.

(iii) Rights erga omnes

Australia has very rightly stated that it “does not dispute that the right
to self-determination is an erga omnes principle” (Rejoinder, para. 78).
This position has been many times repeated in the oral submissions. The
concept of rights and obligations erga omnes is further discussed in
Part D.

An erga omnes right is, needless to say, a series of separate rights erga
singulum, including inter alia, a separate right erga singulum against Aus-
tralia, and a separate right erga singulum against Indonesia. These rights
are in no way dependent one upon the other. With the violation by any
State of the obligation so lying upon it, the rights enjoyed erga omnes
become opposable erga singulum to the State so acting.

To suggest that Indonesia is a necessary party to the adjudication of
that breach of obligation by Australia is to hamper the practical opera-
tion of the erga omnes doctrine. It would mean, very much along the lines
of the illustrations in Section 2 (vi) above, that Indonesia could protect
any country that has dealings with it in regard to East Timor from being
impleaded before this Court, by Indonesia itself not consenting to the
Court’s jurisdiction. In the judicial forum, the right erga omnes could to
that extent be substantially deprived of its effectiveness.

Moreover, in any event, Indonesia would be protected against any
suggestion of res judicata against it. The right erga omnes, when asserted
against Australia, becomes a right erga singulum which, in turn, becomes
a res judicata erga singulum against Australia, in the event of the success

' Ago, Yearbook of the International Law Commission, 1971, Vol. II (Part One), p. 205,
para. 30.

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173 EAST TIMOR (DISS. OP. WEERAMANTRY)

of the claim. It would have no adjudicatory quality against Indonesia,
thus preventing the “Moñetary Gold principle” from operating to bar the
action against Australia.

(iv) Increasingly multilateral nature of modern international obligations

Reference has already been made to the fact that the multilateral
aspect of obligations is gaining increasing significance in modern interna-
tional law. Any instrumentality charged with administering international
law in this context needs to take account of this aspect so as not to
restrict the development of international law in keeping with this trend.

Foremost among the sources of multilateral obligations is the United
Nations Charter, under which all States alike are vested with rights and
responsibilities which all others must recognize.

In this network of interlocking international relationships, each State
which is impugned by another for failure to abide by its international
obligations must answer for itself, in accordance with the principle of
individual responsibility already outlined. It cannot plead another State’s
responsibility as an excuse for its own failure to discharge its own respon-
sibility. That other State will answer for itself when the appropriate situa-
tion arises and may perhaps be affected by the judgment the Court
renders in the case before it.

If, for example, the Court held with Portugal in this case, this finding
would have repercussions on many other States which may or may not
have acted in accordance with their individual obligations to recognize
the rights of East Timor. This Court cannot concern itself with all those
ramifications of a finding which it delivers in accordance with binding
norms of international law. The Court cannot anticipate them all, in a
world order of criss-crossing multilateral obligations.

As Judge Shahabuddeen observed in his separate opinion in Certain
Phosphate Lands in Nauru:

“It has been correctly pointed out that ‘[a]s interstate relationships
become more complex, it is increasingly unlikely that any particular
dispute will be strictly bilateral in character’ (L. F. Damrosch,
“Multilateral Disputes”, in L. F. Damrosch (ed.), The International
Court of Justice at a Crossroads, 1987, p. 376).” (I C.J. Reports
1992, p. 298.)

(v) The distinction between a treaty and the unilateral acts from which it
results

It is self-evident that while a treaty is a bilateral or multilateral instru-
ment, it comes into existence through the fusion of two or more unilat-
eral acts, as the case may be. What the Court is invited to consider in this

87
174 EAST TIMOR (DISS. OP. WEERAMANTRY)

case is not the unlawfulness of the bilateral Treaty, but the unlawfulness
of the Respondent’s unilateral actions which went into the making of
that Treaty.

It is a clear principle in the domestic law of obligations that the un-
lawfulness of a contract and the unlawfulness of the conduct of the
parties to it are different concepts. A similar principle is to be found in
the law of treaties, where there could, for example, be a valid treaty even
though one party acts unlawfully by its domestic law in entering into it
(Vienna Convention, Art. 46), or when a representative acts in violation
of a specific restriction validly placed upon him by his State (Art. 47).
The treaty is nevertheless binding.

The Court is not called upon to pronounce upon the unlawfulness or
otherwise of the Treaty, or upon the unlawfulness or otherwise of Indo-
nesia’s conduct, but upon the unlawfulness or otherwise of Australia’s
unilateral act in entering into it. What are the legal obligations of a par-
ticular party, what are its acts, to what extent do those acts contravene its
obligations — those are the questions bearing upon the unilateral con-
duct of one party, which the Court is called upon to decide. The invalid-
ity of the Treaty, or of the other party’s conduct, is not the precondition,
as Australia suggests, for the Court’s finding on the unlawfulness of Aus-
tralia’s conduct.

The acts of a contracting State, such as the decision to sign, the deci-
sion to accord de jure recognition, the decision to ratify, the decision to
implement, the decision to legislate, are all unilateral acts upon which the
Court can adjudicate.

(vi) Has the wrong party been sued?

Australia’s position is that the true respondent in this case is Indonesia.
According to this submission, Portugal’s real opponent is Indonesia,
Portugal’s grievance is against Indonesia and Portugal’s true cause of
action is only against Indonesia.

At the oral hearings, Australia summarized its case in this regard in the
following terms:

“— on the one hand, Australia heartily subscribes to the legal
settlement of international disputes which lend themselves to it;
but it also subscribes to the principle of consent to jurisdiction
(at least, until a consensus in favour of the universal, compul-
sory jurisdiction of the Court has been achieved); and it con-
siders that this forum should not be diverted to ends not prop-
erly its own; as a sovereign State, Indonesia has chosen not to
accept the optional clause; that is its business;

— on the other hand, Australia does not mean to be used as a
scapegoat, whose principal function would be to salve the con-
science of Portugal which, being unable to join issue with Indo-
nesia, is attacking a State which, in reality, . . . can do nothing
about the matter and whose alleged responsibility — a com-

88
175 EAST TIMOR (DISS. OP. WEERAMANTRY)

plete fabrication for the purposes of the case —— could at all
events be no more than consequential, derived from the respon-
sibility of Indonesia” !.

If Indonesia had in fact been before this Court, one could see that Por-
tugal would probably have pleaded its case against Indonesia in very dif-
ferent terms from its claim against Australia. A larger segment of factual
material pertinent only to Indonesia may have been placed before this
Court, which is not germane to the case against Australia. It may even be
said that, had both Indonesia and Australia been available as respon-
dents, Portugal’s claim against Indonesia may have been the more impor-
tant of the two.

Another way of approaching the submission that the wrong party has
been sued is perhaps as follows:

If Indonesia had been a party before the Court, Portugal’s case against
Indonesia would either be the identical case, namely, that it too acted un-
lawfully in entering into the identical treaty, or it would be a more sub-
stantial case, involving other items of alleged illegal conduct against
Indonesia. In case of the first alternative, if it were the identical case, the
situation would be directly covered by the Nauru decision where the
claim against absent parties would have been identical, had they been
sued, to the claim actually before the Court. On the clear jurisprudence
of this Court, the Court would have jurisdiction. In case of the second
alternative, the case against Indonesia would be one of a different order,
involving a different range of evidence and a different set of issues. The
case against Australia depends upon Australia’s obligations and their
violation by entering into the Treaty. The case against Indonesia would
relate to the circumstances of Indonesia’s entry into East Timor, the
political and administrative arrangements that have followed, and numer-
ous other details pertinent to alleged unlawful conduct by Indonesia. It
would, in short, be a totally different case. Such a situation would run
directly contrary to the Australian contention that the case brought
against Australia is in reality a case against Indonesia, brought against
the wrong respondent.

All that this Court is concerned with is whether a legally supportable

! Public sitting of 7 February 1995, CR 95/8, p. 8. The French original of the (second)
translated paragraph of these oral submissions is as follows:

“— d'autre part, Australie entend ne pas être utilisée comme un bouc émissaire
dont la principale fonction serait d’apaiser la mauvaise conscience du Portugal
qui, faute de pouvoir s’en prendre à l’Indonésie, s’attaque à un Etat qui, vrai-
ment, ... n’en peut mais et dont la prétendue responsabilité, forgée de toutes
piéces pour les besoins de la cause, ne pourrait, de toute maniére, qu’étre
consécutive, dérivée, de celle de l’Indonésie”.

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176 EAST TIMOR (DISS. OP. WEERAMANTRY)

claim has been made against Australia. If this be so, it matters little
whether or not a more important or substantial claim could have been
made against Indonesia had Indonesia consented to the jurisdiction.
The answer therefore to the contention that the wrong party has been
sued is that the Court needs only to go so far as to find that there is a
legally sustainable claim against the party that has in fact been sued.

(vii) Historical background

As a postscript to this discussion, it would not be out of place to look
back upon the deliberations at the League of Nations regarding the par-
ticular clause of the Court’s Statute upon which this entire case has
turned.

In regard to consulting travaux préparatoires regarding certain impor-
tant provisions of the Covenant of the League of Nations, Judge Jessup
observed:

“In my opinion, it is not necessary — as some utterances of the
two international courts might suggest — to apologize for resorting
to travaux préparatoires as an aid to interpretation. In many
instances the historical record is valuable evidence to be taken into
account in interpreting a treaty.” (South West Africa, Second Phase,
Judgment, I. C.J. Reports 1966, p. 352; dissenting opinion.)

The First Assembly of the League, on 13 December 1920, the day of
adoption of the Statute, was discussing the optional jurisdiction prin-
ciple, embodied in Article 36, paragraph 2, of the Statute of the Perma-
nent Court, which, subject to minor variations, became Article 36 (2)
of the Statute of this Court. What were the expectations attending the
adoption of this clause, and how was it expected to work?

Some delegates criticized the principle of consent as a basis of the
Court’s jurisdiction — for example, Mr. Tamayo (Bolivia) observed that
this was unstable and perishable material out of which to build the edifice
of justice !.

Others saw the Statute, and the principle of consent on which jurisdic-
tion was based, as an instrument which, through the experience of their
operation, would enable the new concept of international adjudication,
never in previous history available for universal recourse”, to grow in
usefulness and international service. That background of lofty purpose
always attends the work of this Court.

' Documents concerning the Action Taken by the Council of the League of Nations
under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the
Permanent Court, p. 248.

2 The Court was seen at the time of its creation as “the greatest instrument which the
world has ever yet been able to contrive for seeing that international justice is carried out”
(Mr. Balfour (British Empire), ibid., p. 247).

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177 EAST TIMOR (DISS. OP. WEERAMANTRY)

Developing further the principle of progressive development, Mr. Bal-
four stated:

“if these things are to be successful they must be allowed to grow. If
they are to achieve all that their framers desire for them, they must
be allowed to pursue that natural development which is the secret of
all permanent success in human affairs . . .”!

The inadequacy of Article 36 was recognized in 1945 as well, when the
Statute for the present Court came under discussion, but no agreement
was possible as to how to rewrite it?.

Three-quarters of a century have passed since the adoption of the pro-
vision under discussion. This period has been rich in the experience out of
which this Court and its predecessor have been fashioning an interpreta-
tion harmonious with the needs which the Statute intended it to serve.
Observing that “the very notion of a more broadly based conception of
the jurisdiction of the Court is gaining ground”? and that “[t}he prin-
ciple that the jurisdiction of an international tribunal derives from the
consent of the parties has long been subject to a process of refinement” 4,
Rosenne goes on to observe: “The result is that the application of the
principle is less rigid than may be inferred from the manner in which it is
enunciated.” >

As shown in Section 2 (viii) above, the jurisprudence of this Court in
relation to absent third parties has indeed been growing along the path of
the gradual and steady development envisaged at the time of the adop-
tion of the principle of consent as a basis of jurisdiction.

A continuous thread that runs through the jurisprudence that has
evolved around the “Monetary Gold principle” is the Court’s concern,
while giving due weight to the interests of third parties, at the same time,
to prevent an extended application of that principle from hampering it in
the legitimate and proper exercise of its jurisdiction. Consistent with this
approach, and for the reasons already discussed, the Court should, in my
respectful view, have proceeded to adjudicate upon this case. I am of the
view, again expressed with the greatest respect for the contrary opinion
of the Court, that the present Judgment represents a break in the course
of steady development that has thus far elucidated and refined the appli-
cation of the “Monetary Gold principle”.

! Documents concerning the Action Taken by the Council of the League of Nations
under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the
Permanent Court, p. 247. In more dramatic terms, another speaker observed:

“We must begin by building a little chapel, and in the course of time the League
of Nations will be able to build a cathedral. Already . . . we hear the noise of the
hammers of those who are building.” (Mr. de Aguerro (Cuba), ibid.)

2 Rosenne, op. cit., p. 316.
3 Ibid.

4 Ibid.

> Ibid., p. 317.

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178 EAST TIMOR (DISS. OP. WEERAMANTRY)

(viii) Conclusion

In the result, the Australian objections based on the contentions that
the Monetary Gold principle stands in the way of the Court’s compe-
tence, that the Court would be required to make an adjudication on the
conduct of Indonesia, and that the wrong party has been sued should all
be rejected. The reasons for these conclusions have been sufficiently set
out. Australia’s obligations under international law and Australia’s
actions such as negotiating, concluding, and initiating performance of the
Treaty, taking internal legislative measures for the application thereof,
and continuing to negotiate with the State party to that Treaty are justi-
ciable on the basis of Australia’s legal position viewed alone and Aus-
tralia’s actions viewed alone.

PART B. THE JUS STANDI OF PORTUGAL

If the Court has jurisdiction to hear this case, as indicated in Part A of
this opinion, the matter cannot proceed further without a consideration
of the important Australian objection that Portugal lacks the necessary
legal status to act on behalf of East Timor.

(i) The respective positions of the Parties

Australia challenges the locus standi of Portugal to bring this action. It
asserts that since Portugal has lost control over the Territory several
years ago, and another Power, namely Indonesia, has during all those
years been in effective control, Portugal lacks the status to act on behalf
of the Territory.

