INTERNATIONALCOURTOF JUSTICE
(PORTUGALTv.AUSTRALIA)
REJOINDER
GOVERNMENTFTOFAUSTRALIA
1JULY 1993 TABLE OF CONTENTS
CHAPTER 1 The substance of the dispute ..................... 3..................
SectionII: Portugal'snegative propositions................4........................
SectionIII: Portugal's positive propositions..............10...........
A. Faiiureto . .pecttheEastTimoreserightto
self.detemmation. et.................................................
B. ExclusivePortuguesecapacityto representEast
Timor ...........................................13............................
C. Portuguesestatus.......................................................
D. Appurtenanceof atleastpartof theTreatyareato
EastTimor .......................................15............................
E. Violationof SecurityCounciiResolutionsand
failureto CO-operain goodfaithwith theUnited
Nations...........................................6...........................
SectionIV:onAbstractandumal characterof the"dispute"..............
presentedby Portugal...........................................
SectionV: Conclusion ....................................8......................
CHAPTER 2 The factual issues ............................. .........................
Section1: Australia's actioinrelationto EastTimor .........
SectionII: The recognitionof thetatusof EastTimorby
theinternationalcommunity .................................
Section III:EastTimorandtheUnited Nations .......................
PART 1 THE INADMISSIBILITY OF THE APPLICATION .........5....
CHAPTER 1 Portugal's claimsrequire the Court to pass on
the rights and obligations of a third State in its
absence and without its consen.................. 37..............
Section1: General consideration.......................................
SectionII: situationdiffersinanyrelevantrespect from
thatof Albaniain theMoneta~ Goldcase ............
Section III:TheCourt has contïmed the MonetamGold
principle....................................4.......................... A .Decisions ofthe Courtbefore the PhosphateLands
case.............................................4.................
.......
B .The PhosphateLandscase ..........................4.............
SectionIV: A decisionas to Indonesia'srightsand
Australia'sresponsibility.ifan................4.........
SectionV: Indonesia'sresponsibility.if any. motbe
merelyconcurrentwith Australia's supposed
responsibility................................51........................
SectionVI: The decisionsoughtwould depriveIndonesia
as well as Australiaof the benefit of the
Treaty .......................................54........................
SectionVII: Summary ....................................59.......................
CHAPTER 2 The standingofPortugal ........................ 6................
Section1: Portugalas administeringPower................60.........
SectionIk Portugalas representativeof thepeople of East
Timor........................................6.........................
Sectionïik Portugalisnot acoastalStat...................68..........
CHAPTER 3 Judicialpropriety .............................. 7..........................
Section1: Illegitirnateobj.............................71................
SectionII: Inappropriatemeans...........................75..............
PART ii THEMERITSOFTHE CASE .......................... 7........................
INTRODUCTION .......................................... 8...............................
CHAPTER1 Thestgeneral internationallaw....................... 9.....................
Section1: No specialstatusof "administering Power"
exists in intemationall......................9.............
SectionII: Effectof a completeloss of controlby an
administeringPowerin respectof a non-self-
governingtemtory ..............................8.............
A .Lossof controldue to an uprisingby the local
B .Loss of controldue to occupationby a thirdSta.....13......................
Section DI: In the absenceof a contraryUN decision.
Australias free to deal withthe Statein
controlof a non-self-govemingerritor...........0
Conclusions .............................................................
...... CHAPTER 2 There has been no breach by Australia of
Security Council Resolutions 384or 389or of
an obligation to co-operate in goodfaith with
the United Nations............................. ....................
Introduction .............................................137..
.....................
Section1: Therehasbeen nobreach of Security Council
resolutions 384or 389.........................137..........
A. Therehas beenno breachof the terms of the
resolution.......................................13.....................
C. The resolutionswerenot adoptedunderChapterg .....1.8
VI1of the Charter................................14.................
SectionII: There hasbeen nobreach of an obligationto
co-operatein goodfaith withthe United
Nations ........................................3......................
CHAPTER 3 Australia has not acted inconsistently withthe
rights ofthe peopleof East Timor to self-
determination, territorial integrity or
permanent sovereignty over natural resources ......5
Introduction................................................5...............
......
Section1: The rightto self-determinati..................145..
SectionII: naturalresources...............................52............
CHAPTER 4 Australia isnot inbreach of its obligation to
negotiate in goodfaith in respect ofthe
delimitation of maritime area.................. ...............
Section1: Australia'ssovereignrights.....................56.........
SectionII: The duty to negotiat...........................62...........
SUBMISSIONS .................................................... 165...................
APPENDM: PRINCIPAL RESOLUTIONS OF THE GENERAL
ASSEMBLYANDSECURITY COUNCIL TO 1974DEALING WITH
TERRITORIES UNDERPORTUGUESE ADMINISTRATION ....... .....
ANNEXES ........................................................ 183...............
.............................This Rejoinder is subrnittedpursuant to the Order of the Courtof 19June 1992,
as varied by the Order of19May 1993.
In accordance with Article49 (3) of the Rulesof Court, this Rejoinder does not
merely repeat Australia's contentions which are contained in the Counter-
Mernorial,but contains additional contentions directedto the issues whichstill
dividethe Parties. CHAPTER 1
THESUBSTANCE OF THEDISPUTE
Section1: ,introduction
1. In its Reply, Portugal alleges that Australia has attempted "d'une part
d'amputer la demande portugaise, d'autre part de l'élargir, finalementde la
transformer".l Portugal seeks to show that Australia's allegation that the real
dispute is between Indonesiaand Portugal is incorrect and thatthe real dispute
is in fact with Australia. Portugalconcedes that it is for the Court to interpret
the submissions of a Party? while arguing that it cannot modify them.3 But if
Portugal's submissionsare interpreted, it is clear that the real dispute is with
Indonesia. And nothing Portugal says can disguise this fact. Australia
maintains its position set out in paragraphs 12-17 and 206-231 of its
Counter-Memorial.
2. Portugal's real object and purpose is concemed with a resolution of the
broader question of the future of East Timor. Thisis an issue in relation to
which the Secretary-General of the United Nations has beengiven particular
authority. It is a process in which Portugal and Indonesia are the key
participants. This is confirmed by the Portuguese Reply, and the numerous
United Nations documents annexed thereto, as wellas by its earlier pleadings.
3. Portugal is engaged ina continuing dialogue with Indonesia under the
auspices of the Secretary-General with view to finding a solution to the East
Timor issue. It is clear from statementsbefore the United Nations that Portugal
acknowledges the realityof Indonesia's occupationof East Timorbut considers
its presence to be illegal.4 Portugal draws the situation in East Timor to the
attention of the intemational community.s Portugal emphasises that it is
concemed with the situation in East Timor itself including the human rights
situation. Why else does it reproduce in its Reply a lengthy Appendix dealing
with the killings in Dili in November 1991 involving Indonesian military
Reply of Portugal, para.2.04.
2 m.
3 Seee.g. Reply of Portugal, Annex 1.4,Vol.11,p.18.
Seee.g. Reply of Portugal, Annex L3,Vol.11,p.8.personnel?6 The Rules require only relevant documentsto be amexed to the
pleadings (Article 50), and accordingly thismaterial must have been regarded
as directly relevant. Itdoes not concem Australia at all. Portugaleven asks the
Courtto take noticeof facts conceming EastTimor that have occurred since the
Application was lodged.7 But these facts reinforce the fact of Portugal's
concem with a resolution of the East Timor issue through the United Nations.
Portugal's concem is quite legitimate, and it is entitled to raise it in relevant
forums. But this does not show the existence of a dispute with Australia on
whichthis Court can adjudicate. Rather,it shows the opposite.
4. As to the exercise of the right to self-determination, Portugal itself
acknowledges before the Cornmittee of 24 that Indonesia "exerce un contrôle
réel,quoique illégitime"over the territoryof EastTimor.8 It acknowledges that
Indonesia's role will as a consequence be decisive in ensuring the widest
possible representation of political opinion in the dialogue Portugal envisages
occurring as part of finding a just solution to the East Timor issue. An
examination of al1 the circumstances surrounding East Timor, particularly
Portugal's own conduct and statementssince 1975,points a11too clearly to the
fact that thetrue object and purpose of its claim against Australiais the pursuit
of a muchbroader claim against Indonesia.
Section II: portu~al's ne~ative ~rouositions
5. The point can be taken further. As noted inparagraph 1 above, Portugal
complains that Australiahas distorted its claims. But if there is any distortion
of the underlying dispute for the purposes of the present proceedings, it is
attributable to Portugal, which presents an extraordinarily constricted and
artificial version of the disputefor the Court's decision. This can be seen from
a recital of the various matters which, according to Portugal, the dispute does
involve, or which the Court does net need to decide. These include the
foilowing negative propositions:
(1) Negative proposition 1 (the treaty validity point): The Court is
requested to detemine the validity or invalidity of the 1989 Treaty
(Replyof Portugal, paras.2.08-2.17,6.76,7.19-7.21).
6 Replyof Portugal,Vol.iipp.245-338.
Replyof Portugalpara3.03.
Replyof PortugalAnnex 1.22,Vo1.Up.135. (2) Negative proposition 2 (the Indonesian intervention point): The
Court is net requested to determine whether Indonesian military
intervention in East Timor was lawful or unlawful, or to determine for
itself the legal consequences for States of any such illegality. In
particular Portugal does not rely on a duty of non-recognition of
Indonesia's sovereignty,but on a duty not to misrecognise Portugal's
status (a duty of "non-méconnaissance")(Replyof Pomigal, paras.2.05,
6.16. 9.02; see also Reply of Portugal, paras.2.19-2.20, 5.79, 6.30,
7.28).
(3) Negative proposition 3 (the sovereignty point): The dispute is
about which of two claimant States, Portugal or Indonesia, has
sovereigntyover East Timor. Onthe one hand, Portugaldisclaimssuch
sovereignty (Reply of Portugal, para.4.57).9 On the other hand
Indonesia, which does claim sovereignty, is not a party to these
proceedings.10
(4) Negative proposition 4 (the maritime delimitation point): The Court
is net requested to engage in any form of maritime delimitation in
relationto the disputedarea (Replyof Portugal,paras.5.81,6.73).-
(5) Negative proposition 5(the treaty content point): The dispute is net
about the content of the 1989Treaty; Portugal implicitly accepts that
the Treaty could be entered into by a State entitled to represent the
people of EastTimor.
(6) Negative proposition 6 (the Portuguese compliance with self-
determination point): The Court is asked to determine whether
Portugal has acted consistentlywith the principle of self-determination
in its conduct in relation to East Timor: Portugal accepts that a third
State such as Australia would have been entitled to deal with Portugal
in respect of East Timor whether or not Portugal was complying with
the pnnciple of self-determinationin relation to that transaction (Reply
of Portugal,para.5.09).
9
See also Memorialof Portugal,paras.3.08, 5.41; Counter-Memonalof Australia,
l0 Butitshouldbe notedthatPortugaldoesnotclaimtobnngtheproceedingsmerelyinits
capacity asa concemedmernberof theUnited Nations,sothat thatissueis notraised
either (Replyof Portugal,para.8.15). (7) Negative proposition 7 (the Indonesian non-involvement point):
The Court is askedto determine the rights or powersany other State
(such as Indonesia) mayor may not lawfuilyexercise in relation to East
Timor, since the gist of the Portuguese complaintis Australia's failure
to deal with Portugal alone as administering authority (Reply of
Portugal,para.7.10).
6. These are important clarificationsas to Portugal's claims, whichin many
cases were not apparent from its Application or Memonal. The Memorial, for
example, regularly spoke of a duty of non-recognition of situations resulting
fromthe illegaiuse of force.11
7. But these "clarifications", added to the formidable list of negatives
already present in the PortugueseMemoriai,raise the question why the dispute
ispresented in this tortuousand abstractedway. The answer appears to be that
each of the negatives listed in paragraph 5 above corresponds to something
which Portugal tacitly accepts that the Court either cannot, or should not, do.
Thus, as to:
(1) the treatyvaliditypoint - the Courtis requested to determine the
validity or invalidity of the 1989Treaty,because that would obviously
involvethe legalrightsof a third State.
(2) the Indonesian intervention point - the Court is net requested to
detemine whether Indonesian military interventionin East Timor was
lawful or unlawful,orto determinefor itself the legal consequencesfor
States of any such illegality (such as a duty of non-recognition),
because that would make the determination of the international
responsibilityof a third State a precondition to the determinationof the
present case, and would obviously contravene the Monetarv Gold
p~ciple.12
(3) the sovereignty point - the Court is net asked to decide whether
Portugal or Indonesia has sovereignty over East Timor, because that
11 Memorialof Portugal, paras.2.15,2.17,8.23-5.
12 The resolutionsof the United NationsGeneralAssemblyand Secunty Council adopted
between 1975and 1982do not establishthatthe occupationof East Timorby indonesia
legality of the Indonesian occupation of East Timort the time the Trewstionof the
w: seeparas.95-97,217-225andPartII, Chapter2of thisRejoinde(çfReply
of Portugal,aras.6.42-6.43,7.28-7.33.) dispute obviously involves, as its very subject-matter, the rights of a
third State.
(4) the maritime delimitation point - the Court is net requested to
engage in any form of maritime delimitationin relation to the disputed
area:
(i) because there is no way that Portugal could claimto be a coastal
State;
(ii) because there is no way that Portugal could giveeffect to any such
delimitation;and
(iii)because a third State claims rights in relation to the whole of the
disputed zone and has not consented to the determination of the
dispute.
(5) the treaty content point - the Court isnetasked to resolve a dispute
about the content of the 1989 Treaty, because that would inevitably
focus on the legal rightsand claims of a third Stateparty to that Treaty,
contraryto the Monet- Goldprinciple.
(6) the Portuguese compliancewith self-determination point - the
Court is not askedto determine whether Portugalhas acted consistently
with the principleof self-determinationin its conduct in relation to East
Timor, becauseeven a cursoryexaminationwould reveal thatthis is not
the case,l3and would raise questions about the real causes of the East
Timor conflictwhich Portugalwishesto avoid.
(7) the Indonesian non-involvement point - according to Portugal, the
dispute isnetabout therightsor powers any otherStatemay or may not
lawfully exercise in relation to East Timor: if it were, it would be
obvious thatthe Court was askedto decide on the legal rights or claims
of that Stateas the very subjectof the dispute.
8. But in tmth, as Australia has alreadyshown in its Counter-Memorialand
as it will demonstrate more fully below, the Court will be required, whether
l3 The Appendix to this Rejoinder sets out the principal United Nationsresolutions dealing
with the temtonesunder Portuguese administration,demonstrating the consistent record
temtones, including inter alia, in relation to East Timor.ionof its non-self-govemingtacitly or explicitly, to do each of the things listed asnegative propositions in
paragraph 5 if it is to decide the present case. To take each of the negative
propositionsin tum:
(1) The treaty validity point: It is obvious that the Court, if it is to deal
with the merits of the present case, must determine the validity or
otherwise of the 1989 Treaty. Portugal argues that the negotiation,
conclusion and implementation of the Treaty (including its
implementationin Au-lian law) are "faits illicites",l4and that there is
a distinction between"validité" and "liceité". As is demonstratedlater
in this Rejoinder, thedistinction is illusory. The validity of a treaty is
nothing other than the lawfulness ("liceité")of negotiating, concluding
and implementingthat treaty. Seebelow,paras.109-111.
(2) TheIndonesian intervention point: Similarly,it will be necessaryfor
the Court to determine whether the indonesian presence in East Timor
in 1989was lawful or unlawful,becauseno Security Council resolution
determines that issue, and because apart from any Security Council
resolution the only way that the Court could hold that Australia was
bound not to recognise the Indonesian presence in 1989 would be by
determining for itself the legal consequences for third States of the
Indonesian interventionin 197.5and its aftermath.15Again the asserted
distinction between non-recognition and misrecognition
("méconnaissance")is illusory: the misrecognition of A for B is the
misrecognitionof both A B.
(3) The sovereignty point: Australia entered into the Treaty in 1989
because it took the view that there was no other coastal State with
effectivepower to negotiate with Australia about the continentalshelf.16
There being no question about Australia's capacity to negotiate with
respect to its own rights and interests in the continental shelf, its
conduct can only be impugned if it is first held that the Indonesian
claim to sovereignty is unjustified. In addition the special legal status
as "administering Power" which Portugal claims as a substitute for
territorial sovereignty is not a distinct legal status at all: see Part II,
14 Reply ofPortugal ,ara6.02.
15 See below, paras.214-230.
l6 See below, paras.40,224,228.See also Counter-Memorialof Australia,paras.401-402. Chapter 1 below. Accordingly, it will be necessary to detemine
whether Portugal was entitled to exercise exclusive powers of
administration over East Timor in 1989, and by exact correspondence,
whetherIndonesiawas not.
(4) The maritime delimitation point: In order to decide this case it will
not be necessaryfor the Court actually to delimitthe continentalshelfin
the region of the Timor Gap (and on this point Australia and Portugal
are agreed). Nonetheless, theimmediateand operativelegal effect of a
decision of the Court adverse to Australia would be to implicate the
rights of a third State in relation to thatcontinental shelf. As noted in
paragraph 26 below,the Court would to that extent be doing indirectly
what both parties (and, in particular, Portugal as the Applicant State)
accept it cannotdo directly.
(5) The treaty content point: Portugal complains about the fact that
Australia has entered into the Treaty with a State other thanitself. It
does not complain about theterms of the Treatyas such. But, while the
Court may not be required to investigate the provisionsof the Treaty in
exhaustive detail, someexaminationof themwill inevitablybe required.
For exarnple,Australia has instanceda largenurnberof bilateral treaties
entered into between Indonesia and otherStates and clearly extending
to East Timor.17 If these treaties are to be distinguished from the 1989
Treaty (as Portugal argues'g),this can onlybe because of the contentof
the latter.
(6) The Portuguese compliance with self-determination point: As noted
in paragraph 5 (6), Portugal accepts thata State such as Australiawould
have been entitled to deal with Portugal in respect of East Timor,
whether or not Portugal was complying with the principle of
self-detemination in relation to thattransaction:Ig this is another facet
of its claim that the contentof the Treaty is irrelevant. Butif this is so,
then Portugal's claimto act merely in the exercise of lirnited public
powers (as distinct from sovereignty) is contradicted. And as already
noted (in sub-paragraph(3) above), the question whether Portugalwas
17 Counter-Mernoriaolf Ausualia,paras.164-166,andAppendixC,pp.213-218.
18 Replyof Portugal,paras.6.14and6.48.
'9 Replyof Portugal,para.5.09. still sovereign overthe temtory in 1989imrnediatelyinvolvesthe rights
and claimsof a third State.
(7) The Indonesian non-involvement point: Finally, given that Portugal
seeks to prevent Australia from giving effect to the Treaty, and from
negotiating or entering into any similar treaty with a third State, it is
clear that the case does directly involve the rights and powers of that
third State in relationto East Timor. If Indonesia had thepower to enter
into the Treaty, then Australia has the obligation to comply with it. If
Indonesia had the power to enter into the Treaty, then it also has the
right to have the Treaty performed.
Section Iiï :ortu~al s oosltiveDroDos ition~
9. The contradictions manifested by the analysis in paragraphs 5-8 equally
appear if one asks what it is that the disp&tabout, according to Portugal. If
the Court cannot do the things referred to in paragraph 5 above, is there
anything that Portugal does ask it to do that it cari do? What does the
Portugue.se case consist of, with all the negatives abstracted? Essentially the
Courtis asked:
A. to hold that Australia has failed to recognise and to respect the right of
the people of East Timortoselfdetermination, to the integrityand unity
of their territory, and to permanent sovereignty over their natural
resources (Memorialof Portugal, Submission 1,first part; Submission
2 (a)),
B. to determine that only Portugal could represent the territoy of East
Timor in 1989for the purposes of the negotiationand conclusion of any
treaty relating to the natural resources of East Timor (Memorial of
Portugal,Submission 1,secondpart; Submission 2 (b); Submission 3);
C. to determinethat this unique capacityof Portugal was then opposableto
Australia (Memorial of Portugal, Submission 1, second part;
Submission2 (b); Submission3);
D. to determine that some part of the area covered by the Treaty
appertained in 1989 to the territory of East Timor (Memorial of
Portugal,Submission3; see alsoSubmissions 1and 2); E. to determine that ~ustralia has violated Security Council Resolutions
384 and 389, and more generallyhas failed in its duty, as a Mernberof
the United Nations,to CO-operate in good faith with the United Nations
in respectof EastTimor (Memorialof Portugal, Submission 2 (c)); and
F. as a consequence of the determinations listed above, to declare that
Australia is intemationally responsible for these wrongful acts, must
make reparation for them to Portugal and the people of East Timor,
must cease further violations, and in particular must abstain from any
acts oftreaty-making or of delimitation, exploration or exploitation of
the continental shelf, or the exercise ofjurisdiction over it in theTimor
Gap zone, either at al1 or without Portugal's consent (Memorial of
Portugal, Submissions4-5).
10. To these propositions, which are at the heart of the Portuguese case,
detailed responses are made in this Rejoinder, supplementing the very full
remarks already given in the Australian Counter-Memorial. In summary, the
responsesare as follows:
A. FAILURETO RESPECTTHEEASTTIMORESERIGHTTO
SELF-DETERMINATION,ETC
11. Portugal asks the Court to hold that Australiahas failed to recogniseand
to respect the right of the people of East Timor to self-determination, to.the
integrity of their territory, and to permanent sovereignty over their natural
resources. To this the following responses aremade:
12. AT THE LEVELOF ADMISSIBILITY: The allegation that Australia has
violated the right to self-determinationof the people of East Timor must mean
one of two things. Either the termsof the 1989Treaty were a violationof that
right, in the sense that Australia acquired resources properly belongingto the
East Timorese. Or the violation might flow from the fact that the Treaty,
whatever its terms, was concluded without the consent of that people, acting
through Portugal as their representative. But in each case the substanceof the
cornplaint - given the matters that Portugal saysthe Court may notor does not
need to decide - is the failure totreat withPortugal as administeringPower.13. The Court cannot examine the terms of the Treaty to determine their
consistencywiththe principlesof self-detemination and permanentsovereignty
over natural resources:
(a) without also determining the extent of East Tirnorese rights over the
resources of the Timor Gap, thus contravening Portugal's maritime
delimitationvoint (see paragraph5 (4)above);
(b) without also determining, apparently, the validity or otherwise of the
Treaty (thuscontraveningPortugal's treatv validitv voint (seeparagraph
5 (1) above). This is on the assumptionthat a treaty whichviolates the
principles of self-determinationor permanent sovereigntyover natural
resources is invalid. This isthe reason why Portugaldoes not insistthat
the various violations aiieged against Australiaare violations of noms
of jus co~ens.20If they were violationsofjus cogens, the Treaty would
be fundamentally invalid, which would contradict thePortuguese case.
But since the Court cannot allow a derogation from the j-
status of a nom, it cannot chooseto give effect toa nom ofjus coeens
as if it were somethingelse.
14. Moreover, Portugalaccepts that the Treaty couldhave been entered into
by a State entitled to represent the people of East Timor (see paragraph 5 (5)
above - the treatv content voint). It also accepts that Australia would have
been entitled to deal with Portugal in respect of East Timor whether or not
Portugal was complying with theprinciple of self-determination in relation to
that transaction (see paragraph 5 (6) above - the Portu~uesecom~liancewith
self-detemination voint). Evidently the cornplaintis not about the content of
the Treaty.
15. As to the fact of the conclusion of the Treaty, this involves Indonesia
even more directly. For if there is a duty, given the status of the territory as a
non-self-governing territory, to obtain the prior consent of the people for a
treaty of this kind, that duty must lie primarily on the State purporting to
represent the temtory and people of East Timor. Indonesia claims to represent
that temtory and people. It is Indonesia thathas acted as the coastal State in
relation to the temtory of East Timor, not Australia. Australia has to represent
its own interests, and its own peopleand territory. Australiadoes not claim the
authority to decide, and couldnot decide, whether the interestsof the people of
20 See Memonalof Portugal,para.4.71.See alsoReplyof Portugal,para.5.33.East Timor are sufficiently protected,or whether their consent was sufficiently
ascertained. Whatever duties of that kind existare imposed necessarily on the
State purporting to representhem. So again, the burden of any Portuguese
complaint is, in reality, directed against Indonesia.s the Court cannot
decide on whether the mere conclusion of the Treaty was a violation of the
principles of self-determination and permanent sovereignty over natural
resources withoutalso decidingon:
(c) the rights or powers a third State may or may not lawfully exercise in
relation to East Timor (thus contravening the Portuguese position
referredto inparagraph5 (7) above-the Indonesian non-involvement
Doint).
The fiding of incapacityon the part of Indonesia isan essentialpreliminaryto
theaiiegationagainstAustralia.
16. AT THELEVELOFTHE MERITS: As Austraiiamakes clearbelow, it does
not deny the right of the people of East Timor to self-determination or to
permanent sovereignty over their natural resources. What itdoes deny -
against a background of persistent Portuguese neglectof East Ti-oris that
Portugal any longer effectively and exclusively exercises powers of
administration over Eastimor. These issues are discussedin detail in Part II,
Chapter 1.
B. EXCLUSNE PORTUGUESE CAPACITYTO REPRESENTEAST
TIMOR
17. Portugal asks the Court to determine that its exclusive capacity to
represent the territory of East Timor for the purposes of the negotiation and
conclusion of any treaty relating to its natural resources was and remains
opposableto Australia. To this the followingresponsesare made:
18. AT THE LEVEL OF ADMISSIBILITYT : he Court cannot determine that
Portugal alone had the capacity to enter into such a treaty without also
determining:
(d) that Indonesia did not have that capacity, thus contravening the
Indonesian non-involvementuoint (seeparagraph5 (7) above); (e) that the Treaty is invalid. A treaty entered into with a State other than
the State solely competent to enter into that treaty must be invalid.
Thus Portugal's argument contradicts its own concession, t@&y
validitv point (seeparagraph5 (1) above).
19. Moreover since Portugal accepts that a State lawfully occupying a non-
self-goveming temtory (even thoughnot as sovereign) couldhave entered into
the 1989Treaty (seethe Portuguese positionsrefemd to inparagraphs5 ((5)
and (6)above), the Courtcannot determine that Porîugalalone had the capacity
to enter into suatreaty withoutalso determining:
(f) that indonesia was not lawfuliy occupying East Timor in 1989, thus
contravening the indonesian interventii oint(see paragraph5 (2)
above).
20. AT THE LEVEL OF THE MERITS: It isarguedbelow that it does not follow
from the fact that the United Nations has referred to Portugal as the
"administeringPower" of East Timor that Portugal has the exclusive capacity to
represent East Timor (see PariiC,hapter 1).In particular, it is argued that
Portugal's capacity to enter into treaties in respect of the natural resources of
East Tir had ceased even before December 1975, and that that capacityhas
neverrevived or ben revived.21
C. OPPOSABILITYVIS-A-VISAUSTRALIAOFTHIS EXCLUSIVE
PORTUGUESE STATUS
21. Portugal asks the Court to determine that its exclusive capacity to
represent thetemtory of East Timor in 1989for theposes of the negotiation
and conclusion of any treaty relating to its natural resources was andremains
opposableto Australia. To this the followingresponses are made.
22. AT THE LEVEL OF ADMISSIBILITY: The Court Carnot determine that
Portugal'sexclusivetatusto enter into such a treaty wasopposableto Australia
Seebelow, paras.206ff.at tlic rclc\.:l~ittilllc \350Idetermining,in additionto the matters referred
to in piiriigrapS-19 above:
(g) that Indonesiahad no such capacity, thus contravening the Indonesian
non-involvementuoint (seeparagraph 5 (7) above).
23. AT THE LEVEL OF THE MERITS: It is argued below that any daim of
Portugal to be the onlyState having capacity toenter into a treaty on behalf of
East Timor was not opposable to Australiain 1989, since Australia was in the
circumstances permitted by international law to recognise Indonesia as so
entitled.22
D. APPURTENANCEOF AT LEAST PARTOFTHE TREATY AREATO
EASTTIMOR
24. Portugal asks the Court to determinethat the act of Australia in entering
into the Treaty was a violation of East Timorese rights. Thus it is required to
say that at least somepart of the temtory coveredby the Treaty is attributable to
East Timor. If it were not, therewouldbe no violationof East Timorese rights.
To this the foilowing responses aremade.
25. AT THE LEVEL OFADMISSIBILITY T:he Courtcannot determine that any
part of the territory coveredby the Treaty is attributable to EastTimor without
also determining:
(h) that Indonesia has no valid claim with respect to that area, since if it
did, Australia could lawfully deal with it in respect of its claim (this
contravenesboth the Indonesian interventionuoint (see paragraph5 (2)
above) and the Indonesian non-involvement i oint(see paragraph 5 (7)
above);
(i) since Australia claims thatthe whole of the zone coveredby the Treaty
appertains toit under intemational law, that some partof the Australian
maritime claim is without substance, thus contravening Portugal's
maritime delimitationuoint (seeparagraph5 (4) above).
26. AT THE LEVELOF THE MERITS: Australia agrees with Portugal thatthe
Court has no competence to delimit the continental shelfin the region of the
22 SeePar tIChapter1position in 1989, which will inevitablyinvolve the Court in considering,inter
a:
(1) which Statenow has sovereigntyor goveming powersover EastTimor,
which Portugal accepts it cannot do (see paragraphs 5 (3) and 5 (7)
above - the sovereigntv oint and the Indonesian non-involvement
Douit).
30. The same considerations apply, a fortiori, to the obligationto co-operate
in good faith with the UnitedNations. That is a general andcontextual matter,
which of its nature cannot give rise to an automatic obligation of non-
recognition such as to absolve the Court of the obligation to consider the
underlying dispute and its legal consequences. Moreover, Portugal has no
special right or functionto enforcethis duty of good faith, whichis owedto the
United Nations. The United Nations itself has never complained of Australian
non-compliance, and has not charged Portugal with any function of
enforcement. As already noted, Portugal disclaims anyright to act in this case
sirnplyas a memberof the UnitedNations.25
31. ATTHELEVEL OF THEMERITS: It is argued below thattherehas been no
violation by Australia of the relevant Security Council resolutionsand that, in
any event,those resolutionswerenot bindingunder Article 25 or Chapter W of
the Charter. Norhas there been any violationof any general obligation of co-
operation with the United Nationsin relation to the dispute:ee below, PartI-,
Chapter2.
F. CONSEQUENTIALOBLIGATIONSOFREPARATION
32. Portugal seeks from the Court a variety of orders within the general
frameworkof cessation, re.arat.on,and non-repetitionof unlawfulconduct: see
paragraph 9.F above. Since these orders are consequential upon the
determinations listed above, they are subject to al1of the contradictions and
deficiencies already analysed. For example the Court could notenjoin a State
from exploiting its own natural resources onits own continental shelf, an area
subject to its sovereign rights.26 Yet Portugal accepts that the Court is not
25
26 Seefootnote10above,and~ara.124below.
Ausaaliaproposestoexploitthat patf thecontinentalshelf which appenait (see waycompetent to determine within which part of the Treaty area Australia has
sovereignnghts. The remedysought is inconsistentwiththis acceptance.
33. SinceAustraliadeniesthat ithas committedanyviolation of international
law, the issuesof cessation, reparation,and non-repetition do notanse. But the
remedial issues raisedby Portugal are briefly discussed in paragraphs 163-166
below.
SectionIV: mact and unreal character of the "dis~ute"~resentw
Portugal
34. Even if the Court was minded to overlook these contradictions and
inconsistencies and to accept the very narrow and particular way in which
Portugal frames its case - including both the negative aspects (paragraph 5
above) and the positive aspects (paragraph 9 above) - the case would be
inadmissible. This is because the dispute as presented by Portugal contains so
many negatives (things the Court isnot asked or is not able to decide) that it is
incapable of decision because it is abstracted from the real situation and
"remote from realityW.*7 For example, the Court is not asked to determine the
illegality or otherwise of Indonesianuse of force. But the obligationof a third
State towards a lawful occupant of a self-determination territory is quite
different from its obligation towards an unlawful occupant. Since most of the
actual disagreement about East Timor at the multilateral level is based on the
assumption that indonesian presence is or may be unlawful, then the Court is
presented withan umal issue. It cannot decide the issue on theonly basis that
reflects Portugal's legalposition in the real world, as distinct from its position
within the framework of the quite artificial construct presented by it to the
Court.
SectionV: Conclusion
35. For these reasons, the dispute presented by Portugal is rife with interna1
contradictions and inconsistencies,both with respect towhat it asks the Courtto
do and with respect to the matters it accepts the Court cannot decide. The
substance - the legal reality- underlying the claim is that of a dispute to
- -
27 Northem Cameroom case,ICI Reports1963,p.33.which Indonesia is a primary Party. And, for the reasons given again in
Section II of this Chapter of the Rejoinder, the Court cannot decide such a
dispute in the present case. But even if the Court was minded to overlook these
contradictions and inconsistencies, the case would be inadmissible,because the
dispute so presented would be quite unreal. It would be "remote from reality"
for somewhat different reasons from, but with exactly the same effect as, the
claim in the Northern Cameroons case.28 Whether forone set of reasons or the
other, Portugal's claim is inadmissible.
36. The legal consequences that result from this analysis will be examinedin
more detail below. They affectboth the admissibility and the substance of the
Portuguese claims. Beforeturning to these aspects, however, it is necessary to
respond to the Portuguese treatment of the history of the events surrounding
East Timor, and in particular its characterisation of Australia's role in those
events.
28 ICJReports1963,p.15. CHAPTER2
THEFACTUALISSUES
37. Portugal in its Reply acknowledges that many of the key factual issues
are not disputed.29 However, in its Reply it seeks to distort certain positions
taken by Australia and to introduce new and largely irrelevant matenal. In this
Chapter Australia responds to this, as far as necessary for the purposes of the
case.
Section 1: Australia's actions in relation to East Timor
38. Throughout the penod East Timorhas been on the United Nations agenda
Australiahas supported the Secretary-Generalin his efforts to find a solution to
the situation. It supportedthe effortsthat weremadeby Pomigal, Indonesiaand
the East Timorese parties themselves in the period prior to November 1975 to
find a mechanism by which the people of East Timor could exercise in an
orderly way their right to self-determination. Therecord of Australia's conduct
during this penod is setout in paragraphs 57 to 71 of its Counter-Memonal.
39. Australia is therefore astonished to find the Portuguese Reply used asan
occasion to question at length the motivation and integrity of Australian policy
towards East Timor from 1941until today.30Without seeking to answer ail the
gratuitous suggestions made by Portugal, Australia addresses those which it
considers of most relevance to this case. In particular, it denies the suggestion
that in someway its officia1policy was to encourageand support the Indonesian
use of force against East Timor and was otherwise a policy of abstention and
passivity so far as the problems of East Timor were concemed.31 Portugal
asserts that Australian policy in relation to East Timor has been motivated
principally by the desire to get access to potential (as yet unproven) petroleum
situated on the continental shelf off East Timor.32 In particular, Portugal seeks
to rely on inferences drawn by joumalists or cornmentators and not officia1
Australian statements to support its assertions. It also seeks to elevate one
29 Replyof Portugal,para.3.03.
30 Replyof Portugal,paras.3.51-3.81.
3 Reply ofPortugal,paras.3.72-3.75.
32 Replyof Portugal,paras.3.76and3.79.communication from the,Australian arnbassadorto Indonesia in August 1975
into a statement of Australian policy. Portugal itselfacknowledges that this
statement did not correspond to officia1 policy.33 And an examination of
Australian statements and actions confirmsthis.
40. It mustbe remembered thatno petroleum deposits haveyet been found in
the Timor Gap area. Suggestions of large oil deposits are based solely on
speculation. Australia has, however, understandably sought to reach agreement
on the continental shelf boundary in the area, recognising that without some
form of agreement any explorationin thearea is unlikely and that resolutionof
the issue in the event that petroleum is foundwouldbe much more difficult. It
initiated moves to reach agreement on this issue with Portugalin 1974,before
any of the events involving Indonesia occurred. Clearly,what wasimportant to
Australia was to negotiate a continental shelf boundary with whoever wasin
control in East Timor in order that its legitimate interestsin its offshore areas
were protected. It did not favour in this regard Indonesia over Portugal.
Negotiations with Portugal didnot, in fact, take place. This was in part the
result of the Portuguese desire to await developments at the Third Law of the
Sea Conference. And negotiations with Indonesiafor a final continental shelf
delimitation were not successful. It was only when Australia and bdonesia
agreed to put aside the location of a final seabed delimitation line and
negotiated over joint developmentof possible petroleum in the area in dispute
that agreement was able to be reached.on a joint developmentzone. This was
reflected inthe 1989Treaty.
41. As Australia made clear in its Counter-Memorial, and as it reiterates
again, it has at al1times expressed regret at the actions of Indonesia and has
maintained its opposition to the manner of Indonesia's incorporationof East
Timor.34 In a statement of 30 October 1975the Australian Foreign Minister
said:
"The Australian Government has urged that Indonesia
pursues her interests through diplomatic means. We have
told the Indonesians that we remain opposed to the use of
armed force. We have also said that we arefirm in theview
that the people of Portuguese Timor should be allowed to
determine their own future. We haveurged the Indonesian
33 Counter-Memonaol,lf Ausualia,paras.61,68,69. authonties to reaffim their own publiccommitment to the
principle of self-detemination inPortugueseTimor."35
h a statement on 29November 1975, the Foreign Minister in the Australian
Govemmentthat had replacedthe formergovemment on 11Novembersaid:
"The Australian Govemment's view remained that talks
between the Timorese parties and Portugal offered the best
hope of bringing an end to the continuing bloodshed in
Timor and of restonng an orderly processof decolonisation
in the territory which would enable the people of the
temtory to decide their own future. It was in the hope of
facilitatingthese talks that the Australian Government had
recently reiterated the offer of an Australian venue for
them.*'N
After the Indonesian occupationof EastTimor, Australia continued tomaintain
its opposition to hdonesia's use of force - see the statement of 7 December
1975and subsequent statementsby the Ministerfor Foreign Affairs.37Andthis
position has been consistently maintainedsince. Thus, when in January 1978
Australia announced itsdecision to recognisede fact~ indonesian sovereignty
over East Timor, it reiterated that Australia "remainscritical of the means by
which integration was brought about". The statement by the Foreign Minister
saidthat the Australian Govemment"deplored" thedevelopmentsin EastTimor
"above all the use of force by indonesia".38And again, as the Foreign Minister
said in December 1978 when it was announced that the negotiationsover the
seabed between Australia and EastTimor would commence,this did not "alter
the opposition which theGovernmenthas consistently expressed regarding the
manner of incorporation".39
in a note to Portugal in January 1990,foliowing the signingof the Timor Gap
Treaty in December 1989it was said:
"Australia reiterates that Australia's recognition of the
incorporation of East Timor into hdonesia in no way
condones the use of force by indonesia. Australia's active
35 Counter-Mernoria of AustraiiAnnex10.
36 Counter-Mernoria of Austraii, nnex11.
37 Counter-Mernona oif AustraiiAnnexes12.13, 14 and17.
38 Counter-Mernona oif AustraiiAnnex21.
39 Mernoriaoif Portugal,Annex111.37. support for the rights of the people of East Timor is well
documented."40
42. An examinationof Australian actionsduringthe 1974-75period indicates
an awareness of the difficult situation that existed in East Timor and of the
reality that simple solutions were not possible. It encouraged Portugal and the
East Timorese parties to resolve their differences peacefully, whichis precisely
the United Nations position. It was not for Australia, however, to assume a
principal role in this dialogue andit cannot be criticised for not doin~0.~' It
supported United Nations resolutions in 1975 and 1976 and continues to
support United Nations involvementin a settlementof the EastTimor situation.
As Australian statements since 1978have stressed, its principal motivation in
relation to its policy on East Timor has been the need to take account of
realities. And this necessitatesawillingnessto deal with Indonesia,as the State
in actual control of the temtory. Onlyin this way is it possible for Australia to
ensure that the needs of the East Timorese for humanitarian aid and other
assistance can be met and that Australia's own legitimateand legally protected
interestsin itsoffshore areascanbe protected.
43. The reaction by Australia to the killings in Dili in 1991 also indicates
Australia's continuing concern at the human rights situation in East Timor.
Australia strongly condemned the killings and called on the Indonesian
government to ensure proper steps were taken to discipline those responsible.
The texts of Australian government statementson East Timor at this time are
set out in Annex 1 to this Rejoinder. For instance, the Australian Prime
Ministersaid in theAustralianParliamenton 13November 1991:
"We are, of course, as a government, very deeplydisturbed
by the reports of this tragedyin Dili yesterday. Wedeplore
the loss of innocent life. While many details remain
unclear, it is now evident that an appalling tragedy has
occurredin which many people havebeenkilled ..We have
urged the Indonesian Government to conduct a thorough
investigation and publisha full and factual accountof what
happened and why."42
Memorialof Portugal,Annex111.26.
41 CfReplyof Portugal,para.3.71.
42 Annex1,p.A2.Subsequently on27 November,thePrimeMinistersaid:
"The essence of the approach thatwe intendto adopt in the
wake of what is undoubtedly a tragedy is to usethe close
and effective working relationships that we have built up
with Jakarta in recent years to urge the Indonesian
Govemment to respond positivelyto this tragedy which has
occurred. When 1talk about a positive reaction from the
Indonesian Government, we believe that that positive
response requires, without any question, an objective and
thorough inquiry, and it certainly requires appropriate
punishment for those found responsible. We believe also
that it requires a new momentum initiated by the
Govemment of Indonesia in achieving a resolution of the
conflictinEastTimor.
1 do not avoid the fact in any way ...that there is a
continuing conflict in East Timor. The Indonesian
Govemment, in our view has to seek a resolution of that
continuing conflict andundentand that the military solution
is no solution. Itill not solve the continuing running sore
and tragedy of East Timor in military ternis. It must
understand that. 1 have said that the Indonesian
Governrnent mustmake renewed efforts not to meetjust in
some formaltokenisticwaybut to sitdownand talk with the
people of East Timor, including the people from the
resistance.'"3
The Australian Senate also adopted a resolution on27 November condemning
the Dili killing." Strong responses were madeby Australia and by other States
calling on Indonesia to deal with those responsible. But these responses
themselves illustrate that thereality of Indonesian controlof thetemtory cannot
be ignored. Portugal is clearly in no position to take action. The most recent
statement on East Timor, made in May 1993 by the Australian Foreign
Minister, following the Xanana Gusrnaotrial,is at Annex 3.
43 Annex1,p.A5.
44 Annex2.Section II: The rec~pnition of the status of East Timor bv the
jnternational communite
44. The reality of Indonesian controlof East Timorhas been recognisedby a
significant number of States. The assertionby Portugal that only Australia has
recognised Indonesian sovereigntyover EastTimor45isuntrue.
45. The position of States in relation to Indonesian control of East Timor
takes a variety of forms. There are those States who say that a valid act of
self-determination took place in 1976 as a result of which the East Timorese
people have chosen integration with Indonesia. This includes the Philippines,
Singapore, Thailand and Malaysia.46 These are the States geographically
closest to Indonesia. See also the statements of Bangladesh, India, Iran, Iraq,
Jordan, Morocco and Singapore, set out at paragraph 175 of the Australian
Counter-Memorial.47 The position of these States goes further than that of
Australia, which does not accept the validity of the 1976 act of
self-determination.48Their action in recognising the act of self-detemination
plainly involvesthe unqualified recognitionof Indonesian sovereignty.
46. A number of other States accept the reality of the incorporation of East
Timor, but without expressing any view whether the peopleof East Timor have
already exercised their right of self-determination. Among these are certainly
the United States and New Zealand,whichhave made officialstatementsto that
effect. These statements have been understood as a legal recognition of the
situation. For example, the United Kingdom Minister of State at the Foreign
Office on 25 November 1991 asserted that Canada, New Zealand and the
United Stateshad givende iure recognitionto Indonesia's incorporationof East
Timor.49 A number of other States have also made statements in the United
Nations accepting the realityof the incorporation. These Statesinclude Canada,
Japan and PapuaNew Guinea.50
45 Replyof Portugal,paras.5.76,6.60,9.19.
46 Counter-Mernorio ai Ausualia,para.175.
47 See alsoCounter-Mernorioai Austraiia, aras.128,134, 136, 140.
48 Counter-Mernorio al Ausualia,Annex20.
49 Reproduced inBritish Yearbookf InternationLlaw,Vol. 62, 1991,p.569.
50 SeeCounter-Mernorio af Austraiia, aras.l75,339-345.47. In the UnitedStatesof America,intestimonyin 1977before the Houseof
Representatives Committee on International Relations by the Deputy Legal
~dviser, Departmentof State,the positionwas statedas follows:
"The US Government did not question the incorporationof
East Timor into Indonesia at the time. This did not
represent a legal judgment or endorsement of what took
place. Itwas, simply, thejudgment of those responsiblefor
Our policy in the area that the integration was an
accomplished fact, that the realities of the situation would
not be changedby Ouropposition to what had occumd, and
thatsuch a policy would notserve Ourbest interests in light
of the importanceof OurrelationswithIndonesia.
It was for these reasons that the United States voted against
UN General Assembly Resolution 31/53of December 1,
1976, which rejected the incorporation of East Timor into
Indonesia and recommended that the Security Council take
immediate steps to implement its earlier resolutions to
secure exercise by the people of East Timor of their rights
of selfdetermination.
1thinkit is importanttostate that1donot viewUSpolicy in
the case of East Timoras settinga legalprecedentfor future
cases. The fact is that decisions whether or not to treat an
entity as part of another entity are most often taken as
political decisions on the basis ofal1the circumstances of
the particular case in what is perceived as the national
interest.An important factor tobe considered obviously is
our cornmitmentunder articles 55 and 56 of the UN Charter
to promote respect for human rights including the right of
self-detemination.
However,the questionremainswhat we are requiredto do if
this rightis not observed as we might wish in asituation in
which we believe that efforts by us to change the situation
would be futile, probably would not be of any help to the
people coricemed, and would be injurious to other national
interestsof the UnitedStates. We donot believethat we are
required insuch circumstancesto refrain from actingon the
basis of the prevaiiiigactualsituation."51
Annex 4.In a staternent in Septernber 1982before the Cornrnitteeon Foreign Affairsof
the United States House of Representatives, the Assistant Secretary for East
Asian andPacific Affairs said:
"We accept the incorporation of East Timor into Indonesia,
without recognising that a valid act of self-determination
has takenplace there.
We sirnplySayit isimpossible and impractical totum back
the clock. Our efforts now are concentratedon doing what
we can to improve the welfare of the Tirnorese people.
Particularly, we have found that progress can be achieved
only by working closely with the Indonesian Governrnent
and with the international organisations active in East
Timor."52
This position has beenrepeatedsubsequentlyby the United States.
48. In December 1978,theNew ZealandMinister for Foreign Affairssaid:
"New Zealand abstained on the United Nationsresolution
about ~ast Timor because it feels that the situation thereis
irreversible...we could not in good conscience support a
resolution that would clearly encourage those people to
continue their struggle when we believe that they cannot
succeed.''~3
49. Portugal atternpts to show that anumber of European States, including
the United Kingdorn, ~witze'rlandor Sweden do not recognise Indonesian
sovereignty. These views are far less significant than the views and actionsof
the regional States who are required, as is Australia, to deal on a regular basis
with Indonesia in relationto the situationin East Timor. Butan examinationof
what the European States have said discloses that they use measured and
restrained wording. They do not explicitly assertthat the people of East Timor
have a right to self-determination. For instance, the Council of Europe
Committeeof Ministers on 26 November 1991said:
"The Ministers reaffirmed their support for a just,
cornprehensive and internationally acceptable settlernentof
the issue, respecting the principles of the United Nations'
Charter, taking into account the need to defend hurnan
rights andfundamentalfreedorns,and thefull respect of the
5* Annex5.
53 Annex6. legitimate interests and aspirationsof the population of this
territor.""
The European Commission has expressed alrnost identical views.55 This is a
statement with which Australiawould agree. But it shouldbenotedhow farthe
reference to "the legitimate interests and aspirations of the population of the
territory" is from the formulation"the right to self-determinationof the people
of EastTimor".
50. When one examines the various statements by States as to the status of
East Timor, the only conclusion that one can draw is that a large number
recognise the reality of Indonesian control. Whether this is expressed as a
situation existing de iure, de facto or only implicitly does not matter. The
distinction in the nature of the recognition is irrelevant for present purposes.
International lawis "indifferent tothe formof recognition".56
51. One would expect a different reaction to thequestion of the recognition
of a temtorial situation from a neighbouring State that is required todeal on a
day to day basis with the State laying claim to that territory and in effective
control of it than one would from a State that is not geographicallyproximate.
In Australia's case, the sorts of transactions in relation to East Timor which it
needs to enter into with Indonesia to protect its own interests are significantly
different from those of other States. There is no other State that is
geographicaiiy situated so that it asserts coastalStatejurisdiction in the waters
and seabed in the area necessitating a delimitation with the waters and seabed
appurtenantto East Timor. Australia is ina unique position in this regard andit
is not, therefore, altogether surprising if this necessitates a different practical
response tothe situationin EastTimorfrom the responseof other States.
52. Portugal seeks to dismiss Australian reliance on double tax treaties as
evidence of implicit recognition of Indonesian sovereignty.57 It seeks to say
that the acceptance by States in a bilateral treaty of a definition of a State as
defined in its domestic law carries no implication of recognition on the
international plane. But this is to ignore the situation. The position of
Indonesia is that East Timor was incorporated as its twenty-seventh province,
foilowing an act of self-determination in 1976.58 Since then, East Timor has
54 Replyof Portugal,Annex111.16V, ol.IIi,p.324.
55 SeeReplyof Portugal,Annex 111.V,o1.111,.304.
56 DPO'Connell,Internationa Law (1970)Vol. 1,p.162. Seefurtherpara.226below.
57 Replyof Portugal,para.6.14.
58 SeeCounter-Memonao lf Australi, aras.54-55.been treated by Indonesia as having the same status as any other Indonesian
temtory.59
53. Whatever the position may be with regard to multilateral treaties, or
treatiescontainingtemporary arrangements, bilateral treaties regulatingwithout
reservation or qualification the relations between States in respect of defined
temtory must be taken to show that thetemtory is recognised as subject to the
sovereignty of each of the States party to the treaty. This is the case withthe
double tax treaties referredto by Australia. Portugalargues that the acceptance
by States in such treaties of definitions of "Indonesia", which quite clearly
embrace East Timor as part of its territory to which the treatywill apply, does
not amount to acts of recognitionof Indonesian sovereigntyorjurisdiction over
that territory. But this argument is quite unfounded. Such an act is a
categorical example of the contracting State's willingness to deal with
Indonesiain relation to &lits claimed territory, includingEast Timor, on a basis
of normality. As Lauterpachtsaid:
"In the case of bilateral treaties the presumption of
recognition appears to be cogent to the point of being
conclusive."60
The significance of the particular double tax treaties is apparent by a
cornparison with the wording used prior to 1976. Those treaties concluded
before 1976 (e.g., those with the United Kingdom, the Netherlands and
Belgium) refer simply to Indonesiaas comprising"the temtory of the Republic
Those concluded after 1976,with the exception of those with
of Indonesia".
Australia and the United States, refer to "the temtory of the Republic of
Indonesia as defined in its law ...."61It is impossible to believe that States
entering into such agreements,knowing of the United Nations considerationof
East Timor and the Indonesian attitude thereto, entered into the treaties so
worded without understanding the meaning of the phrase "the Republic of
Indonesia as defined in its iaw". The effect of the treaty, in each case, is to
commit the other States to treating East Timor as part of Indonesia for the
purposes of the treaties. Thatis equivalent to recognitionof that fact.
54. Portugal's suggestion thatthe revised wordingwas adopted to avoid any
effect on the international law plane is incorrect. The treaties are asmuch a
59 Seefurtherpara.227below.
60 HLauterpachtR , ecoenitionin InternatLlaw(1947),p.375.
61 SeeCounter-Memoria olfAustraliAppendixC.dealing with Indonesiain relationto the temtory of East Timoras is Australia's
actions under the Timor Gap Treaty. The tax treaties accept that tax liability in
relation to income from the temtory of East Timor will in certain cases be
govemed by Indonesian law. That is the same in kind as a treaty whereby
Australia agrees that Indonesiantax law will govem exploration in one part of
the offshorearea between Australiaand East Timor (the situationinZone C, the
northem part of the Zone of Co-operation)and wherebythe two States agree to
regulate the application of tax and other laws on a shared basis, as in Zone A.
The Timor Gap Treaty contains its own tax regime, similar in broad terms to
that provided in double tax treaties.62 The bilateral treaties referred to by
Australia are therefore significantevidence of recognition by the intemational
communityof Indonesiansovereigntyandjurisdiction over East Timor.
SectionIII: orandthe Un~ted Nations
55. An examination of United Nations considerationof East Timor in recent
years discloses aconsistent failure to take any substantive action on the issue.
The issuehas been on the agendaof a numberof UnitedNationsorgans.63
56. The ~eneral Assembly since 1983 has received reports from the
Secretary-Generalrelatedto the exerciseofhis goodoffices,and ateach session
has deferred consideration of the question. There have been no resolutions or
substantiveactionby the Assembly.
57. The Cornmitteeof 24 has continued to review the question andhas heard
statementsby MemberStatesand petitioners,but hastakenno other action.
58. The Sub-Commission on Prevention ofDiscriminationand Protection of
Minorities in 1989 and 1990 adopted resolutions on East Timor whereby it
recommendedto the Commissionon HumanRightsthat it considerthe situation
pertaining to human rights and fundamental freedoms in East Timor. It also
encouraged the Secretary-Geneml inhis efforts to find a durable solution to the
situation in East Timor.64 The Commission did not, however, act on these
resolutions. In 1991 no resolution was adopted by the Sub-Commission. In
1992 it adopted a resolution (1992120) which dealt with the human rights
62 SeeAnnexD to theTreaty.
63 See the summary in the working paper prepared by the Secretariat, 17 July 1992
(A/AC.109/1115)(reproducedin Annex 12to thisRejoinder).
64 SeeMemonal of Portugal,Annexes11.100and11.102,Vol.IV,pp.242-243,249-250.situation in East Timor.65This focussed particularly onthe killings in Dili, and
sought the CO-operationof the Indonesian authorities in providing information
and access. The resolution took no position on the broader aspects of the
dispute.
The Commission on HumanRights has also taken little action. In 1983 it
59.
adopted a resolution.66Since then, in 1985it wasannouncedby the Chairman
after action in private session that the situation was no longer under
consideration by the Commission. In 1992 a statement was read out by the
Chairman of the Commission onHuman Rights, agreed by consensus, which
noted with serious concern the human rights situationin EastTimor and deeply
deplored the violent incidentwhich occurred in Dili on 12Novernber1991.67It
didnot addressthe questionof self-determination.
60. In 1993 the Commission on Human Rights adopted a further resolution
on East Timor by 22:15:12.68 Australia voted in support. The resolution
expressed deep concern at reportsof continuinghuman rights violationsin East
Timor, made a number of comments on the aftermath of the Dili kiiling and
welcomed the agreement given by Indonesia to a visit to East Timor by the
Persona1Envoy of the Secretary-General. It also welcomed the resumptionof
talks on the question of East Timor and encouraged the Secretary-General to
continue his good offices for achieving a just, comprehensive and
internationally acceptable settlementof the questionof East Timor. There isno
reference in the resolution to self-determination. There is no reference to
Portugal as administering Power or its role in discharging any particular
responsibilitiesin relation tothe temtory.
61. What is noticeable about these resolutions and actions by the various
human rights bodies is the understandable focus on the general human rights
situation withinEastTimor and the roleof Indonesiain relationto human rights
there. They are silent, however, so far as the right to self-determination is
concerned,and containno recommendation for actionby States,in particularby
third States. This isdespitethe fact,as Portugal stresses,that self-determination
is one of the human rights in relation to which these bodies have a role. It
appears to be acceptedby the human rights bodies that any action in relation to
65 SeeReplyof Portugal,Annexes111.11,Vol.111, p.308-310.
66 Resolution198318: seeMemorialof Portugal,Annex11.75,Vol.IV,p.136.
67 Replyof Portugal,AnnexIII.10,Vo1.3,p.305.
TextatAnnex7.self-determinationin EastTimor is dependent onthe results of the negotiations
occurringunder the auspicesof the Secretary-General.
62. Portugal in its Replyrefers to a number of national reports tothe Human
Rights Committee, made pursuant to Article 40 of the International Covenant
on Civil and Political Rights, and observationsby the Committee.69 It is not
clear what conclusion Portuguese seeksto draw from these documents. It is
noticeable that, in the reports by the Netherlands and Finland dealing with
Article 1and the right to self-determination, referenceis made to those States'
actions with regard toNamibia. No reference is, however,made to EastTimor.
Australia has reportedin 1981and 1987tothe HumanRights Committeeunder
Article40 of the international Covenant on Civiland PoliticalRights. It hasnot
been questionedabout EastTimor. in its first Report in 1981,Australiasaidthe
followingin relationto self-determination:
"At the international level, Australiahas traditionally beena
strong supporter of the right to self-determination. In
relation to Australia's dependent territories, see Part 1,
paragraphs 9-16, whichcontaina note of the discharging of
Australia's obligations in relation to its Territories. The
note refers to Australia's formerTerritorof Papuaand trust
Territory of New Guinea; to Australia's conformityto its
obligations under Article 73(e) of the United Nations
Charter in relation to the Territory of Cocos (Keeling)
Islands; and to its role recently in furthering the goal of
complete interna1 self-government in relation to the
NorthernTemtory and NorfolkIsland."70
There was no question in relation to East Timor, but in response to other
questions on self-determination Australiasaid:
"Replying to questions concerning Australia's position on
current international situations involving questions of
self-determination, andinparticular thatof Namibia and the
Palestinian people, (he said that) Australia was actively
committed to the achievement of the right of peoples to
self-determination. Asan active memberof the Cornmittee
of 24, Australia had played an important rolein the United
Nations decolonization activities, with particular emphasis
on the South Pacific. As a member of the United Nations
Commission on Human Rights, it had supported a number
69 Replyof Portugal,Annexes11.34-38,Vol.11. p.127-214.
70 Annex8. of resolutions reaffirming the right of peoples to
self-determination, for example in Afghanistan and
Kampuchea. As amember of the United Nations Council
for Namibia, Australia had worked consistentlv towards
securing for the Namibian people thefull exerc&e of their
right to self-determination which was at present denied
In the second reportin 1987, Australiareferred to the act of self-determination
in the Cocos (Keeling) Islands in 1984 and the fact that the United Nations
Visiting Mission was unanimouslyof the view that the people of Cocos had
exercised their right to self-determination.72 NOreference was made in the
Report to East Timor, but Australia was specificallyasked about its position
with regard to self-determination in general and specifically with regardto the
South Africa, Namibian and Palestinian people. Australia's response is at
Annex 1 1.
The statement said inpart:
"We have followed with interest the international focus on
continuing application of self-determinationto al1citizens.
It is significant that self-determination isthe first Article of
both International Covenants. This right isnot extinguished
or discharged by a single act of self-determination on
independence after a colonial era. We interpret self
determination as the matrix of civil, political and other
rights which are required toensuremeaningful participation
of citizens in relevant decision making processes which
enable individualsto have a Sayin their future. The process
of self-determination involves a number of aspects
including participation infree, fair and regular elections,the
ability to seek public office and tonjoy freedom of speech
and association. Full respect for self-determination
therefore requires that al1 members of society can
participateinpoliticalproce~ses."~3
63. What is significant both in the treatment of the reports by Australia and
those of other countries is not that questions may be asked generaiiy by the
Committee as to the attitude of countries to self-determination, but that the
Cornmittee has not paid any particular attentionto East Timor or raised with
72 Annex10.
'3 Annex11. SeealsoReplyof Portugal,Annex11.37;Vol.11, .203.Australia the question of its policy towards East Timor, including the
negotiations with Indonesia in relation to the Timor Gap Treaty. That these
negotiations werecontinuingwasweliknown intemationallyin 1988.
64. The Portuguese Reply pays little attention to the most recent dealingsof
Portugal withthe United Nations Secretary-General on the issueof East Timor.
As a result of discussionsbetween Portugal and Indonesiaunder the auspices of
the Secretary-General begiming in May 1989, agreement was reached in
August 1991 on terms of reference for a visit by a Portuguese parliamentary
delegation to East Timor in order to obtain first hand information on the
situationexisting in the country. Further talks were held todefine the practical
aspects of the visit.74 Freedom of movement andcontacts were established in
the agreement as an essential condition toachieve the purpose of the visit.75In
October 1991 the visit was cancelled after disagreement arose between
Indonesia and Portugal over the presence in the Portuguese delegation of a
joumalist residentin Lisbon,MsJolliffe.76
65. More recently, inJanuary 1992,Portugal informedthe Secretary-General
that it was ready to participate in a dialogue"sans conditionspréalables",under
the auspices of the Secretary-General, with Indonesia andal1directly interested
parties. It has never been suggested that Australia is a "directly interested
Party" for this purpose. Portugal proposed that talks resume under the
mediation of an expenenced person of international prestige accepted by the
Parties.77 Since then the Secretary-Generalhas pursued further talks with both
Indonesia and Portugal witha view to the Parties engagingin a senous dialogue
on the issueof EastTimor.78
66. This record of action highlights the point that Portugal is principally
seeking a solution to the EastTimor issue through United Nations auspices. It
also indicates a willingnessby Portugal to deal with and accept the realitythat
Indonesiais in fact in occupationof EastTimor.
74 See 1991Reportby Secretary-GeneraA l,/46/456,Memorialof Portugal,Annexes11.71
and 11.72,Vol.iV,pp.122,123.
75 See also the statement bMrQuartin-Santos to the Committeeof 24, 28 July 1992,
Replyof Portugal,AnnexL22,Vol.II,pp.121-2.
76 SeeReplyof Portugal,Annex ii.18, Vol.11,p.267.
77 Replyof Portugal, Annex11.21,Vol.11,p.283. See alsothestatementin theCommittee
of 24,28 July1992,Replyof Portugal,Annex 1.22,Vol.11,p.134.
78 SeeReplyof Portugal,Annex L8,Vol.11,p.63. PART1
THEINADMISSIBILITYOFTHEAPPLICATION CHAPTER1
PORTUGAL'S CLAIMS REQUIRETHE COURT TO
PASSONTHERIGHTS ANDOBLIGATIONSOFA
THIRD STATE IN ITSABSENCE AND WITHOUT ITS
CONSENT
Section 1:
67. Portugal's Reply fails adequately to respond to Australia's contention
that this case cannot be decided in the absence of Indonesia and without its
consent. Australia continues toaintain this contention, although it does not
repeat the numerous supporting considerations already advanced in Part II,
Chapter 1 of its Counter-Memorial. This Chapter is primarily concerned to
answer the matters specifically raised by Portugal inII,Chapter VI1of its
Reply.
68. Portugal advancesa vanety of arguments in supportof its contention that
the absenceof Indonesia isnot a bar to the Court's adjudication.It assertsthat:
(a) because the principal matters on which it relies have already ken
decided bythe comptent organsof the UnitedNations,the Court isnot
required to decide the facts in favour of Portugal and against Indonesia
in order to mle against Australia;
(b) because it impugnsonly Australia's conductinso far as it consistsof a
breach of the right of self-determinationof the people of East Timor, it
does not impugn the validity of the 1989Treaty as such, and thus does
not ask the Court to pass on the rightsof Indonesia;"
(c) because the right to self-determinationis a nght Grgaomnes,Portugal as
administering Power may choose to sue any State which contests the
right of the people of East Timor to self-detemination, whether or not
there are other States also engaged in theame alleged wrongdoing;
and, therefore, Portugalmay sue Australia in the absence and without
the consentof Indonesia.80
'9 Replyof Portugal, paras.2.15.2.19.
