East Timor (Portugal v. Australia) - Judgment of the Court

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INTERNATIONALCOURT OF JUSTICE

PeacePalace,2517 KJThe Hague.Te1.(070-30223 23).CablesIntercourt, heHague.

Telefax(070-36499 28). Telex32323.

Communiqué
unofficial
for inmirdiatm r.1-80

No. 95/19
30 June 1995

Caae con-
~~ v. Australia)

The Hague, 30 June. The International Courtof Justice today held,

by a 14 to 2 vote, that it could not adjudicate upon the dispute referred
to it by Portugal which brought a case against Australiaconcerning a
treaty of December 1989 between Australia and Indonesiaon exploitation
of the continental shelf of the so-called "Timor Gap".

Portugal had maintained that in concluding that treaty which created
a "Zone of Cooperation ... in an area between the Indonesian Province of
East Timor and Northern Australia", and in taking measures to apply it,
Australia violated the rights of the people of East Timor to
self-determinationand violated Portugal's rights as the administering

Power of East Timor. Australia objectedto the jurisdictionof the Court
to deal with the case and argued that Portugal's claims on the merits
should in any event be dismissed.

After examining theAustralian objectionthat the "real dispute1' was
rather between Portugal and Indonesia, the Court found thatthere

actually was a legal dispute between Portugal and Australia. But it
concluded that Australia's conduct could notbe ruled upon without first
deciding why it is that Indonesia could not lawfully have concluded the
1989 treaty, while Portugal allegedlycould have done so. Accordingly,
the Court held, the very subject-matterof the Court's decision would

necessarily be a determinationwhether, in view of the circumstancesin
which Indonesiahad entered andrernainedin East Timor, it could or could
not have acquired the authority toenter into treaties on behalf of East
Timor relating tothe resources of its continental shelf. Because of the
fundamental principleof its Statute that it cannot decide a dispute

between Stateswithout the consentof those States to its jurisdiction,
the Court found that it could not make such a determinationof
Indonesialsrights in the absenceof that Statels consent. The Court thus concluded thatit could not "rule on Portugal'sclaims
on the merits, whatever the importanceof the questions raised by those
claims and of the rules of internationallaw which they bring into play".

In the course of the reasoning which led to that conclusion, the

Court observed that

"Portugal'sassertion that the right of peoples to self-
determination,as it evolved £rom the Charter and from United
Nations practice, has an erga omnes character, is

irreproachable. The principleof self-determinationof peoples
has been recognizedby the United Nations Charterand in the
jurisprudenceof the Court ...; it is one of the essential
principles of contemporary international law."

And the Courtemphasized "that, for the two Parties, the Territory of

East Timor remains a non-self-governingterritory and its people hasthe
right to self-determinationIo. i '* I i :+ ; I V
;cg hi t., r a: ' 2 3 !
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INTERNATION~URT OF JUSTICE
PeacePalace,2517 KJ TheHague.Te1.(070-30223 23).Cables:Intercowt,The 1lague.

Telefax(070-36499 28). Telex32323.

Communiqué
-
unofficial
for inmadiateroleame

No. 95119bis
30 Juiie 1995

Case concernin? East Timor
(Portu~al V. Australia)

Furtlier to PressComniuniqué 95119. of today. a siiiiiiiinry of tlie Court's Jiidgnient of 30 Juiie

1995is giveii below. It hasbeeii preparedby tlie Kegistry aiiiiiiio way involves tlie respoiisibility
of the Court. 11cannot be quoted against tlie text of tlie Judgiiieiit, of witdoes iiot coiistitute
an interpretatioii.

