Audience publique tenue le mercredi 8 février 1995, à 10 heures, au Palais de la Paix, sous la présidence de M. Bedjaoui, président

CR 95/9
Cour internationale International Court
de Justice of Justice
LA HAYE THE HAGUE
ANNEE 1995
Audience publique
tenue le mercredi 8 février 1995, à 10 heures, au Palais de la Paix,
sous la présidence de M. Bedjaoui, Président
en l'affaire relative au Timor oriental
(Portugal c. Australie)
____________
COMPTE RENDU
____________
YEAR 1995
Public sitting
held on Wednesday 8 February 1995, at 10 a.m., at the Peace Palace,
President Bedjaoui presiding
in the case concerning East Timor
(Portugal v. Australia)
_______________
VERBATIM RECORD
_______________
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Présents : M. Bedjaoui, Président
M. Schwebel, Vice-Président
M. Oda
Sir Robert Jennings
MM. Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin, juges
Sir Ninian Stephen
M. Skubiszewski, juges ad hoc
M. Valencia-Ospina, Greffier
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Present: President Bedjaoui
Vice-President Schwebel
Judges Oda
Sir Robert Jennings
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Judges ad hoc Sir Ninian Stephen
Skubiszewski
Registrar Valencia-Ospina
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Le Gouvernement de la République portugaise est représenté par :
S. Exc. M. António Cascais, ambassadeur de la République portugaise
auprès du Gouvernement de S. M. la Reine des Pays-Bas,
comme agent;
M. José Manuel Servulo Correia, professeur à la faculté de droit de
l'Université de Lisbonne et avocat au barreau du Portugal,
M. Miguel Galvão Teles, avocat au barreau du Portugal,
comme coagents, conseils et avocats;
M. Pierre-Marie Dupuy, professeur à l'Université Panthéon-Assas
(Paris II) et directeur de l'Institut des hautes études
internationales de Paris,
Mme Rosalyn Higgins, Q.C., professeur de droit international à
l'Université de Londres,
comme conseils et avocats;
M. Rui Quartin Santos, ministre plénipotentiaire, ministère des
affaires étrangères,
M. Francisco Ribeiro Telles, premier secrétaire d'ambassade,
ministère des affaires étrangères,
comme conseillers;
M. Richard Meese, avocat, associé du cabinet Frere Cholmeley, Paris,
M. Paulo Canelas de Castro, assistant à la faculté de droit de
l'Université de Coimbra,
Mme Luisa Duarte, assistante à la faculté de droit de l'Université de
Lisbonne,
M. Paulo Otero, assistant à la faculté de droit de l'Université de
Lisbonne,
M. Iain Scobbie, Lecturer in Law à la faculté de droit de
l'Université de Dundee, Ecosse,
Mlle Sasha Stepan, Squire, Sanders & Dempsey, Counsellors at Law,
Prague,
comme conseils;
M. Fernando Figueirinhas, premier secrétaire de l'ambassade de la
République portugaise à La Haye,
comme secrétaire.
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The Government of the Portuguese Republic is represented by:
H. E. António Cascais, Ambassador of the Portuguese Republic to the
Government of H.M. The Queen of the Netherlands,
as Agent;
Mr. José Manuel Servulo Correia, Professor in the Faculty of Law of
the University of Lisbon and Member of the Portuguese Bar,
Mr. Miguel Galvão Teles, Member of the Portuguese Bar,
as Co-Agents, Counsel and Advocates;
Mr. Pierre-Marie Dupuy, Professor at the University of Paris II
(Panthéon-Assas) and Director of the Institut des hautes études
internationales of Paris,
Mrs. Rosalyn Higgins, Q.C., Professor of International Law at the
University of London,
as Counsel and Advocates;
Mr. Rui Quartin Santos, Minister Plenipotentiary, Ministry of Foreign
Affairs,
Mr. Francisco Ribeiro Telles, First Embassy Secretary, Ministry of
Foreign Affairs,
as Advisers;
Mr. Paulo Canelas de Castro, Assistant in the Faculty of Law of the
University of Coimbra,
Mrs. Luisa Duarte, Assistant in the Faculty of Law of the University
of Lisbon,
Mr. Paulo Otero, Assistant in the Faculty of Law of the University of
Lisbon,
Mr. Iain Scobbie, Lecturer in Law in the Faculty of Law of the
University of Dundee, Scotland,
Miss Sasha Stepan, Squire, Sanders & Dempsey, Counsellors at Law,
Prague,
as Counsel;
Mr. Fernando Figueirinhas, First Secretary of the Portuguese Embassy in The Hague,
as Secretary.
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Le Gouvernement du Commonwealth d'Australie est représenté par :
M. Gavan Griffith, Q.C., Solicitor-General d'Australie,
comme agent et conseil;
S. Exc. M. Michael Tate, ambassadeur d'Australie aux Pays-Bas et
ancien ministre de la justice,
M. Henry Burmester, conseiller principal en droit international,
bureau du droit international, services de l'Attorney-General
d'Australie,
comme coagents et conseils;
M. Derek W. Bowett, Q.C., professeur émérite, ancien titulaire de la
chaire Whewell à l'Université de Cambridge,
M. James Crawford, titulaire de la chaire Whewell de droit
international à l'Université de Cambridge,
M. Alain Pellet, professeur de droit international à l'Université de
Paris X-Nanterre et à l'Institut d'études politiques de Paris,
M. Christopher Staker, conseiller auprès du Solicitor-General
d'Australie,
comme conseils;
M. Christopher Lamb, conseiller juridique au département des affaires
étrangères et du commerce extérieur d'Australie,
Mme Cate Steains, deuxième secrétaire à l'ambassade d'Australie aux
Pays-Bas,
M. Jean-Marc Thouvenin, maître de conférences à l'Université du Maine
et à l'Institut d'études politiques de Paris,
comme conseillers.
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The Government of Australia is represented by:
Mr. Gavan Griffith, Q.C., Solicitor-General of Australia,
as Agent and Counsel;
H.E. Mr. Michael Tate, Ambassador of Australia to the Netherlands and
former Minister of Justice,
Mr. Henry Burmester, Principal International Law Counsel, Office of
International Law, Attorney-General's Department,
as Co-Agents and Counsel;
Mr. Derek W. Bowett, Q.C., Whewell Professor emeritus, University of
Cambridge,
Mr. James Crawford, Whewell Professor of International Law,
University of Cambridge,
Mr. Alain Pellet, Professor of International Law, University of Paris X-Nanterre
and Institute of Political Studies, Paris,
Mr. Christopher Staker, Counsel assisting the Solicitor-General of
Australia,
as Counsel;
Mr. Christopher Lamb, Legal Adviser, Australian Department of Foreign
Affairs and Trade,
Ms. Cate Steains, Second Secretary, Australian Embassy in the
Netherlands
Mr. Jean-Marc Thouvenin, Head Lecturer, University of Maine and
Institute of Political Studies, Paris,
as Advisers.
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The PRESIDENT: Please be seated. The Court will now resume its sitting to hear the oral
argument of Australia and I call upon Mr. Burmester to complete his statement which he began
yesterday.
Mr. BURMESTER: Mr. President, Members of the Court. When I finished yesterday, I had
indicated that, in order to determine if Portugal had standing, it was necessary to understand the
circumstances in which it exercised and continued to be called an Administering Power.
1.1 The conduct of the self-determination exercise
In the case of Portugal such an examination shows a very factual and limited legal capacity,
particularly in relation to the right to organise and conduct the self-determination exercise. If
Portugal does not have this particular duty, it is difficult to see how any legal right and interest in
relation to the territory exists.
Being deprived through abandonment of the powers and rights possessed by a normal and
effective administrator, Portugal contends that it still retains the powers and rights necessary to
organise and conduct the self-determination exercise leading to the decolonisation of East Timor and
that such rights "belong to Portugal" (PR, p. 76, para. 4.25). This in fact Portugal says is its main
function. But it is without foundation.
Mr. Griffith on Monday analyzed the limited role exercised by Portugal over the territory in
1974 and 1975; and Portugal's inconsistent behaviour since. In relation to the exercise of the right
to self-determination, Portugal is only one of several interested Parties and not the representative of
the East Timor people.
Nevertheless, Portugal claims to have the right and the responsibility and I quote from
paragraph 5.46 of their Memorial: "for conducting the process ... which will lead to the institution of
free and informed choice by the people concerned". Portugal also notes that:
"the organisation of the process of free choice falls within the scope of the powers of
administration, at least so long as, and in so far as, the General Assembly confines
itself to a supervisory role and finds no reason itself to dictate the procedure to be
followed" (PM, p. 133, para. 5.46; emphasis added).
By its own admission therefore Portugal, thus, acknowledges that an Administering Power may not
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in all cases have the responsibility to effect self-determination. Yet, in the following paragraph of
the Memorial (para. 5.47), Portugal makes a fanciful description of the role it believes it is called
upon to play in the decolonization of East Timor, assigning at the same time a limited and passive
role of mere supervision to the competent organs of the United Nations.
What I have qualified as the fanciful description by Portugal of its own rights is as follows,
and I quote from the Memorial:
"In the great majority of cases, the administering power has been responsible for
determining at what stage and in what circumstances the consultation of the people is to
be effected. The administering power, after reaching agreement with the representatives
of the territory's people on the procedure to be followed, has informed the United
Nations of its decision to conduct a formal consultation of the people of the territory.
At the same time, the administering State invites the United Nations to supervise or
observe the process. Participation by the United Nations through supervision or
observation depends, in principle, on a request or invitation from the administering
power." (PM, p. 134, para. 5.47; emphasis added).
This is a wildly inaccurate statement of Portugal's role in relation to East Timor - a territory
from which it has long been absent. In the case of East Timor, in particular, the General Assembly
has not acted on the basis that Portugal can be left to pursue its own procedures for the exercise of
self-determination.
Now, it is true, Portugal did take action in 1974 to enable the self-determination process to
begin (CR 95/2, p. 24). But whatever it may wish, it is in no position to pursue this role today. It
abandoned the territory and any capacity to bring about self-determination.
Until 1974, it resisted any efforts to ascertain the will of the inhabitants of its colonies. When
its position changed in 1974 the United Nations welcomed this, and called on Portugal to take steps
to ensure the full implementation of resolution 1514 (XV). However, this was to be in conjunction
with the national liberation movements in their capacity as "qualified counterparts" with the aim of
the total transfer of powers to the representatives of the peoples concerned (resolution 3294 (XXIX)
of 13 December 1974).
The Portuguese authorities in Lisbon did enact a law, No. 7/75 of 17 July 1975, governing
specifically the decolonization of East Timor "setting out the self-determination procedure for the
territory and the governmental structure during the transitional period of three years". Thus, as the
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Memorial admits, Portugal arranged "the self determination process by means of a unilateral act"
(PM, p. 15, para. 1.22).
However, one and a half months after the adoption, by unilateral act, of that law and annexed
statute, the Portuguese administration, devoid of any support, was told by Lisbon to withdraw to the
Island of Atauro - and it did so. And then in December the same year told to withdraw even from
there - and it did. It has since been in no position in any way to effect an act of self-determination or
to protect the integrity of the territory. Portugal was not left to make its own arrangements for selfdetermination.
It was very much required to accept the reality of the liberation movements. As soon
as Indonesia appeared on the horizon, Portugal scurried away. It left the people of East Timor to
determine their future by themselves. Mr. Griffith outlined the circumstances of this abandonment in
greater detail.
Portugal says it never intended to relinquish its powers as Administering Power (CR 95/3,
p. 62). But the facts show it did so. It told the United Nations it was for the United Nations to find
a solution. If Portuguese policy today is to seek a major role in relation to the self-determination of
the people, that cannot restore legal rights previously abandoned. The fact that in 1984 FRETILIN
abandoned its proclamation of independence and again recognised Portugal as Administering Power
(CR 95/3, p. 54) cannot confer any rights on Portugal it had previously lost. Being called
Administering Power does not itself demonstrate that it has the necessary rights. This is confirmed
by the United Nations treatment of Portugal. The United Nations does not envisage a role for
Portugal as an "essential element" or a "relevant instrument", to use the words of Portugal's counsel,
in the self-determination process, despite what Portugal claims (CR 95/3, p. 72).
1.2 The UN treatment of Portugal's role in relation to East Timor
The United Nations has drawn consequences from Portugal's ineffectiveness in acknowledging
that it is no longer the legitimate representative of the East Timorese people. It has not entrusted
Portugal with responsibility to organize and conduct the self-determination exercise. That would put
Portugal in the position to act as judge and arbiter in its own dispute. Portugal for this purpose is no
more than an "interested party". And here is a significant "functional" limitation - the possibility of
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such a limitation Portugal itself acknowledges.
The General Assembly has established a mechanism which is the necessary antecedent for the
implementation of the right to self-determination in this case, namely the settlement of the underlying
dispute. To this end the General Assembly has encouraged and promoted consultations and
eventually negotiations between the two States concerned. The last word on the subject - as long ago
as 1982 - is the request in paragraph 1 of resolution 37/30, addressed to the Secretary-General,
"to initiate consultations with all parties directly concerned, with a view to exploring
avenues for achieving a comprehensive settlement of the problem and to report thereon
to the General Assembly".
Paragraph 2 of the operative part of the resolution entrusts "the implementation of the present
resolution" not to Portugal, but to the Secretary-General, assisted by the Committee of 24. Earlier
presentations have referred to the position reached pursuant to this mandate given to the
Secretary-General.
Thus Portugal, as one of the States concerned, does not derive from resolution 37/30 any
rights of its own in relation to the exercise of self-determination that would entitle it to acquire
"standing" vis-à-vis Australia in relation to this case. At most, Portugal derives from resolution
37/30 a right to be consulted and to participate in the negotiations "with a view to achieve a
comprehensive settlement of the problem". This right of Portugal is clearly not directed towards any
role in relation to restraining the actions of Australia in relation to East Timor.
If Portugal's status as an "interested party" gave it standing, this would mean any such party
in a self-determination dispute could bring actions, prior to United Nations acceptance of an act of
self-determination, against any other State that has dealings with the authorities in actual control of
the self-determination territory. This could lead to instability and confusion in the United Nations
oversight of the self-determination process. No doubt this is why Portugal keeps emphasizing its
status in the United Nations as Administering Power. However, to allow a name alone to confer
standing without having regard to what actual functions such a State is carrying out can also only
lead to instability. It would subvert the whole basis for the rules of standing - namely, that a plaintiff
State must be able to point to a sufficient legal right of its own. To confer standing on the basis of
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a name, without regard to the actual capacity in fact of a State would subvert the purpose of this
prudential requirement.