80 Replyof Portugal, paras.7.12-7.15.71. Thus, Portugal contends that the situation which arose in the Monetar~
Gold case was relevantly different from that which arises in this case. The
difference, according to Portugal, lies in the fact that the rightat issue between
Italy and Albania was a right ergasingulum, whereas the right at issue in this
case is a right erga omnes.85But this considerationis not in fact material to the
application in this case of the Monetan, Gold principle- that the Court will
not adjudicate where the subject-matter of the decision sought is the
international responsibility of another State which has not consented to the
Court's adjudication.86 The decision in the Monetarv Gold case is itself no
more than an application of the basic principle thatthe Court wiil not decide the
rights and obligationsof a State without itsconsent. This fundamental principle
applies in every case, whether involving rights erga singulum or rights aga
ornnes.
72. Accordingly, whereState A, together with State B,is said to be under an
obligation erga omnes resulting from the prior unlawful conduct of State B,
State C cannot bring an action against State A alone for breach of that
obligation, if the decision sought would also require a decision on the
lawfulness of the prior conduct of State B. In this situation, the principlein the
Monetan, Gold case, as elucidated in the Phos~hateLands case, would apply.
See Section III below. This is the very situation which arises in this case: see
Sections IV and V below. See also Counter-Memonal of Australia, paragraphs
199-204.
73. The position might beotherwiseif the internationalresponsibilityof State
B had already been authoritatively determined, or the decision sought would
give nse to no more than some adverse implicationagainst StateB. But neither
of these situations ariseshere. See SectionsIVand V below and paras.221-223.
The situation which arises in this case falls entirely within the Monetarv Gold
principle. This is because (1) the Court mustfir dsetide whether Portugal or
Indonesia was theproper coastal State to make the Treaty in 1989,before it can
decide whether Australia incurred any international responsibility (SectionsIV
and V); and (2) if the decision sought were given, the Treaty would be
invalidated as between Indonesia and Australia (Section VI) and would affect
Indonesia's rights asmuch as those of Australia.
85 Replyof Portugal,para.7.13.
86 ICJReports1954,pp.32-33;Counter-Memonaolf Australia,paras.192-193.74. Portugal camot rely on the.supposed erea omnes quality of the rights
which it invokes toovercome the fact that Indonesia has not consented to an
adjudication in which the crucial issue to be resolvedconcems its international
responsibility. Indonesia's responsibility, that is to say a finding as to the
illegality of its conduct, an essential prerequisite of any claim by Portugal
against Australia withregard tothe 1989Treaty. In such a situation,"the Court
cannot, without the consentof that third State, give a decision on that issue
binding upon any State, eitherthe third State, or any of the parties before it9'.87
Further, whilst the obligation not to use force might be an obligation aga
omnes, the obligation, if any, not to recognise a situation createdby a violation
of that obligation doesnot itselfanse as a breach of that erga omnes obligation.
Any such obligations could only arise as a result of a decision by the Security
Council requiring States not to recognise the resultingsituation.88A failure to
comply wouldthen be a breach of Article 25 of the Charter and not a breach of
Article2 (4) and of an erga ornnesobligation itself.
Section III: The Court has confirmed the Monetarv Gold ~rinci~lg
A. DECISIONSOFTHE COURTBEFORETHE PHOSPHATE LANDS
CASE
75. Prior to the Case Concemine Certain Phos~hate Lands in Nau~,~~the
Court had affirmed the validity of the Monetan Gold principle in a number of
decisions (e.g., ContinentalShelf (Libvan Arab Jarnahiriva/Malta);90Militan,
and Paramilitarv Activities in and against Nicaragua;91Frontier DisDute
(Burkino Faso/Mali);92Land. Island and Maritime Frontier Disoute (El
Salvador/Honduras).93
76. Portugal relieson the Militan, and Paramilitan Activities in and against
Nicaragua case to avoid the consequencesof the Monetan Gold principle.94
MonetarvGoldcase,ICJReports1954,p.33.
SeeCounter-Memoria olfusualia,para.365.
ICJReports1992,p.240.
ICJReports1984,p.3.
ICJReports1984,p.392.
ICJReports1986,p.554.
ICJReports1990,p.92.
Replyof Portugal,para.7.53.But this reliance is entirely misplaced. In that case, the Court clearly affirmed
the principle. It sirnply declined to extend its application to the situation in
which although the nghts and obligationsof non-party States were implicated,
they did not form the subject-matter of the proceeding. The reasons were
twofold: first, Nicaragua asserted "claims against the UnitedStates only, and
not against any other StateW;9a5nd secondly,the Court accepted that it was not
required to exerciseitsjunsdiction over any other State.Thus the Court wrote:
"There is no doubt that in appropriate circumstances the
Court will decline,as it did in thecase conceming Monetary
Gold Removed from Rome in 1943 to exercise the
junsdiction conferred upon it when the legal interests of a
State not party to the proceedings 'would not only be
affected by a decision, but would form the very subject-
matter of the decision'....
Where however claims of a legal nature are made by an
Applicant against a Respondent in proceedings before the
Court, and made the subject of submissions, the Court has
in principle merely to decide upon those submissions, with
binding force for the parties only, and no other State, in
accordancewith Article 59of the Statute.'"
The point was that the submissions made by Nicaragua concemed only the
aileged use of forceby the United States, and not the conductof third States. It
was thought possible, therefore, to rule on Nicaragua's submissions, without
passing on the rights of non-parties. Nicaragua'sapplication did not directly
cail into question, so the Court held,uch matters as the right of other States to
receive military aidfrom the UnitedStates.97
77. As the following discussion shows (SectionsIV, V and VI), Portugal's
Application is altogether different. Though Portugal does not in its final
submissions referto Indonesiaby name, these submissions would,if accepted,
not simply implicate Indonesia's rightsand duties, they would require amling
expressly or by implicationas to Indonesia's international responsibilit,ust as
acceptance of Italy's claim would have required a ruling on Albania's
responsibilityinthe MonetarvGoldcase.
95 ICJReports1984,p.430.
96 ICJReports1984,p.431.
97 ICJReports1984,p.430.78. In this connection, Australia does not dispute that the right to self-
determination is an er-a ornnes principle. But this means simply that each and
every State must respect it. In the present case, the breach of this principle is
constituted, accordiig to Portugal, by the failure to negotiate andconclude a
treaty with it. But thiss not so. Whether Portugalis the administeringPower
or not, in any event Australiawouldhave had no obligationto concludea treaty
of any kind with it. Thus, the only question is to determine if, in concluding
this treaty with Indonesia, Australia has infringed the principle. And this, of
course,requiresthatthe Courtdetemine what are the rights (or responsibilities)
of Indonesia. But in order to do this the Courtwould becompelledto determine
if Indonesia had a right to enter into the Treaty. This necessarily implies that
the Court determine the status of Indonesia in East Timor. It is only then that
the application of 'the principle of self-determination in this case can be
determined.
79. Each of the other decisions to which Portugal also refers gave rise to a
situationdifferentfromthat which arisesin this case. Thus,neither the decision
of the Court inthe Frontier Disvute (Burkino FasofMali)case nor in the Lid.
Island and MaritimeFrontierDisvute (El Salvador/Honduras)case detractfrom
the proposition that the Monetarv Gold principle applies to Portugal's
Application here. In these cases, the Court distinguished between two
situations:(1) that in which the resolutionof the dispute submittedto the Court
would have required it to pass on the legal rights and obligationsof a non-party
State;and (2) that inwhich thelegal interestsof a non-party were affected(even
substantially so) only as a practical or logical consequence of the Court's
judgment.
80. In the Frontier Dis~ute Burkina FasoMali) case the Court held that it
could fi the end-point of a land frontier between the two State parties to the
dispute,even though that end-point lay on the frontier of a third Statenot party
to thedispute, because the determinationof the end-pointdid not determine the
legal interests of the non-party. The Court'sinding could give nse to no more
than an im~licationthatthe partiesbefore ithad exclusivesovereigntyup to that
end-point -98
81. In the Land. Island and Maritime Frontier Disvute (El
SalvadorkIonduras) case the question was whether or not the Gulf of Fonseca
was subjectto a condominiumor a "communityof interest" of the three riparian
98 ICJ Reports1986,p.579.States, El Salvador, Honduras and Nicaragua. The Court granted Nicaragua's
application to intemene, on the basis that Nicaragua's legal interest might be
affectedby the decision. But itrejected Nicaragua's further contention that the
Court couldnot proceed in its absence, holding thatwhenjudgrnent was given,
it could dono more than declarewhich particular regimewas opposable to one
or other of the parties, not to.Nicaragua. This was so even though, by rejecting
the subrnissions of one Party, the actual decision on the point, "would be
tantamount" to a finding that oneor other regime did not exist at1.99
82. in the present case, however, it is not said that a judgment in the terms
sought would simply imply, or even be tantamount to, a finding against
Indonesia. Rather the necessary basisfor such ajudgrnent is a prior findingby
the Court adverse to Indonesia's claimed entitlements. See Sections iV and V
below. Such a judgment would also terminate Indonesia's rights under the
1989Treaty. See Section VI below. Clearly, this is a very different situation
from that whichhas arisen ineither of the previous cases.
83. The operationof theconsensualprinciple (thebasisof the MonetaryGold
case) in the context of an international adjudicationis well demonstratedby the
Continental Shelf (LibvaIMalta)case. It will be recalled that, in that case, the
principle had two significant consequences. First, the Court refused to allow
Italy to intervene in the proceeding, because such intervention would have
changed the very natureof the dispute. Thus, the Court said:
"Whether the relations between Italy and the Partiesin the
matter of continental shelf delimitation be regarded as three
disputes, or one dispute, the fact rernains that the Court
cannot adjudicate on the legal relations between Italy and
Libya without the consent of Libya, or on those between
Italy andMaltawithoutthe consentof Malta."lm
Consistently with the principleof consent, however,the Court limited its final
decision to the area over which Italy had made no claimsbecause, as the Court
explained:
"The Court has not been endowed with jurisdiction to
determine what principles and rules govem delimitations
with third States, or whether the clairns of the Parties
99
ICJReports1990,p.122(emphasisadded).
ICJReports1984,p.20. outside the area prevail overthe claims of those third States
inthe region."lol
No part of the dispute in this case can be decided, however, without first
passing on Indonesia's claims (Sections IV and V below), so that the Court
cannot, by parity of reasoning, decide any part of this case without offending
the principleof consent.
B. THE PHOSPHATELANDS CASE
84. Portugal contends that the Case Concerning Certain Phosphate Landsin
-1" provides authoritative supportfor its contention that it can choose to
sue whomsoever it chooses from amongstthose States which contest the right
of self-determination of the people of East Timor; and that the absence of
Indonesia does not, therefore, prevent the Courtfrom deciding the case.103But
the case is not authorityfor any suchproposition.
85. In the Phos~hate Lands case, Australia submitted that, because the
Administering Authority under the 1947 Nauru Trusteeship Agreement
consisted of three Statesjointly, the decisionsoughtby Nauruagainst Australia
would, if given,'simultaneouslydecidethe responsibilityof the other two States.
Australiadid not contend that the PhosphateLands case situation wasprecisely
the same as that whicharose in the MonetarvGold case. It was acknowledged
by Australia and Nauruthat, in the MonetarvGold case, Italy's claims against
the actual parties to the proceeding (France, the UnitedStates of America and
the United Kingdom) could not have been decided in Italy's favourunless and
until the Court decided that Albania, a non-party, had incurred international
responsibility to Italy. And Australia accepted that, in the Phosphate Lands
case, a decision against the other two States (New Zealand and the United
Kingdom) was not a prereauisite to a decision against it, but rather that a
decision against Australia would at the same time be a decision against the
other two States. It was for this latter reason that Australia contended that the
Monetarv Gold principle applied.
86. The Court held, however, that the interestsof the other two States could
not for this reasonbe said to constitute "the very subject-matter of a judgment
101ICJReports1985,p.26.
lm ICJReports1992,p.240.
1°3Replyof Portugal,para.7.37.to be rendered and that the situation was, therefore, differentfrom that of the
MonetaryGold case. The Court said:
"In the latter case, the determination of Albania's
responsibility was a prerequisite for adecision to be taken
on Italy's clairns. in the present case, the determination of
the responsibilityof New Zealandor the United Kingdom is
not a prerequisite for the determinationof the responsibility
of Australia,the only objectof Nauru'sclaim."lm
It added:
"In the Monetarv Gold case the link between, on the one
hand, the necessary findings regarding Albania's alleged
responsibility and, on the other, the-decision requested of
the Court regarding the allocation of the gold, was not
purely temporalbutalso logical".l05
It concluded:
"in the present case, a finding by the Court regarding the
existence or the content of the responsibility attributed to
Australia by Naum might well have implications for the
legal situation of the two other States concemed, but no.
finding in respect of that legal situation willbeneeded as a
basis for the Court's decision on Nauru's claim against
Australia. Accordingly, the Court cannot decline to
exercise itsurisdiction".lM
87. The Phosphate Lands casein no way supports Portugal's positionin this
case. Quite clearly, that case confirms the continuingvalidity of the Monetaq
Gold principle.107Nauru argued successfully in that case that the Court could
make its decision without referring to the conduct of any State other than
Australia. The present is clearly not a case in which Portugal's claim rests
exclusively on Australia's own acts. Australia's contentionin this case is not
simply that a decision against Australia would constitute a simultaneous
decision against another State. Rather, Australia maintains that, as in the
Monetarv Gold case, a decision must first be made by the Court as to a non-
party's internationalrights and obligations,before a decision can bemade as to
a respondent party's alleged international responsibility. This is because the
ICJReoorts1992...261.
105 m.
106 m., pp.261-2.
107 ICJReports1992,p.261.legal elementsof Portugal's case against Australia necessarilyrequirethe Court
to pass on the rights and obligations of Indonesia before it would be able to
decideAustralia's responsibility.That is to say, Australia's conductcanbeheld
to beunlawful, if at all, only on the basis that Indonesiahad assumedcontrol of
EastTimor unlawfuliy,pnor to the conclusionof the 1989Treaty.
Section 1V:A decision as to Indonesia's ri~hts and obligations is a
prereauisiteto a decisiononAustralia'sres~onsibiiitv. ifan1
88. Portugaldoesnot allege that Australia failedin some general and abstract
way to recognise the non-self-goveming status of East Timor, or Portugal as
adrninisteringPower. On the contrary, Portugal specifies the acts constituting
this aiieged failure to be the negotiation and conclusion of the Treaty in
December 1989. The primary "faits illicites" are, on Portugal's own account,
"la négociation, la conclusion et le commencement d'exécution de
l"Accord"'.~~ Portugal's reproachis not simply that Australiamade a treaty.
Portugal challenges themaking of the treaty conceming East Timor's maritime
temto j with Indonesia. Portugal alleges that an otherwise lawful act is in
breach of the right of self-determinationof the people of East Timor, because
done with a third State (Indonesia), not with Portugal. Portugal's ultimate
submissions are inconsistent with any other interpretation.l@ The supposed
wrong must, therefore, lie in the fact that Australia concludedthe Treaty with
Indonesia,not Portugal. Portugal thus implicitly (but unavoidably) challenges
Indonesia's competence torepresentEastTimor inmakingthe Treaty.
89. Thus, the cmcial issue becomeswhether Portugal,not Indonesia,was the
proper coastalStateto concludea treatyon mattersof maritimeconcem relating
to East Timor in December 1989. If no, Portugal's case against Australia must
fail. Portugal must obtainan affirmative answer to this question, before itcan
take the next step and challenge Australia's actsof negotiating and concluding
the Treaty with Indonesia. Indonesia's claim to represent the people and
territory of East Timor forms the very subject-matter of the dispute. For
Portugal's case against Australia inevitablyepends on a successful challenge
to Indonesia's claim that it (not Portugal)is the proper coastalState to represent
the maritime interestsof East Timor.
108 Replyof Portugal,para.6.andpp.273-5.
'09 çf Replyof Portugal,pp.274-5.90. Portugal asserts that the act of making the Treaty with Indonesia in
December 1989was unlawful,because it constituteda breach of the rightof the
people of East Timor to self-determination. And why? Because, according to
Portugal,in so doing Australia failedto recognisethe non-self-govemingstatus
of the territoryand Portugal asadministenng Power. Butthis is a non-sequitur.
Australia did no more than enter into a treaty with a State which claims
sovereignty over the territory to which, in part, the treaty relates. The
conclusion of a treaty with a State claiming sovereignty over territory is not
unlawful per se. The only possible breach of a legal rule would be if
Indonesia's claim is ill-founded. This very evidently supposes that the Court
adjudicates on this claim, which appears, therefore, as the"very subject-matter
of the dispute".
91. If, as Australia contends, entry into the Treaty signified no more than
Australia's recognition of Indonesian sovereignty over East Timor, Portugal
cannot challenge Australia's entryinto the Treaty except on the basis that that
recognition was unlawful, because Indonesia's continued occupation of East
Timor was unlawful at intemational law at the crucial time, December 1989.
Portugal must establish the unlawful nature of Indonesia's occupation in
December 1989 before any decision can be made as to the lawfulness of
Australia's recognition and before any consideration can be given to the
consequences of that decision for Australia's entry into the Treaty. But this
pnor finding cannot, under the Monetarv Gold principle or the more general
principle requiring consent, bemade in the absence and withoutthe consent of
Indonesia.
92. Furthemore, to determine the natureof Indonesia's occupationin 1989
will inevitablyinvolveajudgment onthe initialvalidityof Indonesia's conduct.
And this would require an examination of the events of 1975 and of the
Indonesian claim that an act of self-detemination occurred in 1976. Indeed,
even Portugal itself concedes that, because Indonesia is not a party to the
proceeding, the Monetam Gold principle prevents it from alleging that
Indonesia's use of force gave nse to a duty of non-recognition.110The same
principle would also prevent Portugal from challenging the lawfulness of
Indonesia's continued occupation or possession of East Timor. But if Portugal
is to challenge Australia's act of recognition, the need to challenge the
lawfulness of Indonesia's conductwith respect to East Timor remains, despite
Il0 Reply of Portugal,paras.7.28,9.23.Portugal'sdisclaimerto the contrary.111This is confirmedby the fact that in the
course of its Reply Portugal persistently refersto the illegality of Indonesia's
conduct with respect to East Timor,and goes so far as to saythat indonesia has
violated noms whicharejus cogens.112
93. Furthemore, despite'the fact that Portugal says it does not challenge
Indonesia's military interventionor occupation, it concedes that it was in fact
this action which gave rise to Australia's supposeddelict.113This concession is
revealing. By it, Portugal admits that Australia's entry into the Treaty was
unlawful only because of the prior acts of Indonesia. Given Portugal's
challenge to Australia's act of de iure recognition and toIndonesia's authority
to act as the proper coastal State in concluding the Treaty, Portugal's
concession can mean only that Australia's alleged wrongdoingwas the making
of the Treaty, notwithstanding that Indonesia's occupationof East Timor was
not only in itself unlawful, butremainedso. To decide this, however, the Court
would first need to decide whet&r Indonesia was in lawful occupation of East
Timor in December 1989,a decision it cannotmake in Indonesia's absence and
without its consent.
94. What is more, if Portugal does not challenge the lawfulness of
Indonesia's occupationof the temtory in December 1989,114 the Court is bound
to presume that such occupationwas lawful. The presumptionthat Statesact in
accordance with international law is anecessaryconditionof the Court's proper
operation.115It foiiows from this initial presumption that theCourt is bound to
find that Australia's entryinto the 1989Treaty was also lawful, there king no
rule that one Stati may not enter into a treaty with another State in lawful
occupation of the maritime temtory to which the proposed treaty is to relate.
Of necessity then, Portugal must challenge Indonesia's occupation of East
Timor in December 1989. Butthe Court cannot, consistently with theMonetary
Il1ReplyofPortugai,paras.2.20,2.21,6.30,7.26,9.02.
112See especially Reply of Portugal, paras.2.19, 5.51, 6.15, 6.29,6.34("...soutenir
violations de principes fondamentauxdu droit internationalg&nkral,c'est mkconnaîtrees
l'existence d'un principe pertinent et obligatoire du droit international g..."),
6.37-6.41, 6.55-6.56. See.also Reply of Portugal, paras.3.01-3.12, 3.18 (footnote 98),
3.20-3.21, 3.50, and the Annexes referred to in those paragraphs. See further e.g.
Memorialof Portugal,paras.1.66,2.13,4.62, 8.23.
113Reply ofPortugal,paras.l.14-1.15.
çf Replyof Portugal,paras.2.20,2.21,6.30,7.26,9.02.
Il5North A- Coast Fjshene csase (1910);United N w ~ons of International
Arbitral Awar&, Vol. 11, p.173 at p.186; Lac Lanou~ case (1957). Wd Nations
Reportsof InternationalArbitraiAwards,Vol. 12,p.281at p.305.Gold principle, determine de novo whether or not Indonesia's claim to
sovereigntyinDecember 1989wasjustified.
95. Portugal seeksto avoid the operation of the Monetam Gold principle by
reference to United Nations resolutions. Portugalcontends that the political
organs of the United Nationshave already declared that EastTimor is a non-
self-goveming temtory and that Portugalis the administering Powerin relation
to it; that thesefindings constitutethe given facts("les données"),binding on all
Member States as well as the Court; and that Australia hasacted unlawfully in
failing to recognise East Timor's non-self-goveming status and Portugal as
adrninisteringPower.116Thus, says Portugal, theCourt need do no more than
interpret the resolutions in which the given facts ("les données")are said to
appear, andfor this, Indonesia's consentisunnecessary.~~7
96. The resolutions of the political organs of the United Nations do not,
however, answer the cmcial question, whether,in December 1989,Portugalor
Indonesia was the proper coastal State to make a maritime treaty for East
Timor. More than 13years had by then elapsed since the Security Council had
passed resolution 389 of 22 April 1976, and there is nothing in the resolutions
of the Security Council or of the General Assembly which couldanswer this
question.
97. Put another way, Portugal must first show how the conclusion of the
Treaty in 1989 constituted a breach on Australia's part of the right of self-
determination of the people of East Timor. This is not established by the so-
called givenfacts ("les données")on whichPortugal relies. For one thing,even
if the non-self-goveming status of East Timor and Portugal's status as
administering Power were accepted at the time of the last United Nations
resolution on East Timor (Le., General Assembly resolution 37/30 of
23 November 1982), it does not follow that Australia's entry into the 1989
Treaty some seven yearslaterwas in breachof any rightsthen pertaining to that
status or title, even if the resolutions contained"les données" atthe the they
were adopted.
98. Nor can Portugal rely on its own status as administering Power to avoid
the need for a judicial determinationof Indonesia's legal interest. As Part II,
Chapter 1 shows, whilst Portugal may bethe administering Powerfor certain
Il6 Replyof Portugaparas.2.22,2.29,7.07,7.08.
Il7 Replyof Portugapara.7.11.United Nations purposes, it does not follow that, as such, Portugal had
exclusive capacity to make a treatyof this kind a treaty which could onlybe
given effect by the State in control of the territory to which the Treaty related.
The United Nations has recognised Indonesia's vital interest in East Timor.
Pomgal's requests would,if granted,require the Court to ignorethese interests.
99. For Portugal to be entitled to pyent this case, and a fortiori to succeed
on the merits, it must first establish Indonesia's lack of authority sternming
from the illegality, if any, of that State's conduct. The resolution of this case,
therefore, requires much more than a judicial interpretation of the United
Nations resolutions: it requires the Court to decide the international
responsibility of Indonesia in occupying East Timor, and to rule on the
competing claims of Portugal and Indonesia to conclude a maritime treaty
relating to East Timor. Portugal's principal submissionsare, as already noted,
to the effect that Portugal, not Indonesia, was the proper coastal State with
which Australia ought to have negoti'atedand concluded the treaty; and that
Australia actedunlawfully in concluding the Treaty with Indonesia. The Court
is thus asked to decide which State, Portugal or Indonesia, was competent to
make the 1989 Treaty. Portugal must obtainan answer in its favour before it
can take the next step, and challenge Australia's actionin entering the Treaty.
If Portugal does not challenge Indonesia's claimto be in lawful occupation in
December 1989, it must find some other basis upon which to challenge
indonesia's alleged lack of capacity. But whatever that basis be, the Court
cannot in fact decide whetheror not indonesia hadsuch capacity in Indonesia's
absence and without its consent. Because such a decision is a prerequisite to a
claim against Austraiii, the situation clearly falls withii the parameters set in
the MonetarvGold case,asexplainedinthe Phos~hateLands case.
100. The situation whichanses in the present case is thus very different from
that which arose in the Phos~hate Lands case. It was not said there that the
responsibility of the non-party States was a prerequisite to Australia's
responsibility,if any.in this case,however, Portugal must establish Indonesia's
lack of capacity before it can succeed against Australia. If Portugal does not
have, as it claims,the exclusiveright to makesuch a treaty,then Portugal's case
against Australia must fail. As Portugal's claimto exclusive competence is
essential to its case, Indonesia's lack of entitlement is partof the very subject-
matter of the decisionsoughtby Portugal.Section V: Jndonesia's res~onsibilitv. if anv. cannot be merelv concurrent
with Australia's sumosed res~onsibilitv
101. Portugal contends that by making the 1989 Treaty, Australia has
breached rights erga omnes belonging to the people of East Timor and to
Portugal, as administering Power,lls and that these rights are binding as much
upon Australia as upon any other State. Accordingto Portugal, the breaches
occurred either because the Treaty was concluded without the consent of the
people, represented by Portugal as administering Power;ll9 or because the
Treaty dealt unlawfully with rights over natural resources belonging to the
people of EastTimor.120
102. If, however, there was a culpable failure to consult the people of East
Timor, the failure was that of Indonesia,as the State claiming sovereigntyover
East Timor. Equally, if there was a culpable failure to deal lawfully with the
natural resources of the people of East Timor, that failure was solely that of
Indonesia, as possessor of the temtory. Indonesia, rather than Australia, bears
responsibility for the well-king of the inhabitants of the territory, and this, to
the United Nations as the ultimate guardian and determiner of the rights in
question. None of the Portuguese allegations are, however, maintainablein the
absence and without the consent of Indonesia. This case is, therefore, quite
unlikethe Phosphate Lands case.
103. Australia's position, as a third State, is very different from that of
Indonesia. In the absence of any direction to the contrary by the United
Nations, Australia hasdealt with Indonesia on the basis thatit is in possession
of East Timor, without seekingto derogate from the rightsof the peopleof East
Timor. See Part II,Chapter 3. The allegation thatthe 1989Treaty constitutes a
derogation fromthese rights, apartfrom strikingat Australia'sownrights in the
area in question (Counter-Memorial of Australia, Part III, Chapter 3), could
only be substantiatedif Indonesiahad initially actedinbreach of those rightsby
its occupation of East Timor and by its subsequentexercise of control over the
temtory. For if Indonesiawas inlawful occupationofthe temtory inDecember
1989,there can be no question thatAustralia wasentitled to enter into the 1989
Treaty. Hence, the only ground upon which Australia's recognition of
Indonesia's positionor Australia's entry into the Treaty can be characterised as
"8 Replyof Portugal,para.7.13.
119 Replyof Portugal,para.5.65.
120 Replyof Portugal,para.5.62.a breach of an obligation owed either to Portugal or East Timor is that
Indonesia's actionswith respectto the territoryand its continued presencethere
is illegal.
104. Thus, Portugal's case is but an artificial atternpt to construct a claim
against Australia. In Australia's view this isboth unjustifiable and contraryto
the very foundationof internationaljurisdiction.
105. Portugal contends that the decisions of the Central Arnerican Court of
Justice in Costa Rica v Nicaragua (1916)andEl Salvadorv Nicaragua(1917)lZl
support its contention thatthe Court can in this case pronounceon Australia's
responsibility to Portugal, notwithstanding Indonesia'sabsence.122
106. But Portugal's reliance on these decisions is rnisplaced. As already
noted,lu each of the Applicant States, Costa Rica andEl Salvador, alleged that
Nicaragua had breached independent obligations owedto each separately by
entering into the Bryan-Chamorro Treaty with the United States. The Court
held, ineach case, that it was cornpetentto decidethe issue, notwithstanding the
absence andlack of consent of the United States.'% In each case too, it upheld
the Applicants' cornplaints, although it declinedto declare that the treaty with
the UnitedStateswas void, on the ground thatthe United Stateswas not subject
to the Court'sjurisdiction.125 In El Salvador v Nicaragua,the Court even went
sofar as to declare that Nicaraguawas under an obligation "to take all possible
means sanctioned by international law to re-establish and rnaintain the legal
status that existed between the two countries prior to the conclusion of the
Bryan-Chamorro TreatyW.l26 But having said that, the Court specifically
declined to declare the treaty void, or to enjoin Nicaragua from fulfilling the
treaty.127It said:
"The Court is without cornpetence to declare the Bryan-
Chamorro Treaty to be nul1and void, as in effect, the high
party complainant requests it to do when it prays that the
Governrnent of Nicaragua be enjoined 'to abstain from
fulfilling thesaid Bryan-Chamorro Treaty.' On this point
121American Journalof InternationalLaw, Vol. 11, 1917, at p.181 and at p.674
respectively.AlsoCounter-Mernorio al Australi, ar189.
122Replyof Portugal,para.7.21-7.22.
123Counter-Mernorio af Ausaalia,para.189.
lZ4ArneficanJournalofInternational aw,Vol. Il, 1917,pp.209,292,730.
125m., p.728.
126m., p.728.
1z7m., p.729. the Court refrains frompronouncingdecision,because, as it
has alreadydeclared, itsjurisdictionalpowerextends onlyto
establishing the legal relations among the high parties
litigant and to issuing orders affecting them, and them
exclusively, as sovereign entities subject to its judicial
power. To declare absolutely the nullity of the Bryan-
Chamorro Treaty, or to grant the lesser prayer for the
injunction of abstention, wouldbe equivalent to adjudging
and deciding respecting the rights of the other party
signatory to thereaty, withouthavingheardthat otherparty J
and without its having submitted to the jurisdiction of the
Court."1*8
107. Both cases affirm the principle that the rights of a third State cannot be
determined in a proceeding to which it is not a party,'" but they do not support
Portugal's contention that, becauseit seeks no actual declaration or order
against Indonesia,l30it can proceed against Australiaalone. in this comection,
two situationsmay be distinguished:
(1) If State Abreaches an obligation [ergasineuluml to State Bnot to make
a treaty with State C, then State B can seek a declaration of right in
respect of State A (although it cannot insist on consequentia- relief
against StateC). This situationarose in CostaRica v Nicaragua and
Salvadorv Nicaragua,but itdoesnot arisehere.
(2) in this case, State B asserts that the unlawful conduct of StatC gave
rise to an obligation erna omnes which has been contravened
subsequently by the further actions of State A and StatC (in making
the 1989Treaty). In this circurnstanceif States A anC have breached
the asserted obligation erga omnes (by entering into a treaty with one
another), State B cannotSeeka declarationof invalidity against State A
in the absence of StateC, for to do so, would require a ruling on the
lawfulness of the conduct of StatC said to give rise to the erga omnes
obligation. Further, it would also involve the determination of the
rights of State C under the treaty, although State C had not given its
consent to the adjudication. This would clearly offend the principle of
consent as elucidated by the Central Arnerican Court in Costa Rica v
Nicaragua and El Salvador v Nicaragua, as well as by this Court. See
129 Counter-Memoriaolf Austral, ara.189.
ReplyofPortugal,paras.5.79,7.?3. Sections II and III above. Even on Portugal's own analysis, this is the
situationhere.
Section VI: The dmn .. SOUE ht would de~rive Indonesia as well as
bstralia of the benefit of the Treate
108. Portugal says that it complains only of a delict on Australia's part,but it
is impossibleto isolateAustralia's aliegeddelictfrom the rights and obligations
of Indonesia, as Portugal seeks to do. Portugal contends that it does not
challenge the validity of the 1989 Treaty.131 But this assertion is clearly ill-
founded.132Even ifPomigal's expresschallenge is to Australia's conduct oniy,
the substance of the dispute in thiscase involves an inevitable challenge to the
validity of the 1989 Treaty.133 In this case, to challenge the negotiation,
conclusionand performanceof the-~reatyis to challengeits validity.134
109. Portugal in its Reply takes a lot of pain to trytojustify, in a very abstract
manner, an alleged distinction between questions "de liceité" and "de
validité".135But this so-calieddistinctionis entirely inapplicablein this case. It
istme, asPortugal says, thatan actmay retainits validity (Le.,its intendedlegal
effect) though attendedby someunlawfulness.136Thus,a treatymay be valid as
between StateA and State B, even though inmaking it, StateA contravened an
obligation owed by it to State C. In this circumstance, the treaty will have its
intended legal effect, so that StatesA and B will be entitled (and obliged) to
give effect to their respective obligationsunder the treaty. Whilst there wili be
legal consequences for State C, particularly in relation to State A, this will not
detractfrom the fact that the treaty isto be giveneffect by the partiesaccording
to its tems. It is only when the exterior obligation strikes at the validity of the
treaty and that consequence can be established (in this case as against
Indonesia)that the treaty wiilbe deprivedofeffect.
110. But it is not the functionof the Courtto settle doctrinalcontroversies,but
to decide concrete disputes submitted to it. There might be some intellectual
and doctrinalment in the distinctionbetween "illiceité"and "invalidité". But it
131 Replyof Pmgai, paras.2.15,2.19,7.19,7.21.
132 Seeparas.8(1)and 18above.
133 Counter-Mernoria of Austraii, aras.12-17.
134 Counter-Mernoria of Austraii, aras.220-226.
135 ReplyofPmgal, paras.2.11and 7.21.
l36 Replyof Pornigal,para.2.11.is plain that, in the present case, the supposed unlawfulness of Australia's
conduct in negotiating, concluding and applying the 1989Treaty can only be
affirmedif this Treaty is invalid:
- Australia cannot be held responsible because ithas negotiated "2"
treaty: since negotiating a treaty is not, by itself, irnpermissible in
international law,it could be responsible onlyif negotiating Treaty
were unlawful;
- Australia cannot be held responsible because it has concluded "a"
treaty; but only if the conclusion othi sreaty were internationally
unlawful; and
- cornplying with a valid treaty is not a breach of international law; on
the contrary, pactasunt servanda, and it would only be ithi Treaty
were invalidthat Australiacouldbe responsible.
111. Therefore,the lawfulnessof the Australian conductcan only bejudged in
relation to the facts of the present case and, as Australia has shown in its
Counter-Mernorial (seee.g. paras.6-7), the central f-ctthe only real fac-
that Portugal reproaches Australia foris the 1989TreatyIfitwere invalidthen
Portugal couldhold the Australian conductas being unlawful. But thereis no
possibility for the Court to appreciatethe validity (or invalidity)of this Treaty
without determining, at the sarnetime, the lawfulness of Indonesia's conduct.
Portugal knows this and it is precisely whyit desperately tries tomakethis very
artificialdistinction between"illiceité"and "invalidité".But:
- Australia has not negotiated in the abstract; it has negotiatedwith
Indonesia;
- Australia has not concludedthe Treaty with itself; it has signed it
Indonesia (and thereis nojustification for trying to obscure thisfact by
qualifying this Treaty as being "plurilateral" (Reply of Portugal,
para.6.03); it is but a classicbilateral agreement); and
- Australia complies with this bilateral Treaty and applies it in co-
operationwith Indonesia.Moreover, as established in other parts of the present Rejoinder, if the Treaty
were to be held invalid, auod non, it could only bebecause Indonesia, not
Australia,had no capacityto negotiate,concludeand applyit.137
112. Portugal also places great stress on the notion of "opposabilité"
(opposability).l3*It is seen as centrally relevant in relation to the 1989Treaty.
But this agreement was concluded between Australia and Indonesia. It is,
therefore, not "opposable" as such to Portugal as established in the Australian
Counter-Mernorial139 and in conformity with the principle pacta tertiis nec
nocent nec Drosunt (see Article 34 of the Vienna Convention on the Law of
Treaties).
113. Consequently a third State, such as Portugal, cannot invoke its invalidity
except, perhaps, if it contradictsa rule ofjus cogens. But:
(i) Portugal doesnot contendthis; and
(ii) even if it did, it would then, very evidently,have to show that theTreaty
is invalid which would unavoidably touch upon the rights of lndonesia
(see para.13above).
As long as Portugal asserts that it does not challenge the validity of the Treaty,
it cannot invoke any international wrongful act; and, if it bases itself on the
invalidityof the Treaty,
(i) it cannot establish this without implicating Indonesia's responsibility;
and
(ii) there is, anyhow,no cause of action since the Treaty is not opposableto
it.
114. Nevertheless, in this case, Portugal seeks to prevent the 1989 Treaty
operating according to its terms. If the Court were to enjoin Australia from
further acts of exploration or exploitation in the Timor Gap, as Portugal
requests,l" the Treaty would fail, because it could no longer be performed.
There is no basis for the Cou@to enjoin Australia from carrying out its
obligations or pursuing its rights under the 1989Treaty, unless the invalidity of
137 Seeparas.18and73 above. SeealsoCounter-Memoria olf Australia,para.184.
138 ReplyofPortugal,e.g., para.7.06.
139 SeeCounter-Memonao lf Australi, aras.l0,409.
140 PortugueseSubmission 5,Replyof Portugal,pp.274-275.the Treaty can be established, because the mere infraction of third party rights
by virtue of a treaty is no ground for a Court to grant the equivalent of
injunctive relief.
115. Invalidity is, moreover, the necessary consequenceof Portugal's claimto
exclusive treaty-making competence. Although Portugal denies that it
challenges Indonesia's capacity toconcludethe Treaty,l" this denial lacks any
credibility. The Court could not answer Portugal's claim to exclusive
competence without stating that Indonesia lacks capacity to conclude this
Treaty. Therefore, if Portugal obtained a decision in the terms sought, that
decision would necessarily denyIndonesia's competence to make agreements
concerning the maritime territory of East Timor.142 If Indonesia was not
competent to make the Treatyin December 1989,because it was not the proper
coastal State to represent East Timor's maritime interests,hen the Treaty must
fail. Even Portugal admits, in a half-hearted sortof way, that its Application
necessanly calls into questionthe Treaty's status as such. Thus, whilst denying
it challenges validity, Portugal throughout its Reply, refers to the Treanot as
"l'Accord but as "1"Accord"'. What can this be if not a challengeto validity?
Portugal cannot escape the consequence of its own submissions simply by
saying that it does not ask the Court to rule upon the matter. Acttially, if
Portugal is right, there can be no conflict of obligations. What obligations
couldanse from atreatymade witha State entirelylackingcompetenceto make
it?
116. Portugalrequiresthe Court todeclarethe consequencesfor both Portugal
and Australia of Australia's supposed obligations to Portugal. Portugal cannot
escape the difficulties to which its submissions giverise by saying that it does
not ask the Court to resolve any conflict of obligations which may arise if it
were successful;~43 for the Court is itself bound to take accountof the fact that
the judgment requested by Portugal will certainly give rise to a conflict of
obligations. Ifthe Court were to hold, asPortugal requests, that Australia may
not perform its obligations under the Treaty, this would be on one of two
possible bases. Either because the Treaty is invalid, which Portugal does not
allege because the effect on Indonesia's nghts under the Treaty is patent: or
because, as Portugal does allege,the Treaty remainsvalidbut Australiais alone
precluded from performing its obligationsunder the Treaty because this would
142 aepReplyof Portugal,pp.273-275.
143 Replyof Portugal,para.7.23.involve breaches of other duties owed by Australia to Portugal (denial of its
status as administering Power) or to the people (denial of the right of
seif-determination).
117. But in the latter case the conflict of obligations for Australia would
remain. Australia would have no option but to comply with the Court's
judgment and refuse to perform its obligations under the Treaty. indonesia's
rightsunder the Treaty would clearlybe affected,for Australia would be bound
to refuse to give effect to them. It is no answer to say, as Portugal does, that it
is a matter for Australia to draw from the Court's judgment whatever
conclusions a= appropriate, and the'Court can thus avoid passing directly on
Indonesia's rightsand obligations.144The conclusionwouldbe absolutely clear,
and Australia would have no choice: it could net perform the Treaty. To
pretend that this would not necessarily affect Indonesia's rights is sheer
pretense. The effect would be inescapable. indonesia would be denied
effective enforcement of its rightsbecause Australia would be bound to refuse
to perfonn its obligationstowardsIndonesia.
118. Firgiiy, as already noted, if the right ofseif-determination is held to give
nse to a rule of lus copens, and if the Court were to find, as Portugal submits,
that the act of making the Treaty constituted a breach of the right of self-
determination, then as breach of a peremptory nom such a finding would
inevitably determine the rights of both contracting States. By virtue of such a
finding and of Article 53 of the Viema Convention on Treaties, the treaty
would be void.145 And it would be void for both Parties. In these
circumstances, Portugal's claim cannot, as Portugal alleges, concem only the
aiiegeddelictby Australia.
119. Even if it were permissiblefor Portugal to argue that it does not contest
the validity of the treaty but merily requires that Australia be prevented from
performing it, the effect would be to deprive Indonesia of its rights under the
Treaty. This is a step which the Court is unable to take in the absence of
Indonesia as a party to the case. The situation which arises here is quite
different from that which arose in the Phosuhate Lands case, where the Court
asserted its power to adjudicate on a dispute with one alleged tortfeasor even
though its judgment was, in principle, equally applicable to other alleged
tortfeasors not before the Court. Here, an adjudication upon Australia's
ReplyofPonugai,para.9.34.
145Counter-Mernorio af Australipara.223.position would. if the clairilant's case were upheld, deprive Indonesia of its
entitlements under a valid treaty in litigation to which it was not a Party,
contrary to the principles upon which the cases dealt within Section III were
based.
120. It is also no answer to Say, as Portugal does, that Indonesia might
intervenein the proceedingpursuantto Article62 of the Statute of the Court.146
Even if Indonesia has a right to intervene, it is under no compulsion to doso;
and the existence of such a right does not dirninishthe need for consent before
the Court can hear a case directly involvingthe rights and obligations of third
States.147Albania could haveintervenedin the MonetaryGold case, andindeed
was invited to do so. But the decisiondid not treat its failure to intervene asa
form of consent to the jurisdiction. The Court has never treated the failure to
exercise the rightto interveneas indicativeof consent.
121. Nor can Article 59 of the Statute of the Court overcome the essential
need for consent, before the Court can pass directly on the rights of third
parties.148This is established not only by the Monetary Gold case, but by the
decisions towhichreferencehas alreadybeen made. See section IIIabove.
SectionVII: Summary
122. Portugal's case against Australia entirely depends on the Court's prior
decisionas to Indonesia'srightsand obligations,competenceand responsibility.
Findings against Indonesia are essential legal elements of Portugal's claim.
From any perspective, the rights and obligations of Indonesia form the very
subject-matter of the dispute. And if the decision sought were given, both
contracting States would lose the benefit of the Treaty. For these reasons and
for the reasons already given in Australia's Counter-Memorial (Part II,
Chapter1),Portugal's Applicationis inadmissible.
146 Replyof Portugal,par. .14.
14' Monetarv Gold case, ICJ Reports 1954, p.32; Maritime FrontierDis~ute
fEl Salvador/HondurasI~CJReports1990,pp.114-116.
148 Replyof Portugal,para.7.11. CHAPTER 2
THE STANDING OF PORTUGAL
123. In Part II, Chapter 2 of its Counter-Memorial, Australia asserted that
Portugal could notestablish its right to bring its claims against Australia. This
was because of a lack of sufficient legal interest and because any judgment
would not benefit Portugal which was,in any event, not in a position to carry
out anyjudgment.149
124. Portugal in Chapter VIIï of its Reply responded to these contentions.
Australia considers the Portuguese response does not detract from the
Australian arguments and does not establish the standing of Portugal in these
proceedings. It notes, particularly, that Portugal clarifies that itdoes not assert
that its clairns are based simply on its status as a Member of the United
Nations.150Portugaldoesnot seekto relyon any notionof an actio uouularis.~sl
Instead Portugal seeks to establish that itsinterestand the right to act on behaif
of the people of East Timor arises either in its capacity as administering Power
or altematively as representative of a separate and distinct subject of
internationallaw, namelythe peopleof East Timor.
Section 1: asadminmg Powa
125. Portugal considers that its "status" as administering Power gives it the
necessary right to bring actions in its own name in international bodies with a
view to the peaceful settlement of disputes with other States on questions
relating tothe territory it adrninisters. This right to represent internationallythe
non-selfgoveming territory is asserted as a general right belonging to an
administering Power. The significanceof referencesby the United Nationsto a
particular State as the "adrninisteringPower" of a non-self-goveming territory
is considered in detail in Part II, Chapter 1below. That Part dernonstrates that
there is no distinctive status of "administering Power" in intemational law. It
confirms that in a case such as the present where aformer colonial Power has
149 SeeCounter-Memonao lf Australi, aras.235-236.
150 Replyof Portugal, para.8.15.
lsl çf Counter-Mernoriaof Australi, aras.258-265.lost al1control over the territory in question, the mere fact that the United
Nationshas subsequently referredto that State as the "adrninisteringPower" of
the temtory does not provide a basis for asserting standing in proceedings such
as these.
126. Portugal also assumes that itsstatus as administenng Power enables it to
allege that Australia has failed to comply with a duty to CO-operate with the
United Nations. Whatever arguments it may address as to standing based on its
status of administering Powerfor purposes of its clairnsrelated to the rights of
the people of East Timor, Portugal points to no basis whereby its status of
administenng Power entitles it to bring a general claimof failure to CO-operate
withthe UnitedNations.
127. As Portugal recognises,the Court has neverpronouncedexplicitly on the
standing of an administeringPower.152The cases to which it refers to support
its proposition do not deal with a situation like the present, where the
administering Power isnot inphysical controlor possessionof the temtory and
is inno position to give effect to anyudgment.
128. Thus, the fact that the United Kingdom in the Minquiers and Ecrohos
case153 was able to represent aseparateand distinctpoliticalentity,Jersey, is no
more than a recognition that the UnitedKingdom on the international planeis
effectively the representative of Jersey for foreign relations purposes. That
representative capacityisexercisedin fact and isnot chailenged. That isnot the
situation here. Similarly, the cases involving protectorates such as Morocco
involvedrepresentationby a Stateineffective day-to-daycontrolof thetemtory
inquestion. That isnot the situationhere.
129. The reference to the Right of Passage case,lMreferred to in paragraph
8.06 of the Reply of Portugal is also misplaced. in that case the Court
deliberately refrained from dealing with the consequences of the indian
intervention in the enclaves. And that was an imrnediateconsequence, not one
produced after 15years of international inaction. Eventhough the case didnot
deal explicitly with the standingof Portugal, it can hardly point to that case to
support its position that it hasficient legal interestfor the Court to decidethe
alleged dispute simplyby showingthatit isdesignated administering Power.
152 Replyof Portugal,para.8.06.
153 ICJReports 1953,p.47.
lS4 ICJReports 1960,p.6.130. In order to determine whether Portugal's designation as administering
Power in fact gives it sufficientlegalinterestto bring the presentproceedingsin
its own name and on its own behalf one must examine the circumstances in
which Portugal has been designated as administering Power by the United
Nations. Australiaset out the relevantmaterial on this inparagraphs243-252of
its Counter-Memorial. A further consideration of the issue is warranted in the
light of thePortugueseReply.
131. The Australian submission in relation to the standing of Portugal as
administering Power is very simple: even if Portugal is described as
administering Powerby the United Nations for certain purposes,the fact that it
is not in effective control of the temtory of East Timor means that it has no
standing to bring its present claims against Australia. In other words, it is not
sufficient for Portugal to establish that it is describedby the United Nations as
administering Power. It must also demonstrate that that capacity in the
particularcircumstances gives it a right or a sufficientlegal interest to bring the
present proceedings. And Australia says it does not, given that it is not a
relevant coastal State (SectionIIi) It.is not unusual for a term to be used only
in a descriptiveway and without legal consequencesflowing from itsuse. That
is the casehere: the descriptionof Portugal as administeringPowerdoes not by
that fact alonehave legal consequencesso as to conferstanding.
132. Portugal relies on a passage in the Namibia case, which quotes from the
South West Africa cases in 1962 to the effect that the rights of a mandatory
"are, so to speak, mere tools to enable it to fulfil its obligations".l5s But it is a
rnistaketo interpretthisas meaningthat an administeringPower necessarilyhas
at al1tirnesthe right to exerciseal1powers whichit might be entitled to exercise
if it were in sovereign possession of the territory concemed. In the
circumstances of East Timor, where Portugal has not been in possession or
control since 1975and where before 1975it had not fulfilled its obligationsas
adrninistering Power, its dutiesare now limited to acting in co-operation with
the United Nations in order to give effect to the resolutions of the United
Nations.156
133. The correct legal positionis that an administeringPower'scompetenceto
sue is limited by the circumstances in which it exercises its powers and
Is5 Replyof Portugal, ara.8.03,refemngtICI Reports1962,p.32.
Is6 See Namibiacase,ICJReports1971,p.46;Counter-Mernoria olf Ausualia,paras.248-
249.responsibilities as administering Power. So, once a process of liberation in a
colonial territory has reached the stage of an armed uprising and has thus
encroached on the powers of a colonial administration, that administrationcan
no longer legitimately conclude treaties conceming the disposition of the
natural resources of the territory.157 In the same way, once a colonial power
ceases to have any effective control in a territory, it no longer has standing to
bnng an action against another State conceming the conclusion of a treaty in
relation to that temtory as it is no longer in a position of control in that territory.
That Portugal is referred to as an adrninistenng Powerby the General Assembly
does not alter the fact thatsuch a State is alsoa colonialpower.
134. It must be rememberedthatin 1975at the time of Indonesian occupation
of East Timor, there was already a Provisional Govemment proclaimed by
FRETILIN and a counter proclamation by UDTJApodeti declaring "the
independence and integration of the whole of the former colonial territory of
Portuguese Timor with the Republic of Indonesia".l58 And subsequent United
Nations resolutionshave recognised the reality that there are separateparties in
East Timorother than Portugalwhomust be part of any settlement.
135. Australia does not deny that Portugal is referred to as administering
Power in United Nations resolutions on East Timor. Buta reference such as
this does not establish that Portugal is entitled to act as if it remained in
sovereign control of the temtory.159 Portugal itself acknowledges that East
Timor is not an integral part of its territory but a separate and distinct
temtory.160
136. Whatever nghts Portugalmay continuetohave as administeringPower to
promote the rightsof the people of EastTimor, theyare limited rights, that must
have regard to the reality of the situation in East Timor. Hence, Australia
pointed in its Counter-Memonal to the lack of United Nations authorisation or
expectation that Portugalwouldtake action such as this, and the lack ofsupport
by the people of East Timor for the exercise of power by Portugal in this way.
Apart from the position under Portuguese law, developments in intemational
law conceming non-self-govemingterritones confirmthat sovereigntydoes not
reside in the colonial power. Hence the reference in United Nations resolutions
to Portugal as administering Power is not a continuation of a prior sovereignty
157 Guinea-Bissau-Senegal Arbitration3, 1 July198- seeparas.201-207below.
158 Counter-Memonao l f Australia, Ann3. See Counter-Memonal ofAusualia,para.38.
159 See Pan II, Chapter1below.
160 Replyof Portugal,paras.4.50-4.56.along the lines of a govemment-in-exile. Portugalclearly is not this. Portugal
is not an administering Power with thefull attributessuch a Power might have
in a situation when in effective control of territory prior to the effective
assertionof controlby an independencemovement. Portugal, however, remains
ambivalentas to whether its powers arein any way limited.
137. Portugal, in its Memorial,asserts that it is in the position of having been
entrusted with the sacred dutyof ensuring self-detemination for the people of
East Timor; and claims to be the only State with "l'autoritéjuridique" to
promote a self-determination exercise in East Timor.161 In that capacity
Portugal feels entitled to oppose any State which it considers is placing
obstacles in the way of fulfilling that alleged duty, including by bringing
proceedingsinthis Court.
138. But this self-assumed position is mistaken and unfounded. The
Portuguese Governrnent ignores its past record of non-compliance with the
obligations imposed by the Declaration on the granting of independence to
colonial countries and peoples (Resolution 1514(XV)) and more particularly,
Article 73 of the Charter. Its own non-compliance could not fail to have
significant influence on the role that Portugal may be called upon and
authorisedto play in an eventual future implementationof self-detemination in
East Timor. Portugal is not an administe~g Power with a record of actual
responsibilityfor administrationof the territory in accordance with the Charter.
One would not expect such a State to be entitled to bnng proceedings such as
these to uphold its continuing responsibilityinthis regard.162
139. Portugal wrongly believes that, as administering Power, it has a
protagonistrole sufficient to give it standing in these proceedings. ItStates,for
instance, at paragraph 8.03 of its Memonal that it is incurnbent on Portugal to
setup the "moyensjuridiques adéquats"for irnplementingself-determinationin
East Timor, "éventuellement" with the CO-operatio and under the supervision
of the United Nations (emphasis added). And in the Reply, Portugal again
claims that the General Assembly has considered that the responsibility of
promoting and ensuring the exercise of the nght of the people of East Timor to
self-determination belongs to Portugal.163 This is a mistaken view and the
situation is exactlythe reverse.
161Memonalof Portugal,para.8.03.
162Seethe Appendixto thisRejoinder.
163Replyof Portugal,para.4.25. 140. An administeringPowerwith the colonialrecord of Portugal could notbe
left alone by the United Nations to implement self-determination and todecide
on its own the termsof an eventual consultationas to the wishesand thechoices
of the people. For these reasons the United Nations resolutions upon which
Portugal bases its claims contain categorical reservations in the form of
expressions of regret. What is more important, these resolutions have taken
awayfrom the PortugueseGovemrnentthe protagonist roleit claims toperform
includingin theeventual consultation to determine the wishesof the people.
141. Security Council Resolution 384 (1975), which is the mainstay of the
Portuguese argument, contains in its preamble an expression of regret that the
Portuguese Govemment "did not discharge fully its responsibilities as
administering Power in the Temtory under Chapter XI of the Chapter". And
paragraph 3 of the same security Council resolution gives operative effect to
that expression of regret by calling upon "the Govemment of Portugal, as
administering Power, to CO-operate fullywiththe UnitedNationsso as to enable
the people of East Timor to exercise freely their right of self-determination".
The significant part of this operative paragraph 3 is not the description of
Portugal as administering Power, but the calling upon the Portuguese
Govemment to CO-operatefully withthe UnitedNations, which clearly - and
accurately - implies thatithad not done so inthe past.
142. And what is more important, paragraph5 of the same Security Council
resolution putsin thehands of the Secretary-General"the implementationof the
present resolution", which includes, according to paragraph3, the settingup of
the necessarymeans "to enablethe peopleof EastTimor to exercise freely their
right of self-detemination". According to the terms of paragraph 3 of the
Security Council resolution it is Portugal which must CO-operate fuliy with the
United Nations and not vice-versa, as claimed in paragraph 8.03 of the
Memorial and in paragraph 4.25 of the Reply. And this function, taken away
from Portugal and entrusted to the Secretary-General is confirmed, and even
enlarged, in the final General Assembly resolution on East Timor, General
Assembly resolution 37/30of 1982. Paragraphs 1 and 2of the operative part
entrusts these functions to the Secretary-General and the Committeeof 24, to
report back tothe GeneralAssembly.
143. From the relevant United Nations resolutions it results then that the
provisions concerningthe implementationof self-determinationin East Timor,
as established in paragraph 6 of Security Council resolution 384 (1975), inparagraph 4 of Security Council resolution 389 (1976), and in paragraph 7 of
General Assembly resolution37/30 (1982), place the overall responsibility for
all aspects of that implementation squarely on three organs of the United
Nations: the Security Council, the General Assembly and the
Secretary-General.
144. It follows that, in order to respect and apply the right of
self-determination of the people of East Timor, third States Members of the
United Nations, such as Australia,shouldbe guided, in their dealings with East
Timor, by the decisions and instructions that may be made or given by the
Security Council on the basis of the reports of the Secretary-General,and with
therequests of the General Assembly,and not by any restrictionsor limitations
which may occur to the Government of Portugal, as a self-appointed (and
belated) guardian of the right of self-determination of the population of East
Timor. In particular, Portugal cannot, unilaterally and without United Nations
authonty. bring these proceedings in purported discharge of this protagonist
role. And no United Nations organ has found Australia to have breached the
rightof self-determinationoreven suggestedit.
Section ïï: Portugal reoêsesentativeoftwe afEast Timor
145. Nor does Portugal show any sound legal basis on which it can assert
before this Court the legal rights of East Timor if one accepts the "separate and
distinct"status of the people of East Timor. Portugal argues that Article 34 of
the Statute, which provides that only States can be parties before the Court,
does not lirnit the States which can appear before the Court to States whose
interestsaredirectly affected.1" But this again proves nothing. WhatPortugal
must show is that internationallaw allowsa State,whoseonlybasis for actingis
its descriptionby the United Nationsas administeringPower, to bring an action
before the Court on behalf of aseparate and distinct entity such as a people
amountingto a self-determinationunit against a thirdState. Yet itdenies that it
is asserting a general right ianv State Member of the United Nations to
representsuch a people.165
146. It asserts that States have a right to bring a dispute before the Court on
behalf of the people of a separate and distinct territory "dont ils ont
164Replyof Portugal,para.8.12.
165 Replyof Portugal,para.8.15.I'administration".l66This is an important limitation which recognises thatit is
the administration in fact which is important and necessary. But Portugal
clearly does not have this in relation to East Timor and did not have it in 1989
or for that matter in 1978. The people of East Timor and the United Nations
have rejected sucha rolefor Portugal.167
147. Whatever claims Portugal might have against Indonesia as theState that
has displaced its administrationof the territory in question, it is unsound as a
matter of legalpnnciple and goodjudicial administrationto accord standingto a
State on behalf of a separate and distinct people where the State is in no
positionto representthosepeople infact. Australiadoesnot deny that a Statein
actual control of the temtory of a separate and distinct people can represent
them intemationally, at least until the process of liberation has begun.168 But
the sarnecamot be said of a State with no ability to take action in the temtory
in question or to exercise its governrnental powersin a way to implement any
judgment renderedby thisCourt.
148. While Portugal "considers itself stili to be the repository of the rights of
the people of East Timor"l69 there is no justification for such a subjective
appreciation,sincethere hasbeen no delegationof powersor of nghts, eitherby
the people of EastTimor orby the United Nations.170On the contrary,Secunty
Council Resolution 389 in its preamble makes a distinction between Portugal
"and the representativesof EastTimor".
149. The histoncal recordconfirms that none of the conflictinglocal political
forces wanted to depend on Portugal as a continuing administenng authority;
one of them proclaimed independence on28 November 1975; another, two
days after, proclaimedintegrationwith Indonesia.171Portugal, in its Memorial,
seeks to establish that the vanous independence forces now wish to rely on
Portugal fully to assume responsibilities with respect to the people of East
Timor.172 In its Reply,itretums to this issue.173
Replyof Portugal,para.8.12.
Seeparas.140-143above,paras.148-150below.
Application,para.14. Arbitration, 1 July198- seeparas.201-207below.
Counter-Memonalof Australia, para.249.See, however, thePortugueseclaimin Reply
of Portugal,para.4.57.
SeeApplication, para.9, and Counter-Memon oflAustralia,para.2.42.
Memorialof Portugal,paras.1.67-1.72.
Replyof Portugal,paras.3.13-3.18.150. Portugal points to expressions of support from leaders of the East
Timorese resistance movement for its role as administering Power on the
diplomatic and political level with a view to bringing about the self-
determination of the people of East Timor. However, the vanous statements
relied upon by Portugal do not suggest that there is any support among the
people of East Timor for Portugal to resume sovereignty or the actual
administration of the territory ina way that would enable it to claim to be the
relevant coastai State. Portugal cannot, therefore, legitimatelyseekto bnng the
present proceedings as representativeof the people of East Timor for purposes
related to the possible offshore petroleum resources of that territory. The
independence parties see the people of East Timor as separate parties in any
negotiation to find a solution to East Timor: see e.g. the statement by the
Fretilin representative in 1992 to the Comrnittee of 24.174 And so does the
United Nations.
151. It foiiows that thereisno basis, in.fact or law,for Portugal to assumethe
role of representative of the people of East Timor, as the one and only agent
authorisedto act on theirbehalf.
SectionIII: Portugalisnot a coastalState
152. Even if Portugal could establish that its status as administering Power
gives it capacity to bring certain claims before this Court in relation to East
Timor whether on its own behalf or on behalf of thepeople of East Timor, it
must be considered whether the present claim is such a claim. As indicated
above, the dispute and claims of Portugal relate to actions by Australia under
the 1989 Treaty. Insofar as Portugal argues that Australia should have
negotiated with it, and notIndonesia, it raises the question of who is theproper
coastal State for the purposes of this particular treaty. So the issue is not the
abstract one of the capacity of Portugal as delegate or representative of the
people of East Timor or whether Portugal's status as administeringPower
gives it standing, but whether Portugal has the capacity as a coastal State to
represent the territoryin a suit concemed with a treaty on maritime rights. In
the absence of a determinationof that question, Portugal cannot demonstrateits
capacity to bring these proceedings against Australia, raising as they do
174Replyof Portugal,Annen1.22,Vo1.11, p.119-120.questions conceming the ability of both parties to the action to negotiate over
rights each assertsover the seabedof theTimor Gap.
153. Portugal itseif insists that it does not ask the Court to divide the relevant
continental sheif area.175If this is so, the Court cannot simply assume thatthe
natural resources of the area belong to Portugal(or the people of East Timor
whom Portugal says it is representing). Because Portugal does not ask the
Court to decide the appropriate sharing, Portugal deprives itself of any
possibility toestablish real and actual damage. It cannotestablish that it is the
relevant coastal State. This is reflected in the Guinea-Bissau-Seneeal
Arbitration,lwwhere it is said that no breach of permanent sovereigntycan be
established until the location of an appropriate delimitation line has been
established. As the tribunalsaid: "Any Stateclaiming to haveken depnved of
part of its temtory or natural resources must first demonstrate that they
belonged to itW.l77This Portugaldoesnot do.
154. The rights of a State to maritime areas such as the territorial sea and the
continental shelf only arise as a consequence of the rights over the adjacent
territory. To be an administering Power in name does not establish any
necessary concomitant maritime rights - they can only be ascertaincd by an
examination of the actual situation. In this case, whatever the nature of the
rights Portugal might retain as administering Power, they clearly do not
embrace rights that are dependent on some association with the temtory in
question, such that maritime rights appurtenant tothe temtory can be atbibuted
to it. In the NorthSea cases the Courtsaidthat rightsof a coastalStateover the
continental sheifexist ipsofacto and ab initio "by virtue of its sovereigntyover
the land".l78 Maritime rights attach to a territory, not directly to a people.
When a State acts as a coastaiState and makes treatieson maritime rights,such
treaties invariably impose obligations. If a State is not in a position tocany out
such a treaty, as is Portugal in relationto East Timor, it can not be described as
a coastalStatenor beaccordedthe legal interestof a coastalState. Hence,until
Portugal establishes thatit is infact the relevantcoastalStatewith thenghts
ability toassert those nghts on behalf of the temtory it can not be accorded the
legal interest to represent the people of the territory of East Timor in
175 -ee~aras.5 .4,and7 (> ,above.
176 Guinea-Bissau-Seneea1Arbiaation,31July1989 - seepara.201below.
177 m., para.39.
178 ICJReports1969,para.19. CHAPTER 3
JUDICIALPROPRIETY
Section1: Illegitimateobiect
155. In Chapters 3 and 4 in Part II of its Counter-MemorialAustralia setout a
number of reasons why the Court should not adjudicate upon the Portuguese
claim. Australia maintains those grounds which are based on fundamental
considerations of judicial propriety.179 The present case is an example Ur
excellence where considerationsof judicial propriety shouldlead the Court to
decline to decide the claims, even if itwere otherwise satisfied that the Court
hasjurisdiction and that the claim isadmissible.
