Traduction

Non-Corrigé Traduction
Uncorrected Translation

CR 95/15 (Traduction)
CR 95/15 (Translation)

jeudi 16 février 1995
Thursday 16 February 1995 -2-

The PRESIDENT: Pleasebe seated. 1 give the floor to

Professor Pellet.

Mr. PELLET: Thank you, Mr. President.

Mr. President, Members of the Court. This afternoon, in two

successivebut distinct sets of arguments, 1 shall examinethe Portuguese

Application, first in the lightof the law relating to the international

responsibilityof States and then in the light of the "Monetdry Gold

principle"; and 1 shall show that the Court cannot inany marner

whatsoever rule on Australials responsibilitywithout previously ruling

on the interests of a legal nature of Indonesia.

THE PORTUGUESE CLAIMS FROM THE STANDPOINT OF THE LAW
OF INTERNATIONAL RESPONSIBILITY

1.Mr. President, 1 obviously have no intentionof delivering an

academic statementon the mechanisms of the international responsibility

of the State. 1 do not have time forthat, and this is not the place.

Moreover, as 1 listened to the arguments put forward on behalf of

Portugal (see CR 95/5, pp. 34-35), 1 detected no real disagreement

between the Parties on this point, in any event as regardsthe principles

applicable. Theyboth accept that, in accordance with Article 1 of

Part 1 of the InternationalLaw Commission'sdraft articles on State

responsibility, I[elveryinternationally wrongful act of a State entails

the internationalresponsibilityof that State" (see CR 95/5, p. 74);

they both also appear to accept that, judging by the general structureof

the draft articles, such responsibility has practical consequences only

if, and to the extent that, the breach has caused damage to another

State.

What is more, Portugal'ssubmissions,which have remained unchanged
'-C-g

throughout the proceedings (see PM, pp. 235-237; PR, pp. 273-275 and -3-

CR 95/13, pp. 76-79), follow this arrangementvery precisely: the first

sets out, in very general terms, the rules said to have been breached by

Austraiia; the next two list the actions by which the rules in question

are alleged to have been breached; and in its Submissions 4 and 5,

Portugal asks the Court to draw practical conclusions from this with

regard to reparationand the cessation of these alleged breaches.

With your permission, Mr. President,1 shall follow this plan and

show that, after 512 pages of written pleadings - not counting the

annexes - and seven oral hearings which produced 383 pages of verbatim

records - 1 do indeed love statistics! - Portugal has still not succeeded

in specifyingwhich precise actionsby Australia are supposed to have

breached which precise rules of internationallaw (1). And, as

additional legal argument, 1 shall go on to show that the submissionsof

the applicant State, taken by themselves,are both inappropriateand

inadmissible (II) .

1. Australia has not committed the breaches of international
law of which it 1s accused

2. No one, 1 think, on either side of the bar, can dispute the fact

that there is an "internationallywrongful actof a Statev - hence

responsibility - "when: (a) conduct consistingof an action or omission

is attributable to the State under internationallaw; and (b) that

conduct constitutesa breach of an internationalobligation"

(InternationalLaw Commission, draft articles onState responsibility,

Part 1, Art. 3).

Mr. President,what actions by Austraiia does Portugal allege

constitute a breach of international obligations?

It is not easy to establish this in the lightof the Portuguese

submissions,which are both outof touch with reality and, if 1 may Say -4-

so, tangled in knots; and the oral argumentswe have heard on behalf of

Portugal, particularly those of last Monday, have helped to make things

still more confused.

In his introduction toPortugalls oral reply, Mr. GalvZo Teles

nevertheless made a praiseworthy effort at clarification which 1 shall

take as my starting-point:

"The case before you is clearly circumscribed. It concerns
the negotiation of a permanent delimitationof the continental
shelf in the area of the Timor Gap ... It then concerns the
negotiation, conclusion and performance of an agreement relating

to the natural resourcesof East Timor - as well as Australials,
of course. It further relates to the enactment of Australian
laws.Io (CR 95/12, pp. 13-14.)

To start with, let us keep to that, since Portugal invites us to do

so through the authoritativevoice of its Co-Agent.

3. The first breach by Australia is, therefore, "the negotiation of a

permanent delimitation of the continental shelf inthe area of the

Timor Gap ...I, that is what it says, Mr. President: negotiation,and

no more, - not negotiation with Indonesia. The second breach asserted by

Portugal is "the negotiation, conclusion and performance of an agreementv

relating to the natural resources of East Timor - "an agreementn,

Mr. President, an agreement "with a State", as Our opponent said - or,

rather, did not Say! (CR 95/12, p. 12) - not an agreement with Indonesia.

Third alleged breach: "the enactment of Australian laws".

1 shall not dwell on the last-mentionedallegedly wrongful act:

"Every treaty in force is binding upon the parties to it and must be

performed by them in good faith." (Vienna Convention on the Law of

Treaties, Art. 26.) The Australian laws complainedof by Portugal, by

virtue of their very terms, are merely measures for the performanco ef

the treaty; they are not "detachableIo from it, and only if the treaty

itself were invalid could those laws constitutea breach of international -5-

law - a hypothesis which is inany case unverifiablesince Portugal means

to prevent us, to prevent you from examining thevalidity of the

1989 Australo-Indonesian Treaty(see PM, p. 75, para. 3.06; PR, p. 16,

para. 2.10 and CR 95/13, p. 57) even though, as we shall see, its

position on this point wasconsiderablydiluted lastMonday.

There remain therefore the negotiation, still under way, of "a"

delimitation agreementand the negotiation, conclusionand performance of

a) agreement for the development of the natural resourcesof the

Timor Gap.

4. According to the most firmly establishedprinciples of the law of

the sea, "the delimitationof the continental shelfbetween Stateswith

opposite ... coasts shallbe effected by agreement ... in order to

achieve an equitable solution" (Montego Bay Convention, Art. 83,

para. 1) . This is the A, B, C, "le B-A-BA", of the law of delimitation

of maritime spaces, and the Court, in its jurisprudence,has always

firmly upheld this dual requirementof agreement, on the one hand, and an

equitable solution, on the other (see the Juà4ments of 20 February 1969,

North Sea Continental Shelf, I.C.J. Reports 1969, p. 53, and

12 October 1984, Delimitation of the Maritime Boundary in the Gulf of

Maine Area, I.C.J. Reports 1984, p. 299) .

In so far as the first internationally wrongful act imputed to

Australia, the negotiation of a delimitationagreement, is at issue, the

problem of the contentof the agreement, whether equitableor otherwise,

does not arise; it can simply be assumed that theagreement has not been

concluded. The mere fact of negotiating an agreement with the coastal

Power whose coasts are opposite to those of Australia could not

constitute a wrongful act unless the Power in question was not entitled -6-

to be there - and that pointcan definitely not be judged by the Court;

1 shall return to this shortly.

The same remark is applicable to the Australo-Indonesian Agreementof

11 December 1989. By preventingyou from pronouncing on Indonesiats

capacity to conclude such an agreement, Portugal rules out in any case

the "positive"wrongfulness, if 1 may put it that way, which might have

consisted in the negotiationand conclusion of the Agreement with that

country.

5. However, there are two furtherpoints on which Portugal lays

stress - albeit with unequal force, depending on its counsel:

- first of all, the Australo-IndonesianAgreement is said to be unlawful

on account of its actualcontent; it is claimed that it relates to the

exploitationof Timorese natural resources (CR 95/12, pp. 36 and 73;

CR 95/13, p. 27); and,

- secondly, Portugal,ever fond of its "negativepropositionstt, claims

that Australia, by negotiating and concluding this treatywith

Indonesia,wrongfully "bypassed"it though it is still the

Administering Power (CR 95/12, p. 13).

1 have not much to Say on the first point, Mr. President: my friend

and colleague, Professor DerekBowett, and myself showed, during the

hearing on Friday 10 February (CR 95/11, pp. 8-49): (1) that by

concluding the 1989 Treaty, Australia had simply exercised its own right

of permanent sovereigntyover its naturalresources,without infringing

either the rights or the interests of the Timorese people, which are,

. Li13 moreover, equally valid and just as worthy of attention; (2) that this

Agreement constitutes an equitable compromise - albeit rather

disadvantageousto Australia -between the conflictingcontentionsof

Australia, on the one hand, and of Indonesia and Portugal (which are -7-

exactly identical!),on the other; and (3) that this is in every respect

consistent with the requirementsof the law of the sea identified by the

jurisprudenceof the Courtand clearly codified by the Montego Bay

Convention, particularly Articles 76 and 83 thereof, and more especially

paragraph 3 of the latter Article.

Portugal remained strangelysilent about these arguments at the

beginning of the week, while Australia, for its part, continues to find

them hard to fault: the one no doubt explains the other! In any case,

since Portugal has not dealt with this point, 1 can hardly do more than

respectfullyrequest you, Members of the Court, to refer to Our oral

arguments on the matter, which we regard as important, since it disposes

of the accusation - central to Portugal's contention - that Australia is

"plundering"the natural resources of East Timor. Definitely not; it is

only exercising its owrirights, those recognized to it, as to any State,

by internationallaw, and recognized to the Australian people, as to any

people. Our arguments on this important point are reproduced in the

verbatim record (CR 95/11, pp. 8-45).

6. There remains, of course, the other principle said to have been

infringed by Australia, that of the right to self-determination,the

importance of which it in no way disputes.