I need not remind the Court that Portugal exercises no administration over the territory in
question. This is not a case of an Administering Power acting to protect the territory and interests of
a people in relation to which it is in control. This is not a case of an Administering Power acting to
protect the integrity of territory for which it was discharging responsibilities by action against some
other State which expelled it. This is a situation of a former colonial power seeking, almost 20 years
after it abandoned its last link with the territory and rejected such a role, to assert a right to
implement and defend the right of self-determination. This in respect of a people over whom it has
no form of control whatsoever and who themselves rejected any such role at the time Portugal
voluntarily left.
In these circumstances, Portugal has no legal right of its own giving it standing in this case.
II. Portugal is not the repository of the rights
of the people of East Timor
The second leg of the Portuguese argument designed to identify the rights supporting its
standing, is that Portugal "considers itself still to be the repository of the rights of the people of
East Timor" (paragraph 14 of the Application), so that in instituting the present proceedings,
Portugal claims to be performing an "international public service" as an agent or representative on
behalf of the people of East Timor (paragraph 1 of the Application).
An immediate answer to this claim is that Portugal cannot represent nor be the repository of
the rights of that large section of the population of East Timor and the supporting political parties
which favour integration with Indonesia. But we must examine the position a little more.
One can accept that in principle there may be circumstances where third parties have a right to
bring proceedings to vindicate the rights of another party whose rights cannot be directly asserted.
This might particularly be so in the case of certain colonial situations as in the South West Africa
cases where an Administering Authority is still in a position to exercise the "sacred trust" and can be
said to be entrusted by the people themselves with such a task. Contrary to Portugal's contention,
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the current claims by it against Australia are not covered by any such principle.
Nor is this a situation of an Administering Power or Administering Authority with any
effective capacity to represent the interests of a separate and distinct self-determination unit in
relation to the subject matter of the claim. The claims of Portugal to represent the people of
East Timor in this case, given its lack of presence in the territory and abandonment of any pretence
to administer or have any effective role in relation to the territory or its maritime resources have no
greater basis than a similar representative claim by any other State. Yet Portugal denies that it seeks
standing on behalf of the people of East Timor merely in its capacity as a Member of the United
Nations (PR, p. 206, para. 8.14).
Portugal seeks to gain support for its standing to represent East Timor from cases concerned
with protectorates or other separate entities. It makes a lot of these instances (PR, p. 201,
paras. 8.06-8.08; CR 95/6, pp. 51-52). Australia demonstrated in its Rejoinder that these examples
are misplaced (ARej., paras. 128-129). In all the instances referred to by Portugal, the State
bringing the representative action was exercising governmental authority and there was no dispute as
to their representative capacity. That is not the case here. The Right of Passage case referred to by
Portugal involved a territorial dispute, not a representative action. And significantly the Court
limited itself in that case to dealing with the period of time during which Portugal actually controlled
the territory.
What is important is to examine what particular functions are being discharged by or have
been entrusted to the particular State. In the case of East Timor, Portugal's limited functions in 1995
do not extend to allow it to bring a legal action as if it were a colonial power still in control or
responsible for the people of its colonial territory.
Ultimately, the only circumstance on which Portugal relies for its capacity to represent the
people of East Timor in these proceedings comes from its assertion that it is Administering Power.
We are back where we started. But this in itself, as we have already indicated and will elaborate in
later submissions, does not entitle or require a general capacity to represent a people. Any such
capacity must depend on the particular circumstance of an individual State and the functional
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responsibilities accorded to it, not simply an assertion of its status as Administering Power.
Now it may be that despite the rejection of Portugal as a representative by a large section of
the population, the United Nations resolutions may in some form have assigned or transferred to
Portugal the rights of the people of East Timor or otherwise recognized such rights. However, one
would look in vain in the United Nations resolutions on East Timor for such a delegation, assignment
or recognition of the rights of the people of East Timor in favour of Portugal.
On the contrary, all General Assembly resolutions since 1976, in particular resolutions 36/50
of 1981, and 37/30 of 1982 very clearly distinguish between Portugal and the representatives of the
East Timorese people. Resolution 36/50 of the General Assembly, in paragraph 3, calls upon:
"all interested Parties, namely Portugal, as the Administering Power, and the
representatives of the East Timorese people, as well as Indonesia, to co-operate fully
with the United Nations with a view to guaranteeing the full exercise of the right to
self-determination by the people of East Timor".
Far from investing Portugal with the rights of the people of East Timor, the representatives of
the people of East Timor are named in the resolutions as a distinct party, fully capable of defending
their own rights and acting on their own behalf separately from Portugal. And they regularly do this
in the Committee of 24 and elsewhere. The General Assembly, in the preambles of resolution 36/50
(1981), as well as in resolution 37/30 (1982), recalls that it had heard "the statements of the
representative of the Frente Revolucionário de Timor Leste Independente", the liberation movement
of East Timor, and of various East Timor petitioners.
A similar conclusion results if one examines Security Council resolution 384 (22 December
1975), which is one of the corner stones of Portugal's case. It contains no express or implied
transfer or delegation of powers and rights of the people of East Timor in favour of Portugal.
Far from containing any delegation of powers and rights in favour of Portugal,
Security Council resolution 384 makes, in unprecedented terms, a severe criticism of Portugal's
performance as Administering Power of the territory. In the preamble of the resolution the Security
Council expresses regret "that the Government of Portugal did not discharge fully its responsibilities
as Administering Power of the territory under Chapter XI of the Charter".
It is a far-fetched and cynical interpretation of this strong criticism to read the reference to
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Portugal as Administering Power as containing an implicit delegation of rights. What the phrase
really intends and means is not that Portugal shall retain its full rights as Administering Power, but
that, when it had that capacity, it did not discharge properly its responsibilities as such.
In the light of the whole record of Portugal as Administering Power of the territory, it is
difficult to accept the argument advanced in the Reply (paras. 8.15 and 8.16) to the effect that the
status of Portugal as "international representative of the people of East Timor", emanates from the
"sacred trust", assigned by Article 73 of the Charter.
In 1977, two years after the Security Council resolution, the General Assembly, in
resolution 32/34 indicated that the fact-finding functions of the special representative of the
Secretary-General were enlarged to comprise certain conciliatory duties. These consisted of:
"establishing contact with the representatives of the Frente Revolucionário de Timor
Leste Independente and the Government of Indonesia, as well as the Governments of
other States concerned".
In this resolution, Portugal is not even mentioned by name, although it is comprised within the
category of "other States concerned", again separately from the representatives of FRETILIN.
Finally, in paragraph 7 of General Assembly resolution 37/30 in 1982, the last word on the
books, the Secretary-General, through his special representative, is requested to "initiate
consultations with all parties directly concerned, with a view to exploring avenues for achieving a
comprehensive settlement of the problem".
Thus, the function of representing and defending the rights of the people of East Timor is fully
retained by the United Nations and there is no recognition of such rights in favour of Portugal.
Portugal is merely one of the States directly concerned and its rights only exist toward the SecretaryGeneral
and are limited to taking part in the processes of conciliation and negotiations going on at
present.
Portugal argues that the people of East Timor accept Portugal's capacity of Administering
Power and support the introduction of the present proceedings (PR, p. 31, paras. 3.13-3.18; CR
95/3, p. 53). But this is not so. The position taken towards Portugal and the people of East Timor
in the United Nations contradicts Portugal's assertion. Mr. Griffith provided details in this regard on
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Monday. Portugal acknowledges that until 1984, the people of East Timor had not acknowledged
any role for Portugal (PR, p. 31, para. 3.14). Since then, it points to statements by various
representatives and petitioners, in particular a 1991 letter from the head of the Timor resistance
movement. As a matter of law, unilateral calls to a State to defend the interests of the people cannot
amount to an effective delegation of power to such a State to take action in the International Court.
All the more as the United Nations has never changed its finding that Portugal was not the legitimate
representative of the East Timorese people.
Whether Portugal has such a capacity depends on its entitlement to represent the people and
this must be determined by an objective examination of its position. Portugal cannot give itself an
entitlement it does not otherwise have by getting a letter sent to it, even from the leader of a
liberation movement. For the reasons given, the United Nations does not recognize any such
entitlement. And as the most recent efforts of the Secretary-General illustrate, an all inclusive intraEast
Timorese dialogue is being established. This confirms, yet again, that Portugal cannot speak
for the East Timorese people. Only the people of East Timor themselves can do that.
Portugal argues that to deny standing to it to represent the people would leave those people
unable to defend their rights. That is not so. The United Nations can do that - including by action in
this Court. The Namibia and Western Sahara cases demonstrate this.
We may conclude, therefore, on this second leg of Portugal's arguments, that there is no basis
for its claim to be the repository of the rights of the people of East Timor. Consequently, Portugal
does not have standing vis-à-vis Australia, for the purpose of these proceedings, on the basis of these
alleged rights of the people of East Timor. Not only is the claim against the wrong party, but it is
brought by a plaintiff without the necessary legal right or capacity.
Mr. President, that concludes Australia's arguments on admissibility. Professor Crawford,
with your permission, will introduce Australia's arguments in relation to the merits of the case.
The PRESIDENT: Thank you, Mr. Burmester. I now give the floor to Mr. Crawford.
Mr. CRAWFORD: Merci beaucoup, Monsieur le Président. Mr. President, Members of
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the Court.
Introduction and overview of arguments as to the merits 1. Australia now turns to the merits of the
present case. But as explained by the Agent, Mr. Griffith, in his opening address, this is not its
primary claim. The arguments as to the merits of Portugal's claim are made only in the alternative,
in the event that the arguments based on jurisdiction or admissibility should fail. The difficulties for
the Court in dealing with the abstract and byzantinely-formulated questions presented by Portugal
are considerable. In Australia's view they are insuperable. In order to decide Portugal's claims in
the tortuous terms in which they have been expressed, the Court will have to engage in an exercise
"remote from reality" (cf. Northern Cameroons case, I.C.J. Reports 1963, p. 15, para. 33). And
yet, as the Portuguese Agent made clear last week (CR 95/2, p. 17), the Court's decision will be seen
outside the Court as addressing much wider issues, real issues directly involving a third State.
2. There is a simple way out of the complex puzzle set for the Court by Portugal - one is
inclined to call it a jigsaw with half the pieces missing, or a three-dimensional game of chess without
the king. The Court is not required to play games - exercises in unreality. It can simply hold the
case inadmissible for reasons given by Australia.
3. Having said that, nonetheless Australia takes this opportunity to respond to Portugal's
arguments on the merits as far as possible in their own terms, and using Portugal's own words,
whether they take the form of double negatives, single negatives or even occasionally positives.
4. Australia's arguments on this part of the case come under three main headings. First, is the
complex of arguments relating to self-determination and related issues, and to the alleged
consequences of the description of Portugal as Administering Power. A second group of arguments
relates to Australia's right to negotiate for the protection of its maritime resources, and the alleged
violation of the principle of permanent sovereignty over natural resources. A third and final group
of issues relates to the question of judicial propriety which arises in this case, a question strongly
illuminated by considering the remedies sought by Portugal.
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Self-determination over East Timor and the position of Portugal as "Administering Power"
5. I turn then to the first group of arguments relating to self-determination, recognition and the
alleged consequences of the description of Portugal as "Administering Power".
6. On Monday the Court heard an account by Ambassador Tate of the Australian
Government's position with respect to self-determination for the people of East Timor (CR 95/7,
pp. 23-32). It may be useful at the outset of the Australian pleading to summarize that position at
the level of substance.
7. Australia accepts that the people of East Timor continue to have a right of selfdetermination.
But the question of how self-determination is to be achieved in the territory is, first
and last, a matter for the competent United Nations organs to deal with, in conjunction with the
"parties directly concerned". The term "parties directly concerned" has been used by the General
Assembly to include both Portugal and Indonesia, as well as the representatives of the East Timorese
people. It has never included and does not now include Australia. Australia is ready to comply with
any decision of the competent United Nations organs as to the future of the territory, and as far as it
can to facilitate the work of the Secretary-General in seeking to resolve the dispute. It has been
generous in the humanitarian aid which it has provided to the people of East Timor. But as a third
party, one which never had nor assumed responsibility for the administration of East Timor, there is
little more that Australia is in a position to offer by way of practical assistance, and there is nothing
more that international law requires it to do. There has been no recommendation by any United
Nations body directed to third parties and calling on them not to deal with Indonesia in respect of
East Timor. There has been no United Nations decision requiring them not to do so. In the absence
of such a recommendation or decision there is no duty not to deal with Indonesia, which is the firmly
established authority in fact controlling the territory of East Timor.
8. In this part of its argument on the merits, Australia will show how the position which I have
just summarized is fully supported under international law and is consistent with the practice of
States, including, significantly, in other contexts the practice of Portugal itself.
9. Mr. President, as I pointed out yesterday, Portugal does not - I repeat, not - rely on
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Indonesia's use of force as a basis for its claim in the present case. It denies
"that the dispute which is brought before the Court relates to the Indonesian military
intervention in East Timor and its consequences for the right of self-determination of the
people of East Timor" (PR, p. 209, para. 9.02).
It refers to two categories of obligations of non-recognition, a "first category" which relates to selfdetermination
and to the status of East Timer as a non-self-governing territory, and a "second
category" of "obligations not to recognize a de facto situation created by force" (PR, p. 24,
para. 2.19). It expressly states that "the Portuguese Application solely concerns the infringement, by
Australia, of the obligations in the first category" (PR, p. 22, para. 2.20). That is to say the category
relating to self-determination. It insists that "Portugal is quite simply not asking the Court to
pronounce on the wrongfulness of this [the Indonesian] occupation" (ibid.). It further insists that
"[t]he Court is not requested to decide on the Indonesian position with regard to the military
occupation" (PR, p. 130, para. 5.79). It repeats that its case "does not stand upon the obligation of
non-recognition of situations resulting from the unlawful use of force, as such" (PR, p. 146,
para. 6.30; see also PR, p. 182, para. 7.28).