156. Australia in thevery first chapterof this Rejoinderhas shownthe abstract
and unreal nature of the Portuguese clairn against Australia. Australia has
pointed to the very large numberof negative propositions madeby Portugaland
the contradictions and inconsistenciesin its case. This illustrates the fact that
the Portuguese claimshave no legitimate object.
157. Portugal responds in its Reply at some length to Australia's contentions
on judicial propriety set out in the Counter-Memorial.180 Central to this
response is Portugal's statement that al1 itseeks from the judgrnent is an
affirmation that Australia isunder an obligation to respect Portugal's status as
administeringPower for East Timor and to recognisePortugal's rightto defend
the rights of the people of East Timor.181 Portugal criticises Australia for
wronglydefiing the disputeand seeksto avoid thesignificantargumentsraised
by Australia by itself redefining the dispute. An examination of some of
Portugal's contentions demonstrates, however, as the first chapter of this
Rejoinder has already shown,the artificial nature of its defence to Australia's
contentions. This confirmsthe illegitimateobjectof the Portugueseclaim. This
is reinforcedby particular statementsin the Reply.
158. In one place Portugal says that the dispute involves the obligation of
Australia not to act in a rnanner which by disregarding ("méconnaissant")the
179 Counter-Mernorialof Australia,paras.269-270.
180 Replyof Ponugal,paras.9.01-9.49.
181 Replyof Portugal, paras.9.31-2, 9.43.rights of the people of East Timor "rendrait plus difficile" the achievementof
self-determination.182But if this is a correct descriptionof the dispute then it
confirms Australia's view that the dispute is not appropriate for adjudication.
Portugal invokes a politicaljudgment,and a questionof degree,as central tothe
dispute. And this highlights the close link between the particular dispute with
Australia and the broader political dispute that is being dealt with in the
political organsof the United Nations.
159. In any event,how Portugalitselfenvisages theright of thepeople of East
Timor to self-determination actually being achieved by recognition of its
responsibility as administering Power is not clear. Yet this is critical to the
issue whether the Portugueseclaim has a legitimateobject. Inthe only defimite
plan put forward in this regard by FRETILIN, to which Portugal refers with
apparent approval at paragraphs3.16-3.17 ofits Reply and which it includes as
an Annex, it is contemplated that therewouldbe a long penod of 5 to 15years
under restored Portuguese administration before the peoplewere, if they chose,
able toexercisethe right to independence - see the Araujuoproposa1set out in
Annex 11.9of the Reply.183This appears to bemore a restoration of a colonial
powerthananexerciseof the rightto self-determination.
160. In paragraphs 9.31 and 9.40 of its ReplyPortugal says that ajudgmentin
Portugal's favour would serve a useful purpose in that its object would be to
conserve ("conserver") the natural resources of the people of East Timor.
Apparently the way in which this would occur is by the area remaining
unexploited. This is because Portugal cannot force Australia to reach an
agreement with it and Portugal is in no position itself to exercise the rights.1"
Not only would a resultof no exploitationdeny Australia its rights,but itwould
also be a most improbable result. Faced with a situationsuch as postulated by
Portugal, both Australia andIndonesia are likely unilaterallyto exploit thearea,
without the Treaty, avoiding jurisdictional conflicts on a purely pragmatic
- -
basis.185The Treaty is potentially far more beneficial to the people of East
Timor provided Indonesia Dasseson an eauitable Dartof the benefits to the
m. But thatis amatter the United Nations shouldensure. Thebenefits will
182ReplyofPortugal,para.9.02.
183ReplyofPortugal,AnnexIL9, Vol.11,pp.194-6.
1" SeeCounter-Memoria olf Ausrnali,ara.283.
185This assumes,so farasAustraliais concerned,thatthe Coursudgmentwouldnotdeny
it thenght to exploit itsown continentalshelf intheregion(althoughPortugalargues
thatthe Courtcannot determinel,et alonedelimit,thatcontinentalshelf). By reasonof
Article59 of theStatuteof the CouIndonesiawouldnotbeconstrainedin any wayby
the Court'jsudgment.not be ensured by denying the right of Australia to negotiate with Indonesia
over the exercise by Australia of its own coastal State rights. Judicial recourse
by Portugal anainst Australia is not, therefore,"le moyen le plus effectif"86 by
which the rights of the people of East Timor to their natural resources can be
protected.
161. Portugal also insists that it does not ask the Court to resolve any conflict
of obligations that Australia may incur if the Court were to say that the
negotiation of the Timor Gap Treaty violated the rightsof the people of East
Timor.187But this does not avoid the difficulties outlined by Australia in its
Counter-Memorial (at paras.279-282). Portugal argues that itis for Australia to
draw the appropriate conclusions from a judgment of the Court and that
therefore the Court is not required to determinematterswhich willhave a direct
1egal.effecton Indonesia. Butwhat wouldhappen if Australia drew thewrong
conclusions from the Court'sjudgment? The Court couldbe asked to interpret
its judgment so asto make it clear what the right conclusions are. If such an
interpretation directly impinged on a third State (as in this case it inevitably
would), then the original judgment would have done so. And hence, the
judgment of the Court could only be given effect with the subsequent approval
of Indonesia. Hence, as a matter of judicial propriety and for the-reasons
previously setout in its Counter-Memorial, the Courtshould decline to decide
the case.
162. Portugal seeks to distinguish the Northem Cameroonsl88 and Nuclear
ml89 cases relied upon by Australia.lw Yet this attempt to show that the
situations in those two cases are different from that in the present case misses
the point. Those cases are illustrative of a much more fundamental and
important proposition: namely, the Court will not aiiow itself to give fruitless
judgments that a Partyhas no authority or ability to satisfy. And thisis for
good reason. It is an issue that goes essentially to the maintenance of the
judicial function, on which there are inherent limitations, regardless of the
desires of either or both parties to an action. This issue was canvassed at
considerablelength in the Northem Carneroonscase.191The response Portugal
gives in its Reply fails to addressthis fundamental proposition. No matter how
la6 ReplyofPortugal,para.9.40.
la7 Replyof Ponugal,para9.37.
188 ICJReports1963,p.34.
189 ICJReports1974,p.271.
Counter-Mernorio al Ausualia,paras.271-278.Replyof Portugal, aras.9.33-9.35.
191 ICJReports1963, pp.30-38.hard Portugal emphasises its allegedformal status and responsibilities, it gives
no indication of how a judgment in its favour will make one iota of difference
to the rights of theEast Timoreseovertheir offshoreresources. Thoserights, as
weli as Australia's, will continue. No judgment of this Court can affect them,
given the limited issuewhichPortugal asksthe Court to adjudge.
163. The iilegitimate object of Portugal's claims becomes even clearer when
one considers the possible relief which Portugal seeks(see Chapter IX of the
Replyof Portugal).
164. As to its claim for damages, Portugal can point to no material injury. It
would be inappropriatefor the Court to anticipate that Portugal maybe able to
establish such damage in future. Nor should the Court make a declaration that
there is a duty to provide reparation in a situation whereno evidence has been
placed before the Court which would establish any particular loss or damage
that the declarationsoughtwasdesignedto cover.192
165. As to its claim for a declaration of principles to the effect that Australia
by the conclusion of the 1989Treaty has breached certain obligations arising
under international law,sucha declaration couldinno way advancethe asserted
Portuguese aim of promoting an exencse of a right to self-determinationby the
people of East Timor. It would leave the control by Indonesia of the territory
unaffected.
166. Portugal also seeks an order of cessation to the effect that Australia not
perform the Treaty. This appears, in fact, to be the principal Indonesian
remedial claim. But such an order would have the consequence that Australia
was put in the position itwouldhave been in before the Treaty was concluded.
This is a situation involving a conflict of maritime claims with Indonesia. In
such a situation Indonesia could unilateraliy attempt to exploit to the median
line and Australia could unilaterallyattempt to exploit to the edge of the Timor
Trough. This would exacerbate the conflictof maritime claims. Or else, both
sides would be prevented from exploiting the disputed area. This would
deprive Australia of the benefits of its sovereign rights in the area. Indonesia
and the people of EastTimor wouldbe depnved of the benefits that resultfrom
the Treaty. By contrast,if the Treaty continued this would provide benefits to
the parties. It is the political organsof the United Nations which shouldensure
lg2 Temule of Preah Vihear case, ICJ Reports 1962, p.36; Icelandic Fisheries case
(Germanvv Iceland),ICTReports1974,p.205.that, if it thinks appropriate, any such benefits received by Indonesia are
received by the people of East Timor. This is not a result that any remedyby
this Courtcan ensure. Portugal demonstratesno legitimateobjectfor its claim.
SectionII: m~~rooriate meam
167. in its Counter-Memonal, Australia identified a' further ground ofjudicial
propriety on the basis of which the Court should decline to determine the
case.193This is that the Courtis an inappropriateforumfor the resolutionof the
dispute. The situation is that the United Nations has assumed responsibilityfor
negotiating a settlement of the EastTimor question - and this must include a
resolution of the status and responsibility,if any, of Portugal in relation to East
Timor. Yet Portugal asks this Court to make determinations which will
prejudge, and possibly prejudice, the outcomeof the negotiation taking place
under the auspicesof the Secretary-General.194Australia does not say that the
Court cannot exercise its jurisdiction just because the dispute is concurrently
before the politicalorgans of the United Nations.195 although Portugal appears
to consider this to be the Australian argument.196 Australia says that the
Portuguese claims are not justiciable principally because political organs of the
United Nationshave deliberately refrained fromtaking action on matters which
the Court wouldbe obliged todecide,and given thatthosematters are questions
peculiarly within the competenceof those organs - this refers, for example,to
the imposition of a duty not to recognise or deal with indonesia in relation to
East Timor. No one, Portugal included, has asked the General Assembly or
Security Council to decide such questions, even though they are appropnate
bodies to do ~0.197 No other body, such as the Human Rights Committee, has
ken asked to mle on Australia's conduct. Portugalcan only point to a private
body, the Permanent People's Tribunal, which is clearly lacking in judicial
impartiality, which has purported to judge the EastTimor situation. As one
commentator has said about a similar non-governmentalgathering "any group
of persons has a right to gettogether and produce a statement of moral or
political principles said to govem a certain subjectmatter".l98 This does not
lg3 Counter-Mernorialof Australia,paras.287-305.
lg4 Reply of Portugal, Annex1.8,Vo1:IIp.63.
195 Counter-Mernorialof Australia, para.299.
'96 Reply of Portugal, paras.9.10-9.14.
'9' Cf Reply of Portugal, para.9.07.
198 1Brownliein J Crawford (ed),The Riehts of Peoolm (1988),p.11.determine the situation in international law. For that purpose, the United
Nations could have askedthis Courtfor an advisory opinionif it consideredthat
appropriate. But itdidnot.
168. This case is not a situation where the Court and some other United
Nations organ are concurrently dealing with differentaspects of adispute. in
this case, the fundamental propositions on which Portugalmust rely to sustain
its legal argument are peculiarly within the jurisdictionof the United Nations
political organs. Portugal in fact emphasises that certainof these decisions -
namely that East Timor is non-self-governing and the status of Portugal as
adrninistering Power - are not matters that the Court can itself determine.'"
But just as Portugal contends that these are matters for the United Nations, so
the consequencesof those decisionsfor third Statesare alsothe responsibilityof
the United Nations. This is not, therefore,a situation wherethe Court can pass
on the legal aspects of a dispute without impinging onthe proper performance
of functions by the political organsof the UnitedNations. As Judge Lachs said
in the case:
"it is importantfor thepurposesandprinciples ofthe United
Nations that the two main organs with specific powers of
binding decision act in harmony ...and that each should
perform itsfunctions ..without prejudicing theexercise of
the others' powers.'*M0
As was recognised in the Nicaragua (Preliminary Objections) case, the Court
and Security Council have "separate but complementaryfunctions with respect
to the same event".201But this does not mean that it is always appropriate for
the Court to exercise itspowers. It mustbesatisfiedthatjudgment by theCourt
wouldbeappropriateinthe particularcircurnstancesof the case.
169. As Judge Bedjaoui recognisedinthe Lockerbie case:
"it is as a nile not the Court's role to exercise appellate
jurisdiction in respect of decisions taken by the Security
Council in the fulfilment of its fundamental mission of
maintainingintemational peace andsecurity."2~
199As to whichsee below,Partïï,Chapter1.
200 (LibvanArabJamahinvav UnitedStatesof Amenca),Provisional MeasuresO , rderof
14Apnl 1992,ICIReports1992,p.139.
201 ICJRewrts 1984.0.435.
202 (LibvanArabJamahinvav UnitedStatesof Amena), Provisional MeasuresO , rderof
14Apnl 1992, ICIReports1992,p.145.In the present case the Security Council has considered the situation, given the
Secretary-General a specific mandateandfailed to give any direction to States
not to deal with Indonesia - in contrast to other situations raising similar
questions where a direction was given.203And despite what Portugal asserts,
the dispute before this Court is not a "quite specific juridical disputeWm
separate from the broader disputethe subjectof actionunder the auspicesof the
Secretary-General. Australia'sactions can only be judged having regard tothe
positionof Indonesiaand theresponseof the UnitedNations to those actions. It
would be contrary to judicial propriety and to any concept of "fruitful
interaction"205 for this Court to pronounceon the Portuguese clairns when the
whole dispute is, in al1the circumstances, one that depends inextricably on
decisions by the United Nations. In this case the particularclaimsby Portugal
against Australia cannot be separated out and dealt with in isolation as some
distinct,narrow bilateral legalclaim.
203 SeeCounter-Memoria oif Austrai. ~uendixA.
204 Lockerbiecase (LibvanArab Jarnahirivav United Statesof America),Provisional
Measures,Orderof 14April1992,ICJReports1992,p.154,perJudgeBedjaoui.
205 m., p.138,perJudgeLachs. PARTII
THEMERITSOFTHECASE INTRODUCTION
ISSUES STILL IN DISPUTE BETWEEN AUSTRALIA
AND PORTUGAL
170. Portugal complains of a number of acts of Australia which in Portugal's
contention are al1linked to the breach of one fundamental obligation- an
obligation to refrain from any failure to respect the right of the people of East
Timor to self-determination.206 A substantial portion of the Memorial of
Portugal is devoted to demonstrating the existence of the nghts of peoples to
self-determination and to permanent sovereigntyover their natural resourcesin
United Nations law, conventional international law and general international
law.207The Memorial of Portugal also seeks to establish that East Timor is a
non-self-goveming temtory, that the people of East Timor have a right to self-
determination and to permanent sovereignty over their natural resources, and
that the people of East Timor have not yet exercised their right to self-
determination.208However,thepresent proceedingsare concemed withnone of
these matters. Australiadoes not ask the Courtto determine that EastTimor is
m a non-self-goveming temtory, or that the people of East Timornet have
a right to self-determination, or thatsuch right has already ken validly
exercised. Nor does Australia deny the existence, under United Nations law,
conventional law and general international law,of the nght of peoples to self-
determination and to permanent sovereignty over their natural resources.
Australia has always acknowledged the existence ofthese rights. Australia's
record in relation to Nauru, Papua, New Guinea and the Cocos (Keeling)
Islands indicates its commitment to, and active participation in, the
development of friendly relations among nations based. on respect for the
principle of equal rights and self-determinationof peoples, which is one of the
purposesof the UnitedNations."
206 Memorialof Portugal,especiallypara.8.22.
207 Memorialof Portugal, especially ChapterIV. Alsoe.g. Replyof Portugal,paras.5.17-
5.33
Memorial of Portugal, especially Chapters1 and VI. Also e.g. Reply of Portugal,
paras.4.31-4.40.
209 See e.g. General Assembly Resolution 3163 (XXVIII), 14 December 1973
("Implementation of the Declaration on the Grantingof Independence to Colonial
Countries and Peoples"), preambular paragraph''m withsatisfa cetion
ctheSpecial Committee of representativesof the Govemments of Australia andNewrkof
Zealand as administering Powers, as well as the continued readiness of those
Govemmentsto receiveUnitedNationsvisitingmissionsto the Temtories under their
administration,and deeplyloringthe negative atof thoseadministeringPowers171. The present case is concemed with the content, notthe existence, of the
rights to self-determination and to permanent sovereignty over natural
resources. In particular, it is concemed with the content of the corresponding
obligations arising for third States. Portugal's analysis of the content of the
obligations of third States such as Australia is cursory.210Ultimately, Portugal
merely Statesthat:
(a) Ail Stateshave a duty to resDectthe rightof the peopleof East Timor to
self-detemination and permanent sovereigntyovernatural resources,to
facilitate and promote the realisation of that right, and to render
assistance to the United Nations in carrying out the responsibilities
entnisted to it by the Charter regarding the implementation of the
principles;211and
(b) Al1 States have a duty to resuect the powers and duties of the
administering Power,ziz and to do nothing to impede or prevent the
administering Power from fulfilling the obligations incumbent upon
it.213
Portugal asserts that Australia has acted in breach of intemational law by
disregarding or failing to respect the status of East Timor as a non-self-
governingtemtory and the statusof Portugalas itsadministeringPower.214
which,despitetherepeatedappealsaddressedtothembytheGeneralAssemblyand the
SpecialCornmittee,persistin theirrefusalto CO-operatewiththe Special Cornmitteein
the dischargeof the mandatenmsted toit bytheAssembly".
See also AC Castles, "The United Nations and Australia's Overseas Temtories" in
DP O'Comeil (ed)1-1 Law in (1965),p.368, at p.368, refemng to
N Harper and D Sissons,Ausaalia (1959), pp.69-77: "The
inclusion of ChapterI in the Charte...was inno small measure due to persistent
advocacy by the Australian delegates at the San Francisco Conference. At this
gathering,whichdraftedtheCharterin its finalform,the Aushaiian delegationsmngly
affiied that the advancementof al1colonial peoples was a matter of international
concem. Indeed, this country went so far as to argue, until late in the proceedings,
ambit of the proposedmsteeship system. The resulting compromise,nevertheless,inthe
which two separate chapters on non-self-goveming temtories were included in the
Charter,owed muchtotheinitiativestakenbyAushaiia".
210 For instance,paragraphs4.57 to 4.61of the Memorialdealingwith the "Contentof the
rightsofpeoples"merelyindicatethattherightsof peoplesincludetheprinciplesofelf-
determinationandpermanent sovereignty over natural resources.
211 Memorial of Portugal, paras.3.01, 4.27, 4.61-4.62, 5.39, 8.03-8.08, 8.12; Reply of
Portugal, paras.4.55,.02, 6.06; Portuguese submission2 (a), Memorial of Portugal,
p.235, ReplyofPortugal,p.273.
212 Memorialof Portugal,paras.3.01.6.64(c),8.02; Replyof Portugal, paras.5.02(a),5.05.
213 Memonal of Portugal, para.5.39, 8.13; Portuguese submission 2 (b), Memorial of
Portugal,p. 235-236,ReplyofPortugal,p.274.
214 Memorialof Portugal,paras.3.05.8.02,8.25-8.27;ReplyofPortugal,paras.6.06.6.18.172. The obligation to "respect" the right to self-determination and to
"promote" its exercise is expressed in very general terms, and wouldneed to be
defined in far more detail before it could be determined in a concrete case
whetheror not there had been a failure to fulfil that obligation.215Portugaldoes
not do this, because al1of the acts complained of by Portugal in fact concem
alleged breaches of an alleged duty to "respect" the powers and rights of the
adrninistering Power. Portugal contends that Australia has acted contrary to
internationallaw in that Australia:
- has negotiated, concluded, initiated performanceof, and given effect in
municipal law to, the Treaty with a State other than Portugal;216
- is continuing to negotiate with a State other than Portugal with respect
to the delimitation of the continental shelf in the area of the Timor
Gap317
- has excluded any negotiation with Portugal with respect to the
exploration and exploitationof the continentalshelf in that area;218 and
- contemplates exploring and exploiting the subsoil of the sea in the
Timor Gap on the basis of a plurilateral title to whichPortugal is not a
party.219
Thus, although Portugal continually maintains that it is bringing the present
proceedings to vindicate thenghts of the people of East Timor, in fact al1of the
acts complained of by Portugal concem Australia's failure to respect what
Portugal claims to be h powers and rights as the administering Power of that
temtory. Portugal goes so far as to assert that Australiawould not be in breach
of international law if it dealt with Portugal in respect of the Timor Gap area,
even if Portugal itself was in breach of its own obligations as administering
215 AS to the Portuguese argument that recognition of Indonesian sovereignty over East
Timor of itself necessarily arnountsto a failure to respect the nght of the people of East
Timor toself-detetmination,seeparas.264-267 below.
216 para.6.02 (a) and (b); Portuguese submission 2,onal of Portugal p.235, Replyofl,
Portugal,p.273.
217 Memonal of Portugal, para.3.04 (c), 8.01 (c), 8.26; Reply of Portugal, para.6.02 (c);
Portuguese submission2, Memorialof Portugalp.235, Replyof Portugal, p.273.
218 Memonal of Portugal, paras.3.04 (d), 8.01 (d), 8.26; Replyof Portugal, para.6.02 (d);
Portuguese submissions 2 and 3, Memorialof Portugal pp.235-236, Reply of Portugal,
pp.273-274.
*'9 Mernorial of Portugal, para.3.04 (e), 8.01 (e), 8.26; Reply of Portugal, para.6.02 (e);
Portuguese submission2, Memonal of Portugalp.235,Replyof Portugal, p.273.Power,220 which, incidentally, itwas throughoutthe whole period from 1955to
1974.221 The whole foundation of Portugal's case is the contention that
Australia has breached an aileged obligation under international law not to
disregard or fail to respect ("méconnaître")the status of Portugal as the g&
State with the power and right to deal with other States in respect of East
Timor.222In Australia's submission, so far as the merits are concerned, the
issue in dispute between Portugal and Australia in the present case is the
question whether ail States including Australia are under an obligation in
international law to treat Portugal as the sole State entitled to deal with other
States in relation to East Timor, and in particular, in relation to the natural
resources of East Timor. Portugal asserts the existence of such an obligation;
Australia denies it.
173. The Portuguese argument that Australiahas failed to respect theright of
the people of EastTimor to self-determination is based on the allegedfailureto
respect the powers and rights of Portugal as adrninistering Power. Itis argued
by Portugal that to disregard or fail to respect ("méconnaître")the status and
rights of Portugalas the soleStateentitled todeal with otherStates in respect of
East Timor is necessarily to disregard orfail to respect the status of East Timor
as a non-self-governingterritory, and the rights of the people of East Timor to
self-determination andto permanent sovereigntyover their naturalresources.223
AsPortugal saysin its Reply:
"Les conduites australiennes sont illicites non parce que
l'Australiea traitéspecifiquementavec l'Indonésie ...,mais
parce qu'elle a traité avec quelqu'un d'autre que la
Puissance administranteet en des termesqui concrétisent un
déniau Portugal de la qualitéde Puissance administranteet
221 The Appendixto this Rejoindersets out the principal United Nations resolutionsdealing
with the temtoriesnder Portugueseadministration,demonstrating the consistentrecord
of criticism by the United Nations of Portugal's administrationof its non-self-goveming
temtories, including,intera, in relation toEast Timor.
222 See e.g. Reply of Portugal, paras.5.05,6.16 and 6.49; indicatingthat the duty alleged by
Portugal is one of "non méconnaissance",rather than a duty or "reconnaissance".
223 Reply of Portugal, para.6.12: "Ce qui importe aux fins de l'espèce et ce que dit le
Portugal c'est que de traiter sur une base par rapport à un territoire non-
autonome, avec une puissance autre que la puissance administrante, m6connaît
nkcessairement non seulement les droits de la Puissance administrante mais encore le
droit du peuple de ce temtoue àdisposer de lui-mêmeainsi que sa souverainet6
permanente sur sesrichessesetressources naturelles." un déniau Timor oriental de la qualitéde temtoire non-
autonome."224
This argument proceeds from the notion that there is an inseverable link
between the right of the people of a non-self-goveming territory to self-
determination and the powers and rights of the administering Power to
administer that territory. Portugal does not seek to establish the existence of
such a link by any analysis of State practice,judicial decisions or opinions of
writers,nor by relevant general principlesof law. It merelymakes the assertion
that the dutyto respect the rightsof the people of EastTimor "of itself, implies
a duty to respect the powers and duties of the administering Power".m
Similarly, in its Memorial, Portugal merely asserts, wi-out any supporting
legal analysis, that it is inconsistent with Portugal's status as "administering
Power", and hence with the status of East Timor as a non-self-goveming
temtory, for Australia to deal with any State other than Portugal in respect of
the natural resourcesin the Timor Gap area.226
174. This argument is unfounded. Australia isunder no obligation under the
United Nations Charter, General Assembly resolutions, international human
rights conventionsor general international lawto refrain fromdealing with any
Stateother than Portugalinrespectof East Timor,and it is not inconsistentwith
the status of East Timor as a non-self-govemingtemtory for Australia todo so.
Australia'sreasons were givenin Part Hl of its Counter-Memonal. In itsReply,
Portugalhas developed at greater lengthan argument thatwas refemd to more
briefly inits Memorial.227Portugal contends that the status of "administering
Power" is an objective juridical status in international law, opposable aga
ornnes. Portugal further contends that the United Nations has final power to
determine which State has this status in relation to a particular non-self-
goveming temtory, and that the United Nations hasdetermined that Portugal
has this status in relation to East Timor and has not since revoked that
determination. Portugalargues that the exclusive right to exercise the powers
of a State in respect of East Timor is inherent in its status as administering
224 Replyof Portugal, para.6.15.See alsoMemorialof Portugal,para.8"Ce:n'est non
pluspouravoirtrait6avec1'EtaX, Y,ou 2,uneaffaireconcernantexclusivementelle-
même et le Timorrientalquel'Australiea meconnules pouvoirset les devoirsde la
Puissanceadministrante, aispourne pasl'avoirtraiteavecle Portueal.auelleau'en
soitlacause".
225 "..ce devoirimplique,parlui-même c,eluiderespecterles pouvoirsetles devoirsdela
Puissanceadminisuante":Memorialof Portugal,ara.3.01.
226 Memorialof Portugal,paras.3.05.8.10.
227 SeeMemorialof Portugalparas.6.54,6.56,6.59,6.61.Power. This argument is dealt with in Chapter 1 of this Part, in which it is
demonstrated that neitherthe United NationsCharter nor general international
law recognises a specialjuridical status of "administering Power", having the
effects contendedfor by Portugal, and thatreferencesby the United Nations toa
particular State as an "administeringPower" give rise to no specificobligations
for third States.
175. As indicated in Australia's ~ounter-~emorial, the position may be
different where there is a binding Security Council resolution requiring States
not to recognisea particularState as entitled to administer aparticulartemtory,
but there are no such binding resolutions relevant to the instant case."s
Portugal maintainedin its Memorial,and continues tomaintain in its Reply, that
such an obligation is imposedby SecurityCouncil Resolutions 384 and 389.229
The Portuguese arguments are considered in further detail in Chapter 2 below,
where it is demonstrated thatthey are unfounded.
176. Once it is demonstrated that Australiais under no obligation to refrain
from dealing with any State other than Portugal in respect of East Timor, the
Portugueseclaimthat the acts.of Australiadescnbed inparagraph 172above are
contrary to international law necessarily fails, insofar as it is based on the
argument that Austraiia is in breach of an alleged duty to deal solely with the
"administenng Power". Chapter 3 will then consider why the acts of Australia
complained of by Portugal arenot otherwise inconsistentwith therights of the
people of East Timor to self-detemination and to permanent sovereignty over
theirnatural resources.
177. in its Application and Memorial, Portugal also contends that by
excluding any negotiation with Portugal with respect to the exploration and
exploitationofthe continentalshelf in thearea of the TimorGap, Australia "has
failed and is failing in itsduty to negotiateinrder to harmonise the respective
rights in the event of a conflict of rights or of claims over maritime areas"
(Portuguese submission 3). This same submission is repeated in the Reply.
This contention, which is rejectedby Australia,is dealt within Chapter4.
178. Before proceeding to consider the substance of the case in detail, two
essential preliminary points needto be emphasised. The first point is that in
this case the Court is only asked to determine whether States are under an
228 Counter-Memoria olf Australia,PartIII,Chapter1.
229 Replyof Portugal,paras.5.34-5.61.obligation to refrain from dealing with any State other than Portugal in respect
of East Timor. Portugal's argumentdoes not proceed from any analysisof the
position of any other State in relation to East Timor. in particular, Portugal
does not ask the Court to adjudge that Indonesia has no right or power to deal
with other States in respect of East Timor.230Rather, the Portuguese argument
takes as its focus the status of Portugal itself as "administering Power", and
seeks to demonstrate that it is inherent in this status that other States may not
deal with anyone other than Portugal in respect of the territory.231As Portugal
says, it does not complain of the fact that Australia has dealt with Indonesia in
respect of East Timor. What it complainsof is that Australia has failed to deal
with Portugal.232 Portugal thus concedes that in the event that the Court
determines that States are not under an obligationto deal with Portugal in
respect of East Timor, the Court - by virtue of the MonetarvGold principle -
would not be able to consider with which State, if any, Australia entitled to
deal. In particular, the Court would not be able to consider what rights and
powers Indonesia may validly exercise in relation to East Timor. Should the
Court determineeither that other Statesare not entitled to deal with Portugal, or
that other States mav deal with Portugal but arenot reauired todeal exclusively
with Portugal, thePortugueseclaim, in sofar as it is basedon Australia's failure
to deal with Portugal, would fail.
179. The second essential preliminary point is that the Court in the present
case cannot determine thelegalityof the conductof indonesia in relation to East
Timor. Portugal's argument on the merits seeks to derive much of its support
from an underlying assumption that indonesia's occupation of East Timor is
illegal, and in fact aviolation ofjus coeens.233A further underlying assurnption
230 See Replyof Portugal,para.7.10: "...cettedémarchene concernepas la prétentiond'un
Etat ou d'un autre au sujet du Timor orientalet par conséquentelle n'exigepas qu'une
quelconque prétentionde ce type fasse l'objet d'une nouvelle décision". See also
paras.5 (3) and (7) above (the sovereigntypoint and the Indonesian non-involvement
point).
231 Reply of Portugal, para.6.63: "Laseule autorit6 autoris6e à agir pour le compte de
Timororiental est lePortugal,qui demeureencoresaPuissanceadrninistrante." Seealso
232 Seeparas.172-173above.ra.8.10.
233 See especially Replyof Portugal,paras.2.19(refemng to "les obligationsde l'Australie
de ne pas reconnaître une situation de fait créée pla force"), 5.51, 6.15, 6.29, 6.34,
6.36 ("...soutenir que ..les Etats tiers seraient libres de reconnaître des événements
constituantdes violationsde principes fondamentauxdudroitinternationalgénéralc,'est
mkconnaître l'existence d'un principe pertinent et obligatoire du droit international
général ..."),6.37-6.41, 6.55-6.56. See also Reply of Portugal, paras.3.01-3.12, 3.18
(footnote 98), 3.20-3.21, 3.50, and the Annexesreferred to in those paragraphs. See
furthere.g. Memonalof Portugal,paras.1.66,2.13,4.62, 8.23.However, the Court cannot assumethat Indonesia is under such obligations, or
that it is in default ofm. Nor can the Courtmake any finding or proceed on
the basis of any assurnption that Indonesia wiil not permit the peopleof East
Timor to enjoy the benefits of the Treaty with Australia. WhatPortugal needs
to establish in the present caseis that regardless of whether the conduct of
Indonesia in relation to East Timor is lawful or unlawful, Australia is
nonetheless under an obligation to deal with Portugal in respect of that
temtory.
181. To sumrnarise, according to Portugal's own view, the Court is not calied
upon to judge the conduct of Indonesia in relation to East Timor, or to
determine theissue of what rights and powers Indonesia mayexercise in respect
of East Timor consistently with international law. The only question for
determination by the Court is whether al1States including Australia are under
an obligation in international law to treat Portugalas t&e State entitled to
deal with other States in relation to EastTimor, notwithstanding that Portugal
before 1975 consistently ignoredor violated its obligationswith respect to the
temtory, notwithstanding that Portugalin 1975 (tono smaliextent by reasonof
those violations) lost al1effective control over that tenitory, notwithstanding
that Portugal is now incapableof giving effect toany agreement which it rnight
enter into with otherStates in respect of the territory, and notwithstanding that
Portugal is now incapable of discharging the obligations of an administering
State under Article73 of the United NationsCharter - obligations which, in
the view of the United Nations organs,ithad notdischargedbefore 1974. CHAPTER1
THESTATUSOFAN "ADMINISTERING POWER"
UNDERGENERALINTERNATIONALLAW
182. Portugal maintains that where the United NationsGeneral Assembly or
Secunty Councilrefers in aresolutionto a particularState asthe "administering
Power" of a non-self-goveming territory, that reference constitutes a
"determinative designation or finding" that. is "incontestable", having as a
matter of law an pa ornna effect.239Accordingto Portugal, once the General
Assemblyhas thus determinedby anyvalid resolution thata particularStatehas
the "status" or "quality" of "administering Power" - the size of the majority
supportingthe resolutionking irrelevant240 - this determinationovemdes the
reserved domain of States in matters of recognition."l Furthermore,the status
ofl'administeringPower", so determined,is saidto have continuing legal effect,
until such tirne as the United Nations expressly terminates that status.It is the
Portuguese contention that unless the United Nationsdeclares that Chapter XI
no longer applies to a temtory or expressly revokes thestatus of "administering
Power", that juridical status will continue indefinitely, presumably in
perpetuity.242The fact that the State in question loses completely al1control
over the temtory is said not to affect the continuingeffect of the status.23 The
fact that the State itself has previously denied that ithad that status, and has
never taken the responsibilities flowing from that status seriously, is also
irrelevant. Similarly, the fact that the General Assembly has ceased to adopt
resolutions referring to a particular State as the "administering Power"
following its loss of control is also said to be irrelevant, since the status, once
determinedby the United Nations,has continuinglegal effect, withoutthe need
for it to be continuously reite'rated.214Portugal maintains that the United
Nations resolutions which"designate" it as the "administenng Power" ofEast
Timor remain in force and that Portugal's status as "administering Power" is
thereforea given fact inthiscase.245
239 Replyof Ponugai,paras.4.02to 4.11, andalso e.g. paras.4.16,4.22, 4.27-4.28, 5.01-
5.02.
ReplyofPortugal,paras.4.16-4.17.
Replyof Portugal, ara.4.08.
242 Replyof Ponugai,paras.4.16.4.18.4.22.
243 ReplyofPortugal,paras.4.11.4.65-4.66,6.45.
261 ReplyofPortugal,para.4.22.4.24.
245 Replyof Ponugai,paras.2.22C'undonnée") ,.28("-decisa"), 4.30 ("choseréglée.",
"donnéespre6tabliesW6).,45.6.62-6.63.7.08-7.09.It is said that al1States are under a corresponding obligation notto disregard or
fail to respect ("mécomaître") the powers, duties and rights of Portugal as
administeringPower,246 includingthe right to exerciseover the temtory "toutes
les compétences propres aux EtatsW.a7In otherwords, it is saidthat Statesmust
not conduct themselves in their intemational relations as if Portugal were not
the administering Powerof East Timor.Zs To deal on a de iure basis in respect
of East Timor with a State other than Portugal, is, says Portugal, necessarilyto
disregard or fail to respect ("méconnaître")the statusand rights of Portugal as
administering Power.249
183. For the reasons given in Section 1of this Chapter, Australia submits that
the status of a particular territory under international law as a non-self-
goveming temtory does not of itself give rise to any obligationto recognise a
particularStateas entitledto administerit pending the outcomeof a valid act of
self-determination. While the status of non-self-goveming temtory may be a
specialjuridical status under international law,the history of Chapter XI of the
Charter and the authorities relating to its interpretation do not support
Portugal's contention that thereis any specialjuridical statusof "administering
Power", or that there is any inseparablelinkbetween the rights of the peopleof
a non-self-governing territory to self-determination and the right of any
particular State to adrninister thattemtory until a valid act of self-determination
has taken place. Of course, in cases where a former colonial power has
remainedin controlof a non-self-governingtemtory after the coming into effect
of the Charter, that State has invariably continued to be recognised by other
States, and by the United Nations,as the State which has "responsibilities for
the administration" of the territory within the meaning of Article 73 of the
Charter of the United Nations. However, as explained in Section II of this
Chapter, where that State loses al1control over the temtory in question, and
another State has assumed effective control, other States are not required to
await a determination by the United Nations before ceasing to recognise the
former State as the Stateentitled to exercise powersof sovereigntyover it. It is
not inherently inconsistent with the status of the territory as a non-self-
goveming territory for others to recognise that there hasbeen a change in the
State administering that territory,and to deal withthe Statein effective control.
246 Portuguesesubmission2 (b), Mernorialof Portugal,pp:235-236;Reply of Portugal,
pp.274.
247 Replyof Portugal, ara.4.60.
248 ReplyofPortugal,paras.5.02(a),5.05,5.12,6.45.
249 Replyof Portugal,paras.6.12,6.15. Seealsofootnotes223-224above.The question of which State is entitled to exercise sovereigntyover the territory
pending an act of self-determination is answered by the general principles of
intemational law conceming recognition. As explained in Section III, because
Indonesia is ineffective controlof East Timor andlikely to remain soin future,
Australia is entitled to recognise its sovereigntyover East Timor. Recognition
of Indonesia's sovereigntydoes not implyany approval of the means by which
it came to assume control over East Timor, nor does it necessarily imply that
Australia no longer regards East Timor as having the status of a non-self-
goveming territory or that the people of East Timor no longer have a right to
self-detemination.
Section 1: No s~ecial status of "administerinp Power" exists in
184. Portugal's assertion that there is a special juridical status of
"administering Power", opposable ercraornnes, even after a complete loss of
control of the territory in question, is simply that - an assertion. Without
undertaking any legal analysis in support of this proposition, Portugal simply
states that the power of the General Assembly to adopt "constitutive"
resolutions determining that a paiticular territory has the status of non-self-
governing territory includes the power to adopt constitutive resolutions
determining that a particular State has the status of "adrninistering PowerV.25o
*O E.g., Memorial of Portugal, parasi6.29, 6.54 ("Pour que les organes des Nations unies
puissent se prononcer sur les rapportsdont le peuple non autonomeest sujet, il leur faut
individualiser un autre sujet nécessaire de ces rapports juridiques: la Puissance
administrante" (emphasis added)); 8.10 ("Le devoir de traiter le peuple titulaire du droit
d'autodétermination etson temtoire comme des unitésjuridico-politiques spécifiqueset
individualiséesa comme conséquenceque les rapports avecce peupleet sontenitoire ne
peuvent s'établir qu'à travers un sujet de droit international ayant despouvoirs
Portugal, paras.4.09 ("Selon la philosophie du chapitre XI de la Charte des Nations
Unies, la qualification déterminativepar laquelle un temtoire donné est non-autonome
implique la déterminationd'une certaine entité titulaire des droits et devoirsàrelatifs
l'administration d'un tel territoire et à la promotion de son processus
d'autodétermination");4.40 ("Cette qualitédu Portugal eàtson tour, un élémentdu
statut du temtoire..."). In paragraphs 6.55-6.60 of its Memonal, Portugal cites
authorities in support of the proposition that the General Assembly can adopt
"constitutive" resolutions,determining that a particular temtory has the statusof a non-
self-goveming temtory. From this, Portugal leaps to the conclusion, not supported by
any of those authonties, that "The designation of a State as administenng Power has its
place as an item connected with the régime of non-self-governing territories in
resolutions of al1these types" (Memorial of Portugal, para.6.54). See also Reply of
Portugal,paras.4.01-4.07.Portugal also merely asserts that the duty to respect the rightof the people of
East Timor to self determination"of itself, impliesa duty to respectthe powers
and duties of the administering Power".2sl A further mere assertion, not
supported by any authority, is that the State determined by the United Nations
tobe the "administeringPower"has the & right and power todeal with others
in relation to that territory,z2 so that to deal with any State other than the
administenng Power constitutesan illegal"méconnaissance"of the statusofthe
adrninisteringPower. Portugaldoes not refer to the practiceof States or of the
United Nations, or to any decisions of intemational or municipal courts or
tribunals, or to opinions of any writers in support of any of these
propositions.253The relevant existing authoritiesin fact directly contradict the
Portugueseargument.
185. An examination of United Nations practice reveals that the expression
"administering Power", unlike the expression "non-self-goveming tenitory",
has notken regardedby the United Nations asa term of artor as a reference to
a particularjuridical status. The concept of "non-self-goveming temtories" is
derived from the United Nations Charteritself (see the title to Chapter XI), and
is acknowledged to be a juridical status having legal consequences in
intemational law. It is therefore necessary that there be some mechanism for
determining which territories have that status. In its Counter-Memorial,
Australia observed that the question of whether or not a temtory is a non-self-
goveming temtory requires the involvement of the United Nations.254 The
United Nations has over the decades consistently concemed itself with this
question.*s The General Assembly has adopted resolutions conceming the
factors which should be taken into account in deciding whethera temtory is a
E.g., Memorial of Portugal, para.3.r...ce devoir implique, par lui-même, celie
respecter les pouvoirset les devoirsde la Puissanceistrante");Reply of Pomigal,
para.5.05 r... les simples qualifications du Timor oriental comme temtoire non-
l'obligation pour tous lestsMembres,et doncpour l'Australie,de nepas seconduire,
comme si le Timor oriental n'6taitpas un temtoire non-autonomeet le Portugal n'en
6taitpas la Puissanceadministrante").
252 Replyof Pomigal;paras.6.12.6.63.
253 The one precedent referred to by Portugal, that of Rhodesia, is completely
distinguishable from the present case. In the case of Rhodesia there were binding
Security Council resolutions requiring States not to recognise the independence of
Rhodesia - seepara.229below. Thecaseof Rhodesiathusprovidesno supportfor the
Portugueseargument.
254 Counter-Memorialof Australia,paras.318-327. . .
2% See generally RHiggins,ne Dev&~me nt ofInte-1 Law Throiighthe Pm
of the United Natiom (1963), pp.110-116. çf also Memorial of Portugal,
paras.5.07-5.26.non-self-govemingtemtory.256It hasaffirmed that it isfor the United Nations
itselfto determine whethera territoryis or isnot a non-self-govemingtemtory,
and that this is not aatter withinthe reserveddomainof the State responsible
for the administrationof that territory.Z' The United Nations hasalso assumed
theresponsibilityof determiningwhenChapter XI ceasesto applyto a non-self-
goveming temtory.258
186. In contrastto this, it canbe seenthat ChapterXI of the Chartermakesno
reference to the concept of an "administering Power".zs9 Early General
Assemblyresolutionsdealingwith non-self-govemingtemtories did notin fact
use the expression "administering Power" in relation to such Temtories -
rather, reflecting the language of Article 73 of the Charter, they referred to
"Members of the United Nations whichhave or assumeresponsibilitiesfor the
administration" of such Temtories;260or to "Members having or assuming
responsibilities for the administration of Non-Self-Goveming TemtoriesW,26l
"Members responsible for the administration of Non-Self-Goveming
TemtoriesW,~2or "Govemments responsible for Non-Self-Goveming
See e.g. Resolutions334 (IV), 2 December 1949;567 (VI), 18January 1952;648 (VII),
10December 1952;742 (VIII),27November 1953(''Factors whichshouldbe takeninto
accountin decidingwhether aTemtory isoris not aTemtory whosepeople havenot yet
attained a full measure of self-government"); 1467 (XIV), 12 December 1959;
1541 (XV), 15 December 1960; 1542 (XV), 15 December 1960 (dealing with the
temtories underthe administrationof Portugal).
See Generai AssemblyResolution222 (III),3 November 1948:"- that, having
regardto the provisions of Chapter XI of the Charter, it is essential that the United
temtory as a result of which the responsible Government concerned thinks itof any such
unneccessarytoamsrnit informationin respect of that temtory under Article73 e of the
Charter".See also, e.g., Resolutions448 (V), 12December 1950;568 (VI), 18January
1952;650 (VII), 20 December 1952;747 (VIII), 27 November 1953;748 (VIII), 27
November 1953;1051 (Xi),20Febmary 1957.
E.g., Resolutions 74(Vm), 27 November 1953 (Puerto Rico) ("Bearine in mind the
wmpetence of the GeneralAssemblyto decidewhethera Non-Self-GovemingTemtory
hasor has not attaineda full measureof self-governmentas referred to in Chapter XIof
the Charter"); 84(M), 22 November 1954(Greenland);945 (X), 15December 1955
(Netherlands Antilles and Surinam); 1469 (XIV), 12 December 1959 (Alaska and
Hawaii);2064 (XX), 16December 1965(Cook Islands).
çf the perplexing reference in the Memorial of Portugal, para.8.27,to "la 'Puissance
adminisuante' du Timor oriental, au sens doàcette expression par l'article 73 de la
Charte".
See GeneraiAssemblyResolutions9 (1),9Febmary 1946;222(III),3 November 1948.
Resolution67 (I), 14December 1946.
Resolutions 143 (II), 3 November 1947; 144 (II), 3 November 1947; 220 (III), 3
November 1948;327 (IV), 2 December 1949;446 (V), 12December 1950;551 (VI), 7
December 1951; 644 (VII), 10 December 1952; 1048(XI), 20 February 1957; 1328
(XIII), 12 December 1958;1462(XIV), 12December 1959;1537(XV), 15December
1960; 1694(XVI), 19December 1961. Also Resolutions445 (V), 12December 1950;
564 (VI), 18 January 1952; 643 (VII), 10 December 1952; 645 (VII), 10 DecemberTemtoriesn.263 Other early resolutions concerning the transmission of
information under Article 73 (e) of the Charter referred to "information ...
transmitted ... by Members of the United Nations under Article 73e of the
Charter relating to economic, socialand educational conditionsin the territories
for which they are responsibleW,2aor simply to "Members transmitting
information under Article 73 e of the CharterW.265 Some resolutions dealing
with non-self-governing territories generally used the expression
"Administering Members-266or "Members administering Non-Self-Governing
TemtoriesW,26a 7nd it is abundantlyclear that these expressions were merelya
shorthand way of refemng to "Members responsiblefor the administration of
Non-Self-Goveming TerritonesW.26*Thus, Members of the United Nations
1952; 1152(XII), 26 November 1957("Members ofthe United Nations responsible for
the administrationof Non-Self-GovemingTemtones"). Seealso Resolution 221(III),3
263 Resolution336(IV),2 December1949.
2a Resolution66 (1).14December 1946. SeealsoResolution9 (1).9 Febmary 1946.
265 Resolution 142 (II), 3 November 1947. See also Resolutions 146 (II), 3 November
1947;219(III),3 November1948;332 (IV),2December 1949.
266 Resolutions 220 (III), 3 November 1948; 328 (IV),2 December 1949; 329 (IV), 2
December 1949;331 (IV),2 December1949,paragraph1;444 (V), 12December 1950;
566 (VI), 18January 1952;742 (VIII),27 November 1953,paragraph 3;743 (VIII), 27
November 1954;847ra(M), 22 November 1954;9327 (X)eand9339(X),88 November 1955;
1049(XI), 1050 (XI)and 1053(XI), 20 February 1957; 1328(XIII); 1329(XIII), 1330
(XIII), 1331(XIII) and 1332(XIII), 12December1958;1463(XIV), 1464(XIV), 1465
(XIV), 1466(XIV), 1468(XIV); 1470(XIV)and 1471(XIV),12December 1959; 1534
(XV), 1535 (XV), 1536 (XV); 1538(XV), 1539 (XV) and 1540 (XV), 15 December
1960;1695(XVI). 1696IXVI). 1697IXVI)and 1698IXVD.19December1961.
267 ~esolution 647 (VII), 10'~ecémber1952.'~lso ~esolutio"'929 (X), 8 ~ovember 1955
("Members ofthe United Nationsadministenng Non-Self-GovemingTemtones").
268 Compare Resolutions 327(IV), 2 Decemberi949 (referringto "~embers resionsible
for the administrationof Non-Self-Goveming Temtories") and 328 (IV), 2 December
1949 (refemng to "Administenng Members"), which were adopted on the same day.
Compare also Resolutions 444 (V), 12 December 1950(refemng to "Administering
Members") and 445 (V), 12 December 1950 (refemng to "Members of the United
Nations responsiblefor the administrationof Non-Self-Goveming Temtories"), which
were also adopted on thesame day; and see Resolution 143 (II), 3 November 1947,
paragraphs 1 ("Members responsible for the administration of Non-Self-Goveming
Temtones") and 3 ("the administenng Member or Membersconcemed); Resolution
644 (VII), 10December 1952,paragraphs 1(refemng to "Membersresponsiblefor the
administrationof Non-Self-Goveming Temtones") and 2 (refemng to "Administenng
Members"); Resolution 647 (VII), 10 December 1952, (refemng both to "Members
administering Non-Self-Governing Temtories" and "Administenng Members");
Resolution743 (VIII),27 November1953,paragraphs 4-5 ("AdministenngMembers")
and 6 ("Members of theUnitedNationsresponsible forthe administrationof Non-Self-
Governing Temtories"); 848 (IX), 22 November 1954, (refemng to "Members
administration of Non-Self-Goveming Temtories" and "Administenng Members");he
Resolution 929(X), 8 November 1955,(refemng to "Members of the United Nations
responsiblefor the administrationof Non-Self-GovemingTemtones", "Members ofthewhich did not administer any non-self-governing territories weresometimes
referred to as "non-Administering Membersm.269 The expression "responsible
government"is alsoused.270
187. The common usage of the expression "administering Power"in relation
to non-self-goveming temtories, dates only from the seventeenth session in
1962. In Resolution 1810 (XW), of 17 December 1962 ("The situation with
regard to the implementation of the Declaration on the granting of
independence to colonial countries and peoples"), the General Assembly
solemnly reiterated and reaffirmedthe objectives andprinciples enshrinedboth
in the Declaration contained in Resolution 1514 (XV) and in Resolution 1654
(XVI). Itthen deplored "the refusa1of certain administering Powers to co-
operate in the implementation of the Declaration in temtories under their
administration", called upon the administering Powers concemed "to cease
forthwith al1armed action andrepressive measures directed against peoples
who have not yet attained independence.',and urged al1administering Powers
"to take immediate steps in order that al1colonial temtories and peoples may
accede to independence withoutdelay". Other resolutions adoptedat the same
sessionin relation to particular non-self-govemingtemtories use the expression
"administering Power" in relation to that territory.271 This terminology was
adhered to in resolutions adopted at subsequent sessions.272 However, some
United Nations administenng Non-Self-Goveming Temtones" and "Administering
Members"); 1328(XIII), 12December 1958,paragraph2 ("Membersresponsiblefor the
administration of Non-Self-Governing Temtories") and paragraphs 1 and 3
("Administenng Members"); 1465 (XIV), 12 December 1959, Reamble ("Member
States...which have or assume responsibilities for the administration of Non-Self-
Governing Temtones") and paragraphs 1-2 ("Administenng Members"); 1466 (XIV),
States administering Non-Self-GovemingTemtones in Afnca"). Resolution 143(II), 3
November 1947, paragraph 3, used the expression "the administering Member or
Members concemed". The French version read "le Membre ou les Membres qui
assument l'administration". Resolution 220 (III), 3 November 1948,paragraph 2, used
the expression"Administenng Members". The French versionread "Membres qui ont
chargede l'administration".
269 E.g. R,esolution 1332 (XIII), 12 December 1958, paragraph 2; 1467 (XIV), 12
December 1959,paragraph2.
270 Resolution222 011).3 November 1948;448 (V), 12December 1950. Also Resolutions
448 (V), 12 December 1950 (preambular paragraph 1); 568 (VI), 18 January 1952
(preambularparagraph 1).
z71 Resolutions 1760 (XVII), 31 October 1962 ("Question of Southem Rhodesia"); 1811
(XVII), 17December 1962("Question of Zanzibar"); 1812(XVII), 17December 1962
("Question of Kenya"); 1817 (XVII), 18 December 1962 ("Question of Basutoland,
Bechuanalandand Swaziland").
272 Resolutions 2022 (XX), 5 November 1965, paragraph 7 ("Question of Southem
Rhodesia"); 2023 (XX), 5 November 1965, paragraph 9 ("Question of Aden");
2063 (XX), 16 December 1965 ("Question of Basutoland, Bechuanaland andresolutions continued to use general expressions such as "Member States
responsible for the administration of non-self-goveming Temtories",273or the
expression "Administering MembersW.274 In relation to some States
administering non-self-goveming territories, including Portugal, the General
Assemblyalso used the expression "colonialPower9'.275
188. While the General Assemblyhas soughttodefmethe contentof the status
of "non-self-goveming territory", and to define the criteria for determining
whether a temtory has this status, and hasreserved to itself the right to make a
final detemination whether or not a temtory possesses this status, there have
never been similar attempts by the United Nations General Assembly, the
Security Council, the Committeeof 24 or any other organ,to defie the content
of a concept of "administeringPower", nor to define the cntena for determining
whether a particular State has that status in respect of a given non-self-
Swaziland"); 2066(XX), 16December 1965("Questionof Mauritius"); 2067(XX), 16
December 1965("Question of Equatorial Guinea"); 2068 (XX), 16December 1965
("Question of Fiji"); 2071 (XX), 16December 1965("Question of British Guiana");
2072(XX), 16December 1965("Question ofIfni and SpanishSahara). The expression
"administering Powers" is used inResolution289(IV), 21November 1949,paragraphs
7 and 10, dealing with the question of the disposa1of the fonner Italian colonies,
refemng to the four Allied Powers occupying those temtories since the Second World
W.-. -
273 Resolution 1971(XVIII), 16December 1963. Also 2109 (XX), 21 December 1965
("Member States having responsibilities for the administrationof Non-Self-Goveming
Temtories").
274 Resolution 1974 (XVIII), 16 December 1963; 2110 (XX), 21 December 1965,
paragraph 4. See also e.g. Resolution 1883(XVIII), 14October 1963("Question of
Southem Rhodesia") in which the United Kingdom of Great Britain and Nonhem
Ireland is not referred to as the "administering Power". The United Kingdom is
subsequently referred to as the administering Power in e.g. Resolution 2(XX) 5,
November 1965, paragraph 7; Resolution 2151 (XXI), 17 November 1966,
paragraphs 8-9. Rhodesia had been affmed to be a non-self-govemingtemtory within
the meaningof ChapterXI in Resolution 1747(XVI),28June 1962,in which the United
Kingdomwasreferred to as the"Administenng Authority".
275 See Resolution 2548(XXIV), 11December 1969("Implementationof the Declaration
on the Granting of Independence to Colonial Counuies and Peoples"), preamble:
"- the refusal of the colonial Powers, especially Portugal and SouthAfrica, to
implement the Declaration and other relevant resolutions on the question of
decolonization"; Resolution 2554 (XXIV), 12December 1969("Activities of foreign
economic and other interests whicareimpedingthe implementationof the Declaration
on the Granting of Independence to Colonial Countries and Peoples in Southem
Rhodesia, Namibia and Temtories under Portuguese domination and in al1 other
Temtories under colonial domination andeffortsto eliminatecolonialism,amheid and
racial discrimination in southem Africa"), paragraph "De~lor~ the attitude of the
colonial Powers and Statesconcemedwhich havenot taken any actionto implementthe
relevant provisions of General Assembly resolutions"; Resolution2708 (XXV), 14
December 1970("Implementationof the Declarationon theGrantingof Independence to
colonial Powers, especiallyPonugal and South Africa, toimplementthe Declaration and
otherrelevantresolutionson the questionof decolonization".goveming temtory, nor has the GeneralAssemblyor any other organpurported
to reserve to itself the competence to determine whether a particular State has
this status. Relevant United Nations resolutions have never even remotely
suggested that an acknowledgement by the United Nations that a particular
State is an "administering Power" establishes a special juridical status in
internationallaw,having ipso iureeffect,bindingerga ornnes,until suchtime as
the statusis subsequently modified by the United Nations. It will be seen, for
instanc tha,inGeneral AssemblyResolution 1514 (XV) of 14 December 1960
("Declaration on the granting of independence to colonial countries and
peoples"), there are express references to "Trust and Non-Self-Goveming
Temtories", and to thenghts of the peoplesof thesetemtones, thus recognising
the special status of these territoriesand peoples. However, there is no positive
reference at al1 to "administering Powers" or to "States responsible for the
administration of' these territories, let alone any suggestion that the
admistering Powers have a special statusor specialnghts or powers by virtue
of the rights of the peoplesof those temtones to self-detemination. Paragraph
5 of the Declaration merely provides that "Immediate steps shall be taken, in
Tmst and Non-Self-GoverningTemtories or ail other temtones whichhave not
yet attained independence, to transfer al1 powers to the peoples of those
temtories". Resolution 1654(XVI),of 27 November 1961 ("The situationwith
regard to the implementation of the Declaration on the granting of
independenceto colonialcountriesand peoples") calls upon "States concemed"
to take action without further delay "with a view to the faithful application and
implementation of the Declaration". (It should be pointed out in this context
that Indonesia hasbeen recognisedby the United Nationsas one of the "parties
concemed" in relation to the question of East Timor).276By applying to East
Timor the factors formulatedby the GeneralAssemblyfor determining whether
a temtory is or is not a non-self-goveming temtory,277it may be possible to
determine that East Timor continues to be a non-self-goveming territory, but
thesefactors give no indicationataliof which State is entitledto administerthat
temtory. Whiie Chapter XI of the Charter imposes certain obligations onStates
which happen to have or assume responsibilities for the administration of non-
self-goveming territories, Chapter XI, and the relevant United Nations
resolutions, are silent on the question of the status of an administenng Power,
the extent of its powers of administrationin respectof the territory,and in cases
276 Resolution 34/40, 21 November 1979, paragraph4. Also Resolution 36/50, 24
November1981, paragraph3 (refemngtoIndonesiaasoneof the"interesparties").
277 Seefwmote 256above.of a change in the State exercising control over the territory, the criteria for
determining whetherthe change inadministrationshouldbe recognised.
189. If the General Assembly had the power to confer and withdraw the
objective statusof "administering Power", itcould be expected that the United
Nations would have used this power to determine which State is entitled to
administer a particular non-self-govemingtemtory pending self-determination,
in cases where thishas been indispute. In fact it has notdone so. For instance,
at the first session of the General Assembly, the United Kingdom transmitted
information under Article 73 (e) of the Charter in relation to British Honduras
(later Belize), and declared its intentionof transmitting informationin relation
to the Falkland Islands.278Guatemala objected as it claimed sovereignty over
British Honduras, and Argentina objected as it claimed sovereignty over the
Falkland Islands.279The viewwasneverexpressed,eitherthen or subsequently,
that the General Assemblyhad thepower to resolvethe question of which State
was entitled to administer those territories pending self-determination. In
particular, itwas never suggestedthatthe GeneralAssemblycould,by makinga
"determinative designation" that the United Kingdom had the status of
"administering Power"of the Falkland Islands, createan obligation binding on
Argentina notto disregard or fail to respect that status. Instead,in subsequent
resolutions, the General Assembly declaredthe need for negotiations between
the United Kingdom and Argentina "in order to amve at a peaceful solution of
the conflict of sovereignty between them conceming the Falkland Islands
(Malvinas)".280 Inrelation to Belize, the General Assembly, whilerefemng to
the UnitedKingdomas "administeringPower",at the sarnetirnecalledupon the
governrnentsof the United Kingdom and Guatemala "to pursue urgently their
negotiations for the earliest possible resolutionof their differences of opinion
conceming the futureof Belize".281
190. Similarly, in cases where a State administering a non-self-goveming
temtory has failed tofulfil its obligationsinrespectof that territory,ithasnever
been suggested that the statusof "administering Power"might be terminatedby
the United Nations. For instance,GeneralAssemblyResolution 1819 (XVII)of
278 SeeResolution66 (1), 14December1946.
279 JCrawfordT , heCreationof Statesin Internatilaw(1979),p.360.
280 Resolution3160 (XXVIII), 14 December1973, paragraph2. See also Resolutions
2065(XX), 16Decernber1965;31/49,1 Decernber1976,paragraph 3.
281 Resolution3432 (XM), 8 December1975. See also Resolutions31/50, 1December
1976,paragraph 4; 32/32, 28 November1977,paragraph 33;3/36, 13December1978,
paragraph3; 34/38, 21 November 1979,paragraph2; 35/20, 11 November 1980,
paragraph5.18December 1962("The situation in Angola"),while solemnlyreaffirmingthe
inalienable right of the people of Angola to self-determination and
independence, and while requesting the Security Council to take appropriate
measures, including sanctions, against Portugal (whose actions hadbeen found
to be inconsistent with its membership in the United Nations), nowhere
suggested that the General Assembly could terminate Portugal's existing
"status" as administeringPowerof that temtory. The 1972resolution affirming
"that the national liberation movements of Angola, Guinea (Bissau) and Cape
Verde and Mozambiqueare the authentic representativesof the true aspirations
of the peoplesof thoseTenitories'982is expressedas an acknowledgementof an
existing situation (seefurtherparagraph 203below). It does not purport to be a
"constitutive" resolution, revoking a prior "determinative designation" that
Portugal has the status of "adrninistering Power" of those Temtories. It does
not even acknowledge that Portugalever had such a particular legal status. In
fact, the first direct reference by the General Assembly to Portugal as
"administering Power" in a resolution dealing specifically with the subject of
temtories under Portuguese administrationcame only in 1974,283 that is, only
&gr the General Assembly had already determined that Portugal no longer
represented those temtories intemationally.284 Previous resolutions of the
General Assembly dealing with "Territories under Portuguese
administration"285 refer merely to "the Non-Self-Governing Territories under
Portuguese administration", "Temtories under Portuguese administration" and
"Temtories under Portuguese domination".286While thereby acknowledging
282 Resolution 2918 (XXVII)of 14November 1972,paragraph2. Seealso Resolution3113
(XXVIII), 12 December 1973, paragraph 2: "Reaffinns that the national liberation
movements of Angola and Mozambique are the authentic representatives of the tnie
aspirations of the peoples of those Temtones and recommends that, pending the
accession of those Temtories to independence, al1 Governments, the specialized
agencies and other organizations within the United Nations system and the United
Nations bodies concemed should, when dealing with matters pertaining to the
concemed in an appropriate capacity and in consultation with the Organization ofs
AfricanUnity".See alsoSecuri touncil Resolution322 (1972)of 22November 1972,
preambularparagraph5.
283 Resolution3294(XXIX), 13December 1974.
284 Resolution 2918 (XXVII) of 14 November 1972, and Resolution 3181 (XXVIII), 17
December 1973. The referenceto Portugal as"administenng Power" inResolution3294
indicates that the General Assembly had not changed its position on this issue, since it
states that the national liberation movementsof Angola and Mozambiqueparticipatedin
an observercapacityin theFourthCommittee'sdeliberations.
285 E.g. Resolutions 1807 (XVII), 14 December 1962; 1913 (XVIII), 3 December 1963;
2107 (XX), 21 December 1965; 2184 (XXI), 12 December 1966; 2270 (XXII), 17
November 1967;2395 (XXIII),29 November 1968;2507 (XXIV),21 November 1969;
2707 (XXV),14December 1970;2795(XXVI), 10December 1971.the status of these territories as non-self-goveming temtories, the references to
"Portuguese administration"and "Portuguese domination"are merely factual.