Moreover, with specific reference to its treaty-making powers, Aus-
tralia submits that Portugal totally lacks the capacity to implement any
treaty it may make relating to East Timor. Lacking this capacity, it lacks
the ability to enter into any meaningful treaty regarding the Territory, or
to complain that a treaty has been entered into without reference to it by
another Power which is in effective control.

In support of this position, Australia points to the absence of any Gen-
eral Assembly resolution recognizing the status of Portugal since 1982,
and the absence likewise of any resolution of the Security Council since
1976. Australia consequently argues that, even if resolutions before these
dates validly recognized such a status at one stage, they have since fallen
into desuetude and been overtaken by the force of events. Australia
points, moreover, to the fact that successive votes in the General Assem-
bly in relation to East Timor have revealed a decreasing proportion of
United Nations membership in favour of the resolutions recognizing the
position of Portugal.

Portugal argues, on the other hand, that, although it has physically left
the Territory and no longer controls it, it is nonetheless the administering
Power, charged with all the responsibility flowing from the provisions

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179 EAST TIMOR (DISS. OP. WEERAMANTRY)

of Chapter XI of the United Nations Charter, and has been recognized
as such by a series of General Assembly and Security Council resolutions.
It submits further that there has been no revocation at any stage of
Portugal’s authority as administering Power, no limitation placed upon
it, and no recognition of any other Power as having authority over East
Timor.

(ii) Structure of United Nations Charter provisions regarding dependent
territories

A discussion of the status of Portugal to maintain this action necessi-
tates a brief overview of the structure of the United Nations Charter pro-
visions framed for the protection of dependent territories.

The Charter was so structured that the interests of territories not able
to speak for themselves in international forums were to be looked after
by a Member of the United Nations entrusted with their welfare, who
would have the necessary authority for this purpose. In other words, its
underlying philosophy in regard to dependent territories was to avoid
leaving them defenceless and voiceless in a world order which had not yet
accorded them an independent status.

This is not to be wondered at when one has regard to the high idealism
which is the essential spirit of the Charter — an idealism which spoke in
terms of a “sacred trust” lying upon the Powers assuming responsibilities
for their administration, an idealism which stipulated that the interests of
their inhabitants were paramount. Translating this idealism into practical
terms, the Charter provided for United Nations supervision of the respon-
sible authorities through a requirement of regular transmission of infor-
mation to the Secretary-General (Art. 73 (e)). They were further required
to ensure the political, economic, social and educational advancement,
just treatment and protection against abuses of the inhabitants thus
placed under their care.

It is against the background of such an overall scheme that the Aus-
tralian submissions in this case need to be tested. The submission under
examination is no less than that an administering Power’s loss of physical
control deprives it of the status and functions of an administering author-
ity, and that the protective and reporting structure, so carefully fashioned
by the United Nations Charter can thus be brushed aside.

This is a proposition to be viewed with great concern. It means that,
whatever the reason for the administering Power’s loss of control, that
loss of control brings in its wake a loss of legal status.

The proposition can be tested by taking an extreme example, at a
purely hypothetical level, of a non-self-governing territory being mili-
tarily overrun by a third Power, anxious to ensure not the “political, eco-
nomic, social and educational advancement” of the people, but anxious
rather to use it as a military or industrial base. Suppose, in this hypo-

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180 EAST TIMOR (DISS. OP. WEERAMANTRY)

thetical example, that this invading Power completely displaces the legal
authority of the duly recognized administering Power. If the administer-
ing Power cannot then speak for the territory that has been overrun and
the people of the territory themselves have no right of audience before an
international forum, that people would be denied access to the interna-
tional community, whether directly, in their own right, or indirectly,
through their administering Power. The deep concern for their welfare,
which is a primary object of Chapter XI of the Charter, and the “sacred
trust” notion which is its highest conceptual expression, would then be
reduced to futility; and the protective structure, so carefully built upon
these concepts, would disintegrate, in the presence of the most untenable
of reasons — the use of force. In that event, the use of force, which is
outlawed by the entire scheme of the United Nations Charter, would
have won its victory, and would indeed have won it over some of the
loftiest concepts enshrined in the Charter. It is difficult to subscribe to a
view that thus encourages and, indeed, rewards the use of force.

This example, offered at a purely hypothetical level, has been aimed at
testing the practical efficacy of a legal proposition that seems to run
counter to the entire scheme of the United Nations Charter. As so often
in the law, the hypothetical example assists in the understanding of the
practical rule.

Grave reservations must be registered regarding any interpretation of
the Charter which leaves open so serious a gap in its scheme of protection
and so undermines the central tenets which are its very foundation.

Three major legal concerns arise from this argument. The first concern,
already referred to, is that it seems to concede that whatever the means
through which that control has been lost, the important factor is the
physical loss of control. This is a dangerous proposition which interna-
tional law cannot endorse.

Secondly, the precedents in the matter do not lend support to the Aus-
tralian argument. An instance that comes to mind is the case of Rho-
desia, in respect of which it was nowhere suggested that loss of United
Kingdom physical control over the territory meant a loss of United King-
dom legal authority in respect of the territory. United Nations action was
based entirely on the assumption of the continuing status of United
Kingdom authority.

Thirdly, there is more to the status of administering Power than mere
physical control. An administering Power is charged with many duties
relating to the welfare of the people of the territory. It may lose physical
control but, with that loss of physical control, its duties do not fade
away. The administering Power is still obliged to extend such protections
as are still available to it for the welfare of the people and the preserva-
tion of their assets and rights. The conservation of the territory’s right to
permanent sovereignty over its natural resources is thus a major respon-
sibility of the administering Power, including particularly the preserva-

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181 EAST TIMOR (DISS. OP. WEERAMANTRY)

tion of its major economic asset, in the face of its possible extinction for
all time. Such legal responsibilities remain the solemn duty of the admin-
istering Power, even though physical control may have been lost.

Gi) Zs the United Nations a substitute for a displaced administering
Power ?

In answer to such a line of reasoning, it may perhaps be suggested that
the General Assembly and the Security Council can, in such an event,
take over the responsibilities of the administering Power.

It is true indeed that the General Assembly and the Security Council,
in all their plenitude of power, preside over the great task of decoloniza-
tion and protection of dependent peoples. Yet, with all respect, they are
no substitutes for the particular attention to the needs of each territory
which the Charter clearly intended to achieve. Protection from internal
exploitation and external harm, day-to-day administration, development
of human rights, promotion of economic interests and well-being, recov-
ery of wrongful loss, fostering of self-government, representation in
world forums, including this Court — all these require particular atten-
tion from a Power specifically charged with responsibility in that regard.
Moreover, the supervision of the United Nations depends also on trans-
mission of information under Article 73 (e) and, in the absence of an
administering Power, there would be a total neglect of that function and
hence an impairment of United Nations supervision. The Charter scarcely
envisaged that a dependent people should be left to fend for themselves,
denied all this assistance. Least of all can it be envisaged that the use of
force could deprive them of these rights. The basic protective scheme of
the Charter cannot thus be negated.

(iv) The right of representation

Australia’s contention that Portugal, by having lost control over the
Territory for a period of years, has lost the right to represent the people
of East Timor is untenable for the same reasons. Any other view would
result in the anomalous situation of the current international system leav-
ing a territory and a people, who admittedly have important rights
opposable to all the world, defenceless and voiceless precisely when those
rights are sought to be threatened or violated. Indeed, Counsel for Por-
tugal put this well in describing the nexus provided by the administering
Power as “the umbilical cord” which ties East Timor to the international
community.

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182 EAST TIMOR (DISS. OP. WEERAMANTRY)

While recognizing that Portugal has not in this case sought to base its
locus standi on any footing other than that of an administering Power,
this anomaly can also be illustrated in another way. In South West
Africa, Second Phase (I C.J. Reports 1966, p. 6), two States which had
no direct connection with the territory in question sought to bring before
the Court various allegations of contraventions by South Africa of the
League of Nations Mandate. There was no direct nexus between these
States and South West Africa. Their /ocus standi was based solely on
their membership of the community of nations and their right as such to
take legal action in vindication of a public interest.

The present case is one where the Applicant State has a direct nexus
with the Territory and has in fact been recognized by both the General
Assembly and the Security Council as the administering Power.

This case has similarities with South West Africa in that there is here,
as there, a territory not in a position to speak for itself. There is here, as
there, a Power which is in occupation by a process other than one that is
legally recognized. There is here, as there, another State which is seeking
to make representations on the territory’s behalf to the Court. There is
here, as there, an objection taken to the locus standi of the Applicant.

A vital difference is that here, unlike there, the Applicant State has a
direct nexus with the Territory and enjoys direct recognition by the
United Nations of its particular status vis-à-vis the Territory. The posi-
tion of the Applicant State is thus stronger in the present case than the
position of the States whose /ocus standi was accepted by half the judges
of the Court in the South West Africa Judgment (ibid.), and, indeed, by
the majority of the judges in the earlier phase of that case (South West
Africa, Preliminary Objections, Judgment, I C.J. Reports 1962, p. 319).

(v) Resolutions recognizing Portugal’s status as administering Power

The Court is called upon to decide, in regard to these resolutions,
whether the General Assembly resolutions are devoid of legal effect. As a
prelude to a discussion of this legal question, the content of these reso-
lutions is briefly set out.

The resolutions of the General Assembly are the following: 3485 (XXX),
31/53, 32/34, 33/39, 34/40, 35/27, 36/50 and 37/30.

Some of these resolutions expressly recognize the status of Portugal as
the administering Power (resolutions 3485 (XXX), 34/40, 35/27, 36/50
and 37/30) and not one of them recognizes a legal status in Indonesia.
Rather, some of them (resolutions 31/53, 32/34, 33/39) reaffirm the Secu-
rity Council resolutions and draw the attention of the Security Council to
the critical situation in East Timor, and recommend that it take all effec-
tive steps for the implementation of its resolutions, with a view to secur-

96
183 EAST TIMOR (DISS. OP. WEERAMANTRY)

ing the full exercise by the people of East Timor of their right to self-
determination. Some of them request the Special Committee on the
Situation with regard to the Implementation of the Declaration on the
Granting of Independence to Colonial Countries and Peoples to keep the
situation in East Timor under active consideration (resolutions 31/53 and
32/34 of 28 November 1977); reject the claim that East Timor has been
integrated into Indonesia inasmuch as the people of the Territory have
not been able to exercise freely their right to self-determination and inde-
pendence (resolution 32/34 of 28 November 1977); declare that the
people of East Timor must be enabled to determine freely their own
future within the framework of the United Nations (resolution 35/27
of 11 November 1980); welcome the diplomatic initiative taken by the
Government of Portugal as the first step towards the free exercise by the
people of East Timor of their right to self-determination and indepen-
dence (ibid.) ; urge all parties directly concerned to co-operate fully with a
view to creating the conditions necessary for the speedy implementation
of General Assembly resolution 1514 (XV) (ibid.) ; declare that the people
of East Timor must be enabled freely to determine their own future on
the basis of the relevant General Assembly resolutions and internation-
ally accepted procedures (resolution 36/50 of 24 November 1981); and
invite Portugal as the administering Power to continue its efforts with a
view to ensuring the proper exercise of the right to self-determination and
independence by the people of East Timor (ibid. ).

Since there is no diminution in any of the resolutions of Portugal’s
status as administering Power, one must therefore regard Portugal as
continuing to be vested with all the normal responsibilities and powers of
an administering authority. It is to be stressed, of course, that whatever
powers an administering Power is vested with are powers given to it
solely for the benefit of the territory and the people under its care and not
for the benefit in any way of the administering Power. This is a truism
and is mentioned here only because some suggestions were made in the
oral submissions that Portugal has instituted this case for reasons other
than a desire to conserve the interests of the Territory and people of East
Timor.

Not only will any success Portugal may achieve from this case be held
strictly for the benefit of the people of East Timor, but it will be held
strictly under United Nations supervision. The Australian argument that
Chapter XI of the United Nations Charter “is not a colonial charter
intended legally to entrench the rights of the former colonial State . . .”
(CR 95/10, p. 65) loses its thrust in such a context.

Australia submits that Portugal not only has a poor colonial record

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184 EAST TIMOR (DISS. OP. WEERAMANTRY)

but, in fact, abandoned the people of East Timor. Whatever may have
been the facts regarding these aspects, they were not unknown to the
General Assembly, which nevertheless invited Portugal to continue its
efforts. The body best able to assess Portugal’s conduct having decided,
notwithstanding all the information at its disposal, to issue such an invi-
tation, this Court must respect that decision. It is to be observed further
that, in extending that invitation, the General Assembly placed no restric-
tions on Portugal’s status as administering Power, nor has it done so
since then. It is significant also that, in resolution 384 (1975), the Security
Council in fact censured Portugal for its failure to discharge its respon-
sibilities fully as administering Power, but yet continued to recognize
Portugal as the administering Power.

The resolutions of the Security Council, resolution 384 (1975) and
resolution 389 (1976), have been quoted earlier in this opinion. Recog-
nizing and reaffirming the inalienable right of the people of East Timor
to self-determination, the Security Council, in both resolutions, calls
upon all States to respect the territorial integrity of East Timor, as well
as the inalienable right of its people to self-determination, and urges all
States and other parties concerned to co-operate fully with the efforts of
the United Nations to achieve a peaceful solution to the existing situation
and to facilitate the decolonization of the Territory.

These two resolutions of the Security Council have not at any stage
been revoked, nor have they been superseded by later resolutions render-
ing them inapplicable.

Security Council resolution 384 expressly referred to Portugal as the
administering Power and specifically imposed upon it the duty of co-
operating fully with the United Nations so as to enable the people of East
Timor to exercise freely their right to self-determination. The resolution
thus contained a clear indication to Portugal of its duties in safeguarding
this right of the East Timorese people. Since economic sovereignty is an
important element of the concept of sovereignty, there was thus imposed
upon Portugal, by Security Council resolution, apart from Charter pro-
visions, the duty to safeguard the Territory’s most valuable economic
asset until the right to self-determination was freely exercised.