Why and how does Portugal Say that Australia has infringed this

principle? On this point therewas nothing really new in the arguments

we heard lastMonday, but since 1 am replying to those arguments, they

will constitutemy starting-point: "thePortuguese claim ... is founded

on the disregard by Australia of the status of East Timor as a
y"

non-self-governingterritory on the one hand, and of that of Portugal as

its Administering Power on the other" (CR 95/13, p. 46). - 8 -

My friends and colleagues,Henry Burmesterand James Crawford,have

shom that this position is untenable: no general, abstract statusof

"administeringPoweru exists; such a designation implies obligations,

functional ones, vis-à-vis the United Nations (theyare set out mainly in

Article 73 of the Charter) and no doubt, correspondingrights, although

they too are functional and presuppose that the States wpossessing~them

are in practice able to discharge those obligationsand to exercise those

rights - which is not the case here. Similarly,Australia, unlike other

States, incidentally,acknowledges that the Timorese people havethe

right to self-determinationand that they have not fully exercised that

right up to now. It said so as far back as 1975; it maintained its

opposition to the way in whichIndonesia had gone about the incorporation

of East Timor, in 1979, when it recognized the enduring (andprobably

permanent) situationcreated by Indonesia on the ground (see PM,

Ann. 111.37) - and this, as Professor Crawford pointed out, was what

de jure recognition represented; it maintains the same position - that

the people of East Timor have the right to self-determination - today;

this Court knows it; Indonesia knows it; only Portugalpersists in

ignoring it.

7. In so doing, the applicant Stateseriously underestimates -

Mdisregardsuwould also be an appropriateword! - one essential factor:

neither the Security Council nor the General Assemblyhas drawn any

particular conclusionsfrom the designations thus applied. It may, it is

true, be said that these bodies initially calledupon Indonesia to

withdraw its forces - Indonesia,mind you - and that is where the

"1 5 principle of the relative force of res decisa, which is so bothersome to

Our opponents, comes into play (see CR 95/13, pp. 15 and 49); and they

have not reiterated this requirement since 1975. They also called upon -9-

the Portuguese Government"as administeringPower to CO-operate fully

with the UnitedNations" (cf. Security Council resolution 384 (1975)).

But with regard to third States, those not "directlyconcerned', there

has been nothing of the kind.

Nothing of the kind. But there was a call - the call to "respect the

territorial integrityof East Timor as well as the inalienable right of

its people to self-determination" (ibid.) . Nevertheless, unlikewhat

happened inother cases - Southern Rhodesia or Namibia in particular -

the Security Council did notlay dom any particular means to achieve

that goal; nor were any recommended by the General Assembly.

No, Mr. President,Australia does not have the obsession with

sanctions"which one of Portugal's counsel accusedit of having

(CR 95/13, p. 8). It would merely make two points:

- the first is that the United Nationsorgans have neither imposed nor

even recommendedsanctions in this case, unlike what happened in other

cases; and yet it was Professor Higgins herselfwho, on Monday, laid

stress on the importance of the particular clrcumstancesof each case

(CR 95/13, p. 30) ;

- the second is that the resoluriions of the United Nations organsdid, it

is true, originally call upon al1 States to respect the rightof the

people of East Timor to self-determination - at least in the case of

the three earliest resolutions(cf. Security Council

resolutions 384 (19?5)of 22 December 1975 and 389 (1976)of

22 April 1976 and General Assemblyresolution 3485 (XXX)of

12 December 1975), since the subsequent resolutionswere no longer

addressed to other States. Be that as it may, these same early

resolutions are totally silent on the means which those other States

should use forthat purpose. The conclusionsor the inferences drawn - 10 -

from this by Portugal with regard to the resulting obligations for

Australia are merely theproduct of its imagination; as

Professor Bowett showed this morning, the resolutions Say nothing and

imply nothing about the means of achieving the goal they set.

Mr. President,Australia, for its part, is convinced that it is

serving the interests of the people of East Timor better by recognizing

the presence of Indonesia in that territory, since it can then carry on a

more active policy in regard to the territory, a policy which - it

hopes - will assist the effective exerciseby the Timorese people of

their right to self-determination; a right of which - 1 shall come back

to this - it was deprived first by Portugal andsubsequentlyby

Indonesia.

8. Oh yes, this attitude can certainly be criticized! Althoughon

this point Portugal rather remindsme of those doctors in the works of

Molière who preferredto have their patients die according to Hippocratic

rules than to Save them or to treat them regardlessof dopa. In this

instance, however, such criticisms cac only be political; Australia has

breached no rule since, in the absence of United Nations decisions

indicating the precise means that States should use to promote the right

of the Timorese people to self-determination,it is for each State, in

the exercise of its sovereign discretion, to select those means.

Portugal and Australia obviously do not take the same view of this

matter; but it is a question of appreciationand expediency,not one of
-: I7

law. In this connection,neither Portugal nor the Court itself can

substitute its own view of things for that of Australia; "[rlestrictions

upon the independenceof States cannot thereforebe presumedto, and in the

absence of prohibitory rules (sanctionsif you like) "every State remains - 11 -

free to adopt the principleswhich it regards as best and most suitable"

(llLotusllJudgment No. 9, 1927, P.C.I.J. Series A, No. 10, pp. 18-19).

9. There is, moreover, anotherquite decisive argumentto show that

the conclusion of the 1989 Agreement couldnot possibly have infringed

the Timorese peoplels rights of self-determination. 1 mention this

argument onlypro memoria, since Professor Bowett spoke about it this

morning, but it is very important.

Portugal now admits (see CR 95/12, p. 36 and CR 95/13, pp. 26-27)

that numerous Stateshave been able quite lawfully to conclude agreements

with Indonesiawhich, by virtue of their very terms, are applicable to

"the territory of the Republic of Indonesia asdefined in its laws" (see

the many examples in the Australian Counter-Memorial,Appendix C,

pp. 213-218). There is therefore only one remainingproblem, that of the

object of the treaty; Professor Bowett has talked about it; 1 have

talked about it (see above, point 5). This is no more promisinga field

for Portugal since it does not show, nor can it show, that the natural

resources it accuses Australia of plundering belong to the Timorese

people - and for good reason: in Australia's opinion, but also on the

basis of legal rules that have been brought toyour attention, those

resources are clearly, certainly and indisputablyAustralian.

10. Consequently,Mr. President,however one regards the matter,

Australia has breachedno obligation laid upon it by internationallaw:

- first of all, it has concludeda treaty with Indonesia - just as many

other States have done; bu= the "right of entering into international

engagements is an attribute of State sovereignty" (S.S. "Wimbledon",

1923, P.C.I.J., Series A, No. 1, p. 25); - 12 -

- secondly, this agreement relates to the joint exploitationof natural

resources which Australia has alwaysconsidered,and still considers,

to be its own;

- thirdly, it was concluded in accordance with themost soundly

established guidelinesof the law of maritime delimitationand,

moreover, does not prejudge any future delimitation;

- fourthly, it was not, however, concluded withPortugal, which has

exercised no effective control over the territory of East Timor for

20 years and which could not have given effect toan agreement of this

kind, any more than to a delimitation treaty;

- fifthly, it is true that some United Nationsresolutions - early ones -

called upon States to respect the right of the people of East Timor to

self-determination,but they decidednothing, except with regardto the

parties "directly concernedv; they did not even recommend the means

appropriate for achieving thisaim, which Australia, for its part,

fully approves;

- sixthly, in the exercise of its sovereign discretlon,Austraiia - and

this is the last point - considers that the best way to achieve this

aim is not to close one's eyes to the situation prevailing on the

ground, which was createdby the shortcomingsof Portugal followed by

the Indonesianinvasion, but on the contrary to recognize that
. .
2, 9 situation and try to act on the basis of this "givenl* - this being a
-
genuine de facto "given" - for the good of the Timorese people's rights

and interests.

1 do not, Mr. President,perceive any internationallywrongful act in

al1 this. But room for discussion about the advisabilityof some of the

stances taken? Yes, of course, just as the justification forthe stances

taken by Portugal may be disputed. But as for breaches of international - 13 -

law, certainly not! And withouta breach there can be no international

responsibilityof the State. And without responsibility,no reparation

nor - to use a broader term - any "remediesn (this sounds better in

English than the somewhatuncouth French term "remèdesm).

It is therefore only as a quite subsidiary argument, Mr. President,

that 1 shall now show that, in any event, the Court could notgrant

Portugal the "remedies"it claims.

II. The Court could not grant Portugal the

"remedies a it reques ts

11. Therefore, Mr. President, it is also solely for the sake of the

discussion that 1 am proceeding onthe basis that Australia could be held

responsible forthe wrongful actswith which Portugalcharges it -

quod non. The negotiation, conclusion and application of the

Australo-IndonesianTreaty of 11 December 1989 would, according to that

argument, be wrongful, as would the exclusion of any negotiationwith

Portugal, and that will be my starting-point.

This State is asking you tc draw three sets of consequences £rom

this :

- first, it is invitingyou to "adjudgeand declare" that this isso, and

Professor Dupuy explained to us last week that the issue was

"satisfaction"(CR 95/5, p. 38);

- also, it is asking for "reparation",by procedures it leaves it for the

Court to determine - but a contrario. it can be deduced fromthe first

three submissions that what is concerned is not meresatisfactionbut

compensation,failing whichthe fourth submissionwould duplicate the

first three, and, here too, Professor Dupuy has informedus, this in

fact is the real object of the fourth Portuguese submission (CR 95/5,

pp. 44-46) ; - 14 -

- lastly, Portugal would like tohave you enjoin Australia to desist from

these activities which Portugal regards as wrongful and to guarantee

that there will be no repetition of them; that is its fifth

submission.

Taken in isolation,each of these requests is problematic.

Furthermore,taken together, they give rise to serious objections.

12. Let us begin at the end: the cessation and the guarantee that

there will be no repetition.

Professor Dupuy referred ironically to the fact that Australiasaw,

in these requests, invitations to the Court to make actual injunctions to

a sovereign State (CR 95/13, pp. 69-70), and to invoke your Judgmentsof

1980 and 1986 in the cases concerning United States Diplomatic and

Consular Staff in Tehran and Military and Paramilitary Activities in and

against Nicaragua (ibid. .