191. Indeed, the numerous resolutions adopted by the General Assembly and
the Security Council between 1961and 1973which dealt with the Temtories
under Portuguese administration are al1condemnatory of Portuga1.287 They
indicate that Portugal has certain obligations by virtue of the fac ttat it
administers these territories,28and condemn Portugal for its persistent refusa1
to implement Resolution 1514 (XV) and other relevant resolutions of the
General Assembly and the Security Council. They further condemn Portugal
for the colonial war it waged against the peoples of Angola, Mozambique and
Guinea (Bissau). in 1966 and 1967, the General Assembly characterised the
policy of Portugal as a crime against humanity.289Several times, the General
Assembly requested the Security Council to take obligatory measures against
Portugal. in 1973, the General Assembly condemned Portugal's "illegal
occupationof certain sectorsof the ~e~ublicof Guinea-Bissauand the repeated
acts of aggression committedby its armedforces against the people of Guinea-
Bissau and Cape Verde" and demandedthat it desist "from further violation of
the sovereignty and territorial integrityof the RepublicofGuinea-Bissau".2" In
none of these resolutions is there any suggestionthat the General Assembly or
the Security Council recognised Portugal as having any specialjuridical status
or rights and powers in relation to these Territories, stili less that these
286 Some earlier resolutions contained provisions refemng to "adminstenng Powers" of
non-self-governing temtones generally, which would have included Portugal: see e.g.
Resolution 2558(XXN), 12December 1969("Information from Non-Self-Governing
Temtories transmittedunder Article73e of the Charterof theUnited Natioparas.3
and 7. In Resolution 2703(XXV), 14December 1970,which applies to al1temtories
under colonial domination but mentions Portugal specifically,the terms "administenng
Powers" and "colonial Powers"are used interchegeably. However, it is clear that the
General Assemblydid not intend, by the useof the expression "administenng Powers",
to make a determinationthat Portugalhad theexclusivenght to administerthe temtones
adopted at the timecal1on Statesand specialisedagenciesin the United Nations system
to withhold.assistanceof any kindfromtheGovernmentof Portugal: seee.g. Resolution
2708(XXV), 14December 1970,paragraph 7 ("Implementation of the Declaration on
theGrantingof Independenceto ColonialCounmes and Peoples").
287 See the Appendix tothisRejoinderfordetailsof theseresolutions.
288 E.g., Resolution 16@VI) of 19December1961refersto theobligationthat "exison
the part of the Governmentof Portugal to transmitinformationunder ChapterXI of the
Charter of the United Nations concerning Non-Self-Governing Temtories under its
administration".
289 Resolutions 2184(XXI), 12December 1966,paragraph 3; 2270(XXII), 17November
1967,paragraph4 ("Questionof Temtones underPortugueseadministration").
290 Resolution 3061 (XXVIII), 2 November 1973 ("Illegal occupation by Portuguese
militaryforcesof certain sectorsof theRepublicof Guinea-Bissauand actsof aggression
commined by themagainstthepeopleof the Republic").resolutions themselves were intended to render the existence of such status,
rights and powers certain and incontestable, and opposable erga omnes. In
particular, there is no acknowledgement of any special right of Portugal to
the administration of those territories until such time as self-
determination is achieved,even if it should previously lose effective control of
the temtories. HadPortugal enjoyed any specialjuridical status as such, with
particular powers and rights in respect of the temtory (as opposed simply to
obligationsunder Chapter XI of the Charter) one might have expected the
General Assemblyto have alludedto the fact.
192. On the contrary, the omission of the words "administering Power" in
resolutions dealing with the subject of territories under Portuguese
administration prior to 1974 seems to have been a deliberate attempt to avoid
conveying the impression that Portugadi dave any special powers and rights
in respect of the temtories, whichuld have undermined the resolutions' cal1
for the immediate recognition by Portugal "of the right of the peoples of the
Temtories under its administrationto self-determinationand independence".291
Resolutions of both the General Assembly and the Security Council between
1961and 1973repeatedly called on States net to give support or assistance to,
or to CO-operatewith, Portugal in relation to its administration of those
territories: but to adopt measures against Portugal. Conversely, many
resolutionsurged States to providemoral and material assistanceto the national
liberationmovements in these colonialtemtories under Portuguese domination.
It isan untenable interpretation to treat these resolutions as confemng on
Portugal a juridical status, opposable erga ornnes, giving it the exclusive right
and powers to deal with other States in relation to these territories. It is al1the
more untenable, bearing in mind that Portugal voted aeainst al1 these
resolutions." The fact that Portugal is referredto as the "administe~g Power"
-fter the General Assembly had declared that Portugal no longer represented
these temtories merely confirms that the expression "administering Poweris
not usedby the GeneralAssemblyto referto a particularjundical status.293The
expression is no more than a reference tom ill-defined link between the State
referred to and the territory in question, to which certain obligations are
291 Resolution1913(XVIII),3December1963.
292 Except Resolution174(XVI) ,0January1962 ("Thesituationin Angola"), where
Portu~awas absent.
293 Itsh&ldbe notedthataithoughsomeof theseresolutionsdealtwithspecificTemtories,
generalreferencesin theseresolutionsto "TenitoriesunderPortugueseadministration"
Wereintendedto includeEast Timor:see Resolution15(xv) 15,December1960,
paml 0.attached. Use of the expression is not intended to bestow rights upon the State
thus referred to, far less to bestow rights opposable erea omnes which would
survive a fundamental change of circumstancesin the territoryin question.
193. It is clear from this examination of United Nations practice, that the
expression "administering Power", like the expressions "Administering
Members", "Members responsible for the administration of Non-Self-
Goveming Temtories", "colonial Powers" and other similar expressions, are
mere references to present factual circumstances and arenot intended to imply
that the State referred to has any specialjuridical statusunder intemational law
that would survive a change in those factual circumstances. Article 73 of the
Charter imposes certain legal obligations on "Members of the United Nations
which have ...responsibilities for the administration" of non-self-goveming
territones. It does not confer on such Member States, or authorise the General
Assembly to confer on such Member States, any rightsor powers in respect of
such temtories which those States would not otherwisehave. Nor does Article
73 have the effect of "entrenching" theadministering State'sexisting rights and
powers in respect of a territory, pending the achievementof self-determination.
Such an effect would be inconsistent with the very object and purposes of
Chapter XI, which is concemed with the rights of the non-self-goveming
peoples, and is intended to bring aboutan early terminationof colonial regimes
of whateverkind.
194. Similarly, the mere fact that the United Nations has referred to a
particular State as the administering Power of a non-self-goveming territory
does not preclude any future changes in the administration of that territory
without United Nations approval. Article 73 of the United Nations Charter
refers to United Nations Members which "assume" responsibilities for the
administration of a non-self-govemingtemtory, acknowledgingthat changes in
the administering State may take place after the date of entry into force of the
Charter. However, unlike the case of a Trust territory under ChapterXII,there
is no mechanism for United Nations approval of such changes. These occur
independently of the Charter. In other words, while the status of a particular
temtory as a non-self-goveming territory maybedeterminedunder ChapterXI,
Chapter XI says nothing about which State has sovereignty over, or is entitled
to exercise powers of administration in relation to, that territory. The right of a
particular State to administer a given non-self-goveming territory exists
independently of Chapter XI of the Charter, and a transfer of administrationfrom one State to another occurs outside Chapter X1.294Other States may be
prevented from recognising such a transfer by a binding Security Council
resolution, but nothingin ChapterXIprohibitssuchrecognition.
195. This is demonstrated by the example of the Cocos (Keeling) Islands.
Prior to 1955, the Cocos (Keeling) Islands were administered by the United
Kingdom as part of the Colony of Singapore. Singapore was included in the
original list of non-self-goveming temtories in General Assembly Resolution
66 (1).of 14 December 1946, and until 1955, the information providedunder
Article 73 (e) by the United Kingdom in respect of Singapore included
information on the Cocos (Keeling) Islands. Authority over the Cocos
(Keeling) Islandswas transferredfrom the United Kingdom to Australia on 23
November 1955,by arrangementbetween thetwo govemments.295From 1957,
Australia transmitted information on that territory under Article 73 (e) of the
Charter, until theGeneral Assembly decidedin 1984that it was appropriate that
the transmission of such information should cease.296 No United Nations
approval was sought for the transfer of this territory from the United Kingdom
to Australia, either before or after it was effected. Nor did any United Nations
organ ever formaily purport to transfer the statusof administering Power from
the United Kingdomto Australia,orto make a "deteminative designation" that
Australia was now the administering Power. Australia's status as the
administering Power was acknowledged for the first time by the General
Assembly Resolution 2069 (XX),of 16December 1965,297 and even then, only
indirectly. The first direct referenceby the General Assembly to Australiaas
2" Separate issues can anse in cases of attempts to divide up a non-self-goveming temtory,
which may giverise to disputeasin the case of the BritishIndian Ocean Temt(see,
e.g., A Rigo SuredaThe (of73), pp.199-
202). No such issue ariseshere.
295 The Yearbook of the United Nations. 1957, p.290, indicates: "The information
transmitted by the United Kingdom on Singaporefor the year 1955stated that, as of 23
November 1955,the administrationof the Cocos (Keeling)Islandshad been eansferred
to Australia. At the 1957sessionof the Committeeon Information,the representativeof
India asked the representativeof Australia what his Govemment's intentionswere with
regard to these islands. The reply was that the Australian Govemment intended to
transmit informationunder Article 73e of the United Nations Charter on the Cocos
(Keeling)Islands."
296 Resolution39130,s December 1984. In that resolution, theGeneral Assemblyexpressed
its appreciation "to the Govemment of Australia, as the administeringPower concemed
..for the CO-operatiextended to the United Nations".
297 "Question of Amencan Samoa, Antigua, Bahamas, Barbados, Bennuda, Bntish Virgin
Islands, CaymanIslands, Cocos (Keeling)Islands, Dominica,Gilben and Ellice Islands,
Grenada, Guam, Monserrat, New Hebndes, Niue, Papua, Pitcairn, St Helena, St Kitts-
Nevis-Anguilla, St Lucia, St Vincent, Seychelles, Solomon Islands, Tokelau Islands,
Turks and CaicosIslands and theUnited States VirginIslands".the administeringPowerof the Cocos(Keeling)Islands was inDecision321408,
of 28 November 1977 (and that resolution clearlydid not purport to have any
kind of "constitutive" effect). Yet prior tohese resolutions, neither the United
Nations nor any State had protested or expressed concems in relation to the
transfer, nor had any State refused to recognise it. In Decision 321408,the
General Assembly noted "with appreciation the continuingCO-operation of the
administering Power, in reporting on the implementation of ...resolution
1514 (XV) ... with regard to the Cocos (Keeling) Islands".298 It would be
absurd to maintain that until 1965, when the General Assembly referred to
Australia as the administering Power of the territory, al1 other States were
obliged not to disregard or fail to respect ("mécomaître") the status of the
United Kingdom as the sole State entitled todeal with other States in respectof
the natural resourcesof thatterritory.29
196. The situationisvery differentinthe case of a temtory administeredunder
the International Trusteeship System, under Chapter XII of the Charter.
Chapter XII provides that tmsteeship agreements shall be entered into which
"shall in each case include the terms under which the trust temtory will be
administered and designate the authonty whichwill exercise the administration
of the trust territory" (Article81). Such authorityis referredin theCharter as
the "administering authority". Thus, in the case of a Trust Temtory, there is
clearly a specific State which enjoys the juridical status of "administe~g
authority" by virtue of the relevant trusteeship agreement and the Charter,and
which enjoys specific rights, powersand obligations in respect of the temtory,
as determinedby the tmsteeship agreementand the Charter(seee.g. Article 84).
References in other provisions of the Charter to the "administe~g authority"
(e.g. Articles 87(a)-(c),Article 88) are thus referencesto theState which enjoys
that statusby virtue of a trusteeshipagreement. In contrast to this, ChapteXI
dealing with non-self-goveming territories contains no mechanism for
determining which State is responsible for the administration of a particular
298 Emphasisadded. SeealsoDecisions33/411, 13December1978;341409,21 November
1979;351407,11 November1980;361407.24 November1981;371413,23 November
1982;381412,7December1983.
Zw Similarly,in thecase of WesternSaharthe administenng Power, Spaint,ransferred
administrativauthorityoverthetemtoryto a tripartadministration,ursuantto the
TripartitAgreementof 14 November1975 between Spain,MoroccoandMauntania.
Resolution 3458B (XXX), the General Assembly "took note"of the Tripartites,
Agreement,andrequestedthe intenm administration"to take al1necessarysteps to
ensurethat al1the Saharanpopulationsonginating in theTemtory will be ableto
exerciseheirinalienabnghttoself-determination".eefurthepara.211below.non-self-goveming territory,or for defining whatare the specific rights,powers
and obligations of that State in relation to that territory, let alone for
determining those issueswith erga omneseffect.
197. A major difficulty with the Portuguese argument is that it necessarily
irnplies thatthe United Nationshas dispositivepowers, enabling it to determine
which State has legal rights of sovereignty or administration in respect of
particular non-self-goveming temtories. Nothing in the Charter suggests that
this is the case.300The United Nations may have certain dispositive powers in
respect of Trust Territories under Chapter XII of the Charter (in particular,
Article 85, which specificaliy confers on the General Assembly thefunction of
approving the terms of trusteeship agreements, which designate the
administering authority), and may be capable of having dispositive powers
conferred on it by extrinsic agreements in specific cases.301 However, as a
general principle, the United Nations does not have the power to determine or
alter territorial rights of States. The view that Chapter XI of the Charter does
not affect temtorial title was affied by this Courtin the Western Saharacase,
in which the Courtheld thatan advisory opinionrelatingto the future statusof a
non-self-goveming territory did not "cal1 for adjudication upon existing
temtoria- rightsor sovereigntyovertemtory".302
198. Portugal itself in fact admits that the right of a State to administer a
particular non-self-govemingtemtory is not createdby the determinationthat it
is the "administeringPower". Portugal says in its Reply:
"... ces déterminations[of the General Assembly] ne sont
pas constitutives au sens de créer exnovo les situations
déterminées:au contraire elles se limitent à constater des
situations pré-existantes, mêmesi elles ont l'effet de les
rendre certaines et incontestables.. Les Nations Unies
qualifient un certain Etat comme puissance administrante
300 See JBrink, "Non-Self-GovemingTerritones" in Encvclo~aediaof PublicInternational
transfer to the United Nations any powersof temtorial dispositionwith respect to the
territoriesconcemed".
301 E.g., paragraph (3) of Annex XI of the Italian Peace Treaty of 10Febmary 1947 (49
UNTS 1, 214) provided that if tFour Powers failed to agree on the disposai of the
formerItaiian coloniesin Africa,to whichItalyhadrenouncedtitle,the matterwouldbe
referredto theGeneralAssemblyfor a recommendation,andtheFourPowersagreedto
acceptthe recommendation.In the event,ucha recommendationwas sought,and was
given by the General Assembly: Resolution 289A (IV), 21 November 1947. See
generallyJ Crawford,The Creationof Statesin InternationalLaw (1979),325-333.
3M ICJrepons 1975,p.28. aprèsl'examen de la situation concrètedu territoire et de la
position de cet Etat par rapport à ce territoire. Mais les
pouvoirs propres de la puissance administrante ne lui sont
pas conférés par les Nations Unies: ils sont inhérents à la
qualité de puissance administrante."303
If the General Assembly cannot confer on a State ~x novo the right to
administer a particular non-self-goveming territory, but can merely find or
declare ("constater") existing facts, what basis.is there for asserting that this
finding or declaration ("constatation") of existing facts has binding ergs ornnes
legal effect? More particularly, what basis is there for asserting that such a
finding ("constatation") of existing facts has any legal effect afterhose existing
facts have indisputably changed? If resolutionsof the General Assembly have
an "interpretative" value,304what is the legal effect of the General Assembly's
"interpretation" of a state of fact once that state of fact no longer exists?
Portugal does not directly addressthis question. Portugaldoes draw an analogy
with principles in some systems of municipal law, under which certain
"declaratory or recognitive acts" of a body endowed with powersof authority
may render the existence and nature of the situation so declared certain and
indisputable for al1purposes.305 However, in using this analogy, Portugal
proceeds from a conclusion, namely that international law does recognise a
particular juridical status of "administering Power" (as distinct from the status
of a non-self-goveming territory), which may continue tobe opposable against
other States notwithstanding a complete loss of control over the temtory in
question. This conclusion is not justified by Portugal. Internationallawdoes
not necessarily produce statuses and legal consequencesfor third parties in the
same way as municipal law. None of the authorities citedby Portugal support
the proposition that there is in international law a juridical status of
"adrninistering Power" whichmay survive a complete lossof control over the
303 Reply of Portugal, para.4.59, refemng to Memorialof Portugal, paras.6.56-6.57, which
say that in this situation, the General Assemblystat[e] une situation de fait et de
droit qui existait déjàavant d'êuereconnue comme telle". See also Memonal of
Portugal, para.6.02 ("La qualitédu Portugal comme Puissance adminisaante possède
siècle"); Reply of Portugal, paras.3.19 ("La qualité du Portugal comme Puissance
adminisuante du Timor oriental découlede la souverainetécolonialeque le Portugal a
exercé sur letemtoire dès leXVIèmesiècle");4.11 (theorgans of the United Nations
render "certaine et incontestable, par leur détermination,ituation ~réexistente"
(emphasis added)).
304 Reply of Portugal,para.2.22.
305 Memorialof Portugal,para.6.57,footnote350.territory in question. As will be demonstrated in the next section, existing
authonties directly contradictatproposition.
Section II: mect ofa c-rol bvanadministerin~ Power
ofawn-self-governingterritore
A. LOSS OF CONTROL DUETO ANUPRISINGBY THE LOCAL
POPULATION
199. in the case of certain'non-self-govemingtemtories, the former colonial
power lost control of the territory due to an uprising by the local population.
Such an uprising could notof itselfhave terminatedthe status of the temtory as
a non-self-goveming temtory; since the groups seizing controI might not have
been representative of the tme aspirations of a majority of the people. As
always, it was for the United Nationsitself totermine, once the upnsing had
resulted in an effective newregirne, whether self-determination had occurred
and whether ChapterXI of the Charterhad ceased to apply to thattemtory.
200. According to the thesis advanced by Portugal, during the course of such
an uprising, al1States would have been required to continue to recognise (or at
least, to "not misrecognise") the sole right and competence of the former
administering Power to exercise powers of sovereignty and to deal with other
States in relation to the terntory, untilch time as the United Nations had
determined that Chapter XI had ceased to apply to the territory, or had
otherwise determined that the status of the administering Power had been
terminated.
201. This thesis is contradicted by the arbitral award of 31 July 1989 in the
Guinea-Bissau-Sene~al Arbitrati0n.m in its award, the Arbitral Tribunal
noted the existencein intemational lawof:
"a corollary of the principle of self-determination of
peoples, according to which a colonial State could not
conclude, after the initiation of a process of national
3M The text of the award of the Arbitration Tribunal for the Determination of the Maritime
Boundary is contained in the Annex to the Application of the Govemment of Guinea-
Bissau in tCase the ArbitrAwardof.31 1989(-
&mg&, before this CourA. translation prepared by the Regisuy of this Court is
reproduced Intemational Vol. 83 ("83ILR), p.1. liberation, treaties bearing on the essential elements of the
rights ofpeoplesV.307
The Arbitral Tribunal elaborated the legal issues whichanse in the application
of this principle:
"In this process of formation. of a national liberation
movement, the legal problem is not that of identifying the
precise moment in which the movement as such is born.
The important point tobe determined is the moment from
which its activity acquiredan internationalimpact.
Such activitieshave a bearingat the internationallevel from
the moment when they constitute,in the internationallife of
the territorial State, annormal event which compels it to
take exceptional measures, ie, when in order to control, or
try to control events, it isobliged to resorttoeans which
are not those used normally to deal with occasional
disturbances."308
What is significant is that the Arbitral Tribunal considered that Portugalhad lost
the capacity to conclude treatiesbeanng on the essentialelements of the nghts
of peoples in respect of the then non-self-govemingtemtory of Guinea (and in
particular, to conclude treaties with respect to the maritime delimitationof that
temtory) at the point in time at which a process of national liberation had
reached the stage that Portugal was compelled to take exceptional measures,
and notat al1at the point intimeêtwhich theUnitedNationsGeneral Assembly
ha[d reco i P
of Guinea-Bissa.
202. The Arbitral Tribunal was concerned in that case with the capacity of
Portugal to conclude a treaty for the maritime delimitation of the Portuguese
temtory of Guinea in 1960. It found that at that time the national liberation
movement had not yet acquired "an international impact" ("une portée
internationale"). However, theTribunal observed that there had been repeated
statements confirming the assertion that the war of national liberation had
307 Award,pp.33-34;83ILRatpp.26-27. SeealsoAward,p.@, 83ILRatp.30,refemngto
"thenom which limitsthecapacityof the Stateto conciudeatiesupontheinitiation
ofaprocessof liberation".
308 Award,pp.38-39;83 ILRatp.29. Although Mr Bedjaouidissented,hedidnotexpressly
disagreewiththisprinciple,asformulatinthe Award.begun in 1963.309The Tribunalthus acceptedthat Portugalwouldhave lostits
capacity to enter into treatiesbearing on theessential elementsof the rightsof
peoples in respect of the temtory of Guinea in 1963,notwithstandingthat the
United Nations General Assembly, as the Tribunal expressly observes, only
recognised in 1972 "that the national liberation movements of ... Guinea
(Bissau) ...are the authentic representatives of the true aspirations of the
peoples of those territories", and in 1973 -that Guinea-Bissau was an
independentState.310 Prior to that, Portugal had continued to represent the
temtory both in the United Nationsand in other organisations.311Thus, the
Arbitrai Tribunal was willing to accept that between about 1963 and 1972,
Portugalhad no powerto enter intotreaties inrespectof the temtory bearingon
the essentialelementsof the rightsof peoples, especiallytreaties concemingthe
maritimedelimitationof the temtory, eventhough'theGeneralAssemblyhad at
that timenot yet doneanythingpurportingto terminate thestatusof Portugalas
administering Power,andnotwithstanding thatPomgal to someextent was still
recognisedas able torepresent thetemtory in internationalfora.
203. As observed previouslyPl2 even though the General Assembly had
recognised in1973"that the national liberationmovementsof Angola, Guinea
(Bissau)and Cape Verde and Mozambique arethe authentic representativesof
the true aspirations of the peoples of those temtories", the General Assembly
did not thereby purport to terminate Portugal's status or "quality" as
administering Power of .those temtories, since it subsequently referred to
Portugal asthe"adrninisteringPower"of Angola,CapeVerdeandMozambique
in 1974. Onthe thesis advancedby Portugal,Pomgal mustthereforehave also
continued to retainthe "status" of administeringPowerof Guinea-Bissauuntil
theGeneralAssemblyfmallyrecognisedthatPortugalceasedto have any rights
or powers in respectof that temtory when, on 2 November 1973,it welcomed
"the recentaccessionto independenceof the people of Guinea-Bissau,thereby
creatingthe sovereignStateof the Republicof Guinea-Bissauw.313 However,by
that tirne,the Republicof Guinea-Bissauhad alreadybeen recognisedby some
40 States, following the proclamationof the independenceof that country by
the AfricanIndependencePartyof Guinea andthe CapeVerdeIslands (PAIGC)
-
3c9 Award,p.39;83 ILR atp.30.
3i0 Award,p.36; 83 ILR, at p.28, refemng to General Assembly Resolutions 2918
(XXVIII),14November 1972; 3061 (XXVIII),2 November1973and3181 (XXVIII),
17 December1973.
311 m.
312 Seepara1. 90above.
313 Resolution3061(XXVIIi).2 November1973.on 26 September 1973.314This practice of 40 States is a clear indication that
States donot considerthemselves boundto await a determinationof theGeneral
Assemblybefore decidingto recognisethat a former colonialpower,by forceof
events, has ceased to exercise, and ceased to have any right to exercise, any
rightsor powers inrespectof a non-self-goveming territory.
204. Other examples can be found where States have recognised that anon-
self-goveming territory had acceded to independence, and that the former
administering Power had thus ceased to have any rights or powers of
administration in respect of the territory, notwithstanding that the General
Assembly itself hadnot yet recognisedthat avalid act of self-determinationhad
takenplace or that the former colonial powerhad lost its statusof administering
Power. For instance,by December 1960the General Assembly had recognised
the right of the Algerian people to self-detemination and independence, and
subsequently indicated thatthe Declaration onthe Granting of Independence to
Colonial Countries and Peoples applied to Algeria.315However, the first time
that the General Assembly acknowledged that the people of Algeria had
achieved self-determination wasin October 1962, w-n Algeria was admitted
to membership in the United Nations.316Nevertheless, by April 1961 (ie, 18
months earlier), the Algerian Republic had already been recognised by 29
States, following its proclamation on 19 September 1958.317 In fact, in
December 1961,even though a largenumber of States recognised the Algerian
Republic, the General Assembly adopted Resolution 1724 (XVI), the language
of which suggested thatAlgeriawas stili a non-self-goveming territory towhich
Resolution 1514(XV) applied.
205. The situation is different only where the United Nationstakes positive
action imposing a binding obligation on States net to recognise the new
revolutionary regime, asoccurred in the case of Rhodesia.318However, in the
case of East Timor, unlike the case of Rhodesia, no binding United Nations
resolutions were adopted which would have required Australia to recognise
Portugal as the sole State entitled to deal with other States in respect of the
territory,either at the timethe 1989Treaty with Indonesiawasentered intoor at
314 Rousseau, RevueGknkradleDroitInternationlublic, Vol.78, 1974,pp.1166,1168.
315 Resolutions1573(XV),19 December 19601;724(XVI),20December1961.
316 Resolution1754(XVII),8 October1962. The SecuritCouncilhadrecommended on4
recognisedby Francuntil3 July1962.ed. Algerian independence wansot formally
317 Bedjaoui,LawandtheAlgenanRevolution(1961), 112-138, citedin J Crawford,he
Creationof StatesinInternatiLlaw(1979).p.260.
318 SeeCounter-Memona of Ausaalia,pp.182-184.a11.319The Rhodesian example cannot be used, as Portugal seeks to do, to
support a more general proposition thatthe "administeringPower" must stillbe
recognised by other States as having exclusive rights to administer a territory
notwithstandinga completeloss of control overit.320
206. The p~ciple of international law acknowledgedby the Arbitral Tribunal
inthe Guinea-Bissau-Senegal Arbitration321 has important implicationsfor the
present case. It follows from this pnnciple that Pomigal had lost its capacityto
enter into treaties bearing on theessential elements of the rights of peoples in
respect of East Timor, including treaties with respect to maritime delimitation,
by November 1975at the latest. At that time, the majority of the temtory of
East Timor was controlled by FRETILIN.322 On 28 November 1975, a few
days before the Indonesian invasion,FRETILINhad actually proclaimedin Dili
the Democratic Republicof East Timor (RDTL).323Clearly, by then the stage
had beenreachedat whichPortugal, inorder to control,or try to control events,
was obliged "to resort to means which are not those used normally to deal with
occasional disturbances". That control was never restored, and has now been
completely lost. The fact of the Indonesian occupationof East Timor, whether
lawful or unlawful under international law, cannot have had the effect of
restoring to Portugal an exclusive right to exercise de iure powers of
administration over the temtory, which it had previously lost. In any event,
following the occupation of East Timor by Indonesia, FRETILIN continued
until 1984 to assert the existence of the RDTL as an independent State324and
rejected the view that Portugal was still the administering Power of the
Temtory.3* Subsequent resolutions of the Security Council and General
Assembly referring to Portugal as the "administeringPower" sirnilarlycannot
have had the effect of reconferring powers of administration on Portugal
(assuming this was their intention),since Portugal itself admits that the United
Nations cannot "confer" powers of administration ex novo, but can merely
"determine" or "fid" ("constater") the existing situation.326As the precedents
of Guinea-Bissau and Algeria demonstrate, at the time immediatelyprior to the
319 Seeparas.218-223and Chapte2 r below.
320 çf Mernorialof Portugal,paras.6.61-6.62;Reply of Portugal,paras.4.11,4.42-4.44,
4.67-4.68.6.48.SeefurtherSectionIIIof thisChapteof this Rejoinder.
321 Seeparas.201-202above.
322 Memonalof Portugal,paras.l.25, 1.31, 1.67;Counter-Mernoriolf Ausualia,paras.34-
323 Mernonalof Portugal.vara.1.67..24,3.67.
- ..
325 SeeCounter-Memonao lf Ausualia.~ara.242.
,.
326 Seepara.198above.Indonesian occupation of East Timor, there was no rule of intemational law
prohibiting States from recognising Portugal as having lostal1entitlement to
exercise any rights or powersof administrationin relation to EastTimor, asd
Portugal itself in its Memorial concedes, the RDTLwas in fact recognised by
some States as an independent State.327 The practice of those States in
particular contradicts the assertion of Portugal that in the absence of a United
Nationsdetemination to the contrary,all Statesemainedunder an obligationto
recognise Portugal as the "administering Power" of East Timor with the
exclusive rightsand powersof administrationinrespectof thattemtory.
207. The reality is that at the time the United Nations resolutions on the
question of East Timor were adopted, Portugal had lost al1control over East
Timor in fac and,had lost its capacity in law to enter into treaties with other
States in respect of the temtory. Calls by FRETILIN after 1986for a solution
to the question of East Timor which would involve the reestablishment of
Portuguese control pending self-detemination328 cannot have produced an
immediate effect in international law of conferring such authority on Portugal.
Accordingly, at the time Australia negotiated andentered into thexeatywith
Indonesia, therecan be no doubt that Australia wasnetunder an obligation to
treat Portugal as the sole Statentitled to deal with others in respect-of East
Timor.
B. LOSS OF CONTROL DUETO OCCUPATIONBY A THlRD STATE
208. The case of Guinea-Bissau did not involve a situation in which a non-
self-goveming territory had been occupied by a third State. However, as
indicatedabove, Portugal's lossof control over East Timor did not result from
the Indonesian occupation,at the the of which it had alreadylost its capacity
to deal with other States in respect of the temtory. Moreover, even if the
Indonesian occupation were to be regarded as the cause of Portugal's loss of
control over East Timor, the Guinea-BissauSeneeal arbitration nonetheless
contradicts the Portuguese assertion that the "administeringwef' of a non-
self-goveming territory must continue to be recognised by other States as
having sole right to exercise powers of sovereignty in respect of the territory,
regardless of complete or partial loss of control, until such time as the United
327 Mernoriaif Pomgai, para.1.67.
328 SeeMemonalofPortugal,paras.1.67-1.72. ReplyofPortu, ara.3.13-3.18.Nations expressly decides otherwise. The decision of the Arbitral Tribunal
clearly acknowledgesthat the capacity of the adrninistenngPower to deal with
other States in respect of the territory may be lost by force of events,
independentlyof any determinationby theUnitedNations.
209. That this observation applies also in cases in which the administering
Power has lost control of the territory due to its occupation by a third State is
confirmed by the practice of States and of the United Nations in relation to
othernon-self-goveming territories.
210. An exarnple of where this occurred was the caseof Goa. Prior to 1961,
Goa was recognised by the United Nations as a non-self-goveming territory
"under the administrationof PortugaY.329Goa was occupiedby force by india
in 1961. The General Assembly has never passed a resolution formally
indicatingthat the peopleofGoa have exercisedtheir nghtto self-determination
or that Portugal isno longer the "administering Power" ofGoa. Nevertheless,
vanous States recognised the annexation of Goa by India in subsequent years,
and Portugal itseif recognised the annexation in 1974.330 Similarly, in July
1954(before ithad become a member of the United Nations), Portugalhad lost
control over its colonial enclaves of Dadra and Nagar-Aveli on the Indian
subcontinent, due to an insurrection for which outside elements from
neighbouring India appeared to be responsible. In the Case Concemine Right
of Passage over Indian Temtorv,331this Court expressly confined itself to
determining what rights of passage Portugal had for the exercise of its
sovereignty over those enclaves on the eve of the events which occurred in
-954. The question whetherthose rights had subsequently lapsedas a result of
those events was considered by the Court to be "openW.332However, Judge
Spiropoulos in a declaration stated that"the establishment of a new power in
the enclaves must be regarded ashaving i~so facto put an end to the right of
passageW.333Judge Armand-Ugon in a dissenting opinion referred to the
"existence of a de facto government" in the enclaves after July 1954and said
that "These new facts must lead to holding either that the right whichhas been
recognizedmust be suspendedor that ithas becomeextinguished".3f4
329 GeneralAssemblyResolution1542(XV), 15December1960,paragraph 1 (g).
331 ICJReports1960, p.29.dtheUnited Nation(sCambridge 1987),pp.115-116.
332
333 m.. atp.53.
334 m., atp.87.211. The case of Western Saharais another in which theadministering Power
of a non-self-governing temtory was displaced by a third State. Before 1975,
Spain, the former colonial power,had been recognisedby the United Nationsas
the "administering Power" of this non-self-goveming territory (then called
Spanish Sahara).335 On 14 November 1975, Spain entered into a tripartite
agreement with Moroccoand Mauritania,by whichit purportedto relinquish its
responsibilities and powers as administeringPower.336 The Agreement
provided for the transfer of the responsibilities and powers of Spain to an
interimgovernment,which was tobeestablished immediatelyby Spain withthe
participation of Morocco and Mauritania. The Agreementfurther provided that
"The Spanish presence in the territory willto a final endbefore Febmary
28, 1976", and that "The views of the Sahrawi populationas expressed through
the Jemaawill berespected".
On 10 December 1975, the General Assembly adopted Resolutions 3458A
(XXX) and3458B (XXX) onthe "Question ofSpanish Sahara". In the former,
the General Assemblyreaffirmed "theinalienableright of the people of Spanish
Sahara to self-determinationn accordance with General Assembly resolution
1514 (XV)" and reaffirmed "the responsibilityof the administering Power and
of the United Nationswith regardto the decolonizationof the Temtory".the
latter, theGeneral Assembly tooknote "of the tripartite agreement concluded at
Madrid on 14November 1975by the Govemmentsof Mauritania, Moroccoand
Spain" and requested"the interim administrationtoke ail necessary steps to
335 Resolutions of the General Assembly from the mid-1960sreaffirmed "the inalienable
right of the people..Spanish Sahara to self-determination in accordance with
Generai Assembly Resolu1514(XV)":Resolutio2229(XXI) 20December 1966,
para 1. See also Resolutio2354(XXII) 19 December 1967;2428(XXIII) 18
December 19682;591(XXIV)1 ,6December 19692;711(XXV), 14December 1970;
2983(XXVII) 14December19723;162(XXVIII1 ),December1973.Spain was fust
referred to as the "administering Power" of the temtory 2072e(XX),16n
December 1965.InOctober1975in the WesternSaharacase, this Court alsofound that
there were no legal ties between the temtory of Western Sahara and the Kingdom of
Morocco or theauritanian entity "of such a nature as might affect the application of
pnnciple of self-determinationthrough thefree and genuine expressionof the will of the
peoples of the Temtory":Report1975 ,.68Inthat sameyear, the applicabilityof
Resoluti1514 (XV)to the temtory had also been confirmed in two resolutions of the
Security Council: Resol377(1975 )f22October1975R;esoluti379(1975 of
2November 1975.See aiso Resolu380(1975 )f6November 1975.
336Tripartite Agreement Among Spain, Morocco, and Mauritania, signed 14 Madrid on
November 19. .An English version of the text of this Agreement is reproduced in
J Damis,Gmfb in Northwest Africa: The Western Sahara D(1983)pp.149-
150.The Agreementpmvided that Spainwas "putting an end to the responsibilities and
powers thatit holdsas the administrativeauthority".ensure that al1the Saharan populationsoriginating in the Temtory will be able
to exercise their inalienablerightto self-determination".
This resolution is a clear indication that referencesby the General Assemblyto
a particular State as the "administering Power" of a particular non-self-
governing territory and to its "responsibility ... with regard to the
decolonization of the Territory" are not intended to mean that the State so
described is the sole State entitled to exercise powers of administration in
relation to the territory pending self-determination. Although describing Spain
alone as the "administering Power" of Western Sahara, the General Assembly
took note of the existence of the tripartite administration and of its
responsibilities tonsure that the exercise of the right to self-determination
would take place. At the sametime, it isobviousthat Resolution3458B (XXX)
was not intended to be a "constitutive" resolution, making a "determinative
finding" that the tripartite administrationhad rights and powersin relation to the
temtory - itmerely took noteof a fait accom~li.
212. Spain's presence in Western Sahara was terminated in February 1976.
When the Spanishforceswithdrew,Moroccanand Mauritaniantroops movedin
and took controlof the maintowns and settlements.337On 14April 1976,in an
attempt to establishorma1sovereignty over the Westem Sahara, Morocco and
Mauritania signed an agreement to partition the territory, and purported to
integrate their respective portionsas part of their ownitories.338In August
1979, Mauritania withdrewfrom the Western Sahara. Moroccothen extended
its occupation of the territory to the area evacutatedby Mauritania, purporting
to incorporatethe areaintothe Kingdomof Morocco as anew province.339
The Moroccan position that the Sahrawi population hadexercised its right to
self-determination in 1975 in favour of integration with Morocco and
Mauritaniam was never accepted by the General Assembly, which in
subsequent resolutionshas repeatedly made clear the continuing applicationof
Resolution 1514 (XV) to Western Saharaand reaffirmedthe right of the people
of Westem Sahara to self-determination and independence.341 In resolution
337 T Hodges, WestemSahara:TheRootsof aDesertWar(1983),p.224.
338 JDamis,ConflictinNorthwest Africa: We esternSahaDisoute(1983),p.76-78.
339 W., pp.89-90.
341 SeeResolutions31/45, 1December1976;32122.23November1977;33/31Aand B.13
December 1978; 34/37, 21 November1979; 35/19, 11 November 1980; 36/46, 24
November1981;39/40,5 December1984;40l50.2 December1985;41/16, 31 October34/37 of 21 November 1979, the General Assembly "Dee~ly devloreidl the
aggravation of the situation resulting fromthe continued occupationof Western
Saharaby Moroccoand theextensionof thatoccupation tothe territory recently
evacuated by Mauritania", and "Urgerdl Morocco tojoin in the peace process
and to terminate the occupationof the Temtory of Western SaharaW.342 These
resolutions also make it clear that despite the proclamation of the independent
Saharan Arab Democratic Republic (SADR) in 1976 (which has since been
recognisedby a large number of States and is a memberof the Organizationof
African Unity), the General Assembly still regards Western Sahara as a non-
self-governing temtory whose peoplehave not yet exercised the right to self-
determination. Nor has the General Assembly ever purported to modify or
terminate the status of Spain as the "administering Power" of Western
Sahara - indeed, the last the that theGeneral Assembly mentionedSpain in a
resolution on Western Sahara in 1975, it expressly referred to it as the
"administeringPowef' with "responsibility ...with regardto the decolonization
of the TerritoryW.343It is also clear that the General Assembly has never
purportedto determine that Moroccoisnow an adrninisteringPowerof Western
Sahara. On the thesis advancedby Portugalin this case, Spain would therefore
remain the "administering Power" of Western Sahara, with the primary
responsibility for ensuring the achievement of decolonisation, and-with the
exclusive nght and powers todealwith other Statesinrespectof the territory.344
In fact, the attitude of the United Nations, and the international community
generally, has been inconsistent with this theory. Resolutions of the United
Nations since 1976 have made no mention of any rights, duties or powers of
Spain in respect of the territory. According to Portugal, such silence cannot
affect theexistence of suchrights, duties andpowers,"5 but ifthis is correct,the
failureof the United Nations to mentionthemoncedu~g a decadeand ahalf is
1986;42Iï8.4 ~ecember 1987;43133.22 ~ovembkr 1988;44/88, 11December 1989;
45R1.20 November 1990;46/67,11December1991;47/25,25 November1992.
342 Resolution 34/37,21 November 1979. In 1980the General Assembly reiteratedthese
sentiments: Resolution35119.11 November 1980.
343 Resolution3458A (XXX) 10December1975.
344 Under the Madrid Agreementin 1975,Spainpurportedto relinquishits responsibilities
and powers. However,Portugal says that"il semble toutau moinsfort douteux" thatan
administering Power couldrenouncethis statusilaterally,and that"le maintiende la
Nations Unies estctrks important pour la garantie de la rkalisation du droàt les
l'autodetemination par le peupledu temtoire en cause" (Replyof Portugal,paras.4.41,
4.44). Inany event,GeneralAssemblyresolution458A (XXX) referredto Spain asthe
"administeringPower"&Q the mpartite agreementof 14 November1975had already
beenenteredinto.
345 Replyof Portugal,paras.4.22,4.24.extraordinaryIn fact, subsequent resolutionsof the General Assemblynever
mentionedSpainat all. TheGeneralAssemblyhas acknowledgedthe particular
role to be playedby the Organizationof African Unity in finding a solution to
thequestionof Westernahara.= From 1980.the General Assembly requested
Moroccoand Polisarioto enter into direct negotiations witha view toamving
at a defimitivesettlement of the question of Western Sahara,347referring to
Morocco and Polisarioas the two"partiesto the confiict".~
Furthemore, even though the United Nationsrejectedthe Moroccanclaimthat
the people of Western Sahara had decidedn favour of incorporation with
Morocco, even though the United Nations has been critical of Morocco's
presence in the temtory. and even though a largember of States have
recognised the Saharan Repubiic, this has not prevented certain States from
having dealings with Moroccoas the Stateeffective controlof the temtory,
in respect of the naturalresources of the temtory. For instance, a fishenes
agreement between the European Economic Comrnunityand Morocco was
initiaüed o25Febmry 1988, andwas brought into provisionaleffect from 1
Mach 1988.349Article 1 of the Agreementdefines"Morocco's fishimgzone"
for thepurposes of the Agreement as "the waters over which Morocco has
sovereignty or jurisdiction". The "Moroccan fishing zone" is intended to
include-the waters pertaining to Western Sahara.350Previously, on 2 August
346SeeResolutio31/451,Decembe19763;2/22,2November19773;3/31andB, 13
December 1978; 34/2317November1979; 35/1 11November1980;36/462,4
November 1981; 39/40 D,5cember1984;401502,December 1985;36/462,4
November19813;8140.December19833;9/40D5ecembe19844;0/50,December
1985; 41/31,Octobe19864;2n8,4 December1987; 43/322November1988;
25Novemberc1992.1989;5R1.20November.19946167.1 1ecembe19914;7f25,
347See e.g. Resolut35/191,1November1980 ,ara1036/46 ,4November1981;
39/40, 5ecember1984;0150.December1985.
Resdutions36/46,2November1981; 39/ 40,ecember1984;0/502,December
1985;1/163,1Octobe19864;2/784,December1987;3/33 ,2November1988;
44/88,11December19894;5R1,20November 1990.Seealso Resolut38/40, 7
December1983 ,uotingresolutionAHGI104 (XR), adoptedby the Assemblyof
HeadsofStatandGovemmentofthe OrganizationofAfncanUnity.
349A copyof the Agreementis in EC OfficialJou99,16April1988,.49 .he
CouncilDecision29Februar1988givingit provisionaleffectm.,fp.45.
350-ord ofWorld 1988,.243eports: "KingHassanin
Auguststressedthat his country's pain movestowardsa unitedMaghrebdid
not conflict with Morocco'scontinuedo seek membershipof the European
Community, with which afishing agreement wasconcluded in February
months of negotiations. The agreement did not refer specifically to the waters off
Western Sahara, merelytoosewaters underMoroccan sovereigntyor jurisdiction'.
Nevertheless,PolisarioaccusedMoroccoof aying to secureECrecognitionof its claims
to the disputed waters. MohamedSeqat, Morocco'sSecretaryof State for European
Affairs,denied thisbut affmed that the Moroccanfishingzoneincluded the waters off1987, the European Communities had agreed in talks with Morocco to an
extension of a 1983 fishing agreement between Morocco and Spain, which
expired on 31 July 1987. Under the agreement, Spain provided Moroccowith
guarantees and concessionary loans in return for fishing rights for Spanish
fishing boats off the Coastof Morocco and WesternSahara.351Also, in 1982,
Morocco recornmencedexploitation of Western Saharan phosphate, whichhad
been intermpted in 1975-1976.352 Mining and export of Westem Saharan
phosphate is undertaken by the enterprise Fosbucraa, in which the Moroccan
state owned enterprise Office Chérifiendes Phosphates (OCP) has a 65%
shareholding and the Spanish state owned enterprise Instituto Nacional de
Industria (INI)has a 35%shareholding.353
213. If it is not inconsistent with international lawfor the Member States of
the European Communities (including Portugalitself) to deal with Morocco in
relation to Western Saharanfisheries, orfor Spain,via a State owned enterprise,
to participate with a Moroccan State enterprise in the mining of Western
Saharan phosphate, a fortioriit cannotbe inconsistent with international lawfor
Australia to deal with hdonesia in relationto the continental shelfin the Timor
Gap area. Others Stateshave a free choice whetheror not todeal with Morocco
in relation to the exploitation of Westeh Saharan fisheries or phosphate.
However, if Australia is to benefit from its own natural resources in the Timor
Gap area, ithas no choicebut to deal with itsneighbou~g power in relationto
the delimitation of rightsin respect of the natural resourcesof the continental
shelf which theyboth claim. Inthe caseof Western Sahara,such dealings have
Westem Sahara." See also Keesine's 1988,p. 35996: "King
Hassan achieveda notablediplomaticsuccesswhen theEuropeanCommunities(EC)in
sovereigntyover Western Sahara'stemtonal wate...In November 1987the Polisano
offered to 'legitimize'fishing nghts in Sahrawi waters by signing an agreement of its
own ...none of the 12Europeansignatonesto the agreementwith Moroccotook up the
SADR'Soffer."
351 Keesing's Contemporarv Archives 1987, p.35480. A further fishenes agreement
between the European Economic Community andMorocco, similarlyapplying to "the
waters over which Morocco has sovereigntyof junsdiction", was initialled on 15 May
1992: see EC Qfficial Journal, No. L 407, 31 December 1992, p.1. Previous
negotiationsbetweenSpain and Moroccoin respectof fishingnghts in WesternSaharan
pp.126-128.escribedin T Hodges, TheHistoncal Dictionarvof Western Sahar3(1982),
352 AnnuaireFrancaisde Droit International 1982,p.1134.
353 T Hodges, Thml Dictionaw of Westem Sahara (1982), pp.129; T Hodges,
Western Sahara: The Roots of aDan Wa (1983), p.224; ,4ED (Afnca Economi~
m, 6 May 1991,p.13. Minine AnnualReview 1991,p.129,reports that "Capacity
at the Bu Craa mines is now rated at around 1.9 Mitiy following the start-up of a
desalination unit early in 1990. A second unit should beoperational by 1991,taking
capacityat the planttoits full 3M/t/y."not posed any kind of obstacle to the efforts of the United Nations to find a
solution to the conflict, which have culminated in the establishment of the
United Nations Missionfor the Referendum inWestern Sahara354which is now
present in Western Sahara to fulfil its mission to implement a settlement plan
proposedby the Secretary-Generalin 1991.
Section IïI : &e absenceof acontrarv UN decision. Australia is freeta
jjgtdwiththe Stateincontrolofa~QD-self-~overnin t~rritory
214. Because the right of a given State to administer a particular non-self-
governing territory exists independentlyof UnitedNations actionunder Chapter
XI, the question of which State others may deal with in relation to the territory
must be answered in accordance with general principles of international law
concerning nghts of States in respect of territory, including the general
principles of international law concerning recognition.
215. As indicated in Chapter 2 of Part ïïl of Australia's Counter-Memonal,
recognition is generaliy a discretionarymatter for each State, and is in pnnciple
an acknowledgement of the reality of a situation. Generally speaking, the
cornpetence of an entity on the international plane is limited by the degree of
effective control which it in fact exercises over the territory concerned.355
Recognition is merely an acknowledgement of the reality of the situation, and
does not signify approval of the means by which that situation was brought
about.356 A State which disapproves of an effective situation may expressly
refuse to recognise it, but as Rousseau observes, "En réalitéla non
reconnaissance n'est qu'un geste illusoire si elle ne s'accompagne pas de la
volonté de rétablil r'étatde droit antérieur par des procédé dse forceW.357
354 See Secunty Council Resolution 690 (1991). Australia contributes both funds and
oer~ ~ne~t~MINUR-O.
355 kounter-~emorial of ~ustralia, especially paras.350-353. See also e.g. H Thierry,
J Combacau, S Sur and C Vallée, Droit (5th edn 1986).pp.225:
"Dans ces conditions, il faut conclure à la liberté léde la reconnaissance...la
reconnaissance,acte discrétionnaire,et par conséqtttalementaléatoire,ne peuêue
la conditionlégalede l'existence d'une situation;elie epurement déclarative".
356 Counter-Memonalof Australia,especiallyparas.353,357. Seealsoe.g. Chde Visscher,
Les effectivitésdu droit internationallic (1967), p.39: "La reconnaissance est un
actepolitiqueque l'ona vainementtenté deramenerau conceptd'undevoir... En droit,
la reconnaissance'Etatet cellede gouvernementsontdes actes souverainementlibres".
3s7 Ch Rousseau, Droit, V01.11(11977),p.526.216. In the case of most non-self-goveming territories, the former colonial
power has remained in effective control of the territory after the Charter came
into effect, until self-determination occurred. In such cases, issues of
recognition normally have not arisen: the former colonial State which was
previously recognised by States generally as having sovereignty over the
territory continued tobe recognisedby other States, and by the United Nations
itself, as the State entitled to exercise powers of sovereignty in relation to the
territory. In cases where the former colonialState's control of the temtory has
been forcibly displaced by a third State, it may be less clear whether the new
State's administrationof the territory should be recognised. Nevertheless, in
principle, if the new State is in effective control, recognition is permitted by
international law. In the previous sectionexamples were given of cases where
suchchangesof control have been recognisedby other States.
217. However, as acknowledged in Australia's Counter-Memorial, aState's
discretion in matters of recognition must not be exercised in a way that
contravenes any international obligation incumbent upon it.358 One such
obligation under customary international law, expressedin General Assembly
Resolution 2625 (XXV),359 is that "No temtorial acquisition resultingfrom the
threat or use of force shall be recognized aslegaY.360The argument was put
above361that even prior to the Indonesian occupation of East' Timor in
December 1975, Portugal had lost control over that temtory, and other States
were no longer obliged to recognise it as having any powerto deal in respectof
it. If this is so, the issue of the legality of the Indonesian occupation cannot
affect the fact that Australia is not obliged to deal solely with Portugal in
respect of East Timor. As previously indicated (at para.178), once the Court
determines that Australia is not obliged to deal solely with Portugal, the
Portuguese claim, insofar as it is based on Australia's failure to deal with
Portugal, must fail. The comments here on the issue of the legality of the
Indonesian occupationof the temtory thereforeonly anse for considerationif it
is determined by the Court that at the time of the initial Indonesian occupation
Portugal was stiil entitled to exercise powersof administration inrespect ofthe
territory, and on the assumption that it cari determine that question of the
358 Counter-Memonao lf Ausualia,para.350.
359 "Declarationon Principlesof IntemationaLawconcemingFriendlyRelationsandCo-
operationamongStatesInAccordancewiththe Charteo rf theUnitedNations".
360 See Replyof Portugal,paras.3.50,6.29-6.30, 6.37ff (especiallypara.6.41).6.55-6.56,
6.64-6.67.
3-51SectionII of thisChapte,speciallyparas.206-207.legality of the Indonesian conduct consistently with the Monetarv Gold
principle,auod non.
218. The existence of the obligation not to recognise as legal any territorial
acquisition resulting from the threat or use of force is admitted in principle.
However,it is necessaryto clanfy its content. There is a distinction between:
(a) recognising the legality of a temtorial acquisition resulting from the
kat or use of force; and
(b) dealing with the factual conseyences of a territorial acquisition
resultingfrom the kat or use of force.
As to the former, Australia has never recognised the legality of the manner in
which Indonesia tookcontrol of East Timor - indeed, as is apparent from the
statements of the Australian govemrnent quoted by Portuga1,362 Australia has
consistently expressed its disapproval of the manner by which Indonesia
incorporated thetemtory of East Timor. Asto the latter, since 1979Australia
has recognised that as a consequence of the events of 1975, Indonesia now
exerciseseffective controloverEast Timor.
219. Tlie requirement in Resolution 2625 (XXV) that "No territorial
acquisition resulting from the threator use of force shailbe recognised aslegai"
is concemed with (a) and not (b). Australia maybe under an obligation notto
recognise the legality of the acquisition of the temtory of East Timor. But
Portugal states that the Court in this case is not asked to determine the legality
of Indonesia'sconduct363 and for the reasons given elsewherein this Rejoinder,
the Court is unable to consider this question.364 However, even if the actual
acquisition of the temtory of East Timor by Indonesia was iilegal, it does not
follow that States are under an obligation in perpetuity never to recognise the
conseauences of that illegal acquisition. The international community may
eventually signify its acceptance of a situation, which although brought about
by illegalmeans, is now afait accomvli whichcannot be ignored.365When this
362 SeeMemonalof Portugal,paras.2.20,2.22,.2.24.
363 Seeparas.5(2) and179-181above.
364 SeePart 1,Chapter1.
365 H Lauterpacht , xxgm&m. in Intem-
hereof legalizingtheillegal act; thequestionis oneofsregardingtheeffectsof the
illegality...[qhere is no logical objectionto the communityacquiescing,through
collectiveorindividual acof its members actiin thegeneralinterest,intheassertion
of a nght whichdidnotpreviouslyexist. To ruleoutthatpossibilityaltogetherwouldoccurs, the continuing occupation of the territory by the State in question
acquires international legitimacy,even though the original acquisition is never
recognised as legal.366In the wordsof one writer:
" ...what, given this assumption [that neither conquest nor
a cession imposed by illegal force of themselves confer
title],s the legal position wherea conqueror having no title
by conquest, is nevertheless in full possession of the
territorial power and not apparently to be ousted? ...The
traditional procedureby which thelaw is adjusted to fact -
by which indeed, the lawwhen occasion requiresmay seem
to embrace illegality - is the procedure of recognition ...
[Tlhe international community may ... eventually signify
assent to the new position and thus by recognition create a
title. This possibility in no way contradicts the main
proposition that force does not of itself create a title,
because the international comrnunitywould from this point
of view be exercisinga quasi-legislativehnction."367
Or, as another writer observes, a State "ne peut prétendreconserver à tout
jamais un territoire qu'il a cesséde gouverner depuis longtemps alors qu'un
autre Etat a commencé à y accomplir des actesde souveraineté".368
220. Thus, to establish that Australia is in breach of the rule of international
law reflected in General Assembly Resolution 2625 (XXV), it would be
necessary to demonstrate both that the original occupation of East Timor by
Indonesia was illegal, and that this situation had not acquired legitimacy
mean to postulate for the law a degree of rigidity which may not be compatible with
internationaleace andprogress".
366 SeeCounter-Memorialof Australia,paras.356-359.
367 RY Jennings, The Acauisition of Temtorv in International Law (1963). pp.61-62. See
InternationalLaw (1947),p.429 (States"may, by what maybecalled a quasi-legislative
act, give legal force to a situation which in the eyes of the law is a merelity");
H Wehberg, "L'Interdiction du recoursàla force"Recueildes Vo1.78(1951-1).
p.7, at p.108.
368 Ch de Visscher, -. . du droit intern- (1967), p. 37. See also
J Touscoz, pe d'effectivitk dans l'ordre international (1964), pp.228-232,
(refemng. -O Ch de Visrher, ri . .
(3rd edn 1960). pp.257, 404, 405
internazionaie", Rivista trimestriele di diritto pubiic~ 1953, p.241, at p.279);
Law in a Divided World (1986), pp.26-28, 227-228. W Meng, "Stimson Doctrine" innal
Encvcl~pae -fhiblic Vol.4 (1982),p.230, at p.232 says "The use
of that principle [of effectiveness] is not excluded by the Stimson doctrine. Non-
recognition cannot be effective without subsequent sanctionsagainst the violator. If it
remains the sole reaction or if sanctions ultimately fail, States cannot, after a certain
lapse of the, be prohibitedfrornrecognizingthe situat..."through international acceptance by the time that the 1989 Treaty with
indonesia was negotiated and entered into, so that al1 States were under a
continuing obligation not to recognise the legality of the present presence of
indonesia in East Timor. This clearly cannot be done without determiningthe
nghts and responsibilitiesof Indonesia.
221. Wherethe SecurityCouncil adoptsbmding resolutionsrequiringMember
States not to recognise the acquisition, this answers the question whatattitude
Statesare requiredto adopt. However,the Security Council resolutionsin 1975
and 1976relating to the indonesian occupationof East Timor do not determine
that the Indonesian conduct was unlawful atthe time nor do theyrequire States
not to recognisethe legalityof the acts of indonesia in relationto EastTimor.369
However, even if they did, they would not establish that the Indonesian
occupation had not acquired legitimacyby the time the Treaty was negotiated
and entered into in 1989. The question here is not whether the conduct of
indonesia in December 1975 was illegal (a question which, in any event,
Portugal says the Court is not called on to decide), but whether States were
under a continuing obligation in 1989 (Le., 14 years later), and are under a
continuing obligation today (i.e., 18 years later) not to recognise the
conseauences of the situation brought about by the conduct of indonesia in
1975. The United Nations view on theformer issuedoes not provide an answer
to the latter,after so long a periodof time.
222. In cases where thereisno binding SecurityCouncil resolution prescribing
specific measures of non-recognition, every State is necessarily left to
determine for itself whatattitude it will adopt.370in such situations,each State
must decide for itself, in good faith, whether it considers the situation to be
lawful or unlawful, and must act accordingly.37' States will no doubt be
influenced in their decision by the attitude taken by other States, either
individually or in forums such as the United Nations General Assembly, but
ultimately, it is for each State to determine its own attitude - even a majority
of States in the General Assembly voting to adopt a resolution condemningthe
conduct as illegal could not determine this question in a way binding on other
States. DifferentStates may take a different view, and somewiUrecognisethe
369 Counter-Memoria olf AustralPartIII,Chapter1,and Chapte2r below.
370 Counter-Memonao lf Australi, a1as.350-359.
371 H Lauterpacht, .. . in InternationaLa- (1947), p.429: "...theremay arise
situationsin whemption of legislativepowersof this nature.if exercisedin
good faith and intheinterestof generalinternatiol elfare,is a coursepreferableto
theperpetuatioof ananomaly".legality of a new situation before others. The case of Goa, referred to in the
previous section, provides an example of this process. Regardlessof whether
the original occupation was lawful or not,372the incorporation of the territory
into India was ultimately recognisedby the international community. Different
States recognised the amexation at different times. This demonstrates the
impossibility of fixing a precise time at which the new situation acquired
legitimacy: althoughStatesmay recognisean acquisitionof temtory once that
situation has acquired legitimacy, it in fact acquires legitimacy through the
process of recognitionby other States. It cannotbe the case that the first State
to extend recognition to the new situation is necessarily in breach of
international law, solely by virtue of the fact that it has recognised a situation
still regarded by al1other States as illegal. If this were so, this process could
never occur.373Furthemore, it is mostlikely thatthe first Stateto recognisethe
new situation willbe a State bordering the temtory in question, which simply
cannot ignorethe new reality indefinitelybut isforcedto deal with it.
223. In any event,even if it were the case thatintheorythere is a precise point
in time at which such situations acquire legitimacy, theCourt is unable in the
present case to determine whether or notAustralia'snegotiation andentry into
the Treaty with Indonesia occurredpriorto that point intirne. To detemine this
the Court would need to decide whether the original Indonesian occupationof
East Timor was illegal under international law, and if so, whether the
continuing occupationof East Timor by Indonesia had subsequently ceased to
be illegal. Because of the Monetarv Gold principle, the Court is unable to do
this.374This is the insurmountablebamer to the Portugueseargument.
224. Australia has at al1times expressed regretat the actions of Indonesia and
has maintained its opposition tothemannerof Indonesia's incorporationof East
Timor.375Australia has never recognised the legality of Indonesia's original
acquisitionof the temtory of EastTimor (cf General Assembly Resolution2625
(XXV)). However, in order t'oexploit the natural resources of its own
continental shelf intheTimor Gap area, Australiahas no choice but to negotiate
372 a J Dugard,wgnition andtheUnitedNations(1987),115;JCrawfordT , heCreation
of StatesinInternationalaw(1979).112.
373 Portugalcontends(Reply of Portugal,para.6.58)that beforesuch a situationcould
acquirelegitimacy,itwouldbe necessaryforbothPortugal andthe GeneraAl ssembly to
accept it. Thereis no basis forthiscontention.Forinstance,variousStatesrecognised
theincorporationof GoaintoIndiabefore this situationas recognisedby Portugalin
-.7..~
374 SeeCounter-Memoria olf Ausoalia,paras.224-226,363.
375 Seeparas.41and218above.with the State exercising sovereignty over that territory. It is confronted with
the reality that Indonesiais the tat ineeffective control and is the only State
with which Australiacan enter into an agreement that couldbe implementedin
practice. It is further confronted with the reality that nothing is being done
within the Security Council or General Assembly which might change that
situation, letalone anything which requires Australia to assume onerous
burdens as a "front line State". While not recognising the legality of the
acquisition of thetemtory of East Timor by indonesia, in circumstances where
there is no prospect of a retum to the statusauo ante, intemational lawdoes not
prohibit Australia from recognising the consequencesof Indonesia's actions in
1975. As was pointed outinAustralia'sCounter-Mernorial276 the Treaty which
is the subject of these proceedings was concluded 14 years after the
controversial events had occurred, 13 years after the last consideration of the
issue by the Security Council, and 7 years after the last consideration of the
issue by the General Assembly. in 1982 the Assemblyhad done no more than
cail on the States directly concemed to negotiate with a view to settling the
problem - in a resolution which attractedthe support of no more than a third
of the membersof the UnitedNations. During the debates on those resolutions
and in the Fourth Committee, other States had expressed the view that
indonesian control over East Timor was an established fact.377There has been
no criticismby the internationalcommunity,or from competent United Nations
bodies, of Australia or of any of the other States which have recognised
Indonesian sovereignty over East Timor or dealt with Indonesia in relation to
East Timor.378
225. To the extent that General Assemblyresolutions maybe indicative ofthe
attitude of other States, resolutions adopted prior to the negotiation of the
Treaty are no indication of the attitude of other States as to the legality of the
indonesian administrationat the time the Treatv was neeotiated. As indicated
earlierin this Rejoinder.37the realityof Indonesian controlover EastTimor has
been recognised by a significant number of States. Certain States, including
some which are geographically close to Indonesia, say that a valid act of self-
determinationtook place in 1976, as a result of which the peopleof East Timor
have chosen integration with East Timor - an attitude that cannot be
characterised as amounting to anything other than de iure recognition of
377 Counter-Memorio al AusualiaPar t,Chapter2,especiallypara.175.
378 Counter-Memorio al Australi, aras.368-37,ndparas.55-6above.
379 Seeparas.44-50above.Indonesian sovereignty over East Timor. Other States, such as the United
States of America, while not recognising that avalid act of self-determination
has taken place, accept the incorporationof East Timor into Indonesia. Other
States have entered into treaties with Indonesia which applyto the territory of
East Timor.380
226. Portugal argues that the conductof Australia is distinguishable from that
of other States who have entered into double taxation treatieswith indonesia
because Australia has recognised de iure the incorporationof East Timor into
Indonesia, whereasother States, while dealing with Indonesiain respect of the
territory of East Timor, have not used the expression "de iureW.381Portugal
contends that these dealings of other States do not constitute a
"méconnaissance" of its status as an administering Power, whereas the
conclusionby Australia of the 1989Treaty with Indonesia somehowdoes. This
contention is unfounded. Entering into bilateral treaties regulating without
qualification or reservation the relations betweenStates in respect of defined
territory mustbe taken to show that thetemtory is recognisedas subject to the
sovereignty of the relevant State party to the treaty.382It is immaterial that, in
Australia's case, recognition was express, and described as "de iure". In
internationallaw, recognitionproducesthe sameeffect, whetherexpressed as&
& or de facto, or merely implied. In internationalpractice, some States use
the expression "de facto recognition" to denote "acceptance of facts with a
dubious legal origin1'383H. owever, as a matter of internation&, there is no
relevant distinction. As Rousseauobserves:
"toute reconnaissance produit des effects juridiques et....
par définitionmémeelle ne peut être que de iure. Et si l'on
veut dire par là [by the epithet de facto] que la
reconnaissance est la constatationd'un fait,on ne fait que
répéterun truisme, puisque toute reconnaissance présente
invariablementce caractèreW384.
