| I. | Substantive International Law - First Part |
| 2. | SOURCES OF INTERNATIONAL LAW |
| 2.2. | Customary International Law |
| 2.2.1. | Formation of Customary International Law |
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East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90
[pp. 103-104] 31. The Court notes that the argument of Portugal
under consideration rests on the premise that the United Nations resolution, and
in particular those of the Security Council, can be read as imposing an
obligation on States not to recognize any authority on the part of Indonesia
over the Territory and, where the latter is concerned, to deal only with
Portugal. The Court is not persuaded, however, that the relevant resolutions
went so far.
For the two Parties, the Territory of East Timor remains a
non-self-governing territory and its people has the right to self-determination.
Moreover, the General Assembly, which reserves to itself the right to determine
the territories which have to be regarded as non-self-governing for the purposes
of the application of Chapter XI of the Charter, has treated East Timor as such
a territory. The competent subsidiary organs of the General Assembly have
continued to treat East Timor as such to this day, Furthermore, the Security
Council, in its resolutions 384 (1975) and 389 (1976) has expressly called for
respect for "the territorial integrity of East Timor as well as the
inalienable right of its people to self-determination in accordance with General
Assembly resolution 1514 (XV)".
Nor is it at issue between the Parties that the General Assembly has
expressly referred to Portugal as the "administering Power" of East
Timor in a number of the resolutions it adopted on the subject of East Timor
between 1975 and 1982, and that the Security Council has done so in its
resolution 384 (1975). The Parties do not agree, however, on the legal
implications that flow from the reference to Portugal as the administering Power
in those texts.
32. The Court finds that it cannot be inferred from the sole fact that the
above-mentioned resolutions of the General Assembly and the Security Council
refer to Portugal as the administering Power of East Timor that they intended to
establish an obligation on third States to treat exclusively with Portugal as
regards the continental shelf of East Timor. The Court notes, furthermore, that
several States have concluded with Indonesia treaties capable of application to
East Timor but which do not include any reservation in regard to that Territory.
Finally, the Court observes that, by a letter of 15 December 1989, the Permanent
Representative of Portugal to the United Nations transmitted to the
Secretary-General the text of a note of protest addressed by the Portuguese
Embassy in Canberra to the Australian Department of Foreign Affairs and Trade on
the occasion of the conclusion of the Treaty on 11 December 1989; that the
letter of the Permanent Representative was circulated, at his request, as an
official document of the forty-fifth session of the General Assembly, under the
item entitled "Question of East Timor", and of the Security Council;
and that no responsive action was taken either by the General Assembly or the
Security Council.
Without prejudice to the question whether the resolutions under discussion
could be binding in nature, the Court considers as a result that they cannot be
regarded as "givens" which constitute a sufficient basis for
determining the dispute between the Parties.
[p. 188 D.O. Weeramantry] The foregoing observations have a bearing
on the definitive effects of General Assembly resolutions regarding Portugal's
status, East Timor's status as a non-self-governing territory, and East Timor's
right to self-determination. Additionally, since the General Assembly is the
appropriate body for recognition of the Power holding authority over a
non-self-governing territory, the absence of any General Assembly
resolution recognizing Indonesia's authority over East Timor is also a
circumstance from which a legal inference may be drawn. The General Assembly resolutions also have a bearing
on the responsibility of all nations to cooperate fully in the
achievement of self-determination by East Timor. The various resolutions of the
General Assembly relating to this right in general terms, which have helped
shape public international law, and are an important material source of
customary international law in this regard 1, are specifically strengthened so
far as concerns the situation in East Timor, by the particular resolutions
relating to that Territory.