10. The position clearly and specifically taken in its written pleadings was repeated before the
Court last week (see e.g. CR 95/2, pp. 57-68, Galvão Teles; CR 95/5, pp. 68-70, Dupuy; CR 95/6,
p. 29, Galvão Teles). This case was to be judged, Counsel for Portugal repeatedly said, quite apart
from the means by which Indonesia acquired control over the territory.
11. No doubt there are good reasons for Portugal to take this position. For one thing, the
Security Council, which has primary responsibility in the matter, has been decidedly circumspect in
its description of Indonesian action - if "circumspect" is the right word for 20 years of silence. For
another thing, the Court cannot be called on now in proceedings between Australia and Portugal to
determine the legality, classification and consequences of action taken by a third State nearly
20 years ago, and Portugal's arguments clearly recognize this.
12. Moreover there is a striking discrepancy between the classifications Portugal attaches to
Indonesia's conduct and the classifications attached to that conduct by the Security Council and the
General Assembly. Portugal's counsel refer to "l'invasion indonésienne" (CR 95/2, p. 16, Cascais),
to "military invasion" and conquest "manu militari" (CR 95/2, p. 22, Correia), to "massive
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Indonesian invasion" associated with a "genocidal policy" against the people of East Timer (ibid.,
p. 28, Correia), to the Indonesian "aggressor" (ibid., p. 30, Correia), to its "armed invasion" (ibid.,
p. 49, Correia), to its "occupation illégale" (CR 95/3, p. 9, Dupuy), to its "illegal occupation" and
"illegal intervention" (CR 95/4, pp. 15-23, Higgins).
13. By contrast the Security Council, in its five months of activity in relation to East Timor,
referred on one occasion to "the intervention of the armed forces of Indonesia" (Security Council
resolution 384 (1975)), and otherwise to "the existing situation" (Security Council resolution 389
(1976)). In its early resolutions the General Assembly referred to "the military intervention of the
armed forces of Indonesia" (General Assembly resolution 3485 (XXX), paras. 1, 4;
General Assembly resolution 31/53, preambular para. 8), although this language, too, is not found
after 1976. Neither organ ever used the terms "invasion", "conquest", "aggression" or "genocide".
Neither ever described the Indonesian occupation as "illegal". And this was before the significant
change in policy in 1979, after which the General Assembly ceased to call for Indonesian withdrawal
at all (see CR 95/7, pp. 51-52, Griffith).
14. It is interesting in this context to recall the description of the Timor conflict given in the
influential report on self-determination written by Hector Gros Espiell for the Sub-Commission on
Prevention of Discrimination and Protection of Minorities in 1980. Gros Espiell describes the events
of 1975 in East Timor as "a complex series of developments involving a difference of opinion
between the Governments of Portugal and Indonesia" (H. Gros Espiell, The Right to SelfDetermination.
Implementation of United Nations Resolutions, United Nations,
doc. E/CN.4/Sub.2/405/Rev.1 (1980), p. 54, para. 24). This accurately reflects the United Nation's
overall judgment of the situation in East Timor.
15. And it clearly presents a central dilemma in this case. If Portugal's descriptions are
correct then the inactivity of the United Nations, its failure to take action, is inexplicable. But
Portugal's whole case, at the level both of admissibility and of merits, depends on the operative effect
of United Nations classifications. The impact of Portugal's case depends on an unconcealed
portrayal of Indonesia's conduct as genocidal, aggressive, involving the suppression by force of a
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people. Its legal effect depends entirely on United Nations resolutions which deliberately refrain
from using such labels. Portugal relies on United Nations resolutions in order to sustain an outcome
those resolutions deliberately refrained from endorsing.
16. It may be thought that, because Portugal does not ask the Court to consider any issue
relating to an unlawful use of force by Indonesia, it is unnecessary to consider this question further.
On the other hand, Portugal cannot escape so easily. The application of the principles relating to use
of force does not necessarily lead to the conclusion that by 1989, when the Treaty was concluded,
Australia was under an obligation not to recognize the legality of Indonesia's control over East
Timor. The application of those principles in concrete situations is not automatic. Bangladesh was
recognized as a State notwithstanding the United Nations criticism of India's use of force in East
Bengal. The acquisition of Goa was recognized by third States well before Portugal itself recognized
the fact and notwithstanding the use of force by India. Professor Correia attempted to distinguish the
Goa case on the ground that it happened under the Portuguese dictatorship (CR 95/3, p. 61). But
this is transparently inadequate; international law protects all States against external use of force,
whatever their form of government, as the Court pointed out in the Nicaragua case (see Nicaragua,
Merits, Judgment, I.C.J. Reports 1986, p. 14, paras. 131-13, and see further ACM, paras. 350-359;
ARej., paras. 217-230). That the government of a State may not be democratic is not a justification
for the unilateral use of force.
17. Moreover Portugal's pleading strategy presents enormous difficulties for the Court at the
stage of the merits. So much so - the Court will forgive me for the repetition - that Australia
believes that the Court ought not to proceed to the merits: the way the Portuguese case is put
presents an issue of an unreal and artificial character, one "remote from reality" - as this Court, for
different reasons, described the position in the Northern Cameroons case (I.C.J. Reports 1963,
p. 15, para. 33). Since Portugal accepts that the Court cannot decide the case on the basis of
Indonesia's unlawful use of force - a use of force that has never been classified as illegal or unlawful
by the United Nations - the case has to be dealt with on the assumption that Indonesia somehow
came to control the territory lawfully - or at least not unlawfully - so far as the rules relating to the
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use of force are concerned. But how can the Court tell what the position of States would have been,
or what the position of the United Nations would have been, in that eventuality? The Security
Council and the General Assembly were restrained enough as it was. Professor Correia referred to
"the earth of so many unmarked graves ... the walls of so many prisons ... the soldiers of the invader
who guard over the smallest villages" (CR 95/2, p. 22) and that is a situation, wherever it occurs,
that we would all deplore. The Security Council managed to describe the situation - if it is accurate
in relation to East Timer - as a "continued situation of tension" (Security Council resolution 389
(1976), preambular paragraph 8), after which it ceased to deal with the situation at all. Can one
think what the competent organs of the United Nations would have said if they had been acting on
the hypothesis that Portugal now explicitly presents to the Court for its decision, the hypothesis of a
denial of self-determination not accompanied by use of force?
18. The point is this. Portugal asks the Court to rely on United Nations' appreciations of an
overall situation, while disclaiming any reliance on a key legal element of that situation. It thereby
puts the Court in an impossible position. How can the Court evaluate the meaning, legal effect or
even the validity of resolutions which looked at the situation as a whole, when Portugal denies that
the Court can even consider the most important potentially applicable norm?
19. For this reason, as well as for the associated difficulties with the Monetary Gold principle,
which have already been analyzed, Australia's primary submission is that the Portuguese claim is
inadmissible. Portugal seeks through abstraction of issues to escape from impleading a third State,
but can only do so by requiring the Court to decide unreal questions. Threatened with impalement
on the horn of Monetary Gold, it leaps desperately on to the horn of Northern Cameroons. There is
no escape from that dilemma.
20. However, let us assume - for the sake of argument - that the Court must engage in the
mental gymnastics required by Portugal's argument. Let us proceed to address the question that
Portugal says the Court is asked to decide. That question may be formulated as follows: was
Australia entitled to enter into the 1989 Treaty with Indonesia? And in answering this question, one
must do so regardless of whether or not Indonesia came lawfully into possession and control of East
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Timor, and regardless of whether or not Australia was under any duty not to recognize Indonesia's
sovereignty, or not to deal with Indonesia, by reference to the means by which Indonesia secured
control over the territory in 1975. So that is the question, and those are the constraints on the Court
answering the question.
Self-determination and the terms of the 1989 Treaty
21. In discussing this issue, the first point to be made is that the terms and effect of the 1989
Treaty are not, as such, inconsistent with the self-determination of the people of East Timor. The
Treaty neither prevents nor impedes the exercise of the right of self-determination.
22. Moreover, Australia does not claim - and Portugal does not claim - that the Treaty would
be opposable to a newly-independent East Timer (ARej., Part II, Chap. 3). It will be a matter for the
authorities of East Timor, in that eventuality, to decide whether to affirm the Treaty or to seek to
negotiate another arrangement, or, indeed, to seek to agree a continental shelf boundary between the
two States.
23. As I pointed out yesterday, Portugal in its written pleadings did not criticize the terms or
effect of the Treaty as such, at all, only the fact that it was concluded with a State other than
Portugal (CR 95/8, pp. 63-64). In other words, it accepted that the Treaty would not be a violation
of self-determination if made with Portugal (see e.g., PR, para. 5.09). Indeed, it accepted that this
would have been the case, even though there was in fact no guarantee that Portugal would have spent
any eventual proceeds of exploitation of the continental shelf on the Timorese people, and even
though Portugal was itself in breach of the principle of self-determination in relation to East Timer
from the inception of that principle right up until it left and from its becoming a Member of the
United Nations from 1955 onwards.
24. During oral argument Portugal changed its position to a degree, launching an attack on the
Treaty itself, despite the serious difficulties that such an attack presents for the admissibility of the
case as a whole (CR 95/8, p. 48, with references to earlier pleadings). But for the reasons I gave
yesterday, and do not need to repeat, there is no reason whatever to doubt the position taken by
Portugal in its written pleadings (CR 95/8, pp. 63-64). It could have lawfully entered into this
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Treaty before 1975 and, accordingly, there is no conflict between the principle of self-determination
and the terms of the Treaty. State practice is fully consistent with that conclusion, as Mr. Burmester
will show.
Self-determination and the fact of the 1989 Treaty
25. Nonetheless, Portugal argues that the making of the Treaty by Australia was unlawful. It
was unlawful for the reason that Australia dealt with a State other than Portugal in respect of East
Timor. Portugal says that Australia has breached Portugal's exclusive right to represent the
territory. Portugal's complaint, and if the analysis I have just made of the position is correct, its only
complaint, is that the 1989 Treaty was not made with it (for confirmation see CR 95/2, pp. 13-14
and 33-34, Correia).
26. Mr. President, Members of the Court, in the remainder of my presentation this morning I
will deal with the legal principles relevant to that argument. Mr. Burmester will then undertake an
examination of relevant State practice and United Nations decisions, which confirm that States are
free to deal with a State effectively in control of a Chapter XI territory, whether or not that State is
the State referred to by the United Nations as the Administering Power, except where the
United Nations decides to the contrary. Professor Bowett, tomorrow, will examine the relevant
United Nations resolutions to show that there has been no such United Nations decision. And
Mr. Staker will show that the description of a State by the United Nations as the Administering
Power does not have legal consequences of the kind contended for by Portugal, and certainly does
not mean that all States must refrain from dealing with any other State relating to the territory.
Sovereignty, recognition and self-determination
27. Before discussing the specific case before the Court, it is helpful briefly to outline the
position with respect to territorial sovereignty and the recognition of change of sovereignty as it was
when the Charter came into force in 1945, although leaving to one side, as Portugal accepts the
Court must do, issues relating to the use of force. Leaving that aside, the principles were as follows:
(1) the sovereignty of States extended to overseas territories conquered and annexed by, ceded to
or otherwise acquired by them. On the other hand many colonial territories were not held by
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right of sovereignty but under treaties of protection and similar arrangements, as the Court
recognized in United States Nationals in Morocco (I.C.J. Reports 1952, p. 185). Thus
although some territories "which were then known to be of colonial type" belonged in
sovereignty to the colonizer, others did not;
(2) third States were entitled to recognize changes in sovereignty over territory once those changes
were secure and effective, and they did not need to enter into the rights and wrongs of the
situation as between the displaced sovereign and the new claimant. In other words, there was
no legal duty of non-recognition of territorial change, leaving to one side issues relating to the
use of force;
(3) third States were entitled to deal with a State effectively and securely in control of territory,
although whether any such dealings would bind or be opposable to a successor was another
question;
(4) formal recognition of territorial change, as of new States or governments, was essentially
optional and a matter of policy.
28. No doubt this position has changed in a number of respects since 1945. The rules relating
to the use of force embodied in the Charter have an important role in issues of recognition. But, as
we have seen, Portugal does not and cannot rely on those rules in the present case (CR 95/8, pp. 49-
50; and see above, paras. 9-10).
29. In many other respects, however, the legal position has not changed. In particular,
recognition is still regarded as an essentially political decision to be taken in the light of the
particular facts. Moreover, rather than continue the position under the League of Nations Covenant,
where some level of collective action was an immediate and quasi-automatic consequence of a
breach of the Covenant, the Charter focuses on collective action to be required or recommended by
United Nations organs in the exercise of discretionary powers. Chapter VII authorizes the Security
Council to act in any situation which may constitute a threat to the peace, or breach of the peace or
an act of aggression. But it does not require action by the Security Council, and whether we like it
or not the fact is that the Security Council has responded only to a proportion of the many situations
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which might be thought to call for action under Chapter VII. Within the framework of the Charter,
the Security Council acts - or fails to act - in the exercise of a discretionary power, and yet
responses of member States are essentially contingent upon its action.
30. It is true of course that this Court may well have a power of appreciation of Security
Council resolutions, as Professor Pellet pointed out yesterday (CR 95/8, p. 24). But no-one has ever
suggested that this power of appreciation extends to the review of Security Council inaction, or that
the Court can place itself in the vanguard of collective security in situations where the Security
Council has, for whatever reasons, declined to act. Is the position any different with respect to
decolonization, where the General Assembly is the relevant organ, the "lead agency", so to speak?
Certainly not, as the practice of the Court, which I will analyze in a moment, shows.
31. In the real world, the Indonesian intervention in East Timor posed issues relating to the
use of force as well as, or even more than, self-determination. But the Security Council never
qualified the situation in East Timor as a threat to or breach of the peace - still less an act of
aggression - and it ceased to take any action with respect to the situation within a few months of the
Indonesian intervention. The General Assembly kept up its involvement for longer, but with sharply
declining support, as the Judges will see if you look in your folder at the Table of proportions of
States voting in favour of the relevant resolutions. From 1979 onwards the General Assembly too
ceased to call for Indonesian withdrawal. And yet Portugal argues that third States were, and are,
under an automatic, perpetual and imprescriptible obligation of non-recognition (CR 95/5, p. 26,
Higgins). This argument bears no relationship to Charter norms, where the response of member
States is in general tied to the response of the relevant organs, and it bears no relationship to the
underlying norms of international law.