The priiited text of the Judgnieiit \vil1 becoiiie availiiidiie course (orders aiid eiiquiries
sliould be addressed to the Distribiitioii arid Sales Scctioii. Office of tlie United Natioiis.
12 11 Geneva 10; the SalesSectioii. IJiiitcd Nntioiis, NeY'orli.N.Y. 10017: or miy appropriaiely
specialized bookshop).

f'rocediiral 11ista-y(paras1-10)

In ils Judgment the Court recalls tliat oii 22 February 1991 Portugal iiistitiited proceedings
against Australia concerning "certain activities of Australia witli respectto EastI'iiiAccording
to the Application Australia had, by its coiiduct, "failed to obser..tlie obligation to respect tlie
duties and powers of [Portugal as] tlie adiniiiisteriiig I'ower [of East Tii...and ...the right of
tlie people of East Timor to self-determiiiatioii aiid tlie related rigIiicoiisequence, according

to the Application, Australia had "incurred iiiteriiatioiial respoiisibility vis-à-vis bpeople of
East Timor and Portugal". As the basis for tlie jurisdictioof tlie Court, tlie Application refers to
the declarations by which the two States Iiave accepted tlie coiiipulsory jurisdictioof the Court
under Article 36, paragraph 2, of its Statute.Iliits Coiiiiter-MeiiioriAustralia raised questions
concerning the jurisdiction of the Court aiid tlie adinissibility of tlie ApplicatIithe course of
a meeting held by the President of tlie Court tlie Parties agreed tliat tliese questions were
inextricably linked to the merits and tliat tliey sliould tlierefore be Iieard aiid determiiied within the

frainework of the merits. The writteii proceediiigs Iiaviiig beeii coiiipleted in July 1993, hearings
were held between 30 January and 16 February 1995. Tlie Judgiiieiit tlieii sets out tlie fiiial
submissions which were presented by botli Parties iitlie course of tlie oral proceedings. ack'T roun dparas. 11-18)

The Court then gives a short description of the Iiistory of the iiivolveiiieiiof Portugal and
lndonesia in the Territory of East Timor and of a nuinber of Security Council and General

Assembly resolutions concerning the question of East Timor. Itfurtlier describes the negotiations
between Australia and lndonesia leading to the Treaty of 11 Deceiiiber 1989,wliich createda "Zone
of Cooperation ...in an area between the Indoiiesiaii Proviiice of East Timor arid Nortliern
Australia".

of the of the Pw (paras. 19-20)

The Court then summarizes the contentions of botli Parties.

in reuv no &.pute between the Parties (paras. 21 -22)

The Court goeson to consider Australia's objectioii tliat thereisiireality rio dispute betweeri
itself and Portugal. Austrqlia contends tliat the caseas preseiited by Portugal isartificiallyliniited
to the question of the lawfulness of Australia's conduct, aiid that the true respondent is Indonesia, -
not Australia. Australia maintains that it is beiiig sued iiiplace of Iiidoiiesia.111this connection.

it points out that Portugal and Australia have accepted the coiiipulsory jurisdiction of the Court
under Article 36, paragraph 2, of its Statute, but tliat Iiidoiiesia has iiot.

The Court finds in this respect tliat for the purpose of verifying tlie existence of a legal
dispute in the present case, it is not relevant wlietlier tlie "real dispiitisbetween Portugal and
lndonesia rather than Portugal and Australia. Portugal Iias, riglitly or wrongly, formulated

cornplaints of fact and law against Australia wliicli tlie latter Iias deiiied. By virtue of this denial,
there is a legal dispute.

hat the Court isre~uired to deteriiiiiie the riglits and ohligatioiis of liidonesia

(paras. 23-35)

The Court then considers Australia's principal objectioii, to the effect tliat Portugal's
Application would require the Court to deteriiiiiie tlie riglits aiid obligatioiis of Iiidonesia. Australia
contendsthat thejurisdiction conferred upoii the Court hy tlie Parties'declaratioiis under Article36,
paragraph 2, of the Statute would not eiiable tlie Court to actif.iiiorder to do so, the Court were

required to rule on the lawfulness of Iiidonesia's entry itito aiid coiitiiiipresencein East Timor,
on the validity of the 1989Treaty between Australia aiid liidoiiesia, or oti tlie riglits and obligations W
of lndonesia under that Treaty, even ifthe Court did iiot have to deteriiiiiie its validiIn support
of its argument, it refers to the Court's Judgnieiiiithe caseof tlie Moiietary Gold Rewed from
Bome in 1943. Portugal agrees that if its Applicatioii required the Court to decide any of tliese

questions, the Court could not entertain it. The Parties disagree, Iiowever, as to whether the Court
is required to decide any of these questioiis iiiorder to resolve tlie dispute referred to it.