It is quite correct that, in these two Judgments, the Court decided

that the respondent States, Iran in the former case, the United States in

the latter, should put anend to theactions which it had found were

wrongful. But there are at least three differencesbetween these cases

and ours :

- in the first place, Portugal not only wishes the Court to prohibit

Australia £rom continuing the present actions of which it accuses it,

but also to enjoin it not to sign an agreement of the same kind in

future, a request quite clearly contrary to the very principle of the

actualizationand individualizationof responsibility,of which

incidentallyPortugal makes such a big issue (cf. CR 95/12, p. 41);

- secondly, Portugal completelydistorts the facts of the case by calling

upon Australia to refrain "from any act relatingto the explorationand

exploitation of the continental shelf inthe area of the Timor Gap or - 15 -

to the exercise of jurisdiction overthat shelf, on the basis of any

plurilateral titleto which Portugal ... is not a Party"

(Submission 5 (b)); this overlooks the fact that Australia considers

that the title which is the basis of itsrights over the continental

shelf in question is in no way "plurilateral"as Portugal curiously

terms it, but purely and simply "unilateral"in that it is a matter of

an "ipso jure title which internationallaw attributes to the coastal

State in respect of its continentalshelfM (North Sea Continental

Shelf, Judgment, 1.C.J. Reports 1969, p. 31; see also Aegean Sea

ContinentalShelf, I.C.J. Reports 1978, p. 36);

- furthermore,and thirdly, even if the Australo-IndonesianAgreement did

from thes basis of Australia's rights, Portugal totallyoverlooks an

element which isnevertheless fundamental,and which was entirely

absent from the cases on which you ruled in 1980 and 1986.

The actions of which Iran onthe one hand and the United States on

the other were accused were purely unilaceral. In this case, on the

contrary, it is a treaty concludedwith a third State which liesat the

heart of the dispute -moreover, it is in order to "by-pass" this third

State - Indonesia, to name it once again (but 1 have stopped counting,

Mr. President!), that Portugal refersin the abstract to "any

plurilateral titlel',whereas what ic is getting at by using this
3 22

expression is actually the Australo-Indonesian Treatyof 1989.

13. Here is clear evidenceof the inadmissibilityof this request.

To put it plainly, wha: it amounts to is demanding of Australia thatit

should denounce or refrain from performingthe treaty which bindsit to

Indonesia.

1 am well aware - counsel of Portugal have explainedit to us time

and again (see CR 95/6, p. 39 and CR 95/13, pp. 54-55) - that Ouropponents do not wish to hear any mention of conflicts of obligations,on

the pretext thatit is Australia itself which allegedly placeditself in

that situation. But this is not the issue, which is rather that we do

not see why the Court would enjoin Australia not to act on the basis of a

"plurilateraltitleu - the Australo-Indonesian Treatyof 1989 - when

Portugal also seeks to prevent the Courtfrom ruling in addition on the

validity of that title. Onething or another: either this titleis

valid and it is impossible to see how the Court could enjoin Australia to

breach its undertakings; or it is not - but the Court must find that to

be so, and, in order to do so, inevitably,rule on the interests of a

legal nature of Indonesia; 1 shall have occasion to revert to this

Furthermore, it is because the problem was posited in these terms

that, in its Judgment of 9 March 1917, the Central American Court of

Justice refused to uphold El Salvador's claims seeking a declaration of

nullity of the Bryan-ChamorroTreaty or Nicaragua's obligationto abstain

from performing it:

"Prononcercatégoriquementla nullité du traité
Bryan-Chamorroou, à défaut, recevoir l'exception
d'incompétence,reviendrait à statuer sur lesdroits d'un autre

signataire du traité, sans avoir entendu cetteautre partie et
sans qu'elle-mêmeait accepté la juridictionde la Cour." (AJIL,
1917, p. 729) .

14. Portugal sweeps the objection aside by arguing that Indonesia is

adequately protected by Article 59 of the Statute of the Court (see

CR 95/13, p. 53). But this is doubly false.

In the first place, such an argument leads to absurd results. Let us

suppose, Mr. President (here 1 become Portugal), that Portugal succeeded;

let us suppose that you ordered Australianot to rely on the

"plurilateraltitle" which permits it to take part in the explorationand

exploitationof the continental shelfin the area of the Timor Gap - in - 17 -

short, not to perform the treaty bindingit to Indonesia; let us also

suppose that Indonesia acceptedyour jurisdictionand brought an

application against Australia. What would happen? Inevitably, you would

reject the Indonesian application - thus rendering explicit the argument

which Portugal, for the moment, is asking you to close your eyes to.

This clearly shows that what the Applicant is asking you to do is to

distort the meaning andscope of Article 59. And it also reveals that,

most definitely, Indonesia is its target.

Secondly, it is legitimate that Article 59 should operate in cases in

which the respondent State and thirdStates find themselves in a similar

situation, for in that case the Court does not rule explicitly on the

responsibilityof the latter; since the same causes produce the same

effects one might imagine that these other States would be declared

responsible on the same grounds, were their conductto be judged. That

is a strong probability,but nothing more. This was the situation in the

-17 4 case concerning Military and Paramilitary Activities in and against

Nicaragua (1.C. J. Reports 1984, p. 431) ana the case concerning Certain

Phosphate Lands in Nauru (I.C. J. Reports 1992, p. 261) , for example, and

it is what motivated you to invoke Article 59 on those occasions. But it

is anything but that where, as in the Monetary Gold case or in the case

before us, a finding of the responsibilityof the third State is an

indispensableprerequisite for a finding of the responsibilityof the

respondent State. In its Judgmentof 1954, the Court put it very

clearly :

"It is true that, under Article 59 of the Statute, the
decision of the Court in a given case only binds the parties to

it and in respectof that particular case. This rule, however,
rests on the assumption that the Court is at least able to
render a binding decision. Where, as in the present case, the
vital issue to be settled concernsthe international
responsibilityof a third State, the Court cannot, without the consent of that third State, give a decision on that issue
binding upon any State, either the third State, or any of the
parties before it." (I.C.J. Reports 1954, p. 33; emphasis
added) .

15. Furthermore, these objections do not concern Portugal's fifth

submission only. They also apply, at least as forcibly, to its second

and third claims.

Moreover, the second is worded in the same 81tangledn fashion - 1

insist on this word, it is one of the characteristicsof the case

concocted by Portugal - as the fifth. In that submission, it is also a

question "of a plurilateral title towhich Portugalis not a Partyn - but

here the procedure is al1 the less misleading for the fact that the

"plurilateral title" is expressly mentioned, a few lines earlier on; for

it is a matter of the "Agreementof il December 1989" and most decidedly

so. It is the effects of that which Portugal isasking you to

neutralize - and 1 believe 1 have show that you cannot go along with it

on this point.

16. Furthermore,Portugal's first three submissions raise other

objections.

It is a matter, we have been told (CR 95/5, pp. 38-39), of
?25
~satisfactions". So be it. But satisfaction is just one of many forms

of reparation. It cannot thereforebe justified unless it is a question

of repairing a damage. This is the case, Portugal tells us (ibid.):

Portugal and the people of East Timor have suffereda "legal prejudice"

by virtue of the conclusion of the 1989 Agreement, which has infringed

- "the right of the people of East Timor to self-determination,
to territorial integrityand unity and its permanent
sovereignty over its natural wealth and resources ..."
(Submission 2 (a)) - "the powers of Portugal as the administeringPower"
(Submissions 2 (b) and 3) ;

- and it has "contraven[ed]Security Council resolutions 384 and
389" and, more generally,disregarded "the binding character
of the resolutionsof United Nations organs that relate to
East Timoru (Submission 2 (c)).

This latter submission,the one relatingto the resolutions, can be

eliminated straightaway: Portugal may well be one of the "interested

parties" concernedby these resolutions,but it has no mandate to set

itself up as the guardian of international order, and as such any

failure - if there were any at al1 - by Australia to comply with these

resolutions has perhapscaused damage to the United Nations (which,by

the way, has not complained aboutit, has not noticed it ...), but

certainly not to Portugal.

As regards the two other heads of damage invoked by Portugal, 1 must,

once again, point out the extremely artificial nature of the edifice

thought up by Portugal. Where in any case is the damage when Portugalis

unable to exercise the rights it claims to be deprlved of - either to

itself, or to the Timorese peoplewhose causeit champions today? Once

again - and we always come back to this - it is not the negotiation,

conclusion or performanceof the Australo-Indonesian Treatyof

11 December 1989 which lie at the root of the prejudice of which Portugal

cornplains; but rather, and quite clearly, two elements, which

incidentally are linked, in which Australiahas absolutely no part:

- first, Portugal'swithdrawal from East Timor at the endof August 1975;

in other words, four months before the Indonesian invasion; a

withdrawal whichis no more than the penalty for its poor colonial

behaviour (if colonial domination can ever be "good", its own - as it

now acknowledges - was particularly abominableanyway) ; - 20 -

- second, of course, the Indonesianmilitary invasion itself, on

7 December 1975, four months later.

It is the conjunction (and the succession - in that order) of these

two events which lieat the origin of Portugal's eviction from

East Timor; it is these two events and these alone which led to the loss

by that country of any capacity to act on behalf of that territory.

Australia hadno part in it whatever (despitethe accusationswhich

Portugal made during the first roundof the oral hearingsbut happily did

not repeat last Monday). This situation - which is a fact, a "given",a

donnée, - is due, and is due exclusively, to the action of a

third party - which cannotbe appraised in this Court - and of the

Applicant State itself, which it therefore il1 becomes to demand

reparation fora damage resulting £rom a situation to whose creation, in

fact, it largely contributeditself, always supposingthat this damage

actually exists.

17. Two further remarks on thispoint, Mr. President.

Firstly, 1 was quite shocked, last Monday, to hear
. u L
Professor Pierre-MarieDupuy take up an argument that counsel of Portugal

had already set out before (see CR 95/2, pp. 14-15), but less immodestly.

According to my opponent, it is regrettable to seek "at al1 costs to

foist ont0 post-1974 Portugal the colonial misdeedsof the régime which

it actually overthrewu (CR 95/13, p. 67). What a strange idea! As far

as 1 know it is States, not governments,not even political régimes,

which incur international responsibilityand the principle of the

continuity of the State with respectto internationallaw totally

precludes a successor régimefrom being ableto play the Pontius Pilate

in order to relieve itself of the responsibilitiesof the régime it has

replaced. Forma regiminis muta ta non mutatus ipsa civitas (see, for - 21 -

example, Charles Leben, "Les révolutions en droit international : essai

de classificationet de problématiquegénérale", in SFDI, Colloque de

Dijon, Révolution et droit international,Pédone, Paris, 1990, p. 13) .