32. The point has to be emphasized. Under international law, in the absence of a direction
from the Security Council, States can decide to recognize a new situation of fact, if they conclude
that the situation has stabilized, and leaving to one side, as Portugal insists the Court must do, issues
relating to the use of force. Recognition has always been a quintessentially political act. Charles
De Visscher referred to acts of recognition as "en droit ... des actes souverainement libres" and such
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citations could be multiplied (C. De Visscher, Les effectivités en droit international public (1967)
p. 39, and see further ACM, paras. 350-359; ARej, paras. 214-216 and 226-228.) In the absence
of collective action - and there has been none here, through the competent organs of the United
Nations or elsewhere - the decision to recognize is necessarily a matter for each individual State.
33. It must also be emphasized that Portugal does not complain that the decision was taken
prematurely. It complains that the decision was made at all. For example, Professor Higgins had
this to say:
"Self-determination is a norm of jus cogens, which knows of no statute of
limitation and which falls exactly into the category of events to which the principle of
ex injuria jus non oritur applies, thus rendering legally irrelevant any effectivités ...
[N]either the efflux of time nor the control which Indonesia presently has over East
Timor has eroded the right of the peoples of East Timor to self-determination,
or the legal consequences for third parties of that right." (CR 95/5, p. 26.)
34. The first point to be made about this passage is that Australia agrees that the people of
East Timor have a right of self-determination. What I am discussing, however, is the question of
Portugal's territorial rights to East Timor, which is not the same thing - although it may be that
Professor Higgins identifies the two, since she refers to the "concomitant legal entitlements of the
people of East Timor or of Portugal" (CR 95/5, p. 26). So let us apply her notion of
imprescriptibility to Portugal's rights, and in order to test the argument, let us assume that the
present situation in East Timor continues for a further period of years, perhaps with desultory
discussions between successive Secretaries-General, Portugal and Indonesia. It is a very realistic
assumption. On that basis, the already existing acquiescence in the territorial status quo would be
reinforced. But the Portuguese argument would still apply, unchanged, perpetual. Portugal's
argument would apply to the entry into this Treaty not only in 1989 but in 1999, in 2009, and so on
- for as long as the 10 United Nations resolutions passed in the period from 1975 to 1982 remained
unrepealed. That is what imprescriptibility means for this case. In place of the well-known capacity
of third States to recognize new situations firmly established, Portugal seeks to substitute the veto of
a former colonial Power.
35. In practice it is doubtful whether non-recognition even of unlawful use of force should
have such perpetual consequences. There comes a time - it may be a long time - when facts have to
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be faced. This is especially true in the absence of a deliberate policy of collective non recognition -
as the case of Goa shows. And Portugal does not rely on any unlawful Indonesian use of force.
Instead it relies on the right of self-determination, to which it says that its own substantial status as
the State entitled to exercise, as the State de jure possessing, sovereign authority in East Timor is
attached. The General Assembly described it as a "colonial dominator". Portugal said that a
permanent, imprescriptible obligation of non-recognition arises automatically, for the whole world,
from a breach of self-determination by any State.
36. Now it is true that there has been a substantial evolution in the field of self-determination,
especially in relation to situations of colonial type, although these are not the only situations to
which self-determination applies. As this Court observed with respect to self-determination of
mandated territories in the Namibia Advisory Opinion, "the corpus iuris gentium has been
considerably enriched" (I.C.J. Reports 1971, pp. 31-32, para. 53). But the Court has treated the
"subsequent development of international law in regard to non-self-governing territories" as
substantially resulting from the application of Charter norms by the political organs, and in
particular the General Assembly. No doubt the principle of self-determination derives from the
Charter itself (although there is neither express reference to that principle, nor to the term
"independence", in Chapter XI). But as the Court pointed out in the Western Sahara Advisory
Opinion:
"The right of self-determination leaves the General Assembly a measure of
discretion with respect to the forms and procedures by which that right is to be
realized." (I.C.J. Reports 1975, p. 36, para. 71.)
"Carta ipsa loquitur", Professor Dupuy wittily said (CR 95/3, p. 13). But this Court seems to have
disagreed.
37. Moreover the "forms and procedures" to which the Court referred in Western Sahara are
not conceived narrowly. How the right of self-determination applies in any case is largely deduced
from the practice of the General Assembly. What is crucial, even so far as the Court is concerned,
is to look at "the basic principles governing the decolonization policy of the General Assembly"
(I.C.J. Reports 1975, p. 34, para. 60). And this is true, not just at the level of general principle, it is
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true for the application of the principle to each particular case. In relation to any given territory, the
specific content of the principle is to be sought, as far as possible, in "those resolutions which bear
specifically on the decolonization of" the relevant territory, and in "the different ways in which the
General Assembly resolutions... dealt with" that territory as compared with others (I.C.J. Reports
1975, p. 34, para. 60). The Court has regard throughout "to the particular circumstances of the
case" as seen by the competent political organs (cf. Certain Phosphate Lands in Nauru,
I.C.J. Reports 1992, p. 253, para. 30).
38. There are good reasons for the Court to defer, as far as possible, to the deliberate
judgment of the political organs in matters of self-determination, while retaining, of course, its
power of legal appreciation of these political acts. An important reason for deferring to the
General Assembly's decolonization policy is the sheer variety of cases; decolonization has
encompassed, since 1945, a large part of the surface of the globe and a majority of members of the
present international community. The territories concerned - approximately 100 of them - have
varied greatly in size, resources, political and legal history, and this has had an undeniable influence
in the treatment of particular cases (see also ACM, para. 320, citing Judge Petrén).
39. One such variation is of particular significance here. Chapter XI territories have varied
markedly in their municipal legal status vis-à-vis the metropolitan power. Chapter XI has been
applied to territories with many different legal statuses in national law, whether colonies or
departments, provinces or protectorates. Their municipal legal status has never been treated as
decisive: a State cannot avoid its international obligations by relying on its national law. Thus the
status referred to in Chapter XI is an international status, independent of classifications of national
law.
40. This is clear from one of the more important texts in this field, the Declaration on
Principles of International Law Concerning Friendly Relations and Co-operation among States,
annexed to General Assembly resolution 2625 of 1970 - I will call it hereafter the Friendly Relations
Declaration for short. Under the heading of equal rights and self-determination, the Friendly
Relations Declaration specifies that:
"The territory of a colony or other non-self-governing territory has, under the
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Charter, a status separate and distinct from the territory of the State administering it..."
(General Assembly resolution 2625 (XXV), 24 October 1970, Annex: Declaration on
Principles of International Law Concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations, Principle 5, para. 6.)
But this independent legal status is precisely a reflection of the continuing right of self-determination
of the people of the territory. It is not concerned one way or another with the sovereignty of the
State controlling and administering the territory, or with the internal constitutional status of the
territory in question.
41. On the one hand, States did not lose their sovereign authority over their Chapter XI
territories on becoming members of the United Nations - if sovereign authority is what they had.
Rather they were taken to have accepted the developing and evolutionary principle of selfdetermination,
which came to be seen as a right of the peoples concerned (cf. Namibia, Advisory
Opinion, I.C.J. Reports 1971, p. 31, para. 53; Western Sahara, Advisory Opinion, I.C.J. Reports
1975, pp. 31-32, para. 55).
42. On the other hand, Chapter XI territories did not cease to be non-self-governing merely
because they were called - either originally or by subsequent change - provinces, departments or
other constitutional units of a given State. The classification of a territory as a "province" (and
East Timor was a province of Portugal before 1974) or as a similar component of the Administering
State is thus not at all decisive.
43. It is true that under Article 73 (e), "constitutional considerations" are to be taken into
account in determining the scope of the obligation to submit information on Chapter XI territories.
But this confirms the point, since it relates not to the question whether a territory comes under
Chapter XI but whether information should be submitted on it. When Chapter XI wants to treat
"constitutional considerations" as relevant it says so expressly.
44. Thus the criteria for the application of self-determination to Chapter XI territories, criteria
developed by the General Assembly, are not dependent on whether a State exercises or does not
exercise sovereignty or sovereign authority over the territory. The term "sovereignty" is used to
refer to the general competence or authority that States have, independent of the consent or licence of
any other State, a competence to control amd govern a given territory, and to exclude others from
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that territory. This competence is exercised by governments and is, of course, subject both to
general international law and to treaty obligations. The point is that it is to be distinguished from the
powers of a protecting State over a protectorate, or of a State present on territory with the consent of
the sovereign. For present purposes it does not matter whether we refer to the possession or to
the exercise of sovereignty or of sovereign rights. It does not matter whether we refer to sovereignty
or to sovereign powers. It is the distinction between a State possessing or exercising such powers
and a State which neither possesses nor exercises them which is at stake here (see further ARej.,
paras. 264-267).
45. Thus the right of self-determination of a given people is not dependent on whether the
State which controls and governs them does so by virtue of the exercise of sovereignty or of
sovereign powers or in some other capacity. And this is clearly reflected in the language
of Chapter XI itself, which applies to member States who have, or subsequently assume,
"responsibilities for the administration of" non-self-governing territories. It does not matter that
those "responsibilities" may not equate to sovereignty or involve the exercise of sovereignty. To
have required this would have excluded many territories of colonial type from the scope of
Chapter XI.
46. This emerges also from the key General Assembly resolution laying down the criteria for
determining non-self-governing territories, General Assembly resolution 1541 (XV) of 1960. That
resolution was, incidentally, prompted by Portugal's intransigent refusal to accept that any of its
overseas territories were covered by Chapter XI. As a prelude to listing the Portuguese territories,
the General Assembly elaborated principles "which should guide members in determining whether or
not an obligation exists to transmit the information called for under Article 73 (e) of the Charter".
The resolution refers to territories "of the colonial type ... whose peoples have not yet attained a full
measure of self-government" (Principle I). A territory which is geographically separate and
ethnically or culturally distinct from the country administering it is prima facie non-self-governing;
this presumption is affirmed, inter alia, if the territory and its people are "arbitrarily place[d] in a
position or status of subordination" (Principles IV, V). Whether there is a position or status of
- 32 -
subordination is essentially a question of fact. The legal classification of the territory under the
Administering State's law may be relevant, but it is not decisive. And the resolution nowhere
suggests that such territories are limited to those which are under the territorial sovereignty of the
Administering State.
47. While on subject of the criteria for the application of Chapter XI and their relationship to
the presence or otherwise of sovereign authority, I pause to note the distinction between non-selfgoverning
territories under Chapter XI and trust territories under Chapter XII. Counsel for Portugal
tended to equate the two, with the purpose of applying to East Timor the rules about the disposition
of territorial authority which apply to trust territories, and by analogy also to mandated territories
(e.g., CR 95/3, p. 63, Correia; CR 95/4, p. 46, Higgins). Now at one level these different classes of
territory were and to the extent that they still exist are treated in the same way: by a process of
development, the principle of self-determination came to apply to them all, as the Court pointed out
in Namibia, (I.C.J. Reports 1971, p. 31, para. 52). But that principle operated as on obligation on
the States responsible for the administration of specific territories; it did not transform the
underlying dispositive arrangements. Otherwise the procedure that was adopted to identify
Chapter XI territories, that is, by the General Assembly calling on States to specify which of their
territories met the description in Chapter XI, would be inexplicable. It was totally different from the
procedure adopted for allocating mandates and trust territories. There was never any doubt as to the
identity of the latter! The point can be put shortly; Chapter XI was a declaration, imposing an
obligation in relation to the exercise of existing governmental powers; Chapter XII was a
delegation, the very basis of title of the Administering Authority. Under Chapter XII, the
General Assembly had significant dispositive powers, including in special cases the power to
terminate a trusteeship for breach. The Court has never suggested that it had equivalent power to
terminate the governmental authority of a State over a Chapter XI territory. That governmental
authority derived from general international law and from general recognition.
48. Mr. President, I have been discussing the status of Chapter XI territories with their right
of self-determination, and the relationship of that status to general law concepts of recognition and
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sovereign authority. I turn now to the question of termination of non-self-governing status.
49. Once a people is accepted as having a right of self-determination, this right subsists until
that people becomes independent, or voluntarily accepts integration in a State, or some other status
such as free association. This basic principle was elaborated in a series of General Assembly
resolutions defining when a Chapter XI territory was to be regarded as having achieved full selfgovernment
(see especially General Assembly resolution 742 (VIII) of 27 November 1953). The
criteria for the termination of non-self-governing status were spelt out in resolution 1541 (XV),
which built on the earlier resolutions, including of course resolution 1514 (XV) itself. Similarly the
paragraph of the Friendly Relations Declaration which I have just quoted continues as follows:
"such separate and distinct status under the Charter shall exist until the people of the
colony or non-self-governing territory have exercised their right of self-determination in
accordance with the Charter, and particularly its purposes and principles" (see
Western Sahara, I.C.J. Reports 1975, pp. 32-33, paras. 57-58).
50. Of course the criteria for the termination of non-self-governing status do not apply
themselves, any more than the criteria for their identification. They are not automatic or selfoperating.
Each individual case has to be judged according to its particular circumstances, as
resolution 1541 (XV) expressly recognized. At the level of the international community, the primary
actor here has been the General Assembly, advised by the Committee of 24 - as the Court also
recognized in the Western Sahara case (ibid., pp. 33-34, paras. 59-60).
51. It may be helpful, Mr. President, if I summarize the argument so far:
(1) first, the present case does not raise the issue of recognition of territory acquired by unlawful
use of force, since Portugal expressly disclaims any reliance on principles relating to the
unlawful use of force. As the Applicant State it is for Portugal to specify and establish its
case;
(2) secondly, and consequently, the Court must approach this case on the basis that the
Indonesian presence in East Timor is not unlawful. It has never been declared to be unlawful
by a competent organ of the United Nations, and the Court obviously cannot so decide in
the present proceedings;
(3) thirdly, on that assumption the case is inadmissible, since either the Court has to decide that
- 34 -
the Indonesian presence is unlawful, and for that reason cannot be recognized - which in these
proceedings, in the absence of the relevant United Nations determinations, it obviously cannot
do - or it has to deal with the situation on the basis of a hypothetical set of assumptions,
remote from reality. There is simply no middle ground;
(4) fourthly, however, making the effort of imagination which Portugal requires, there is no
indication in State practice or in the attitude of the General Assembly that States generally are
under an obligation to deal exclusively with a displaced administering State in a Chapter XI
territory. Whether such a State retains or loses its sovereign authority is a matter not
determined by the Charter quite unlike the position so far as the administering authority is
concerned in relation to trusteeships under Chapter XII. Instead the position of a State under
a Chapter XI territory is determined by general international law. And the general law of
recognition does not require third States to continue to recognize a permanently displaced
former administering power of a Chapter XI territory;
(5) fifthly, the classification of a territory as non-self-governing or of its people as having a right
to self-determination is not a matter to be decided by reference to national law or to the
classification of the territory under national law. A people may have a right of selfdetermination
notwithstanding that a particular State claims and exercises sovereign authority
over them, and is recognized by other States as doing so;
(6) sixth and finally, once a people is regarded as having a right of self-determination, that right
subsists until it is terminated in one of the ways referred to in resolutions 1514 (XV) and 1541
(XV).