Portugal contendsfirst that its Application is conceriied exclusively witli the objective conduct
of Australia, which consists in having iiegotiated, coiicluded aiid iiiitiated performance of the

1989 Treaty with Iiidoiiesia, aiid tliat tliis questioii is perfectly separablefroiii aiiy question relating
to the lawfulness of the conduct of Iiidoiiesia.

Having carefully considered the arguiiieiit advaiiced by Portugal wliicli seeks to separate
Australia's beliaviour froin that of Iiidoiiesia, the Court coiicludes tliat Australia's behaviour cannot
be assessedwithout first entering into tlie questioii wliyitis tliat Iiidoiiesiacould iiot lawfully have

concluded the 1989 Treaty, while Portugal allegedly could have dotie so; tlie very subject-matter
of the Court's decision would necessarily be a deteriiiiiiation wlietlier, Iiaving regard to the
circumstances in wliicli Indoiiesia entered and reiiiaiiieiiiEast Tinior, itcould or could not have acquired the power to enter into treaties oii belialf of East 'Tiiiior relatiiig to tlie resoiirces of its
continental shelf. The Court could iiot iiiake siicli a deteriiiiiiatioiiitlie absenceof tlie cotisent of
Indonesia.

The Court rejects Portugal's additioiial arguiiieiit tliat tlie riglits wliicli Aiistralia allegedly
breaclied were riglits grpa om and tliat accordiiigly Poniigal could reqiiire it. iiidividually. to
respectthem regardlessof whether or not aiiotlier State Iiad coiiducted itself in a siiiiilarly uiilawful

maiiner.

In the Court's view, Portugal's assertion tliat the riglit of peoples to self-deterinination. as it

evolved from the Charter and from United Natioiis practice. Iias ail ma omw cliaracter. is
irreproachable. The principle of self-deteriiiiiiatioii of peoples Iias beeri recogiiized by the
United Nations Charter and in the jurisprudence of tlie Court; it is one of tlie esseiitial principles
of conteinporary international law. However, tlie Court coiisiders tliat the erga character of

a norm and the rule of consent tojurisdiction are two differeiit tliiiigs. Wliatever the nature of the
obligations invoked, tlie Court could not rule on tlie lawf~iliiess of tlie coiiduct of a State when its
judgment would imply an evaluation of the lawfuliiess of tlie coiiduct of aiiotlier State which isnot

a party to the case.

The Court goeson to consider ariotlier arguiiieiit of Portugal wliicli, tlie Court observes, rests

on the premisethat the United Nations resolutioiis, aiid iiiparticular tiiose of tlie Security Council,
can be read as imposing an obligation oii States iiot to recogiiize aiiy autliority on the part of
lndonesia over East Timor and, where tlie latter is coiiceriied. to deal oiily witli Portiigal. Portugal
maintains tliat those resolutions would constitute "giveiis" oii tlie coiiteiit of whicli the Coiirt would

not have to decide de novo.