And in order to obscure this well-establishedprinciple, it is not

enough to take refuge behind a fictitious example like my friend

Pierre-Marie Dupuy last week, appearing as he did to claim that the

South Africa of Nelson Mandela could hide behind its new democratic

legitimacy in order to free itself from the responsibilityincurred in

Namibia by theSouth Africa of apartheid. It is, on the contrary, the

grandeur of the true democracies that they take upon themselvesthe

heritage of history. 1 do not fora moment dispute the fact that the

Portuguese Republic today ranks itself among the true democracies; but

why does it not take that step to its logical conclusion, like others,

such as Germany or Japan, have not hesitated to do? Why does it seek to

rid itself of its own faults by "shiftingthe blameu ont0 others which,

like Australia in the presentcase, have no part in the situation for

which it is itself (1 am still speakinc of the Portuguese Republic, the

fittingly repentant heirof the dictatorship)one of the parties

principally responsible? Who is playing at "it wasn't me, it was him",

the "himu in this casebeing the Portuguese "ancien régimeqq?

The second remark 1 wanted to make, Mr. President,is that in

internationallaw, as, to the bestof my knowledge, in al1 contemporary

legal systems, the true author of the damage is consideredto be the

party who is at the origin of the cnain of causality, of what is

sometimes called the "transitive causality"of damage (see, for example,

Brigitte Bollecker-Stern,Le préjudice dans la théorie de la

responsabilité internationale, Pédone, Paris, 1973, pp. 186-187) . - 22 -

It is not the song mentioned by Professor Crawford lastweek (you

remember: "1 danced with the man who danced with the girl who danced

with the Princeof Walesn (CR 95/8, p. 60)) which this calls to mind

most, but rather the famous French song "Tout va très bien, Madame la

Marquise ..." ("Everythingis fine, your Ladyship"), in which one has to

go right back to the suicide of the Marquisto find the actual cause of

the death of the grey mare ... Likewise here, if there is any damage to

the Timorese people, the true cause, the prime cause, must be sought in

the catastrophic Portuguese colonial administration, whicr hesulted in

Portugal's withdrawal, then the invasion by Indonesia, which substituted

its effective control of the territory for that of the former colonial

power, which thereby lostthe capacity to conclude and to apply - they go

hand in hand, as 1 showed lastweek and it was not refuted - treaties

relating to the territory.

029 18. In these circumstances,Menbers of the Court, it seems difficult

to see how you could grant anyreparationwhatever, in whatever form - be

it satisfactionor compensation - to Portugal: if damage there is, it

originates in the action of a third party and of the Respondent State

itself; that State should thereforebe the last to cal1 upon the Court

to make "declarations"which would relieve it, at little cost, of its own

responsibilitieswithout returningto the people of East Timor the

effective enjoyment of the right of peoples to self-determination,of

which it has been deprived, in part at least, by the excesses of the

former colonial Poweritself.

These remarks apply, of course, to Portugal's first submissionwhich,

moreover, as Mr. Gavan Griffith pointed out last Friday (CR 95/11, pp. 55

and 70) and again this morning, is purposeless since the right of the

people of East Timor to self-determination is not disputed by Australia, - 23 -

which neverthelessbelieves that, as things stand, the return of the

former colonial Power would not be the best way of guaranteeing the

exercise of that right.

F'urther,as its Agent said this morning, Australia well understands

that it might be "tempting",if 1 may put it like that, for the Court to

make a declaration of the kind Portugal invitesit to make by its first

submission. But it very stronglyhopes, Members of the Court, that you

will not usuccumbuto this temptation. The function of your

distinguished Court "is to decide in accordance with internationallaw

such disputes as are submitted to itu; it would be paradoxical if, by a

declaration to no purpose, you were to grant satisfactionto Portugal on

a point over which, precisely, there is no dispute between the Parties.

It is quite another matter if you were to find in the reasons foryour

judgment that the Parties agreed on thispoint, but, if you make it an

element of the operative part of the judgment, regardless of whether that

is your intentionor not, such a decision would looklike an expression

of a reproof which, in al1 sincerity,Australia does not believe it has

deserved.

This leadsme to a second observation on the same lines. Portugal

urgently invitesyou, Members of the Court, to make "a new ...

contributionto the law of self-determination"(CR 95/13, p. 75; see

also CR 95/2, p. 47). Australia wishesto moderate this heady

enthusiasm. If your judgment makesit possible to clarify certain points

in the still controversial fieldof the right of peoples to

self-determination,so much the better! Even if, when it suits it,

Portugal marvelsat the precision of the rules which are said to stem

from this principle (see CR 95/3, pp. 12-13). But such a development

cannot be an end in itself; what matters is not to "fil1 in the blanksu - 24 -

of a chapter of internationallaw, however importantit may be, but to

deliver a judgment, a judgment based on sound but practical reasons. Our

opponents sometimesseem to forget that it is the honour of a State which

is at issue ... and that State asks you to reject Portugal's submissions.

To do that, it does not think that the Courthas any need to transform

itself into the collective author of a new treatise on internationallaw.

19. 1 have just given the many reasons why Nsatisfaction"in the form

of a declaration by the Court would notbe appropriate: there is no

damage and, in any case, if damage there be, it is caused by the conduct

of Indonesia and Portugal, not Australia. Thisapplies, a fortiori, to

the fourth submission of Portugal, in which thatcountry requests

"reparation ... in such form and marner as may be indicated by the Court,

given the nature of the obligationsbreached". What is more, since the

reference here is to reparation for material damage, the damage invoked
031
by Portugal is, on its own admission, future,contingent and uncertain

(cf. CR 95/5, pp. 44-46). It is just the kind of damage that does not

qualify for reparation in internationallaw. The Agent of Australia

referred to this last Friday (CR 95/11, pp. 66-69).

It therefore suffices to mention in this respect one further point:

the Court isnot, here, in the same position as it was in the earlier

reparation cases withwhich it had to deal, whether the Corfu Channel

case (I.C.J. Reports 1949, p. 26) , the Hostages case (I.C.J. Reports

1982, p. 45) or the Military Activities case (I.C.J. Reports 1986,

p. 149). In al1 those cases, it decided to fix the amount of reparation

at a later stage; but that was possible only because the damage was

certain and "computable". Nothing of the sort applies in the present

case: the damage is indeterminateand indeterminable. - 25 -

20. Hence, Mr. President and Members of the Court, none of Portugal's

submissions appearsto be either well-founded or even admissible.

Everything combines to invalidate them: the unreality of the damage

claimed; Portugal'sown responsibilityin the occurrence of the damage,

or that of a third State, absent from the proceedings and whose conduct

cannot, for that reason, be judged; or these three causes taken together.

Well, Mr. President, 1 have reasoned, in this latter part of my

argument, like Portugal. 1 mean "with ifs and andsu: if Australia had

committed the breaches of internationallaw held against it, could the

submissionsof the Applicant State be entertained? The answer is no. It

is al1 the more so if, by abandoning the "ifs", we concern ourselves with

the real case; in which event, it will be observed, as 1 think 1 have

shown in the first portion of this statement, that Australia hasnot

committed theinternationallywrongful actsof which it is accused. No

breach and, therefore, no responsibility. No responsibilityand,

therefore, no reparation.

For that matter, you wili not, I think, have to ponder these issues

of substance, in any case not from this angle: Portugal'sApplication is

inadmissibleand Australia believesthat you lack jurisdiction to deal

with it. At the very most, since here the merits of the case and the

preliminary objectionsare particularly closelylinked, you will have to

find that the reasoningon the merits that theApplicant State is

inviting you to follow would oblige you to rule on the interestsof a

legal nature of an absent State. This observationbrings me to my second

set of arguments, which will be shorter, and to an examination of the

Portuguese claims in the light of the principle of consent to the

jurisdictionof the Court. THE PORTUGWSE CLAIMS FROM THE STANDPOINT OF THE PRINCIPLE

OF CONSENT TO THE JURISDICTION OF THE COURT

1. Allow me first of all, Mr. President, to reassurethe worried co-

agent of Portugal who made, on this point, an appeal to "fair procedureu

by Australia (CR 95/13, p. 43). 1 do not have any fresh argument up my

sleeve that we might havekept to ourselves until the last minute! On

the other hand, may Mr. Galvao Teles allow us, too, to be "stubborn"and

tell him, amicably but firmly, that it is Portugal that isdetermined to

*lconfuse thingstT(see CR 95/13, p. 45), thus obliging us to revert to

this importantpoint despite the lengthy treatmentthe parties have

already devoted to it.

1 understand too, Mr. President, the candid perseverance withwhich

Portugal is bracing itself against its waverinc gertainties: assailed by

remorse as belated as it is commendable regardingthe people of Timor, it

had to come up with something spectacular. The political organs of the

United Nations did not seem receptiveto its concerns; year after year

the General Assemblydefers considerationof the question; the Committee

of 24 itself gives it but perfunctory attention; and the Security

Council has taken no interest in it at al1 for 20 years. There remained

the world Court, but with a hefty obstacle - Indonesia,Members of the

Court, does not accept your jurisdiction. Hence the idea arose - 1 do

not really know how, but one can imagine - of finding a more accessible

victim. So Portugal opted for Australia,a far-away State with which it

maintains cordialbut somewhat neutralrelations,which is very directly

concerned by what goes on in the region of the world where East Timor is

also located, and a State which, by-contrast,has accepted the optional

clause in Article 36. - 27 -

Very quickly of course, Portugal, which, as we have been able to

observe in the last three weeks, has no lack of skilful counsel, realized

that it was liable to come up against majorobstacles. And, first of

all, this one: Australia is not only, like many other countries, a

treaty partner of Indonesia; it is also a coastal State which, as such,

has rights. No matter: an attempt wouldbe made to sidestep the issue

by specifying that the Court is not beingasked to rule positively on a

delimitation,but to condemn the provisional arrangement concluded with

Indonesia, for want, as it happens, of delimitation. But this would lead

on to another problem: by this expedient, Indonesia wouldinevitablybe

reintroduced into the "legal landscape"unless, instead of being couched

in these positive terms, the question were put in the negative. And this
934
is assuredly how Portugal cameto seise the Court of an applicationnot

against Indonesiabut against Australia; not of submissions directed

against recognition of the former by the latter, but against disregard

for the supposed rights of Portugal; of a request not for delimitation

but, 1 would Say, for "non-dellmitation".

