| I. | Substantive International Law - First Part |
| 5. | THE UNITED NATIONS |
| 5.2. | General Assembly |
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East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90
[pp. 103-104] 31. ... 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.
[p. 186 D.O. Weeramantry] When, therefore, the General Assembly
determines that a particular dependent territory has not exercised the right of
self-determination or that a particular State is recognized as the administering
Power over a dependent territory, the Assembly is making a determination within
the area of its competence, and upon a review of a vast range of material
available to it. Legal consequences follow from these determinations.
Of course there are resolutions of the General Assembly which are of an
entirely hortatory character. Many resolutions of the General Assembly are. But
a resolution containing a decision within its proper sphere of competence may
well be productive of legal consequences. As this Court observed in Namibia,
the General Assembly is not "debarred from adopting, ... within the
framework of its competence, resolutions which make determinations or have
operative design" (Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 50,
para. 105).
Even more is this so when those resolutions have been expressly accepted and
endorsed by the Security Council, which is the case in relation to the
resolutions on the status of Portugal as administering Power.
Thus resolutions of the General Assembly which expressly reject the claim
that East Timor has been integrated into Indonesia (32/34 of 28 November 1977)
declare that the people of East Timor must be enabled to determine their own
future freely within the framework of the United Nations (35/27 of 11 November
1980) and expressly recognize Portugal as the administering Power (3485 (XXX),
34/40, 35/27, 36/50 and 37/30) are resolutions which are productive of legal
effects.