As with the General Assembly, so also with the Security Council, Por-
tugal’s prior colonial conduct did not prevent it from giving to Portugal
the status it did and imposing upon it the duties that went with that
status.

That status thus recognized by the Security Council receives repeated
recognition in later resolutions of the General Assembly (see resolutions
35/27 (1980), 36/50 (1981) and 37/30 (1982)).

After these general observations, it is necessary to examine the legal
effects of the relevant resolutions in greater detail.

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185 EAST TIMOR (DISS. OP. WEERAMANTRY)
(vi) Legal force of the resolutions

(a) General Assembly resolutions

Very early in the history of the United Nations, the General Assem-
bly’s competence in regard to non-self-governing territories was recog-
nized. Thus Kelsen refers to:

“the competence the General Assembly has with respect to non-self-
governing territories not under trusteeship in accordance with
Article 10 and (together with the Security Council) under Article 6”!,

and suggests that the General Assembly may discuss the non-fulfilment
by a Member of its obligations under Chapter XI, leading even to the
imposition of sanctions, along with the Security Council, under Article 6
(see, also, American Journal of International Law, 1954, Vol. 48, p. 103).

After the adoption of the Declaration on the Granting of Indepen-
dence to Colonial Countries and Peoples by the General Assembly in 1960,
it established a committee to follow up the implementation of the Dec-
laration, thus “bringing all non-self-governing territories under a form of
international supervision comparable to that of the trusteeship system” 2.
So much are all aspects of self-determination regarded by the General
Assembly as pertaining to its sphere of authority that there has been a
tendency “to consider that no aspect of ‘colonialism’ should be treated as
a matter falling ‘essentially’ within the domestic jurisdiction of a State”>.

The Assembly maintains a vigilant eye over all aspects relating to non-
self-governing territories through the Fourth or Decolonization Commit-
tee* and the Committee of Twenty-Four. Questions of the termination of
dependent territory status upon the exercise of the right of self-determi-
nation have thus long been matters recognized as being within the scope
of the General Assembly’s authority. In resolution 1541 (XV) of
15 December 1960, it specifically addressed (in Principle VI) the question

! The Law of the United Nations, 1950, p. 553, footnote 1.

2 Goodrich, Hambro and Simons, Charter of the United Nations, 3rd and rev. ed.,
1969, p. 70. On the development of the practice in this regard, see further, Bruno Simma
(ed.), The Charter of the United Nations, 1994, pp. 925-928.

“In the course of time, the General Assembly succeeded in subjecting the colonies
to a similar system of supervision to that provided for trust territories, even though,
according to the wording of Art. 73 (e) of the UN Charter, the control is restricted
to the General Assembly’s entitlement to have statistical and technical informa-
tion...” (bid., p. 925.)

3 Goodrich, Hambro and Simons, ibid.
4 Renamed the Special Political and Decolonization Committee, after its merger with
the Special Political Committee, by resolution 47/233 of 17 August 1993.

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186 EAST TIMOR (DISS. OP. WEERAMANTRY)

whether a non-self-governing territory can be said to have reached a full
measure of self-government.

When, therefore, the General Assembly determines that a particular
dependent territory has not exercised the right of self-determination or
that a particular State is recognized as the administering Power over a
dependent territory, the Assembly is making a determination within the
area of its competence, and upon a review of a vast range of material
available to it. Legal consequences follow from these determinations.

Of course there are resolutions of the General Assembly which are of
an entirely hortatory character. Many resolutions of the General Assem-
bly are. But a resolution containing a decision within its proper sphere of
competence may well be productive of legal consequences. As this Court
observed in Namibia, the General Assembly is not “debarred from adopt-
ing, ... within the framework of its competence, resolutions which make
determinations or have operative design” (Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advi-
sory Opinion, I. C.J. Reports 1971, p. 50, para. 105).

Even more is this so when those resolutions have been expressly
accepted and endorsed by the Security Council, which is the case in rela-
tion to the resolutions on the status of Portugal as administering Power.

Thus resolutions of the General Assembly which expressly reject the
claim that East Timor has been integrated into Indonesia (32/34 of
28 November 1977) declare that the people of East Timor must be
enabled to determine their own future freely within the framework of
the United Nations (35/27 of 11 November 1980) and expressly recognize
Portugal as the administering Power (3485 (XXX), 34/40, 35/27, 36/50
and 37/30) are resolutions which are productive of legal effects.

Article 18 of the Charter makes it clear that, on “important questions”,
the General Assembly may make “[d]ecisions”. Adverting to this provi-
sion, this Court has observed:

“Thus while it is the Security Council which, exclusively, may
order coercive action, the functions and powers conferred by the
Charter on the General Assembly are not confined to discussion,
consideration, the initiation of studies and the making of recom-
mendations; they are not merely hortatory. Article 18 deals with
‘decisions’ of the General Assembly ‘on important questions’.
These ‘decisions’ do indeed include certain recommendations,
but others have dispositive force and effect.” (Certain Expenses
of the United Nations (Article 17, paragraph 2, of the Charter),
Advisory Opinion, I.C.J. Reports 1962, p. 163; emphasis in origi-
nal.)

Waldock, in his General Course (Recueil des cours de l’Académie de

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droit international de La Haye, 1962, Vol. 106, p. 26), referring to this
judicial pronouncement, stressed the General Assembly’s competence to
make decisions having dispositive force and effect!.

In more than one of its resolutions, the General Assembly has referred
to its competence

“to decide whether a Non-Self-Governing Territory has or has not
attained a full measure of self-government as referred to in Chap-
ter XI of the Charter” (resolution 748 (VIID) of 27 November 1953,
relating to Puerto Rico; and resolution 849 (IX) of 22 November
1954, relating to Greenland; emphasis added).

The General Assembly has also asserted this power in relation to Suri-
name and the Netherlands Antilles, Alaska and Hawaii?. The General
Assembly has not hesitated to use this power as, for example, when Por-
tugal and Spain, following their admission to United Nations member-
ship, asserted that they did not administer any territories covered by
Chapter XI. In 1960, the General Assembly declared that the territories
of Portugal were non-self-governing “within the meaning of Chapter XI
of the Charter” (resolution 1542 (XV) of 15 December 1960). It asserted
its powers in this regard even more strongly the following year, condemn-
ing Portugal for “continuing non-compliance” with its obligations under
Chapter XI and for its refusal to co-operate with the Committee on
Information from Non-Self-Governing Territories, and established a spe-
cial committee authorized to receive petitions and hear petitioners on this
matter (General Assembly resolution 1699 (XVI) of 19 December 1961).
United Nations practice has not questioned the General Assembly’s com-
petence so to act as the appropriate United Nations organ for determin-
ing whether a non-self-governing territory has or has not achieved
self-determination.

In a treatise on Legal Effects of United Nations Resolutions, Cas-
tafieda makes a juristic analysis of this power, observing that a General
Assembly resolution does not express a duty, but rather establishes in
a definite manner the hypothesis or condition from which flows a legal
consequence, which makes possible the application of a rule of law.
“By its nature, this consequence may be an order to act or not to act,

' On the role of the General Assembly in the formulation of international law see,
further, Gaetano Arangio-Ruiz, “The Normative Role of the General Assembly of
the United Nations and the Declaration of Principles of Friendly Relations”, Recueil des
cours de l’Académie de droit international, 1972, Vol. 137, p. 421; Obed Y. Asamoah, The
Legal Significance of the Declarations of the General Assembly of the United Nations,
1966; and Christoph Schreuer, “Recommendations and the Traditional Sources of Inter-
national Law”, German Yearbook of International Law, 1977, Vol. 20, pp. 103-118.

2 See Goodrich, Hambro and Simons, op. cit., pp. 460-461, and the references therein
cited to the relevant resolutions.

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an authorization, or the granting or denial of legal competence to an
organ.” !

The foregoing observations have a bearing on the definitive effects of
General Assembly resolutions regarding Portugal’s status, East Timor’s
status as a non-self-governing territory, and East Timor’s right to self-
determination. Additionally, since the General Assembly is the appropri-
ate body for recognition of the Power holding authority over a non-self-
governing territory, the absence of any General Assembly resolution
recognizing Indonesia’s authority over East Timor is also a circumstance
from which a legal inference may be drawn. The General Assembly reso-
lutions also have a bearing on the responsibility of all nations to co-
operate fully in the achievement of self-determination by East Timor.
The various resolutions of the General Assembly relating to this right in
general terms, which have helped shape public international law, and are
an important material source of customary international law in this
regard’, are specifically strengthened so far as concerns the situation in
East Timor, by the particular resolutions relating to that Territory.

(b) Security Council resolutions

These resolutions are also confirmatory of the status of Portugal. They
are dealt with in Part D in the context of the substantive obligations of
Australia.

(vii) Does Portugal need prior United Nations authorization to maintain
this action?

Portugal’s authority as administering Power has not been subject to
any limitation by the United Nations in the resolutions recognizing Por-
tugal’s status. Australia’s submission that Portugal needs United Nations
authority to bring this action (Rejoinder, paras. 136, 144) suggests a limi-
tation on an administering Power’s authority which does not seem to be
envisaged in the United Nations Charter.

There is another aspect as well to be considered, namely, that it is the
duty of an administering Power to conserve the interests of the people of
the territory. As part of their fiduciary duties, administering Powers rec-
ognize in terms of Article 73 of the Charter “the obligation to promote to
the utmost . . . the well-being of the inhabitants of these territories” and,
to that end, “to ensure... their . . . economic . . . advancement”
(Aït. 73(a); emphasis added) and “to promote constructive measures of

! Jorge Castañeda, Legal Effects of United Nations Resolutions, 1969, p. 121.
2 Simma, op cit., p. 240.

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189 EAST TIMOR (DISS. OP. WEERAMANTRY)

development” (Art. 73(d)). Such obligations necessitate the most careful
protection of the economic resources of the territory. Such a duty cannot
be fulfilled without a legal ability on the part of the administering Power
to take the necessary action for protecting those interests. If the admin-
istering Power receives information that the economic interests of the ter-
ritory are being dealt with by other entities, to the possible prejudice of
the interests of the territory’s people, it is the administering Power’s duty
to intervene in defence of those rights. Indeed, failure to do so would be
culpable.

To suggest that the Charter would impose these heavy responsibilities
upon administering Powers and, at the same time, deny them the right of
representation on behalf of the territory, is to deprive these Charter pro-
visions of a workable meaning. Such a restrictive interpretation of the
authority of an administering Power receives no support, so far as J am
aware, from United Nations practice or from the relevant literature.

Supervision of the administering Power is amply provided for in the
Charter and it is difficult to see any warrant in law or in principle for
further fettering a fiduciary Power in the proper and effective discharge
of its duties under the Charter.

Further, the power given by the Charter under Chapter XI is clearly
the power of a trustee. The power derives expressly from the concept of
“a sacred trust”, thus underlining its fiduciary character. The very con-
cept of trusteeship carries with it the power of representation, whether
one looks at the common law concept of trusteeship or the civil law con-
cept of tutela. A trustee, once appointed, always carries out his or her
duties under supervision, but is not required to seek afresh the right of
representation each time it is to be exercised, for that is part and parcel of
the concept of trusteeship itself.

(viii) Are the resolutions affected by diminishing United Nations sup-
port?

One of Australia’s contentions was that the progressively lessening
vote in favour of the General Assembly resolutions cited by Portugal
showed that those resolutions were of a diminishing level of authority.
This suggestion in effect calls upon this Court to venture into the uncer-
tain area of the political history of resolutions of the General Assembly
and to indulge in a vote-counting exercise to assess the strength of a par-
ticular resolution. Speculation on the possible meaning of voting pro-
cedures in the General Assembly is not the province of this Court. Rather
the Court’s concern is whether that General Assembly resolution has
been duly passed by that principal organ of the United Nations within
the ambit of its legal authority. Once thus passed, it commands recogni-
tion and it is part of the courtesy due by one principal organ of the

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United Nations to another to respect that resolution, irrespective of its
political history or the voting strength it reflects.

As Judge Lauterpacht has observed:

“Whatever may be the content of the recommendation and what-
ever may be the nature and the circumstances of the majority by
which it has been reached, it is nevertheless a legal act of the prin-
cipal organ of the United Nations which Members of the United
Nations are under a duty to treat with a degree of respect appropri-
ate to a Resolution of the General Assembly.” (Voting Procedure on
Questions relating to Reports and Petitions concerning the Territory
of South West Africa, Advisory Opinion, I.C.J. Reports 1955, p. 120,
separate opinion; emphasis added.)

Indeed, this Australian submission has grave implications in the cir-
cumstances of this case, for the resolutions which Australia would have
the Court ignore are resolutions affirming the important principle of self-
determination which is a well-established principle of customary interna-
tional law. A heavy burden would lie upon a party contending that the
validity of such a resolution has been affected by declining support for it
in the United Nations.

(ix) Have the resolutions lapsed through desuetude ?

Another Australian submission which was strenuously advanced is the
suggestion that a long period of years during which similar resolutions
are not passed discounts in some way the value and obligatory nature of
such resolutions. Resolutions of the General Assembly or of the Security
Council do not have to be repeated to retain their validity. Once these
resolutions are duly passed, it is to be presumed that they would retain
their validity until duly revoked or superseded by some later resolution.

The proposition that lapse of time wears down the binding force of
resolutions needs to be viewed with great caution. In cases where resolu-
tions in fact impose obligations at international law, this Court would
then, in effect, be nullifying obligations which the appropriate organ
of the United Nations, properly seised of that matter, has chosen to
impose. More especially is caution required from the Court in regard to
resolutions dealing with obligations erga omnes and rights such as self-
determination which are fundamental to the international legal system.
The Court would, in the absence of compelling reasons to the con-
trary, show due respect for the valid resolutions duly passed by its sister
organs.