This presentation is sufficiently complicatedand tortuous to be

misleading, on a first reading. But the impression does not withstand

analysis, and al1 the adroitness of the counsel of Portugal fails to

conceal the evidence: not only is Indonesia infact targeted, but the

Court cannotanswer the artificial and tortuous questions put by

PortugallsApplication unless it rules, first and necessarily, on the

responsibilityof Indozesia - and Portugal finds in itsway the cardinal

principle of consent to the Court's jurisdictionand, more precisely,the

principle which, in a nutshell, we have been calling "the Monetary Gold

principle" at this bar for the pastthree weeks. - 28 -

2. Mr. Galvao Teles tells us that "Portugaland Australia agreeon

the meaning of theMonetary Gold rule" (CR 95/13, p. 43). Since he says

so, 1 am quite ready to believe him - and 1 have nothing furtherto Say

about the analysis of that rule in abstracto. On the other hand, what 1

am certain of is that the parties are clearly not agreed on the

implicationsof the principle in the present instance.

1 shall show this by following, stepby step (but in a different

order) the last speech of Mr. Galvao Teles, who will thus be unable to

accuse me of "unfairprocedure", even though 1 may allow myself to touch

briefly on some of last Monday's statementsby other of Portugal's

counsel .

Our learned - and impetuous - opponent startedoff with a bold

assertion by saying that "the proof that there isa distinctionbetween,

on the one hand, legality and responsibilityand, on the other, validityu

lay in the fact thatProfessor Crawford and 1 had, in the first round of

oral pleadings, shared out Our work in this way (CR 95/13, p. 45). To

tell the truth, such a division was not easy and we adopted it only to

follow Portugal on its own ground. Furthermore,what Mr. GalvZo Teles

forgot to Say is that we both - 1 mean James Crawford and myself -

reached the conclusion that, as it so happens, such a distinction is, in

the present instance, completely artificial(CR 95/8, pp. 39 and 66-67).

We are still not, in truth, convinced of the opposite. Let us

straightaway turn tothe begiming of the second part of the statementof

Mr. GalvZo Teles, in which he formulates "three preliminary

propositions".

"First proposition: the responsibilityarising from the
unlawfulness of the conclusion and performance of a treaty is one
thing; the invalidityof a treaty is another." (CR 93/13, p. 57.) - 29 -

The only "proof" our opponentgives is Article 30, paragraph 5, of

the Vienna Convention on the Law of Treaties. 1 am not sure that 1

clearly discern the relationship, but never mind. In the abstract, we

agree on this point with Portugal; it is true that the wrongfulness of

the conclusion and performance of a treaty may, in some cases, be due to

factors other than the invalidityof the treaty itself. Likewise, and

this is the

"Secondproposition: internationalresponsibilitymay be
incurred alike bythe conclusionand performance of a valid treaty

and by that of an invalid treaty.I1 (Ibid.,p. 58.)

That is also true, Mr. President; but it applies, once more, only

in some cases - and that with which we are concerned is not one of them.

Why would the conclusion and performance ofthe Treaty of

11 December 1989 engage the responsibilityof Australia? Not because it

supposedly committed itselfwith a "wrongpartyu, a "mauvais

cocontractantIn.The PortugueseReply is categorical in stating that"the

absence of capacity (capacité)or entitlement (légitirnation) of

Indonesia"to conclude the treaty is not lnvolved (PR,p. 211,

para. 7.201, and the Portuguese counsel have never disputed this

principle. Had they done so, incidentally,they would have collided

head-on and openly with the Monetary Gold principle.

1 shall observe in passing that, while the issue is not with whom

Australia dealt, it cannot, either, be with whom it did not deal. As 1

said last week, without being challenged,these are two sides of the same

coin (see CR 95/8, p. 14); the conduct that could be held against

Australia is not, and cannot be, that it did not conclude and negotiate

with Portugal - the conclusionof a treaty is a faculty, not an

obligation - but that it negotiated and concluded with Indonesia. Yet

Portugal expressly States that this is not impugned. - 30 -

The conclusion is self-evident,Mr. President: it is the treaty

itself which, according to Portugal,is not valid and this alleged

invalidity,entailing the wrongfulnessof its negotiation, conclusionand

performance, supposedly foundsthe responsibilityof Australia.

That, at least, very clearly establishes one thing: the first two

MpropositionsNof Mr. GalvZo Teles that 1 quoted just now may, no doubt,

be regarded as correct in the abstract, but they are devoid of any

practical effect in Our case. Whereas, ever since the start of these

proceedings, Portugal has been proclaiming thatthe invalidity of the

treaty is not the point at issue, it is indeed the only factor which, in

Our case, could entai1 the wrongfulness of Australia's actions; no

matter then that, in certain circumstances,there may be wrongfulnessof

treaty-linkedactions without the treaty being invalid. That is not the

case here .

5. Furthermore,the counsel of Portugal arewell aware of this and it

caused them, last Monday, to draw £rom that clear observation (which

nonetheless took some four years to make its impact) two inferences.

Firstly, the Treaty of il December 1989 is supposedly invalid - and

therefore entails Australia's responsibility - because - and, finally,

only because - it allegedly concernsthe exploitation ofnon-renewable

natural resourcesbelonging to the Timorese people. Thisdiscovery being

made, al1 Portugal's counsel emphasizeit. Professor Dupuy says: "It is

an agreement [he is of course speakingof the 1989 Treaty between

Australia and Indonesial concerning exploitationof the non-renewable

natural resources of the continental shelf" (CR 95/12, p. 36, italicized

in the original). Professor Sérvulo Correia is also emphatic,referring

to "la violation du droit du Portugal de s'acquitterde ses obligations

et responsabilités ensa qualité de puissance administrante,qui
inclut, au minimum, le droit de conclure des traitéssur des
questions qui se rapportent directement à des ressources naturelles
importanteset non renouvelables" (CR 95/12, p. 73);

as is Professor Higgins, with this:

"Le Portugal fait grief à l'Australied'avoir agi illicitement
en négociant, concluant et mettant en oeuvre un traité en vue de

l'exploitationde ressources naturelles non renouvelables appartenant
au peuple du Timor oriental." (CR 95/13, p. 27.)

That is what is said to substantiatethe non-validity of the 1989 Treaty

and, on the rebound, the wrongfulnessof the actions imputed to Australia

and - still as a consequence - its responsibility.

6. Portugal draws from this very new analysis a second inference.

Mr. Galvao Teles expresses it in the form of a "third propositionn,

coming in addition to the other two 1 quoted just now: "the invalidity

of a treaty is one thing; the judicial declarationof such invalidity is

another" (CR 95/13, p. 58) .

In other words: "Yes, that is true, the 1989 Treaty between

Australia and Indonesia is not vaiid - tnis 1s Portugal speaking - but

the Court has no need toaeclare i: in tne operaclve part of its

Judgment".

By al1 means! But this has absolutely nothingto do with the

question of concern to us, the applicabilityof the Monetary Gold

principle. Nor would the Court, in 1954, have had any need to make of

the rights and obligations of Albania an elementof the operative part of

its Judgment; on the other hand, it could not have been avoided finding

on the possible responsibilityof that country whengiving the reasons

for its Judgment; that was an essential ground, just as, in the present

instance, the question of the possible invalidity of the 1989 Treaty

constitutesa prerequisite for consideration of the merits of the - 32 -

Portuguese submissions. And, for the same reasons as in 1954, the Court

cannot proceed in that way since, in doing so, it would be determining a

matter that "concerns the [international]responsibilityof a third

039
Statet1,which it canriotdo nwithout the consent of that third State"

(I.c.J. Reports 1954, p. 33).

7. Portugal then begins a prudent withdrawal:laittakes two parties

to make a treatyll,says Mr. Galvao Teles, asking why it should be

necessary for the Court to rule, at the same time, on the responsibility

of both one and the other; we have a situation of concurrent

responsibilities,identical with that involved in the case concerning

Certain Phosphate Lands in Nauru (CR 95/13, pp. 59-60).

Allow me to observe firstof all, Mr. President,that, if that were

so, it would be difficult to see why Portugal has applieditself so hard,

so grimly even, for four years - since the filing of its Application up

to and including the first round of its oral pleadings - to trying to

prevent the Court from ruling on the validity of the Treaty between

Australia and Indonesia.

This attitudewas in fact entirelyrational. Contrary towhat the

adroit CO-agent of Portugal would have had us believe, the present case

is only remotely comparableto that concerning Nauru; in the Nauru case,

the validity of the Mandate and then of the Trusteeship Agreementwas in

no way a point at issue; only its application,by Australia, as the

effective administratorof the territory,was challenged. That country

did not manage to convince the Court that there was a link not only

"temporalbut also logical", to echo your own words, between any

responsibilitythat it might itselfhave and that of New Zealand and the

United Kingdom (I.C.J. Reports 1992, p. 261) -and 1 know a counsel who

was much aggrieved about that! - 33 -

Things are quite different here. As 1 have shown, and as Portugal

now agrees, it is the validity of the Treaty itself which is at the heart

of Our debate. A treaty -unlike the colonial administration activities

that were at issue in the Nauru case - is not a unilateral act; it is

only rendered possibleby the concurrentwills of two States at least.