The Court takes note of the fact tliat. for tlie two Parties. tlie Territory of EastTimor remains

anon-self-governing territory aiid its people Iiastlie riglit to self-deteriniriatioii. and tliat tlie express
reference to Portugal asthe "admiriisteriiig Power" iiia iiuiiiber of the above-inentioiied resolutioris
is not at issue between them. The Court fiiicls. Iiowever. tliat it caiiiiot he iiiferred froni tlie sole

fact that a number of resolutions of the Geiieral Assetiibly aiid tlie Seciirity Coiincil refer to Portugal
as tlie administering Power of East Tiiiior tliat tliey iiiteiided to estahlisli ail obligation on tliird
States to treat exclusively witli Portugal as regards tlie coiitiiieiital sliclf of East Tiinor. Without
prejudice to the question whether the resolutioiis iiiider disciissioii coiild be biiidiiig in nature, the

Court corisiders as a result that tliey caiiiiot be regarded as "giveiis" wliicli coiistitute a sufficierit
basis for determiniiig the dispute betweeii tlie Parties.

It follows from this that the Coiirt would necessarily have to rule upon tlie lawfuliiess of
Indonesia's coiiduct as a prerequisite for decidiiig oii Portiigal's coiiteiitioii tliat Australia violated
its obligation to respect Portugal's statusas adininisteriiig Power, EastTimor's status asa noti-self-

governing territory and the right of the people of tlie Territory to self-deterinination and to
permanent sovereignty over its wealth aiid iiatural resources. Iiidonesia's riglits and obligations
would thus constitute the very subject-matter of sucli ajudgiiient iiiade iiitlie absenceof that State's
consent. Such a judgment would run directly couiiter to the "well-established principle of

international law embodied in tlie Court's Statute, iiainely, tliat tlie Court can only exercise
jurisdiction over a State with its consent" (Moiietary Go Id Reiiioved froin Rome in 1943 ,K..!.
Re~orts 1954, p. 32).

Çonclusions (paras. 36-37)

The Court accordingly fiiids tliat it is iiot reqiiired to coiisider Australia's otlier objections and
that it cannot rule on Portugal's claims on tlie iiierits, wliatever the iiiiportance of tlie questions
raised by tliose claims and of the rules of interiiatioiial law wliicli tliey briiig into play. TheCourt recalls inany event tliaitliastakeii notiitlie Judgiiieiittliat. fortlir two Parties,
the Territory of East Timorremains a non-self-goveriiiiigterriiory aiid its people has tlie riglit to
self-determination.

The text of the operativeparagrapli reads as follows:

"38. For these reasons,

THE COURT,

By 14votes to 2,

Eim that it cannot in the preseiit case exercise thejurisdictioii coiiferred upori
itby the declarations made by tlie Parties uiider Art36,eparagrapli7,of its Statiite

to adjudicate upon the dispute referred to itby the Application of tlie Portuguese
Republic."

Those who voted in favour were: &sidelu Bedjaoiii: Vice-l'iesidcid Schwebel; Judees
Oda, Sir Robert Jennings,Guillaume, Sliahabiiddeeii.Agiiilnr-Ma\vdsley,Raiijeva,Herczegh, Shi.
Fleischhauer, Koroma, Vereshclietin; Jiidyc:ad IiocSir Niiiiaii Stcplieii:

Against: Jude Weeeramantry; W. ad IiocSkubiszewski.

Judges Oda, Shahabuddeen, Raiijeva aiid Vercsliclictiii appeiid separate opiiiioiis to the
Judgment of the Court.

Judge Weeramantry and Judge ad Iioc Skiibiszcwski appmid disseiitiiig opinions to the
Judgment of the Court. (Brief suiiiniariesof tlie opiiiioiisbcifoiiiiiitlie Aniiexto this Press
Communiqiié.) W Annexes to PressComniutll$iae No. 95119bis

Senarate opinion of Jud~e Oda

Judge Oda,while agreeing that Portugal's Application should be disriiissed asthe Coiirt lacks
jurisdiction to entertain it, considers that its dismissal should not have beenbasedupoii tlieabsence

of Indonesia's conseiit, as in tlie Court's Judgment, but iipoii the & consideration tliat Portugal
lacked locus standi.