It is to be noted that Australia’s argument that the resolutions of the

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Security Council have fallen into desuetude cannot be accepted for a
further reason.

The argument of desuetude breaks down before the fact that the Com-
mittee of Twenty-Four, which is the General Assembly’s organ for over-
seeing the matter of decolonization, has kept the East Timor question
alive on its agenda year after year. Moreover, the Committee has in its
report to the General Assembly referred to this in successive years. The
Committee would not be expected to keep this matter on their books if it
is, as Australia has suggested, a dead issue.

The Secretary-General’s progress reports to the General Assembly
continue to this date. In his Report of 11 September 1992 (A/47/435,
para. 1; Reply, Vol. II, Ann. 1.8), he refers to the search for “a compre-
hensive and internationally acceptable solution to the question of East
Timor”, and, in his most recent Annual Report of 2 September 1994, he
states: “I have continued to provide my good offices in the search for a
just, comprehensive and internationally acceptable solution to the ques-
tion of East Timor.” (A/49/1, 2 September 1994, para. 505.) The General
Assembly’s action in keeping this item on its agenda from year to year is
also a clear indication that the situation has not thus far proved accept-
able to the international community.

The argument of desuetude, implying as it does that the matter is a
dead issue, cannot succeed if the United Nations itself elects to treat the
issue as live!.

(x) Have the resolutions been nullified by supervening events?

Similar considerations apply to this submission of Australia. If super-
vening events have nullified duly passed resolutions of the Security Coun-
cil or the General Assembly, it is for those bodies to take note of the
altered situation and to act accordingly. Those bodies do not appear, as
stated already, to have treated the issues as dead.

(xi) Is Portugal’s colonial record relevant ?

Australia has suggested that Portugal’s colonial record has been such
as to disentitle it to maintain this action. The past colonial record of Por-
tugal leaves much indeed to be desired, and Portugal’s counsel have
freely conceded no less. One recalls that, in Namibia, it was noted that,
when the General Assembly passed its resolutions against apartheid,
these resolutions received the unanimous support of the entire Assembly,

1 See Thomas M. Franck (“Fairness in the International Legal and Institutional Sys-
tem”, Recueil des cours de l'Académie de droit international, 1993, Vol. 240, p. 165), to the
effect that this activity concerning East Timor “at a minimum, keeps the item alive and
helps keep it on the agenda”.

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192 EAST TIMOR (DISS. OP. WEERAMANTRY)

with only two exceptions — Portugal and South Africa (7. C.J. Reports
1971, p. 79; Judge Ammoun, separate opinion). Further comment is
scarcely necessary regarding the past colonial attitudes of Portugal.

However, when the status at law of an administering Power has been
duly recognized as such by the appropriate political authority, this Court
cannot take it upon itself to grant or withhold that status, depending on
whether it had a good or bad colonial record. Most colonial Powers
would fail to qualify on such a test, which could make the system of
administering Powers unworkable. The legal question for this Court is
whether, in law, it enjoys that status.

At the commencement of this opinion, reference was made to the
change that has occurred since 1974 in regard to Portugal’s attitude
towards self-determination of its colonies!.

It bears re-emphasizing that the question at issue is the protection of
the rights of the people of East Timor, and not the question of Portugal’s
record of conduct. The contention seems untenable that a protected
people or territory, blameless in this respect, should be denied represen-
tation or relief owing to the fault of its administering Power.

Such a contention contradicts basic principles of trusteeship and
tutelage, which always accord paramount importance to the interests of
entities under fiduciary or tutelary care. This is so in international, no less
than in domestic, law.

x * x

The several grounds on which Australia sought to impugn Portugal’s
status to maintain this action seem thus, on examination, to be unsus-
tainable. Charter principles combine with well-established fiduciary prin-
ciples and principles of tutelage to underline the paramount importance
of the interests of the non-self-governing territory over all other interests.
That priority of interest is not easily defeated. It is the function of the
administering Power to watch over it, and the function of international
law to ensure its protection.

It does not serve the Territory’s interest that an administrator, duly
recognized by the United Nations, and legally accountable to it, should
be viewed as having been displaced by another Power, neither recog-
nized by the United Nations, nor legally accountable to it. Power over a

! The Supplement to the Portuguese Constitution, contained in Annex IL6 of Portu-
gal’s Memorial, and dated 27 July 1974, provides by Article 2 that

“Recognition of the right to self-determination, with all its implications, comprises
acceptance of the independence of the overseas territories and the waiving of the cor-
responding part of Article 1 of the Political Constitution of 1933.”

Portugal is thus unequivocally committed to acceptance of the principle of self-determina-
tion of its former colonies.

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193 EAST TIMOR (DISS. OP. WEERAMANTRY)

non-self-governing people, without accountability to the international
community, is a contradiction of the Charter principle of protection.

PART C. THE RiGHts oF East TIMOR

The central principle around which this case revolves is the principle of
self-determination, and its ancillary, the principle of permanent sover-
eignty over natural resources. From those principles stem whatever rights
are claimed for East Timor in this case.

(i) East Timor is a territory unquestionably entitled to self-determination

The Court is not in this case confronted with the difficulty of entering
into the much discussed area of defining which are the entities or peoples
entitled to self-determination. Australia has at all times admitted that
East Timor was and is a non-self-governing territory !. It was specifically
mentioned in the list of non-self-governing territories, within the meaning
of Chapter XI of the Charter, contained in General Assembly resolution
1542 (XV) of 15 December 1960 (Memorial, Vol. IT, Ann. IL.4)2.

One must therefore address the question of self-determination in this
case from the firm foundation of a territory unquestionably entitled to
self-determination. The question for examination is what consequences
follow from that fact.

(ii) The principle of self-determination

The Judgment of the Court (para. 29) has categorically reaffirmed the
principle of self-determination, pointing out that it has evolved from the
Charter and from United Nations practice, and observing further that
the normative status of the right of the people of East Timor to self-
determination is not in dispute. This opinion sets out, from that base,
to examine the manner in which practical effect is to be given to the
principle of self-determination, in the circumstances of the present case.

Australia has accepted the existence of the principle, but placed a
somewhat limited view upon the State obligations which follow.

' Australia has, in its pleadings (Counter-Memorial, para. 322), referred, in another
context, to the uncertainty attending the question of which people are entitled to self-
determination (citing H. Blix, Sovereignty, Aggression and Neutrality, 1970, pp. 13-14).
This uncertainty has no applicability to East Timor for the reasons stated.

2 In regard to the word “self-government” in Article 73 (b), this term “should today
only be understood in the meaning of unrestricted self-determination” (Simma, The
Charter of the United Nations, op. cit., p. 928, citing, inter alia, Namibia and Western
Sahara.

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194 EAST TIMOR (DISS. OP. WEERAMANTRY)

For example, it has advanced the argument, at the oral hearings, that:

“There is in the United Nations Charter no express obligation on
States individually to promote self-determination in relation to ter-
ritories over which they individually have no control. The general
obligation of solidarity contained in Article 2, paragraph 5, of the
Charter extends only to assistance to the United Nations ‘in any
action it takes in accordance with the present Charter’.” (CR 95/9,
p. 64.)

In its pleadings, it has taken up such positions as that there is no inde-
pendent basis for a duty of non-recognition which would prevent the
conclusion of the Timor Gap Treaty (Counter-Memorial, paras. 360-
367); that there has been no criticism by the international community of
States (including Australia) which have recognized or dealt with Indo-
nesia in respect of East Timor (ibid., paras. 368-372); and that, in con-
cluding the Timor Gap Treaty, Australia did not impede any act of self-
determination by the people of East Timor that might result from such
negotiations (ibid., paras. 373-375). Although it has recognized East
Timor as a province of Indonesia in the Treaty, Australia contends that,
“By concluding the Timor Gap Treaty with Indonesia, Australia did
nothing to affect the ability of the people of East Timor to make a future
act of self-determination.” (/bid., para. 375.)

All of these submissions make it important to note briefly the central
nature of this right in contemporary international law, the steady devel-
opment of the concept, and the wide acceptance it has commanded inter-
nationally. Against that background, any interpretations of that right
which give it less than a full and effective content of meaning would need
careful scrutiny.

In the first place, the principle receives confirmation from all the
sources of international law, whether they be international conventions
(as with the International Covenants on Civil and Political Rights and
Economic, Social and Cultural Rights), customary international law, the
general principles of law, judicial decisions, or the teachings of publicists.
From each of these sources, cogent authority can be collected supportive
of the right, details of which it is not necessary to recapitulate here.

Secondly, it occupies a central place in the structure of the United
Nations Charter, receiving mention from it in more than one context.

Enshrined in Article 1 (2) is the principle that friendly relations among
nations must be developed by the United Nations on the basis of equal
rights and self-determination. Developing such friendly relations is one of
the Purposes of the United Nations — central to its existence and mis-
sion. There is thus an inseparable link between a major Purpose of the
United Nations and the concept of self-determination. The same concep-
tual structure is repeated in Article 55, which observes that respect for

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equal rights and self-determination is the basis on which are built the
ideal of peaceful and friendly relations among nations.

Article 55 proceeds to translate this conceptual structure into practical
terms. It recognizes that peaceful and friendly relations, though based on
the principle of equal rights and self-determination, need conditions of
stability and well-being, among which conditions of economic progress
and development are specified.

Since the development of friendly relations among nations is central to
the Charter, and since equal rights and self-determination are stated to be
the basis of friendly relations, the principle of self-determination can
itself be described as central to the Charter.

The Charter spells out its concern regarding self-determination with
more particularity in Chapter XI. Dealing specifically with the economic
aspect of self-determination, it stresses, in Article 55, that stability and
well-being are necessary for peaceful and friendly relations, which are in
their turn based on respect for the principle of equal rights and self-
determination. With a view to the creation of these conditions of stability
and well-being, the United Nations is under a duty to promote, inter alia,
“conditions of economic... progress and development” (emphasis added).

This is followed by Article 56 which contains an express pledge by
every Member “to take joint and separate action, in co-operation with
the Organization for the achievement of the purposes set forth in
Article 55”. This is a solemn contractual duty, expressly and separately
assumed by every Member State to promote conditions of economic
progress and development, based upon respect for the principle of self-
determination.

With specific reference to non-self-governing territories, Article 73 of
the United Nations Charter sets out one of the objects of the administra-
tion of non-self-governing territories as being:

“to develop self-government, to take due account of the political
aspirations of the peoples, and to assist them in the progressive
development of their free political institutions ...” (Art. 73 (0)).

This responsibility is imposed upon the administering Power under the
principle that the interests of the inhabitants of these territories are para-
mount. The solemn nature of this responsibility is highlighted in its
description as a “sacred trust”.

The central importance of the concept, and the desire to translate it
into practical terms, are thus built into the law of the United Nations. Its
Charter is instinct with the spirit of co-operation among nations towards
the achievement of the Purposes it has set before itself. Integral to those

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Purposes, and providing a basis on which they stand, is the principle of
self-determination.

Thirdly, the basic provisions of the Charter have provided the founda-
tion upon which, through the continuing efforts of the United Nations, a
superstructure has been built which again aims at practical implementa-
tion of the theoretical concept. Through its practical contribution to the
liberty of nations, the world community has demonstrated its resolve to
translate its conceptual content into reality.

Indeed, the General Assembly’s special concern to translate this legal
concept into practical terms has been unwavering and continuous, as
reflected in its appointment of the Committee on Information from Non-
Self-Governing Territories and the conversion of the Committee into a
semi-permanent organ as a result of a General Assembly resolution
of December 1961. The Special Committee (the Committee of Twenty-
Four) on the Situation with regard to the Implementation of the Declara-
tion on the Granting of Independence to Colonial Countries and Peoples
keeps this concern alive as a successor to the Committee of Information.
That Committee has consistently retained the case of East Timor on its
list of matters awaiting a satisfactory solution.

Landmark declarations of the United Nations on this matter have
strengthened the international community’s acceptance of this principle.
The Declaration on the Granting of Independence to Colonial Countries
and Peoples (General Assembly resolution 1514 (XV) of 20 December
1960), and the Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations (General Assembly resolution 2625
(XXV) of 24 October 1970) are among these Declarations. The Interna-
tional Covenant on Civil and Political Rights (1966), and the Interna-
tional Covenant on Economic, Social and Cultural Rights (1966), consti-
tute an unequivocal acceptance by treaty of the obligation to recognize
this right.

The importance accorded to this right by all sections of the interna-
tional community was well reflected in the discussions in the United
Nations which preceded the acceptance of the Declaration of Friendly
Relations. A recent study of these discussions! collects these sentiments
in a form which reflects the central importance universally accorded to
this principle. As that study observes, the principle was variously char-
acterized at those discussions as “one of the most important principles
embodied in the Charter” (Japan); “one of the foundation stones upon
which the United Nations was built” (Burma); “basic to the United
Nations Charter” (Canada); “one of the basic ideals constituting the
raison d’étre of the Organization” (France); “the most significant example
of the vitality of the Charter and its capacity to respond to the changing
conditions of international life” (Czechoslovakia); “a universally recog-

1 V.S. Mani, Basic Principles of Modern International Law, 1993, p. 224.

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nized principle of contemporary international law” (Cameroon); “one of
the fundamental norms of contemporary international law” (Yugosla-
via); “a fundamental principle of contemporary international law bind-
ing on all States” (Poland); “one of paramount importance in the present
era of decolonization” (Kenya); and “indispensable for the existence of
[the] community of nations” (United States of America).

Reference should be made finally to this Court’s contribution, which
has itself played a significant role in the establishment of the concept on
a firm juridical basis (Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstand-
ing Security Council Resolution 276 (1970), Advisory Opinion, 1 CJ.
Reports 1971, p. 16; Western Sahara, Advisory Opinion, I.C.J. Reports
1975, p. 12).

Such is the central principle on which this case is built. In adjudging
between the two interpretations of this right presented to the Court by
the two Parties, this brief survey of its centrality to contemporary inter-
national law is not without significance.