That being so, the "logical link" that the Courtdid not detect in 1992,

between the actions held against Australia andthose of its partners, is

present here in an evident manner: it is through the concurrence of

their wishes, recorded in the 1989 Treaty, that Australia and Indonesia

together originated the allegedly wrongful acts which are todayheld

against the former alone.

What is more - as 1 said, without it being challenged,at the hearing

of 6 February - it is Indonesia,and not Austraiia, that commanded the

natural resources said by Portugal to pertain to East Timor. So if a

State can be accused of availing itself of them unduly under the Treaty

of il December 1989, Indonesia wouldassuredly be the culprit, not

Australia (CR 95/7, p. 81; see also CR 95/11, p. 21). It is Indonesia

that allegedly "ceded" to Australia rightsnot belonging to it. And only

if the Court determines that - beforehand - could it, as appropriate and

in a second phase, rule on any responsibility lyingwith Australia. If

such there be, it is well "down the lineu from that, also contingent,of

Indonesia.

8. 1s it really necessary, in these circumstances, torevert to the

first part of the reasoning offeredby Mr. Galvao Teles last Monday?

Yes, it probably is, so as to leave nothing in thedark; but bearing in

mind that the real issue the Court is required to decide is the validity

of the 1989 Treaty betweenAustralia and Indonesia,and that the - 34 -

'actions" on which the Portuguese CO-agent initially sought to focus

attention cannot in fact be separated £rom them.

1 shall not, Mr. President, launch into a refutation of the idea

advanced by Mr. GalvZo Teles that there is a difference between

"propositions",on the one hand, and "significanceu,on the other - for

three reasons: first, because 1 failed to understand it; second,

because time is going by; and, third, because my opponent askednot to be

told that thedistinction was artificial (CR 95/13, p. 50). And 1 do not

wish to vex Mr. GalvZo Teles by doing so.
rr
On the other hand, he will, 1 think, excuse me for telling him that 1

do not in the least find that theother distinctionhe advances between

rights erga omnes and rights erga singulum does anything to "clarify

mattersu, as he says (ibid.),in any case certainlynot as regards the

Monetary Goldprinciple, with which it has absolutelynothing to do. But

since he seems to have abandonedthe idea of drawing any inferences

whatever £rom this, 1 venture, Members of the Court, simply to refer you

to my arguments of 7 February on this point (CR 95/8, pp. 31-36).

The other two issues taken up by the CO-agent of Portugal seemto me,

on the other hand, to deserve more attention: these are the question of

the "givens"and of some kind of acknowledgementAustralia is alleged to

have made to the effect thatpart of the Application, at least, is

admissible. 1 shall Say a few words, in order, on each of these two

points.

9. Firstly, the famous argument of the "givens",the alpha and omega

of the Portuguese contention, the magic formula that would remove al1

obstacles in Portugal'sway and, to begin with, the nonetheless

forbidding one representedby the Monetary Gold principle. "We therefore believe - said Mr. GalvZo Teles - that the
designation of Portugal as the Administering Power of East Timor,
derived as it is £rom the United Nations resolutions, is sufficient

to establish the unlawfulness of the actions of Australia precisely
through the infringement of the rights of Portugal." (CR 95/13,
p. 47.)

Admirable is the power of faith!

The United Nations resolutions - which, as Professor Bowett reminded

you this morning, have not the remotestconnection with "the actions of

Australia" - would nevertheless suffice to "establish [theirl

unlawfulness"

Such assertions raise at least two sets of objections. The first

concern the actual contentof these so-called "givens", which, to tell

the truth, have only a distant connection with Our case, if indeed any

connection at all. The second relate to the scope of the resolutions

before the Court.

With regard to the second point, argued relentlessly by Portugal, it

carries absolutely no conviction; you are required, it sesms, simply to

apply the resolutions which Portugal cites without being ableto give any

thought to their scope or their validity - simply because they are said

to be "givens", a magic word if ever there was one.

While Mr. GalvZo Teles is highly discreet (and, 1 feel, somewhat

confused) on this point (see CR 95/13, p. 48), Professor ~osalyn ~iggins,

for her part, is frankly bold and - 1 Say this with al1 the amicable

regard 1 have for her - totally contradictory, since she asserts two

things successively: at one point she says that if the dispute was

between Indonesia and Portugal, that country, Indonesia as 1 understand

it, could, in this Court, challenge the validity of the resolutions

adopted by the United Nations, and that it would be for the Court to

assess that validity (CR 95/13, p. 17); at a later point, however, she - 36 -

maintains thatif it is Australia which asks the Courtto assess that

validity, the Court cannot do so and must accept those "givens" (ibid.,

043
p. 18). 1s this really "cette attitude de bon sens" proclaimed by my

distinguished opponent (ibid.,p. 19) ?

10. Let us now move on to the actual substance of these "givensu.

Professor Rosalyn Higgins (CR 95/13, pp. 27-33) and Mr. ~alvao Teles

(ibid.,p. 47) assert that the mere mentions of Portugal as the

Administering Powerand of East Timor as a non-self-governingterritory

are sufficient to giverise to an impressive set of legal consequences,

including theunlawfulness of the action of which Portugal accuses

Australia. ProfessorBowett showed this morning that this is not the

case and 1 see no point in reverting to the matter, except to point out

once more that thereis a manifest non sequitur in the Portuguese

argument: why should themere fact that Portugal is designated as the

Administering Power orEast Timor as a non-self-governingterritory

constitute "givens"which suffice to establish the responsibilityof

Australia for havingconcludeci, with Indonesla, a treaty relatingto the

exploration and exploitation of what the two States regard as theirown

natural resources? Thereupon Professor Dupuy intervenes to give us the

missing link: that is so, he tells us, solely because the Treaty is

invalid since it implies, and is based on, the de jure recognitionof the

Indonesian presencein East Timor. But that finding, Members of the

Court, you cannot make; it would take you far beyond what is permitted

by the principle of consent to your jurisdiction.

11. However, with the last "propositionw,the last "resultuwhich my

kind opponent, Mr. GalvZo Teles, saw fit to put forward, he would have us

understand that, even if al1 the resolutions arenot "givens",at least

some of them are. - 37 -

Australia is said to have acknowledged,through myself, "that no

other party to the proceedings would be necessary, at least for the Court

to rule on the contraventionby Austraiia of Security Council

resolutions 384 and 389" (CR 95/13, p. 52). Mr. Galvao Teles somewhat

strains the meaning of what 1 said, since neither in the passage he

quotes from my previous speech (CR 95/13, p. 51, quoting CR 95/8,

pp. 29-30), nor in the lines preceding or following that quotation, did 1

mention any particular United Nationsresolutions. On the other hand, it

is true that 1 considered - and 1 still consider (we are obstinate on

this side of the bar!) - that if (ah, the Portuguese "ifsu!),that if,

then, Australia had violated the rightsof the Timorese people -

resolution or no resolution,by the way - its international

responsibilitycould be engaged. But 1 also said - and 1 still maintain

- that, for this to be so, Portugal would haveto state what precise

conduct of Australia, regardless of the actions of Indonesia, constituted

an internationally wrcngfulact and what precise rule it contravened.

But 1 found - and 1 still find - that Portugal provesquite unable to

specify any such conduct.

Here again, Mr. President, Portugal argues inthe abstract - by means

of "ifs" . Yes, IF the case wasotherwise than it is, Australia would

perhaps be responsible. Yes, IF the case was otherwise than it is, the

Court couldperhaps declare that responsibilityto exist. But the case

is what it is; the facts - 1 mean the real facts - are what theyare,

not those "reconstructed"by Portugal (for if we are "deconstructionist"

(CR 95/13, p. 8), the Portugueseteam is terribly ~reconstructionist"and

inventive). But we must not play about toomuch with the facts, the

Court's jurisdictionstrictly depends on them.945 12. 1 pointed out last week that Our Portuguese friends sufferfrom a

split personality (CR 95/8, p. 16). 1 fear that this legal schizophrenia

has become even more pronouncedwith the passage of time.

Pleading the admissibilityof the PortugueseApplication,

Mr. GalvSo Teles stressed that:

"the Portuguese claim is not founded on the breach by Australia
of a duty of non-recognitionof a situation createdby the
unlawful use of force. It is founded on the disregard by
Australia of the status of East Timor as a non-self-governing

territory on the one hand, and of that of Portugal as its
Administering Power on the other.

The question of the lawfulnessor unlawfulness of
Indonesialsconduct in regardto East Timor is therefore quite
simply irrelevant.'l (CR 95/13, p. 46.)

Well then, if that is the case, if Mr. Galvao Teles is right, why, in

dealing with themerits, did Professor Dupuy spend nearly an hour (and

some 23 pages - 1 really am rather fond of statistics!) in attemptingto

establish the unlawfulness of "the de jure recognitionof the integration

of East Timor with Indonesia" (CR 95/12, pp. 18-41)? 1 am weii aware,

Mr. President, that this long speech also sought to demonstrate that the

de jure recognition in question was incompatible with"the correlative

recognition that [EastTimor1 still constitutesa non-self-governing

territory and that its people has not exercised its right to

self-determination" (ibid.,p. 18); exactly: here is clearevidence

that this question of recognition (whichcannot, of course, be settled

without appraising the lawfulnessof the Indonesianactions), that this

question of recognition,then, is the indispensable prerequisiteto the

determinationof the responsibilities,if any, of Australia. Otherwise,

046 there would seem to have been a lot of fuss about nothing and a lot of

time wasted by the Court and, incidentally,by everyone in this chamber! - 39 -

Professor Crawford hasalready made that clear this morning: the

demonstrationof the unlawfulness of the recognition (whether de jure or

de facto, it matters little) of the situation created by Indonesia is

indispensableto the Portuguese line of argument. It is not certain that

with it the argument can succeed; but it is certain that without it the

argument fails. Yet along with this Portugal cornesup against the

Monetary Gold principle - and it is not by carefully separatingin time

its arguments on the merits, or the presentation of its argument on the

merits, from the discussion of the admissibilityof the Application that

this problem, an insoluble one, can be made to go away.