The continuing right of self-determination of the East Timorese people
Mr. President, Members of the Court.
52. I turn to the Portuguese argument on these issues. Portugal agrees that there are
numerous other States which have entered into treaties with Indonesia which apply to the territory of
East Timor as Indonesian territory. But it says that the crucial difference is that Australia has, as
part of the process of negotiation and conclusion of the Treaty of 1989, recognized the sovereignty
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of Indonesia over the territory (PR, paras. 6.14-6.15). Portugal says that by doing so Australia has
dealt with a State other than the Administering Power
"in terms which concretize a refusal to recognize Portugal's status as an Administering
Power and a refusal to recognize East Timor's status as a non-self-governing territory"
(PR, para. 6.15).
53. The first point to be made is that the Portuguese characterization of Australia's conduct as
unique is wrong in fact. States which have entered into double taxation treaties with Indonesia
which apply to East Timor as Indonesian territory have thereby recognized Indonesian sovereignty
over East Timor. India, Malaysia, Singapore and Thailand have all stated unequivocally that they
regard the people of East Timor as having already exercised their right to self-determination in
favour of integration with Indonesia (see ACM, pp. 79-81, 83-86 for details). Such statements
cannot amount to anything else than a statement of recognition of Indonesian sovereignty over East
Timor. Each of these States has entered into a double taxation agreement with Indonesia applying to
East Timor, as Indonesian territory, the entry into that treaty in each case postdates their statements
of recognition (see ACM, Ann., pp. A79-A80). In other words, each of these States has dealt with
Indonesia in respect of East Timor on the basis that Indonesia exercises sovereignty over East
Timor. Why these treaties do not - to use Portugal's language - "concretize" this recognition is
completely unclear (PR, para. 6.15).
54. Moreover it is unclear in terms of Portugal's own argument. Portugal says that:
"The recognition by Australia of the incorporation of East Timor into a third State
necessarily implies the non-recognition of the Territory of East Timor as a non-selfgoverning
territory." (PM, p. 64, para. 2.25.)
But as I have demonstrated, self-determination and sovereignty are essentially separate issues. A
territory subject to the sovereign authority of a given State, in the accepted sense of that term (see
para. 27), may nonetheless be a non-self-governing territory within the meaning of Chapter XI, and
its people have a right of self-determination. The fact that the territory is described as a province,
department or other constituent unit of the administering State is not decisive.
- 36 -
Mr. President, Members of the Court.
55. Self-determination is a right for the people of East Timor for one primary and simple
reason. They had that right before 1975 and did not lose it by reason of the events of 1975. None of
the conditions for the termination of non-self-governing status laid down in resolutions 1514, 1541
or 2625 were met in 1975. In Australia's view those conditions have not been met even today. It is
true that Australia's view on this is far from being conclusive, since Australia has no special
authority and no special say in the matter. It is the primary aim of the Secretary-General's mediation
attempts to create conditions in which self-determination can be exercised by agreement between the
parties directly concerned.
56. The point for present purposes is this. The role of third parties in relation to the exercise
of self-determination is necessarily incidental or peripheral, as the General Assembly's reference to
the "parties directly concerned" recognizes. Some States, including influential States in the region,
take the view that the consultation exercise conducted by Indonesia in 1976 did satisfy the
requirements for an exercise of self-determination. Others disagree. That issue cannot be settled on
a bilateral basis by individual third States. It cannot be the case that the people of East Timor had
exercised their right of self-determination in 1976 vis-à-vis Malaysia but not vis-à-vis Canada, to
take an example. Whatever opinions third parties may have had on the matter are essentially
irrelevant to the issue, which is one for the competent organs of the United Nations. No doubt
Portugal would like to see those organs exercising their powers in different and more strenuous
ways. But that is another matter.
57. Thus there was good reason for the General Assembly to affirm the right of the people of
East Timor to self-determination, in the resolutions passed in the period up to 1982. But the waning
support in the Assembly for those resolutions was not without significance. Notwithstanding
Professor Higgins's treatment of them, resolutions are not statutes, valid until repealed (see CR 95/5,
p. 17). They are expressions of the position of a collective body, reflecting the views of those who
frame and vote for them. And the fact is that there was growing realization by many members of the
Assembly - by 1982 a clear majority - that self-determination for the people of East Timor could
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only be achieved in co-operation with Indonesia. This is a reality which Australia did nothing to
induce, cause or create, and which it can do nothing, individually, to change.
Mr. President, that would be a convenient moment for the break.
The PRESIDENT: Thank you Professor Crawford. I find like you that it is a convenient
time to have a break of 15 minutes. The meeting is suspended.
The Court adjourned from 11.25 to 11.40 a.m.
The PRESIDENT: Please be seated. Mr. Crawford.
Mr. CRAWFORD: Thank you, Sir.
The issue of non-recognition
Mr. President, Members of the Court.
58. I turn next to the Portuguese argument that Australia has violated an obligation of nonrecognition
by the fact of entering into the Treaty of 1989. The question here is whether third States
were under a duty not to recognize any act which might contravene the right of self-determination of
the people of East Timor.
59. One must assume for the purposes of this argument - and I have already demonstrated -
that concluding the Treaty of 1989 did not as such contradict or deny the right of self-determination
of the East Timorese people. It was not a matter for Australia to decide how or when that people
should be allowed to determine their own future; the Treaty neither prevented them from doing so,
nor restricted their options, whether before or after any decision they may have been allowed to
make. It may be accepted that the issue of self-determination for East Timor became even more
involved following the Indonesian intervention. In 1975 the people of East Timor involuntarily
exchanged Portuguese "domination" (to use the General Assembly's description of Portugal's
position even after the revolution of 1974) for the control of Indonesia. It was, however, for the
United Nations to assess the effects of the respective conduct of Indonesia and Portugal at that time.
- 38 -
And neither the Security Council nor the General Assembly have attached the phrase "domination"
to Indonesia. Nor have they used the terms "colonial" or "alien". The Security Council referred to
"intervention" (Security Council resolution 384 (1975)), and subsequently used the rather neutral
term "situation of tension" (Security Council resolution 389 (1976)). The General Assembly used the
term "military intervention" (General Assembly resolution 3485 (XXX), 12 December 1975), later
weakened to "the situation in the Territory" (General Assembly resolution 37/30,
23 November 1982). Neither body described the Indonesian occupation as a crime - as the General
Assembly had earlier described the activities of Portugal in its colonial possessions.
60. As Mr. Griffith demonstrated on Monday, it seems that the Indonesian incursion may
have been caused by the Portuguese withdrawal from mainland Timor. However that may be,
Indonesia certainly did not cause the Portuguese withdrawal, from the mainland, which occurred in
August 1975, and which was final. Moreover, there is every indication that the hasty Portuguese
retreat from Atauro, a day after the incursion, can only have been the premeditated result of a policy
of abandonment of the territory - "une stratégie de fuite devant ses propres responsabilités", to use
Professor Dupuy's words (CR 95/5, p. 66). When Professor Higgins referred to "the purported
annexation of East Timor [and] the consequential physical withdrawal of Portugal from the
territory", she got the chronology seriously wrong (CR 95/5, p. 26, emphasis added).
61. The Court cannot determine such issues of causality in these proceedings, although it can
take note of their existence. The question is, rather, whether in the circumstances of the present case
there was any automatic and continuing obligation on member States of the United Nations not to
recognize or deal with the Indonesian authorities, on the ground that their presence contradicted or
impeded the self-determination of the people of East Timor. That is the question. Australia accepts
that such an obligation could have been imposed by the competent United Nations bodies and, in
particular, by the Security Council. But none was, as Professor Bowett will show.
62. Nonetheless Portugal asserts that international law automatically steps into the breach,
imposing on all States an obligation of continuing and indefinite duration not to deal with the
Indonesian authorities. Customary international law, according to this view, says what the Security
- 39 -
Council and the General Assembly have deliberately chosen not to say - speaks not on their behalf
but in their stead. And it goes on speaking, apparently, for years, for decades, indefinitely (see CR
95/5, p. 26, Higgins).
63. Mr. President, Members of the Court, there would be little point in taking you at this stage
of the argument into a detailed account of the literature on the automaticity of non-recognition - if I
may so call it - and on its relation to action taken under the Charter. Most of that literature deals
with cases where action was taken under the Charter, where a concerted policy of non-recognition
was adopted. It is significant than in other cases - Goa, for example - where there was no such
policy and no such action, international recognition of the change was forthcoming, and rather
quickly. In the case of Goa, it pre-dated the Portuguese recognition of Indian sovereignty, but
Portugal's argument in this case implies that that recognition should never have been given
- and Goa was a case involving the use of force.
64. This Court was also significantly silent on the problem in the Right of Passage case,
I.C.J. Reports 1960, page 6, although it is only fair to add that it was not assisted in that case - any
more than it is here - by the restricted way in which Portugal chose to put the issues (see ibid., pp.
30-31). Nor did the Court have to deal with it in the Western Sahara case (I.C.J. Reports 1975,
p. 12).
65. However, there are three authorities which should be referred to in order to determine
whether there may be an automatic obligation of non-recognition upon third States in relation to
situations of denial of self-determination. This, of course, is on the hypothesis that the Court can
determine there is a denial of self-determination as at present, because we are dealing with the
merits. These three authorities are: first, the decision of the Court in the Namibia Advisory
Opinion, secondly, the still incomplete work of the International Law Commission on State crimes
and, thirdly, the 1970 Declaration on Friendly Relations. I will take them in turn.
(1) The Namibia Advisory Opinion
66. The first and most important source is this Court's decision in the Namibia Advisory
Opinion (I.C.J. Reports 1971, p. 16). The Court was concerned there with a situation on which
- 40 -
both the General Assembly and the Security Council had pronounced, and in no uncertain terms.
The continued South African presence in Namibia had been declared by both to be illegal, and
member States as well as non-member States had been called on by both not to recognize the legality
of the South African administration or of its acts.
67. In dealing with the consequences for States of the illegal situation, the Court was to a
large extent acting upon resolutions, including resolutions of the General Assembly, which "within
the framework of its competence ... [made] determinations or [had] operative design" (p. 50, para.
105). As to the Security Council, it was essential to the Court's Opinion that the Council had, in
resolution 276 (1970), qualified the continuing presence of South Africa in Namibia as illegal (p. 52,
para. 111). Having pointed this out, the Court went on to say:
"It would be an untenable interpretation to maintain that, once such a declaration
had been made by the Security Council ... on behalf of all member States, those
Members would be free to act in disregard of such illegality or even to recognize
violations of law resulting from it. When confronted with such an internationally
unlawful situation, Members of the United Nations would be expected to act in
consequence of the declaration made on their behalf..." (P. 52, para. 112.)
68. After considering the legal force of the decision, under Article 25, the Court concluded ...
"that the decisions made by the Security Council ... were adopted in conformity with
the purposes and principles of the Charter and in accordance with its Articles 24 and
25. The decisions are consequently binding on all States Members of the United
Nations, which are thus under an obligation to accept and carry them out." (P. 53,
para. 115.)
69. All subsequent discussion by the Court of the extent of the obligations of member and
non-member States proceeded on this basis (see e.g., p. 54, paras. 117 and 119). In particular, the
Court said, it was precisely because of this conclusion, arising from the binding declaration of
illegality in Security Council resolution 276, that member States were "under obligation to recognize
the illegality and invalidity of South Africa's continued presence in Namibia" (p. 54, para. 119),
and in that passage the Court referred expressly to the earlier conclusion which I have cited, relating
to the Security Council's express declaration of illegality (Opinion, para. 115).
- 41 -
70. The Court added that:
"The precise determination of the acts permitted or allowed - what measures are
available and practicable, which of them should be selected, what scope they should be
given and by whom they should be applied - is a matter which lies within
the competence of the appropriate political organs of the United Nations acting within
their authority under the Charter. Thus it is for the Security Council to determine any
further measures consequent upon the decisions already taken by it on the question of
Namibia." (P. 55, para. 120; emphasis added.)
71. In the rest of its Opinion the Court
"confine[d] itself to giving advice on those dealings with the Government of South
Africa which, under the Charter of the United Nations and general international law,
should be considered as inconsistent with the declaration of illegality and invalidity
made in paragraph 2 of resolution 276 (1970), because they may imply a recognition
that South Africa's presence in Namibia is legal" (p. 55, para. 121; emphasis added).
It was on this basis, and in an expressly advisory mode - advice within the context of an advice! -
that the Court went on to spell out the extensive obligations of non-recognition for member States of
the illegal presence of South Africa in Namibia (pp. 55-56, paras. 122-127).
72. Thus here, as in other decolonization cases, the Court applied and interpreted international
law in a certain sense adjectivally. International law was construed and applied in support and
furtherance of authoritative decisions of the competent political organs of the United Nations. And
the Court held that the legal consequences for States in terms of non-recognition and its
consequences were to be derived from those decisions. There is no suggestion in the Opinion that in
the absence of Security Council resolutions calling for non-recognition, there would have been a
duty of non-recognition flowing automatically from the rules of international law (but see Judge
Dillard, separate opinion, pp. 165-167; Judge Petrén (dissenting on this point, pp. 134-137)).
73. If, as Portugal argues, there is an automatic and general duty of non-recognition, how can
this be limited, qualified or excluded by United Nations organs? Those organs have a key role in
applying the relevant norms - but how are they authorized to dispense with them? The Namibia
Opinion provides clear support for the view that non-recognition is not an automatic obligation.