On the one hand, there is an interpretation of this right which claims
that it is not violated in the absence of violation of an express provision
of a United Nations resolution. It is pointed out, in this connection, that
there are no United Nations resolutions prohibiting or criticizing the
recognition of East Timor as a province of Indonesia. On the other hand,
it is argued that being party to an agreement which recognizes the incor-
poration of a non-self-governing territory in another State and deals with
the principal non-renewable asset of a people admittedly entitled to self-
determination, before they have exercised their right to self-determina-
tion, and without their consent, does in fact constitute such a violation.
The history of the right, and of its development and universal acceptance
make it clear that the second interpretation is more in consonance with
the content and spirit of the right than the first.

Against this background, it is difficult to accept that, in regard to so
important a right, the duty of States rests only at the level of assistance to
the United Nations in such specific actions as it may take, but lies dor-
mant otherwise.

(iii) The principle of permanent sovereignty over natural resources

As the General Assembly has stressed, the right to permanent sover-
eignty over natural resources is “a basic constituent of the right to self-
determination” (resolution 1803 (XVII) of 14 December 1962). So, also,
in resolution 1515 (XV) of 15 December 1960, the General Assembly
recommended that “the sovereign right of every State to dispose of
its wealth and its natural resources should be respected”.

Sovereignty over their economic resources is, for any people, an impor-
tant component of the totality of their sovereignty. For a fledgling
nation, this is particularly so. This is the wisdom underlying the doctrine

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of permanent sovereignty over natural resources, and the wisdom which
underlies the protection of this resource for a non-self-governing people
until they achieve self-determination.

In the present case, it is impossible to venture a prediction as to how
long it will be before the East Timorese people achieve self-determina-
tion. It may be a very brief period or it may take many years. The matter
has remained unresolved already for nearly twenty years, since the Indo-
nesian military intervention.

Should a period of years elapse until such time, and the Treaty is in full
operation in the meantime, a substantial segment of this invaluable
resource may well be lost to East Timor for all time. This would be a loss
of a significant segment of the sovereignty of the people.

This is not a situation which international law, in its present state of
development, can contemplate with equanimity.

At such time as the East Timorese people exercise their right to self-
determination, they would become entitled as a component of their sov-
ereign right, to determine how their wealth and natural resources should
be disposed of. Any action prior to that date which may in effect deprive
them of this right must thus fall clearly within the category of acts which
infringe on their right to self-determination, and their future sovereignty,
if indeed full and independent sovereignty be their choice. This right is
described by the General Assembly, in its resolution on Permanent Sov-
ereignty over Natural Resources, as “the inalienable right of all States
freely to dispose of their natural wealth and resources in accordance with
their national interests . . .” (General Assembly resolution 1803 (XVIT)).
The same resolution notes that strengthening permanent sovereignty over
natural resources reinforces the economic independence of States.

Resolution 1803 (XVII) is even more explicit in that it stresses that:

“The exploration, development and disposition of such resources
... Should be in conformity with the rules and conditions which the
peoples and nations freely consider to be necessary or desirable with
regard to the authorization, restriction or prohibition of such activi-
ties.” (1, para. 2; emphasis added.)

The exploration, development and disposition of the resources of the
Timor Gap, for which the Timor Gap Treaty provides a detailed speci-
fication, has most certainly not been worked out in accordance with the
principle that the people of East Timor should “freely consider” these
matters, in regard to their “authorization, restriction or prohibition”.

The Timor Gap Treaty, to the extent that it deals with East Timorese

resources prior to the achievement of self-determination by the East
Timorese people, is thus in clear violation of this principle.

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199 EAST TIMOR (DISS. OP. WEERAMANTRY)

Further, resolution 1803 (XVID) states:

“Violation of the rights of peoples and nations to sovereignty over
their natural wealth and resources is contrary to the spirit and prin-
ciples of the Charter of the United Nations . . .” (I, para. 7.)

Australia has submitted (Counter-Memorial, paras. 379-380) that, even
assuming that in exercising their right to self-determination the people of
East Timor become in the future an independent State, it would be for
the new State to decide whether or not to reject the Treaty. The Court
has been referred in this connection to the observation of the Arbitration
Tribunal in the dispute between Guinea-Bissau and Senegal to the effect
that a “newly independent State enjoys a total and absolute freedom” to
accept or reject treaties concluded by the colonial power after the initia-
tion of the process of national liberation!.

While this proposition is incontrovertible, it seems purely academic in
the present context as it loses sight of three facts. In the first place, it may
be many years before East Timor exercises the right of self-determina-
tion. Secondly, the Treaty is set to last for an initial period of 40 years,
and thirdly the resources dealt with are of a non-renewable nature. By the
time the East Timorese people achieve this right, those resources or some
part of them could well have been lost to them irretrievably. Had the
resources dealt with been renewable resources, it might have been argu-
able that a temporary use of the resource would not amount to a perma-
nent deprivation to the owners of the resource which is rightfully theirs.
That argument is not available in the present case.

When, against this firm background of legal obligation, a Treaty is
entered into which expressly describes East Timor as an Indonesian prov-
ince, and proceeds without the consent of its people to deal with the
natural resources of East Timor in a manner which may have the effect of
compromising or alienating them, there can be no doubt that any nation
that claims rights under that treaty to what may be the resources of East
Timor is in breach of obligations imposed upon it by general principles of
international law.

A further consideration is that with the increasing international recog-
nition of the right to development, any action that may hinder the free
exercise of this right assumes more importance now than in the past.

(iv) The relevance of United Nations resolutions on self-determination

The various resolutions cited provide more than sufficient reason, both
in express terms and by implication, for the Court to proceed on the basis

' International Law Reports, 1989, Vol. 83, p. 26, para. 44.

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that the right of self-determination has not been exercised. It is a corol-
lary to that proposition that the right of permanent sovereignty over
natural resources has, likewise, not been exercised, for self-determination
includes by very definition the right of permanent sovereignty over natu-
ral resources. Any act dealing with those resources, otherwise than by the
East Timorese people or their duly constituted representative, thus points
inexorably to a violation of a fundamental principle, both of general
international law and of the United Nations Charter.

(v) Australia’s position in relation to self-determination

The Australian position in regard to self-determination is that Aus-
tralia fully recognizes this right in the people of East Timor and con-
tinues to support that right. Australia has drawn the Court’s attention in
this regard to the prominent role played by Australia at the San Fran-
cisco Conference in relation to the inclusion of Chapter XI in the Charter
(Rejoinder, footnote 209) and to Australia’s strong affirmation that
the advancement of all colonial peoples was a matter of international
concern. This valuable contribution by Australia to the concept of self-
determination has no doubt played a significant role in elevating the
doctrine to its current status. In those early days, when this concept was
as yet in its formative stage, the conceptual and political support thus
given to them was crucial.

In full accordance with the high recognition accorded to self-determi-
nation in international law, Australia continues to express support for
the continuing rights of the people of East Timor to self-determination.
Implicit in this Australian stance is a recognition that, for whatever
reason, the people of East Timor have not thus far exercised that right in
the manner contemplated by international law and the United Nations
Charter.

At the oral hearings, Australia submitted that:

“before and after 1975 Australia repeatedly, and strongly, supported
the right of the East Timorese to an informed act of self-determina-
tion. Australia’s position was put bluntly to Indonesia, was clearly
stated at the United Nations, and was repeated by Australian Prime
Ministers and Foreign Ministers, and elsewhere as public statements
of Australia’s policy.” (CR 95/14, p. 12.)

In contrast with this unimpeachable position there is the fact that Aus-
tralia has accorded de facto recognition to the annexation of East Timor
by Indonesia and, indeed, gone beyond that to what appears to be an
unreserved de jure recognition of Indonesia’s rights over East Timor. The
explicit statement in that Treaty, which presumably represents the com-
mon ground of both parties, is that East Timor is an “Indonesian Prov-

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ince”. Indeed, the preamble to the Treaty recites that Australia and the
Republic of Indonesia are “Determined to cooperate further for the
mutual benefit of their peoples in the development of the resources of the
area of the continental shelf’ (emphasis added). The people of East
Timor are not included among those for whose benefit the Treaty is
entered into.

(vi) The incompatibility between recognition of Indonesian sovereignty
over East Timor and the recognition of East Timor as a non-self-
governing territory

The inconsistency between Australia’s stated position and its practical
actions is, in the submission of Portugal, so fundamental as to negative
Australia’s recognition of the East Timorese right to self-determination.
There is an inconsistency here which has not been adequately explained,
either in the pleadings or in the oral submissions. As Portugal pointed
out, it is not possible to meet the obligation of respecting the territorial
integrity of East Timor by merely so asserting, while, in fact, recognizing
it as annexed by Indonesia (CR 95/4, p. 29).

Australia has stated (Rejoinder, para. 267) that recognition of Indo-
nesian sovereignty over East Timor does not involve a denial of its status
as a non-self-governing territory. It has also stated (ibid., para. 263) that,
while noting that Indonesia has incorporated East Timor into the Repub-
lic of Indonesia, the Australian Government has expressed deep concern
that an internationally recognized act of self-determination has not taken
place in East Timor. Australia further submits that recognition of Indo-
nesian sovereignty over East Timor does not by logical necessity signify
that Australia no longer recognizes East Timor as a non-self-governing
territory or its people as having a right to self-determination (ibid.,
para. 264). I must confess to some difficulty in understanding these posi-
tions.

Such submissions seem moreover to overlook the distinction between
the nature of the authority exercised by an administering Power and the
nature of the authority of Indonesia, implicit in the recognition of East
Timor as a province. The character of Portugal’s authority was clearly
distinguishable in at least three major respects:

(a) the authority of Portugal was entirely of a fiduciary or tutelary
nature;

(b) the authority of Portugal was under the supervision of the United
Nations; and

(c) the authority of Portugal was by its very nature co-terminous with
its fiduciary or tutelary status. ,

These distinctions are further affirmed by the relevant United Nations
resolutions discussed in this opinion.

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It may be noted also in this context that Australia, in the course of its
oral arguments, submitted that, “In 1975 the people of East Timor invol-
untarily exchanged Portuguese ‘domination’ . . . for the control of Indo-
nesia.” (CR 95/9, p. 49, para. 59; emphasis added.) What this means is
unclear, but it is manifestly in contradiction of the voluntariness which is
a central feature of self-determination.

Portugal has also referred the Court to some variations in the positions
taken up by Australia at the United Nations when resolutions on East
Timor came before the General Assembly. In 1975, though with some
initial reservations, it voted for the resolution calling upon Indonesia to
desist from further violation of the territorial integrity of East Timor and
to withdraw its forces without delay to enable the people to exercise their
right of self-determination (resolution 3485 (XXX) of 12 December 1975).
In 1976, it abstained from voting on General Assembly resolution 31/53,
rejecting the Indonesian claim of annexation. It abstained again in 1977,
but in 1979, voted against the resolution that “the people of East Timor
must be enabled freely to determine their own future, under the auspices
of the United Nations” (resolution 34/40). It repeated its contrary vote in
1980, 1981 and 1982.

However this may be, the central issue before the Court is whether the
acceptance of this right of East Timor accords with the conclusion of a
Treaty recognizing East Timor as a province of Indonesia, and whether
that act of concluding the Treaty militates against such rights as East
Timor may enjoy to the natural resources that are dealt with by the
Treaty. There is no qualification anywhere in that Treaty of the recogni-
tion it accords to Indonesian sovereignty, such as appears in the state-
ments of Australia made outside the Treaty.

Upon the basis of the averments in the Treaty, it would seem therefore
that Portugal’s assertion of an incompatibility between Australia’s action
in entering into the Timor Gap Treaty, and Australia’s recognition of the
principle of self-determination, raises issues requiring close consideration.

If self-determination is a right assertible erga omnes, and is thus a right
opposable to Australia, and if Australia’s action in entering into the
Treaty is incompatible with that right, Australia’s individual action,
quite apart from any conduct of Indonesia, would not appear to be in
conformity with the duties it owes to East Timor under international law.

(vil) The suggested clash between the rights of the people of East Timor
and the rights of the people of Australia

Australia has submitted that Australia too enjoys the right of perma-
nent sovereignty over its natural resources and that what is involved in
this case is “‘peremptory norm versus peremptory norm’, ‘permanent
sovereignty of Australia versus sovereign rights of Portugal’” (CR 95/11,

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203 EAST TIMOR (DISS. OP. WEERAMANTRY)

p. 29). The undeniable rights of Australia cannot, of course, be matched
by the purely fiduciary rights of Portugal, for Portugal has no sovereign
rights, save in its capacity as custodian of the rights of the East Timorese
people. More properly stated, the suggestion is then of a clash between
the peremptory norm of Australia’s permanent sovereignty over its
natural resources and the peremptory norm of East Timor’s permanent
sovereignty over its natural resources.

It cannot be said that Australia enjoys an absolute right to permanent
sovereignty over its natural resources in the Timor Gap which can be
delineated independently of the rights of East Timor. With only 430 kilo-
metres of ocean space between them (Judgment, para. 11), the extent of
Australia’s entitlement is obviously determined, inter alia, by the claims
of East Timor — hence the need for a treaty. Since Australia’s rights can-
not be considered independently of East Timor, Australia’s claim to deal
with no more than its own entitlement is unsustainable.

Competing interests to a limited ocean space can only be resolved by
the consent of parties or by some equitable external determination in a
manner recognized by law. An agreement that does not embody the con-
sent of the East Timorese people does not fall within the first category
and a determination by Indonesia as to how much it is equitable to give
to Australia does not fall within the second. It is not such a determina-
tion as would bring it within the means of resolution indicated by the
Court’s case-law and Article 83, read with Part XV, of the Montego Bay
Convention.

It is not within the ambit of this case or within the Court’s competence
to determine whether the division of resources between Australia and
Indonesia is indeed an equitable one from the point of view of the East
Timorese people. This is simply not a matter before the Court, and must
await determination at the proper time and in the proper manner. All
that arises for decision is whether a treaty has been entered into which
deals with the natural resources of the East Timorese people without
their consent or the consent of the administering Power recognized by the
United Nations.