After examining Portugal's complaint, Judge Oda concludes that Portugal "lias 11vetiail

incorrect definition of the dispute and seems to have overlooked the difference between tiie
~pposabiiitv to any Stateof its rights and duties as the administering Power or of the riglits of tlie
people of East Timor and Ihe more b-whether Portugal is the Stateeiititled to assert

these rights and duties." He further points out that the right of the people of East Timor to
self-determination and the related rights have not been challenged by Australia and, in any event.
caiinot be made an issue in tlie present case. Tliat case relates in Judge Oda'sview & to the

title tothe continental shelf which Portugal claims to possessas a coastal State.

Judge Oda goes on to note that, in the area of the "Timor Gap" Australia has not asserteda
new claim to any sea-bed areaintruding into the areaof any State or of the people of tlie Territory

of East Timor, nor has itacquired any new sea-bed areafrom any State or from that people. Tlie
continental shelves of Australia and of the opposite State overlap somewhere in the middle of the
"Timor Gap", and Australia should and did negotiate the question of that overlapping witli tlie

coastal State lying opposite to it across the Timor Sea.

The central question in the present case is whether Portugal or Indonesh, as a State lyiiig

opposite to Australia, was entitled to tlie continental slielf in the "Tiiiior Gap".

From a survey of events in relation to the deliinitation of the cbntineritai slielf in tlie re1cv;riit
areas. it appears that since the seventies lndonesia claimed the status of a coastal State for

East Timor and. assuch, negotiated with Australia. IfPortugal Iiad also claimed tliat statuitcould
and should have initiated a dispute over the corresponding title to the contineiital slielf willi
Iridonesia, but not witli Australia. Not unlw and such time as Portugal had beenestablislied

as Iiaving the status of the coastal State entitled to the correspondingcontinental slielf coiild aiiy
issiie coiicerning tlie seabed area of tlie "Timor Gap" have been the subject-matter of a dispute
between Porturral and Australia. Had tliat beenthe case.the treaty between Australia and Indoiiesia

woiild certaiiily have been nuIl and void from the outset. The reliaiice of the Judgiiierit on the
priiiciple of the required consent of the tliird party to the Court's jurisdiction (as exemplified in tlie
Monetary Gold case) accordingly seems to be irrelevant.

A fiirtlier historicai survey shows that, in Judge Oda's view, "while the military intervention
of Iiidonesia in East Timor and the integration of EastTimor into lndonesia in the mid-1970s were
iiot approved by the United Nations, there has nof been any reason to assume that Portugal has,

since tlie late 1970s and up to the present time, been entrusted with the riglits and responsibilities
of ail adininistering Power for the Non-Self-Governing Territory of East Timor. Few States in the
internationalcommunity have in the recent past regarded, or at present regard, Portugal as a State

located in East Timor or would maintain tliat as such it may lay claim to the continental sliclf off
the coast of EastTimor." Portugaltherefore lacks standing asan Applicaiit State in this proceeding
which relates to the continental shelf extending southward into the Timor Sea from tlie coast of
East Tiiiior in the "Timor Gap". ate oninio onf J-

11his separate opinion, Judge Slialiabuddeenadded that thejudgnient requested by Portugal
would not only involve the determination of a question of the international responsibility of an
absent State; itwould irivolvethe determination of its rights under a Treaty to wliicliitis a Party,
as well as the determinaiion of the validity of the Treaty itself.

Judge Ranjeva wholly approves of the Court for recalling that the right of peoples to
self-determination is one of the essential principles of contemporary international law, possessing
the characteristicof an absolute righterea and for upholdingAustralia'sfirstobjection to tlie

effect that Portugal's Applicationwould oblige the Court to rule on the riglits aiid obligations of
Indonesia. According to Judge Ranjeva, the rights and obligations of lndonesia at issue concern
releasing Australia from its obligations vis-à-vis Indonesia and depriving lndonesia of the benefit
of tlie effects of the principle pacta su-, which it is entitled to expect from tlie 1989
Tinior Gap Treaty, whose validity has not been disputed. The consensual nature of iiiteriiatioiial *
jurisdiction prohibits the Court from adjudicating on the legal interests of a State wliicli lias not
clearly expressed its consent to jurisdiction.

