I. | Substantive International Law - First Part |
5. | THE UNITED NATIONS |
5.6. | Relationship between Different Organs |
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East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90
[pp. 189-190 D.O. Weeramantry] One of Australia's contentions was
that the progressively lessening vote in favour of the General Assembly
resolutions cited by Portugal showed that those resolutions were of a
diminishing level of authority. This suggestion in effect calls upon
this Court to venture into the uncertain area of the political history of
resolutions of the General Assembly and to indulge in a vote-counting exercise
to assess the strength of a particular resolution. Speculation on the possible
meaning of voting procedures in the General Assembly is not the province
of this Court. Rather the Court's concern is whether that General Assembly
resolution has been duly passed by that principal organ of the United Nations
within the ambit of its legal authority. Once thus passed, it commands
recognition and it is part of the courtesy due by one principal organ of the
United Nations to another to respect that resolution, irrespective of its
political history or the voting strength it reflects.
[p. 246 D.O. Skubiszewski] 70. The basis for the decision on
jurisdiction and admissibility and, further, on the merits is the status of East
Timor. Under the law of the United Nations East Timor was and, in spite of its
incorporation into Indonesia, remains a non-self-governing territory in the
sense of Chapter XI of the United Nations Charter. This issue, fundamental to
the case, is governed by the law of the United Nations. Unless the Court finds
that the Organization acted ultra vires, the Court's opinion cannot
diverge from that law and from the implementation of the rules of that law in
the practice of the Organization, especially as reflected in the
relevant resolutions of the General Assembly and the Security
Council 1.
71. Under the law and in the practice of the Organization the implementation
of Chapter XI of the Charter is part and parcel of the functions of the
General Assembly. In at least some issues falling under that Chapter Member
States are not confronted with mere recommendations: the Assembly is competent
to make binding determinations, including determinations on the continued
classification of an area as a non-self-governing territory or on the
administering Power.
[p. 251 D.O. Skubiszewski] 86. The Court is competent, and this is
shown by several judgments and advisory opinions, to interpret and apply the
resolutions of the Organization. The Court is competent to make findings on
their lawfulness, in particular whether they were intra vires. This
competence follows from its function as principal judicial organ of the United
Nations. The decisions of the Organization (in the broad sense which this notion
has under the Charter provisions on voting) are subject to scrutiny by the Court
with regard to their legality, validity and effect. The pronouncements of
the Court on these matters involve the interests of all Member
States or at any rate those which are the addressees of the relevant
resolutions. Yet these pronouncements remain within the limits of Monetary
Gold. By assessing the various United Nations resolutions on East Timor in
relation to the rights and duties of Australia the Court would not be breaking
the rule of the consensual basis of its jurisdiction.
1 | The Memorial speaks of "une donnée" (a "given")
of which "the Court will only need to take note". This "donnée"
is constituted by the "affirmations" that "the people of East
Timor enjoy the right of self-determination, that the Territory of East Timor is
a non-self-governing Territory, and lastly, that Portugal is de jure the
administering Power thereof" (para. 3.02). |