(2) The work of the International Law Commission on State crimes
74. I turn then to the second possibly relevant authority on the issue of non-recognition, the
ILC Draft Articles on State Responsibility. I can deal with it briefly, for the simple reason that,
- 42 -
although it provides the only international authority I have been able to find for an automatic
obligation of non-recognition in the context of breach of self-determination, it was not relied on, or
even mentioned, by Portugal.
75. Article 19 of Part 1 of the Draft Articles as adopted on first reading enumerates acts
which may be considered State crimes, (in fact the term used is "international crime", but for present
purposes I will refer to "State crime" to avoid confusion with the quite separate issue of international
crimes committed by individuals).
76. The basic definition of a State crime is contained in Draft Article 19(2), which refers to
"the breach by a State of an international obligation so essential for the protection of fundamental
interests of the international community that its breach is recognized as a crime by that community
as a whole". Paragraph 3 offers some guidance as to the content of this definition. But the guidance
is very limited, since paragraph 3 is expressed to be "subject to paragraph 2", which is the basic
definition, "and on the basis of the rules of international law in force".
77. Subject to these provisos - and they are important provisos - paragraph 3 (b) says, in part,
that:
"an international crime may result, inter alia, from ...
(b) a serious breach of an international obligation of essential importance for
safeguarding the right of self-determination of peoples, such as that prohibiting
the establishment or maintenance by force of colonial domination ..."
78. Mr. President, the concept of an international crime of State is controversial. Its content,
scope and implementation are entirely open questions. The Commission has not yet adopted - indeed
its Drafting Committee has not even discussed - any articles spelling out either the legal
consequences of an international crime or the procedures for determining whether such a crime has
been committed. It cannot be assumed that the eventual outcome will bear any close resemblance to
texts proposed earlier. Indeed, Mr. President, that can never be assumed about the Commission.
79. Nonetheless I should refer to Draft Article 14 of Part 2, proposed by a previous Special
Rapporteur, Mr. Riphagen. It states inter alia that:
"2. An international crime committed by a State entails an obligation for every State:
(a) not to recognize as legal the situation created by such crime ..."
- 43 -
The performance of this obligation, which in terms is automatic, is stated to be "subject, mutatis
mutandis, to the procedures embodied in the United Nations Charter with respect to the maintenance
of international peace and security" (para. 3).
80. As it stands, the proposed text, which has never been adopted by the Commission, would
only trigger automatic obligations of non-recognition under the rubric of State crimes for third States
if the following five determinations or findings were made:
(1) that there had been a "breach [by Indonesia] of an international obligation of essential
importance for safeguarding the right of self-determination of peoples, such as that
prohibiting the establishment or maintenance by force of colonial domination";
(2) that Indonesia continued to maintain colonial domination by force in 1989;
(3) that the "rules of international law in force" do recognize that breaches of this obligation
constitute State crimes;
(4) that the breach was "serious";
(5) that mutatis mutandis - and I am sorry I do not know what that means, Mr. President - "the
procedures embodied in the United Nations Charter with respect to the maintenance of
international peace and security" do not require a different solution.
81. As to who would make these determinations, the Draft Articles are completely silent, and
neither Mr. Riphagen nor his successor, Mr. Arangio-Ruiz, has proposed any articles to resolve that
problem. Can it be determined by one State, or two? Surely not: how is it possible to determine
bilaterally legal issues and obligations which directly and by definition concern the international
community of States as a whole?
82. It remains to be seen what solution for the substantive difficulties the Commission will
eventually propose. The issue is so indeterminate, and there are far too many disagreements about
the very concept of State crimes for one to be able to tell what the outcome will be. Acting within
the fundamentally bilateral framework of Article 36, paragraph 2, of the Statute, dependent
ultimately upon the acceptance of
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States parties, the Court can only - it is suggested with respect - act on the basis of existing rules
whether at the level of admissibility or of merits.
83. As to the admissibility of the present case, under the Monetary Gold principle the Court
is in no position to decide such matters as whether Indonesia's conduct in East Timor involved and
continues to involve the breach of an international obligation of essential importance for
safeguarding the right of self-determination of peoples. Nor is the Court in a position to decide if the
breach was a "serious" one for this purpose - even assuming that these formulations reflect existing
international law. There is then the difficulty of determining what the formulation means in relation
to the United Nations Charter.
84. Moreover, is it conceivable as a matter of the administration of justice that the Court
would decide whether Indonesia had committed a crime in relation to East Timor without hearing
that State? The International Court of Justice does not conduct trials in absentia! The Monetary
Gold principle applies to ordinary cases of State responsibility. It must apply a fortiori to the
classification of State conduct as a crime.
85. But if the Court were to decide any such questions, it should surely do so having regard to
the actual and expressed attitudes of the international community, that is to say of States acting
through the institutional means of the General Assembly and the Security Council. There is no point
in talking hypothetically about what the "international community" might have done; the Court can
only refer to the expressed will of the international community as it is. And the fact remains that the
international community has not condemned the Indonesian presence in East Timor as a State crime,
or an act of aggression, or as illegal, or as involving colonial domination. It has not, since 1978,
called for the immediate withdrawal of Indonesian forces from the territory (which would be the
inevitable corollary of such a condemnation). Since 1979, the international community, divided
amongst itself as to what should be done, has done nothing but call for negotiations between the
parties directly concerned.
(3) The Friendly Relations Declaration (1970)
86. Finally, I turn to the Friendly Relations Declaration, General Assembly resolution 2625
- 45 -
(XXV), to which the Court referred in the Western Sahara Opinion (I.C.J. Reports 1975, p. 33,
para. 58). Under the principle of equal rights and self-determination of peoples, all that is said for
present purposes is that
"Every State has the duty to promote, through joint and separate action,
realization of the principle of equal rights and self-determination of peoples, in
accordance with the provisions of the Charter, and to render assistance to the United
Nations in carrying out the responsibilities entrusted to it by the Charter regarding the
implementation of this principle, in order: ...
...
(b) to bring a speedy end to colonialism, having due regard to the freely expressed
will of the peoples concerned."
87. I will deal with the Portuguese argument relating to the "duty to promote" in a moment.
What matters for present purposes is that even this rather vague duty, as formulated in the Friendly
Relations Declaration, is qualified by the words "in accordance with the provisions of the Charter",
and that it is made more specific only by reference to an obligation "to render assistance to the
United Nations". There is no mention of an automatic obligation of non-recognition arising from
situations which may violate the principle of self-determination.
Conclusion as to non-recognition
88. This review of the authorities shows that there is no basis for invoking an automatic duty
of non-recognition in the present case, having regard to the terms in which Portugal's
non-recognition argument is put and the necessary assumptions of that argument. The essential
foundation for such a duty is lacking - that is to say, a determination by the competent organs of the
United Nations that Indonesia's presence in East Timor is unlawful or is a crime.
89. The reason why such a common policy is required as a basis for non-recognition is
clear, both at the level of principle and at the level of practice.
90. At the level of principle, the position is that the General Assembly does not have
dispositive authority, in the sense of having the power to decide, by whatever majority, that one
State or another has or has not sovereignty over territory. Of course, the General Assembly can
express an opinion on the issue which is entitled to respect, and to a special respect if it has the
- 46 -
general support of member States, but that is a different matter. By contrast, the Assembly has
important dispositive powers in the context of mandates and trust territories. It may also be given
those powers in certain cases by agreement of States concerned, as with the future of Libya under
the Italian Peace Treaty of 1947. But that only emphasizes its lack of those powers in other cases,
including under Chapter XI of the Charter.
91. On the other hand, States parties should co-operate with the General Assembly, and the
Assembly has a very important role in co-ordinating State practice. For example it can, through
calling on States not to recognize certain effective situations, prevent their consolidation.
Resolutions of the General Assembly which have general support from member States and which are
complied with can become the authoritative articulation of the legal situation. But a resolution
passed by 50 votes to 46 with 50 abstentions (as was resolution 37/30 of 1982, ACM, p. A97)
shows only the division of the international community, and cannot be considered authoritative for
the purposes of general international law.
92. The need for an explicit collective basis for non-recognition in a resolution of the
Security Council or the General Assembly emerges also at the practical level. Unco-ordinated acts
of non-recognition by individual States will not be effective. Moreover, it is unrealistic and unfair to
impose on third States the very considerable burdens of non-recognition, both economic and in terms
of their relations with the target State, without some assurance that their attitude will be generally
adopted, and the risks and burdens of non-recognition may be shared. This is the logic of collective
action, the raison d'être of the United Nations. It is the underlying justification for the approach of
this Court in Namibia, in which the determination of the competent organs is taken to be
a declaration on behalf of all member States, which commits them to collective action - the content
of which is in turn within "the competence of the appropriate political organs of the United Nations
acting within their authority under the Charter" (Namibia, Advisory Opinion, I.C.J. Reports 1971,
p. 55, para. 120). And it is a corollary of the Court's approach that in this field the absence of such
a determination, the unwillingness of the competent organs to take action, means that there is no
foundation for an obligation of non-recognition. In such circumstances, it must be a matter for each
- 47 -
State acting in good faith to assess how to respond to the reality of the particular case.
The consequences for the present case
93. There is, as I have already shown, no analytical difficulty in distinguishing between the
continued right of a people to self-determination and the continued status of a former administering
State. Sovereign authority and self-determination are separate concepts - legally, historically,
functionally. Portugal treats the right of self-determination of the East Timorese people and the
continuation of its sovereign authority by whatever name in East Timor as logical correlatives, but
there is no reason to accept that. Once the right of self-determination applied to East Timor - as it
did well before 1975 - its continuation was not dependent on Portugal's rights or position. It is not
the function of Chapter XI to consolidate the legal status of the colonizer. If, as Portugal infers, the
two ideas - Portugal's status and the East Timorese people's right - are tied together "par necessité
logique absolue" (cf. CR 95/2, p. 36, Correia) then the right of self-determination becomes
dependent and derivative. That is not the case; the people of East Timor continue to have a right of
self-determination, whatever Portugal may think or do.
94. In other contexts, Portugal accepts that this disjunction may occur. For example, the
people of Western Sahara continue to have a right of self-determination whatever the attitude of
Spain may be (CR 95/3, pp. 62-63, Correia). They certainly did not lose that right because
of Spain's abandonment of the territory, any more than the people of East Timor lost their right
because of their de facto abandonment by Portugal. Spain did not, and does not, dispose of the
rights of the Western Saharans.
95. But a State, although it may abandon a territory, does not shed all legal responsibilities -
a point on which the Parties here agree. Spain is still listed in United Nations documents as the
notional administering authority of Western Sahara, and it cannot simply resign that status. This
shows two things: first, that it is a matter for the United Nations to decide, by majority vote, who is
the "administering State" for its purposes, and secondly, that being listed as "administering power"
under Chapter XI may carry with it very limited powers and rights. It is not equivalent to territorial
sovereignty; if it were, the General Assembly could, by majority vote, allocate or reallocate
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sovereignty, and this it certainly cannot do. My colleague and - I hope the Court will forgive a
personal remark - a brilliant former student of mine, Mr. Staker, will elaborate on these points
tomorrow.
Mr. President, Members of the Court:
96. It follows from what I have said that Australia has acted consistently with international
law in recognizing both that Indonesia has sovereignty over East Timor and that the people of
East Timor continue to have a right of self-determination. Moreover, given its previous role in
East Timor, there is no difficulty in acknowledging that Portugal retains a residual role as the listed
Administering Power for the purposes of Chapter XI, in much the same way as Spain does over
Western Sahara. But the rights of the people and the rights of the former colonizer are not to be
confused, and being listed as Administering Power does not imply any specific governmental
powers, let alone substantive territorial authority.
97. As the final conclusion, Mr. President, territorial authority over Chapter XI territories is
determined by general international law, not by delegation from the General Assembly. Australia
did not breach the international law of self-determination in negotiating and concluding the
1989 Treaty. No doubt Indonesia is bound - like the rest of the world - to respect the right of selfdetermination
of the people of East Timor. But Portugal accepts that Indonesia's compliance with
that obligation is not, and could not be, the subject of the present proceedings.
The "duty to promote" self-determination98. That brings me to one further argument raised by
Portugal, that is, that Australia failed in its duty to "promote" the self-determination of the people of
East Timor. Portugal argues that by concluding the 1989 Treaty, Australia failed in its obligation to
"promote"
self-determination (see e.g., PR, para. 6.17; and see CR 95/2, p. 26).
99. There is in the United Nations Charter no express obligation on States individually to
promote self-determination in relation to territories over which they individually have no control.
The general obligation of solidarity contained in Article 2, paragraph 5, of the Charter extends only
to assistance to the United Nations "in any action it takes in accordance with the present Charter".
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A recent commentary on the Charter denies that Article 2, paragraph 5, creates "a general obligation
for member States to give assistance to the Organization" and argues that it must have "a restricted
scope of application", essentially in the context of Chapter VII (B. Simma (ed.) The Charter of the
United Nations. A Commentary (Oxford, Oxford University Press, 1994), pp. 129-130).
100. The matter is taken a little further - though not much - in the paragraph of the Friendly
Relations Declaration, which I have already quoted (above, para. 86). This contains two elements.
First, it says that each State has a duty "to promote, through joint and separate action, realization of
the principle of equal rights and self-determination of peoples". Secondly, it goes on to speak of
assistance to the United Nations, in language that reflects and is evidently drawn from Article 2,
paragraph 5, of the Charter. I have already dealt with the second element. As to the first element,
the obligation to promote realization of the principle, several points may be made. First, an
obligation to "promote" the realization of a principle is a highly generalized and flexible obligation.
One can only promote something to the extent of one's own power and responsibility, and the ways
in which a State individually may promote a principle must largely be left to its own judgement and
discretion. It is no doubt for this reason that the emphasis in this paragraph is on "joint and separate
action", and in particular on co-operation with the United Nations in collective action.
101. In particular, Mr. President, there is no indication in the Friendly Relations Declaration
that individual third States must persist in taking individual action, in the absence of any joint or
collective action which is capable of realizing the principle of self-determination in the given case.
States have a wide variety of responsibilities and finite resources. A general obligation to "promote"
something as to which the State has no specific authority or responsibility and little or no power,
cannot be taken to require costly individual initiatives when the international community itself has
chosen another path. And that is the case here.
102. That truth is well reflected in Chapter XI of the Charter. It is, above all, the member
States which "have or assume responsibilities for the administration" of non-self-governing
territories which must realize the principle of self-determination for those territories. Individually
there is not much that third States can do about this - and a fortiori, not much that, individually,
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they can be required to do.