According to the analysis ofthejurisprudence of the Monetarv made by Judge Ranjeva
in his separate opinion, a prior decision, in the sense understood in the Judgement of 1954, is
essential when subjective rights are the object of that prior decision; he voices reservations
regarding thetranspositionof this rule were the prior decision to concern a question of an objective

riglit-. This question required additional explanation sincejus CO- falls witliiiithe
province ofpositive law.

Lastly, Judge Ranjeva enumerates a number of questions wliich reniaiiied open and
uiianswered by virtue of the metliodological clioice iiiade by the Court, exaniples beiiig the
possibility of an interpretation liiiiitingthe domain of tlie Court'sjurisdiction ratiotieiuri solely to
disputes iiivolvingsubjective rights, tlie definition of the notion of the tliird parties falling within
the residual category exterior to the circle of the Parties. For Judge Ranjeva, determining the
framework forthe developmentof international law ispart of theCourt's"scientificresponsibility".

In his separate opinion, Judge Vereslichetintakes tlie view that since the right of the people
of East Timor to self-determination lies at the core of the whole case, the Court should haveIiad
reliable evidence on how far the Application was supportedby tliat people. The necessity fortlie
Court to havethis evidence was only reiiiforcedbythe fact tliat theother party inthe dispute sought
to disclaim the alleged disregardof the legalrights and interestsofthe people of EastTimor as well
as the rights consequential to the status of Portugal as administering Power. However. neither in
the written pleadings nor intliecourseof tlieoral arguments has the Court been provided withsuch
evideiice.

Alttiouglithe UNCharter does not explicitly imposeon the administering Powerthe duty to
consiilttlie people of a non-self-governiiigterritory when the matter at issue directlyconcerns that
people, iitlie view of Judge Veresliclietiiithe jurispriidence of the Court shows that sucli a duty
does exist in international law at the present stage of its development and in the contemporary

settiiigof the decoloiiization process. Theabove duty may be dispensed with only inexceptional
cases whicli carillotbe Iieldto apply in tlie present case. The lack of any evidence as to the view of the people of East Tiiiior. or1\vliose hclialf tlie
Application has been filed. is one of the priiicipal reasons leading to tlic iiiability of tlie Court to

decide the dispute.

Dissentin? opinion of Jud~e Weeramantry

JudgeWeeramantry, in his opinion, expressesagreementwith the Court's decision dismissiiig
the objection that no real dispute exists between Australia aiid Portugal. lle also agrees witli tlie
stress laid by the Court on the importance of self-determination as "one of the esseiitial priiiciples

of contemporary iriternational law".

However. lie differs from the majority of the Court on the question whetlier the Court lacks

jurisdiction on the ground that a decision against Australia would involve a decision conceriiiiig tlie
riglits of Indoriesia, a third State. not before the Court.

The opinion analysestlie Monetar Gvold decision and the prior and subsequentjurispruderice
on this matter, and concludes from this analysis that, having regard to the facts of this case. the
-tau Gold decision is not relevant inasniuch as the Court could determine the matter before

it entirely on the basisof the obligations and actions of Australia alone, without any needto make
ari adjudication on the conduct of Indonesia. A central principle of State responsibility in
international law is the individual responsibility of a State for its actions, quite apart from the
coniplicity of another State in those actions.

The respondent State'sactions, in negotiating, concluding and initiating performance of the
Timor Gap Treaty, and taking iriternal legislative ineasures for its application are tlius justiciable

on the basisof its unilateral conduct.