380 See Counter-Mernoriaolf Australia,paras.164-166and AppendixC. See also this
Rejoinder, aras.52-54and227.
381 Replyof Portugal,paras.6.08-6.,speciallypara.6.14.
382 Seepara.53above.
383 1Brownlie,PnnciDles (4th(4t1990),p.94.
384 ChRousseau,DroitInternationalublic,Vol.IiI(1977),p.552.Or, as another writerhas pointed out:
"La reconnaissance est un acte juridique ou elle n'est pas.
Parler de reconnaissance de fait c'est employer une
expressiondénuée de s'ens."385
Use of the expression deiu~ recognitionin relation to a situationcertainlydoes
not imply that the recognising State considers that the means by which that
situation was originally brought about was legal, nor that it aDDrovesof the
present situation.ny recognition (whetherexpressedto be de orde jure)
is merely an acknowled~ement that an effective situatioexis ands has legal
consequences. As Brownlie indicates:
"Ifthere is a distinction it does not seem to matter legaliy.
Certainly the legal and political elements of caution in the
epithet de facto in either context are rarely regarded as
significant, and courts both national and international
accord the same strengthto de factorecognitionas evidence
of an effective govemment astheydoto de iu~ recognition.
The distinctionoccurs exclusivelyinthe political contextof
recognition of govemments. It is sometirnes said that &
& recognition is irrevocable while de facto recognition
can be withdrawn. In the political sense recognition of
either kindcan always be withdrawn: in the legal sense it
cannotbe uniess a changeof circumstances warrantsit."386
Or as Blix says:
"Regardless of the reasons for which the rider "de facto"
has been attached to an act of recognition, the act connotes
385 L Delbez, Les Princiws Gknkrauxdu Droit IntemationalPublic (1964),p.164 (adding
that "on peut regretter les dénominations empsui sont une source de graves
malentendus").
386 1Brownlie, Mes. of -1 LaW. (4th edn 1990), p.94 (footnotes
omitted). He adds (atp.93) thatralpropositionsabout the distinctionb&tween
ju~ andde recognition ato be distrusted, since, as it was emphasized earlier,
everythingepends on the intention of the government concerned and the general
contextof factand law". SeealsoJ Verhoeven,Lareconnaiintemw dansla
(1975). p.631:"De l'examen de la pratique un fait paraît
reconnaissance de facto et reconnaisdenceonune explication unique. Saàfntre
sacrifierlaréades rapportsinternationàla vérithéoriquede systkmesabstraits,
il faut admettreles significationsmultiples lareconnaissancedite au
grédes intentionssouveraines". the sarneconclusionas to the internationallegal capacity or
competenceof the recognized State or govemment".387
It is not true that international law permits only de facto, and not de jure
recognitionto be accorded tothe consequencesof asituationoriginaliybrought
about by the forcible occupation of temtory. The observation that "La
recomaissance n'est qu'une constatation, non un jugement de valeur" applies
equally to de iure and defacto recognition.388 'Australian recognitionof de iure
Indonesian sovereignty overEastTimor wouldonly amount to a recognitionof
the legitimacy ofthemeansby whichIndonesia acquired controlof the temtory
of EastTimor if this had been Australia's expressor implied intention. No such
intention has ever been manifested by Australia, which has consistently
maintained that its de iure recognition of Indonesian sovereignty over East
Timor does not signify approvalof theoriginal acquisitionof temtory.389
227. Portugal fails tojustify any distinction between Australia's conclusion of
the 1989 Treaty with Indonesia and the conclusionby other States of double
taxation treaties with Indonesia. It merely asserts that the entry into such
double taxation agreements "n'entraîne,de par leur nature, aucun dénidu droit
du peuple du Timor oriental à disposer de lui mêmeet de souveraineté
permanente sur ses richesseset ressources naturelles. Ils'agit touf simplement
de limites à l'exercise d'uneautoritéqui est une autoritéde faitW.39o Yet for a
State to deal with Indonesia in respect of East Timor, whetherin the context of
double taxation agreementsor in the contextof agreementsfor the exploitation
of natural resources, isto deny that Portugal is the sole State with which others
may deal in respect of East Timor. If it is illegalto deal with a State other than
Portugal in the one context, it mustsimilarly be illegal todeal witha State other
than Portugal inthe other context.391The attitudeof other States is clearly that
387 HM Blix, "Contemporary Aspectsof on-~eco~nitio Recueil des Cours, Vo1.130
(1970-Ii), p.587, at p.602. Also Nguyen Qua: Dinh, P Daillier and A PellDroit
(4thedn 1992).p.534("Théoriquementi,l ne devraity avoir que des
reconnaissances de1'Etatde .jur...toute reconnaissance est un acte juridique, qui
emporte des effets juridiques en matikre de capacitk d'une entitédans les relations
internationales"); DP'Connell, International Law (2nd edn 1970), Vol.1, p.162
("internationalwis indifferenttothefom of recognition").
388 Ch Rousseau, Droit InternationalPublic, Vol.111(1977), p.52If there is any
distinctionetweende factoand recognition,thatdistinctionexists solelyin the
&cueil des cour^,Vo1.130(1970-11),~.587,at pkï02;.~~~'~onnell, ~nternangn~aw
(2ndedn 1970),Vol.1,p.162.
389 Seepara.224above.
3% Replyof Portugal,para.6.14. Alsoatparas.5.10-5.11,6.12.
391 See furtherparas.52-54above.States arenot under an obligationto deal solely withPortugal in relationto East
Timor, and further, that States are not, as asserted by Portugal,392under an
obligation of the kind described by this Court in the Namibia Advisorv
Ouinion393 not to recognise the legality of the acts of Indonesia in relation to
East Tior. It is true that the Court held in that case that it would not be
inconsistentwith such an obligationfor States not to recognise the invalidityof
"those acts, such as, for instance, the registration of births, deaths and
marriages, the effects of which can be ignored only to the detriment of the
inhabitants of the Temtory"." However, the conclusion and implementation
of a double taxation agreement with Indonesia goes beyond the mere
recognition of perfunctory acts of administration, and constitutes a positive
dealing with indonesia in international relations in respect of East Timor.395
Clearly, the conductof other States isinconsistentwith the attitude that thereis
any present obligation either not to deal with Indonesia in relation to East
Timor, orto deal solelywith Portugalin respectof that temtory.
228. Thus. it was appropriate for Austraiia to address for itself the question
whether it should continue to recognise Portugal as the sole State entitled to
deal with other States in respect of East Tior, or whether it was now entitled
to recognisethe legal effectivenessof the indonesian administration. Austraiia
decidëd, in allthe circumstances,that the hdonesian occupation of East Timor
must now be consideredaslegally effective.
229. Portugal cites theexample of Rhodesia in support of the proposition that
the status of administering Power continues to be legally effective
notwithstanding a complete loss of control by that State over the territory in
question.396 However, in the case of Rhodesia there were binding Security
Council resolutions irnposing an obligation of non-recognition397 - an
obligation with which Australia compliedand Portugal did not. In the case of
Rhodesia, the United Nations was determined thatthe situation brought about
392 ReplyofPortugal,paras.5.10-5.11.
393 ICJ Reports1971,pp.54-56.
394 m., p.56. çf also the observationsof the English Courtof Appeal in relatton
recognitionofactsof theillegal govemmentin Rhodesiain HesoendesHotelsLtdv
wn Turkish Holidavs Ltd [1978] QB 205, 218 (Lord Denning MR), 228
(RoskillLI).
395 obligationtoabstainfromentenngintomaty relations withSouthAfncain al1casesin
which the Govemmentof South Afnca purportsto act on behalf of or conceming
Namibia".
396 Seepara.205above.
397SeeCounter-Memonao lf Austral, p.182-184.by the unilateral declaration of independence would not endure. Where the
administering Power loses control of the territory by a use of force, and the
Security Council considers that thereis sorneprospect of a return to thestatus
auo ante, it rnaydecide, in order to seek to bring about this result, to imposean
obligation of non-recognition whichwill be binding on MernberStates. In the
case of East Timor, unlike the case of Rhodesia, theSecunty Council has not
irnposed sanctions on indonesia, or specifically called for non-recognition of
Indonesia's acts in relation to East Timor. Furthermore, the diminishing
rnajorities voting in favour of the General Assembly resolutions adopted
between 1975 and 1982, and the absence of General Assernbly resolutions
thereafter, indicate that there is at present no prospectof aturn to thestatus
auo ante. For the reasons givenabove, where no such obligationis imposedby
the Secunty Council, other Statesretain a discretion indeterminingwhich State
it recognises as exercising sovereignty over a non-self-goveming territory in
cases where the former adrninistering State no longer exercises any effective
control over it. This is without prejudice to the continuing application of
Chapter XI which applies to States which are or becorne responsible for the
administrationof a non-self-governingtemtory.
230. Sirnilarly, the Narnibia Advisorv O~inion, which is referred to several
tirnes by Portugal in support of its argument, is entirely distinguishable frorn
this case. The Court in that casewasnot concernedwith a ChapterXI temtory,
but with a Mandate under the Covenant of the League of Nations. The
authority whichSouth Africa exercised over thetemtory of South West Africa
was based solely on the Mandate.398 The Court held in duly constituted
proceedings that the Mandate had been validly terminated by the General
Assembly. In Resolution 276 (1970), which the Court held was binding on
Mernber States, the Security Council declared (in paragraph 2) "that the
continued presence of the South African authorities in Narnibia is iliegal and
that consequentlyail acts takenby the Governmentof SouthAfnca on behalf of
or concerning Namibia after the termination of the Mandate are illegal and
invalid." in paragraph 5, it called upon ail States "to refrain fromany dealings
with the Governmentof South Africa which are inconsistent with paragraph 2
of the present resolution". In this case, the Courtwas asked to given advisory
opinion on the legal consequences of Security Council Resolution 276. The
Court decided that because the Securitv Council had declared in a binding
398 ICJ Reports1950, p.133;quotedin ICJ Reports1962,p.333and in ICJ Reports1971,
pp.42and 50.resolution thatthe continued presenceof SouthAfnca was unlawful, "Members
of the United Nations would be expected to act in consequence of the
declaration made on their behalf. The question therefore arises as to the effect
of this decision of the Security Council for 'States Members of the United
Nations in accordance with Article 25 of the Charter."399The Court expressly
acknowledged thatthe duty of States to refrain from recognising the legalityof
the acts of South Africa in relation to Namibia arose from the tems of the
Security Council resolution, refemng to "the duty of non-recognition imposed
bv Daranra~hs2 and 5 of resolution276(1970)",* and saying that"The precise
determination of the acts pemitted or ailowed ... is a matter which lies within
the cornpetenceof the appropriate politicalorgansof the United Nations acting
within their authorityunder the Charter".ml Portugal maintains in its Replym
that the Court left open the possibility that a duty of non-recognition also
existed independently of Resolution 276, under the terms of the Charter and
generaiinternational law,when it referredto:
"those dealings with the Government of South Africa
which, under the Charterof the United Nationsand general
international law,should be consideredas inconsistent with
the declaration of illegality and invalidity made in
paragraph 2 of resolution 276 (1970), because they may
imply a recognition thatSouth Africa's presencein Narnibia
is legal."m3
However, the Court in this passage expressly acknowledgesthat the obligation
of States is to not act inconsistently "with the declaration of illegality and
invalidity made in paragraph 2 of resolution 276(1970)". The Charter and
general international law are referred to only in order to defie the content of
the obligation imposed by that resolution - i.e., to define what amounts to
"recognition" for the purposesof the reso1ution.a
399 m., Rat p.55 (emphasis added).sisadded).
401 m.
Reply of Portugal,para.6.39.
403 ICJ Reports 1971,atp.55.
a See also Counter-Memorial of Australia, paras.364-365. Portugal in its Reply (at
para.6.39) also quotes from the separate opinion.of Judge Onyeama in that case, who
said that "The declaration of the illegality of the continued presence of South Africa in
Namibia did not itselfmake such presence illegal" and that the resolution was "a
statementof the SecurityCouncil's assessmentof the legal quality of the situation": ICJ
Reports 1971, p.147. However, as explained in the preceding paragraphs, even if this
present case, every State must determine for itself in good faith whether it is under an
obligation in international law not to recognise the validity of the acts of Indonesia inConclusions
231. In paragraphs 199-207above, it was demonstrated that Portugalhad lost
its capacity, in relation to East Timor, to enter into treaties bearing on the
essential elements of the rights of peoples, including treaties with respect to
maritime delimitation, by November 1975 at the latest, and the subsequent
occupation of East Timorby Indonesia in the following month cannot have
restored that capacity. As Portugal itself adrnits, the United Nations does not
have the power under Chaper XI of the Charter to confer ex novo on States a
right to exercise powers of sovereignty inrespect of a particular non-self-
goveming territory which they do not already have, and at the time of those
resolutions, Portugal lacked such power.405For these reasons, Australia is not
under an obligation to deal solely with Portugal in relation to the continental
shelf in the area of the TimorGap.
232. In any event, the question of which Statemay be recognisedby others as
lawfuily exercising control over a particular non-self-goveming temtory is
determinedunder generalprinciplesof intemationallaw relating to recognition,
and not by Chapter XI of the Charter. As has already been demonstrated,
intemational law does not recognisea specialjuridical statusof "administering
Power" which continues to be legally effective, erga omnes, even after that
State has lost al1 control over the temtory, until such time as the status is
terminated by the United Nations. A State's right to administer a particular
non-self-goveming temtory can be lost by force of events. In the case of East
Timor, Portugal has lost al1control over the territory. Even if the original
occupation of the territory by Indonesia was unlawful (a matter which this
Court cannot decide in these proceedings), it is possible that the indonesian
administration of the territory has subsequently acquired legitimacy. But
however that may be, the Court cannot determine in the present case whether
the administration of East Timor by Indonesia was unlawful at the time
Australia entered into the Treaty with indonesia. in the absence of a binding
Security Council resolution imposing an obligation of non-recognition, this
Court cannot determine that Australiais not entitled to deal with Indonesia in
relation to East Timor,andhence, cannot determinethat Australia is requiredto
deal solely with Portugal.
relationto EastTimor,anto dealsolely withPortugalin relationto thattemtory: see
especiallyparas.221and225 above.
405 Seepara.198above.233. Furthermore,even if the GeneralAssemblydid havethe power todeclare
that a Statehas thejuridical statusof "administeringPower", with the exclusive
right to deal with other States in respect of a non-self-goveming temtory, the
General Assembly neverpurportedto confer sucha statuson Portugalin respect
of East Timor. Prior to 1974, General Assemblyresolutions on the question of
"Temtories under Portuguese Administration" were hostile to Portugal, which
voted against them.406 These resolutions never referred to Portugal as the
"administering Power" of those Temtories. Portugal is referred to in such a
resolution as the "administering Power" of the territories under its
administration for the Fit time in 1974, by which tirne it had already been
established that Portugal no longer represented certain of those temtories.*7
The mere referencesto Portugal as the "admimisteringPower" in that resolution
cannot be construed as a "determinative designation" that States could deal
solely with Portugal in relation to those territories, even if the General
Assembly had the power to make suchbinding detenninations. Similarly,mere
references to Portugal as "administering Power" of East Timor in resolutions
adopted afte tre Indonesian occupation cannot be constmed as a
"determinative designation" that States could deal solely with Portugal in
relation toEast Timor. Those references to Portugal as "administenng Power"
are at hest an acknowledgement that Portugal, while certainly no longer in a
position to exercise powers of sovereignty in relation to East Timor, might by
virtue ofits histoncal association with the temtory continue to have some role
in the work of the United Nations relating to that temtory. It is unnecessary to
decide in the instant case precisely what was, or is, that role. However, it is
clear that the General Assembly has regarded Portugal, like Indonesia, as
merely one of the "interestedparties" in relationto East Tior.m.409
See paras.191-192above.
Seeparas.190and 192above.
See especiaily Resolution 36/50, 24 November 1981,paragraph ".. al1interested
parties,arnelyPomigai, as the administeringPower,and therepresentativesof the East
Timoresepeople,as well as Indones..."Also Resolution 32/34,28 November 1977,
paragraph 5:"...the Govemment of Indonesia, as well as the Govemments of other
Secretary-General to initiate consultations with 311~arties directlv concemed, with a
view toexploringavenuesfor achievinga comprehensivesettlementof the prob..."
(emphasisadded).
409 In its Reply (at paras.4.58, 4.65), Portugal criticises the "Australian thesis", which it
describes as"onginai", according to which an administenng Power of a non-self-
goveming temtory only has such specific and panicular powers in relation to the
temtory as have been conferred on it by the United Nations (refemng to Counter-
Memorialof Australia,paras.243-254). As is apparentfromthe precedinganalysis,this
is notustralia'scontention. Austraiiacontendsthat thenght of a Stateto administera234. Portugal's argument that, in this situation,it is a consequence of the right
to self-determination that al1 States must continue to recognise the former
colonial State as the "administering Power" with the sole right to deal with
other States in relation to the temtory, seems inconsistent withthe very nature
and purpose of the rightto self-determination. The former State, having lost all
control over the temtory, is no longer able to discharge the responsibilities
under Article 73(a) to (e) of the Charter. The latter State is, of course, subjectto
Chapter XI, and is in a position to discharge those responsibilities.4lo The
purpose of the right to self-determination is not to protect, far less legally to
entrench, the powers and rights of a former colonial power over a former
colony. It cannot be in the interests of the people of the territory for a former
colonial power which has long since lost al1effective control over the temtory
and has no realistic prospect of ever regaining it to be recognised as the sole
Stateentitled to deal on its behalf.
235. A further consideration to be borne in mind is that Portugal could no
longer be held responsible for the acts of the people of East Timor. The
International Law Commission's draft articles on State responsibility would
seem to require a "territorial govemmental entity" or "an entity empowered to
exercise elernents of the govemmental authority" (Article 10).411 Portugal
-- -- -
particular non-self-governing temtory exists independentlyof Chapter XI of the Charter
(paras.194ff above), and can be lost by force of events, independently of any
determination by the United Nations (paras.208ff above). In the present case, Portugal
has by force of events lost al1 effective control over the temtory of East Timor.
Australia argues that in cases such as the present, continuing references by the United
Nations to that State as the "adrninistenng Power" arenot an indication that the United
Nations considers that that Stateis still the colonial Power with the exclusive right to
administer the temtory and to represent it internationally pending self-detemination,
much less that such references themselves constitute a binding determination that the
State has thisstatus. Rather, such references are at best an acknowledgement that the
State, byvirtue of its historical association with the temtory, continues to have some
role in the work of the United Nations relating to that temtory. The nature of this role
would be defined by the United Nations in the particular case. The extent of the role of
Portugal recognised by the United Nations in relation to East Timor is described in
Part1,Chapter 2 of this Rejoinder.
410 The Court may take judicial notice of the fact that at present, Indonesia is in effective
control of East Timor. Thus, Indonesia may have obligations under Chapter XI in
respect of that Temtory. However, it is not for the Court toetemine in the instant case
what is the precise nature of those obligations or whether Indonesia is fulfilling them.
These matters could no doubt bethe subjectof an Advisory Opinion (cf Western Sahara
Advisorv Ovinion, ICI Reports 1975,p.12),whichPortugal has never advocated that the
General Assembly or other competent body shouldseek.
411 Yearb. .k of the International Law Commission 198Q.Vol.11(PartTwo), p.31. See also
amibia Advisory Opinion, ICJ Reports 1971,p.54: "Physical control of a temtory and
not sovereignty orlegitimacyof title, is the basisof Stateliability for acts affectingother
States".would notbe liable for acts of an insurrectional movement. Howcan Australia
have an obligation to deal with Portugal in respect of East Timor if Portugal
cannot be responsible for acts in relation to the territory? If a territorial
government for East Timor today authorised a mining Companyto drill an area
of the Joint Development Zone, Australia could not seek to impose
responsibility on Portugalin respect of the act. The converse must also be the
case: Portugal cannot impose responsibility on Australiafor not dealing with
Portugal.
236. As was observed previously, once it is established that at the time the
1989 Treaty was entered into, States were under no obligation under general
international law to recognise Portugal as the sole State entitled to deal with
others in relation to EastTimor, the Court shoulddismiss the Portuguese claim,
in so far as it is based on the argument that in failing to deal with Portugal,
Australia has acted in breach of the principles of self-determination and
permanent sovereignty over natural resources under the Charter, international
human nghts covenantsand general internationallaw.
237. If Australia was under no obligation under general international law to
deal exclusively with Portugal in relation to East Timor, the question remains
whether Australia was under any such obligation by virtue of Security Council
Resolutions 384 (1975)and 389 (1976). This question is considered in the next
Chapter. CHAPTER 2
THERE HAS BEEN NO BREACH BYAUSTRALIA OF
SECURITY COUNCIL RESOLUTIONS 384 OR 389 OR OF
AN OBLIGATION TO CO-OPERATE IN GOOD FAITH
WITHTHE UNITED NATIONS
Introduction
238. Australia indicated in its Counter-Memorial why there was no
authoritative determination by the United Nations which would prevent
Aus'traliafrom dealing with indonesia and which would require Australia to
deal with Portugal.412Australia referred particularly to the Namibia case, in
relation to the cntena which determinewhether a Security Council resolutionis
binding on States.413Portugalin its Reply continuesto assertthat Australiahas
obligations flowing from Security Council resolutions 384 and 389 which it
says Australia hasreached.414Australia in this Chapter shows why that is not
the case.
Section 1:
QI3B
A. THERE HASBEENNO BREACHOFTHETERMSOFTHE
RESOLUTIONS
239. Even if the Court were to conclude, contrary to Australia's submission,
that the resolutions didarnounttobinding decisions,there hasbeen no breachof
those decisionsby Australia.
240. The only action Australia is called upon with other States to take is to
respect the territorial integrity of East Timor and the rights of its people to
self-determination. As indicatedin the next Chapter, Australiahas not failedto
meet any obligation in this regard. The only other cal1 for action is to
412 Counter-Mernoriaiof Ausualia,Pan III,Chapter 1,SectionsII-IV.
413 See Counter-Mernoriaiof Ausualia, paras.328-331.
414 Replyof Portugal, paras.5.34-5.61.CO-operatefully with the efforts of the United Nations to achieve a peaceful
solutionand to facilitate the decolonizationof the territory. As the next section
shows, Australiahas met any obligationit could havein this regard.
241. If the Security Councilwished to imposean obligationnot to deal with a
certain State or to impose a duty to recognise one State and not another as
comptent in relation to certain actions in relation to the temtory, it can do so.
There are such examples.415 The resolutions in question contain no such
obligations. And Australiacannottherefore be inbreach of them by concluding
the 1989Tre-y with Indonesia. Portugal alsofailsto show that the resolutions,
even if binding in 1976,continue to operate in a binding way on States 17 or
more years after they were adopted. It is unthinkable that a binding decision
would be allowed to go unremarked upon or unenforced by the Security
Council for 17years, in a situationwhere Indonesiahas remained in control of
the temtory inquestion.416
B. THE RESOLUTIONS WERE NOT INTENDEDTO BE BINDING
242. Regardless of which Chapter of the Charter the resolutions may have
been adopted under, the question anses whether they are binding on Member
States. Australia says they are not. Australia does not consider it necessary to
detexmine definitively whether Article 25 of the Charter only applies to
decisions under ChapterW. But a determinationof the provision under which
a resolutionhas been adoptedmay assist in determiningwhether it is a decision
or merely a recommendation. In this case, whatever provision the relevant
resolutions may have been adopted under, they are clearly not "decisions"
within the meaningof Article25.
243. If they were adoptedunder Article 36of ChapterVI, then it would follow
that they are not binding. Article 36 only envisages the Security Council
adopting recommendations. Australia rejects the Portuguese contention that
decisions under Chapter VI can be binding.417 If the resolutions are adopted
under Chapter W that does not automatically determine if they are binding.
Article 39 envisages that the Security Council may make recommendationsor
decide on measuresto betaken inaccordance with Article41 or 42. Pursuantto
415 SeeCounter-Memona olf AusrnalA, ppendixA.
416 Seefunher paras.95-91,79,221and225above.
417 ReplyofPortugal,para.5.48.Article 25 of the Charter, it is only "decisions" of the Security Council which
States are under an obligationto cany out. And hence the real issue is whether
the resolutions are Article 25 decisions. An examination of the operative
language of the two resolutions discloses no decision, other than to remain
seized of the situation. Otherwise,each resolution only "cailsupon" States to
respect the integrity of East Timor and the right of its people to
self-determination, or "urges" States to co-operate with the United Nations.
These are not the hallmarksof a decisionwithin themeaningof Article 25.
244. The Namibia case indicates that decisions under Article 25 may not be
confined to enforcement measures adoptedunder Chapter VII.418But one stiii
needs to find a "decision". Portugal does not appear to contend that the
resolutions are decisions taken on the basis of some inherent power of the
Security Council. This suggests they mustbe actions under either Chapter VI
or VII. But this does not determine whether they are decisions. As Australia
indicated in its Counter-Memorial,419 the Namibia case pointed to the factors
relevant in determining whether a decision had been taken. This, the Court
said, depends on the terms of the resolution, the discussion leading to it, the
Charter provisions invoked and, "in general, ail circumstances that might assist
in determining the legal consequencesof the resolution".420As indicated, the
terms used here donot denotea decision. Nordoes the discussion atthe tirneof
their adoption421 The Portuguese relianceon a few isolatedstatements422 does
not establish the contrary. The debatesshow a concemthat the situationin East
Timor was not fully understood and that it would be premature to take action.
What was needed was furtherinformation. This was reflected inthe cal1for the
Secretary-General to report. It was also reflected in the fact that the proximate
cause of the Indonesian intervention was recognised in part at least to be a
consequence of the breakdown of civil disorder caused by the vacuum left by
Portugal. There are no references in the resolutions to the provisions of the
Charter under which they areadopted. When regard is had to al1 the
circumstancesgoveming their adoption onecan only concludethat they are not
binding decisions within Article25of the Charter.
245. Yet Portugal relies heavily on the Namibia case to establish that the
resolutions are binding under Article 25. But the differences between the two
418 ICJReports 1971,p.6.
419 Counter-Memona lf Australia,para.328.
420 ICJReports1971,p.53.
421 SeeCounter-Memoria olf Ausualia,paras.79-84.89-96.
422 ReplyofPortugal,paras.5.58-5.59.cases are notable. The tems of the two resolutionsof the Security Council in
the case of East Timor did not order Member States to refuse recognition or
abstain from any dealings with the effective authoritiesin the temtory, as the
Namibia resolutions had done. Nor was there any reference to an illegal
situation. And the Security Council did not base its action under resolutions
384 and 389on an express invocationof Article 25of the Charter.
246. On the other hand, in the case of Narnibiathe Security Council not only
found a situationof illegalityand ordered the abstention fromany dealings, but
at thesarne tirne it invoked expressly Article25 of the Charter in thepreamble
to resolution 269,as the Courtrecaiiedin its 1971AdvisoryOpinion.4z
247. With respect to the nature of the powers exercised by the Security
Council in this case, not onlyhas there been no finding of a danger or threat to
international peace and security, but the conduct of the Security Council is
eloquent as to the non-existence of such a situation. Despite the lack of
compliance with the call made in 1975 and 1976 for the withdrawal of
Indonesian forces,no follow-up actionhas been taken by the Security Council
in the subsequent 17 years. The conclusion to draw from this inaction is that
the withdrawal of Indonesian forces is no longer insisted upon by the United
Nations, so the Security Council resolutions to that effect were, or have
become, purely exhortatory. Not only the United Nations, but Portugalitself
does not insist any longer on that withdrawal. in a statement before the
Comrnitteeof 24, in August 1992, a Portuguese representative declared that in
the negotiations with Indonesia under the auspices of the Secretary General,
Portugal presented on 24 January to the Secretary-General aproposa1airnedat
entering a dialogue on the merits of the problem "without prior conditions"
("sans conditions préalablesW).42 H4ow then canPortugal now insist that so far
as concems the call in the resolutions for action by other States they are
biiding?
423 ICJReports1971,p.53.
424 Replyof Portugal,AnnexII.21,Vol.11,p.283. See alsoAnnex1.22,Vol.11,p.134. C. THE RESOLUTIONS WERENOT ADOPTEDUNDERCHAPTERVI1
OFTHE CHARTER
248. Portugal has argued in its Memorial and Reply425that the resolutions
adoptedby the SecurityCouncil on EastTimor wereadoptedunder Chapter VII
of the United Nations Charter, and represent the exercise of its powers under
Article 41 of the Charter. Portugal acknowledges thatneither resolution refers
expressly to the Articleunder which the Council wasacting.426 but it says that
this does not prevent the conclusion that the resolutionshave been adoptedby
virtue of the provisions of Chapter VU. Its insistence on this is, however, not
absolute.427Portugal relies essentially not on the terminologyof the resolutions
but on their subject matter to conclude that they were adoptedunder Chapter
VII. Portugal seeks to belittle the actual wording of the resolutions by
emphasising the variety of tenninology used by the Security Council in past
resolutions. But this avoids the key questionwhichis under what provisionwas
the Security Council intendingtoact.
249. Australia maintains that an examination of the resolutions as a whole
discloses a clear intention not to act under Chapter VII of the Charter and
certainlynot to takea decisionunder Article41.
250. Chapter VI1 is headed "Action with respect to threats to the peace,
breaches of the peace and acts of aggression". The resolutions on East Timor
contain no reference to, let alone any finding of, any threat or breach of the
peace or reference to aggression. The language of the resolutions pointsto the
conclusion thatthose wordsof ChapterW werecarefuiiyavoided.
251. Ifit is intendedto actunder ChapterVII,this should be apparentfromthe
resolutions themselves. On occasion the Council has referred expressly to the
fact that it was acting under Chapter VU: see eg Resolution 660 (1990) on
Kuwait; Resolution 724 (1991)on Yugoslavia. In the caseof EastTimor,there
is no reference to any Charter provision. If action under Chapter VII was
contemplated one would have expected to find clear indications of this in the
wording used, given the significanceof Chapter VII in terms of the United
Nations role in the maintenance of peace and security. There is no such
indication.
425 SeeReplyofPortugal,para5.49.
426 ReplyofPortugal,para.5.52.
427 SeeReplyofPortugal,paras.5.42and5.45.252. By contrast, wording found in Chapter VI is used. Thus, there is
reference in both resolutions to the "situation". In resolution 389 reference is
made in the eighth preambular paragraph to "the continued situation of
tension". The operative paragraphsof both resolutions are pnmarily concemed
with facilitating the decolonization of the temtory. This was to bedone by
withdrawal of forces, CO-operationby ail States with the United Nations, and
involvement of the Secretary-General in contact and consultations with the
parties concemed.
253. Under Chapter VI of the Charterthe Security Councilmay be involvedin
any "situation" (the word refemd to in the relevant resolutions) "which might
lead to international friction or give rise to a dispute in order to determine
whether the continuance of the dispute or situation is likely to endanger the
maintenanceof internationalpeace and security" (Articles34 and 35).Pursuant
to Article 36 the Security Council can recommend "appropriate procedures or
methods of adjustment" in the case of a situation of the kind described. And
this is what thSdty Council inthe case of EastTimor clearly did. It sought
to diffusethe situationby recommendinga number of actions to betaken. That
Chapier VI action was contemplated is supported by action in other cases. In
the case of Westem Sahara, for instance, the Councilinresolution 377 (1975)
specifkally invoked Article 34 to request consultations by the Secretary-
General with the parties and to report. This is similar to the action called for in
the EastTimor resolutions,and also involveda decolonisation situation.
254. Portugal arguesthat the Council has in other situationsused the language
of "caiis upon" in resolutionsthat were clearly adoptedunder Chapter W; and
argues that the word "decide" is not an essential element in a Chapter Vïï
resolution. But even if this were so, this provesnothing. With respect to the
use of the word "cali" ithas been saidthat:
"Whether the 'call'is an act constituting an obligation of
the parties concerned or a simple 'recommendation'
depends on the intention of the Security Council and
especialiy on the consequenceswhich it attachesto a failure
to comply with the cail (or, as Article 40 says: with the
provisional measures). The Council may make the call
without intending to react against non-cornpliance with an
enforcement action. Then the call is a mere
recommendation. But the Council may make the cail by a
decision within the meaning of Article 25, especially with the expressed intentionto takeenforcement actionin caseof
non-compliance."42s
Australia considers that one can only determine whether the resolutions in
question were adoptedunder Chapter VII or ChapterVI by consideringthem as
a whole and not simply by looking at isolated words containedin them. And
Portugal seems to agree.429But if the resolutions are so considered, they are
clearly not ChapterVI1resolutions.
255. One further matter of particular note that confirmsthis conclusion is that
there is no condemnation in the resolutions of the actions of Indonesia, no
finding of aggression, nor any finding that it had acted contrary tothe Charter.
Portugal says that it is not necessary to refer to an act of aggression for a
resolution to be adopted under ChapterVII. But it is extraordinary to suggest
that a reference onlyin a prearnbularparagraphto "deploring theinterventionof
the armed forces" of a State without any indication that their use was
considered iilegal can in any sense amountto a findingof aggression oreven a
breach of the peace. Yet this appearsto be what Portugal suggests. Of course,
in the second Security Council resolution there isnot even this reference in the
preamble. The Portuguese suggestion that an intervention of armed forces is
"indéniablement" a breach of the peace or act of aggression430cannot be
accepted in the absence of evidence that it isso regarded in a particular case.
There is no suchevidence here.
SectionII: Yherehas been no breach of _anobli~ationto CO-o~erate in
gpodfaithwith the United Nations
256. In its Submission 2 (c), Portugal advances a further obligation which it
says Australia has breached, beyond that of failure to comply with Security
Council resolutions 384 and 389. This is "the obligation incumbent on Member
States to co-operate in good faith with the United Nations". In its Mernorial
and Reply, Portugal provides little elaboration of this claim. Australia denies
any breach ofsuch an obligation.
257. The Security Council resolutions do contemplate "al1 States and other
parties concemed" CO-operating with the United Nations toachieve a peaceful
428 H Kelsen,The Law ofthe United Nations(1950).p.740.
429 Replyof Portugal,para.5.48.
430 ReplyofPortugal,para.5.53.solution to the existing situation in the territory and to facilitate the
decolonization of the territory.431For the reasons already outlined, Australia
does not consider that these paragraphs impose binding obligations on
Australia. Buteven if they did, it isobvious that Australia hasCO-operated fully
with the United Nations. It has consistently supported theSecretary-General in
his efforts to find a solution, and has indicated its willingness to support any
authoritativedecisionof the UnitedNationsinthis regard.432
258. Accepting that there is some general obligation onthe part of Member
States to CO-operatein good faith with an Organisation of which they are
members, there can be no suggestion that Australiahas failed to meet such an
obligation. Inparticular, thereis nobasis, and Portugalitself does not elaborate
any basis, on which the vanous actions of Australia in relation to the 1989
Treaty could infnnge any duty of CO-operationwith the United Nations. As
Australia has pointed out, the United Nationshas not directed or calied upon
Statesnot to recogniseor deal with Indonesiain relationto EastTimor. Nor has
Portugal shown in what way the actions of Australia in relation to the Timor
Gap in any way hinder or preventthe dischargeby the United Nationsof any of
its powers in relation to the situation of East Timor. There is clearly, in the
circumstances,no basis for this particular Portuguese claim.
. . .
259. in cases where therehas been a lack of CO-operation,the United Nations
has reflected this in the terms of resolutions passed. For instance,see the terms
of various resolutions condemningPomgal passed pnor to 1974,as set out in
the Appendix to this Rejoinder. Among the resolutionsone finds criticism of
Portugal'sfailure to comply with demandsof the United Nations. One can fid
other examples of similar express criticism of States for failure to CO-operate.
For instance, in relation to Namibia, the Security Council condemned the
refusal of South Africato complywithresolutionsof the General Assemblyand
Secunty Council and declared that thedefiant attitudeof South Afnca toward's
the Council'sdecisions underminesthe authorityof theUnitedNations.433
260. There has clearly been no such lack of CO-operationby Australia with
United Nations resolutions that any response has been made by the United
Nations. In the absence of such response, Portugal cannot sustain any
complaint against Australia inthis regard.
431 Resolution384,paragraph 4; Resolution389,paragraph5.
432 SeeCounter-Memonao lf Australipara.70.Seealsopara.263below.
433 Resolution278 (1970). CHAPTER 3
AUSTRALIAHASNOT ACTED INCONSISTENTLY
WITHTHERIGHTSOFTHEPEOPLEOFEASTTIMOR
TO SELF-DETERMINATION,TERRITORIAL
INTEGRITYORPERMANENT SOVEREIGNTY OVER
NATURALRESOURCES
Introduction
261. As already noted, the acts of Australia of which Portugal complaiin
this case al1relate to the fact that Australia has dealt with aState gther than
Portugal in respect ofthe exploitationof thenatural resourcesin the Timor Gap
area. In the previous two Chapters, it was demonstrated that Australiais not
under any obligation to refrain from dealingwith any State otherthan Portugal
in respect of East Timor. Consequently, the mere fact that Australiahas dealt
with a State otherthan Portugal cannot constitute a denial of the rights of the
people of East Timor to self-determination, territorial integrity or permanent
sovereignty over their natural resourcesIn the present Chapter, it wilbe
demonstrated that apart from Australia's failure to deal with..Portugal,
Australia's acts in relation to East Timor have not otherwise violated those
rightsof the people ofEastTimor.
Section1:
262. Portugal in its written pleadings assertsthat Australia is in breach of a
dutynot to disregardedor fail to respect("mécomaître") the rightof the people
of East Timor to self-determination.434 However, Portugaldoes not seek to
define with precision the content of that right and of the corresponding
obligations for third States. Clearly, if Australia were in breach of one of its
obligations in respect of the people of East Timor or Portugal, it might be said
that Australia had disregarded or failed to respect those rights. However,
Portugal has not soughtto demonstrate the existenceof any specific obligation
which Australia has failed to fulfil, other than the duty of "non-
méconnaissance"itself, which Portugal assertsexists as an independent duty.
Portugal alleges that Australiais in breach of this general duty of "non-
4" Portuguessubmission(a)Memonalof Portugal, .235,Replyof Portu, .273.mécomaissance", in that Australia has,by recognising Indonesian sovereignty
over East Timor:
(a) Deniedthat EastTimor is a non-self-govemingtemt0ry;~35 and
@) Failed to facilitate and promote the realisation of that right to self-
determination.436
263. As to the first of these allegations, it needs to be emphasised from the
outset that Australia has never asserted that East Timor does nA continue to
have the status of a non-self-governingtemtory. Portugal cannot point to any
statement by the Australian Government to this effect. Australia accepts that
the criteria for that determination are those set out in General Assembly
Resolution 1541 (XV), and that the General Assembly is the United Nations
organ responsible for applying those cnteria. It can readily be seen that an
applicationof these criteria to East Timormight lead to the conclusion thatit is
a non-self-governing temtory vis-à-vis Indonesia, although it is not suggested
that this is a matter for the Court to determine in the present case. As was
pointed out in the Australian Counter-Memorial$37 Australia continues to
endorse the efforts of the Secretary-General to negotiate a resolution of the
situation. It wiil respect and recognisethe outcomeof any agreement approved
by the United Nations in respect of the temtory, and will abide by any
authoritative decision which the United Nationsmay make with respect to East
Timor. Portugal itself quotes a 1985statement of the then Prime Minister of
Australia that Australia "has supported international initiatives to settle the
Timor problem, including extensive discussions with the United Nations
Secretary General, Indonesia and Portugal" and that "The legal fact that
Australia has since 1979 recognized Indonesian sovereigntyover East Timor
has not previously hindered either our ability or Portuguese ability to seek a
settlement of this problemW.438 Portugal also =fers to the fact that in 1983,at
the conclusion of a visit to Indonesia, the then Australian Ministerfor Foreign
Affairs issued a statementin which he "noted that Indonesia has incorporated
EastTimor into the Republicof Indonesiabut expressed theGovernrnent'sdeep
concem that an internationally supervised act of self-determination has not
takenplace in EastTior".439
435 See footnote440below.
436 Replyof Portugal,para.5.02,refemngtoMemorialof Portugal,para.8.12.
437 Counter-Memonao lf Australiparas.71.412.
438 QuotedinMemorialof Portugal.para.2.14,andAnnex111.27V , ol.V,p.218.
439 Memonalof Portugalp , ara.2.24,footno169.264. Portugal argues, however, thatrecognitionof the de jure incorporationof
East Timor into Indonesia is inherently inconsistent with thestatus of East
Timor as a non-self-goveming temtory-and of the right of its people to self-
determination, and is therefore of itself a denial of that status and that right.440
Contrary to what Portugal asserts, recognition of Indonesian sovereigntyover
East Timor does not "par nécessité logique absolue" signify that Australin ao
longer recognises EastTimor as a non-self-govemingtemtory or its people as
having a rightto self-determination. Pnor to its withdrawalfrom the temtory,
Australia recognised that Portugal exercised sovereigntyoverEast Timor. That
was no more inconsistent with East Timor's status as a non-self-governing
territory than the present recognition of Indonesian sovereignty. One notices
how carefully Portugal avoidssayingexpressly that it is Portugal that exercises
sovereignty over East Timor. Portugal maintains that sovereignty over East
Timor inheres in the people of East Timor, and that Portugal exercises mere
powers of administration.41 However, even assuming, as General Assembly
Resolution 2625 (XXV)"2 does, that the territory of a non-self-governing
temtory "has, under the Charter, a statusseparateand distinctfrom the territory
of the State administering it", organs of the United Nations have, without
prejudice to thisprinciple, spokenof the "sovereignty" ofadministenng Powers
over non-self-governing territones. The International Court of Justice in the
Rieht of Passage case443accepted that Portugal retainedsovereignty over its
enclaves in India, which were at the time non-self-goveming territories.444
Similarly, in the Westem Sahara case, this Court held thatthe request for an
Seee.g. Memonalof Portugal,paras.2.25,8.11,8.2("..cettereconnaissanceéquivaut,
par elle-même,2 dénier ...[la] qualitédu temtoire timonen comme Temtoire non
et opposables à tous des droits que ce peuple détient");Reply of Portugal paras.l.05,
2.23.5.09. 6.11 ("L'essentiel pourl'affaire subiudice consisteen ce que reconnaîtrede
jure l'annexiond'un temtoire non-autonomeoar u p
absolue.'), 6.15.-
Mernorialof Portugal,paras.5.41-5.42;Replyof Portugal,para.4.57.
"2 24 October 1970("Declarationon Principlesof Intemational Law concemingFnendly
Relationsand Co-operationarnongStatesin accordancewith theCharter of the United
Nations").
443 ICJ Reports1960,p.6.
461 W., at pp.39, 45-46. Also at pp. 48-49 (Judge Basdevant);65-66 (JudgeWellington
Koo); 99 (Judge Spender); 123-124 (Judge Fernandes). Only 3 Judges denied
that Portugal retained sovereignty over its enclavesina (Judge Badawi, at p.51;
Judge Kojevnikov, atp.52; Judge MorenoQuintana, at p.95). Of these 3judges, none
goveming temtory. Judge Badawi reached the conlusion that Portugalid not havef-
sovereigntyon aninterpretationof theoriginalgrant;Judge Kojevnikov gaveno reasons
and Judge Moreno Quintanaappearedto base his conclusionon a failureof Portugalto
dischargetheapplicableburdenofproof.advisory opinion,relating to the future status of a non-self-governing territory,
didnot relateto "existingtemtorial rightsor sovereigntyovertemtory"."S The
General Assembly has itself left open the possibility that an administering
Power of a non-self-goveming temtory can have sovereignty over the temtory
prior to self determination: for instance, in Resolution 2065(XX), the General
Assembly, while recognising that Resolution1514(XV)appliedto the Falkiand
Islands (Malvinas), noted at thesarnetime "the existence of a dispute between
the Govemments of Argentina and the United Kingdom of Great Britain and
Northem Ireland conceming sovereignty over the said Islands" and invited
those governrnents tonegotiate "with a view to finding a peaceful solution to
the problem".a
265. Even if it is the case that an administering Power does not "have"
sovereignty over a non-self-govemingtemtory, it clearly mayexercise powers
of sovereignty over the temtory, subject to obligations imposed under the
United Nations Charter. Portugal itself describes the people of a non-self-
goveming temtory as "possessing national sovereignty butlacking the exercise
thereof",447 and describes the administering Poweras possessing, in relation to
the temtory, "toutes les compétences propres aux Etats", subject to limits
imposed by the law of decolonisation and the United Nations Charter."B By
definition, to exercise ali the powers of a State in relation to a territory is to
exercise powers of sovereigntyover it.449Indeed, Portugalitself admits that the
powers whichit claims to be entitled to exercise in relation to EastTimor were
615 IU Reports 1975,p.28. Portugal itself refers in its Memonal (at para.4.60, foomote
239) to this passage, and to Crawford, The Creation of Statesin International Law
(1979), p.364, who in fact says that"It is not clear that ChapterXI purpons to depnve
administenng Statesof sovereigntyover colonialtemtones, or that subsequent practice
could have that effec...The view that ChapterXI does not affect temtonal titie was
alsoaffimed in theWestem SaharaCas$'. SeealsoIU Reports 1975,p.113,per Judge
Perrén:"The request for an advisoryopiniondoes not ask the Courtto state its view as
to theawfulnessof the acquisitionby Spainof sovereigntyoverWestem Sahara".
446 Resolution 2065 (XX), 16 December 1965. See also Resolution 3160 (XXVIIi), 14
December 1973("Mindful thatresolution2065 (XX) indicates that the way toput anend
to this colonial situationis the peaceful solutionof the conflict of sovereigntybetween
theGovemmentsof Argentinaand the UnitedKingdom").
447 Memonal of Portugal,paras.5.41;Replyof Portugal,pam4.57.
449 See e.g. G Schwarzenberger. -al Law (3rd edn 1957) Vol.1, p.184 ("State
State sovereigntyand Statejurisdiction are CO-extensiv; Crawford,re, in principle,
Statesinational Lax (1979). p.27 (sovereignty refers "to the totality of powers
which States may, under international law, have"); 1Brownlie, Princi~les of Pu& .
-(4th edn 1990),p.290 ("in general'sovereignty'characterizespowers
and pnvileges resting on customary law and independentof the particular consent of
anotherstate").not conferred on it ex novo by the United Nations, but exist by virtue of the
colonial sovereignty which Portugal hadexercised over the territory since the
16thcentury.450That a State responsible for the administration of a non-self-
goveming temtory at least exercisesthe powers and attributesof sovereigntyin
respect of that territorywas recognisedby the General Assemblyin Resolution
1883(XVIII),of 14October 1963("Questionof Southem Rhodesia"), inwhich
it invited theGovernmentof the UnitedKingdomof Great Britainand Northem
Ireland "not to transfer to its colony of Southem Rhodesia, as at present
govemed, any of the powers or attributes of sovereigntyW.4fl Although
recognising thatthe UnitedKingdomthereforefor the tirnebeing exercised"the
powers and attributes of sovereignty", this was not considered incompatible
with the "the inalienable right of the people of Southem Rhodesia to self-
determination and independence", which was reaffirmed by the General
Assembly in Resolution 1889 (XVIII) of 6 November 1963 ("Question of
Southem Rhodesia").
266. Whether one takes the view that an administering Power "has"
sovereignty over a non-self-goveming temtory, or that it merely "exercises"
powers of sovereignty, clearly it isnot an illegal denial of the temtory's status
as non-self-goveming to recognise the sovereignty of a State over that
temtory.452 Thus, it cannot be argued that because Australia recognises the
sovereigntyof a StateoverEast Timor, ~ustralia therebynecessarilydenies that
East Timor is a non-self-goveming territory or that its people have a nght to
self-determination. in essence, Portugal's cornplaintis not that Austraiia has
recognised the sovereignty of a State over East Timor and dealt with it on that
basis, but rather that Australia has recognisedand dealt with the wrong State.
Portugal is really assertingin this case that it, ratherthan Indonesia, is entitled
to exercise "toutes les compétences propres aux Etats" over the temtory of East
450 Seeparas.198above,especiallyfootnote303. SeealsoMemorialof Portugal,para.3.08,
in which Portugal refers toitself as ''simplemandataire du peuple" ("agent of the
people"), acknowledgingthat Portugal exercisessovereigntyon theirhalf. Portugal,
of course,id notaccept,in 1955orfor nearly20yearsafter,thatit hadgy ChapterXI
temtories. It must accordingly forlmost al1of its actual administrationof colonial
temtories in Africa and elsewhere have relied on its sovereignty. Its present
451 General AssemblyResolution 1747(XVI),rs28 June 1962, had earlier affmed that the
Temtory of Rhodesia was "a Non-Self-GovemingTemtory within the meaning of
ChapterXI of theCharterofthe UnitedNations".
452 Thus, the United Kingdom was recognised as sovereign over its colonial
temtories for many years, whilst at theetime the United Nations classifiedthese
temtories as non-self-goveming,and assumedthatthe UnitedKingdomowed adutyto
thepeoplesconcemedtorespecttheirnght to self-detennination.Timor, and that Australia is in breach of international law by recognising and
dealing with one, rather than the other. This Portuguese argument is thus
merely another aspect of the argumentthat was dealt with above in Chapters 1
and 2 of this Part.
267. Portugal emphasises that General Assembly Resolution 2625 (XXV)
provides that "The temtory of a'colony or other non-self-goveming temtory
has, under the Charter, a status separate and distinct from the temtory of the
State administering it" (the "principle of individuality" ("principe
d'individualité")or "p~ciple of othemess" ("principed'alténté")).453 Portugal
contendsthat for Australiato recognisethat EastTiior has ben "incorporated"
into Indonesia is to deny the "othemess" of East Timor.454Portugal claims that
as weii as a denial of the nght to self-determination, this also constitutes a
denial of the nght of the people of East Timor to territorial integrity.455
However, this argument seeks to read too much into the particular words used
by the AustralianGovernment. It has been pointed out that Australiahas never
stated that it no longer regards East Timor as a non-seif-goveming territory or
that the people of East Timor do not have theright to seif-detennination. The
Australian Govemrnent has expressed its concern that an act of self-
determination has not taken place, and continues to support the efforts of the
United Nations Secretary General to find a solution to the problem in East
Timor. in recognising indonesian sovereignty over thetemtory, the Australian
Government made it clear that it was merely recognising an effective factual
situation and was not expressing any approval of the means by which the
present situation was brought about. For the reasons given above, recognition
of indonesian sovereignty over East Timor does not involve a denial of its
status as a non-self-goveming territory. Statements of the Australian
Govemment concerningthe "incorporation" of East Tiior into Indonesia must
be understood in this context. It is an untenable argument that themere useof
the expression "incorporated" is a violation of intemational law giving rise to
State responsibilitybecause of the implications thatmight potentially be drawn
from it. Even assuming that aliStates are under an obligation in international
law not to "deny" the status of a non-seif-goveming temtory, to establish a
breach of such an obligation it would be necessary to demonstrate a clear and
unequivocaldenial. The questionisnot merely oneof the useof words.
453 E.R.,Revl~of Portugal,~ara.4.60-4.61.
454 ~ërnonx of Portugal,paras.5.41, 6.54, 7.01, 8.09-8.11, 8.14; Reply of Portugal,
paras.5.07.5.09.
455 Mernoriaolf Portugal,para.8.09.recognising Indonesian sovereignty over East Timor, Australia impedes the
exercise of the right to self-determinationbecause it "prejudges and anticipates
the outcome" of the conversations currently taking place under the auspices of
the United Nations.461Australia does nothing of the sort. Recognition of
Indonesian sovereignty is recognition of an effective situation which exists at
present. Australiahas expressly declared thatit wili respect and recognise the
outcome of any future agreement approvedby the United Nations conceming
East Timor.462
Section II: The right to Dermanent sovereigntv over natural resourca
270. Portugal claims that Australiahas infringedthe right of the peopleof East
Timor to permanent sovereigntyover its natural wealth and resources, andis in
breach of the obligation not to disregard but to respect that sovereignty.63
Portugal says that the negotiation, conclusion and implementationof the 1989
Treaty with Indonesia directly contravenes the principle that the natural
resources of the people of East Timor cannot be exploited without the
agreementof the peopleof EastTimor,freely given.464
271. The Portuguese argument merely begs the question, who was entitled to
give such agreement on behalf of the people of East Timor at the time the
Treaty was entered into? While Portugal claims that "c'est à ceux qui sont les
titulaires de ce droit dedéciderau mieux de leurs intérêts",6P5ortugaldoes not
assert that prior to a valid exercise of self-determination, the consent of the
people cannotbefreely given,so that no exploitationof the natural resourcesof
a non-self-goveming territory is possible. Clearly it & possible to enter into
such agreements (subject, of course, to binding Security Council resolutions
which would prohibit this). Portugal maintains that it would be legal for
Australia to enter into an agreement with Portugal for the exploitation of the
natural resources in the Timor Gap area. Portugal even claims that this would
be so if at the relevanttime Portugal had beenin default of its own obligations
as adrninistenng Power.466The question isthus not whether the consentof the
461 m.
462 Counter-Memonao lfAustralia,paras.71,373-375,412.
463 Portuguesesubmission2 (a),Mernorialf Portuga, .235,Replyof Portugal,p.273.
464 Replyof Portugal,para.5.62-5.8,speciailypara.5.65,5.77,5.82.
466 Replyof Portugal,para.5.09.people of East Timor can be givenby a State on their behalf - Portugal asserts
that it can- but rather, which State can give this consent. For the reasons
given in theprevious two Chapters, Australia isnot required todeal solely with
Portugal in respect of East Timor, and theCourt is unable to determine which
State cari give this consent. However, it may be noted that the precedent of
Western Sahara demonstrates that otherStateshave taken the view that it is not
inherently inconsistent with the right of a non-self-governing people to
permanent sovereignty over natural resourcesto deal with a State in effective
control in respect of these resources, even where this State has displaced the
former colonial power.467 It is for this reason that Australia, in its Counter-
Memorial, said that for Portugal to rely on the principle of permanent
sovereignty over natural resources is merely to reiterate the issue in another
form.468Portugal merely asserts thatindealingwith aStateotherthan Portugal,
Australia has violated the principle, because Australia has not dealt with the
"administeringPowerW.46T 9his argumenthas been dealt within Chapters 1and
2 above.
272. Furthermore, as Australia pointed out in its Counter-Mernorial, in the
present case it is not certain that the natural resourcesin the area of the Joint
Development Zone to which the Treaty relates even form part of the natural
resources of East Timor. It is conceded by Portugal that the Court may not
undertake a maritime delimitation between Australia and East Timor in this
case.470Therefore, the question whether Australiais seeking to exploit natural
resources which belong to the people of East Timor is one which the Court
cannotdecide. As was said inthe Guinea-Bissau-Senegal Arbitration,471 "The
application of the principle of permanent sovereignty over natural resources
presupposes thatthe resourcesin question are tobe found within the temtory of
467 Seeparas.211-212above.
468 Counter-Memonalof Australia,para.377. Portugalitself merely claims that Ausualia
hasinfringedthenght of thepeopleof East Timortopermanent sovereigovernatural
msourcesby disregardingthe status of East Timoras a non-self-governingtemtory and
of Portugalas its administenng Power,and by excluding any negotiationwithPortugal
as adrninistering Power with respect to the exploration and exploitation of the
continentalhelf: seeReplyofPortugal,paras.6.18.6.75;Portuguesesubmissions2 (a)
and3, MernorialofPortugal,p.235-236,ReplyofPortugal,pp.273-274.
469 Reply of Portugaparas.5.82,5.65,6.18,6.75.
470 Seepara.5(4)above.
471 The text of the awardof the ArbitrationTribunal fDetemination of the Maritime
Boundaryis containedin the Annex to the Application Instituting Proceeof the
Govemment of Guinea-Bissauin the Conc ' Award of 31J
Registryof this Courtis reproducedin JntemationalLaw Re~ort~,Vol. 83 ("83 ILR),
p.1.the State that invokes that principle...Any State claiming to have been
deprived of part of it...natural resources must first demonstrate that they
belonged to it'l.472t is adrnittedly true that in that case, M. Bedjaoui, who
dissented, referred to "the 'inherent' right which every people has over 'its'
maritime domain, even if not yet in fact delimitedV.473 However,
notwithstandiig that suchan "inherent" right may exist, it is not possible for an
international court or tribunafino tdat such a right has been infringed until
such time as the maritimedomain is in fact delirnited.he Court in this case
is able neither to pronounce upon the validity of the Treaty between Australia
and Indonesia, nor to undertake itself a delimitationof the maritimedary
between Australia and EastTimor, the Courtis unable to pronounce upon the
question whether theareas in whichAustraliaproposes to undertake exploration
for and exploitationonatura lesourcesare areaswhichare part of the maritime
domain of East Timor. Even if they are, for the reasons given above,
exploitationof those areasdoesnot requirethe consentof Portueal.
273. Portugal argues that the Court is not asked to determine the validity or
effect of the Treaty between Australia or Indonesia, or to undertake a
delimitation of the maritimeomain of East Timor. Portugal argues that the
mere fact that Portugal asserts riintthe area on behalf of East Timor means
that there is a violation of the right of the people of East Timor to permanent
sovereignty over natural resources for Australia to undertake exploration for
and exploitation of natural resources in the area without negotiating with
Portugal.474Alternatively, Portugal claims thatbecause the distance between
the baselines of Australiaand East Timor is less than 400 miles, as a matter of
customary international law, neither Australianor East Timor can lay claim to
more than 200miles.475Portugal saysthatbecausethe Joint DevelopmentZone
extends into an area beyond200 miles from the Australian baselines, it can be
determined, even without undertaking a maritime delimitation, that the Zone
includes a part of the continental shelf that appertains exclusively to East
Timor. Australia rejects this argument, as the next Chapter indicates. In any
event, as indicated above,at the time the Treaty was negotiated with Indonesia,
Australia was under no obligation to deal with Portueal in relation to East
Timor. It also foiiows from thisthat Portugal lacked capacitasse rithts in
the area on behalf of the people of East Timor. The only issue is that of
472 Award,p.30 ;3ILR app.24-25.
473 Award,p.77 ;3ILR ap.49.
474 Replyof Pomigalparas.5.81.6.18.
475 Mernorialof Portugpara.7.08-7.10 R,eply7P;ortugapara.6.73.determining with which State Australia is permitted to negotiate such treaties.
This argument is thus no more than a reiteration-of the previous arguments.
The Court is asked only to determine whether Australia's failure to negotiate
with Portueal was contrary to international law, andthe answer to this question
is clearly in the negative. The Court is not required to determine with whom
Australia4 deal in respect of the Timor Gap. CHAPTER4
AUSTRALIAISNOT IN BREACHOFITSOBLIGATION
TONEGOTIATEIN GOODFAITH IN RESPECTOFTHE
DELIiMITATION OF MARITIMEAREAS
274. In its Application and Mernorial, Portugain one of its submissions
contends that by excluding any negotiation with Portugal with respect to the
exploration and exploitation of the continental shelf in the area of the Timor
Gap, Australia "has failed and is failing in its duty to negotiate in order to
harmonise the respectiveights in the event of a conflict of rights or of clairns
over maritime areas" (Portuguese submission 3). This same submission is
repeatedin the Reply. Australia rejects thissubmission.
275. Inits Counter-Memorial, Australia indicated thatit considered 1989
Treaty a measure of legitimate practicalactionWhile the Treaty sought to
secure for Australia the enjoyment of long asserted rights over its continental
shelf,it was also consistent withany duîy to negotiate provisional arrangements
in situations where States cannotree on a final maritime delimitation an
area of dispute. See generally, Part II, Chapt3rof the Counter-Memorial.
Portugal, in its Reply, deals with this responsein Part 1,Chapter VI, Section 4,
parasgraphs6.68-6.75.
Section 1: m's sovereimriph&
276. Portugal begins by denying that Australia has long asserted sovereign
rights over the area of seabed coveredby the TimorGap Treaty.476It shobed
noted that this issue isone which the Court cannotdetermine.477Since another
State (Indonesia) claims rights over the whole of the continental shelf in
question which does not apperîain to Australia, any decision on the extent of
Australia's rights is also aecision on the rights of that State. Assuming,
however, for thepurpose of the present argument that the Court iscomptent at
least tomake some assessment of the present situation, some clarification of
476 Replyof Portugal,paras.6.68-6.71.
477 Seeparas.(4)13,25 and27 above.Australia's sovereign rights in the area and the effect of the Treaty on them is
necessary. This matter is also dealt with in paragraphs 382-388 of the
Counter-Memonal.
277. Australia first assertednghts over the continentalshelf in a Proclamation
of 1953. This declared that Australiahad sovereign rightsover'thecontinental
shelf contiguous to itscoasts for the purpose of exploring and exploiting the
natural resources of the seabed andsubsoil. That proclamation did not define
the shelf, but in the Pearl Fisheries Act (No.2) 1953, as Portugal notesos the
sheif was defined for the purposes of that Act as the submarineareas to a depth
of not more than 100fathoms. But this definitionhas not continued tobe used
in later legislation. It does not indicate the limit of Australia's long asserted
sovereign rights in the area. Those rights extend to the foot of the Timor
Trough.479
278. Australia's claimsto the continental shelf developedas intemational law
developed and were assertedtaking this into account. Thus, the 1958Geneva
Convention recognised that sovereign rightsover the continental shelf extended
beyond 200metres to "where thedepth of the superjacent waters admits of the
exploitation of the natural resources of the seabed and subsoil" (Art.1).
Australian legislation incorporated the1958definition. Australia ratified that
Convention on 14May 1963,having signed it on 30 October 1958. The
Sea Continental Shelf casesin 1969affirmed the notion of natural prolongation
and made it clear that the geomorphologicalstructure of a State's continental
shelf was of critical importance in determining its limits.480This continues to
be reflected today in the legal defiition of continental shelf containedin the
1982 Law of the Sea Convention (Art.76), to the extent the shelf extends
beyond 200 nm. Australia's claims to sovereign rights over the continental
shelfhave reflectedthese developments.
279. In 1970 Australia made clear its strongly held position onthe limit of its
continental shelf in the Timorrea. In a statementby the Minister for Extemal
Affairs on30October 1970Australia asserted:
"[Tlhe rights claimedby Australiain the TimorSea areaare
based unmistakably on the morphological structure of the
seabed. The essential feature of the seabed beneath the
478 ReplyofPortuga para.6.70.
479 Seesketchmap onp.157and cross-seco tnion158.
480 ICJReports1969,p.3. Timor Sea is a huge steepcleftor declevitycalledthe Timor
Trough, extending in an east-west direction, considerably
nearer to the coast of Timor than to the northem coast of
Australia. It ismorethan 550nauticalmiles long and on the
average 40 miles wide, and the seabed slopes down on
opposite sides to a depth of over 10,000 feet. The Timor
Trough thus breaks the continental shelf between Australia
and Timor, so that there are two distinct shelves, and not
one and the same shelf, separating the two opposite coasts.
The fall-back median line between the 2 coasts, provided
for in the convention in the absence of agreement, would
not applyfor there is no commonareato delimit."481
The Australian position on the extent of its sovereign rights reflected in the
1970statementwas set out in the diplomaticnotes sent to Portugal in 1973and
1974.482This position was also asserted inthe negotiations with Indonesia in
1971 and 1972 which led to the agreements providing for delimitation of the
continental shelf in the area, except for that off East Timor.483 Those
agreements reflected, as delimitation agreements often do, a compromise
between the positions of both parties. But Australia's legal position as to its
nghts over the shelf in the absence of delimitation was maintained and has
continued tobemaintained.