13. Mr. President,Mernbersof the Court, the State which appears

before you as Respondent in this case is a victim, 1 would Say, of being

the wrong targetof the Applicant State.

Portugal has always shown a lack of interest in its far-off Asian

colony; today it feels itself "responsiblebut not to blame", to use an

expression which had its moment of glory in France some whileback; it

is seeking, may 1 Say, "to maKe up for things" as best it can in the eyes

of Portuguesepublic opinionand in the eyes of a people which it

abandoned to its unfortunate lot when still able to do something for it.

The filing of an application against a State which had never imagined

that acceptance of the Court's compulsory jurisdictionor the conclusion

of the 1989 Treaty could put it in this situation constitutessornekind

of expiatory rite, but Australia does not imagine for a moment that the

"misplacedarrow" can transform itself into a "miscarriageof justiceH.

Without doubt, this shouldnot be the outcorne; the arrow should miss

the target by a long way, so numerous are the reasons for its deflection,

and so insurmountablethe obstacles whichpreclude you from declaring - 40 -

Australia responsible forthe breaches of internationallaw of which it

is accused.

Those obstacles are, in the first place, procedural. Not only is

Australia not the real Respondent,the State which Portugalwas aiming at

when it began these proceedings, but in addition, for you to make a

determination - 1 do not Say find Australiaguilty - for you simply to

make a determinationon the breaches of internationallaw for which it is

so artificially blamed,you would, first of al1 and of necessity, have to

determine the responsibilitiesof that great absentee - constantly

present at these hearings - Indonesia. Your Statute, and in particular

its Article 36, does not allow that. Consequently,as you decided in

1954 in the Monetary Gold case, you will be bound to find that in the

absence of that country's consent you cannot rule on the submissions in

the Portuguese Application.

14. Mr. President, Members of the Court, the Applicant State, after

having completely fabricated the case which it submitted to you, has

realized that it faced insurmountable procedural difficulties.

In order to avoid those pitfalls, it has had to prune its arguments

to the bone - to exclude £rom them

1. the issue, a crucial one, of the delimitationof the respective

maritime shelves of Australia and of East Timor;

2. the issue of the validity of the Australo-IndonesianAgreement of

1989;

3. the issue of the recognition, inevitably implied by theconclusion of

that Agreement, of the presence of Indonesia in EastTimor; and

4. the issue of the actual lawfulness of that presence;

and 1 have only mentioned the most glaring omissions, - and 1 was going

to Say the really umonumental~ones. - 41 -

However incomplete, this list calls for at least two comrnents,and

these will be my closing words.

Firstly, 1 have the utmost doubt whether a State can submit a case to

you and then prevent you from considering it by seeking to bar you £rom

examining, from the legal angle, certain essential elements in its

make-up. In concluding his speech the other day on the usufficiency of

the Parties to the proceedings", Mr. GalvZo Teles said that "the path in

the present case is a narrow onen (CR 95/13, p. 63); 1 fear for Portugal

that the path has disappeared £rom under its feet ...

Secondly, it is astonishing that, despite its efforts to demarcate in

this fashion the pseudo-dispute which it has submitted to you, Portugal

has not succeeded in sending Indonesia"off the field"; Indonesia is

everywhere; it is above al1 in the background of al1 Portugal's

arguments: if Australia was responsible it would only be because

Indonesia was responsible too, or rather it would be responsible first

In other words, Portugal cannot "escapeu £rom the Monetary Gold

principle. The resulting inadmissibilityis the price to be paid for

having submitted to the Court an artificial application which has simply

been the pretext for "show proceedings" - but perhaps, after all, the

proceedings themselvesand the media fallout which Portugalanticipated

£rom them represent that country's real aim?

Mr. President, Members of the Court, 1 thank you for your very great

patience and 1 would ask you, Mr. President, to be kind enough to give

the floor to Professor Crawford for a statement which he has promised to

keep very brief. Thank you, Mr. President.

The PRESIDENT: Thank you Mr. Pellet. Professor Crawford. M. CRAWFORD :Monsieur le Président, Messieurs lesjuges.

1. J'ai effectivementpromis à M. Pellet d'être bref. Je n'ai pas

réussi à obtenir de lui la même promesse. Il faut pourtant dire quelques

mots sur les questions examinées lundi parM. Dupuy sous le titre de

l'opportunitéjudiciaire,titre qui ne concerne pas l'exercice d'un droit

discrétionnaire comme semblaitle penser M. Dupuy (maisvoir CR 95/13,

p. 64, M. Dupuy), mais les conditionsminimales qui permettent à la Cour

«de conserver son caractère judiciaires (Camerounseptentrional,

C.I.J. Recueil 1963, p. 29) .

2. Le Portugal tente de placer la Cour dansune situationqui associe

au plus haut pointl'artifice et le danger.

Le caractère artificiel de la cause du Portugal

3. Ce caractère artificiel est à la fois positif et négatif, il

marque ce qu'on demande à la Cour de faire et ce qu'on ne lui demande

pas.

4. Quant à ce qu'on demande à la Cour de faire, on sollicite sa

décision sur des propositions abstraiteset artificielles à l'extrême.

Permettez-moide citer M. Galvao Teles, qui a dit lundi que, si le

comportement de l'Australieest illicite, cela tient à ses rapports avec

un Etat qui n'est ni la puissance administranted'un territoire non

autonome, ni le détenteurde l'autorité sur un territoire qui ne serait

pas non autonome (CR 95/12, p. 13). Je compte là cinq négations et, pour

ma part, je ne parviens pas à apprécier l'effet juridique d'une

proposition qui contient cinqnégations. Quoi qu'il en soit, c'est une

proposition qui ne correspond pas à la manière dont le Portugal présente

maintenant son argumentation. Voilà, je suppose, la sixième négation. - 43 -

5. Ce n'est là qu'un exemple parmid'autres. De façon plus générale,

le Portugal saisitla Cour des demandes suivantes :

1. entériner la revendicationd'une autorité territorialepar un Etat qui

est pratiquement certain dene jamais retourner sur le territoire;

2. rendre exécutoirela revendicationd'une autorité par un Etat qui n'a

jamais exercé cetteautorité depuis 1975, sauf pour introduire la

présente instance;

3. interdire l'exécutiond'un traité que l'on ne peut demander et que

l'on ne demande d'ailleurspas à la Cour de déclarer nul;

4. donner effet à une règle de non-reconnaissance pour laquelle il

n'existe aucun précédent, sur l'initiatived'un Etat qui persiste

lui-même, délibérément, à agir d'une manière incompatible aveccette

règle;

5. empêcher ainsi l'Australiede reconnaître l'autorité d'un Etat tiers

auquel l'article 59 du Statut permettrade continuer à exercer cette

autorité;

6. protéger la souverainetépermanente d'un peuple sur desressources

naturelles qu'il n'est possible à la Cour ni de délimiter, ni même de

déterminer;

7. condamner à des dommages et intérêts pour des préjudices impossible s

déterminerpour la même raison et qui, de toute manière, ne se sont

pas produits et ne se produirontpeut-être jamais;

8. de façon générale, substituer à des positions arrêtées contre unEtat

tiers, dictées par la nécessité logiqueet juridique, des incidences

contestées, sur la teneur desquellesmême les conseils du Portugal ne

peuvent se mettre d'accord (sur la distinction entre des «positions

arrêtées» et des «incidences»,voir Certaines terres à phosphates à - 44 -

Nauru, C.I.J. Recueil 1992, p. 261, par. 55, citée dans CR 95/7,

p. 70).

6. Permettez-moimaintenant de passer à l'aspect négatif,

c'est-à-direaux questions sur lesquellesil n'est pas demandé à la Cour

de statuer. Elles sont légion, mais je choisirai seulementles plus

importantes,liées au fait que des forces armées indonésiennes sont

entrées au Timor oriental en 1975 et que l'organisationdes Nations Unies

a brièvement déploré cette «intervention armées.

7. A ce propos la position du Portugal est restée cohérenteet

M. Galvao Teles l'a définie de nouveau lundi. Il a dit que le Portugal

n'invoque d'aucune manière un principe de non-reconnaissance fondé sur

l'emploi de la force. Il n'est pas demandé à la Cour de statuer - je ne

reproduirai pas les citations - sur les moyens par lesquels l'Indonésie a

acquis la maîtrise du territoire.

8. Le comportementillicite de l'Indonésie,s'il était effectivement

illicite, ne peut être isoléde manière artificielle. La Cour ne peut

pas statuer sur une situation hypothétique,la situation d'une atteinte à

l'autodéterminationqui ne soit pas liée à l'emploi illicite de la force.

Elle ne peut passtatuer sur le caractère illicitedu comportement de

l'Indonésie,mais elle ne saurait apprécierle comportementde

l'Australie sans statuer sur le caractère illicite de celui de

l'Indonésie. Même en 1975 et 1976, alors que les organes des

Nations Unies réagissaient à une situation réelle qui comportaitl'emploi

de la force, ils n'en ont pas moins témoignéd'une modération

extraordinaire dansleur réaction. A partir de 1979 ils ont accepté le

maintien de la présence indonésienneau Timor oriental. Il n'appartient

pas à l'Australie d'expliquercette attitude ou de la justifier; elle

constitue un fait. - 45 -

9. On demande pourtant à la Cour de réagir à cette même situation

comme si ces résolutionsétaient une adonnée, pour un aspect seulementde

la situation, celui de l'autodétermination. Comment la Cour peut-elle

dire ce que les résolutions auraientdit s'il n'y avait pas eu emploi de

la force ? L'hypothèse sur laquelleon demande à la Cour de statuerest

«éloignée de la réalité, et, en vertu du principe del'affaire du

Cameroun septentrional,la Cour ne devrait pas trancher.

10. J1ai fait valoir cette considérationpendant le premier tour des

plaidoiries (CR 95/9, p. 27-28). Point de réponse. M. Dupuy a

brièvement évoquél'affaire du Cameroun septentrional,mais pas dans

cette optique (CR 95/13, p. 64). Pourtant, c'est une considérationqui

reste valable. Elle suffit à elle seule à rendre irrecevable lademande

du Portugal.