Tlie rights of self-determination and permanent sovereignty over natiiral resoiirces are rights

prga onines beloriging to the people of East 'Timor, and tlierefore geiierate a correspondiiig diity
iipon al1States. iricluding the Resporideiit, to recognize aiid respect tliose riglits. The act of beiiig
Party to a treaty recognizing tliat East Timor, (admittedly a non-self-governing territory aiid

recognized as such by the United Nations), has been incorporated in anotlier State. wliicli treaty
deals witli a valuable non-renewable resource of the people of East Tiiiior for ail initial period of
forty years. without reference to tliem or tlieir authorized representative. raises substantial douhts
rcgardirig the compatibility of these acts with the rights of tlie people of East Tiiiior and tlie

ohligntions of Australia. Tlie Coiirt could have proceeded to determine wliether a course of action
Iiad beeri riiade out agaiiist Australia on such actions, witliout the iieed for any adjudication
coiiceriiirig Iiidoriesia.

The opinion also Iiolds in favour of the right of Portugal to maintain tliis application as the
adrniriisteririg Power over East Tinior, recognized assuch by the United Nations. The position and

responsibilities of an administering Power which continues to be so recognized by tlie United
Nations are not lost by the mere circumstance of loss of physical control, for such a proposition
would ruii coiitrary to the protective scheme embodied in the United Nations Charter for the care

of rion-self-governing territories.

Dissentin~ opinion of Judge Skubiszewskj

In JudgeSkubiszewski's view the Court liasjurisdiction in this caseaiid the I'ortuguese claims
are admissible. The requirements of judicial propriety are also met. The Court can render a

decision on the merits.

In particular. even if the Court finds itself without jiirisdictionto adjudicate on any issue

relating to the Timor Gap Treaty, the Court could deal with the first submission of Portugal, i.e.,with the status of EastTimor, the applicabilityto that territory of the principle of self-determinatioii
and some other basic principles of international law. and the position of Portugal as administeriiig
Power. This is so because the first submission can be separated from the remaining submissions
which concern exclusively the specific issues of the Treaty. Itis true that the Court refers to the
statusof the territory andto self-determination,and inthis respect JudgeSkubiszewskiconcurs with
the Court (as he also does in regard to the Court'srejection of the Australian objection tliat tliere
is no dispute between the Parties). But Judge Skubiszewski thinks that the Court should have
elaborated on these matters (as there are some unclear points) and included the result of sucti
elaboration in the operative clause. By not doing so, the Court adopted a narrow vie\\( of its

function.

The WN Gold rule does not exclude jurisdiction in this case. The preinise for the
applicationof the rule is lacking here: to decide on al1the submissionsof Portugal,the Court need
not adjudicate on any powers, rights and duties of Indonesia. In this case tlie Court adopted an
extensive interpretation of the rule; this interpretation contrasts witli its earlier
practice. The Court has gone beyond the limit of the operation of Gold.

The Court can decide on the lawfulness of some unilateral acts of Australia leadiiig to tlie
coiiclusion of the Treaty. A decision tliereon does not imply any adjudication ori Iiidonesia, nor

does it involve any finding on the validity of the Treaty (which the Court is iiot coiiipeteiit to
niake). Theconductof Australia can be assessed in the lightof UnitedNations lawand resolutions.
Such assessment is not linked to any passing upon Indonesia'sactivities.

Portugal hasthe capacity to act before the Court inthis case on behalf of East Timor aiid to
vindicate the respect for its position as administering Power.

In discussing and defining the present status of the Territory (i.e., after aniiesation by
Indonesia) the rule of non-recognition is relevant. In the instance of East Timor, recogiiitioiiof
aniiexation erodes self-determination. The position of Portugal as adniinistering Power was

questioned by Australia; the Court should have clarified tliis issiieIt is within itsjurisdiction.

Even if the Court's Judgnient is legally correct (which itis not), tlie Court'sfunction caiinot
be reduced to legal correctness aloiie. Otlierwise the Court would restrict its fuiiction to the
detriinent ofjustice and of the basic constitutional riile thaitis "the principaljudicial organ of the
United Nations". That restrictive approach is illiistrated by the Judgment and it is cause for
concern.