280. Contrary to the assertion by Portugal,484the view that the bathymetric
axis of the foot of the Timor Trough is the limit of Australia's continentalshelf
is the position that has consistently been takenby Australia since at least 1970.
It is not a recently adopted position as Portugal suggests. Australiahas never
accepted themedian line as the appropnate delimitationline given its view that
it has a legal and geomorphological shelf extending to the foot of the Timor
Trough. Australia issued petroleum permits beyond the median line between
Australia and the then Portuguese East Timor as long ago as 1963 and
subsequently, and made other assertions of jurisdiction which reflected this
view of the extent of its rights. Details of these assertions of Australian
sovereignrightswere setout in the diplornaticnote to Portugal in 1974.485
481 AnnexIV-6.f this andotherpartsof the statemenis set out in Memonalof Portugal,
482 Memonalof PortugalA , nnexesIV-6andIV-11.
483 Memonalof Portugal, Annexes111-1and111-2.
484 Replyof Portugal, ara.6.70.
485 Memonalof Portugal,Annex IV-11.281. Of course, more recently, therehas been general legal acceptanceby the
international communitythat the legal continental shelf now is defined by use
of alternatives- either a distance criterion of 200 nm or by a combination of
distance out to 200nm and geomorphologicalcriteria beyond 200 nm. This is
reflected in Article 76 of the Law of the Sea Convention. Where
geomorphology allows,a State's sovereign rightscan, therefore,extendbeyond
200 nm. And in the case of the continental shelf in the Timor Gap, Austraiia
considers that the geomorphology entitlesit to assert sovereign rights over its
continental shelf to the foot of the Timor Trough. Indonesia, like Portugal,
asserts a contrary position based on its view that its continental shelfis defined
solely by distance. It, therefore, considersstralia's sovereign rights cannot
extend beyond a median line based on overlapping 200 nm zones. Australia
has, however, always rejected thisview. The 1989Treaty is without prejudice
to the respective viewsof AustraliaandIndonesia in thisregard. Article 23)of
the Treatyprovides:
"3. Nothing contained in this Treaty and no acts or
activitiesaking place while this Treaty iin force shalbe
interpreted as prejudicing the position of either Contracting
State on a permanent continental shelf delimitation in the
Zone of Co-operation nor shall anything contained in it be-
considered as affecting the respective sovereign rights
claimed by each Contracting State in the Zone of
Co-operation."486
The differingviews of the two Partiesto the 1989Treatyas to the limitsto their
continental shelf claims are reflected in the boundaries of the Zone of
Co-operation. The northem and southem limits of the Zone represent
respectivelythe maximum claimsof AustraliaandIndonesia,basedrespectively
on geomorphology and distance. The boundaries of Area A of the Zone, in
relation to which exploration and exploitation takes place through the Joint
Authority, represents the core area of overlapping claims, with itsnorthern and
southem limits based againon geomorphologyand distancerespectively.
282. The attemptby Portugalto portray the Australianclaims to the footof the
trough as without any legitimate foundation in international law is rejected.
Nor can Portugal legitimately assert487that the only basis on which Australia
486 Thetextof theTreatyis containedintheScheduletothePemleum (Ausuaiia-Indonesia
of PortugaAnnexiii.9.t 1990,Applicatiby Portugal,Annex2.See alsoMemonal
487 Replyof Portugapara.6.73.can assert rights in the area is based on a line drawn 200 nrn from its coasts.
Australia overa lengthyperiod has assertedand exercised sovereign rightsover
the area in dispute based on a geomorphological definition of the shelf. And
internationallaw continuesto recognisethis as a relevantdefinition.
283. As Portugal points out, this case is not, however, one involvinga dispute
about maritime delimitation and the Court is not asked to draw a delimitation
line.488 The Court must, therefore, assume that Australia's claims are
legitimately based. Australia made clearin its Counter-Memorialthat it views
the 1989 Treaty as a measureofpractical actionto secure its rights and interests
under international law. The Court cannot in the present case determine
whether the regime agreed with Indonesia is compatible with the respective
maritime rights in international lawof Australia andthe temtory of East Timor.
Any attempt to do so or to grant Portugal the remedy it seeks means that
Australia would fid it practically impossible to exercise its own rights in the
area.489
SectionII:
284. Portugal seeks to argue that because there is a "concours de droits ou de
prétentionssur des espacesmaritimes" Australiahas a duty to negotiateover its
maritime rights.4w Australia recognises a duty to negotiate with a view to
reachingagreementon the delimitationof the continental shelf withan opposite
coastal State. This is a duty that pending final agreement may lead to
provisional arrangementsof apracticalnature.491But Australiadoes not accept
that it has a duty to negotiate with Portugal. Portugal argues that Australia's
rights under the law of the sea cannot ovemde or fail to have regard to the law
relating to non-self-goveming territories.492 But Australia does not seek to
argue this. It says that thereisno dutyto negotiate with Portugalin relation to
matters ansing from Australia's capacityas a coastal State, given Portugal's
own complete inabilityto exercise the powers of a coastal State, let alone those
of an effectiveadministeringPower.493
488 Replyof Pomigai,paras.6.73.6.76.
489 Counter-Mernoria of Ausualia,para.410.
490 Replyof Pomigai.headingtopara.6.74.
491 SeealsoCounter-Memonao if Ausuaiia,para.404.
492 Replyof Pomigai,parâ6.75.
493 Paras.152-154above.285. As the above account has demonstrated, Australia has negotiatedover its
maritime rightsinthe TimorGap area. Ithas concluded a practical arrangement
allowing for exploration and exploitationof petroleumresources. It has clearly
fulfiiled any obligation to negotiatein good faith. The only issue is whether it
has incurred international responsibilityby having excluded andby continuing
to excludeany negotiationwithPortugalon this issue.
286. Pomigal seeks to show that there is a conflict of rights or of maritime
claims in the Timor Gap area between Portugal andAustralia.494 Portugal in its
Memorial refers to diplomatic exchanges in 1973 and 1974, and then in
Febmary 1991at the same time as the present proceedings werecomrnenced495
in order to establish this conflict. The fact that a dispute mayhave existed in
1974 is not relevant in the present case to whether a dispute continues to exist
today. In relation to the 1991note, Australia respondedin a note of its own in
April 1991 that it contested the legal interest of Portugal in relation to the
maritime spaces appurtenantto East Timor.496And it isthis issue in relationto
which Portugal and Australia are in dispute and to which these present
proceedingsrelate.
287. As Australia has aiready demonstratedP97for Portugal simply to assert
that it is the administering Powerestablishesno basis for Portugalto assert that
it is in the position of the relevant coastal State with whom Australia must
negotiate over the continental shelf. Yet it is the coastal State to whom the
rights over the continental shelf belong. And rights of a State over the
continental shelf only existby virtue of its control of the territory to which the
shelf is appurtenant. As the Court said in the North Sea Continental Shelf
cases, the most fundamental of al1the rules of law relating to the continental
shelf is that:
"the rights of the coastal State in respect of the area of
continental shelf that constitutes a natural prolongation of
its land territory into andunder the sea exist ipso facto and
ab initio, bv virtue of its sovereigntv over the land, and as
an extension of it in an exercise of sovereign rights for the
purpose of exploring the seabed and exploiting its natural
resources."498
494 Replyof Portugal,paras.6.72-6.74.
495 Memorialof Portugal,paras.7.04-7.06.
496 Memonalof Portugal,AnnexIV.2,Vo1.V.p.275.
497 SeePart 1,Chapter2 andPartII,Chapter1of thisRejoinder.
498 ICJReports1969,p.22(emphasisadded).In the Aeeean Sea case,the Court also recognisedthat:
"a dispute regarding entitlementto and delimitationof areas
of continental shelf tends by its very nature to be one
relating to territorial status. The reason is that legally a
coastal State's rights over the continental shelf are both
appurtenant to and directly derived from the State's
sovereignty over the temtory abutting on that continental
shelf."499
The fact that Portugal exercises no rights as a coastal State in the area and
cannotdischargethe responsibilitiesof a coastalState reinforces the conclusion
set out in some detailabovethat there isno duty to negotiate with Portugalin its
capacity as administeringPower. Nor can Portugalshow any basis on which in
some way it can represent and assert rights over the continental shelf onbehalf
of East Timor as if it were a coastal State. It has no effective control of the
temtory. The United Nations has recognised no competency for Pomigal in
regard to this matter. On ail accounts the submission that Australia has
breached a duty to negotiate with Portugal over the continental shelf in the
Timor Gap is without foundation,becausePortugal isinno position, and has no
authority, to actas the relevant coastal State.
499 ICJ Reports 1978,p.36. SUBMISSIONS
288. The Govemment of Australia submits that, for the reasons set out in its
Counter-Memorial and Rejoinder,the Court should adjudgeand declarethat:
(a) the Court lacksjurisdiction todecide the Portugueseclaims, or that the
claims are inadmissible;
(b) altematively, the actions of Australia invokedby Portugal do not give
rise to any breachby Australiaof rightsunder intemationallaw asserted
by Portugal.
GAVANGRIFFITH
Agentof the Govemment of Australia
HENRY BURMESTER
Co-Agent ofthe Governrnentof Australia
WARWICKWEEMAES
Co-Agent ofthe Govemment of Australia
1July 1993 APPENDIX
PRINCIPALRESOLUTIONS OFTHE GENERAL
ASSEMBLYAND SECURITY COUNCILTO 1974
DEALINGWITHTERRITORIES UNDERPORTUGUESE
ADMINISTRATION
* (=Australiavoted for)
$$ (= Portugal absent) ** (=Australiaabstained)
$3 (=Portugalvoted against) *** (=Australiavoted against)
GENERALASSEMBLY RESOLUTIONS
Resolution 1699(XVI), 19December 1961 * $58
"Non-cornpliance of the Government of Portugal with Chauter XI of the
CharterO; the United Nations and with ~egeral ~ssem6l~ resolution
1542(XV)"
Para 1: "Condernnsthe continuing non-complianceof the Govemment
of Portugal with itsobligationsr ChapterXI of the Charter
of the United Nations andwith the terms of General Assembly
Resolution 1542(XV)"
Para 8:
and assistance which it may use for the suppression of thet
peoples of its Non-Self-GovemingTerritories"
Resolution 1742(XVI),0January 1962
"The situationin Angola"
Prearnb1e:"Notinewith deep regret Portugal'srefusal to recognize Angola
as a Non-Self-Goveming Territory and its failure toake
measures to implement General Assembly resolution 1514
(XV)"
Para 3: "Deeply deprecates the repressive measures andarmed action
against the people of Angola and the denial to them of human
rights andfundamentalfreedoms"
Para 8: "Requests al1 States Members of the United Nations and
members of the specialized agencies to deny Portugal any
support and assistance which may be used by it for the
suppressionof the peopleof Angola"Resolution 1807(XVII),14December 1962 ** §§§
"Temtones underPortuguese administration"
Preamble: "Greatlv deploring the continued disregard by the Portuguese
Govemment of the legitimate aspirations for immediate self-
determinationand independenceexpressedby the peoples of the
Temtones under its administration"
Para 2: "Condemns the attitude of Portugal, which is inconsistent with
the Charterof the UnitedNations"
Para 7: ''-s al1States to refrain forthwith fromoffering
the PortugueseGovernrnentany assistance which wouldenable
it to continue its repression of the peoples of the Territories
under its administration"
Resolution 1819 (XVII),18December 1962
"The situationin Angola"
Preamb1e:"Resolutelv condemning the mass extermination of the
indigenous population of Angola and other severe repressive
measures being used by the Portuguese colonial authorities
against the peopleof Angola"
"Notin tpat in the Temtory of Angola, as in other Portuguese
colonies, the indigenous population is denied al1fundamental
nghts and freedoms, that racial discriminationis in fact widely
practised and that the economic life of Angola is to a large
extentbased onforced labour"
Para 3: "Condemns the colonial war being carried on by Portugal
against the peopleof Angola and demands that theGovemment
of Portugal putan end to it irnrnediately"
Para 7: "Reauests al1Member States to deny Portugal any support or
assistance which may be used by it for the suppression of the
peopleof Angola.. .,
Para 8: "Reminds the Government of Portugal that its continued non-
implementationof the resolutionsof the General Assembly and
of the Secunty Council is inconsistent is inconsistent withits
membershipin theUnitedNations"Resolution 1913(XVIIi),3 December 1963
"Tenitories under Portuguese administration"
Preamb1e:"Noting with dee~ regret and ereat concem the continued
refusa1 of the Govemment of Portugal to take any steps to
implement the resolutionsof the General Assembly and of the
SecurityCouncil"
Para 1: "Reauests the Security Council to consider immediately the
a.estion of the Territories under Po"i~ueseadministration and
to adopt necessary measures to giveeffectto its own decisions"
Resolution 2107 (XX), 21 December 1965 *** 85s
"Question ofTerritoriesunder Portuguese administration"
Preamb1e:"Notingwith deep concem that, in spite of the measures laid
dom by the SecurityCouncil...the Government of Portugal is
intensifying the measuresof repressionand military operations
against the African people ofthese Territories with a view to
defeating their legitimate aspirations to self-determination,
freedom and independence"
Para 4: "Condemns the colonial policy of Portugal and its persistent
refusal to cany out the resolutionsof the GeneralAssembly and
the SecurityCouncil"
Para 7: Urges Member Statesto take certain measures against Portugal,
separatelyorcolIectively.
Para 8: Requestsall Statesto take certain steps against Portugal.
Resolution2184 (XXI),12December 1966 *** §§§
"Question ofTerritoriesunder Portuguese administration"
Para 3: "Condemns, as a crime against humanity, the policy of the
Govemment of Portugal, which violates the economic and
politicalights of the indigenous populationby thesettlementof
foreign immigrants in the Territories and by the exporting of
African workers toSouth Africa"
Para 4: "Further condemns the activities of the financial interests
o~eratinein the Temtories under Portueuese dominationwhich
eXploit&e human and material resources of the Territories and
impede the progress of their peoples towards freedom and
independence" Para 7: "Recommends to the SecurityCouncil that itmake it obligatory
foral1States, directlyand throughtheir action in the appropriate
internationalagenciesof whichtheyare members, to irnplement
the measures contained in General Assembly resolution
2107(XX)"
Para 8: Requests ali States to take certain steps, and in particular "(d)
To take the necessary measuresto put an end to such activities
asare referred to in pamgraph4 above".
Resolution22700,17 November 1967 ** §§§
"Question ofTemtories underPortuguese administration"
~rearnbie:"Dee~ivdisturbedby the negative attitudeof the Government of
Portugal and its persistentrefusal to implement the relevant
United Nationsresolutions"
Para 3: "Stronglv condemnsthe persistentrefusal of the Governmentof
Portugal to implement the relevant resolutions adopted by the
General Assembly, the Security Council and the Special
Cornmittee, as well as that Govemment's actions which are
designedto perpetuateits oppressiveforeignrule"
Pm 4: "Stron~lv condemns the colonial war being waged by the
Government of Portugal against the peaceful peoples of the
Territoriesunder its domination, which constitutes a crime
againsthumanity and a grave threatto international peace and
security"
Para 6: "Stronelv condemns the activities of the financial interests
operatingin the Temtories under Portuguese domination,which
exploit thehuman and material resources of the Temtories and
impede the progress of their peoples towards freedom and
independence"
Para 8: Requests ali States to take certain measures against Portugal,
and in particular "(d) To put anend to the activities referred to
in paragraph6above".
Resolution2395 (XXIiI), 29November 1968 ** $55
"Question of Temtories under Portuguese administration"
Preamb1e:"- over the persistent refusa1of
the Government of Portugal to irnplement the relevant United
Nations resolutions" Para 2: ''- the persistentrefusalof the Govemment of Portugal
to implement resolution 1514 (XV) and al1 other relevant
resolutions of the General Assembly and of the Security
Council"
Para 5: "Appeais to al1States to grant the peoples of the Territories
under Portuguese domination the moral andmaterial assistance
necessaryfor the restorationof their inalienablenghts"
Para 11: "Deulores also the activitiesof the financial interests operating
in the Temtories under Portuguese domination, which obstruct
the struggle of the peoples for self-determination, freedomand
independence and which strengthen the military efforts of
Portugal"
Resolution 2507 (XXIV),21 November 1969 ** 58s
"Question of TerritoriesunderPortugueseadministration"
"Expressing itsdeeo concem over the persistent refusa1of the
Govemment of Portugal recognize the inalienable right of the
African peoples undeFits domjnation to self-determinationand
independence and to CO-operatewith the United Nations in
seeking solutions that would bring colonialism rapidly to an
end"
Para3: "Condemns the persistentrefusa1of the Govemment of Portugal
to implement resolution 1514 (XV) and al1 other relevant
resolutions of the General Assembly and of the Secunty
Council"
Para 5: "Condemns the colonial war which is being waged by the
Govemment of Portugal against thepeoples of the Territories
under its domination"
Para 9: "Deplores the activitiesof the fi'ancial interests which obstruct
the struggle of the peoples under Portuguese domination for
self-determination, freedom and independence and which
strengthenthe military effortsof Portugal"
Para 12 "Recommends that the Security Council ...should take effective
steps in conformity with the relevant provisionsof the Charter
of the United Nations and in view of the determination of the
international community to putan end to colonialism and racial
discriminationin Afnca"Resolution 2548(XXIV),11December 1969 Adopted78:s:16
"Implementation of the Declaration on the Granting of independence to
Colonial Countriesand Peoples"
Prearnb1e:"Deploringthe refusa1 of the colonial Powers, especially
Portugal and South Africa, to implement the declaration and
other relevant resolutions on the question of decolonization,
particularly those relating to the Temtories under Portuguese
domination, Narnibiaand SouthemRhodesia"
"Deplorhg the attitude of certain States which, in defiance of
the pertinent resolutions...continue to CO-operatewith the
Governrnentsof Portugal andSouth Africa and with the iilegal
racist minority régimeinSouthem Rhodesia"
Para 6: "Reauests al1 States, as well as the specialised agencies and
intemational institutions, to withhold assistance of any kind
from the Governments of Portugal and South Africa and from
the illegal racist minority régimein Southem Rhodesia until
they renounce their policy of colonial domination and racial
discrimination"
Resolution 2554 (XXIV),12December 1969 ** §§§
"Activities of foreigneconomic and other interests whichare irnpedingthe
implementation of-the Declaration on the Granting of independence to
Colonial Countries and Peovles in Southern Rhodesia. Namibia and
Territories under Portuguese domination andin al1other Territories under
colonial domination and efforts to eliminate colonialism, avartheid and
racial discriminationin southemAfrica"
Para 3: "Affirms that foreign economic andother interests operating in
colonial Territories which are exploiting those Territories
constitute a major obstacleto political independenceas well as
to the enjoymentof the natural resourcesof these Territoriesby
the indigenousinhabitants"
Para 6: "Deplores the attitude of the colonial Powers and States
concerned which have not taken any action to implement the
relevantprovisionsofGeneral Assemblyresolutions"
Para 7: ''Reauests the administering Powers and States concerned
whosecompaniesand nationals are engagedin such activities to
take irnrnediatemeasures to put an end to al1practices9,hich
exploitthe Temtories andpeoplesunder colonialrule.. . Para 8: '.'Requestsal1 States to take effective measures to cease
forthwith the supply of funds or other forms of economic and
technical assistance to colonial Powers which use such
assistance to repressthenational liberationmovements"
Seealso
Resolution2703 (XXV), 14December 1970
Resolution2873(XXVI),20 December 1971
Resolution2979 (XXVII), 14December1972
Resolution 3117(XXVIII), 12December 1973
Resolution2558 (XXIV), 12December 1969 ** §§§
"Information from Non-Self-Goveming Territories transmitted under
Article 73gof theCharterof the UnitedNations"
Para 3: "Condemns the Govemment of Portugal for its continued
refusa1to transmit informationunder Articleg3of the Charter
with regard to the colonial Territoriesder its domination,
despite the numerous resolutions adopted by the General
Assembly conceming thoseTerritories"
Para 7: "Reiterates its requestat the administering Powersconcemed
transmit such information as earlyas possible and at the latest
within a maximum period of six months following the
expirationof the administrative yearin the Non-Self-Governing
Temtories concemed"
Seealso
Resolution 2422 (XXIII), 18December 1968
Resolution 2701 (XXV),14December 1970
Resolution 2870 (XXVI),20 December1971
Resolution2978 (XXVII), 14December1972
Resolution3110 (XXVIII),12December 1973
Resolution 2704 (XXV),14December 1970 ** $58
"Implementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples by the specialized agencies and the
international institutions associatedwiththe UnitedNations"
Para 3: "Urpes the specialized agencies and the organizations
concemed whichhave not yet done soto take the steps required
for the full implementation ofhose provisions of the relevant
resolutions relating to assistance to the national liberation
movements and to the discontinuance ofal1collaboration with the Governments of Portugal and South Africa, as well as with
the illegalracist minorityrégiminSouthem Rhodesia"
Resolution 2707 (XXV) 14December 1970 ** $55
"Questionof Temtories under Portugueseadministration"
Preamb1e:"Gravelvconcemed at the defiant attitude of the Govemment of
Portugal towardsthe intemationalcommunityand the persistent
refusai of that Govemment torecognize the inalienable right of
the peoples of the Territoriesunder its domination to self-
determination and independence and to implement the relevant
resolutionsof the United Nations"
Para2: "Stronelv condems the persistent refusal of the Govemment of
Portugal to implement resolution 1514 (XV) and al1 other
relevant resolutions of the General Assembly and the Security
Council. and the colonial wareing wagedby that Govemment
against the peoples of Angola, Mozambique and Guinea
(Bissau)...>
Para 8: ''m all States to take al1effective measures to put an
end to al1 practices which exploit the Territories under
Portuguese domination and the peoples therein and to
.. discouragetheir nationalsand companiesfrom entering into any
activities or arrangements which strengthen Portugal's
domination over, and impede the implementation of the
Declaration withrespect to,hoseTemtories"
Para 13: "Recommendsthat the SecurityCouncil should continueto give
speciai 9,tention to the problems of Portuguese colonialism in
Africa...
Resolution2708 (XXV) 14December 1970 *+* $55
"Irnplementation of the Declaration on the Granting of Independence to
ColonialCountriesand Peoples"
Preamb1e:''De~ioringthe continued refusal of the colonial Powers,
especially Portugal and South Africa, to implement the
Declaration and other relevant resolutions on theuestion of
decolonization, particularly those relating to the 'Territories
underPortuguese domination,Narnibiaand Southem Rhodesia"
"Strongl~ deploring the attitude of those States which, in
defiance of the relevant resolutio..continue to CO-operate
with theGovernrnents of Portugal and South Africa and with
the illegalracist minority régin Southem Rhodesia" Para 6: "Urpes al1 States and specialized agencies and other
organizations within the United Nationssystem to provide, in
consultation, as appropriate, with the Organization of African
Unity, moral and material assistance to national liberation
movementsin the colonialTenitones"
Para 7: "Reauests al1 States, as well as the specialized agencies and
international institutions, to withhold assistance ofany kind
from the Govemments of Portugal and South Africa and from
the illegal racist minority régimein Southem Rhodesia until
they renounce their policy of colonial domination and racial
discrimination"
Resolution 2795(XXVI),10December 1971 * §§§
"Question ofTerritories under Portugueseadministration"
Preamble:"Deploringthe persistent refusal of the Govemment of Portugal
to recognize the inalienable right of the peoples in the
Territories under its domination to self-determination and
independence in accordance with the Declaration on the
Granting of Independenceto ColonialCountnes and Peoples"
Para 2: "Strongly condems the persistent refusal of the Govemment of
Portugal to implement resolution 1514 (XV) and al1 other
relevant resolutionsof the General Assembly and the Security
Council"
Para 3: ''Condemnsthe colonialwarking wagedby theGovemmentof
Portugal against t79 peoples of Angola, Mozambique and
Guinea (Bissau)...
Para 10: "Calls upon all States to take al1imrnediatemeasures to put an
end to al1activities that help to exploit the Temtories under
Portuguese domination and the peoples therein and to
discourage their nationals and bodies corporate under their
junsdiction from entering into any transactionsor arrangements
that strengthen Portugal's domination over, and impede the
implementation of the Declaration with respect to, those
Temtories"
Para 13: "Reauests al1 States and the specialized agencies and other
organizations withinthe United Nationssystem, in consultation
with the OrganizationofAfrican Unity,to render to the peoples
of the Temtories under Portuguese domination,inparticularthe
population in the liberated areas of those Territories, al1the moral and material assistance necessary to continue their
stmggle for the restoration of their inalienable right to self-
determinationand independence"
Resolution2918 (XXVII), 14November 1972 * §§§
"Question of Territoriesunder Portugueseadministration"
Preamb1e:"Condemningthe persistent refusa1 of the Govemment of
Portugal to comply with the relevant provisions of the
aforementioned resolutionsof the UnitedNations"
Para 2: "Affirms that the national liberation movements of Angola,
Guinea (Bissau) and Cape Verde and Mozambique are the
authenticrepresentativesof the true aspirationsof the peoplesof
thoseTemtories and recommendsthat, pending the accessionof
those Territories to independence, al1 Govemments, the
specialized agencies and other organizations within the United
Nations svstem and the United Nations bodies concemed
should, wien dealing with matterspertaining to the Temtones,
ensure the representation of those Territories by the liberation
movements concemed in an appropriate capacity and in
consultation withthe Organizationof Afncan Unity"
Para 4: ''A~~alsto al1Governments,the specialized agenciesand other
organizations within the United Nations system and non-
govemmental organizationsto render to the peoplesof Angola,
Guinea (Bissau) and Cape Verdeand Mozambique,inparticular
the populationsin the liberatedareas of those Temtories, ail the
moral and material assistance necessary to continue their
stmggle for the achievement of their inalienable right to self-
determination andindependence"
Para 6: "Calls uuon al1Statesto take forthwith ail possible measuresto
put an end to any activities that help toexploit the Temtories
under Portuguese domination and the peoples therein and to
discourage their nationals and bodies corporate under their
jurisdictionfrom entering into any transactionsor arrangements
that contribute to Portugal's dominationover those Territories
and irnpedethe implementationof the Declaration with respect
to them"Resolution2980 (XXVII), 14December 1972 * §§§
"Irnplementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples by the specialized agencies and the
international institutions associatedwiththe UnitedNations"
Para 6: Urges once aeain the specialized agencies and other
organizations withinthe United Nations system,in accordance
with the relevant resolutionsof the General Assembly and the
Security Council, totake allnecessary measures to withhold
and financial,economic, technical and other assistancefromthe
Govemments of Portugal and South Africa and the illegal
régime in Southem Rhodesia. and to discontinue al1
collaboration with them until they renounce their policies of
racial discrimination andcolonialoppression"
Resolution3061 (XXVIII), 2 November 1973 ** §§§
"Illegal occupation by Portuguese military forces of certain sectors of the
Republic of Guinea-Bissau and acts of aggression cornrnitted by them
against the peopleof the Republic"
Preamb1e:"Reco~nizingthe inalienable right of al1 peoples to self-
determination and independence in accordance with the
principles of the Charter of the United Nations and the
Declaration on the Granting of Independence to-Colonial
Countries andPeoples"
Para 1: "Welcomes the recent accession to independenceof the people
of Guinea-Bissau, thereby creating the sovereign State of the
Republicof Guinea-Bissau"
Para 2: ''-s the policiesof the Governmentof Portugal
in perpetuating itsilegal occupation of certain sectors of the
Republic of Guinea-Bissau and the repeatedacts of aggression
committed by its armed forces against the people ofGuinea-
Bissau and CapeVerde"
Para 3: "Demands that the Government of Portugal desist forthwith
from furtherviolation of the sovereigntyand temtorial integrity
of the Republic of Guinea-Bissau and from al1 acts of
aggression againstthe people of Guinea-Bissau and Capeerde
by immediately withdrawing its armed forces from those
territories"Resolution3113(XXVIII),12December 1973 * 55s
"Question ofTemtories underPortuguese administration"
Para2: "Reffinns that the national liberationmovementsof Angola and
Mozambique are the authentic representatives of the true
aspirations of the peoples of those Temtories and recomrnends
that.pending the accessionof thoseTemtories to independence,
al1 Governments, the specialized agencies and other
organizations withinthe United Nationssystem and the United
Nations bodies concerned should, when dealing with matters
pertaining to the Temtories, ensure the represeGation of those
Territories bv the liberation movements concerned in an
appropriatecapacity and in consultation withthe Organization
of AfricanUnity"
Para3: ''U the persistentrefusal
of the Governmentof Portugal to comply with the provisionsof
the relevantesolutionsof the UnitedNations..1
Para 4: "Demands that the Govemment of Portugal should cease
forthwith its colonialwars and al1acts of repression against the
peoples of Angola and Mozambique"
Para6: ''m to al1Govemments,the specialized agenciesand other
organizations within the United Nations system and non-
govemmental organizationsto render to the peoples of Angola,
Mozambique. and other territories under Portuguese
domination, in particular the populations in the liberated-areas
of those Temtories, al1 the moral, material and economic
assistance necessary to continue their stmggle for the
achievement of their inalienable right to freedom and
independence"
Para 9: "Calls uDonal itatesto take forthwithal1possiblemeasures:
(a) To put an end to any activities that help to exploit the
Territories under Portuguese domination and the peoples
therein;
(b) To discourage their nationals and the bodies corporate
under their jurisdiction from entering into any transactions or
arrangements that contribute to Portugal's domination over
those Temtories;
(c) To exclude Portugal fromtakingpart on behalf of Angola
and Mozambique in any bilateral or multilateral treaties or
agreements relating particularly toextemal trade in the products
ofthoseTemtories"Resolution3163 (XXVIII), 14December 1973 * §§§
("Implementation of the Declaration on the Grantingof Independence to
Colonial Countriesand Peoples")
Para 8: "Reauests al1 States, directly and through their action in the
specialized agencies and other organizations within the United
Nations system, to withhold or continueto withhold assistance
of anykind from the Governrnentsof Portugaland SouthAfrica
and from the illegal racist minority régime in Southem
Rhodesia until they renounce their policy of colonial
dominationand racial discrimination"
Resolution3181 (XXVIII),17December 1973
("Credentialsof representativesto thetwenty-eighthsessionof theGeneral
Assembly")
Approves the credentialsof the representativesof Portugal, on
the clear understandingthat they representPortugal as it exists
within its frontiersin Europe and that they do not represent the
Portuguese-dominated Territoriesof Angola and Mozambique
nor could they represent Guinea-Bissau, which is an
independent State"
Resolution3294 (XXIX), 13December 1974 (Adoptedwithout vote)
"Question of Territoriesunder Portuguesedomination"
Preamble: "Welcoming the declaration of the Government of Portugal
accepting tofulfil its obligation under the relevant provisions
of the Charter of the United Nations andrecognizing the right
of the peoples to self-determinationand independence..9,
Para 6: "Reaffirms itstotal support of,and constant solidarity with, the
peoples of the Temtories under Portuguese dominationin their
legitimatestruggle to achieve without further delay freedom
and independence under the leadership of their national
liberation movements ... which are the authentic
representativesof the peoples concemed" Para 10: "Appeals to al1Govemments and the specialized agenciesand
other institutions associated with the United Nations to render
to the peoples of the Territories concemed al1 moral and
material assistance towards the achievement of their national
independenceand the reconstructionof their countries"
SECURITY COUNCIL RESOLUTIONS
Resolution 180(1963)of 31 July 1963
Para 2: "Affirms that the policies of Portugal ...are contrary to the
pinciples of the Charter and the relevant resolutions of the
GeneralAssemblyand of the SecurityCouncil"
Para 3: "Devrecates the attitude of the Portuguese Government, its
repeated violations of the principles of the Charter and its
continued refusa1to implement the resolutions of the General
Assembly andof the Secunty Council"
Para 6: "Reauests that al1States should refrain forthwith from offering
the Portuguese Governmentany assistance which would enable
it to continue its repression of the peoples of the Territories
under its administration..>>
Resolution 183(1963)of 11December 1963
Prearnble: Recallsresolution 180(1963).
Para 2: "Calls upon al1States to comply with paragraph 6 of resolution
180(1963)"
Resolution 218 (1965)of 23 November 1965
Para 2: "Deplores thefailure of the Government of Portugal to comply
with previous resolutions of the Security Council and the
General Assembly and to recognize the right of the peoples
under its administration to self-determination and
independence"
Para 6: Reauests al1 States to refrain forthwith from offering the
Portuguese Governrnentany assistancewhich wouldenable it to
continue its rep9,ssionof the people of the Temtones under its
administration..Resolution312 (1972)of 4 February 1972
Para 2: "Condernnsthe persistent refusalofthe Governrnentof Portugal
to implement General Assembly resolution 1514 (XV) and ail
other relevant resolutionsof the SecurityCouncii"
Para 6: "Calls mon al1 States to refrain forthwith from offering the
PomigueseGovernrnentany assistancewhichwouldenable it to
continue its repression of the peoples of theerritory under its
administration..."
Resolution322 (1972)of 22 November 1972
Prearnb1e:Recalls General Assembly resolution 2918 (XXVII) of 14
November 1972on the questionof Temtories under Portuguese
administration
Para 2: "Calls mon the Govemment of Portugal to cease forthwith its
militaryoperationsand ail actsof repressionagainstthe peoples
of Angola, Guinea (Bissau) and Cape Verde,and Mozambique"
Para 3: "Cails mon the Govemmentof Portugal,in accordance with the
relevant provisions of the Charter of the United Nations and
General Assembly resolution 1514 (XV), to --enter into
negotiations with the parties conccerned, with a view to
achievinga solutionto the armed confrontationthat existsin the
Temtories of Angola, Guinea (Bissau) and Cape Verde, and
Mozambiqueand pemitting the peoples of those Temtories to
exercisetheirright to self-detemination and independence" ANNEXES
Textsof statementsin theAustralianParliamentby the
Australian govemmenton the Dilikillings-6 November to
11December1991 ..................................................A.l........
............
Resolutionof AustralianSenate,27 November1991onDili
killing............................................................A
..............................
Responseby the AustralianMinisterforForeignAffairsto the
outcomeof the trial of XananaGusmao,24 May 1993 .....................3...
1977US statementon recognition ofEastTimor .......................A15............
1982US statementon recognitionof EastTimor .......................A........
NewZealand statementon East Timor,1978 .............................5.......
Text of resolutionadoptedby Commission onHumanRights, 1993 ......A26
Extractfrom Australia'sfust report totheHumanRightsCommittee
pursuantto Articl40 of theICCPR ..................................A30....................
Extractfrom responsebyAustraliato questionsonits fust report to
the HumanRightsCommittee,pursuantto Article 40 of the ICCPR ......A37
Extractfrom Australia'ssecondreport totheHumanRights
Committee,pursuantto Article40 of theICCPR .................................
Extractfrom responseby Australiato questionson secondreport to
the HumanRightsCommittee,pursuantto Article40 of the ICCPR ......A48
Workingpaperpreparedby the Secretariat .............................5........... ANNEX 1
Textsof statementsin the AustralianParliamentbytheAustralian government Al
on the Dili killings -6 Novemberto 11December1991
International for an officia1investigation into the
incident, including the deaths ofthetwo youths
and response of detention? Does the Australian
Government intends to raise the matter ofhuman
rights in lndonesia and East Timor with the chief
ofIndonesia's armed forces,General TrySutrisno,
during current visit to Australia?
Senator Evans - 1am familiar with the media
reports conceming the incident inDilion 28Octo-
ber.Iinstmcted the Australian Embassy to inves-'
tigate that matter as amatter ofurgency both with
the indonesian authorities and with independent
non-government sources, to the extent that we
could get access to them.
Theinformation wehaveobtained fromthese
various sources is inconclusive. The officia1mili-
tary account is that the deaths occurred in the
context of a fight between Timorese groups out-
side thechurch- whichmay have had something
to do with a fight between supporters and oppo-
nents ofintegration-and that two peopledied in
the incident in question. Anumber of eyewitness
accountssuggest that shots were fired.There cer-
tainly was a militarypresence at somestage ofthe
proceedings, but there do not appear to be any
eyewitness accounts suggesting that the deaths
occurred directly as a result of the-shots being
fired.
The lndonesian authorities have conceded
that shots were fired butaythat that was in the
context of breaking up a brawl or a subsequent
reaction to the situation ratherhan the cause of
the deaths inquestion. We are continuing tomake
inquines about thisto see whether amore conclu-
sive,final account can hegiven in whicheveryone
can have confidence. It does seem that the situa-
tion isa littlemorecomplex than someof theinitial
reports sourced inAmnesty and elsewhere.There
is absolutelynoreasontobelieve at this stage that
the deaths were as a result of direct military or
officia1action.
Questionwithout notice Of course,ifit isrevealed that human rights
abusesdid takeplace inthis context I will instruct
lndonesia our Ambassador to make representations to the
Indonesian Government, as we have done on nu-
(From Hnrisnrdof 6 November) merous previous occasions.We emphasised out
Senator Boume - Has the Minister for Foreign support for international observance of human
Affairs and Trade seen recent media reports of nghts, both generally in lndonesia and very spe-
cifically in the context of East Timor.
Indonesian troops raiding the Motael Roman 1willnotbeabletomeetGeneralTry Sutrisno
Catholic Church in Dili, EastTimor,at 2.30am on during tliis visit to make those points. Thediscus-
Monday,ZEOctoberthisyear,shooting twoyouths sions he ishaving are about more specificmilitary
dead and arresting between 20 and 40 others, matters ina general bilateral and regional context.
because of local opposition to lndonesian mle of 1am just not sure what points are heingmade,but
East Timor? What has been the Australian Gov- 1will take that up with Senator Ray and see what
ernment's response to a request from Amnesty might be possible in that respect.
-
THEMONTrlLY RECORDNOVEMBER-DECEMBER 1991 751Question without notice
East Timor The IndonesianAmbassador said in his dis-
cussions at DFAT this mnrning that the Indone-
(From Hatisnrdof 13November) sian Government is viewing yesterday's events
seriously and would undertake a thorough inves-
Dr Hewson - My question is directed to the Prime tigation. and that it regrets thedeaths which have
Minister. Can he informthe House ofthe acmraq occuned. Ambassador Siagian gave our officials
of media reports conceming thedeaths of up to 60 an account ofthe incident based on what he said
people in the East Timorcapital of Dili? When did Were preiiminary reports. He said that violence
the Government first become aware of the inci- had empted following an attack by demonstrators
dent? What steps has the Government taken to On an Indonesian army officer. We are not, of
establish the facts in this matter, and bas it rc+ CourSe. in a position t0 assess the accuracy of
sponded in any way? Did the Government make conflictingreportsof the incident. Wedowelcome
any inquiries into the shooting of two independ- the Indonesian Government's a~knowled~ment
ence activists in Dili two weeks ago? Does the of the seriousness of the situation and its drcision
Government believe that there are any links be- to ~"dertake an investigation.
tween those two deaths and the most recent inci- May 1say, as the honourable member !or the
dent? Northem Temtory said in his press release today,
that the Australian and lndonesian Governments
MrHawke-l theLeaderof theopposition haveboth worked hard -as, thinka]] honoUrable
for question' Iknow that On part nembenacknowledge-on thebasisof goodwill
but On the partOf
will beaveryudeepe meInbersabout the )nbath sides to build a responsible and beneficial
nagdy which unfO1d* yesterday' Pe are' Of .elationship between our two countfies, That rela-
course~asa~ovemment~ver~deepl~d by'shirbdhip is one to which not only my Govemment
~ttachesgreat importance; 1think that isan imper-
deplore theloss Ofinnocent life. While many de- ance çhared in the minds of honoUrable mem-
East Timor, we must MY, haSalways been an
tails remain unclear, it is now evident that an lrea of conCernin that relationShip. We have reç-
a~~alling nagd~ in which many )pised Indonesia's sovereigny over East Timor,
peofle have been kille&!The Indonesian Ambas- >ut we have constantly expressed our concern
"lied to the Department Of For- about human rights abuses there. We have con-
eign Affairs and Trade this
Australian AmbasSador in Jakarta bas been in- zovemmentntly dontotdeal with thistragedy openlysand
stmcted to cal1on the authorities there.
Through .naccordance with the international standards of
we are asking the ?espectfor human rights to which both countnes
Indonesian Govemment for urgent information jubscribe.
what exactl~ ha~~end in yesterday. 1think in that answer to the questionof the
We have urged the hdonesian G~~ernment to Leader of the Opposition 1 have gone to every
cOnduct a thorou& investigation and publish a mint except one. 1think he asked when were we
full and fachal acco-t of what happend and ïrst aware. %me information became available in
2hy. We have said that we expect that those
thelatter part or yesrer"ayi uiiucn=~u~.-ss.."~~,.'
responsible for breaches of human rights should AA~reports. 1think now 1have answered al1the
be appropriatelydealt with. particularç ofthequestion put bythe Leader ofthe
Honourable members - Hear, hear! Opposition.
Mr Hawke - 1have also asked Senator Evans to 1would hope that 1speak, and 1know 1do
discuss the matter with Indonesia's Foreign Min- speak, for members of this House again in
ister, Mr Alatas, in Seoul where they are bath deploring what has happened and urging the
attending the APEC ministerial meeting. An of- Govemmentof Indonesia, as 1havesaid inanswer
ficerof the Australian Embassy inJakarta ison bis to the Leader of the Opposition,togive us urgent
way to Dili. His inquiries will include investi@-
ing reports that an Australian aid worker was infomationaboutexa~tly whathas happened and
how it happened, and to conduct a thorough in-
present at the event and may have been injured. vestigation and publish a full and factual account
May 1interpolate in theanswer 1have prepared on of what happened and why. 1repeat that it would
this matter to say in respect of the specific part ofbe Our expectation that out of those processes
the Leader of the Opposition's question which those responsible for breaches of human rights
related to the possible connection with earlier should be appropriatelv dealt with. FinaIl!., 1say
events that we will see that the officer the con- to the Leader of the Opposition that, of course, 1
ducting those inquiries looks at that issue as well. \%rouldundertake to keep him informed of any
further informationthat nre have on this matter.Question without notice
East Timor
~
(From Hrinsnrdof 14 November)
Mr Gibson - 1address my question to the Prime
Minister. What response has the Government re- -
ceived to representations to the Indonesian Gov-
ernment about the tragedy in East Timor? What we wiiltake aclose interest in the rnanner in which
theinquiry into the shootings isconduded,as well
further information has come to light about these asin theconclusions and theactionwhich foilows.
events? Tuming to the second part of the question,
MrHawke - 1thank the honourable member for General Sutrisno is reported tohave told journal-
Moreton for hisquestion. 1am sure that al1mem- ists inJakarta yesterday that at the most 50people
bersof the House would be interested to know the 1
developments of which we are aware, and Icer- died intheincident. 1want tostressthat, whatever
tainly want to share those with the honourable the final nurnber of casualties, it isobviousthat an
member and with the House. appalling tragedy has occurred. It does not de-
1 pend on what the final number is; an appalliig
Since1spoke to the House yesterday on this tragedy has occurred.
issueourGovernmenthas discussed at very high Both General Moerdani and Mr Alatas have
levels with the Indonesian Government the ap- given us accounts of what occurred based on
palling events in Dili yesterday. Yesterday after- prelimina~ information whichisavailableto them.
noon our Ambassador inJakarta, Mr Phillip Flood, In addition, I am pleased to say that OurEmbassy
met General Moerdani, who is Acting Foreign official arrived in Dili yesterdayaftemoon and he
Minister as well as Ministerfor Defence and Secu- will stay in Dili for several days so that he can
rity, and Senator Evans had long talks in Seoul speak to as many people as possible about the
with Mr Alatas, the Foreign Minister for Indone- incident.It still is not possible to speak with any
sia. Inboth these discussions,Australia expressed certaintyabout many ofthedetails oftheincident.
the points that 1outlined to this House yesterday: The Indonesian authorities are continuing
wearedeeply disturbed by thetragedy in Diliand
deplore the lossof innocent life;wewant anurgent with their inquiries and are awaitingthe rehm of
a number ofkey personnel fromDili. The Indone-
account of what happened there; we want a full sian authorities have said that the incident was
inquiryintothecircumstancesand thatthosefound provoked by an attack on an Indonesianmilitary
responsible be appropriately dealt with. officer. Other witnesses claim that there was no
In their responses, General Moerdani and provocation. Wearecontinuingtoinvestigatethese
Mr Alatas expressed deep concern and regret at and other aspects of the incident,including with
what had occurred andunderstanding ofthestrong non-government sources. It would be unwise to
reaction that we in Australia have felt and have comment further until we have more detail.
expressed about those events in Dili. ln his long Nonetheless, 1hopeit will berecognisedthat
discussion with Senator Evans, Mr Alatas agreed wliatever provocation may have occurred - we
on the need for a full and internationallycredible do not say that any did; but it is important to say
inquiry and recognised the potential of the inci- that whatever provocation may haveoccurred, if
dent to undermine Indonesia's efforts to improve any - theresponse by theIndonesian military has
the situation in East Timor. The Commander of been tragicallyexcessive. 1believe, in sayingthat,
Indonesia's armed forces, General Sutnsno, has 1 would be reflecting the views not only of al1
publiclyexpressedhisregret at the deathsand he
has promised a thoroug6investigation. members of this House but of the people of this
country. Iconclude by saying this: after al1these
TheGovemment welcomes theseindications years itisclear thattheproblems ofEast Timor are
that Indonesia isrespondingpositivelytothe con- not going to be solved by militaryforce.,
cems that we and other members of the intema-
tionalcommunityhaveexpress edabout theevents .
ofTuesday. 1mustsaythat 1am disappointed that ,'
theywere not more fuily reflected in thestatement
releasedlastnightby thelndonesian Embassy. We
will, ofcourse, continue to press our concerns and our judgmerit, oii ail the ,i\,ail,ible eviiieiice so far.
not a matter of deliberate or calculated govern-
ment policv but rather represented sonieaherraiit
behaviourby asection oi the military. 1say "on al1
available evidence"; sh«~ild there emerge con-
trary evidence, of course tliat judgment \vould
need to be revised. But, as such, the situation is
quite distinct from that, for example, which oc-
curred in Tiananmen Square in China in 1989
which did reflect very deliberately acalculated act
of government policy. As such, Our concern has
been to ensure that the event in question, in al1its
horror, isfully and properly iiivestigated and that
appropriatefollow-upaction istaken. Again, there
is no basis for any assumption at this stage that
investigation will not be conducted on a proper
basis and that appropriate follow-up action will
not be taken. There is no basis for any such as-
sumption.
For that reason,theGovernment has resisted
taking action of any kind which would represent
a significant downgrading in the bilateral rela-
tionship, whether it takes the form of minimising
or deleting the very small amount of defence
cooperation activity which occurs at a sum of just
over $2m, or any form of trade sanctionwhether it
relates to defence exports or anything else, or any
formofcancellation ofvisits, orany form ofreduc-
tion of aid, which is quite substantial. Al1those
forms of bilateral response designed to express a
formal protest are in Ourjudgment quite inappro-
priate in the particular context that 1 have de-
scribed. What is appropriate is some more
constmctive form of Government action of the
kind that we will be debating later today. 1do not
want to spend time spelling that out. But it will
involve diplomatic action, through a visit in the
next few weeks to lndonesia by me, and other
related activity. That is the appropriate response.
Question withoutnotice There is simplv no basis for proceeding down the
particularpath that~enator Coulterhagdescribed,
Military aid and however much - 1repeat - we al1 regard the
awful incident which occurred in Timor on 12
exports to lndonesia November as thoroughly abhorrent.
- - Senator Coulter - Mr President, I wish to ask a
(From Hansard of 26 November) supplementary question. Does the Minister's an-
swer to my question mean that he agrees with Mr
SenatorCoulter - My question is directed to the Brian Loton that the events in East Timor are
"peripheral" to the more important considera-
Minister forForeign Affairs and Trade. In the light tions of 'Australia's relationships with Indonesia?
of the Dili massacre and other gross violations of
human rights of East Timorese by Indonesia since Senator Evans - No, it does not mean for a
1975,will theGovernment immediately cease al1 moment that 1regard the events in East Timor as
military aid and exports to Indonesia and the peripheral. However,it does mean that 1thinkthat
training of Indonesian military personnel thoseevents should belooked at in the perspective
Senator Evans-Theevents in Dili,appalling and that 1have described. In the absence of any evi-
abhorrent as they unquestionably were, were in denceat thisstageeither that they weredirectedas
758 THEMONTHLYRECORDNOVEMBER-DECEMBER 1991 amatterofsprçific govemment policyor that they
to respond positively to thisragedy which ha';
willbecovered up and not followed through inan occurred.When 1talk about a positive reaction
appropriate fashion, it is quite inappropriate fofromthe lndonesianGovernment, webelievethat
actionof the kind that Senator Coulter seems to that positiveresponserequires, without anyques-
have in mind to take place. Of course, human tion, an objective and thorough inquiry, and it
ri;hts issuesare notperipheral toour relationshipcertainly requires appropriate punishment for
:\--Indonesia or anybody else. those found responsible. We believe also that it
Of course, in particular, the human rights requiresa new momentum initiated by the Gov-
situation in East Timor is not peripheral. It has emment of Indonesia inachievinga resolution of
beenacentral focusofourinvolvement with Indo- the conflict in EastTimor.
nesia for very many years. We have made the 1do not avoid the fact inany way, may 1say
judgment, over many years, that the realities of to the honourable gentleman. that there isa con-
intemational life and the nature of the intema- tinuing conflict in East Timor. The Indonesian
tionalwillingness togodown thepathof recognis- Government. inOurview - which,as 1havesaid,
ing rights to self-determination and so on areso 1hy to put constmctively- has to seeka resolu-
iimited and the realities are such that the humantion of that continuing conflict and understand
r.clits of the Timorese people are better pursued
that the military solution isno solution. It willnot
tliroughactive encouragement and general inter- solve the continuing mnning sore and h.agedyof
national pressure upon Indonesia todo that. That East Tior in military terms. It must understand
is the course that we have followedso far. It has that. 1have said that the Indonesian Govemment
beena productive course over the last few years. must make renewed efforts not to meet just in
Tragically.however, that particular course came some formal tokenistic way but to sit down and
to a very unhappy and unçavoury halt with the talk with the people of East Timor, including the
events on 12November. It is going to bea rnatter people from the resistance.
ofjudgment as towhether thatcourseiscapableof We have made it absolutely clear that with-
heing recreated or whether some other course out such a positive respnse, and in partinikr if
iii~ivneed to be followed in the future. However, the inquiry tums out to be a whitewash, we will
it ispremature to make any such judgment at this then in those circumstances, 1say to the honour-
stage. able gentleman, have to consider steps to review
Ourpolicies toward Indonesia. Having made the
demand forthatinquiry-and 1thinkthedernand
Question without notice that 1made reflected the view ofevery member in
this House and would reflect the views of the
Indonesia: human rights overwhelming majorityoftheAustralia people-
iFrom Hnitsarrof27 November) we think itappropriatetosee what happens there,
but we will not sim~lv await the findi.,s of the
klr Mack - 1address my question to the Prime inquiry. The ~overhkent is actively exploring
Minister. In view of the Government's commit- ways, 1 can assure the honourable member, in
ment to human rights and the new world order, which wein Australia canurge, help and facilitate
has the Govemment instructed OurAmbassador thesort ofpositive respnse that 1havedexribed.
totheUnited Nations toraise thematter ofthe Dili The honourable gentleman will be aware
massacrein the United Nations; or does the Gov- that Senator Evans will travel to Indonesia next
emment intend to continue Australia's 16-year- month sperifically todiscuss these issueswith the
Indonesian Government. 1welcome the fact that
old policyof hypocrisy and appeasement? the Indonesian Governmenthas agreed tosuch a
Mi Hawke - 1do not accept the latter part of tvisit. We will meanwhile - and this goes even
questionasanappropriatedescriptionof thepolicy more directly to part, of the honourable gentle-
of this Government on this matter. 1believe that man's question - beexploring what role can be
the honourable gentleman would appreciate that played by the various organs of the United Na-
1should setout, therefore, what is theapproach oftions and we will support the International Com-
theGovemment. 1am more than happy todo that mittee of the Red Cross in its vital work in East
forhim. Tior.
ïhe essence of the approach that we intend FiUy, we wiUseek the agreement of the
to adopt in the wake of what is undoubtedly a Indonesian Government to establish an Austral-
tragedy is to use the close and effectiveworking ian consulate in Dili. In the meantime, the Aus-
relationships thatwehave built up withJakarta in tralia Ambassador in Jakarta, who 1believe has
recent years to urge the Indonesian Govemment been doinganoutstanding jobfor us inJakarta on
MONTHLY RECORD NOVEMBER-DECEMB 1ER91 759 ---.- - ---.
this issue, Liasbeen instructed to make early and Senator Evans - 1 have not seen the speciiic
regular visits to East Timor himself. article attributing those views to)ohn Wheeldon.
May 1conclude my answer to the honour- 1have heard John Wheeldon express a number of
ablegentleman by sayingthat the terrible tragedy views over the years, some of which 1have agree
of theSanta Cmz massacre does pose, we bel$ve, with; many more of which 1have had some con-
acrucialtest forlndonesia torespond ina humane, siderable difficulty in accepting at their immedi-
open and positive manner to the appalling out- atefacevalue. IamnotsurethatI wouldnecessarily
rage of the massacre itself and to the circum- accept at its immediate face value Mr Wheeldon's
stances in East Timor from which that massacre assessment of the course of events back in 1975.1
sprung. Webelieve - and 1hope that thehonour- knowthatisanallegation thathasbeenconstantly
able gentleman shares this view - that only by madeand repeated over the yearsabout Mr Whit-
doing so will lndonesia strengthen the trends of lam's attitudes on that issue. 1believe it is the case
economic and social and political development of that Mr Whitlam does not accept the accuracy ot
its nation, in which it rightly takes pride. those sorts of assertionsthat are constantly made
Ço 1hope, in that answer, that 1have indi- and 1would accordingly not premiseany answer
cated to thehonourablegentlemanthat wearenot on an acceptance of the accuracy of what the
simplycontent withexpressing outrage which, as honourablesenator says.So thatleads me to reject
1say, reflected the view of al1 honourable mem- as just inappropriateanysuggestion of still apply-
bers,but in specific, concrete ways weare trying to inganattitude which Iamnot prepared toconcede
direct the efforts of this nation and we will be . .
talking withothers - to try tosee what wecando eGsted even then.
Our attitude more generally to the annexa-
to meet the critical situation, and thatis the situation which occurred in 1975has been made very
tion of thepeople ofEastTimor, because the mith clear. It has been vigorously resisted and opposi-
is,as 1have said before and as 1repeat in conclu- tion tothat wasexpressed at the time by Australia
sion, it isclear thatthe Indonesian authorities and internationally and by both sides of politics. We
the Govemment have not won the hearts and still to this day regard it as a wrongful annexation
minds of the people of East Timor, and they have and totally improper behaviour. We have drawn
todo that. Ifwecan helpconstmctively in thatway the distinction, however, between the circum-
we will d- so. stances of the annexation and the subsequent
course of events which made it, in effect, a fait
accompli which was incapable of reversal.That is
Question without notice what led the then Liberal-Country Party Opposi-
tion to take the view it did about de jure recogni-
East Timor tion in 1979.That is what, amoiig other things, led
thisGovernment in 1985toconfirm that particular
(From Hansard of 27 November) view.
Senator Lees - My-question is directed to the
Minister for Foreign Affairs and Trade Has the Question without notice
Minister seen today's front page article of the
Adelaide Advertiserentitled 'Whitlam urgedTior East Timor
takeover: ex-Minister"? These accusations were
made by a former Minister, John Wheeldon, the (From Hansnrdof 28 November)
then Minister for SocialSecurityand aMinisterfor
Repahiation and Compensation in the Whitlam Senator Bourne - Has the Minister for Foreign
Governrnent. In case the Minister has not read it, Affairs and Trade seen reports that Indonesian
1will quote from the first colurnn: soldiers executed up to 80 people on 15 Novem-
ber, three days after the Santa Cruz cemetery
. TheWhitlamgovernmentswetly urgedIndonesia totake massacre; that troops shot dead 10 people on 17
He told tAdvertw:beforetheinvasioninDecember,1975November and a hirther seven people, including
1don'thaveany doubtwhatsoeverthatinthelastmonthofa one-year-old boy, on 18 November? Has the
the Whitlamgovemment in 1975.Australiawas activelyinister also seen reported comments that a wit-
involvedinurgingthelndonesiaw totakeoverEastTimor.ess to the 15November shootings will give evi-
.. dence only to a United Nations investigative
Specifically, 1 ask: is the present Govem- delegation if his safety can be guaranteed? Does
ment's policy stiil to encourage the Indonesian theMinisterbelieve thattheseallegations willalso
occupation of East Timor? be investigated by the cornmittee set up by the
760 THEMONTHLYRECORDNOVEMBER-DECEMBE1R 991 Question withoutnotice
lndonesia
(From Hn~rsnr rf 10 December)
lndonesian Govemment? If so, as this is an Indo-
nesian Govenunent committee of inquiry, will Senator Hill - Mv question is directed to the
witnessesgive evidence? Minister representing the Prime Minister.1referto
the comments made by former Prime Minister
Senator Evans - 1am aware of the various re- Whitlam about the Hawke Government's foreign
sponse containingallegations offurther killings.It
remains the case that we have no evidence from policy that PrimeMinister Hawke is "amedia and
any source to support or substantiate those re- poll driven politician" whose "performances for
ports. Officers from our Embassy in Jakarta have domestic consumption have made it impossible
been sent to East Timor to investigate further the for him to visitChina, Malaysia and Fiji"and that,
allegations in question. To date, they too have despite his speed on the phone to President Bush,
obtained no evidence in support. he is unable to directly contact the President of a
As to the question of investigations ofthese neighbouringcountry. 1ask:would Australia have
had more influencein relation to Indonesia if Mr
response by the national investigation commis- Hawkehad taken timeoff from hisgrandstanding
sion, 1hope that these response will be investi- on such issues as 1have mentioned -and South
gated by that body and that al1relevant witnesses Africa - to visit Indonesia at least once in the last
will be given achance to give evidenceto it. Our eight years?
Ambassador in Jakarta has made it clear to the
lndonesian authorities that we believe that these Senator Evans - It is a matter of fact that Gough
allegations of further killings should be properly Whitlam himself establislied a verygood relation-
andVfullyinvestigated. ship with the IndonesianGovernment and had a
.,,-.-*-".-Mini~--~, OurAmbassador in Ja- strong persona1 relationship with President Su-
karta and 1have already called on the Indonesian harto.That wasofgeneral benefit to Australia and
Government in various ways toconduct a full and toGough Whitlam'scredit. However, ithasalso to
credible inquiw that will lead to a publicly acces- beacknowledgedthat thereare limitstotheextent
sible report and, of course, thepunishment of any to which that kind of personal relationship can
wrongdoers. We see the establishment of that produce results.
national commission as being a positive first step Mr Whitlam, after all, has told us constantly
in that direction. In this regard, 1am encouraged that his own attitude towards the East Timorese
hv the reported remarks of the head of the com- question was one ofvery strong support foran act
mission Judge Djaelani, that the commission is of self-determination and very strong resistance
hoping to view foreign videos ofthe 12November -a very strong opposition - toany use of force
killings, will look into foreign and local press by Indonesia in East Timor. Manifestly, al1 the
response will seek to question eyewitnesses and persona1 relationships in the world that might
will go anywhere in Indonesia, if necessary, to have existed between Mr Whitlam and President
gather information.We will have to wait and see Suharto did not stop the annexation ofEastTimor
whether those undertakings, commitments and by Indonesia occumng without any act of self-
processes are satisfactory determination and with the use of force. 1think
that is a healthy corrective to any suggestion that
persona1relationships by themselves can achieve
miracles when otherdynamics are at work.
Prime Minister Hawke hirnself has shown
verystrong, veryclose, verysubstantialand avery
continuing persona1interest in the development
764 THEMONTHLYRECORDNOVEMBER-DECEMBER 19913. PARLIAMENT
iofthebilateral relationship.His very first overseas such areasas nuclearsafety. nuclear medicine and
ivisitas PrimeMinister included a visit to Indone- radiation protection.
Isia. There have been many instances since when
;he bas hiecito find in Program to take Indonesia is a party to the Nuclear Non-
; forward that personal relationship and, of course, ProliferationTreaty and, pursuant to its NPT ob-
,he does have another visit planned there for eariy ligations, haç a full scope çafeguards agreement
next year. th theIntemationalAtomicEner cgv-Agency
ering itsexisting andfuture nuclearactivities.The
We have madea veV substantial and vigor- agreement in question would not, if it were tobe
Ous attempts t0 build a broad-ranging negotiated to fmition -as 1 have said befo~eand
relations&p between the two counhies in a as,indeed. thearticle itself notes, despite the mis-
ety W~YS ]have Oftens~elt out on the record leading title- provide for commercial transfers
before. The nature and character of that relation- ~ ~ ~ ~ l iuranium to ],,donesia.
shipis indicated by the fact, 1guess, that notwith- The possibility of future commercial trans-
standing the which presently existsOver fersisforeshadowed in the draft agreement, but if
the East l'imorese question, the Indonesian Gov- such sales were proposed a bilateral safeguards
ernment very willing and rece~tive t0 agreement whichmeetsall Australia'ssafeguards
receive me visiting there next week - as 1wiil be
polis. requirementç would need to be in place,
dOing - when there willbe am~leO~~om<nit~ t0 and therehave ben no negotiationswith Indone-
canvass these issues in detail. sia on any such agreement. ln any event, lndone-
Meanwhile, thelndOnesianGovemment cari sia would not be operating a nuclear power plant
be in no dOubt at where Mr Hawke and before the early years of the next century at the
the Australian Cb~wnment generall~ stand on earliest, and 1am not awareofany currentIndone-
this issue as a result of a number of quite specificsian plans for the importation of uranium for
and quitesubstantialcontributions that havebeen power generation in that context, ~ i ~ ~ ~ ~oni ~ ~ ~
made to the debate on this subiect and a1s0, thenuclear~ooperationagreementarecontinuin~
course,thepersonalcommunitc hattioPnrime and an bas yet been finalised,
Minister has had with the Indonesian Ambassa- As 1have also said before, the Government
dor to Austra1ia;-Sabam Siagian.
will giveconsideration to thesteps itmighttake to
Question wifhouf notice review aspects of the bilateral relationship and
bilateralcontacts in the light of theoutcome of the
Indonesianinquiry into the killings in East Timor,
Indonesia but, as 1havealso said,itwould be quite inappro-
priate for us to assume at this stage that that
(From Hnriwrdof 10 December) inquiry will no be a credible one. It is in that
context that this proposed agreement could be
Senator Loosley - My question isdirected tothe looked at, like everything else, but at this stage
Miister for Foreign Affairs and made and also thereisnoreasonwhatsoevertoassumethat it will
relatestoAustralianrelationswithIndonesia. Has be.
the Minister seen the article in the Bulletinof 10
December entitled "Uranium Sales to Indonesia Finally, the article makes a series of allega-
Proposed"? 1sit he case that the Australian Gov- tions about the environmental and other risks of
emment has taken steps to facilitate the sale of Indonesia's nuclear power program, in respect of
which 1think the followingcomments need to be
Australian uranium to Indonesia? 1s the article made. Indonesia, which is facingdiminishing oil
based on correct assumptions? reserves, hasmadedecisionsabout theenergy mix
Senator Evans - 1have seen the article to whicli it needs to meet its future requirements on the
Senator Loosley refers. Theinformation which tlie basis of careful study. Australia respects Indone-
Btrllr~tirr'sinvestigat tirenealrasobetns sia's sovereign right to make sucli decisionsjust
on the public record for some time, not least as a as we have the sovereign riglit to make similar
result of answers which 1gave to questions in the decisions 1do not see suc11risks, as alleged, froni
Senatein Juneof this year.Therehavebeen discus- the tightly regulatediiuclear power program us-
sionssince late1990between Australianand Indo- ing the latest Western techiiology wliich Indone-
nesian officialsoti anuclearscienceand technology sia is planning, as niiytliing like as severe or as
cooperation agreenient. Tlie objective of such an -substantial as tliose ~rliicli12,ereiiicicntified in tlie
agreenient would be tr)enliance existing and mu- article,altli«ugh there is of course no room for
tually heiieficinl scientificand technological coop-complacency ahout nuclear de\~elopnieiits any-
eratioiiin the peaceful nuclear field, including wliere.