It may be that the Treaty obtains for Australia exactly its equitable
rights, or it may be that it obtains for the Australian people even less
than their proper entitlement. Portugal’s claim is that a treaty not
entered into in the manner recognized by international law may sign
away in perpetuity certain non-renewable resources of the East Timor-
ese people. If this is the case, and if the authority charged by the
United Nations with administering the affairs of the East Timorese
people brings up the matter in the form of an East Timorese right
which is opposable to Australia, that complaint deserves the closest
attention.

Portugal contends that Australia, inasmuch as it has negotiated, con-

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cluded and initiated performance of the agreement of 11 December 1989,
and has taken internal legislative measures for the application thereof,
has thus infringed the right of the people of East Timor to self-determina-
tion and permanent sovereignty over its natural wealth and resources. If
this is so, Australia, through its individual conduct, is in breach of the
obligation to respect that right.

The Australian argument that there was no option available to Aus-
tralia but to enter into this Treaty opens up an important issue of inter-
national law relating to recognition. Where a territory has been acquired
in a manner which leaves open the question whether legal sovereignty has
been duly acquired, countries entering into treaty relations in respect of
that territory have a range of options stretching all the way from de facto
recognition through many variations to the highest level of recognition
— de jure recognition.

It is to be observed that, in this Treaty, Australia has made no quali-
fication whatever of its recognition of Indonesia’s sovereignty over East
Timor. Indeed, the very title of the Treaty is “Treaty between Australia
and the Republic of Indonesia on the Zone of Cooperation in an area
between the Indonesian Province of East Timor and northern Australia”
(emphasis added). The description of East Timor as a province of Indo-
nesia is more than once repeated in the text of the Treaty. Such an un-
reserved recognition of Indonesia’s sovereignty over East Timor in an
important Treaty is perhaps one of the highest forms of de jure recogni-
tion.

This high form of recognition focuses attention more sharply on the
alleged incompatibility of the Australian action with East Timor’s rights
of self-determination and permanent sovereignty.

+ *

In the result, I would reaffirm the importance of the right of the people
of East Timor to self-determination and to permanent sovereignty over
natural resources, and would stress that, in regard to rights so important
to contemporary international law, the duty of respect for them extends
beyond mere recognition, to a duty to abstain from any State action
which is incompatible with those rights or which would impair or nullify
them. By this standard, Australia’s action in entering into the Timor Gap
Treaty may well be incompatible with the rights of the people of East
Timor.

PART D. THE OBLIGATIONS OF AUSTRALIA

The preceding Part of this opinion has examined the central impor-
tance of the rights of self-determination and permanent sovereignty over
natural resources of the people of East Timor. It has also considered to

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what extent Australia’s action in entering into the Timor Gap Treaty is
compatible with the rights enjoyed in this regard by the people of East
Timor.

This Part concentrates on the duties that result from those rights.

A. Obligations under General International Law

(i) Obligations stemming from the general sources of international law

The multiplicity of sources of international law which support the right
of self-determination have been dealt with in Part C of this opinion. Cor-
responding to the rights so generated, which are enjoyed by the people of
East Timor, there are corresponding duties lying upon the members of
the community of nations. Just as the rights associated with the concept
of self-determination can be supported from every one of the sources of
international law, so also can the duties, for a right without a corre-
sponding duty is no right at all.

It suffices for present purposes to draw attention to this multiplicity of
sources and to the fact that they concur in recognizing those rights as
existing erga omnes. It is not necessary for the purposes of this opinion to
explore them all. Australia, in common with all other nations, would,
under general international law, be obliged to recognize the obligations
stemming from these rights. Australia unhesitatingly acknowledges the
right. Its acceptance of the corresponding duties does not clearly appear
from its submissions.

(ii) Obligations expressly undertaken by treaty

It is pertinent to note at least three significant occasions on which the
Respondent, in common with other States, has solemnly undertaken by
treaty the duty to act in furtherance of these rights. These have been
referred to in Part C, and it will suffice here to draw attention to these
treaty commitments — under the Charter and under the two Interna-
tional Human Rights Covenants of 1966. The Charter provisions on self-
determination have been outlined earlier. Under the two Covenants,
every party accepts the obligation to promote the realization of the right
to self-determination and to respect that right (Arts. 1 and 2 of each Cov-
enant). 7

These references are sufficient to place the duty to respect self-determi-
nation on a firm foundation of treaty obligation.

B. Obligations under United Nations
Resolutions

It is not proposed to enter here into a discussion of the broad question
of the binding nature of Security Council decisions. It is more to the pur-

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pose to consider whether, having regard to the particular circumstances
of this case, the Security Council resolutions which reaffirm principles of
general international law may be considered to give added force to them.
As observed earlier, there was no suggestion at any stage in this case
that the General Assembly or the Security Council had acted outside
their province or beyond the scope of their legitimate authority in regard
to any of the resolutions on East Timor which were discussed in this case.
The objections to their binding effect were rather on the basis of other
considerations, such as declining majorities and desuetude. These have
already been considered. In relation to the Security Council resolutions,
the technical consideration was urged as to whether in the resolutions the
Security Council spoke in the language of decision or exhortation.

Resolution 384 “urges all States . . . to co-operate fully with . . . the
United Nations ... to facilitate the decolonization of the Territory” and
resolution 389 “calls upon all States” to do likewise.

Each resolution also calls upon all States “to respect the territorial
integrity of East Timor, as well as the inalienable right of its people
to self-determination in accordance with General Assembly resolu-
tion 1514 (XV)”.

Words such as urges and calls upon are not necessarily of a purely hor-
tatory nature. As with all documents that come under legal analysis, the
totality of the document, rather than any particular words, must be the
guide to its overall import. In this case, one can treat them as imposing
no obligation, if one takes the words “urges” and “calls upon” in isola-
tion, but not in the context of the overall construction of the document.
That is not the method of legal construction and it is not a method
I would employ.

We have here two documents which state categorically the Security
Council’s position that self-determination was an imperative and that it
had not yet taken place. They urge all States to co-operate, and call upon
all States to respect the territorial integrity of East Timor. Does a Mem-
ber State faced with such resolutions, reaffirming a cardinal rule of inter-
national law, have the freedom to disregard the need for self-determina-
tion at its will and pleasure? In the face of the Security Council’s
considered assertion that self-determination has not taken place, is it
open to an individual State to recognize de jure the annexation of a non-
self-governing territory by another State, and to enter into treaty rela-
tions with that State regarding the assets of the territory? The overall
circumstances of this case would point to a negative answer to these ques-
tions.

Without any attempt at an exhaustive survey of this matter, it may be
noted that the lack of phraseology such as “decides” and “determines”
does not appear in the past to have prevented Security Council resolu-

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207 EAST TIMOR (DISS. OP. WEERAMANTRY)

tions from being considered as decisions!. For example, Security Council
resolution 145 (1960) of 22 July 1960, in relation to the Congo, nowhere
uses such words as “decides” or “determines”, but “calls upon” the
Government of Belgium to implement speedily Security Council resolu-
tion 143 (1960) on the withdrawal of its troops. It “requests” all States to
refrain from any action which might tend to impede the restoration of
law and order and the exercise by the Government of the Congo of its
authority and also to refrain from any action which might undermine the
territorial integrity and the political independence of the Republic of the
Congo. Is this language merely hortatory or is it the language of a deci-
sion?

After this resolution was passed, the Secretary-General drew the atten-
tion of the Council to the obligations of members under Articles 25 and
49. The Secretary-General’s observations were made on the basis that the
resolution was binding under Articles 25 and 49. Having cited these two
sections, the Secretary-General observed to the Council:

“Could there be a more explicit basis for my hope that we may
now count on active support, in the ways which emerge from what
I have said, from the Governments directly concerned?” (United
Nations, Official Records of the Security Council, Fifteenth Year,
884th Meeting, 8 August 1960, para. 23.)

Thereafter, resolution 146 (1960) of 9 August 1960 was passed. That
resolution, which still lacked the phraseology of decision and determina-
tion, “Calls upon the Government of Belgium to withdraw immediately
its troops from the province of Katanga...” and again:

“Calls upon all Member States, in accordance with Articles 25 and
49 of the Charter of the United Nations, to accept and carry out the
decisions of the Security Council and to afford mutual assistance in
carrying out measures decided upon by the Council.” (Emphasis
added.)

There is here a clear indication by the Security Council itself that its
earlier resolution was a decision.

In this context, mention should also be made of resolution 143 (1960)
of 14 July 1960 which “Calls upon the Government of Belgium to with-
draw its troops from the territory of the Republic of the Congo” and
“Decides to authorize the Secretary-General to take the necessary steps
... to provide the Government with such military assistance as may be
necessary ...”.

Thereafter the General Assembly made a “request” to all Member
States to accept and carry out the decisions of the Security Council, this

' See Goodrich, Hambro and Simons, op. cit., p. 210.

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208 EAST TIMOR (DISS. OP. WEERAMANTRY)

resolution again carrying the implication that the Security Council reso-
lutions constituted decisions and imposed obligations.

Secretary-General Hammerskjéld stressed, in his intervention, that if
the co-operation needed to make the Charter a living reality were not to
be achieved, “this would spell the end of the possibilities of the Organiza-
tion to grow into what the Charter indicates as the clear intention of the
founders . . .”'. The words of Hammarskjéld assume particular signi-
ficance in the context of resolutions dealing with such rights as those
relating to self-determination and permanent sovereignty over natural
resources.

The resolutions of the Security Council involved in this case (resolu-
tions 384 and 389), use phraseology similar to that of the first resolution
cited above relating to the Congo. Each of these resolutions calls upon all
States. to respect the territorial integrity of East Timor, as well as the
inalienable right of its people to self-determination in accordance with
General Assembly resolution 1514 (XV).

Each resolution likewise “calls upon” the Government of Indonesia to
withdraw without further delay ail its forces from the Territory.

Thus, on United Nations precedent, it would appear that the absence
of words of determination or decision does not necessarily relegate Secu-
rity Council resolutions to the level of mere hortatory declarations.

Against the background of the Security Council reaffirming a right
admittedly of fundamental importance, and admittedly enjoyed erga
omnes, it seems academic to examine its obligatory nature in terms of the
precise phraseology used. Especially is this so when one has regard to the
fact that the resolutions were made after hearing Australia, and were in
line with the Australian submissions made to the Council.

C. Some Juristic Perspectives

(i) The correlativity of rights and duties

This section surveys the obligations under examination, from what
may be described as a jurisprudential or conceptual angle. While the nght
to self-determination has attracted much attention in modern interna-
tional law, the notion of duties corresponding to that right has not
received the same degree of analysis. This is well illustrated in the
present case, where the concept of self-determination is freely accepted,
but not the corresponding duties. A conceptual examination of the

! United Nations, Official Records of the General Assembly, Sixteenth Session, Sup-
plement No. 1A, A/4800/Add.1, p. 4; see, also, the similar view expressed by U Thant, in
a speech on 28 October 1969, UN Monthly Chronicle, Vol. 6, No. 10, November 1969,
p. 86.

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209 EAST TIMOR (DISS. OP. WEERAMANTRY)

question will underscore the importance of duties in the context of this
case.

The existence of a right is juristically incompatible with the absence of
a corresponding duty. The correlativity of rights and duties, well estab-
lished in law as in logic (see, especially, Hohfeld, Fundamental Legal
Conceptions, 1923), means that if the people of East Timor have a right
erga omnes to self-determination, there is a duty lying upon all Member
States to recognize that right. To argue otherwise is to empty the right of
its essential content and, thereby, to contradict the existence of the right
itself. It is too late in the day, having regard to the entrenched nature of
the rights of self-determination and permanent sovereignty over natural
resources in modern international law, for the accompanying duties to be
kept at a level of non-recognition or semi-recognition.

(ii) Is duty limited to compliance with specific directions and prohibi-
tions ?

An important submission made to the Court by Australia needs now
to be addressed. It has juristic implications transcending this particular
case.

This argument was summarized by Australia in the penultimate para-
graph of its Counter-Memorial in terms that:

“By entering into the Treaty in December 1989, Australia did not
contravene any direction of the United Nations with respect to East
Timor, for none had been made.” (Para. 412.)

This point was further emphasized at the oral hearings in terms that:

“The Security Council has not spelt out or imposed a single legal
obligation on Australia or any other Member State which would
preclude Australia from entering into the Timor Gap Treaty with
Indonesia.” (CR 95/10, p. 31.)

Again, it was submitted that:

“Neither resolution calls on Australia or Member States generally
to negotiate only with Portugal. Neither resolution calls on Aus-
tralia not to deal with Indonesia. And neither resolution condemns
Australia for any violation of the United Nations Charter or of
international law.” (/bid., p. 26; see, also, Counter-Memorial,
paras. 328-346.)

This argument suggests that obligations owed by States in relation to
self-determination are confined to compliance with express directions or
prohibitions.

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210 EAST TIMOR (DISS. OP. WEERAMANTRY)

A further development of this argument was that there are no sanc-
tions laid down by the United Nations of which Australia is in breach.

In the first place, the obligation exists under customary international
law which, by its very nature, consists of general principles and norms
rather than specific directions and prohibitions. In the analogy of a
domestic setting, customary or common law (as opposed to specific
legislation) provides the guiding norms and principles in the light of
which the specific instance is judged.

So it is with international law, making due allowance, of course, for
the differences in its sources. Customary law provides the general prin-
ciples, while other sources, such as treaties and binding resolutions,
may deal with specifics.

Thus conduct which merely avoids violations of express directions or
prohibitions is not necessarily in conformity with the international obli-
gations lying upon a State in terms of customary international law. The
obligations to respect self-determination and the right to permanent sov-
ereignty over natural resources are among these and extend far further
than mere compliance with specific rules or directions and the avoidance
of prohibited conduct.