103. So far as collective action is concerned, no United Nations organ has called for
assistance from third parties such as Australia. The Security Council in 1975 and 1976 did call on
all States to respect the right of self-determination of the people of East Timor, as did the General
Assembly in resolution 3485 (XXX) of 12 December 1975, a call which it expressly reaffirmed in
1976, 1977 and 1978. Thereafter the General Assembly addressed itself to the "parties concerned",
in 1979, subsequently, in 1980-1982, "the parties directly concerned". After 1982 there was silence.
104. As Professor Bowett will show, there can be no question of any breach or failure on the
part of Australia in respect of the various United Nations resolutions, or for that matter of any
resolution of a subordinate United Nations body, such as the Committee of 24. In the
circumstances, Portugal cannot rely on the general and generic provisions of Article 2, paragraph 5,
of the Charter or of the Friendly Relations Declaration to amplify the content of the obligation to
promote. This is primarily an obligation of co-operation with the United Nations, and the fact is
that, after 1982, all that Article 2, paragraph 5, could do, on any interpretation, at the level of the
primary organs of the United Nations, was to amplify a silence. The General Assembly fell silent on
Timor and, fearing the consequences of another vote in the Assembly, Portugal acquiesced in that
silence.
105. Both at the individual and collective level, Australia did all that it was required to do by the
obligation to "promote" self-determination, as Ambassador Tate has shown. I should add that there is
not the slightest indication in the record that Australia is co-operating with Indonesia in any
suppression of the exercise of the right of self-determination of the people of East Timor - even
assuming that this Court can determine judicially in these proceedings that Indonesia is guilty of such
suppression, which obviously it cannot do.
106. Nor has the Secretary-General, any other United Nations organ, or any other State, ever
suggested that Australia has breached this obligation to promote. The complaint is of strictly
Portuguese origin, a bit like an appellation d'origine. When it comes to complaints, Australia finds
itself required to deal only with Portugal!
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Permanent sovereignty over natural resources
Mr. President, Members of the Court.
107. I have not dealt in this presentation with the Portuguese argument based on the principle
of permanent sovereignty over natural resources. This will be dealt with by my colleagues,
Professors Pellet and Bowett, tomorrow, in the framework of discussing the respective claims of
the parties and non-parties to continental shelf rights in the region.
108. For present purposes it is necessary only to recall what I said yesterday in the context of
admissibility (CR 95/8, pp. 53-54, 63-64). Even more than other aspects of this case, the issue in
entangled with questions Portugal accepts that the Court cannot decide; the delimitation of the shelf,
the determination that Indonesia has no valid claim to it, Indonesia's compliance with the principle in
its implementation of the Treaty, and so on.
109. At the level of the merits, as I have said, Australia agrees with the admission made by
Portugal in its written pleadings that it would not be inconsistent with the principle of permanent
sovereignty to enter into an agreement on natural resources with the State administering a territory,
including an agreement such as the 1989 Treaty (see e.g., PR, para. 5.82). And if that is right, the
only question is whether it is consistent with the principle of permanent sovereignty to deal with
Indonesia rather than Portugal. That is exactly the same question I have just dealt with in relation to
self-determination. Portugal's argument based on permanent sovereignty over natural resources
merely reiterates that issue in another form (see ACM, para. 377; AReg., paras. 270-271). There is
thus nothing more I need to say on the matter, but Mr. Burmester will deal with it in his examination
of relevant State practice, including the practice of Portugal itself.
110. I would accordingly ask the Court to call on Mr. Burmester to continue this account of
Australia's arguments relating to self-determination and recognition.
Thank you for your patience, Mr. President, Members of the Court.
The PRESIDENT: Thank you, Mr. Crawford. I give the floor to Mr. Burmester.
Mr. BURMESTER:
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Self-Determination
Mr. President, Members of the Court.
Professor Crawford has outlined the key legal principles relating to Portugal's argument that
Australia's failure to deal with Portugal infringes the right to self-determination. My task is to
examine in more detail State practice and United Nations decisions in order to demonstrate that
States in a position like that of Australia are free to deal with the State in fact in control of a
Chapter XI territory in the absence of any decision to the contrary. I propose to address three
principal issues:
(a) the special role in the implementation of self-determination assumed by the political organs of
the United Nations;
(b) the practice of States in dealing with administering powers or other territorial authorities as if
they had competence to conclude arrangements for purposes such as the exploitation of
maritime resources;
(c) that the requirement on States to promote self-determination in general does not require them
to refrain from acting to protect their own national interests, and that this is clearly recognized
in State practice.
The role of UN organs
The right to self-determination is expressed in general terms in Articles 1, paragraph 2, and 55
of the Charter. As we heard from Professor Dupuy, these references have developed into a
significant principle of international law (CR 95/3, pp. 13-14). But Professor Dupuy was silent as
to how this principle had been translated into practice. And none of the counsel for Portugal have
examined State practice in any detail to show what this principle means in terms of specific
obligations for States. Portugal seems to think it is sufficient to establish the existence of the
principle. But it must also show that precise obligations on States flow from this principle. This it
has not done.
Since 1945 the United Nations General Assembly through its treatment of the many
decolonization situations has established a legal principle that depends on the United Nations itself
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for practical implementation. Professor Crawford has drawn attention to the importance placed by
the United Nations on the need to have regard to the particular circumstances of each relevant
territory in determining how the right to self-determination is implemented. In significant resolutions
such as the Declaration on the Granting of Independence to Colonial Countries and People
(resolution 1514 XV of 14 December 1960) only general principles have been stated. The
considerable body of practice reflected in the large number of resolutions dealing with the many
different decolonization situations is the translation of these principles into reality.
As we also heard from Professor Dupuy, the General Assembly decided to oversee the
implementation of the Declaration by establishing the Committee of 24, as it came to be known,
originally by resolution 1654 (XVI) of 27 November 1961 (CR 95/3, p. 18). Prior to this
Committee's establishment, there was a Committee on Information from non-self-governing
territories. The practice of these two Committees and the numerous General Assembly resolutions
on self-determination establish a considerable body of practice which cannot be ignored. An
examination of this practice shows that while the right to self-determination is consistently
reaffirmed, the determination by the General Assembly as to how it is applied in particular cases
always has regard to the historical, geographical and political circumstances of the individual
situation. There is no universal outcome - whether in terms of ultimate political status or of
methodology for ensuring the exercise of the right by a particular people. Instead, this rule of
international law, as Hans Blix recognized, is dependent for its proper application on international
institutions to assess and apply the rule (see ACM, para. 322; see also Vera Gowlland-Debbas,
Collective Responses to Illegal Acts in International Law (1990), p. 145).
Mr. President I remind the Court, as Professor Crawford already has, of the Western Sahara
Advisory Opinion, (ACM, para. 319) which recognized that the General Assembly had "a measure
of discretion" as to the forms and procedures by which the right is to be realized. The Western
Sahara case recognized that different procedures were legitimately to be followed in cases involving
special circumstances in order to ascertain the will of the peoples and thus to give effect to the
principles (I.C.J. Reports 1975, p. 33).
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I turn to examine some of this important practice.
The diverse nature of non-self-governing territories is reflected in the different application of
the rule in particular cases. There are situations of small territories such as Goa or Ifni. There are
territories subject to conflicting claims to sovereignty based on past historical association, such as
the Falklands Islands (Malvinas) and Western Sahara. There are territories subject to claims of
reintegration such as Gibraltar and Mayotte. And these are only examples - the categories are not
closed.
Examination of the extensive United Nations practice leads to one very clear conclusion: the
former colonial power in any territory entitled to self-determination cannot expect to be recognized
as entitled to any continuing sovereignty or control, unless the people so decide in an act of free
choice. There have been instances of options short of independence such as free association and
even integration, being chosen. An examination of this United Nations practice indicates that the
General Assembly has assumed three distinct functions in relation to self-determination:
(a) to decide which territories are covered by the right;
(b) to decide on the exercise of the right in relation to particular territories; and
(c) to decide on actions to be taken by member States - generally in relation to a situation
involving a right to self-determination.
It is accepted that East Timor is covered by the right of the first category. For the purposes
of this presentation, therefore, I need only concentrate on the second and third. In relation to the
exercise of the right of self-determination in East Timor, the General Assembly has made
no decisions as to how this might be carried out. I have in my earlier presentation on standing
shown that Portugal claims a protagonistic role in this process. But it is mistaken. Pending the
outcome of consultations by the Secretary-General it is impossible to say how or when the exercise
of self-determination in relation to East Timor will occur. Independence may be one outcome. But
there are other possibilities. Portugal's role is uncertain. In the meantime, Indonesia is the
government authority in the territory.
I turn then to the third function, the role of the United Nations in deciding on actions to be
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taken by States.
Mr. President, the central role of the General Assembly in this regard is demonstrated par
excellence by its adoption of "Plans of Action for the Full Implementation of the Declaration on the
Granting of Independence to Colonial Countries and Peoples".
The first plan was contained in resolution 2621 (XXV) of 12 October 1970. The next plan
was contained in resolution 35/118 of 11 December 1980. This was a month after the specific
resolution 35/27 was adopted on the question of East Timor. In this plan of action one finds specific
reference to, for instance, member States endeavouring to adopt measures to achieve "the cessation
of all new foreign investments in and financial loans to South Africa" (para. 5 of Plan). There is
a reference to member States opposing "all military activities and arrangements by colonial and
occupying Powers in the Territories under colonial and racist domination" (para. 9). There was a
call for member States to discourage or prevent the influx of immigrants and settlers into Territories
under colonial domination (para. 8). Specific reference is made to South Africa and the need for
sanctions and an arms embargo (para. 16).
The key role and overall responsibility of the General Assembly for ensuring the
implementation of the right to self-determination is demonstrated in paragraph 17 of the Plan. I
quote the key parts:
"17. The Special Committee shall continue to examine the full compliance
of all States with the Declaration ... Where General Assembly resolution 1514(XV)
has not been fully implemented with regard to a given Territory, the Assembly shall
continue to bear responsibility for that Territory until all powers are transferred to
the people of the Territory ... and the people concerned have had an opportunity to
exercise freely their right to self-determination... The Special Committee is hereby
directed:
...
(e) To assist the General Assembly in making arrangements, in co-operation with
the administering Powers, to secure a United Nations presence in the colonial
Territories to enable it to participate in the elaboration of the procedural
arrangements for the implementation of the Declaration and to observe or
supervise the final stages of the process of decolonisation in those Territories."
(Emphasis added.)
So here is the General Assembly in a Plan of Action attached to a resolution adopted without a vote,
acknowledging that the way in which self-determination is secured in any particular territory rests
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not with the Administering Power, nor with individual States but with the General Assembly itself;
and one finds specific directions to States about particular self-determination situations.
When one then looks for action, direction, criticism or other statements by the General
Assembly in relation to East Timor, following adoption of this Plan, one finds virtually nothing.
There are two resolutions in 1981 and 1982. But then silence. There is not, as has been noted, any
criticism by the General Assembly of Australia's actions in relation to the Treaty. Yet this is the one
action of Australia that Portugal singles out for criticism and which it alleges is contrary to
international law and to the right of self-determination of the people of East Timor. One would
expect the General Assembly, in discharge of the central role it has asserted for itself in the Plan of
Action, to comment on Australia's action and to give directions to other States in relation to such
action if it had any concerns about it. But it has not.
There are numerous United Nations calls for States to take specific action in a selfdetermination
situation. For example, resolution 47/82 of 15 March 1993 was adopted on the
"Importance of the universal realization of the right of peoples to self-determination
and of the speedy granting of independence to colonial countries and peoples for the
effective guarantee and observance of human rights."
It contains not just general calls for States to take action, but specific calls for action - there are 3
such calls in relation to Palestine, 8 in relation to South Africa, 1 in relation to Comoros and
Mayotte and 1 in relation to Namibia - but not a word in relation to East Timor. This is
a significant silence. This is the silence Professor Higgins would have the Court gloss over, relying
on logical and necessary inference.
In recent years, the General Assembly has also passed a series of resolutions relating to selfdetermination
and the implementation of the Declaration. And, in many of these, the Assembly has
singled out particular actions by Administering Powers and other States. It has never relied on mere
inference.
One can take the 1993 resolution on Implementation of the Declaration (resolution 48/52 of 10
December 1993) as an example of the United Nations own central role in overseeing the
implementation of the self-determination process. I quote several operative paragraphs:
"6. Calls upon all States, in particular the administering Powers, as well as the
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specialized agencies and other organizations of the United Nations system, to give effect
within their respective spheres of competence to the recommendations of the Special
Committee for the implementation of the Declaration and other relevant resolutions of
the United Nations;
10. Requests the Special Committee to continue to seek suitable means for the
immediate and full implementation of the Declaration ... and, in particular:
(a) To formulate specific proposals for the elimination of the remaining
manifestations of colonialism and to report thereon to the General Assembly at its
forty-ninth session;
(b) To make concrete suggestions which could assist the Security Council in
considering appropriate measures under the Charter with regard to developments in
colonial Territories that are likely to threaten international peace and security."
Yet again, the General Assembly affirms the central control and direction which it exercises in
determining the actions required of States in self-determination situations.
In the case of territories such as Anguilla, Bermuda, the British Virgin Islands, Guam and
Montserrat, the General Assembly regularly adopts a resolution with specific directions to the
relevant Administering Power in relation to each particular territory (see e.g., resolution A/48/51 of
10 December 1993). These resolutions call on the relevant Administering Power to undertake
particular action required by the circumstances of the territory. However, they also call specifically
on member States or the relevant territorial government to take action in relation to particular
activities where that is necessary. For instance, in relation to Anguilla in 1992, the General
Assembly (resolution 47/27) welcomed the decision by the territorial government to protect and
conserve marine resources and control the activities of foreign illegal fishing.
Also, each year the General Assembly adopts a lengthy resolution on activities of foreign
economic and other interests which impede the implementation of the Declaration on the Granting of
Independence, etc. (see e.g., resolution 48/46 of 10 December 1993). These resolutions contain
general calls to States to take action to prevent economic activity detrimental to the interests of the
people of non-self-governing territories. When it is necessary to call on States to take particular
action this is done. In 1991, for example, resolution 66/46 on this issue singled out for
condemnation collaboration with the South African régime in the form of new investments and
supply of arms, and called upon governments to take effective measures against oil companies to
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terminate the supply of oil to South Africa.