---
THE MONTHLY RECORDNOVEMBER-DECEMBER 1991 765 Finally, Australia, together with Indonesia
and others, is working through the International
Atomic Energy Agency to achieve the highest
safety and non-proliferation standards for peacë-
fulnuclearactivities whereverthoseactivities take
place.PARIIAMFN7
~p
Question without notice So long as we continue to make that jucig-
ment ahout the natureof the Dili massacre- that
lndonesia itwasnotanactofstatebut the productoiaberrant
beliaviour by a subgroup within the country - it
(From Hn~isnrrolf 11 December) would be utterly inappropriate for us to take an?
steps which would bring the bilateral relationship
Senator Vallentine - My question is addressed intodisrepair. Itwould certainly bequite inappro-
to the Minister for Foreign Affairs and Trade and priate for us to even contemplate taking a step so
it concerns East Timor. Does the Minister believe graveas to, ineffect, tearupa solemninternational
it is appropriate for him, or anyone else in his treaty entered into between two countries. That is
place, tosignanagreement this week with Indone- not a step the Government is prepared to take.
sia which will allow oil and gas exploration in the We have said that in the event that the inves-
TimorSea,comingasitdoes aomnlnth after the tigation presently under way should prove to be
massacre in Dili and the subsequent efforts of the manifestlyunsatisfactory - and, ofcourse, we al1
Indonesian military to cover up what happened hope very much that that will not be the case -
then we will be prepared to review the whole
there? Given the growing concern in the United nature of our relationship with Indonesia and the
States Congress and in Europe about Indonesia's bilateral contacts that are associated with the East
appalling record in East Timor since 1975and the
plea by the East Timorese delegation which met Timorquestion. 1have said that before, the Prime
with the Minister on 3December for Australia to Minister has said it, and that remains the case.
support East Timor's right to self-determination, In the meantime, we are actively pursuing a
does theGovemment now accept not only that it number of issues with the Indonesians and 1will,
is inappropriate to pursue the division of spoils of course, be pursuing these very directly and in
under the Timor Sea with Indonesia but also that very great detail next week during my visit there.
Australia should now move tousethegood offices One of those issues is the role of the United Na-
of the United Nations in the future of East Timor tions. We do believe it would be very appropriate
as Australia has supported and promoted recent indeed were the Secretary-General, in the exercise
of his good offices, to send an envoy or a repre-
United Nationsinitiativesin Yugoslavia andCam- sentative - perhaps one of the special rappor-
bodia? teurs on particularsubject matters who do exist in
Senator Evans-The agreement being signed this
week is very much pursuant to the treaty which the UN system - to enter into discussions with
already exists between lndonesia and Australia the Indonesian authorities on the conduct of the
on the Timor Gap question. It would be a very inquiry and perhaps participate in some support-
serious matter indeed were Australia not to pro- iveway inthat inquiry togiveadded confidencein
ceed withitsobligations under that existing treaty it to witnesses and, of course, to the international
community,and to assist in theprocessof discuss-
arrangement which was .freely entered into be- ing means of effective reconciliation between the
tween two sovereign countries and is pursuant to East Timor people and the Indonesian Govern-
whatwasobviously a de jure recognition by us- ment. There isgenuinely,we believe, arole for the
announced as such in 1979 and repeated by this United Nations in that respect. We hope very
Government in 1985-so faras Indonesia's sover- much that the Indonesian Government will see it
eignty over the border area in question is con- that way. That is one of the issues that 1will be
cerned.
Inthecircumstances ofthe present EastTimor actively pursuing in Jakarta next week
situation, it isthe case -as 1havemade clear on Senator Vallentine - Mr President, 1ask a sup
plementary question. 1put ittoSenator Evans that
numerousprevious occasions - thatthe Govem- the existing Timor Gap treaty should be put on
ment does not believe, on aiiy evidencepresently hold pending the present inquiry and the hoped
available tous, thatwhathappened there, deplor- forUnited Nations inquiry. 1further askwhether
able as it was, was something that could be con- Çenator Evans really expects ordinary citizens of
stmed as an act of state:a calculated or deliberate East Timor to come before that Indonesian Gov-
act oftheGovernment assuch. Assuch,it has tobe emrnent inquiry when they are threatened yet
regarded as quite distinct from the actions ofgov- again by Sutrisno, the commander of the armed
ernment whjch were involved in theTiananmen forces, who has said that after the inquiry is over
Square exercise in China or in the context of the
administration of the apartheid regime in South they will, and 1quote:
Africa. . .wipe out and uproot the disturbance movement
which has tainted theernment's dignity.
768 THEMONTHLYRECORDNOVEMBER-DECEMBER 1991 InSenator Evans'sestimation, isthisIndone-
SianGovernment inquiry worth anythingat ali?1s
it not completely lacking in credibility when citi-
zens ofEast Timor are scared for theirlives ifthey
dare to speak out to that inquiry?
Çenator Evans - It is not a matter of doing any-
thing assimpleasputting the treatyarrangements
on ice.Thereisaplan ofoperational activity;there
is a course of action that has been identified as
appropriate and indeed required under that par-
ticular treaty. The timfortaking that further step
hasarrived,and itwould, asIsay, bea very serious
actindeed and ineffectamount, as1understand it,
to abreach possibly ofour treaty obligations were
we not to proceed with those arrangements this
week.
As to the particular remarks attributed to
General Sutrisno this week, they are obviously
regrettable, if accurate. Icertainly am seeking an
opporîunity, and 1believe 1willhave the opportu-
nity, to meet with General Sutrisno when 1visit
Indonesia next week. 1will certainly be making
very clear to him and to other members of the
Government just how'regrettable and how mani-
festly unacceptahle wreregard the sentiments at-
tributed to him as being, and how unhappy those
sentiments are from the point of view of Indone-
sia's national interests and internationalreputa-
tion.
1 hope that, in an atmosphere of slightly
more restrained discussion tlian it is possible to
conduct at this distance in this currently rather
troubled en\rironnient, it will be possibleto make
some of those points effectively in a way that will
have some effect. 1can only try. ANNEX2
Resolutionof AustralianSenate,27 November 1991 on Dili killings
Motter of urgency
East Timor
(From Hnilsnrdof 26 November)
Thefollowing motion as moved by Senator Evans
was passed by the Senate.
The Senate (g) requests the Australian Government,
(a) expresses its deepest sympathy to the having regard to the full range of its policies
toward and bilateral contacts with Indonesia, to
people of East Timor for the appalling tragedy giveconsideration to thesteps which it might take
thev experienced with the Dili massacre of 12 to review these policies and contacts in the event
~ovember 1991;
(b) condemns in the strongest terms the re- that the Indonesian investigation and follow-up
sort by the Indonesian military to force which on action is unsatisfactory, for example the suspen-
every account was wholly excessive; sion of military training programs;
(c)regards as deeplyrepugnantthe reporteci (h) notes the importance of any Australian
Government response to the 12November massa-
comments oftheIndonesian Commander-inChief cre not only retlecting the deep concern of the
oii the day foiiowing the massacre that the "di wider Australian community but also being con-
ruptors ...had to be shot";
(d)notes the indonesian Governrnent's deci- sistent with Australia'sown national interestsand
sion to establisa National Commission of Inves- aboveall with the interestsand welfareof the East
tigation to investigate ail aspecofthe massacre, Timorew people;
and caiis upon it to take every necessary step to (1)calls, accordingly, upon the Government
ensure to thesatisfaction ofboth the East Timorese to explore al1possible constructive avenues for:
and international communities: (i) guaranteeing the effectiveness of the in-
(i)that the inquiry is "free, accurate, just andstigation process and its follow-up;
thorough", as promised; (iiachieving a peaceful resolution of the
(ii)that itisconducted fairly and impartially,ongoing conflict, including by reyursting the In-:
with al1witnesses guaranteed protection against donesian Government, in the Prime Minister's j
intimidation or retaliation; and words, to "sit down with the people of EastTimor j
(iii) that appropnate action is taken against including the resistance forces and tryand work
those found to be responsible for unlawful or out a program of achieving peaceable relations";
excessive acts; and
(e) further calls upon the Indonesian Gov- (iii)meeting the longer-term needsand aspi-
ernment: rations of the East Timorese people; and
(ito provide immediate access by humani- (k )n particular in these respects, the Senate
tanan and aidgroups, especially the International requests that:
Committeeof the Red Cross, to those wounded or (i)theForeignMinister makean early visitto
Indonesia to discuss al1aspects of the East Timor
detained as a result of the events of 12November situation, including the events of 12 November
and other recent incidents in East Timor, without and options for effective longer-term reconcilia- ,
any prejudice to those sovisited;
(ii) to respond promptly to requests for in- tion;
formation in relation to detained or missing per- (ii) active steps be taken to explore the role
sons about whom concem has been expressed which rnight now be played, with wide interna- ;
following the events of 12 November and other tional support, by the United Nations and its '
recent incidents; Secretary General;
(iii)to release al1political pnsoners detained (iii)strong supportbegiven to the roleof the
because of their opposition to the integration of International Commission of the Red Cross in
East Timor with Indonesia; and protecting and promoting human rights in East
(iv) to guarantee that individualswho ex- Timor, through continued representations to the 1
press peaceful opposition to the integration of Indonesian authonties and if possible targeted
East Timor with Indonesia arefreefrom intimida- financial assistance; and
tion, harassment or detention; (iv) approval be sought for the establish-
(f lequests the Govemment to insmict the ment of a resident Australian Consulate in Dili. !
Australian Ambassador to lndonesia to make an
early visit, and subsequentlyregulavisits, toEast
Timor to report fully on al1aspects of the present THEMONTHLY RECORDNOVEMBER.DECEMBER1991 75,
situation and the prosress of the National Corn-
missi011of In\.estigation; ANNEX3
Responseby theAustralianMinisterfor Foreign Affairsto theoutcome of the
trialof XananaGusmao,24 May 1993
I
1062 SENATE Mon&y, 24 May 1993
criminalcode.of seditionand rcbellionand,
under the emergencylaw, of paaession of
fim. He has bcm sentmccd to life im-
prisonment.He was notchargcd under the
anti-subversionlaw.whichcarricdthe death
penaltyand ,lthoughthenrram ofFmcedid
carry thaipenalty.it was not sought by the
prosecution.nie lmgth of the life sentnice
has not bcm specifid, but it should not be
asnimcd thatit means for tenn of one's
natural life. In otcase in indonesia life i
impnsonment has mcant around 15 to20 i
y- althoughwithcrimesagainstthe State
there havebcm --it must be acknow-
lcdgcd-in whichthishas bcm excetdcd.
Given Xanana'ssclf-acbiowledgcdmle as
the leader of the armcd mistance in East
rimor and the uncontestednatureof the key
elementsof theevidence,ithasto besaidthat
that verdictwasnotsurprising.in fact.whm
compared with the charges laid and the
sentenceshandeddownin trials of0th- xr-
callcdrebelsin Indonesia.Xanana'ssentence i
isin factIss scverc. His defmce lawyer.
Sudjono,has now said that Xananais not
appcaling the untace but will be =-ing
pmidmtial clmmcy.
1 have alrrady madeclcar on a numberof
occasions and1do soagain.myhopeandthe
Ausmlian Govanmmt's hopethat the Indo-
nesian authoritieswill se the handling of i
Xanana'scaw as an occasion forachieving ;
longer tmn ncpciliation in Eaa Timor,
includingthroughsuchstrategiesas a major
rcduction in the militpresence,a major !
economic development strategy, further
mgnition of Eas timor'sdistinctivecultur-
al identityand possiblysome grcaterdegrcc i
of autonomy.It wouldobviouslybe of grrat !
help in achieving that reconciliation if i
Xanana Gusmao Xanana'ssentencewm to be substantially
Senator GUES-My questionisdirceted duŒd bypresidmtialclcmmcyandwewill
to the Miniaer for ForeiAffairs.Whalis be making that point in our funher discus-
the Govcrnment'snsponse to the verdictin sions with theindonsian Govanment.
the triai ofetilinleadeXanana Gmao?
Was the trial conductcd fairly and was As to the condua of the trial. while in
Xanana givm adcquatcoppommitiestomount tmns of the siandardstha i e and othm
a defmce? would ideallyliketSIXapplid, thm wm
a number of spsific problcms with ihe
Senator GARETH EVANS-Xanana overall faimcss of the trial. Howevcr.they
Gusmao was found guilty las Fnday, 21 should no1beovmtatcd. Noneof them was
May, under article 106 of the Indonesian unique to themanagementof thicase norMonday. 24May 1993 SENATE
were theyinour judgmmt,so scvercorso
dtcp in nam as to have fundammtally
impaircd the pmcss chat is pmvided for
underthe Indonesian Criminal Rocedures
Code.Overall.courtproceedingswereopen
todiplomaticobsemrs. to local andforcign
human righu organisations, includingAsia
Watch,the ICI and a UNobservntatwas
a welanne dcvelopmmt.
Howevn. it was regrettabtha tertain
individual obsmq including Australia's
RodneyLewis, wm p~evmtedfromaîtmd- .
ing,effcctivelyat althantoobas at
dl wereadminedto the trisessio ons12
and 17May.It isalso a man- for conceni
ihatXananawzs bamd by courtauthoritis
from nading out in full hisowprcpami
dcfmce statmmt. ïhe criminal code of
Indonesia does proviciefor accuscdto
exacise the right of a full and finalsay and
shouldbcallowedto nad the full statemmt.
ûn the question oflegal np"tation,i1
isnot clearagainthat Xananawasgivm the
lawyerofhi choice.but itdoscem at the
same time generally accepted that defmce
lawyer Sudjonodid makediligentand com-
prehensiveefforts in mouniingthe defmce
caseH.e ma Xanana five tims bcfore the
triabiganandhad no difficultaccm to
him dunng the trial. 1
Fmlly. onthe question of his trcammj
dMng dctmtion andtriawe han no infor-
mationtoouggestthathcwasillacatcd, and
WC haveb closcly following tcase
throughourmission inJakamfromthestart1
includinthroughcontacwith a numberof 1
independentnon-govemmmtorganisation1.'
mnain confidentof the asarrancsgivai to
me atthe highestlenlsof theIndonedi
Govcmmmt thatXananawould notbc ill-1
aatcd inhtion. 1have,howcvn. ha- ,
edouremLwsyinJalrariatotaiscwiththe t
InQricsiaauthoritithnecd formtinuing
ofutheRedsCrosshtoXanana and to other1
dctainees. I ANNEX-4
1977 USstatementon recognitionof East Timor
HUMANRIGHTS INEAST TIMOR
HEARINGS
REMRnt=
SUBCO~IiUI'ITENE
1STERS:iTIOXA ORGASIZATIOSS
OP7EB
COUTTEE ON
ISTERYATION AELLATIONS
HOUG E PBEPBE8ENTA'IWE8
SISETY-FIFTIf COSGBESS
FIRXRIZYSIOS
IgrlttheutICnmmioaInte?npllloo# STATEMENTOF GEORGEH. ALDRICH,DEPUTY LEGAL ADVISER,
DESARTMEATOF STATE
hlr. ~Ir,r>n~crrh.lr.Clinii.iiinii1 nm nppenring hforc you this morii-
in in ics1)onso to the. c1inii:innii'nrequest for Our testimony r:i tlic
lc nl nspccts of tlicEtist Tiiiior piablein.
indonesin's inilitnry iiiterveiitioii in Enst Timor iri Dceember 1975,
niid tlio sul)scqiieiit iiicoi~porntion of Enst Tiinor iiito Iri:!oiicsin in
,Jiily 1976,iniscd n iiiiiiibei of dificiilt legnl qticstioiis. 'i'hescqtiest.ioiis
h~,\.hielntcd to 1,crmissible iiws of force.uiidcr the U.N. Chnrtcr niicl
use,; of US.-fiii~iiislie~l eqiiil)iiiciitiiiirlcin1)plicablc U.S. 1nw niid
ngicenicnts bct.\\-ceii tlicTiiiiterl Stntcs niid Iiidoiicsin, ns ~ell ns tlic
riglit of t.licpcol)lo of Knst Siiiior to self-dctcriniiintion.
In nn idcnl sit:iintioii. tlic procrss of dccoloniznt,ioii of Enst Tirrior
would Iinro piocredctl iii nioiclcily fnsliioii ~vitl:I'ortiignl prel>iii~iiig
foi nn e~ily ti.niisfv:.of I>O\YCIpi~rsiiniittn n plcl)isc.itcor otlier nct of
self-detcrniirintion by tlie people of Enst Tiinor coniliictcd in nn ntmos-
phcre of ficc po1itic:nlnctivitv. Tiiifortiinatcly, tlic sitiintion did iiot,
develol) tlint.wsy, niid Poitu&l. preocciipicd 'witli politicnl iiplicnvni
nt home niid in its ~2fi.icniicolonirs. nbnndoncd in fnct itr,adininistin-
t,ion of the t.erritory in riugust 19115 nnd lcft tlic stiiigglc to tlic 1rni.-
rinz locnl fnct.ions.
From thnt periocl iintil nt. lenst Soveml~r 1975, Indoriesin i,ecog-
nized Portupnl ns ivtniiiinn legnl ni~tliority nnd responsibilitr for tlic
future of Enst Tinior. lpnl& Iicld disciissioiis witli son;; of tlic
Timorcsc pnrtirs. In lnte Xovembcr 1975, Fretclin, n fnctioii wliicli
had nind control of the fornicr Portiigiiesc nrscnnl aiid. consc-
iient y. militnry priinncv over iiiiicli of tlic.tciritory of Enst Tiiiior,
%ednrcd itself the goornment of nn independent "Democrntic
Repiil)lic of Ek5t Tiiiior." This dcclnrrrtion IYRS not rirccptcd hy ineiii-
bers of the othrr frictions in Enst Tiinor nnd vigoroiis figliting cori-
tiniied. Tndonrsin thcn intcrrencd militnrily.
Tlic irnrnediatc Iqnl question poscd to tlic United Stntcs b? Iiitlo-
ncsia's intorrcntioii in East. Tiinor wns wlictlie,r nny iise by Tndoiicsin .
in Enst.Tiinor of US.-fi~riiislied military eqiiipmciit ,platcd Indonesin
in siibst.nntin1 violntioii of its ngierinents witli thc IJnitrd Stntcs
gorcrning t.hc iiso of sii(~1ieqiiipmc?iit. Tlirsc ncrrcmciits Iind I~ecn
ontcrcd into in irn Irmentntioii of t.hc provisions of the Foreign As-
siRtanco Act and r;P
for whicli mich ociuipment coiild befiirnishcd by grnnt orhe purposchv snle to
Indonesia. Esscntinlly, the npplicnhlc ngrccmr~ts limitrd iiw'of U.S.-
furnished qiiipment to interna1 w1irit-y nnd Icgitirnnte mlf-defnnsc,
nnd the ~tatiites prccludrd fiirnishing of new items of nssistruicewliilo
nny suhtnntinl violation continud.
1The nrllrlla toolonpto hcincludedin thrrmrd. Re h'rw Yorknnirrrmlh Jolirnnof
IntcrnntlonaIn- and PolItIcu. r8,.ulntcr 1878artlcle enlltled "Rlght otSelf-Da-
termlnrtionIn Ver7Smnll Plncrr." Tliis iiinttr\Y~S consiclcred nitliiii tlic Dcpnrtiiicnt of State in liglit
of al1 prevniliiig circumstnrices, iiicludiiig tlie difficulty of cleterrnin-
iiistlie relevniit fncts as to the cstcnt and nntiire ofuse of any U.S.
eqliipiiient and tlie urgent coiisideration being given tatlie uestion
in t.lic United Sntioiis. IITc11adin miiid specificnlly U.X. 8ecuritiv
Coiiricil Resoliition 381of Dccciriber 22, 1975, \vhicli cnlled iipon a 1
stiites to respect tlic riglit of tlie pcoplc of East Tiriior to self-deter-
Tiirioi n spccinl i~cpi~esciit.ato rnnkc an on-tlie-spot assessinent and
to cstnblish coiit.nctwitli nll iiitcrested parties in order to iiisiire iin-
plcii~ciitntioii of thc icsolutioiIt wns decided tlint it \voiild be ap-
prol)iitite iii these ciiciiiiist~~ic~sto drfri- fiii.tlic?rsnles under the
foi.ci-iinii1itni.y snlm l)ro:yi.nniniid gfsiits uiider the nulitnry assist-
ciiiceprogrnin v-itli respect.to Iiidoiirsin aiid to clefcr foreign iiiilitary
snlcs fiiinnci.ii~for Tiidoiiesinpriiding ffurtlier clnrification and devel-
opriiciitsIr1vieivof tliiç actionitir7nnot necessnr for 11tomnbe any
dctci~iiiiiint~iwhctlier tlicre lind ben aiiy "su tstantial violation"
witliiii tlie mcniiiiig of tlic InIr.
This sitiintion contiiiiird iintil the end of June 1976,a period of ap-
piosimntcly 6 ,inonths. ;2t thnt tiine, for a varicty of rensons, me de-
cided to resume oiir milit,nry assistnnce and snles programs to Indo-
riesin.Tlic lcgal bais for encling the siispension iiicluded congressional
niitlioi~iznt.ioiiof militai:) assistniico for Iiitloiirsin-ffiscnl years
1976 aiirl 1977-.?iirl tlie defrnt of a proposrd anieiidinent iirpi~g tt
ciDiiriiig t.he pcriod from December 1975,uiitil Jiine 1976,itns \vastlie.
policy of tlie United States to favor .aresolution of the prvblem of
East Timor by the Timorcse and otlier concerned parties t:lieinselves.
Ive slip ~ortedSeci1ri.t.iCoiiiicil Resol~it38- a1s well asU.N. General
-1sseni\v Raolution '3485 of Decemkr 12, 1975, also calling for re-
spect foc tlie right of self-determiiiation of tlio people o'fEast Timor.
Ive reniaincd hopeiul tliat tlie report of tlie special x.epresentative of
tlic Secretary General would offer a proinking course but due to a
niiinber of factors, it was inconclusive and again called on the parties
to work out a solution. N'e abstnincd on Security Council Resolution
369 of April 22, 1976,largely because tlie Security Couiicil did not ac-
cept aii amendirient which woiild have achiowledged steps taken by
Iiidoiiesia to begin mithdrnmal of its forces frorn East .T~mor,bot at
the saine tirne the U.?. Rt.preseiitative reafirnied "our siipport of the
riOn July 1lie,!1976, Indonesia 'formally incorpontcdelf-dEast Timor as"
its 27th province. This follomed uiianimous approvnl by the People's
Couiicil of En$; Timor on May 31,1976, of a ctition asking Indonesia
to acccpt inte~~~ntion of East Timor into In d )nes... Amrdin
foimntion me have received from Indonesian authorities, the 8 etplin'-s
Coiiiicil consistcd of 28 members, the mnjority of mhom were sald to
liave been tribal cliiefs and otlicr trnditionnl leaders selected tlirough
nieetiiigs of locnl leaders, n-ith tlie reprcscntntives.from Dili, the capi-
tal city said to have been chosen by direct clections. 'Arenctually know
vrrv Iittlc n.boiitt,lieselcctioii proces for tlicse (Icleptes, althoiigli tho
proccss itself took place nt ntiine of niilitnry occiipntion by Indonesin
diiriiig h hi ccoiisidcrnblc figlit.ing wns hl1 g'.cLingii. .a Tlie U.S. Government did not question the incorporation of Eut
'Timor .into Indonesia nt the tinie. This did iiot rcprescnt n le al judg-
ment of those responsible for our policy in tlie area7lhat t eintegration
\vas an accom lished fact, that th0 realities of the situation moiilcl
not be changetfby our opposition to mhat hnd occiirred, and that such
n policy mould not scrve our best jnterests in linlit of t,heimportance
of our relations with Indonesin. It was for tiese reasons thrtt the.
United Statcs vot.edagninstU.N. GenerndAssembly Recolution 31/53
of Docemher 1, 1976,mhich rejected tlie incor.poriition of EnstTimor
medinte steps t,oirnplement its earlier resoliitions to seciire exercise by
tlie people of East Timor of their rights of self-determination.
1 thiii.1;it is important to st.ate1do not viem U.S. policy in the
case of East Timor as sett:ing a legal precedent for futiirec,nses. The
'fact is tliat decisions whether or not to trent an.entit,y as pnrt of mi-
other eiitity are most often taken ns oliticnl decisions on the basis of
al1 the circiimstnnces of t.he pnrtynr case in vh~t is perceived ns
the n2.tionn.lintcrrst,. An impoi-tant factor to bnconsidered. obvioiisly
promote rr,spect for hiiman riglits, iiicluding thc right of self-deter-
mination. FIowevcr, tlie qiiestion remaiiis mhat Fe.nre required to do if
this right is iiot obsorved as we.might. mish nsitiiatioii in which me
believe t:lintefforts bv ilsto change the situation ~oiild be futile, prob-
iihlr woiild not be of anv liclp to the people concerned, nncl \~lxild
iniurious to ot,her national interests of the United States. Ure do not
1)clievetliat me nre rquired in such circiimsta.nces to refraifront
actIn the case of East Timor, the policy ji~d~ment 11nsbeen made by
this adiniiiistration, as stated by Deputy Assistant Secret,nry Onkley
last Mnrch, thnt our interests woiil<lnot be served by seekinp to re-
open tlie question of Indonesian riniiesation of Enst Timor. Instead,
mehave ciirected our effortto urging Indonesia to institute a humnne
administrntion in East Timor aiid to accept rinimpartial ins ection of
its administration by the Inte,rnntional Committee of the cCi'oss. It
is believed thnt these measures represent the most effectivè wny we-
prcsent circumstanccs.n rights of the inhabitants of E~st.Timor in the
Tliank you, Mr. Chairman.
3,f.FRASER Th.ank YOU, Mr. Aldrich.
Mr. Meeker. ,.. ANNEX5
1982USstatementon recognitionof East Timor
-- - ---VELOPM I-ENT STIMOR
HEARING
Ilmame
SI'BC'03I)fOSE
..\SI.\S\OmeIFiAFFAIRS
C'O,\IJIITT0s FOREIG AXFFm
IIOUSE OFREPRESENTATNES
SISF.17'-SEVCOSCRFSS
SIXIS~-loS
:6"
'9>IL: STATEMENTOF HON. JOHNH. HOLDRIDGE, ASSISTANT
SECRETARYOF ST,ATEFOR EASTASIANAND PACIFICAFFAIRS
Mr. HOLDRIDGE T.hank you very much, Mr. Chairman.
It is a pleasure to be before you and the other members of the
comrnittee. 1 am pleased to have this opportunity to discuss with
-ou the situation in East Timor. This is the fifth time the State De-
partrnent has testified before the House of Representatives on this
specific subject since March 1977.
The most recent such occasion was in June 1980, before the Sub-
committee on International Operations.
In addition, 1 commented on the situation in East Timor as part
of a joint hearing on human rights in East Asia, held in November
I9Fl by your subcommittee and the Human Rights and Interna-
tional Organizations Subcommittee.
It is important as we examine this complex situation in East
Timor that we give due note both to the progress that has been
achieved in nieeting the humanitarian needs of the Timorese
people as weI1as to the problems that rernain.
U.S. POLICY RECARDING EAST TIMOR
We don't want to disguise the fact there are problems and that
these need to be addressed on a continuing bais. U.S. policy with
regard to East Timor has been consistent through three adminis-
trations. We accept the incorporation of East Timor into Indonesia.
without recognizing that a valid act of self-determination has taken
place there.
We simply say itis impossit,le and impractical to turn back the
clock. Our efforts now are concentrated on doing what we can to
irnprove the welfare of the Tirnorese people. Particularly, we have
found that progress can be achieved only by working closely with
the Inrionesian Government and with the international organiza-
tions active in East Timor.
In addition to our concern regarding East Timor. there are a
number of other important elements in our relationship with Indo-
nesia.
1 wou!dn't want to submerge these ir. our concerns about the sit-
uation in East Timor. We value highly our cooperative relationship
with Indonesia and expect it to continue.
In fact, we are looking forward to the visit of President Suharto
of Indonesia next month.
Let me proceed by outlining our view of current conditions in
East Timor.
THE CURRENT FOOD AND HEALTH SITUATION
Any consideration of the current food and health situation in
East Timor must begin by acknowledging the major relief effort
undertaken jointly by the Indonesian Government, international agencies and the United States and other donors frorn mid-1979 to
early 1981.
By April 1981,the involved international agencies concluded that
the ernergency situation had been overcome and that the long-term
needs of the Tirnorese people could best be met by shifting empha-
sis from relief to developrnent.
In the last year, there have been reports that the food situation
was again deteriorating and East Timor was facing the threat of
famine.
Since the econoniy and agricultural base of East Timor are ex-
trernely fragile. the ilnited States has been quick to look into any
reports of food shortages.
Based on our monitoring. it is our view that East Timor is not
now facing a farninc situation, nor the threat of famine in the near
future.
However, in sorne isolated areas, particularly in the southeast
portion of the island, there are food shortages. These areas dernand
and are apparently receiving irnrnediate attention.
Serious heaith problems rernain in East Timor. Malaria is a par-
ticularly acute piobleni. affecting large nurnbers of the population.
The Indonesian Governrnent and the international agencies have
ongoing programs to address both food and health problems, and
we are supportive of those.
THE >III.ITARS SlTCATlOS
With regard to the nilitary situation. Fretilin, the Tirnorese
guerrilla group does not seriously threaten overall Indonesian au-
thority.
Fretilin does. however. retain the capability to ccnduct occasion-
al. lirnited operations. Its operations continue to result in sorne
Indonesian and Fretiiin casualties.
There are unconfirrned reports of a recent upsurge in Fretilin ac-
tivity. perhaps designed for propaganda impact in advance of the
upcoming UNGA session. This is a characteristic we have noted in
past years.
It is noteworthy that the people of East Timor turncd out in
large numbers in May of this year tû participate for the first time
in Indonesian national elections.
The elections in the province were carried out without disrup
tion, in a cornpletely penceful atrnosphere.
We rernain concerned about reports of abuses in connection with
rnilitary operations. One of the more extreme charges made is that
Indonesian forces have engaged in a systernatic effort to kill inno-
cent Timorese. We have found no evidence to support such a
charge.
There are also recurring charges of disappearances and rnistreat-
ment of Timorese. While any abuse of hurnan rights is deplorable,
the nurnber of allegations of physical rnistreatrnent and disappear-
ance has declined since the period of fiercest figf.ting between Indo-
nesia and Fretilin forces in 1976-78.
Nevertheles. we are continuing to follow allegations of rnilitary
abuses of this sort. LIETAINEES
Another pocitive development is that there is more information
available to the international community cin the numbers and con-
national access permitted by the Governmentult ofof Indonesia to ther-
principal places of detention: Comarca Prison in Dili and Atauro
IsAn ICRCf thteam visited East Timor in February to begin a pro-
gram of prison visitation and visited both sites.
Most persons suspected by the Indonesian Government of sup
porting. or sympathizing with Fretilin are detained on Atauro
IsThe ICRC team. on its February trip. spent 1 days on Atauro and
reported 8.7:37 persons had been temporarily relocated ta the
island. Most of these people had been sent to Atauro during mili-
tary sweepoperations in 1981
We have no reliable informdtion on the precise. current popula-
tion on Atauro. but have no reason to believe it. has dramatically
changed in recent months.
A recent En~bassy visitor indicated conditions on Atauro have
improved considerably since the ICRC began its prison visitation
program in February.
L2t me now report on what is being done to address the humani-
tarian and economic development problems that remain in East
Timor.
By far the most active and important role is being undertaken by
the Government of Indonesia itself. which has significantly expand-
ed itsdevelopment ac!ivities in East Timor each year since 1976.
This Indonesian effort is even more striking when viewed in the
context of that country's overall development needs. Although
faced in each of its 26 far-flung Provinces with enormous socioeco-
nomic problems. the GO1 has given top development priority to
East Timor. This year it will spend more per capita on develop
ment in East Timor than in any other Province.
It also must be noted that the Government's development effort
must. b:; necessitu. be concentrated at this stage on fundamental
infrastructure projzcts. since there were almost no basic facilities
at the time of the Portuguese withdrawal.
1might add I have gone into this question of what the Indone
sian Government is doing in greater detail in my prepared state-
ment.
ROLE OF INTERNATIONAL ORGANIWTIONS
Supplementing the Indonesian Government efforts. the interna-
tional organizations have made a major contribution to improving
the welfare of the Timorese people. Going about their tasks in a
nonpolitical. nonpo!emical way. thry have succeeded where a con-
frontational approach w~uld surely have failed.
The International Committee of the FM Cross [ICRC] has five
ongoing activities in East Timor. First. it is continuing to provide technical assistance !Othe Indonesian Red Cross in support of food
and health programs in East Timor.
Second, ICRC is serving as the interrnediary for farnily reunifica-
tion of persons with irnrnediate relatives in Portugal and else-
where.
Third. it has adrninistered a tracing prograrn to assist Timorese.
both in Timor and abroad. to locate rnissing or displaced relatives.
Fourth. as aiready noted. in February 1982. the ICRC began a
prograrn of prison visitations.
Finally. food and rnedical supplies providcd through ICRC since
March to detainees on Atauro have had a significant positive effect
on the conditions of detention. This prograrn is continuing.
Catholic Relief Services [CRS]. uhich had the largest prograrn in
East Timor duriiig the international relief effort. has turned itsat-
tention to aqricultciral develaprnent.
1: ic adrninistering a year. S.5million river basin developrnent
plaii.
X third international agency. the Cnited Sstions International
Childrens' Emergency Fund iCSICEF]. hac recently begun work in
East Timor.
USICEF will uork with the Indonesian Red Cross in providing
prirnary health care senices to the uornen and ck,ildren in seven
villages where health conditions are pocrest.
.AI1 three of the agencies listed above have expatriate staff in
Djakarta uho travel .freq.c;üer.tly to kt Timor and enjoy gocd
acces? throughout the province.
In addition to the international aqency prorrarns. the U.S.
Xgency for International Developmen: :CS.4ID] is uorking directly
with the Indonesian Covernment in irnplernenting a malaria con-
t,rol program unerr a S3.6 million agreement sjgned in rnid-19Pn to
cover the entire icland nfTimor. both E'ast and IVest.
\vhen the project i;-cornplete. an estirnated -1.percent of the pop
ulation of Ki\.-Tinior uill'kw prntected against malaria.
A(-t't'Tn< EAST TI.MOR
.Another nreri O:' US. ~,oricrrn is acctx~cto Eait Tinior IVhile in.
ternational acc.es 117 Ea~t Timor remnini lirnited. there h,u iwn
major irnprovement in recent rnonths
In addition to n continuation of the irnproved accw to Eaqt
Tinior enjoyed by CS. mis..ion and intrrnational agency personnel.
there hac: been an increase in the nurnber of journalists and dipl*
rnatic personnel allwed 10 visit the island. .4rnong these have been
a CS. acadernic proup. including Stanley Roth of Chairrnan Solan'
staff in Sovernber l9hi: former Australian Prime >finister Cough
Whitlarn in February of this year. journalists frorn the Philadel-
phia Inquirer: Xsian Wall Street Journal: and Reuten News
Agency in May June: niembers of the Djakarta diplornatic commu-
nitu in early .4upst: and aii Arnerican Jesuit official in late
August 1952.
Indeed. one of the rasons for the recent flurry of press articles
on Eaqt Timor is precisely because the Indonesian Gover~ment has
been increasingly u.illing to let outsiders into the Province !O take
a look at the situation firsthand Increased access to East Timor is one of the best exarnples of
how quiet 'efforts are rnost effective in addressing !ndonesian
hurnan rights cor zerns.
Our Ernbassy in .Jakarta also has followed closely the rnatter of
farnily reunioqs and repatriation of Portugese citizens from East
Tiinor. the mîjority of whorn have been proceeding for residence
either in Tortuga! or Australia.
Progress is being made. but details have not generally been made
public.
In conclusion. the record shows progress in rnany areas.
The Indonesian Goverriment has dernonstrated a willingness to
corne to grips with sorne of the most disturbing problems. as evi-
denced by incr~.tsed international access. the beginning of the
prison visitrtiion program. and the entry of USlCEF into the prov-
ince.
\Ve will continue to follow events in Eact Timor close!'. taking
everv appropriate opportunit! to continue our quiet diaiog with
~ndonesians who are capable of influcncing developments in the
province and f0st~rir.s the kind of hurnanitarian progress which is
Our comrrion goal.
1 want to sa!. .\Ir. Chairrnan. in conclusion. that we are not
(roing to rninirnize the fact that problerns continue to exist in East
Timor. ! arn siniply snying that we are doing Our best through Our
o\vn effrti. tt)set. :ha! what we can do to irnprove this situation.
Th;ir;k yot: rery nuch
r flt~ldrid~t.'~i>rep;ircd cta<cnlrnt follo\vs:: ANNEX6
NewZealandstatementonEastTimor, 1978
United Natiuns Vote on EastTimor
New Zealand abstainedon the United Nations
resoiution about EastTimor because ilfeelsthat
the situation thereis irreversible.
The Minisrer of ForeignAffairs saidihis today
in answer to questionsfrom the press.
A draft resolution on East Timor was
a~provedon Tuesdayby the Fourrh Commiitee
of the United Nations Ceneral Assembly by a
vote of55io 29with 42abstentions.Among the
other counrries abstaininp from the vote were
Briiain, Canada,Fiji.and WesternSamoa.
"New Zealand does no1question the central
point of theresolulion- that thepeopleof East
Timor havetherighi to decidetheir oin future".
said the Minisier. "Our reservationsrelateto the
reference in the drafi resolution to the
'legiiimacy' of the st-.ggleof th. p.opleof East
Timor
t ne inlormation we havereceivedfrom Our
Ambassadorin Jakarta. and from oiher sources,
has convincedthe Covernmentthar the situation
in East Timor is irreversibie. We could not in
good consciencesupport a resolution that would
clearly encourageihose peopleto continue their .
struggle when we believe ihat they cannot
succeed." (Press sraiernenrfrorn the Minisreof
Foreign AJfairs,RRI .on. B.E. T~Jboys, 7 &c.
1978.) ANNEX 7
Text of solution adopted by CommissiononHumanRights, 1993
Economic and Social LIXIWD
Council
E/CP1.4/1993!L.-1IRev.l
10 Harch 1993
Original: EHGLISH
COnnISSION ON HUW RICBTS
Porty-ninth seeaion
Agenda item 12
QUESTION OF THE VIOLATION OF HUHAN RIGiiTSAND NNOAWEBTAL FREEDOHS
IN ANY PARr OF THE W0iU.D.WITH PARTICUlAR REFERENCE 10 COLONISL
AND OTHER DEPENüENT WWRIES MD TERRITORIES
Anaola. Belaium*. Brszil.Costa Rica. Denmark*. Finland,
P Ln
Ueehtenstein*. Luxembourac. Wozambiwe*. NetherlandaL
&&rVaV* Portuaal. Soain-. Sueden*.Svitrerland*,
and PNtcd States of Bmerica: drift resolution
1993/... situation in East Tlmor
The Commission on Buman Riahw,
Guided by the Universal Declaration of Human Righta,the Xnrernational
Covenanto on Human Rights and the universally acceptedrules af international
1aw.
gearina in min4 the statPmenr on the eieuatian of hunanrightm in
East Timor agreed by consensus by the Conmission on Human Rights at:&ta
forty-eighth sesai0n (seeE/W.4/1992/84. para. 457) tollowing the vFolent
incidenc of 12 November 1991 in Dili,
= In accordance with rule 69, paragraph 3,of the rules of procedure of
the funcrional commissions of the Eeonomic and Social Couneil. Recallinq resolution 1992120 of 27 Auguct 1992 of the Sub<omnieeion on
Premntion of Discrimination and Protection of Uinorities.
Gravelv concerned at continuing allegations OP serious human rights
violation6 and noting vith coneern in this context the reports of the Special
Rapporteur on the question of torture [E/Cti.4/1993/261,,of the Special
Rapporteur on ertrajudicial, sumraary or arbitrary executions (~/~~.4/1993/46)
and ofthe Working Group on Enfarced or Involuntary DFsappearances
(E/CN-4/1993/25),
Bearina in mind the Body of Principles for the Protection of Al1 Persona
under Any Fonv of Detention or Imprisonllent approved by the General Assembly
in ite resoluti?n 431173 of 9 Deeember 1988 and the ~rincipies on the
Sffettive Prevention and Investigation of Extra-legal, Arbitruy and Summary
Executions, endoreed by the General AsPeably in ita resalution 441162 of
15 Oecember 1989,
Takina nota ai the information that the Goverment Of fndeneeia hae
prwided the Commission an actions it has taken during the gaet year,
Welcaninq the recent accese to East Timor to hiirnan rights orga-izatione
as vell a8 te some other relevant international observers, but remaining
dfsappinted that such ascess is still frequently denied,
Ravina exami- the report of the Secretary-Generai on the si~uation
in Base Timor (E/CIs.4/1993/49),
1. ExDresses its deeB cancern a'c the reporrs of continuing human
righte violations in East Timor;
2. Recau chat the Cotunission has conunended th0 decialon of the
Goverment of Indonesia to set up an inwiry commission but regrets that the
Indonesian Lnvesrigation into the actions of the mtmbers of ite security
personnel on 12 November 1991, from uhich resulted loss of llfe, injuries
and dieappearances, failed to clearly identify al1 those responsible for theae
actiona:
3. . itetthe 1aheR of Lnformsclon about the cumber
of people killed on 12 November 1991 and a+ the persons still unaccounted for
and urges the Goverment of Indonesis to account fully for those atill miesing
since 12 irovember 1991; 4. .- the disparity in the severity of sentences impoaed on those
civilians no: indicred for violent activities - oh0 should have bean seleaaed
witbout delay - on the one hanü. and to the military involved in the violent
incident, an the other;
5. cal13 unan the Goverment of Indonesiato honour fully ite
conmitmente undertaken in the staternent on the situation of human rights in
East Timor, agzeed by conseneueby the Comi8sion on numan Rights at its
forty-eighth session;
6. Also calls upon the Gove.enrtuco entIndoneaiata encure that al1 the
fast Simorese in custody, includingmain public figures. be treated humaneLy
and withtheir righte fully respeeted, that al1trials be fair, just, public
and recognize the right to proper legal representation,in aecorbce with
international humanitarianLaw, and tnat those not involvec3in v~oient
activities be released wlthout delay;
7. the greator access zecently grantd by the Indonesian
authorities to human rights and bumanitarianorganizations,and calls upon
the Indonesian authoritiesto expand this access furkher;
B. Eneorirases..onc. the Indonesian authoritiesto take the
riecessazy'@teps tu implsmentthe receamendbtionspresented by the Special
Sapportaur an the question of tortura in his report (~/C.~.4/199 117/~dd;1)
follwing- hi3 vieit to Indonrsiaand East Timor and to keep the Special
Rapporteur inforeed of the pragress made tooards their implemencation;
9. , 'm the Goverrunentof Indonesiato ;,>vitethe Special.Rapporteur
on tbe question of torture, the Special Rapporteur en extrajudicial, aummq'
or arbitrary executions,the Working Graup on ArbitraryDetention and the
Working Group on Enfozcedar InvoluntaryDisappearancesto visit East Timr
d to facilitate the discharge of their mandates;
10. Welcomes the agreementgiven by the Goverment of Indanesia to the
proposal of the Secretary-Generalfor a nw visit to Indoncsia andEaet Timor
by his Persona1 Envoy in the coming s~nths, and invitee the secretaiy-General
ta consider transmittingthe full reports of Wr. Wako's previou8 and next
visit to the Commission onRuman Righte;
the reaumptionof talks on the question of East Thor
11.
and encourages the Secrotary-Generalto continue hi9 goad offices for
achieving a just, comgrehensiveand internationallyacceptable ~ettlement
of the question of East ~.hor: 12. Decides to consider the situation in East Trmar 1% its fritieth
seseion on the basis of the reporcs of the Special Rapporteur6 and Working
Croups and that of Che Secretary-General, which uould Lnclude an analytical
compilation of al1 intonnatlon received from, -a, Covei-nte,
intergovernmantaland non-gcvernmentalorganlrations. A30
ANNEX 8
ExtractfromAustrdia'sfirstretotheHumanRightsCommittee,pursuant
toArticle40oftheICCPR
INTERNATIONALCOVENANTON CIVILAND POLITICALRIGHTS
Report By
AUSTRAL1A
TO THE HUU RIGIITSCObfMITTEE
Pursuant to Article40(l)(a)
November 1981 ARTICLE 1
61. Australia is fully committed to the principles
enunciated in this Article. Domestically, the people of
Australia have exercised their right of determination by
uniting asone people in a Federal Commonwealthunder the Crown
of the United Kingdom of Great Britain and (Northern) Ireland
(see Part 1. paragraphs 3-9 and the reference in Australia's
instrument of ratification to Articles 2 and 50). In
constitutional terms, the principal landmarks are the
institution of responsible government for the six States
pursuant to the Inperial Australian Colonies Government Act
1850 (the colonies adopted new Constitutions between 1855 and
1889) and the later federationof the sixcolonies in a Federal
Commonwealth. The Cûmmonwealthof Australia came into being on
1 January 1901 under the authority ofthe Imperial Commonwealth
sf Australia Constitution Act 1900. Under the Constitutiûn,
which is embodied in the Imperial Act, the Governor-General of
Australia, as the representative of the Crown, is aole tû
exercise al1 the powers of thè Crown in Australia. In
institutional terms. Australia self-government invûlvedas
indicated in Part 1, freely elected Parliaments, responsible
executive g0vernmer.f.an inaependent judiciary and the ruie of
law.
62. 'At the international level, Australia has
traditionally beer. a strûng supporter of the right t3
self-determinatisn. In relation to Australia's depenaent
territories,see Pêrt 1, paragraphs 9-16, which cûntain a note
of the discharging of Australia's obligations in relation to
its Territories. The note refers ts Australia's former
Territory of Papua and trust Territory of New Guinea; ta
Australia's conf~rrr~ittyo its obligations under Article 73(e;
of the United NatisnsCharter in relation to the Territory of
Cocos (Keeling)Islands;and to its role recently in furthering
the goal 'ofcomplete interna1 self-government in relation t,?
the Northern Territ~ryand Nûrfslk Island. (a.) every person, whether private citizen or government
official, is equally subject to the law; and
(b) the government must operate through and within the
. law - in particular. government officials must have
legal authority for their actions and are subject to
effective legal sanction if they contravene the law.
The reliance on the rule of law means that the rights of
individuals are guaranteed by ordinary legal remédies without
the need for forma1 constitutional guarantees.
8. Federal States are required by Article 50 of the
Covenant (in conjunction with' Article 2) to ensure that its
provisions extend equally to al1 parts of that State. Australia
is a federal system in which each jurisdiction has legislative,
executive and judicial powers and responsibilities which can
be, and are, exercised in different ways. This will be dealt
with at points throughout this report. and especially in the
section dealing with the reference in Australia's instrument of
ratification. to Articles 2 and 50. Suffice it to Say at this
stage that Australia will comply with the Covenant in
accordance with the undertaking given at ratification. A
federal State offers protections to the rights of individuals
which may not be available in a unitary State. For example, if
a right is not fully recognised in one jurisdiction, the others
exert an influence on it; and the existence of the separate
jurisdictions enables more detailed attention to be given to
the problems of individuals within those jurisdictions.
9. It is appropriate to conclude this section of the
report with a more detailed reference to the various
Territories associated with the Commonwealth. Under section 122
of the Constitution, the Commonwealth Parliament has plenary
power to make laws for any Australian Territories, and the
Commonwealth is accordingly responsible for those Territories.
Their laws have been reviewed as part of the Commonwealth-State
exercise associated with ratification of the Covenant and
reference is made to their laws in Part II as appropriate. The
Territories include the Northern Territory, already referredto, and the Australian Capital Territory, both located on
mainland Australia. There are also four inhabited Territories
ex ternal to the mainland - the Australian Antarctic Terri tory,
Norfolk Island. Christmas Island and the Cocos (Keeling)
Islands. The law in each of these Territories is largely law
derived from a jurisdiction other than the Commonwealth.
Commonwealth law does not apply to these Territories unless
expressly stated to do so. Australia discharged the obligations
it incurred as Administering Authority for the former Trust
Territory of New Guinea and of the former Territory of Papua
when the nation of Papua New Guinea became independent. on
16 September 1975.
10. Under the Northern Territory (Self-Government) Act
and associated legislation, the Northern Territory has been
established with separate political. representative and
administrative institutions, with its own powers to levy
taxation and with its own system of courts. Accordingly, the
Northern territory is. for the purposes of the Covenant, to be
treated as a separate entity. akin to a State (see
paragraph 3).
11. The Australian Capital Territory, in which is located
the national capital Canberra. and the seat of government, is a
non-self-governing mainland Territory. Its law is in part that
applying generally throughout Australia (Commonwealth law); in
part is contained in special Commonwealth laws applying to the
Territory, e.g. the Seat of Government (Administration) Act
1910; in part is derived from New South Wales law (from whose
territory the Territory was excised) prior to 1911; and in part
is contained in Ordinances 'made' by the Governor-General. who.
in effect, legislates for the Territory under section 12 of the
Seat of Government (Administration) Act. The bulk of the law in
this Territory is, in fact. contained in Ordinances.
12. Australia accepted the Australian Antarctic Territory
as territory under the authority of the Commonwealth on
24 August 1936. By virtue of the Australian Antartic TerritoryAct 1954, the laws of the Australian Capital Territory
-
generally apply and the Supreme Court of the Australian Capital
Territory has jurisdiction in that. Territory. Commonwealth laws
do not apply unless expresçed to extend there. Australia is
aïs0 a party to the 13 power Antarctic Treaty of 1959,
concluded to ensure the use of the Antarctic for peaceful
purposes.
13. The Norfolk Island Act 1979 equipS Norfolk Island
with responsible legislative and executive government to enable
it to run its own affairs to the greatest practicable extent.
The Act established a framework for Norfolk Island to achieve,
over a period of time, interna1 self-government as a Territory
under the authority of the Commonwealth. The law in force in
Norfolk Island consists of laws and statutes in force in
England on 25 July 1828; certain laws enacted by the Governor
of Norfolk Island before the Island became a Territory of the
~ommonwealth; Commonwealth Acts applicable to Norfolk Island
and enac-tments of the Territory. Since August 1979, the
Legislatiye Assembly of Norfolk Island has exercised power,
with the assent of the Administrator or the Governor-General,
as the case may be, to make laws. called "Acts", for ~orfjlk
Island. The courts of the Territory function in accordance with
British and Australian court procedures.
14. The goverment of the Territory of Christmas Island
is provided for by the the Christmas Island Act 1958 which is
the basis of the Territory's administrative, legislative and
judicial system. Under the Act, the lawS in force in the Colony
sf Christmas Island immediately before the date of transfer of
sovereignty to Australia were continued in force in the
Territory, subject to their alteration, amendment or repeal by
Ordinances made under the provisions of the Act. These laws
comprise tlie laws of the Colony of Singapore specified in the
Christmas Island Order in Council 1957 (Imperia1 Statutory
Instrument 1957, No. 2166) together with certain Regulations
made by the Administrator of the ColOny sf Christmas Island
during the period 1 January to 30 SeptemSer 1958 under powers
conferred by section 9 of that Order in Council. Under the Act,the power to make Ordinances for the peace, order and good
government of the Territory is vested in the Governor-General
of the Commonwealth of Australia.. Al1 Ordinances so made must
be tabled. in the Commonwealth Parliament and are subject to
disallowance in part or whole by either House of Parliament.
Generally. Commonwealth legislation does not extend to the
Territory unless expressed to do so. The courts of the
Terri tory function in accordance with British and Australian
court procedures.
15. The Territory of Cocos (Keeling) Islands is a
non-self-governing territory to which Chapter XI of the United
Nations Charter app1ies.A~ required under Article 73(3) of the
Charter, Australia has regularly submitted reports on the
administration of the Territory to the United Nations
Secretary-General for consideration by the Special Committee on
the Situation with Regard to the Implementation of the
Declaration on the Granting of Independence to Colonial
Countries and Peoples (Committee of Twenty-Four). A mission of
the Committee of 24 visited Cocos in July 1980 and expressed
general satisfaction on the situation in the Territory in its
subsequent report to the Committee and, through it, to the
United Nations General Assembly.
16. The basis of the Territory's administrative,
legislative and judicial system is the Cocos (Keeling) Islands
Act 1955. The laws of the Colony of Singapore in force in the
-
Islands immediately before transfer of sovereignty to Australia
on 23 November 1955, were continued in force by the Act. Those
laws included some 300 Ordinances. In addition to conferring on
him the general power to. make Ordinances for the peace. order
and good government of the Territory, the Act also gave pûwer
to the Governor-General to amend or repeal any of the.1aws
continued in force by the Act. The Singapore Ordinances
Application Ordinance 1979, made by the Governor-General on
20 December 1979, had the effect of repealing a11 Singapore
Ordinances in force in the Territory and applying the
provisions of 95 selected Singapore Ordinances only (as
specified in the Schedules to the Ordinance) to be laws of. th'eTerritory as on and from 27 December 1979. Ordinances are
required to be tabled in the Commonwealth Parliament and are
subject to disallowance in part .or whole by the Parliament.
Generally, Commonwealth legislation does not apply to the
Territory unless expressed to do so. Currently, some 100
Commonwealth ~cts specify that they apply. in whole or in part,
to the Territory. The courts in the Territory function in
accordance with British and Australian court procedures
(although the institutions. custorns and usages of the Malay
residents are given, general protection under section 18 of the
Cocos (Keeling) Islands Act). A37
ANNEX9
Extractfromresponse by AustraliatoquestionsonitsfîrstreporttotheHuman
RightsCommittee,pursuanttoArticle40of theICCPR
Distr .
GEt2ERAL
ENCLISH
Original: FRENCH
,.. ..... . . .
.... . ..
lIUi%i: RICHTS C31.34ITTLE
SiJI+;hRY RECORDOF THE 407th HEETINû
held at the Palais des Nations, Ceneva,
on'~hursday, 28 October 1982, et 10.30 a.m.
,'.
Chairmsn : fi. HAVROkRATIS
CONTENTS
Consideration of reports submitted by.States Partiss unaer article JO of the'
Covenant (continued)
Australia (continuad)
. .
This record issubjact to correction.
corrections should bz suasittad in one of the working' lanjiuagcç. Thcy should
bc set forth in 2 mernorendurn and elso incorporatad in a copy of the record. They
should bc sent within one wcek ofthe datr! of'this docunfntto thc Officia1 Accords
Editing Section, room E.bl05, Palais d2s Nation's, Czncva. , .
Any corr~ctions to the rocords of thc public meetings of'the Comolittce at this
bession vil1 br consolidnted in a sin& corriganditïï to bc issued shortly after,the
end of th2 s*ssion. . . . .
..
. .
.. .? . .
. . . .,
;E.82-1,1745 Tvrrine to the cueçtions irliicfi h-d been put in connection if th specific
j2.
=ticles of the Covenznt , he noteci that I,ustrdie'ç donc~tic position on matters
relating to zrticle 1 had given rise to little discussion. A question had,
Iioimver, been asked concerning the regirne in AustrZLia's ürinhzbited territories.
In that connectinn he s;id that, cle?sl>, no are2 of Xïstrelian territory vas
outside the legislative, adninistrative and jubcid rcfine in force.
Replying to questions concornine Iiustri;iia's position on cïrrent intern~tionel.
33.
situations invol.iing questions of' selî-Leterminâtion, uià in pzrticulzr that of
Nanibiz 2nd the Pdestinian people, he szid that hustrilia vas actively codtted
to the acfiievement of the rieht of peoplef to self-detednation. I-s ôn ective
maber of the Cohttea of 24, éustr&licr'lia& played an *,ortant role in the
United Nations kecolorization actirities, %.$th pzrtic~l~ ewhasis on the
South Pacific. As a member of the Uiu.ted Natiorifi Co&ssion on Hmui Rights, it
had suppcrteù e n~inber of resolutions reaZfirming the ri@ cf peoples to self-
detencinstion, fcr exaïple in Afghanistan u4d Ksmpuchez. 'lis 2 member of the
Uniteà I<+ticns Cowcil for Namibia, lxustr,diô had imrke? consistently toeacds
securing for the Ranibien peaple the full exercise of their ri@ to self-àetelmriiiatio
which was at present denied the5.1 kustralia reEc@zeà the Council for Namibia
as the legal adaiinistering authority of the territory until its people were brou&t
to independence. It fÿlly supported the efforts of the Contact Group aimed at
the s;>eedy implementation of Secürity Council resolution 415. 1.4oi-egenefally,
~hustralia'e long-standing opposition to apartheid vas vell kno<m. Australie ha&'
condemnod huma rights tliolations in socthen Hfrica in z variety of United Nations
forums d'vas comeitteà to tlie eraàication of the abhorrent system of apartheid.
, . . ;-.Sc . cJC.L.~.- -CL..i-..iiii in il;? !...1f Z~pt
~:?:rte$ L~t.1:Isr&ci'c. :-iglit.tz c:<~:;. l.!ir!:lr:st.îr:-c :.>c=<trr.
. 2: fe,:. Gq:c e~.r~i:~: y!:? ?..J:-T-.,~'-t-,l~;,-:-;-,.:.iC],t. oc t~.,~
i--r-rç.. ...--. .r...f~1.
in : e s . tI,& L...itc ,u - c S . , . . fic<:,=;:le;
the. 1-zit,i.:~+.e ?i,:;tc oE ;!,c b~]~~:i~i::?:,, z21E=>+5 D>,,t
Icr6~1, ]~r€-f~ilicr~~i:; riT:Xc IIC:~@X!:, t'h0:!i0 'dn::tr;tpri2 tl:~ sirl?ifire:;ce cf 2 naticne?
lic:;;.lrn3 f'cr i Gispersefi ;PLT~C. . J!W..t7'~i.~.- O.~~i.a?r~r~r-:fie3 1c.n; rtcoc::ize?
p:,?Siicel .;ettiei?in? cf t!.,r?r?is:inicr, iiniic ïi*-:tr21 ta 7sz-c .-teiiii:,;; i?,
lki- I,Lic',c'l- :ct. L:. ..!:.:::c.::'-:~cLE~:
1 2 : : y 2 clni. i::] ip;7 : .r:i.s . :.c.t;;~ pcy~]:~<. t.,,+,2pisG Lz,
- -L.. *; ';ke r.s-s ocTc.,
cstifi;~n ci\:ili~?;~ i.. = ~~;c.- caz:;? li; .;cZ-..~,~lr.ji, i.::?;.~;:i~]~ G.^:TE?~~:~~~ k.;25
t.xpresst.6 its c-:::., ?r.ri !:25 CC~:~~~-,~~ t,:,s.c yecyzr:ibls,
. .
55. Tiie 1.u~trili~r. Gov~=r~c?Y :?,;pe5 tLat u:;s:- .z-. Ge~a;..:l's lcedêr?:*i. t!;~
Frocesses of rec~ncilittinn irr Lci;onrn ::cilla 5e ~n~czraf.25 en6 t-52% tjie Lchznese
C-ovcrrn~nt WCÜ~L LE zbie tc. reecsert its soverei~rty thrr~ghcut its tei~ito~..
fio!~frm:eni: telieved
t!wt al1 fcreigil fcrces $hoal6 be a:it?.dr~:.:n froc LeDanon am3 '
i;rlcome3 current c.2 orts .i@i:ird s tbzt- en?. At rsjther lev-1, J.~~strolia ziiiltained. i::
willingness t.0 assist il? rec.onstric4"icn c.f Lc5;nor.. It ho6 a:t.reac~ crintribute6
.SA 2,338 nillior. in eizcrCe"r.>7 relief ~ssi~tence <LI;tilt. victiris of the ccnîlict. and hôB
co?~~ittc? $:A 10 rlilicm in ri-cnnstriicti~ri ei6, o'i. ieast h~lf to ne .char~?;.lled tkrsueh
b:,IFICD. REPORT
-
OF THI:
HUMAN RIGHTSCOM'II?TEE I
I
GENERAL ASSEMBLY
OFFICIALRECOFIDS~I1lRT.i EI(~LI7,
SUPPLEMENTNo. 40 (A/38/40)
UNITED NATIONS
New York. 1983 139. A8 regards article1 of the Co nant, mention vas -de of a statement in the
report to the effect that thepeopït of Australia had exercised t'rir right to
self-determinationby uniting as one people in a Federal cammnwealth and
informatimivas requestedon the manner in which the Aboriginals.who were already
present vhen the first European settlers arriver3in 1788. had participatedin that
exetcise. Noting, according to the report, that Australia had traditionallybeen a
strong supporter of the right to self-determination,it ras asked whether that
included recognitionof the right to self-determinationof the Palestinianpeople
and the peoples of southernAfrica andwhether Australfa had taken legislativeand
administrativeaction to prevent Australian corporations,coapanies and banks from
assisting the apartheid régime in South Africa. In this connection, it ras asked
whether the Government's policy of self-managementfor the AustralianTerritories
was considered a first stageon the road to self-determination.
140. In relation to article 2 of the Covenant, it was pointed out that, in
~0untries such as Australia. in which the avenant was not embodied in internai
lcgislation, which did not have a comparable bill of rights and in which the legal
SYStem vaa based on the concept of the rule of law, where 'the rights of
individuals are guaranteed by crdinary legal remedies without the need for formal
constitutionalguaranteesD, ae mentioned in the report, it vas more dift'icultto
prove that the Covenant waseffectively implementedand that particular importance
abould. therefore. be attached to the cornmitment undertaken in this article net
mlY to 'respect' but also to 'ensure. the rights recognized in the Covenant.
Noting also that the rules derived frm decisions of courts formed Part of the law
of the land. members asked how the Covenantwas made accessible to judges, what
arrangements had been madeto ensure that judges would act in accordancewith the
obligations which Australia had asawned under internationallaw and whether
Australia was considering the incorporationof the provisions of the Covenantin
domestic laW Or, failing that, the adoption of a Pederal Bill of Rights Or a Bill
of Rights for each of the constituentStates.
141. Noting the existence in Australia of many bodies and authorities competent to
deal with human rights and referring to the various writs mentioned in the report,
members wondered whether acomn law system, such as that of Australia,provided
any genuine or effective remedies to ensure the enjoyment of al1 the rights
enunciated in the Covenant and suggested thatan unwritten presumption of freedom
ras not sufficient. More informationwas needed, particularly on whether the
Australian Human Rights Commission was competent to receive cornplaints frW
individualswhose rights had alleqedly beenviolated and, if so, hm manY
~OWlaintS it had received and whatthe nature of its arbitration fun~tionwasl
jwhat recommendatlonshad beenmade by that Commission with iiview to the zim3~dment
160. In connection with article 1 of tbe Covenant, the representativestated that
his country supported the right of the Palestinians to a homelandr tbat it had
*orked consistentlytwards securing for the Namibian People the full exerciseof
their right to selfdetermination and that it had condemned hwnan rights violations
in southern Africa and was committed to the eradicationof a~artheid. ANNEX10
ExtractfrornAustralia'ssecondrepototheHurnanRightsCornmittee,
pursuantto Article40of the ICCPR
AUSTRALIA'S SECOND REPORT
UNDER ARTICLE 40 OF THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
Fehruary 19@714. Jervis Bay: The Jervis 3sy Territorywas excis2C
frornNew South Wales in 1915. The intention,never re2lizsf
in fact, was to provide Canberra,an inland city, with a
seaport. The Jervis aay Territory is deernedto forn ?art of
the Australian Capital Territory (by virtue of the Jervis 32.7
Drritorv Acce~tance 1915), so that the laws in force in
the AustralianCapital Territory apply also to the Jervis Bay
Territory.