If further elucidation be necessary, one can approach the question also
from the standpoint of analytical jurisprudence.

Reference needs to be made in this connection to the major jurispru-
dential discussions that have in recent years explored the nature of legal
obligations. While it is self-evident that legal obligations consist not only
of obedience to specific directions and prohibitions, but also of adherence
to norms or principles of conduct, this distinction has been much illumi-
nated by recent discussions in this department of juristic literature!.

To take the analogy of domestic law, the corpus of law on which con-
duct according to law is based consists not only of commands and pro-
hibitions, but of norms, principles and standards of conduct. Commands
and prohibitions cover only a very small area of the vast spectrum of
obligations. Quite clearly, duties under international law, like duties
under domestic law, are dependent not only on specific directions and
prohibitions but also on norms and principles.

1 Without entering into the details of this far-ranging analysis, it will suffice to refer to
some well-known expositions of the nature of rights and duties. See Dworkin, Taking
Rights Seriously, 1977, especially Chaps, 2 and 3; see, also, the similar approach of
Roscoe Pound, “The Theory of Judicial Decision”, Harvard Law Review, 1923, Vol. 36,
p. 645, which anticipates the studies of Dworkin; and see, further, Roscoe Pound, “Jur-
istic Science and Law”, Harvard Law Review, 1918, Vol. 31, pp. 1047 ff. These demon-
strations that principles and standards are as integral to a legal system as rules (Dworkin,
“Is Law a System of Rules?”, in Dworkin (ed.), The Philosophy of Law, 1977, p. 38) have
applicability to the international legal system as well.

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211 EAST TIMOR (DISS. OP. WEERAMANTRY)

Indeed, the extension of obligations beyond mere obedience to specific
directions and prohibitions, if true of domestic law, must apply a fortiori
in the field of international law which grew out of the broad principles of
natural law and has no specific rule-making authority in the manner so
familiar in domestic jurisdictions. The dependence of international law
for its development and effectiveness on principles, norms and standards
needs no elaboration.

If rights are to be taken seriously, one cannot ignore the principles on
which they are based'. If the right of self-determination is to be taken
seriously, attention must focus on the underlying principles implicit in the
right, rather than on the itemization of specified incidents of direction
and prohibition which, useful so far as they go, are not a complete state-
ment of the duties that follow from the right. It is impossible to define in
terms of specific directions and prohibitions the numerous duties these
impose. As Australia itself has observed, “the obligation to promote self-
determination is an example of an obligation where no particular means
are prescribed” (CR 95/10, p. 21).

Juristically analysed, it is not appropriate to view self-determination as
though the totality of the duties it entails consist only in obedience to
specific directions of the United Nations. Performance of duties and obli-
gations must be tested against the basic underlying norms and principles,
rather than against such specific directions or prohibitions as might have
been prescribed. Quite clearly, an obligation cannot cease to exist merely
because specific means of compliance are not prescribed, nor is its
underlying general principle exhausted by the enumeration of particular
itemized duties. The duty of respect and compliance extends beyond the
letter of specific command and prohibition.

To illustrate from domestic law, such a general principle as that under
which a manufacturer of motor cars “is under a special obligation in con-
nection with the construction . . . of his cars”2, is one which “does not
even purport to define the specific duties such a special obligation
entails”?. Yet the obligation applies in the particular unspecified eventu-
alities which might occur. When a claim arises from a breach of some
specific duty within the general principle, the manufacturer cannot avoid
the principle on the ground that it does not specify the particular duty.
The argument that no breach of duty has occurred because the respond-
ent’s conduct violates no specific direction can be answered in much the
same manner, because the conduct required by law consists not only of

! See, further, Dworkin, Taking Rights Seriously (op. cit., p. 22). The author contends
that if rights are not taken seriously, law is not taken seriously either (ibid, p. 205).

2 Henningsen v. Bloomfield Motors, Inc., 32 NJ 358 (1960).
3 Dworkin, supra, p. 26, citing Henningsen v. Bloomfield Motors, Inc., supra.

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212 EAST TIMOR (DISS. OP. WEERAMANTRY)

compliance with specified directions or prohibitions, but of compliance
with a principle of conduct.

The jurisprudential discussions referred to have not passed unnoticed
in the literature of modern international law!.

In the circumstances of this case, the act of being party to the Timor
Gap Treaty would appear to be incompatible with recognition of and
respect for the principle of East Timor’s rights to self-determination and
permanent sovereignty over natural resources inasmuch as, inter alia, the
Treaty:

(1) expressly recognizes East Timor as a province of Indonesia without
its people exercising their right;

(2) deals with non-renewable natural resources that may well belong to
that Territory;

(3) makes no mention of the rights of the people of East Timor, but only
of the mutual benefit of the peoples of Australia and Indonesia in the
development of the resources of the area (Preamble, para. 6);

(4) makes no provision for the event of the East Timorese people decid-
ing to repudiate the Treaty upon the exercise of their right to self-
determination;

(5) specifies an initial period of operation of 40 years, with possible
renewals for successive terms of 20 years; and

(6} creates a real possibility of the exhaustion of this resource before it
can be enjoyed by the people of East Timor.

These aspects, all prima facie contradictory of the essence of self-
determination and permanent sovereignty over natural resources, do not
cease to have that character because treaty-making with Indonesia has
not been expressly prohibited.

Attention was also drawn to the aspect of sanctions. It was pointed
out, for example, that issues such as arms supplies, oil supplies and new
investments in South Africa were singled out for condemnation when
sanctions were imposed on South Africa. On this basis, Australia sub-
mitted that the General Assembly has shown willingness, when appro-
priate, to condemn particular actions or recommend and urge others. It
was submitted that the United Nations has issued no such specific direc-
tions requiring States to abstain from dealings with a State involved in a
self-determination dispute (CR 95/9, p. 78), and that there has been no
specific pronouncement on the Timor Gap Treaty.

! See, for example, Kratochwil, Rules, Norms, and Decisions, 1989.

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213 EAST TIMOR (DISS. OP. WEERAMANTRY)

Sanctions may point to an obligation, but they are clearly not the only
source of obligations. Indeed, Oscar Schachter, in a study of the bases of
obligation in international law, lists thirteen possible items, of which
sanctions is only one!.

Further,

“The most thorough research, in both domestic and international
law, shows that in reality, compulsion is neither an integral nor a
constitutive part of legal rule, but that it represents a distinct ele-
ment added to the rule to perfect it. Sanction does not represent a
condition for the existence of obligation but only for its enforce-
ment.” ?

International law in its present stage of development, serving the needs
of an integrated world community, demands a broader view of interna-
tional obligations than that which is implicit in the Australian submis-
sions.

Security Council resolutions 384 and 389 clearly formulate certain
principles of conduct in relation to self-determination and permanent
sovereignty. Those principles were already well recognized and entrenched
in international law before being applied by those resolutions to the spe-
cific case of East Timor. Australia is, in my view, in violation of those
principles, contradicting by its conduct its obligation to respect the right
of self-determination of the people of East Timor and their right to per-
manent sovereignty over their natural resources. The plea that Australia
did not contravene any direction of the United Nations does not exempt
it from responsibility.

(il) Obligations stemming from the erga omnes concept

The Court has found that “Portugal’s assertion that the right of
peoples to self-determination, as it evolved from the Charter and from
United Nations practice, has an erga omnes character, is irreproachable”
(Judgment, para. 29).

This paragraph bases itself upon that finding. It is a position, more-
over, which has been accepted by Australia and assumed throughout the
hearings.

The Court’s jurisprudence has played a significant role in the evolution
of the erga omnes concept.

In Barcelona Traction, this Court, drawing a distinction between obli-
gations of a State towards the international community as a whole, and

! Oscar Schachter, “Towards a Theory of International Obligation”, Virginia Journal
of International Law, 1968, Vol. 8, p. 301.
2 Mohammed Bedjaoui, Towards a New International Economic Order, 1979, p. 179.

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214 EAST TIMOR (DISS. OP. WEERAMANTRY)

those arising vis-à-vis another State in the field of diplomatic protection,
observed:

“Such obligations derive, for example, in contemporary interna-
tional law, from the outlawing of acts of aggression, and of geno-
cide, as also from the principles and rules concerning the basic rights
of the human person, including protection from slavery and racial
discrimination. Some of the corresponding rights of protection have
entered into the body of general international law (Reservations to
the Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, 1 C.J. Reports 1951, p. 23); others are
conferred by international instruments of a universal or quasi-
universal character.” (Barcelona Traction, Light and Power Com-
pany, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32,
para. 34.)

In paragraph 35, the Court followed this principle through by observ-
ing that in obligations of this category, unlike the obligation which is the
subject of diplomatic protection, “all States have a legal interest in its
observance” (I.C_J. Reports 1970, p. 32; emphasis added). In Barcelona
Traction, the Court was, of course, dealing with obligations that are owed
erga omnes.

In that case, the Court was spelling out that, where a State has an obli-
gation towards all other States, each of those other States has a legal
interest in its observance. If, therefore, Australia has an obligation erga
omnes towards all States to respect the right of self-determination, Por-
tugal (as the administering Power of East Timor) and East Timor would
have a legal interest in the observance of that duty.

Other cases in which this Court was confronted with erga omnes obli-
gations were Northern Cameroons U.C.J. Reports 1963, p. 15); the
South West Africa cases, Preliminary Objections (1 C.J. Reports 1962,
p. 319) and South West Africa cases, Second Phase (I.C.J. Reports 1966,
p. 6); Nuclear Tests (Australia v. France) U.C.J. Reports 1974, p. 253)
and Nuclear Tests (New Zealand v. France) (ibid., p. 457); United States
Diplomatic and Consular Staff in Tehran (I. C.J. Reports 1980, p. 3); and
Border and Transborder Armed Actions (Nicaragua v. Honduras), Juris-
diction and Admissibility (I. C.J. Reports 1988, p. 69).

Although in this fashion the erga omnes principle has played an appar-
ently frequent role in the Court’s recent jurisprudence, it has not yet
drawn a definitive decision from the Court in relation to the manner in
which the principle will operate in case of breach. For example, in North-
ern Cameroons, the question whether a Member State has a right of
action consequent upon an erga omnes breach was left undecided as the
case was dismissed on grounds of judicial propriety. The dismissal of the
South West Africa cases in the merits phase, in 1966, left no scope for any

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215 EAST TIMOR (DISS. OP. WEERAMANTRY)

conclusions regarding erga omnes obligations. The Nuclear Tests cases
did not pronounce on the erga omnes character of the rights of all States
to be free from atmospheric nuclear tests.

It has thus happened that no Judgment of this Court thus far has
addressed the consequences of violation of an erga omnes obligation. The
present case, had it passed the jurisdictional stage, would have been just
such a case where the doctrine’s practical effects would have been con-
sidered. Since this opinion proceeds on the basis that the merits must be
considered, it must advert to the consequences of violation of an erga
omnes obligation.

All the prior cases before this Court raised the question of duties owed
erga omnes. That aspect is present in this case as well, for every State has
an erga omnes duty to recognize self-determination and, to that extent, if
Portugal’s claim is correct, Australia is in breach of that general erga
omnes duty towards East Timor!.

However, this case has stressed the obverse aspect of rights opposable
erga omnes — namely, the right erga omnes of the people of East Timor
to the recognition of their self-determination and permanent sovereignty
over their natural resources. The claim is based on the opposability of the
right to Australia.

In Barcelona Traction, the Court’s observations regarding obligations
owed to the international community as a whole were not necessary to
the case before it. Yet, though its observations were obiter, the notion of
obligations erga omnes developed apace thereafter?.

The present case is one where quite clearly the consequences of the
erga omnes principle follow through to their logical conclusion — that
the obligation which is a corollary of the right may well have been con-
travened. This would lead, in my view, to the grant of judicial relief for
the violation of the right.

I am conscious, in reaching this conclusion, that the violation of an
erga omnes right has not thus far been the basis of judicial relief before
this Court. Yet the principles are clear, and the need is manifest for a
recognition that the right, like all rights, begets corresponding duties.

' For a recent survey of erga omnes as a source of obligations generally, see Claudia
Annacker, “The Legal Régime of Erga Omnes Obligations in International Law”, Aus-
trian Journal of Public and International Law, 1994, Vol. 46, pp. 131 ff.

2 See Bruno Simma, “Does the UN Charter Provide an Adequate Legal Basis for Indi-
vidual or Collective Responses to Violations of Obligations Erga Omnes?”, in Jost Del-
brück (ed.), The Future of International Law Enforcement: New Scenarios — New Law ?,
1993, pp. 125 ff.

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216 EAST TIMOR (DISS. OP. WEERAMANTRY)

The erga omnes concept has been at the door of this Court for many
years. A disregard of erga omnes obligations makes a serious tear in the
web of international obligations, and the current state of international
law requires that violations of the concept be followed through to their
logical and legal conclusion.

Partly because the erga omnes obligation has not thus far been the sub-
ject of judicial determination, it has been said that: “Viewed realistically,
the world of obligations erga omnes is still the world of the ‘ought’ rather
than the ‘is’.”! This case raises issues which bridge that gap.

I would end this paragraph as it began, by adopting the Court’s pro-
nouncement on the erga omnes character of East Timor’s right, and
I would follow that principle through to what I have indicated to be its
logical and legal conclusion.

x * x

In the result, the obligations of Australia towards East Timor can be
shown to stem from a multiplicity of sources and juristic considerations.
Any one of them by itself would be sufficient to sustain these obligations
in law. Cumulatively, their weight is compelling.

PART E. AUSTRALIA’S OBJECTIONS BASED ON JUDICIAL PROPRIETY

Australia has submitted that there are reasons of judicial propriety, in
consideration of which the Court should not decide this case (Counter-
Memorial, para. 306).