If one reviews the work of both the General Assembly and the Special Committee of 24 in
recent years, one is struck by several matters:
- a detailed and extensive consideration given to decolonization situations around the world;
- the acceptance by those two bodies that ultimate supervisory responsibility rests with them for
seeing that resolution 1514 (XV) is effectively implemented;
- the willingness when necessary and appropriate to condemn particular actions, or to recommend
or urge other action by administering powers and other States; and
- the absence of reliance on inference or logical deduction from any general assertion of the right of
self-determination.
In some instances, in recognition of the link between peace and security and decolonization,
the Security Council has directed specific action to be taken by States. Australia has set out in
Appendix A to its Counter-Memorial examples of United Nations resolutions specifically calling for
action by third States in a self-determination context. The practice points to only one conclusion: in
the absence of specific direction, States are not required to abstain from dealings with a State
involved in a self-determination dispute, particularly where such dealings are primarily designed to
protect or further the interests of the first State.
As Mr. Griffith has already reminded the Court, throughout the entire consideration of selfdetermination
issues since 1989, there has been no pronouncement by either the General Assembly
or the Committee of 24 on the Timor Gap Treaty. And this is not out of ignorance. Portugal
brought the Treaty to the attention of the United Nations very speedily. Portugal addressed a letter,
dated 9 November 1988, to the Chairman of the Committee of 24. This letter asserted that
"the Government of Indonesia lacks the legitimacy to undertake commitments regarding
a territory which it occupies illegally ... and which is under the responsibility of
Portugal in its capacity as Administering Power".
Portugal requested that its text be circulated as an official document of the Committee. And it was
so circulated in a document dated 15 March 1989 (A/AC.109/981, PM, Ann. III.17, Vol. V,
p. 194). Further letters were addressed to the Secretary-General of the United Nations, requesting
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that their texts be circulated as official documents.
Neither the Committee of 24, nor the General Assembly indicated any agreement with the
position of Portugal. Whilst fully aware of the negotiations and conclusion of a treaty between
Australia and Indonesia, these bodies expressed no criticism, much less took steps to do anything
about it. No suggestion was ever made by these bodies that the conduct of Australia was impeding
the Secretary-General's efforts to mediate between the parties concerned, or the people's right to
self-determination.
All that the Committee of 24 does each year is to note the information on East Timor and
agree to put the item on the agenda for the following year, subject to any direction from the General
Assembly. And each year there is no such direction. So far as the United Nations is concerned, the
only action in relation to East Timor is to occur as part of the Secretary-General's consultations as
mandated by the last substantive resolution on this subject in 1982.
One can contrast this with the specific direction given to States in some self-determination
situations, including those involving issues of conflicting claims to sovereignty. To that I now turn.
Arrangements concluded with territorial authorities
Mr. President, I now turn to the second issue identified at the beginning of my
presentation - the practice of States in dealing with territorial authorities consistently with respect
for the right to self-determination. Examination of this practice confirms the significance of silence
by the United Nations in terms of defining limits on actions by States.
The United Nations has recognized the reality of the practical need for States to have dealings
and relationships with relevant authorities in non-self-governing territories. What the
United Nations has done is to single out particular dealings in particular cases and seek restrictions
on them - arms sales, foreign investment. Where appropriate, the United Nations has specifically
called on States to refrain from entering into particular relations with State A in respect of territory
B. Thus, in the case of Namibia, treaty relations and economic or other forms of dealing which
involved South Africa acting on behalf of Namibia were proscribed (Security Council
resolution 301). Where the General Assembly, as in the case of Namibia, is prepared to assume
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control itself, there may be more wide-ranging demands for States to cease dealing with the authority
in control. Or else, as happened in the case of a number of Portugal's African colonies, the United
Nations may recognize liberation movements as representative of the people of a territory and direct
States to ensure representation of those movements in dealings third States have when dealing with
matters pertaining to the territories (e.g., resolution 2918 (XXVII), p. 176 of ARej. and
resolution 3113 (XXVIII) on p. 178). In resolution 3294 (XXIX) in 1974 five named bodies were
so recognized (PM, Ann. II.8). Those resolutions also called on all States specifically to take certain
measures to hinder Portuguese domination of the territories. When the United Nations considers it
necessary to do so, it speaks clearly and directly to States about their dealings with the relevant State
exercising administration of a territory. But in other situations it makes no such call, no doubt
cognizant of the fact that the interests of the people concerned are not always best furthered by the
cessation of all relations with the State in control.
The situation of non-self-governing territories where there is a dispute over sovereignty is no
different in this regard from a situation of an obstructive administering power. East Timor, of
course, must be regarded for these purposes as an example of disputed sovereignty and is similar in
this respect to Western Sahara, Gibraltar, Falklands (Malvinas) and Mayotte. One State, Indonesia,
is in control of the territory. Another State, Portugal, claims that control is illegitimate and seeks to
assert its exclusive right to act on behalf of the territory. Examination of the way in which third
States act in situations such as this points to only one conclusion: States deal with the State in
control in relation to matters affecting the territory where such dealings are necessary to protect the
economic interests of the first State. In none of these cases has there been any United Nations
direction preventing such dealings by States. By contrast, in the case of Cyprus, there has been a
declaration that the establishment of a separate State of Northern Cyprus is invalid and the Security
Council has explicitly called on all States not to recognize the purported Turkish Republic of
Northern Cyprus (see Appendix A to ACM, p. 189). But when one examines self-determination
situations one finds that this silence is significant - in the absence of any call not to do so, States deal
in relation to resources of non-self-governing territories with the territorial authority in control.
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Clearly, States by their practice do not regard the silence of the United Nations as without
significance. Let me turn, therefore, to examine in more detail these cases of disputed sovereignty
where the United Nations has been silent.
In the United Nations itself, it is recognized that such disputes are best handled by direct
negotiations by the principal disputants under the auspices of the Secretary-General. When such a
process is under way, the Committee of 24 generally takes no substantive action.
In the case of Falklands (Malvinas) in 1994 the Committee of 24 adopted a decision
reiterating that "the way to put an end to the special and particular colonial situation" is "negotiated
settlement of the dispute over sovereignty". It also reiterated its support for the good offices of the
Secretary-General (A/49/23 (Part VIII)). In the case of the Falklands (Malvinas), the General
Assembly has not passed a resolution since 1988 (resolution 43/25). That resolution contained no
direction to States not to deal with the United Kingdom. In the absence of such direction, States deal
with the relevant administration in control, including in relation to its resources. And this is the
case, whatever the eventual resolution of the sovereignty dispute may turn out to be.
Western Sahara
Mr. President, the position of Western Sahara is of particular interest for the present case and
I hope the Court will forgive me for examining it in a little more detail.
One must be cautious about drawing legal conclusions in this area from the practice in any
other case, as each territory has its own peculiar features. Nevertheless, the closest analogy to East
Timor among other self-determination territories is probably that of Western Sahara. The Western
Sahara example shows that pending a final resolution of the issue, third States are not prevented
from practical arrangements with the State in actual control of the territory. Such arrangements
(even those relating to resources) have not been criticized by the General Assembly.
I do not propose to rehearse the history of the Western Sahara dispute. But this dispute has a
Portuguese element. No doubt this was why Portugal's counsel sought cursorily to dismiss the
relevance of the 1988 and 1992 Fisheries agreements between Morocco and the European
Community (CR 95/4, p. 66). Some of the background to the dispute is set out at paragraphs 211-
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213 of the Rejoinder. Prior to 1975, Spain was recognized by the United Nations as the
"Administering Power" of this non-self-governing territory (then called Spanish Sahara). However,
Spain terminated its presence in Western Sahara in February 1976. In 1979 Morocco purported to
incorporate the area into the Kingdom of Morocco as a new province. This claim has never been
accepted by the General Assembly, which in subsequent resolutions has repeatedly made clear the
continuing application of resolution 1514 (XV) to Western Sahara and reaffirmed the right of the
people of Western Sahara to self-determination and independence. No resolution of any
United Nations organ has ever purported to terminate the status of Spain as the Administering
Power of the territory, or has indicated that a State other than Spain is the Administering Power.
Indeed, the last time that the General Assembly mentioned Spain in a resolution on Western Sahara,
resolution 3458A (XXX) of December 1975, it expressly referred to Spain as the "Administering
Power" with "responsibility ... with regard to the decolonization of the territory".
More recently the Secretary-General has been undertaking consultations in exercise of his
good offices as between Morocco and the Frente Polisario. Among the issues under discussion has
been the arrangements for a referendum on self-determination (see the most recent Working Paper
prepared by the Secretariat of the Committee of 24, A/AC109/1194 of 29 June 1994). But
arrangements for a referendum have not been settled (see CR 95/5, p. 25). At the same time there
has been regular consideration of the issue in both the Security Council (resolutions 621(1988),
658(1990), 690(1991), 725(1991), 809(1993)) and the General Assembly (see e.g., 47/25 (1992),
48/49 (1993)). This is of course not the case in relation to East Timor.
Throughout the period from 1976, Morocco has been in control of the whole exploitable part
of the territory. There has been a competing government, established by Polisario, that is the
Sahrawi Arab Democractic Republic (SADR), recognized by many States and a member of the
OAU. Yet no call has been made by the United Nations to States not to deal with Morocco nor to
impose any other sanctions against it. Thus even though the United Nations rejected Morocco's
claim that the people had decided in favour of incorporation, even though the United Nations was
critical of Morocco's presence in the territory and even though some States have recognized the
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SADR, there have been no calls for States not to deal with Morocco.
And, in the absence of any such calls, States have had dealings with Morocco as the State in
effective control of the territory in respect of the natural resources of the territory. These States
include Portugal. Yes, I repeat, these States include Portugal!
I refer the Court in particular to the fisheries agreements between the EC and Morocco which
have operated since 1988 and which were clearly intended to include the waters pertaining to
Western Sahara (ARej., para. 212). These agreements extend to resources which are located within
the waters of the Western Sahara.
In fact, there have been two agreements between the European Community and Morocco
concerning fisheries, one in 1988 and one in 1992. The texts of these agreements, appear in the
Official Journal of the European Communities and have been made available to the Court.
The 1988 Agreement in Article 1 makes clear that the Agreement applies to the fishing
activities of vessels flying the flag of a member State of the community in "the waters over which
Morocco has sovereignty or jurisdiction". Somewhat ambiguous, you may say. But there is no such
ambiguity when one examines the fine print. In particular I refer the Court to Point G of Annex 1,
which forms an integral part of the Agreement (Art. 14). That provides that:
"The fishing zones to which the community shall have access are the waters referred to
in Article 1 of the Agreement, Article 1 of Protocol No. 1 and Article 1 of Protocol 2 beyond
the following limits."
Then set out are various limits for different types of vessels. Protocol 2 is of no relevance for
our purposes. If one goes to Protocol 1 one finds the possibility for fishing defined by reference to
areas north and south of the parallel 30º40'N. The Court has in the folder we provided, an
illustrated map which the Court may find useful in following this part of my argument. In the
waters south of the 30°40'N line the Agreement restricts fishing for certain species between those
two parallels but not other species. In other words, for some species fishing is allowed generally
south of 30°40'N. For other species, fishing is restricted between 30°40'N and 28°44'N. The
Agreement makes no sense therefore if the Agreement does not apply south of 28°44'N to waters off
the Western Sahara controlled by Morocco. And the public understanding at the time was that these
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waters were covered by the Agreement (ARej., fn 350, p. 118).
The European Commission, in answer to a question concerning the unilateral suspension by
Morocco of fisheries operations off the Sahara coast in 1990, said that it could not "take up any
position in regard to the geographical boundaries" of the zone covered by the Treaty, in particular as
regards waters off the coast of Western Sahara (answer to question by Mr. Marin, 22 November
1990 - OJofEC 23.3.91, C79/20). Portugal seeks to rely on this (CR 95/4, p. 66). But this is mere
obfuscation. Everyone knew that vessels from certain European countries were fishing off Western
Saharan waters pursuant to the 1988 Agreement.
This attempt to hide the obvious whatever its possibility in relation to the earlier 1976 and
1977 Portugal and Spanish Agreements and the 1988 EC Agreement cannot be maintained once one
examines the 1992 Agreement. The 1992 Agreement in Article 1 again defines the relevant waters
as those over which Morocco has sovereignty or jurisdiction. However, the Agreement now clarifies
that this expression in fact means what everyone understood it to mean. In point H of Annex 1 of
that Agreement, dealing with the inspection of vessels there is provision for the vessels to call at a
number of ports. The text says: "Not more than once a year ... any vessel authorized to fish must, at
the request of the Moroccan authorities, put in at one of the ports listed".
In French: "l'un des ports marocains".
The ports listed are:
- Agadir, Casablanca, Dakhla and Tangier. Dakhla is, of course, in Western Sahara (OJ,
31.12.92, doc. 407/10).
Examination of the consideration given to the Agreement by the European Commission also
confirms beyond doubt the application of the Agreement to the waters of the Western Sahara. In
fact, there was some opposition to and some embarrassment in the European Parliament about the
Agreement because of this fact. I need not detain the Court with all the detail. I refer simply to the
Explanatory Statement attached to the Report to the European Parliament on the Agreement. A
copy has been provided to the Court. It says:
"The Commission and Council should seek guarantees from the Kingdom of
Morocco that it will not implement the provisions of the fisheries agreement with the
Community which concern the territorial waters of the Western Sahara and the port of
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Dakhla until the process of self-determination on the basis of the referendum prepared
and supervised by the United Nations is concluded." (PE 202.501, 4 December 1992.)
This call by the European Parliament was ignored and the Agreement was signed after unanimous
approval by the Council and entered into force (Reg. 3954/92 of 19 December 1992). Under that
Agreement fishing vessels, principally from Spain but also from Portugal are fishing in the waters
off Western Sahara.
Thus all members of the European Union, including Portugal, are doing exactly what Portugal
claims in this case that no State should do. They are dealing with a State other than the
Administering Power denominated as such by the United Nations.
This conduct provides the most powerful support for Australia's position in the present case.
Mr. President, I will stop there today.
The PRESIDENT: Thank you Mr. Burmester. The Court will resume these oral pleadings
tomorrow at 10 o'clock. The meeting is over.
The Court rose at 1.00 p.m.
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