15. BystralianAntarcticTerritorv: Australiaacceptêd
the Australian Antarctic Territory as a Territory under its
authorityon 24 ~ugust 1936. Australia isalso a party to the
AntarcticTreaty of 1959, concluded to ensure the use of the
~ntarcticfor peacefuï purPoses.
16. By virtue of the BystralianAntarcticTerritorv.n .ct
1954, 'thelaws of the AustralianCapital Territory generally
apply and the supréme Court of the AustralianCapital
Territoryhas-jurisdictionin the Australian Antarctic
Territory. Commonwealthlaws (other than Australian Capital
Territory laws) do not.applyunless expressedto extend to the
Territory. The Governor-Generalmay also make Ordinancesfor
the Territorywhich are to be tabled in the Australian
Parliamentand may be subjectto disallowanceby the
Parliament.
17. Norfolk Ism: The Norfolk Island Act 1979 equips
the small Territoryof Norfolk Islandwith responsible
legislativeand executivegovernmentto enable it to run its
own affairs to the greatestp4acticable extent. The Act
established a frameworkfor Norfolk Island to achieve,over a
aeriod of time, interna1self-governmentas a~erritory under
the authorityof the AustralianGovernrnent.18. The lau in force in NorfolkIslâ2d consistsof iaws
ând statutesin force in England on25 Jüly 1828; certain ?E.JS
enactéd bythe Governorof Norfolk Island before theIsland
becane anAustralianTerritory;federalActs applicaSleto
Norfolk Islandand.enactmentsof the Territory. Since
August 1979, theLegislativeAssemblyof orf fsllnk has
exercisedpower, with the assent of the Administratoror the
~overnor-~eneral,as the case may be, fo makQ laws (called
"Acts')for Norfolk Island. The courts of the Territory
function in accordancewith Australian courtprocedures.
19. Çhristmas Is.la&: The Territoryof Christmas Island
has a populationof approximately3,000. The governmentof
the Territoryof ChristmasIsland is provided for by the
Wistmas IslandAct 1958 which is the basis of the
Territory'sadministrative,legislativeand judicialsystem.
ünder the Act, certain of the laws in force in the Coloof
Christmas Islandimrnediatelybefore the dateof transferof
sovereigntyto Australiawere continued inforce in the
Territory,subject to their alteratioa,amendment orrepealby
Ordinancesmade under the provisionsof thatAct. These laws
comprise thelaws of the Colony of Singapore specifiein the
Çhristnas~slandOrder in Council 1957 (Imperia1Statutory
Instrument1957, No. 2166). Under the Christmas IslanAct,
the power to make ~rdinancesfor the peaco, order and good
Sovernmentof the Territory is vested in the Australian
Governor-General.Al1 Ordinances so made mustbe tabled in
the AustralianParliamentand are subjectto disallowance in
?art or in whole by either House of Parliament. Generally,
federal legislationdoes not extend to the Territoryunless
expressed-todo so. The Christmas IslandABminiStratiqn
(MiscellaneousAmendments)Act 1984 provided forthe extension
of a number ofsignificant Commonwealthlaws to the Territory
includingthe CommonwealthElectoral,Act,Health legislation
and the SocialSecurityAct. The courts of the ~erritory
functionin accordancewith Australiancourt procedures.20. cocos (:<eolina)Islands: The Territory 0: CÎCûS
(Keeling) Islands has a population of approxiactely i,800.
The Territory was a non-self-governing territory to wnich
Chapter XI of the United Nations Charter applie?. The
Australian Government has continuedto impiement policies
which pro.motethe political, social, economic and educational
advancement of-the Cocos Malay people on the Cocos (Keeling)
Islands. These policies ,culminatedin an Act of
Self-Determinationheld on 6 April 1984, observed by a United
Nations Visiting Mission. Threeoptions were placed before
the Cocos Malay people - independence, free association, and
integration as provided for in Resolution 1541(XV) adopted by
the United Nations General Assernblyin 1960. The Cocos Malay
community decidedto integrate with Australia.
21. Following the Act of Self Determination the federal
Parliament passed the Çoros (Keelina) Islands
Self-Determinationttents) m A ct 1984 which
extende& a number of Commonwealth laws to the Territory. The
extension of those laws had .theeffect, amongst other things,
of giving the cocos people full voting r.ightsin federal
elections and access to federal social security pensions and
benefits. The Territory's administrative,legislative and
judicial system remained unchanged. ..
22. The basis of the Territory's administrative,
legislative and judicial system is the Çocos (Keeling) Islan2s
ETÇ 1955. The laws of the Colony of Singapore in force in the
Islands, immediately before transfer of sovereiçnty to
Australia on 23 Novernber1955, were continued in force by the
Act. Those laws included some 300 Ordinances. In addition to
conferring on the Governor-Ceneral the power to make
Ordinances for the peace, order and good government of the
Territory, the Act also gave to the Governor-Generalthe power
to amend or repeal any of the laws continued in force by the
Act. The Sinaanore Ordinances Auolication Ordinance 1979, xade by the Governor-Generalon 20 Decernber1979, ha8 the
effect of repeali-ng al1 SingaporeOrdinancesin force in the
Territoryand applying the provisionsof 95 selected Singapz:e
Ordinances only(a-s specified in the Schedulesto the
Ordinance) to be laws of the Territory as on and from
27 December 1979. NewOrdinances are requiredto be tabled in
the Australian Parliament and are subject to disallowancein
part or whole by the Parliament. Commonwealth laws only apply
in the Territorywhere expressly stated to do so, or by
necessary implication.The courts in the Territory function
in accordancewith Australian courtprocedures (although the
institutions,customs and usages of the Malay residentsare
given generalprotectionunder section 18 of the Cocos
(Keeling)IslandsAct).
23. abited Territorls: The law in the Territory
of Ashmore and Cartier Islandsis currentlythe law that was
in force in the Northern Territory immediatelyprior to-1 July.
1978. However, the m e and Cartier Islm
ment Act 1985 will ha& the effect,when brought into
operation,of bringing intoforce in theTerritoryof Ashmore
and Cartier Islands the lawsof the NorthernTerritory as
amended from time to time.
At the same time it is proposed to
exclude the applicationof a large number of the Northern
Territory laws that would otherwise apply inthe Territoryof
Ashmore and Cartier Islandsbut which are inappropriateto
that Territory,leaving a body of regularlyupdated and
relevant law.
24. The laws in force in the Territoryof Heard Island
and McDonald Islands are th. ~aws in force from time to time
in the Australian.Capita1 Territory so far as applicableand
Acts of the Commonwealthparliamentexpressedto extend to the
Territory..The Çoral Sea IslandsAct 1969 and the Heard
Island and McDonald Islands Act 1953 also provide that the
Governor-General may make Ordinances for the peace, order andz
good çovernmentof those Territories. These Ordin2zces zss=
be tablee in the federalParliament and are sukject to
disallowan.cb ey that Parlisment. -. ~.. ARTICLE 1
104. Far Australia, the principal landmarksin achieving
self-government were the institutionof responsiblegovernmenf
for the six Statespursuant to the Imperia1Australian
sloni-s Governrnent Act 185.0(the colonies adoptednew
Constitutionsbetween 1855 and 1889) and the later federation
of the six States in thefederal Commonwealth. The
Commonwealthof Australia came into being on 1 January1901
under the authority ofthe Imperia1ummonwealth of Austral;a
ÇonstitutionAct 1900. Under the Constitution,which is
embodied in the ImperialAct, the Governor-Generalof
Australia,as the representative of the Crown, is able to
exercise al1 the powersof the Crown in Australia. In
..
institutionalterms,Australia self-government involved as
indicated i3 Part 1, freely elected Parliaments,responsible
executive government,an independentjudiciaryand the rule of
law.
105. XustralianTerritories: Australia'sformerTerritory
of Fapua and Trust Territoryof New Guinea which had been
jointly adsinisteredas the Territory of Papua New Guinea
became independent ofAustralia in 1973. Australia completed
its obligations under Article 73(e) of the United Nations
Charter in relationto the.Territoryof Cocos (Keeling)
Islands in1984. The measure of self-governmentexistingin
the NorthernTerritory and Norfolk Island has already been
reierre8to in Part 1 of this Report.
106. At the internationallevel, Australia has
traditionallybeen a strong supporterof the right to
self-detersination.This is evidenced by the actiontaken by
the XustralianGovernmentin respect of the CocosMalay people
on the Cocos (Keeling) Islands, whichculminatedin the Act of
Self-Deterzination h~ld on 6 April 1984 (see paragra?h 20).The United Nations Visiting Mission which obssrved the voting
process was le& by Anbassador Coroma of Sierra Leone, with its
other menbers from Fiji, Venezuela and Yu~oslavia. The
Mission was of the unanimous view that the peo-le of Cocos had
exercised their right to selfdetermination inaccordacce with
the ~nited Nation's Charter and the Declaration on the
Granting of Independence'tocolonial Countries and '~eoples . ANNEX 11
ExtractfromresponsebyAustraiiatoquestionsonsecondreport tothe Human
RightsCommittee,pursuant to Article 40 of the ICCPR
Lijï 0: 1~5;:~; 50 =E A"-'; i? II; C9:i:iECTIO:; YITii THECO::SIDE?.ATIONOF
T!!E SECG!;DPERICiLiIC REPOETOF I,USTXAL'A(CCPR/C/G2/hdd .Z)
1- -onst:cution3l asc! Ica fr;-eimr'u. vit--,in uhich the Coveriant 16 i=~ie=e~ted
(ar:icle I(2) enc (3))
(a) h'czt i6 Jean: by the phrase (parû.53 of the report) that "ptior Co or
vichoït lepislative i=pleoe:tstion, sose of the requirenents of the Covenant
uay be Frp!ezen:ed at an akinistrative level"? Are thé rights guaranteed
under the Covenant al1 available as a natter of State and federal lav
oot~-ichscanding the absence of legislation incorioracing the Cover;ant -
or of a Eill of Ughts?
(b) L3ar inforstion is available cn the effecrivenese of the hbuds=anis poïers
either to provide a remedy or to leadto changes in the Law?
(c) Lha: 16 the relatlonship betxeen thc Federal Court and the High Court?
in vnat circunsrances are appeals perdrted fron decisions of non-judicial
persons end authoriries and ere these required CO be directed only to the
Feàeral Court 7
(d) Please elaborate on the status of the nev Buman P.ights and Equal Opportunity
Coxission and its capacity to nonitor cocpliance vith the Covenont- Can .
it receive complaints from individuals?
(e) hlat effor~fi are being made to nake the entire*population avare of the
rights yaranteed under the Covenanc?
II. ' Self-detednation
(article 1)
yhat le hstralia'a position vith regard to self-deterninetion in general
and specifically xith regard to the struggle for self-deteAnacion of
the South-African, Hanibian end Palefitinian people?
..I. Son-discrkinetion and equality of the sexes
(arricles 2(1), 3 and 26)
(a) hlat are. the implications of the consriturional inability of the federal
Goverment to enact national legislation on al1 aspeete of non-di~cridnatio:
aeainst voxn (see para.13S of the report)? Pleaea indiesce the areas in
vhich discrimination acainst uonen, if =y, sri11 uii,tn in la" and P~PC~~CL.
(b) 1s 1: envifiaged that the federal Affimative Action (Equal bploPe3t
Opportunity for k'onen) Act 1986 vil1 be extended to aboriginal people8 ?
(c) Treatnent of alieofi: In uhat respects are the righte of aliens restric=!qb
as cocpared vith those of cltizensl .................................TION
Mr Robertson - the focus of the international community
-- -------- -
since tFe secona uorld war has been placed on the decolonisation
aspect of self determination. Australia has, since the
foundation of the United Nations, been an active supporter of
the decolonisation of the Organisation. The realisation of
these objectives has transformed Africa and has had a crucial
impact on our oun region, firstly in Asia and more recently in
the Pacific uhere, during the 1960's and 1970's ue were pleased
to uelcome a number of states into the community of nations.. ide
have placed on record our support for decolonisation in numerous
statements to various United Nations organs over the years and
through our voting positions .... on important self determination
questions.
For many years ue uere a member of the Committee of 24
uhich played a key role in ensuring the exercise of self
determination, particularly in regard to non-self governing
territories.
Australia uas the administering pouer for Papua Neu Guinea,
Nauru and the Cocos Islands. In close cooperation uith tbe
Committee of 24, each of these territories uas able to exercise
the right to self determination. In the most recent case, the
Cocos Islanders chose the option of integration uith Australia
in an act of self determination under the supervision of the
Committee of 24 in 1984. Our second report provides information
on this important event.
The denial of self determination to the people of Namibia,
a particularly frustrating and serious case, because it is
compounded by the imposition of the repugnant apartheid system.
Australia has vigorously supported full implementation of
Security Council Resolution 435 relating to self determination
and independence for Namibia. As a member of the. Council of
Namibia, ue have consistently supported the U.N.'s efforts to
achieve these objectives.
The Human Rights Committee has raised the question of self
determination in South Africa. Australia's unequivocal
rejection of the apparent apartheid system is on record in many
United Nations' forums and has found expression in a series of
specific measures aimed at bringing pressure to bear on the
South African authorities to dismantle apartheid. During
Australia's term as a member of the U.N. Security Council, ue
voted for a Resolution proposing mandatory economic sanctions on
South Africa in 1986. Other measures taken by Australia include
respect for various restrictions on contacts uith South Africa,
including the important field of sport and assistance for black
South Africans through education and other training. We should
also add that ue have made bilateral representations to theSouth African authorities on a number of individual human rights
cases and issues over the years as a reflection of our concern
about the impact of apartheid on respect for individual, civil
and political rights.
With regard to events in the Middle East, Australie
believes that a resolution of the conflict in the occupied
territories demands that the right of the Palestinians to self
determination be recognised, including their right to choose
independence if they so desire. It is apparent that the ro.ot
cause of the disturbances in the occupies territories and the
frustration experienced by the Palestinians is a result of their
inability to determine their oun future. As the Australian
Foreign Minister said on.14 January, "uithout the reasonable
prospect of the right to self determination being fulfilled,
many Palestinians in the occupied territories uill increasingly
see violence as the only uay open to them". As the Head of
Australia's Observer Delegation to the recent session of the
Commission on Human Rights, 1 had occasion to deliver a
statement on this issue uhich sets out the Government's position
in more detail. Copies of this statement are available to
members of the Committee.
We have folloued uith interest the international focus on
continuing application of self determination to al1 citizens.
It is signifjcant that self determination is the first Article
of both International Covenants. This right is not extinguished
or discharged by a single act of self determination on
independence after a colonial era. We interpret self
determination as the matrix of civil, political and other rights
uhich are required to ensure meaningful participation of
citizens in relevant decision making processes uhich enable
individuals to have a Say in their future. The process of self
determination involves a number of aspects including
participation in free, fair and regular elections, the ability
to seek public office and to enjoy freedom of speech and
association. Full respect for self determination therefore
requires that al1 members of Society can participate in
political processes. In Australia, for example, major efforts
have been made to increase the participation of uomen in these
processes and in other relevant decision-making. Similarly,
uith regard to disadvantaged groups such as Aboriginals, the
same imperative should be met. We shall Say more about the
processes of consultation uith Aboriginal groups later in our
pr.sentation.Self-determination (artic 1lof the Covenant)(sectionII of the li-t Of-ssues)
'14. The CüAlWN readout sectkn XI of the listof issuesconcerningthe second
periodicreportof Australia,namelyc Australla'spositionwith regardto
self-determinatioi nn qeneraland to the strugglefor self4etermi~tlon of the .,
SouthAfrican,Namibianand Palestinian people8in particulac. -. . .,
.. . ... ...
15. Mr. ROBCRISON (~ustralia) said that,since the foundingof the ünitedWationte,
his Covernmenthad activelyadvocatedand voted for decolonisation an for the ..:.
rightof Non-Self-GoverninT gertitOtleeto selfdeterfiiinatibn. ~ccolonirstioh n4d'I.j
transformed the politicalface of AfKicaand had had a CrucialimNct on hie
.,
region,first in Asia and more recently in the ~acific,where a numberof ne*
nationshad me into beinqin the 1960s and1970s. Australiahad been the
administering Powerfor PapuaNew Guinea,Nauru and the Cocos (Keeling)Islands,
and each of thoseTerritaries,in closeCO-operation witt hhe Spe~ialCaimaittë en
decolonixstion of which Rustraliawasa member, had been able to exereisethe ripht.
to self-determination. Most recently, in 1984,the Cocoa (~eeling) Zslanderi had
opted Cor integration with ~ustraliain an act of selfdatermi~tion underUnitad
Nation.-.-.--.-ion. . . ~... .
16.
seriousand frustratingdetcame becauneit was compoundedby the impitionculsrof the
repugnantapartheidsystem. Auitrsliahad vigorouslyiupportedfull implementation
of SeaurltyCouncilrssolution 435 (1978)on Namibianindependence, and as a member
of the Councilfor Namibiaha8 coneietently supportcdUnitedNitionseffortsto
achievethatobjsçtive.
17. Regardingself4etermination in SouthAfrics,Au8traliaun.quivocally rejected
apartheidand had takena numberof specificstepe to bctng pressureto besron the
south Afrioanauthoritiesto Bismntle thst eyetem. In theaecucityCouncil,for
instance, Australiahad votedfor a rcsolutionimpoaingmndatory economic
sanction asgainitSouthAfrica in 19861and it hed made bilateralrepresentatione
to the southAfricanauthorities on a numberof individualhuman rightscasesand
ifmuesover the yeara. The Wvernment had almo imposedvariarirestrictions on
aontactswith muth Africa,incluaingin the importantCieldof sports, and waa
provldingaducitionand trainingfor blackSouthAfricane.'.
18. With regardto the MiddleEast,Australiabeli.vedthat a resolution of the
conflicttn the territories waupied by Ieraeldanandadthat the rightof the
Palestiniann to aelf-àeterminstion ,noludingtheir riqht to chooseindepandence if'
they .a0 deaired,shouldbe recognized. The root cause of the disturbances in the
occupied territories was Clearlythe Palestinians' inabilityto decidetheirown
future,and theywould increasingly see violence as the only way open to them.
Copiesof a statement to the Conmiseion on Ruman Rights,detailinghie ~overnment'F
positionon the question,were available. - -4
..-_ . -.
19. It wae significant that therlghtof eelf-determinatiow nas set forthin the
firstarticle of both human rightsCovenants. That right was noL exercisedfully
bY a single4ct of self-determinatio nn gaining independenc sftera colonial
ers. Australiainterpreted selC4etermination as the matrix of civil,palltical
and other rightsrequired for the meaningful participation oc fitizensin the kind
of decision-making that enabled them to have a say in theirfuture.
Self-determination includedparticipation in Cree,fair and ragularelectioneand
the abilityto occupypiblicofficeand enjoy fceedamof speechand association.
In Australia,majoreffortshaü beenmade to increasethe participation of women
and disadvantaged grouposuch as Aboriginale ip noliticallife and decision-making. ANNEX 12
Workingpaper preparedbythe Secretariat
Distr.
GeneralAssembly GENERAL
A/AC.109/1115
17 July 1992
ORIGINAL: ENGLISH
SPECIAL COMMITTEE ON THE SITUATION
WITH REGARD TO THE IMPLEMENTATION
OF THE DECLARATION ON THE GRANTING
OF INDEPENDENCE TO COLONIAL
COüNTRIES AND PEOPLES
EAST TIMOR
Workina DaDer ~re~aredbv the Secretariat
CONTENTS
ParaoraDhs PhQe
1. GENERAL .............................................. 1-2 2
II. CONSIDERATION BY THE UHITED NATIONS .................. 3 - 23 2
A. The General Assemblyand other United Nations
bodies ........................................... 3 - 19 2
B. Communications related to thequestion ........... 20 - 23 5
III. POLITICAL DEVELOPMENTS ............................... 24 - 40 6
IV. HUMAN RIGHTS SITUATION ............................... 41 - 44 9
V. OTHER DEVELOPMENTS ................................... 45 - 73 10
A. The Dili incidentof 12 November 1991 ............ 45 - 62 10
B. Communications and reports relatedto the incident 63- 73 14
VI. ECONOMIC AND SOCIAL CONDITIONS ....................... 74 - 75 15 A/AC.109/1115
English
Page 2
EAST TIMOR
1. GENERAL
1. The Territory of East Timor comprises the eastern part of the island of
Timor, which is located at the tip of the chain of islandsforming the
Republic ofIndonesia: the enclave of Oecusse Ainbeno:the island of Atauro,
off the northern Coast of Timor: and the island of Jaco, off its extreme
eastern tip. It lies between latitudes8'17's and 10'22's and longitudes
123'25'E and 127'19'E.
2. According tothe 1980 census, the total population of the Territory ras
555.350: in 1991. itwas estimated at 752,000. a/
II. CONSIDERATION BY THE UNITED NATIONS 2/
A Xhe General A-Y and other United Nationsbodies
3. Between 1961 and 1982. the General Assembly annuallyreviewed the
question ofEast Timor and adopted resolutions on the basis of the reports
submittedby the Special Conmittee on the Situation withregard to the
Implementationof the Declarationon the Granting of Independenceto Colonial
Countries and Peoples.9/
4. Since April 1977,the Governmentof Portugal, in its capacity as
administeringPower of East Timor. bas annually informed the Secretary-General
that owing to conditions prevailing in the Territory, namely the presence of
armed forcesof the Republic of Indonesia,it has been de facto prevented from
transmitting anyinformationconcerningEast Timor under Article 73 e of the
Charter of the United Nations. */
5. At its thirty-seventhsession, by its resolution 37/30 of
23 November 1982. the Genersl Assembly requestedthe Secretary-General to
initiateconsultationswith al1 parties directly concerned.with a view to
exploring avenues for achievina g comprehensivesettlementof the problem, and
to report to the Assembly at its thirty-eighth session. The Assembly
requestedthe Special Conunittee to keep thesituation in the Territory under
active considerationand to render al1 arsistance to the Secretary-Generalto
facilitateimplementationof the resolution.
6. Since 1983, the Secretiry-Generalhas kept the General Assembly apprised
of developments related to Che erercise of his good offices.s/ In his latest
progress report. submitted to the General Assemblyat its forty-sixthsession
(A/46/456),the Secretary-General stated that he had continued consultations
with the Governments of Indonesiaand Portugal, in the courseof which both
sides had reiterated their determinationto seek a comprehensive and
internationally acceptable solutio to the question of East Timor through
continuing dialogueand negotiation. A/AC.109/1115
English
Page 3
7. At each session since the thirty-eighth.the GeneralAssembly has
deferredconsideration of the question.61
8. During the generaldehate at the forty-sixthsession,the representatives
of Angola,Cape Verde. Guinea-Bissau, Mozambique Portugal.Sao Tome and
Principe and Vanuatu referred t toe questionof East Timor in their
statements(A/46/W.5. 7. 14, 21, 23. 24). The representativeof the
Netherlands,on behalf ofthe 12 members of the European Community,also
referredto East Timor in a meniorandunvhich vas circulated as an integral
part of his speech (U46/PV.6). In responseto the statementmade by
Portugal,Indoneaiamade a statementin exercise ofthe right of reply
(U46/W.7). In the generaldehate in the FourthCoinaittee' the
representative of the Betherlands,on behalf ofthe 12 members of the European
Conmiunity,also referred to East Timo( rA/C.4/46/SB.8):and the
representatives of Cape Verde and Sa0 Tome pd Principemade further
referencesto the Territory (A/C.4/46/SB.11and 13). Indonesiamade a
statementin exercise oftho right of replyin reaponseto the statement made
by the Betherlands(A/C.4/46/SB.9).
9. In the dehate in the Third Committeeon human rights questions,the
representatives of Australie .ustria,Braiil. Canada. Cape Verde, Finland.
France,the Eoly See, as -11 as the representativeof the Netherlands.on
behalf of the 12 Statesmenbers of the EuropeanCoxnuuity,and the
representatives of New Zealand,Portugal and Vanuatu made further references
to the Territory (UC.3/46/SB.44 and 47-53). Bepresentativesof Indonesia.
Portugal and Vanuatu madestatementsin exerciseof the right of reply
(A/C.3/46/SP.44 and 53).
10. Underkhe mandate sntrustedto it and renevedannuallyby the General
Assembly. the Special Committee has continuedto revievthe question and has
heard ststemantsby Member States and petitionersconcerning thesituation in
the Territory. 11
11. At its 1991 session, the Special Committeeconsidered the question of
East Timor at its 1383rd to 1385thmeetings.on 7 and 8August. During those
meetings, tbe Colmmitteeheard the representativesof Indonesia
(A/AC.109/W.1383and 1385). Cape Verde (also on behalfof Angola, Guinea-
Bissau.hiambique and SaoTome and Principe)and Portugal (A/AC.109/PV.1385);
as vell as 16 petitioners(A/AC.lO9/PV.1383. 1384 and 1385).
12. At its 1385thmeeting.on 8 August, the SpecialCommitteedecided to
continue consideratioo nf the itemat its 1992 session,subject to any
directives that the General Assembly might giv at its forty-sixthsession
(A/AC.109/W.1385).
13. Since the adoptionof its resolution1983/8 of 16 Pebruary1983 relating
to East Timor, fi/the Commissionon Ruman Rights hasnot considered the
question. At the 4lst meeting of the forty-firstsession,on 5 March 1985,
the Chairmanannouncedthat the Commission had taken action in private A/AC.109/1115
English
Page 4
session,under Economic and Social Council resolution 15 (XLVIII)of
27 May 1970, with regard.inter alia. to East Timor, and thatthe situation
relatingtheretowas no longer under considerationby the Commission. P/
14. On 1 September1988, the Subcommissionon Preventionof Discrimination
and Protectionof Minorities.by 10 votes to 9, with 5 abstentions, decided
not to take anyaction on a draft resolution on East Timor.&Q/
15. In both 1989 and1990, the Subcommission on Preventio of Discrimination
and Protectionof Minoritiesadoptedby secret ballot resolutione sntitled
"Situationin East Timor" (1989/7and 1990/15),whereby it recommended tothe
Commissionon Auman Rights thatit considerthe situation pertaining th ouman
rights andfundamentalfreedomsin East Timor at its forty-sixthand
forty-seventh sessions, respectively=/
16. At the 26th meeting of the forty-third session of the Subcommissio on,
23 August 1991, the Chairman announcedthat, as in previous sessions, some
experts hadtaken the initiativeof preparinga draft resolution on the
subject. Aaving learned of thaitnitiative,he had requestedthat certain
recentdevelopmentsin the processOf consultationsinitiatedby the
Secretary-General be taken into accountand had consulted thmeembers
concernedin an attemptto find a solutionby consensus. The recent
developments included anagreementin principle between thp earties to send a
Portugueseparliamentarymission to visit East Timor (see para. 36 belon) and
the announcement made by the observer for Indonesiian the Subcomission that
the Special Rapporteuron Torture of the Comnissionon Buman Rigbts would be
invitedto visit East Timor. To promote the spirit of openness and to
facilitatethe wrk of the Special Rapporteu rn Torture. it had been agreed
not to submit the draft resolutionon East Timor.=/
17. On 8 Janusry1992, under item 10 (a) of the provisionalagenda of its
forty-eighthsession,the Commission on Ruman Rights releasedthe report of
the Special Rapporteuron Torture.Mr. P. Kooijmans,on his visitto Indonesia
and East Timor at the invitationof the Governmentof Indonesia. U/ In his
report,the Special Rapporteur noted tha he had visited theTerritory from 11
to 13 November,and thus vas present at the time of the shootingsin Dili (see
sect. V). That incidenthorever. did not fa11 directlywithin his mandate.
In East Timor,he had held meetings~ith. among others, the "Governor".the
Military Commander,the Attorney.the President of the District Court and
Bishop Belo of the Roman CatholicChurch and had interviewedseveral former
detainees.
18. The Special Rapporteursaid he had beentold by the "Governor" thatthe
numberof incidents between the local populationand the armedforces was
decreasing, althoughsometines thepolice intervened with brutality. Of the
detaineeshe had met, some had confirmedthat they had been tortured.but
others had nocomplaintsof ill-treatment. Military authorities admitted that
there ha4 been cases of tortureor other serioushuman rightsviolation.but
they assuredhim that everything ras being done to prevent their recurrence.
According to statisticaldata he had received,some 215 members of the armed A/AC.l09/1115
English
Page 5
forceshad been punishedor disciplined for failing to carry out their
functions.115 for criminalacts.
19. At the 54th meeting of the forty-eighthsessionof the Commissionon
Buman Bights on 4 March 1992, A41 the Chairman read out a statement, agreed to
by consensus,in which the Commission noted with seriousconcern thehuman
rights situation inEast Timor and deeply deplored the violei nntcident which
had occurred in Dili oo 12 November 1991 (see sect. V). The Commission,among
other things,welcomed the settingup of a nationalcommissionof inquiry by
the Indonesian Government and the prompt respow nsech its advancereport had
elicited from the highest authorities. It expressedthe hope that further
investigationrould clarifythe discrepancieson the numberof people killed
and missing. The Comission said that it ras encouragedby Indonesia's
disciplinarymasures and military court proceedings against so members of
the armed forces and urgedthe Governmentto bring to trial and punish al1
those found responsible. It called upon Indonesia toensure that al1
civiliansarrestedwere treatedhumanely.that those brought to trial received
proper legal representation and fair tria and that those not involved in
violent activities were releasedwithout delay. The Commissionwelcomed the
appointmentof Mr. S. Amos Wakoas persona1Envoy of the Secretary-Genera to
obtain clarificationof the events and the willingnessof the Indonesian
authoritiesto cooperatewith him. The Commission encouraged the Secretary-
General tocontinuebis go06 offices for achieving an internationally
acceptable settlement of the question. fi/
B. -related to the auesth
20. In letters datedrespe:tively1 and 6 August 1991 addressedto the Acting
Chairmanof the Special Comnittee(A/AC.109/1081and Add.1). the Permanent
Representativeof Indonesia reiterated the position of his Governmenton the
questionof East Timorand requested that the lettersbe circulatedas
documents ofthe SpecialCornittee.
21. In a letter dated 6 April 1992 to the Secretary-General. t Permanent
Representativeof Cape Verde transmittedthe text of a joint declaration on
East Timor issued by the Reads of State of Angola,~uine'a-~issauM ,ozambique,
Sao Tome and Principe and Cspe Verde on the occasionof their Tenth Summit,
held in Sao Tome and Principeon 10 March 1992 and requestedthat the letter
and its annex be circulatedas an officia1documentof the General Assembly
(A/47/151).
22. In a letter dated 21~pril 1992 tothe Secretary-General. the Permanent
Representativeof Portugal,in the capacityof Presidentof the European
Community.transmitted thetext of a statementof the EuropeanCommunity and
its member States on East Timor issuedon 13 February.and requested that the
letter and its annex be circulatedas an officia1document of the General
Assembly (A/47/169).
23. In a note verbale dated 20 May 1992 to the Secretariat, thP eermanent A/ACC.109/1115
Znglish
Page 6
Mission ofSao Tome and Principe transmittedthe text ofa letter from
Mr.Kay Rala Xanana Gusmao. member of the NationalComrnandof the Maubere
Resistance(CNMB) and Commanderof the LiberationArmed Forces of East Timor
(FALINTIL),and requested that thl eetter and itsannex be circulatedas an
officia1documentof the General Assembly(U47/219).
III. POLITICAL DEVELOPMENTS
24. IndonesianLaw 7/76 of 17 July 1976 States that East Timor is a province
or a "first-levelregion"of Indonesia. The law provides for the
establishmentof a "RegionalGovernment"consistingof a "Regional
Secretariat"and a "RegionalBouse of Representatives" and foE rast Timor to
be representedin the National Bouse of Representatives ai nd the People's
Consultativebsembly of Indonesia.
25. By its resolution32/34 of 28 Bovember 1977, the General Assembly
rejectedIndonesia'sclaim that East Timor had been integratedinto Indonesia,
inasmuchas the people ofthe Territoryhad not been ableto exercise freely
their right to self-deteamination and independence.
26. The most recentgeneral elections tothe "Regional Bouseof -
Representatives" and thB eationalBouse of Representatives wre held on
9 June 1992. Accordingto the of 15 June 1992. 369,046.voters
were registeredwith the East Timor ElectionsCornittee,and 305.401 of these
voted forthe FunctionalGroup (GOtA)S),58,449 for the IndonesianDemocratic
Party and 5,196 for the UnitedDevelopnt Party.
27. The "Governor"of East Timor is Wr. Mario Carrascalâo,who is aerving a
secondteam which expires in September1992. According to press reports1 ,5
candidates are planning to run for election as his successor.u/ These
include Brigadier GeneraR ludolf SamuelWarouw of Indonesia,who ras dismissed
as militarycornanderof EastTimor inDecember1991, reportedlybecause he
and his direct superior.as military leaders,were held responsiblb ey
PresidentSuharto for the events in Dili On 12 iiovember.The Jakarta of
17 March 1992 reported thatthe Chairmanof the TimoreseRegionalAssembly had
charged that the IndonesianGoveramnt ras attemptingto dictate who the next
governorshouldbe.
28. Press reports over the past fer years have estimatedthe Indonesian
military presencein the Territoryto be about 10,000 troops.=/
29. On 12 June 1992, an article in The Guar* (London)said that after the
Dili incidenta securitycrackdom had been imposedand that the military had
been granted specialpowers. The current Indonesian militarc yommanderin
East Timor. Brigadier GeneralThe0 Syfei. was reportedas indicatingthat four
of the sixbattalions,comprising3,840 men,might be removedby September.
Accordingto the report,as the September target date coincide with the
retirementof "Governor"Carrascalao.this suggests plans foa r "fresh start"
in Indonesia'sadministratim of the Territory. Bowever,the report queries A/AC.109/1115
English
Page7
whetherprevailingcircumstanceswill actuallypermita wide-rangingchange.
especiallyas "thereis littleevidenceof success iiwinningover theEast
Timorese". It ras reportedin the same newspaperoi14 July 1992 that.
accordingto the Indonesiannevspaperm, three EastTimorese"rebels"had
bean killedin a clashwith Indonesiantroopswho had steppedup operationsin
the Territory.
30. In 1990,the Frente Revolucion~riade Timor Leste Independente(FRETILIN)
maintainedthat there were5,000armedguerrillas. U/ At the beginningof
April 1992. u/ Indonesiansources reported thaatccordingto Brigadier
General Syafei therweere nine FRETILINgroupawith a totalof 296 members
living inforertedareas. Their firepowerconsistedof about 128 weaponsof
variouskinds,or 2 per cent of their arsenal in1975/76. General Syafeisaid
that FBETILIHhad changedits strateqyto focuson politicalrork in urban
areas insteadof militaryactivities.
31. In 1992, it ras reportedin the Portuguesepress that Ur. Xanana Gusmao.
leaderof PBETILIN,had told an interviewer thaPRETILINforceshad weakened
and rould accept "withouthesitation" the resulof a "popularverdict"on the
futureofEast Timor, w matterwhat the resultmight be. ZQI
32. As poviously reported.in 1989 Indonesiaand Australiasigneda
cornprehensivaegreementfor a rone of cwperation for explorationand
exploitationof offshore oilresourcesin the TimorGap (seeU45/57-S/21022:
A/45/60-S/210281U46/93-S/22249:U46/97-S/22285).
33. On 22 Iebruary1991,the Goverment of Portugalfiled in the Registryof
the InternationalCourtof Justicean application institutingproceedings
against Australia ian disputeconcerning"certainactivitieswith respectto
East Timor". 21/
34. By an Order of 3 Uay 1991 (J.C.J.-, p. 9). the Presidentof
the InternationalCourt of Justice,after a meetingwith the Aqentsof the two
Partiesat which agreementon time-limitsras reached,fixed18 Noventber1991
as the tim-limit for the fillngof the PortugueseMemorialand 1 June 1992 as
the th-limit for the AustralianCounter-Mernorial =. /
35. On 16 December1991,the PortugueseAmbassadorto Australiahanded a note
verbaleto the Hinistryof ForeignAffairafor Australiastronglyprotesting
against11 production-sharingcontractswhich had been approvedfor petroleum
explorationin "AreaA" definedby the "Timor-GapCooperationTreaty"
(A/47/65-S/23339,.annex).
36. In mid-1991,Portugaland Indonesiareachedagreementregardingthe visit
of a Portugueseparliamentarydelegationto East Timor. The visit vas
formally approvedby PresidentSuhartoof Indonesiaon 25 August 1991.211
Informedthat Indonesia opposedthe inclusionof Us. Ji11 Jolliffe inthe list
of international journalistto accompany thedelegation,Portugal announced
on 26 Octoberthat it ras suspendingthe visit. A press releaseissuedby the
Permanent Missionof Portugalon 31 October 1991said that Indonesia's A/AC.109/1115
English
Page 8
oppositionwas not inconformitywith vhat had been agreed upo by the parties
and that it culminated aseriesof actions incompatiblw eith the terniof
reference already approvefdor the visit. Indonesia contendedthat its
oppositionwas based on the fact that Ms. Jolliffehad establishedherself as
an anti-Indonesiacrusader and that her abilityto be an independent and
objective reporterwas therefore compromised . /
37. In February1992, a group of about150 people, including peace activists,
students andjournalistsfrom 10 countries, setsail from Darwin,Australia,
to East Timor aboard a chartered ferryboat, the LusitânEiar>reLQ.on what
they describedas a peace voyage. Indonesiasaid it bad not received any
request from eitherthe operatorof the vesse1 or its passengersfor
authorization tosail into Indonesian waters and woulednforceapplicable
On
national and internationallaws if the grouppersistedin its voyage. 25/
10 March, the spokesman of the Secretary-Generasaid that the Secretary-
General had been informe df the missionby its organizersand had erpressed
the hope that no violent incident would occuand that good judgementand
maximum restraintwould be displayedby al1 concerned. Accordingto a report
in the Br EasternEcanomicReview of 26 March 1992, the ship ras "repelledby
navy frigatesat the edge of the Indonesianwaters early on themorning of
11 March. The Indonesiannavy had Said it ras preparedto use force ... but,
in the event,a verbalwarningproved a sufficientdeterrent*. Indonesiahas
stated thatthe entered its territorial seaat 0555 ICT on
11 March and continued its voyage aftebeing orderedto leave. After
repeatedwarninga.at 0607 ICT, the turned around and
proceededto leave (A/47/152,annex). In a statement issuedon 24 March,
Portugalsaid that whilst the ship ras three miles outside the territorial
waters of East Timor, Indonesianvesselsordered the Lusitsaia not to
enter, stop or anchorwithis ita territorialwaters. The Portuguese atatement
also saidi "Moreover,these actions prevented thW etânia E- from
enteringthe territorial waters of East Timor,a Non-Self-Governing Territory
under Portuguese administrationi ,n accordancewith the relevantUnited
Nations resolutions, and ove which the Bepublicof Indonesiaexercisesno
legitimatejurisdictionwhatsoever"(A/47/134-S/23757, annex).
38. In a letterdated 24 March 1992 to the Secretary-General.the Permanent
Representativeof Portugal transmitted the textof a statementOf his
Goverment on the incidentand requested that the letter and its annex be
circulatedas an officia1 documentof the General Assembly and pf the Security
Couacil (A/47/134-S/23757).
39. In a letterdated 8 April 1992 to the Secretary-General the Permanent
Representativeof Indonesiatransmitteathe textof a statemant issued by the
Goverment of Indonesiathe same day ia response tothe letter from Portugal
and requestedthat the lett3rand its annex be circulatedas an officia1
document of the GeneraAlssembly (A/47/152).
40. On 23 April 1992, it vas reported that Indonesihad rejectedrequestsby
United StatesSenatorsDaviJ Boren and ClaibornePell to visit East Timor. 261 A/AC.109/1115
English
Page 9
IV HUMAN RIGHTS SITUATION
41. Regarding the comprehensive settlemenotf the question ofEast Timor,on
which the secretary-~eneralreports annually to the General Assembly, the
Secretary-Generalhas been in contactwith the parties concernedwith a view
to reactivatinga dialoguethat couldlead to such a settlement. In this
regard, the Governmentsof Indonesiaand Portugal have presented their
proposals and views on a dialogue to the Secretary-General,who continues his
efforts to obtain anagreementon the modalities andformat of such talks.
42. Below is a summary of observations relatingto the human rights situation
in East Timor contained iC nountry Reportson Human Riohts Practices for 1991.
mm, published in February1992 by the United States Department of
State: a/
"In East Timor, where a shift from security operations to civic
action projectshy the armed forces had brought a gradua1 reduction in
human rights abuses,the situationdeteriorated sharply beginningin
October.
"During the periodunder review, people were detainedfor days or
weeks and subsequentlyreleasedwithout charges.
"Although the IndonesianGovernment does not provide data on the
nwnber of persons serving subversionsentences, informed estimates
suggest a totalof more than 500 includingthose convicted of subversion
in connectionwith separatistactivities in East Timor.
"The Goverment occasionallycensors publications and continues the
practicesof telephoning editors to suppress stories and of censoring
Foreign periodicals. An article aboutEast Timorese workersin Java that
was to appear inthe prominent newsweekly -, for example, was
censored in early Septembe1 r991 at the insistenceof military officers
who came to the magazine's offices.
"The CatholicChurch operates widely in East Timor. but the
activitiesof some of its clergy are carefully monitored by security
forces concernedwith ~heir political sympathies.
"Curfews weresometimes in force in connection with military
operations in parts of East Timor.
"Under a 1985 agreement.the InternationalConunittee of the Red
Cross (ICRC) is authorized bythe Government to visit persons held for
security reasonsin East Timor. None the less, ICRCexperienced
significantdelays in gainingaccess to those wounded or imprisoned in
the 12 November incide2t.
"Familyvisits back to EastTimor by East Timorese non living in
Australia continued." A/AC.l09/1115
English
Page 10
43. Amnesty International reporte that at least 30 people had been killed in
East Timorby Indonesiansecurity forces in 1990 and early1991 in apparent
extrajudicialexecutions. A patternof short-termdetantion,ill-treatment
and torture ofpolitical detaineesalso appeared to haveworsened. More than
400 peoplehad been detained in EastTimor since late 1988 for alleged
involvementin pro-independence politica activities.at least 200 ofthem
since early 1990. Many might have been prisoners oconscienceand many had
reportedlybeen Ill-treatedor torturedin custody. a/
44. Amnesty Internationalnoted that thereremainedserious limitationson
"opening"
the reporting ofhuman righ's violationsin East Timor despite the
of the Territory to tourism and commercein January 1989. Persons suspected
of disseminatinghuman rights informationin East Timor andIndonesiawere
closelywatched and had a well-foundedfear tbattbey might themselvesbecome
victims. Telephone and postalconununication sere monitored and contactswith
foreignjournalistsand tourists or with internationalorganisations like ICRC
were sometimesthe subjectof investigation. Nhile soma foreignvisitora had
been able to travelwith apparentfreedomin certainparts of the Territory,
most continuedto be subjectedto close surveillancbey military and police
intelligence. Pinally.notwithstandinggoverment assurances that access to
the Territoryras unrestricted.and in spiteof repeatedrequests, Amnesty
Internationalhad not yet beenpermitted to visit EasTtimor or Indoneska.a/
A. Dili incident 12 Nov-
45. On 28 October1991, shortly after Portugal'ssuspensionof the proposed
visit by a parliamentarydeleqation.two Timoreseyouths were killed inM'
altercationbetween anti- a:idpro-Indonesianfactions inDili.
46. On 12 November, after aemorial Servicein a local church for one of the
deceased,a processionof some 2,000 people went toSanta Cruf cemetery.vhere
the man had been buriedtwo weeks before. Some demonstratorswéro carrying
FRETILINflags andwere chantinganti-Indonesianslogans. According to
numerouspress reports, as tbe peacefulprocessionmarched to the cemetery.an
Indonesian armymajor and a soldierwere stabbed.although not fatally
wounded. After demonstratorshad reachedthe cemetery,security forcesopened
fire at the crowd. killing and woundingan undeterminednumber of people.
Accordingto CountrvReDortsan-. 19 victims
were buried in unmarkedgraves and for two days after theincident the army
deniedICRC access to the militaryhospita1to which the dead and wunded had
. been taken.a/
47.. Accordingto press reports(fhe (London).7January 1992, rn
Observer (London).17 November1991, nie New Yorket. 9 December 1991,rn
Zhes (London).14 November1991). the incident waswitnessedby five foreign
visitors,includingtwo Uni:ed States journalists representing New YQIbat
magazine, aUnited Kingdom :ameramanwho filmedthe eventsat the cemetery, A/AC.109/1115
English
Page 11
and an Italianmissionary. These eyevitnesses intheir accounts sustained
that the shootinghad started without anywarning from the military'or
provocationby the demonstrators.
48. Amnesty International reported thi at had receivedunconfinnedreports
that betveen60 aad 80 additional peoplewere extrajudiciallyexecutedon
15 Novemberand theirbodies also buried in unmarkedgraves outsideDili.
Those killedwere said to have includedvitnessesto the 12 November incident
as well as suspected orknom politicalactivistsarrestedat the time of the
incident andin house-to-housesearchesover the followingdays. The
organization also reportedtihatdozens of East Timrese demonstrating
peacefullyin Jakartaon 19 November hadbeen detainedby security forces.
Unofficial sources twohich representativesof Amnesty International spoke
said that at le~t 35 people had been held at the Jakarta CentralPolice
Station. Lp/
49. On 18 Uovember,the Goveramantof Indonesiaappointed aseven-member
UationalCommissionof Inquiryheaded by a Supreiw Court justiceto conduct an
on-site inquiryinto the incident. The Cornaissionnet with the "Governor"of
East Timor andothergoverruDent and religiousofficiais, as well as with
mmbers of the military andpolice. It held interviewswith 132 eyewitnesses.
visitedhospitalsand conductedseveralon-site reconstructiono sf events.LI/
50. In itsprelbinary report,released26 December 1991, a/ the Comission
noted thateyevitnesseshad provideddifferingaccountsof aspectsof the
incident,espaciallydisagreeingas to whether warning shotshad been fired
and whethertherehad been fightingbefore shots were fired.
51. The Commissionsaid that, accordingto the military command(KOLACOPS),
the death-tollhad reached19,.butthat accordingto other eyewitnesses the
death-toll variedfrom 50 t~ over 100.
52. The Commission said tbat a total of91 persons vere reportedto have been
treatedfor vouodsbut that Cheactual number of wounded might vellhave been
higher than officiallyreported. The Comission reported thatapproximately
90 personswere niissing.U/
53. The Comission concluded thatthe shootingswere "not an act ordered by
or reflecting the policyof the Goverment or the Anned Forces". It stated
that the incidentras "essentiallya tragedywhich ahould be deeply regretted"
and that the actions of anumber of security personnel"exceededacceptable
norms and led to the casualties". It vas recomended that action betaken
againstal1 involvedin the incident and that they be broughtto trial in
accordancewith the rule of law.
54. Asia Watch, in a reportisaued on 3 January 1992, noted that after
studyingthe preliminaryreportof the National Commission of Inquiry,
reviewingIndonesianpress :overageand interviewingpeople in Dili.it had
concluded thatthe report vzs flavedby the Commission'sties to the
Indonesian Governmenatnd the lack ofexperienceof itsmembers in conductingsuch investigations. It said that, given the way the investigationwas
conducted,the Commission's findings, which upheld the army's position that
security forces had firedon the demonstratorsin self-defence.could not be
accepted. AsiaWatch acknovledgedthat it was the first time the Indonesian
Goverment had ever recognizedthe need to respond so publicly to
international criticism, that the head of the Commission appearedto take his
assignmentseriously, thatthe preliminary report was critical of security
forces and that it acknowledged thatthe officia1 death-toll of 19 vas far too
low. =/
55. Asia Watch also reportedthat as of mid-December1991 the situation in
East Timor remained tense with hundredsof people still not knowing whether
their missing relativew sere detained.in hiding or dead. It said that one
local sourcehad reported thatthe atmosphereof fear and terror vas wrse
than at any time since 1975. It noted also that therewere reports ofongoing
arrests and killings. 12/
56. In a statementissued on 13 February 1992. the European Communitysaid it
vas encouraged bythe prompt responsewhich the Commission'sreport had
elicited fromthe highest Indonesian authorities and welcomed the condolences
expressed bythe Presidentof Indonesia to the people of East Timor and his
cornitnentthat such an incidentmust not happen again. However, the
Comunity and its memôer States remained concerned abouo tther aspects of the
question: they hoped that further investigationswuld result in al1 those
responsiblebeing identifiedand. where appropriate,disciplinedor brought to
trial. and that those investigationswould also produce clear information
about the nuinberkilled and the fate of those still missing. The Community
welcomed theinvolvement of the United Nations inthe process and the
appointmentof Ur. S. Amos Wako asthe persona1 representative of the
Secretary-Generalto obtain clarificationof the events (see para. 57). They
supportedthe endeavoursby the Secretary-Generalto achieve a just,
comprehensive and internationally acceptab settlementof the question of
East Timor, with full respect for theleqitimateinterests and aspirations of
the East Timorese. They supportedthe start of a dialogue without
preconditions between Portuga and Indonesiaunder the auspices of the
Secretary-General, as contained i the constructivePortuguese proposal.
57. The SpecialRapporteuron Torture, Ur. Kooijmans (see paras. 17 and 18).
said that while the events did notfa11 directlywithin his mandate, as a
representativeof the UniteJ Nations Commissionon Human Rights he felt
constrainedto describe and evaluatewhat he saw and heard during and after
the events. The Special Rapporteurnoted. br alia, that information about
what had sparked off-the shooting differedwidely. According tothe
authorities, the crovdvas disorderly.demolishingshops and houses and using
weapons. includinga band-grenade,against members of the security forces.
Others claimedthere vas no provocationfrom the crowd. The Special
Rapporteur notedthat as he was about to leave EastTimor on 13 November, he
requested,in order to express sympathy,to be,taken to the hospitalwhere
dozens of wounded were being treated. Bis requestvas refused,with the
esplanationthat a visitby the Special Rapporteur to the wounded would be A/AC.109/1115
English
Page 15
68. In a letter dated 3 December 1991to the Secretary-General,the Permanent
Representative ofthe Netherlands transmitted the text of a declaration of the
European Conmunity and its member States on the situation in East Timor,
issued on the same day. and requestedthat the letter and its,anpex be
circulated as a document of the General Assembly(U461747).
69. In a note verbale dated 29 May 199t 2o the Secretary-General,the
Permanent Representative of Indonesia,with referenceto the note verbalefrom
Portugal of1 May 1992 concerning the transmission of informationon East
Timor under Article 73 Q of the Charter (A/47/189), reiteratedthe position of
his Goverment concerning theDili incident andannexed press releases on the
question issued by the Permanent Mission of Indonesia (U47/240).
70. In a letter dated 5 June 1992 to the Secretary-General,the Permanent
Representativeof Portugal transmittedthe text of a statementof his
Goverment on the trial and sentencing of East Timorese in Jakarta and Dili in
connection 4th the event of Novembar 1991 (U47/259).
71. In a letter dated 26 June 1992 to theSecretary-General.the Permanent
Representative ofPortugal transmittedthe text of a statement of his
Governent on East Timor, issued on 23 June 1992, and reguested that the
letter and its annex be circulatedas a document of theGeneral Assembly
(U47/299).
72. In a letter dated 10 July 1992 to the Secretary-Generalt ,he Permanent
Representative ofPortugal transmitted thetext of a statement ofhis
Goverment, issued on 26 May 1992, concerningthe trials and sentencing of
East Timoresein Jakarta and Dili (U47/331).
73. In a letter dated 10 July 1992 to the Secretary-General,the Permanent
Representative of Portugal transmitted tt hext of a statement of his
Goverment, issued on 2 July 1992, on the sentencing to life imprisonmeno tf a
Timorese in Dili (A/47/332).
V. ECONOMIC ANü SOCIAL CONDITIONS
74. In the absenceof information subniittedby the administeringPower under
Article 73 Q of the Charter. for the reasons explained in paragraph 4. the
material in this sectionha3 been derivedfrom other sources.
,.
75. According to Indonesian the prevailingeconomic and social
.conditionsin East .Timorca;ibe described as follows:
, .
Economic growthin 1991 ras,estimated at over li per ,cent. of the total
output. anestimat,ed,49.6' 8$r cent ras contributedby agriculture;
21.1 per cent by.ser"ices; 12.9 per cent by constructioa': 9.5 per cent,by
trade: and 6.8 per cent by other sectors. A/AC.109/1115
English
Paye 16
Indonesian budgetary allocation fsor developmentin EastTimor for
1992/93 increasedby 35.8 per cent as compared tothe previous year. The
"East Timor provincial administration"vas allocatedRp 71.1 billion %/ for
the implementation of 126 agricultural and industriap lrojects. In addition,
the Government allocatedRp 67.2 billion for theconstructionof elementary
schools,procurementof drinkingvater. road improvement and reforestation
projects.
Patural resources
According to a survey conductedin 1989 by the IndonesianNational
lnvestmentcoordinatingBoard and the Agency for theAssessmentand
Application of Technology. East Timh ors significant minera1 deposits:
3 million cubic metres ow frble, 115.57 million cubic metres of bentonite, as
well as phosphate.manganes1.gold. copper. chromium. dolomite. wollastonite
and clay.
In 1990, food productionvas as follovs: rice. 50,172 tons: corn. 73,635
tons; green beans. 1,016 tons; soya beans. 69 tons: peanuts, 1,375 tons;
cassava, 10,567 tons: sveet potatoes, 35.179 tons; and vegetables. 10,924
tons.
In 1991,cornfieldsCO-rered an area of 23,000 hectares and rice paddy
fields, 61.000 hectares. East Timorvas close toachieving self-sufficiency
in rice, vith only 8,000 tons of rice imported from other regions. as compared
to 24,000 tons in 1990..
The TerritorialGovernmentset a target of developing400 hectares of nev
rice paddies in 1992/93 to achieve self-sufficiencyin rice production.
In 1989, there were more than 136 kilometresof irrigationcanals in East
Timor, capable of supplying rater for 6.000 hectares of paddyfields.
In 1989, animal husbandry i'ndicatorswere as follows: covs, 63,612;
horses, 24,993; goats, 91,214;buffalo. 43.554: sheep. 31.099: pigs, 256,031;
chickens, 494,767; broilers, 144,614;and ducks, 31,750.
In 1989, 680 tons of ocean fish and 48 tons of freshwaterfish vere
landed.
According toan Indoneaian publication.three foreign companieshad
expressed interest in investingin businessesin Lautem regency, 255
kilometreseast of Dili. A Japanese and a South iioreancompany vere
considering establishing joint ventures with Indonesian counterparts to
process canned fish products, while an Australiaf nirm vas considering
developmentof a cattle-raisingproject in cooperationvith "domestic"firms. A/AC.l09/1115 .
English
Page 17
Forestedareas in East Timor consist of 25,165hectares of nature
reserve,13,687 hectares of forest for recreationalpurposes,432,277 hectares
of protected forest, 170.484 hectaresof limitedforest.45 hectaresof
productiveforest &ad 10.000 hectaresof convertibleforest.
In 1989, the road network of East Timor consistedof 650 kilometresof
"national roads" (49 per cent asphalt and 51 per cent gravelled)and 989
kilometres of "provincial roads" (22 per cent asphaltand 78 per cent.
gravelled).
Prom 1976 to 1989, 20 bridgesvere constructed,vith a total length of
959 metres. In 1988/89, àp 21,800 million ras allocatedto rond network
construction. In 1989, 330 traffic signs vere installedin Dili and other
areas.
In 1989, there vere 187 buses, 1,964 passengec rars, 1,567 trucks and
5,476 ~notorcycles.The Comoro airportras being improved.
-
Dili seaport,with a 180-metrequay 9 metrei deep, can accommodate5.000
d.v.t. vessels. ï'hreeto £ive vessels cal1 at the port weekly. Other local
aeaportsare under constructionat Pante Makasar (Ambeno).Laga (Baucau),Con
(tautem),Beasu (Viquepue)md Betano (Manufahi).
For 1990/91, Rp 1.5 billion ras allocatedfor executingintegrated
developmnt projects Sn Nitibe (Ambeno),Ossu (Viqueque),Alos (Manufahi).
.Manatut0and Maro (Lautem),Maubara (Liquisa)and Dili.
As of the end of 1988, there vere 1.032 units of industrialenterprises,
comprisingseven multifacetsd industries and 1,025 small-scaleand handicraft
industries. Multifacetediadustriesemployed830 persons and produced goods
valued at Rp 1,380 million. Smsll-scaleestablishmentsand businesses
employed'3,949persons and producedgoods rorth Rp 1.330 million. It vas
estimatedthat 90.4 per cent of those enterprisesvere privatelyomed.
wation and s ~ & e s
In 1988/89,there'were26 kindergartenswith 1,713 pupils and 73
teachers; 565primary schoolswith.128,566 studentsand 4,357 teschers;, 90
junior highschools rith 33,314 studentsand 1.179 tebchers:and 33 upper
secondaryschools with 11,818 studentsand 675 teachers.
In 1989, there vere tvî universities, Timor Timuz Universityand Open
University,and one academy, theKataketikAcademy. The Open University vas
attendedby 701 students,and KataketikAcadeniy by 48 students. A/AC.109/1115
Euglish
Page 18
In March 1992, itras reported thatthe only school in the Territory
which gave instruction in Portugueseand taupht Indonesian as a second
languagewould be shut dom with the agreement of Roman Catholic Church
authorities. The Indonesian newspaper said that the school had become
notoriousfollowing reports that many of its students had been involvedin the
demonstrationthat had ledto the 12 November incident. The school is located
near the Santa Cruz cemetery. a/
Tbere were eightState-ruil general hospitalsand a nunber of public
health centres. The medical personnel included 6 specialists,149 physicians,
75 midwives and 452 nurses. The ratio of physicians tothe population was
1:7,000. In 1989/90,over Rp 3 biliion was allocated to public health
progrmes.
Tourism
The Governnwntof Indonesia allocatedRp 100 million for tourism
j developmentin East Timor in 1991/92. The funds wereto be used for the
developmentof coastal resorts.parks and other facilities. TheIndonesian
Directorate Generalof Tourisn had assigned a team to survey areas in East
1 Timor which mightbe developsd into tourist resorts.
L/ World Po~ula~~ects. 199Q (UnitedNations publication
(ST/ESA/SER.A/120), Sales No. E.9l.XIII.4). p. 140.
2/ For details, see correspondingsections ofthe previous working
papers contained in documentsA/AC.109/L.1328,A/AC.109/623.663, 715, 747,
783, 836,871, 919, 961 and 1001.
3/ See General Assemblyresolutions1699 (XVI), 1807 (WII),
1913 (XVIII),2107 (Xi). 2184 (XXI). 2395 (XXIII), 2507 (XXIV), 2707 (XXV),
2795 (XXVI),2918 (XXVII).3113 (MLVIII). 3294 (XXIX), 3485 (XXX) and 31/53,
relatingto the questionof Territories under Portuguese administration,
including EastTimor; see also Assembly resolutions32/34, 33/39, 34/40,
35/27, 36/50 and 37/30 on the question of East Timor.
4/ See A/35/233, A/36/160,A/37/113. A/38/125, A/39/136, A/40/159,
A/41/190,A/42/171,A/43/219,A/44/262. A/45/172, A/46/131 and A/47/189.
Owing to lack of officia1 information frOm the administeringPower, the
information contained in the present paperhas been derived from published
reports.
/ A/38/352.A/39/361,A/40/622, A/41/602, A/42/539, A/43/588, A/44/529
and A/45/501. A/AC.109/111.5
English
Page 13
(continued)
-/ General Assembly decisions 38/402, 39/402, 40/402 and 43/402; see
also A/41/PV.3, A/44/PV.3, A/45/PV.3 and A/46/PV.3.
-/ Official Records of the General Assemblv. Thirtv-eiahth Session,
Suoolement No. 23 (A/38/23): ibid.. Thirtv-ninth Session. Suoolement No. 23
(A/39/23); ibid., Eortieth Session. Su~olement No. 23 (A/40/23): ibid..
Fortv-first Session. Su~olementNo. 23 (A/41/23): ibid., Eortv-second Session,
Suoolement No. 2% (A/42/23): ibid., L o o
(A/43/23): ibid., Portv-fourth Session, Suoolement No. 23 (A/44/23); and
'\id., Fortv-fifth Session, Su~olementNo. 23(A/45/23); A/AC.109/PV.1363.
.66, 1367 and 1368.
-8/ See 0 9 ,
Suoplement No. ? (E/1983/14-E/CN.4/1983/60).
e/ Ibid., 1985. Suo~.ementNo. 2 (E/1985/22-E/CN.4/1985/66),paras. 276
and 277.
-10/ E/CN.4/Sub.2/1988/L.26and press releaseHR/3361.
-11/ See E/CN.4/Sub.2/1989/58-E/CN.4/1990/2: E/CN.4/1991/2-
E/CN.4/Sub.2/1990/59.
-5/ See HR/cN/~~~.
Ip/ Indonesian Observer, 9 April 1992.
/ Far Eastern EconcnicReview, 26 March 1992.
18/ The New York Times, 21 October 1990.
-
Le/ Indonesian Observ-L, 8 April 1992.
U/ Q PUbiic~ (Lisbon),6 March 1992.
-1/ Press release No. ICJ/495. 6 ~arch 1991.
22/ Qfficial Records of the General Assemblv,Fortv-sixth Session,
~uoolement No. 4 (A/46/4),p. 16.
-31 The Australian (Melbourne).26 August 1991. A/AC.109/1115
Page 20
24/ Permanent Mission ofthe Republic of Indonesia tothe United
Nations, press releaseNo. 05/PR/110691.
-5/ Press statement of the Indonesian Mission,No. 02/PR/92 of
25 February 1992; The SundavAue (Australian),23 March 1992.
L a/ The Guardian, 23 April 1992.
-7/ United States Department ofState. ntrv Reports on Human Riaht~
Practices for 1991. Indonesia (United States Goverment Printing Office,
Washington, D.C., February 1992), pp. 892-909.
I -81 A/46/714, annex 1. p. 8
a/ Uniteb States Departmentof State, Çountrv Reports on Human Riahts
Practices for 1991. Indonesia, p. 861.
l
I s/ A/46/714, annex II, pp. 13-14.
/ Permanent Mission of the Republic of Indonesia to the United
Nations, press release No. 10/PR/123191, 31 December 1991(A/47/240,
annex IV).
=/ Permanent Mission ofthe Republic of Indonesia to the United
Nations, press release No./PR/92, 28 February 1992 (A/47/240, annex VI).
=/ Asia Watch, vol. 4, No. 1, 3 January 1992, p. 1.
=/ Ibid., vol. 3. No. 23, 12 December 1991, para. 1.
=/ E/CN.4/1992/17/Add.l,paras. 48, 53, 64 and 65.
=/ Far Eastern EconomicReview, 2 April and 4 June 1992.
=/ 9 Piiblico(Lisbon), 14-15 April 1992.
B/ The information has beenderived from various sourcAntara,
Public Relations Bureauof East Timor, 1990. pp. 34-37; andFacts on East
Timor,House of Representativesof the Republicof Indonesia, 1990, pp. 30 and
33.
u/ The currency of the Territisythe Indonesian rupiahAs of
7 July 1992, US$ 1.00 equals Rp 2030.54.
w/ Jakarta Post, 30 March 1992.
Rejoinder of the Government of Australia