Among the supportive reasons adduced are

(i) that there is no justiciable dispute in this case (ibid., paras. 315-316);

(ii) that these proceedings are a misuse of the processes of the Court
(ibid., paras. 306-316);

(iii) that the proceedings have an illegitimate object (Rejoinder,
paras. 155-166);

(iv) that the Judgment would serve no useful purpose in that it would
not promote the interests allegedly requiring protection (Counter-
Memorial, paras. 271-278);

(v) that the Court should not, in any event, give a judgment which the
Court has no authority or ability to satisfy (Rejoinder, paras. 160-
166); and . a

(vi) that the Court is an inappropriate forum for the resolution of
the dispute (ibid, paras. 167-169) inasmuch as other United

! Simma, “Violations of Obligations Erga Omnes?”, op. cit., p. 126.

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217 EAST TIMOR (DISS. OP. WEERAMANTRY)

Nations organs have assumed responsibility for negotiating a
settlement of the East Timor question (Counter-Memorial,
paras. 288-297).

(i) Absence of a justiciable dispute

The Court has held that there is in fact a justiciable dispute in this case
and J respectfully concur in that finding.

(ii) Misuse of the process of the Court

Australia has argued that this case is:

“a sham — a blatant artifice, by which, under the guise of attacking
Australia’s capacity to conclude the Treaty, in reality Portugal seeks
to deprive Indonesia of the benefits of its control over East Timor”
(CR 95/11, pp. 47-48).

This contention is linked to Australia’s submission that there is in reality
no dispute in this case. If there is indeed a justiciable dispute, as the
Court has held, the resort to the processes of the Court for resolution is
right and proper, for it is for the resolution of justiciable disputes that the
Court exists.

Moreover, if the expression “administering Power” has any meaning, it
means a commitment to the solemn duties associated with the “sacred
trust” on behalf of the people of East Timor. As pointed out earlier in
this opinion, Portugal would be in violation of that basic obligation if,
while being the administering Power, and while claiming to be such, it
has failed to take such action as was availabie to it in law for protecting
the rights of the people of East Timor in relation to their rights which are
dealt with under the Treaty. This case involves no less than the assertion,
on behalf of a Territory that has no /ocus standi before the Court, of the
denial of two rights which are considered fundamental under modern
international law. Whatever be the result, this is eminently a justiciable
dispute, brought before an appropriate forum.

(iii) The Judgment would not serve any legitimate object

Under this head, Australia argues that a judgment in Portugal’s favour
cannot fulfil any legitimate object inasmuch as the Court cannot require
Australia to breach valid treaty obligations owed to third States, and
judgment for Portugal would deny Australia’s ability to protect its sov-
ereign rights (Counter-Memorial, paras. 269-286). These have been suf-
ficiently answered in the course of this opinion. It was also suggested at
various stages of the case that Portugal’s objectives included the gaining
of benefits for itself as the former colonial power. It has been indicated
elsewhere in this opinion that whatever Portugal gains from these pro-

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218 EAST TIMOR (DISS. OP, WEERAMANTRY)

ceedings will be held strictly for the benefit of the people of East Timor,
and under United Nations supervision.

(iv) The Judgment would serve no useful purpose in that it would not pro-
mote the interests of East Timor

Portugal has submitted that a judgment in Portugal’s favour would
serve the useful purpose of conserving the rights of the people of East
Timor.

Australia submits, on the other hand, that:

“Faced with a situation such as postulated by Portugal, both Aus-
tralia and Indonesia are likely unilaterally to exploit the area, with-
out the Treaty, avoiding jurisdictional conflicts on a purely prag-
matic basis.” (Rejoinder, para. 160.)

Australia also submits that the Treaty is potentially more beneficial to
the people of East Timor, “provided Indonesia passes on an equitable
part of the benefits to the people” (ibid. ). The qualification introduced to
this proposition goes to the crux of the matter. One does not know
whether, when or how this will occur.

To dismiss this claim on the basis that, in any event, an equitable part
of the benefits derived by a third country will somehow be passed on to
the people does not answer the concerns which lie at the root of the prin-
ciples of self-determination and permanent sovereignty.

In its Rejoinder, Australia states:

“No matter how hard Portugal emphasizes its alleged formal
status and responsibilities, it gives no indication of how a judgment
in its favour will make one iota of difference to the rights of the
East Timorese over their offshore resources. Those rights, as well as
Australia’s, will continue. No judgment of this Court can affect
them, given the limited issue which Portugal asks the Court to
adjudge.” (Para. 162; emphasis in original.)

It is somewhat difficult to understand this passage, for the judgment
sought by Portugal is not merely a judgment affirming the rights of East
Timor to self-determination and permanent sovereignty over its natural
resources, but one which holds, in relation to those rights, that they are
opposable to Australia, and that they have been infringed by Australia in
entering into the Timor Gap Treaty. Such a judgment, had it been
obtained, would not have been without legal consequences.

In Northern Cameroons, the adjudication sought would have been
devoid of any purpose. It concerned a dispute about the interpretation
and application of a treaty which was no longer in force and in which
there could be no opportunity for a future act of interpretation or appli-

132
219 EAST TIMOR (DISS. OP. WEERAMANTRY)

cation of that treaty in accordance with any judgment the Court might
render (.C.J. Reports 1963, p. 37). In that case, if the Court made a dec-
laration after the termination of the trusteeship agreement, it would have
no continuing applicability. In the words of a recent treatise, the distinc-
tion between Northern Cameroons and the present case was noted as fol-
lows:

“In Northern Cameroons the Court did not proceed to the merits
of the case because its judgment could have had no practical effect
and would have had no impact upon existing legal rights or obliga-
tions. To give a judgment under the circumstances would not have
accorded with the judicial function; Case Concerning the Northern
Cameroons (Cameroon v. United Kingdom), Preliminary Objections,
1963 ICJ Rep. 15 (Judgment of 2 Dec. 1963). In the East Timor case
this limitation does not appear to apply.” !

The judgment sought here is in respect not of a defunct treaty but of
two basic international obligations which are very much a part of current
law. It cannot be said that there will be no opportunities for any future
application of those principles to the rights of the East Timorese people.
The Northern Cameroons case is thus clearly distinguishable.

(v) The Court should not give a judgment which it has no authority or
ability to satisfy

The Court, by its very constitution, lacks the means of enforcement
and is not to be deterred from pronouncing upon the proper legal deter-
mination of a dispute it would otherwise have decided, merely because,
for political or other reasons, that determination is unlikely to be imple-
mented. The raison d’étre of the Court’s jurisdiction is adjudication and
clarification of the law, not enforcement and implementation. The very
fact that a justiciable dispute has been duly determined judicially can
itself have a practical value which cannot be anticipated, and the conse-
quences of which may well reach into the area of practicalities. Those are
matters beyond the purview of the Court, which must discharge its
proper judicial functions irrespective of questions of enforceability and
execution, which are not its province.

(vi) Is the Court an inappropriate forum?

The fact that other United Nations organs are seised of the same mat-
ter and may be considering it is no basis for a suggestion that the Court
should not consider that matter to the extent that is proper within the
limits of its jurisdiction. This matter does not need elaboration in view of

1 C. Chinkin, Third Parties in International Law, 1993, p. 211, footnote 105.

133
220 EAST TIMOR (DISS. OP. WEERAMANTRY)

the extensive case-law upon the subject. Each organ of the United Nations
has its own allotted responsibility in its appropriate area. A matter for
adjudication under the judicial function of the Court within its proper
sphere of competence is not to be considered extraneous to the Court’s
concerns merely because political results may flow from it or because
another organ of the United Nations is examining it from the standpoint
of its own area of authority. As the late Judge Lachs observed with his
customary clarity in the Lockerbie case, the Court is

“the guardian of legality for the international community as a whole,
both within and without the United Nations. One may therefore
legitimately suppose that the intention of the founders was not to
encourage a blinkered parallelism of functions but a fruitful inter-
action.” (Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie,
Provisional Measures (Libyan Arab Jamahiriya v. United States
of America), Order of 14 April 1992, I C.J. Reports 1992, p. 138;
separate opinion.)

The Australian submission that other organs of the United Nations
have assumed responsibility for negotiating a settlement of the East
Timor question (Counter-Memorial, paras. 288 et seq.) does not absolve
the Court of its own responsibility within its own allotted area.

Moreover, this is not a case, as indicated earlier in this opinion, which
opens out a full range of enquiry into all the military, diplomatic and
political nuances of the East Timor situation. Since this is not so, the
Australian submission that the case is unsuitable for adjudication in these
proceedings (see Counter-Memorial, paras. 298-300) must fail.

The complementarity of the various organs of the United Nations, all
pursuing in their different ways the Purposes of the Organization to
which they belong, requires each organ, within its appropriate and legiti-
mate sphere of authority, to further those Purposes in the manner appro-
priate to its constitution. This Court, properly seised of a justiciable dis-
pute within its legitimate sphere of authority, does not abdicate its
judicial responsibilities merely because of the pendency of the matter in
another forum.

CONCLUSION

A. I concur in the Court’s finding that there is a justiciable dispute
between the Parties.

B. I concur with the Court in its reaffirmation of the importance of the
principle of self-determination.

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135

EAST TIMOR (DISS. OP. WEERAMANTRY)

. The Applicant has the necessary jus standi to maintain this action,

and is under a duty under international law to take necessary steps to
conserve the rights of the people of East Timor. Any benefits obtained
by such action will be held strictly for the people of East Timor.

The various objections based on judicial propriety must be rejected.

This Application is maintainable in the absence of a third State for
the following reasons:

@)

(ii)

(iii)

(iv)

(v)

(vi)

(vii)

(viii)

(ix)

(x)

(x1)

East Timor is a non-self-governing territory recognized as
such by the General Assembly and the Security Council, and
acknowledged by the Respondent to be still of that status.

Since East Timor is a non-self-governing territory, its people
are unquestionably entitled to the right to self-determination.

The right to self-determination constitutes a fundamental norm
of contemporary international law, binding on all States.

The right to permanent sovereignty over natural resources is a
basic constituent of the right to self-determination.

The rights to self-determination and permanent sovereignty
over natural resources are recognized as rights erga omnes,
under well-established principles of international law, and are
recognized as such by the Respondent.

An erga omnes right generates a corresponding duty in all
States, which duty, in case of non-compliance or breach, can
be the subject of a claim for redress against the State so acting.

The duty thus generated in all States includes the duty to
recognize and respect those rights. Implicit in such recogni-
tion and respect is the duty not to act in any manner that will
in effect deny those rights or impair their exercise.

The duty to recognize and respect those rights is an over-
arching general duty, binding upon all States, and is not
restricted to particular or specific directions or prohibitions
issued by the United Nations.

The Respondent has entered into a treaty with another State,
dealing with a valuable, non-renewable natural resource of
East Timor for an initial period of 40 years, subject to 20-year
extensions. |

The Respondent has in the Treaty expressly acknowledged
and accepted East Timor’s incorporation in that other State as
a province of that State.

That other State has at no time been recognized by the United
Nations as having any authority over the non-self-governing
222

136

(xii)

(xiii)

(xiv)

(xv)

(xvi)

(xvii)

EAST TIMOR (DISS. OP. WEERAMANTRY)

Territory of East Timor, or as having displaced the adminis-
tering Power duly recognized by the General Assembly and
the Security Council.

The Treaty thus entered into has the potential to deplete or
even exhaust this non-renewable and valuable resource of East
Timor.

The Treaty makes no provision conserving the rights of the
people of East Timor, or providing for the eventuality that,
after exercising their right to self-determination, the people of
East Timor may choose to repudiate the Treaty.

Neither the people of that Territory, nor their duly recognized
administering Power, have been consulted in regard to the said
Treaty.

The Treaty has been entered into by the Respondent and
another State “for the mutual benefit of their peoples in the
development of the resources of the area” with no mention of
any benefits for the people of East Timor from the valuable
natural resource belonging to them.

the Respondent’s individual actions:

(a) in entering into the said Treaty;

(b) in expressly acknowledging the incorporation of East
Timor into another State;

(c) in being party to an arrangement dealing with the non-
renewable resources of East Timor in a manner likely to
cause their serious depletion or exhaustion;

(d) in being party to an arrangement dealing with the non-
renewable resources of East Timor without consultation
with the people of East Timor, or their duly recognized
representative;

(e) in being party to an arrangement which makes no men-
tion of the rights of the people of East Timor, but only of
the peoples of Australia and Indonesia; and

(f) in taking steps for the implementation of the Treaty

raise substantial doubts regarding their compatibility with

(a) the rights of the people of East Timor to self-determi-
nation and permanent sovereignty over their natural
resources;

(b) the Respondent’s express acknowledgment of those rights;

(c) the Respondent’s obligations, correlative to East Timor’s
rights, to recognize and respect those rights, and not to
act in such a manner as to impair those rights;

(d} the Respondent’s obligations under relevant resolutions
of the General Assembly and the Security Council.

The circumstance that a judgment of this Court against a
party may have effects upon an absent State does not by itself,
223 EAST TIMOR (DISS. OP. WEERAMANTRY)

according to the settled jurisprudence of this Court, deprive
the Court of jurisdiction to make an order against a party
which is in fact present before it.

(xviii) The claim against the Respondent can be determined on the
basis of:

(a) the Respondent’s individual obligations under interna-
tional law;

(b) the Respondent’s individual actions; and

(c) the principle of a State’s individual responsibility under
international law for its individual actions

without any need for an examination of the conduct of another
State.

F. Since the conclusions set out above can be reached upon the basis of
the unilateral acts of the Respondent, without any necessity to inves-
tigate or pronounce upon the conduct of a third State, the case of
Monetary Gold is not relevant to a determination of this case.

G. Were it necessary to consider the case of Monetary Gold, the facts of
that case are clearly distinguishable from those in the present case.
Consequently, that decision is inapplicable.

*
* *

My conclusion therefore is that the Application before the Court is
within the Court’s competence to determine, and that the objection based
upon the absence of a third State should have been overruled and the
case proceeded with to a final determination. The materials necessary for
that determination were before the Court, as they were inextricably
linked with the preliminary issue of jurisdiction.

(Signed) Christopher Gregory WEERAMANTRY.

137