Les dangers que présente la thèse du Portugal

11. L'affaire du Cameroun septentrionalest pertinente à un autre

titre encore. Le Camerouny a reconnu qu'il cherchait à obtenir une

décision sur une queszion de droit, décision qu'il pourrait utiliser

devant les organes politiquesdes Nations Unies. En l'espèce, le

Portugal ne commet évidemment pasl'imprudencede dire cela en termes

exprès. Cependant,comme M. Pellet l'a montré et comme M. Griffith l'a

établi la semainedernière (CR 95/11, p. 65-70), ou bien les réparations

effectivementdemandées sont contradictoires (la déclaration

d'opposabilitéd'une proposition à laquelle l'Australiene s'oppose pas,

l'injonctioncontre l'exécutiond'un traité qu'il n'est pas demandé à la

Cour de déclarer nul, des dommages-intérêtspour des préjudices

impossibles à évaluer), ou bien elles aurontl'effet de profiter à llEtat

même que le Portugal reconnaît comme le principal auteur d'actes - 46 -

illicites en cette affaire. Si l'Australiese replie sur la ligne

médiane, comme le Portugal le demande avec insistance (CR 95/13,

p. 38-39, Mme Higgins), cela ne profitera qu'à un seul Etat, l'Indonésie.

12. Dans ces conditionsla Cour peut être portée à estimer que

l'action est intentée, comme celle qu'avait introduite le Cameroun, afin

de fournir des armes «juridiques»pour une guerre contreun autre Etat

devant une autre instance,une instance politique. Des questions

juridiques, bien qu'abstraiteset tortueuses, sont présentées pour

«envoyer un message» ailleurs,dans un autre conflit. Cela rend ces

questions juridiques éloignées dela réalité à un autre titre encore :

nul n'a réussi à établir si le traitéde 1989 favorisaitou entravait

l'autodéterminationdu Timor oriental. L'Indonésie sera-t-ellemoins

installée au Timor oriental parce qu'elle pourra exploiter le plateau

continental jusqu'à la ligne médiane ?

13. C'est quand on examine le «message» que la Cour sera censée

envoyer que les dangers suscités par le Portugal se manifestent le plus

clairement. L'Australie a présenté - la Cour me pardonnera de le dire -

une argumentationclaire, convaincanteet fondée pour montrer sa position

dtEtat tiers en butte à un différend concernantl'autodétermination.

Cette argumentationn'est pas moins claire, convaincanteet fondée parce

que, dans sa pratique étatique, le Portugal lui-même la confirme de

manière délibérée.

14. Il reste pourtant une autre difficulté. La Cour ne peut pas

critiquer, moins encore condamner, l'Indonésieen l'espèce,mais ne

saurait davantage «reconnaître»,ou légitimer, le pouvoir de l'Indonésie

au Timor oriental. Les organes politiques desNations Unies se sont

délibérément abstenusde déclarer que la présence de l'Indonésieau Timor

oriental était illégale, et ils n'ont plus réclaméle retrait de - 47 -

l'Indonésie à partir de 1979. La Cour ne peut donc juger quela présence

de l'Indonésie est illégale - mais comment peut-elle juger qu'elle est

légale ? L'Indonésie n'est pas présente à l'instance, et la Cour ne peut

rien prononcer qui la mettrait en cause.

15. Le dossier portugais est un jeu de miroirs, de miroirs mobiles

même, puisque le Portugal a radicalement modifiéson argumentaire initial

même si sa requête et ses conclusions sont nécessairement restées les

mêmes. Dans ce jeu de miroirs, la Cour sera vue comme faisantquelque

chose qu'elle ne peut faire, et ce quelle que soit la décision qu'elle

prendre sur le fond.

Monsieur le Président, Messieurs de la Cour.

16. Cela étant, la décision la plus simple est celle qui sauvegarde

l'intégrité judiciaire des procédures de la Cour. Pour ces motifs, qui

s'ajoutent à tout ce qu'ont dit M. Griffith vendredi dernieret M. Pellet

cet après-midi, l'Australie demande que la plainte du Portugal soit

déclarée irrecevable.

Monsieur le Président, Messieurs de la Cour, je vous remercie de

votre patience.

Le PRESIDENT :Merci beaucoup, M. Crawford. Je donne la parole à

M. Griffith, agent de l'Australie.

M. GRIFFITH :Monsieur le Président, Messieurs de la Cour,

l'Australie a montré dans ses exposés, la semaine passée et aujourd'hui

encore, qu'elle avait à opposer aux diverses argumentationsjuridiques du

Portugal une contre-these juridique détaillée, tant au niveau de la

recevabilité qu'au niveau du fond. -La position de l'Australie est

honorable. Elle est conséquente. Le Portugal a changé de terrain, mais - 48 -

les défenses australiennesrestent solides sur les deux plans de la

recevabilité et du fond.

L'Australie est une société multiculturelletolérante et pacifique.

Sa population comprenddes gens venus comme colonset comme réfugiés de

pays en conflit, dont quelques milliers de Timorais. Notre communauté

nationale pacifique oeuvre en faveur d'une communauté internationale

pacifique. L'Australie est attachée au règlement pacifique des

différends. C'est pourquoi nous nous sommes soumis à la juridiction de

la Cour au titre de la clause facultative. C'est pourquoi nous avons

négocié avec l'Indonésie le traité relatif au «Timor Gap».

L'Australie avait un véritable litige à régler à propos des

ressources marines du «Timor Gap» qu'elle dit être siennes. Comme le lui

dictaient le droit internationalet la courtoisieentre Etats, elle a

négocié pendant plus de dix ans, dans des conditions loyales, avec 1'Etat

exerçant le contrôle effectif du territoire côtier qui lui faisait face,

afin de convenird'une solution équitable et juste réglant

provisoirement ledifférend.

Le Portugal invitela Cour à subvertir cet arrangement et à remplacer

la concorde et la coopération pacifiques entre les Etatq sui exercent

effectivementles compétences dtEtats côtiers voisins, par un différend

inédit : un différend que le Portugal demande quel'on fasse naître par

décision de la Cour, dans des termes qui empêcheront que le différend

même ne soit réglé par aucun autre traitéque les parties pourraient

conclure. Il est certain quece n'est pas à cela que la Cour doit

servir.

Vendredi dernier j 'ai exposé les principales raisons d'opportunité

judiciaire qui font que la Cour ne peut rendre en l'espèce une décision

effective. J'affirme ces raisons. Non seulementtoute décision - 49 -

resterait sans efficacitémais elle serait irréelle, éloignée de la

réalité. La Cour ne peut ignorer des obstacles aussi considérables.On

ne peut laisser la volonté de l'une des parties fausser ainsi la fonction

judiciaire.

Monsieur le Président, Messieurs de la Cour, dans ses conclusions,

le Portugal s'est dit convaincu que la Courne viderait pas de son

contenu le droit à l'autodéterminationet qu'elle réaffirmeraitla

responsabilitédes Etats à l'égard de ce principe fondamental.

L'Australiene dit pas que ce principe est vide de contenu. Au

contraire, elle affirme qu'elle est attachée à un principe qu'elle a

défendu pour le comptedu peuple du Timor oriental à une époque où le

Portugal manquait à ses devoirs à l'égard de celui-ci. C'est un principe

que les deux Parties acceptent et qu'elles appliquent au Timor oriental.

C'est un principe opposable à tous les Etats en ce qui concerne le Timor

oriental. La position de l'Australien'est ici en rien différente de

celle de n'importe quel autre Etat. Cela étant, il serait mal venu que

la Cour envisage de prendre une déclsion où ce principe serait déclaré

opposable à l'Australie.

L'Australie a agi de bonne foi pour protéger ses droits souverains.

Rien de ce qu'a dit le Portugal ne permetde conclure qu'elle a ce

faisant agi illégalement.

Le Portugal n'a pas non plus montré sur quelle base on pouvait

surmonter les objections que l'Australieoppose pertinemment à l'exercice

par la Cour de ses compétenceset à la recevabilitéde la requête

portugaise.

Monsieur le Président,Messieurs de la Cour, avant de donner lecture

des conclusions finalesde l'Australie,je dois remercier la Cour de

l'attentionet de la patience dont elle a fait preuve aucours des - 50 -

plaidoiries, et à rendre hommage, par l'entremisedu Greffier, à

l'efficacitédes services d'interprétation, de traduction et de

transcription.

Monsieur le Président,Messieurs de la Cour, selon le paragraphe 2 de

l'article 60 du Règlement, je vous lis les conclusions finales de

l'Australie :

Le Gouvernement del'Australie conclut que, pour les motifs qu'il a

exposés dans ses écritures et ses plaidoiries, la Cour devrait :

a) dire et juger qu'elle n'a pas compétencepour statuer sur les demandes

du Portugal ou que ces demandessont irrecevables;

b) subsidiairement,que les actes de l'Australie viséspar le Portugal ne

donnent lieu à aucune violationpar l'Australiede droits au regard du

droit internationalque fait valoir lePortugal.

Le PRESIDENT : Merci beaucoup, M. Griffith. L'Australie,Etat

défendeur, vient de conclure le deuxième tour de ses plaidoiries, en

réponse aux plaidoiries du Portugal. Je tiens à adresser mes

remerciementsles plus chaleureux à tous les membres de la délégation

australiennepour la contributionqu'ils ont faite à l'accomplissementde

sa mission par la Cour.

Nous voici à la fin de la procédure orale dans la présenteaffaire.

Selon la pratique habituelle,je demanderai aux agents de rester à la

disposition de la Cour, qui pourrait avoir à leur demander de plus amples

renseignements.

Sous cette réserve, je prononce la clôture de la procédure orale dans

l'affaire du Timor oriental. 0 5 7 La Cour se retire pour délibéreLes agents seront avisés en temps
. -
opportun de la datà laquelle elle rendra sa décision.

Je vous remercie.L'audience est levée.

L'audience est levéà 17heures.