| I. | Substantive International Law - First Part |
| 7. | LAW OF TREATIES |
| 7.6. | Invalidity |
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East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90
[pp. 101-102] 27. The Court notes that Portugal's claim that, in
entering into the 1989 Treaty with Indonesia, Australia violated the obligation
to respect Portugal's status as administering Power and that of East Timor as a
non-self-governing territory, is based on the assertion that Portugal alone, in
its capacity as administering Power, had the power to enter into the Treaty on
behalf of East Timor; that Australia disregarded this exclusive power, and, in
so doing, violated its obligations to respect the status of Portugal and that of
East Timor.
The Court also observes that Australia, for its part, rejects
Portugal's claim to the exclusive power to conclude treaties on behalf of East
Timor, and the very fact that it entered into the 1989 Treaty with Indonesia
shows that it considered that Indonesia had that power. Australia in substance
argues that even if Portugal had retained that power, on whatever basis, after
withdrawing from East Timor, the possibility existed that the power could later
pass to another State under general international law, and that it did so pass
to Indonesia; Australia affirms moreover that, if the power in question did pass
to Indonesia, it was acting in conformity with international law in entering
into the 1989 Treaty with that State, and could not have violated any of the
obligations Portugal attributes to it. Thus, for Australia, the fundamental
question in the present case is ultimately whether, in 1989, the power to
conclude a treaty on behalf of East Timor in relation to its continental shelf
lay with Portugal or with Indonesia.
28. The Court has carefully considered the argument advanced by Portugal
which seeks to separate Australia's behaviour from that of Indonesia. However,
in the view of the Court, Australia's behaviour cannot be assessed without first
entering into the question why it is that Indonesia could not lawfully have
concluded the 1989 Treaty, while Portugal allegedly could have done so; the very
subject-matter of the Courts decision would necessarily be a determination
whether, having regard to the circumstances in which Indonesia entered and
remained in East Timor, it could or could not have acquired the power to enter
into treaties on behalf of East Timor relating to the resources of its
continental shelf. The Court could not make such a determination in the absence
of the consent of Indonesia.
[p. 125 S.O. Shahabuddeen] Second, as to the validity of the 1989
Treaty. There are situations in which the Court may determine that an
international obligation has been breached by the act of negotiating and
concluding an inconsistent treaty, without the decision being considered as
passing on the validity of the treaty 1. But a situation of that kind is distinguishable from one in which the essential ground of the alleged breach and of any relief sought necessarily implies that a State which is a party to a
bilateral treaty with the respondent but not a party to the case lacked the
capacity in international law to enter into the treaty. Where this would be the
true ground of decision, as it would be here, it is difficult to avoid the
conclusion that the validity of the treaty was being passed upon in the absence
of the State concerned. Further, as pointed out above, an order enjoining
Australia from implementing the Treaty would itself presuppose a finding of
invalidity.
[p. 199 D.O. Weeramantry] Australia has submitted (Counter-Memorial,
paras. 379-380) that, even assuming that in exercising their right to
self-determination the people of East Timor become in the future an independent
State, it would be for the new State to decide whether or not to reject the
Treaty. The Court has been referred in this connection to the observation of
the Arbitration Tribunal in the dispute between Guinea-Bissau and Senegal to
the effect that a "newly independent State enjoys a total and absolute
freedom" to accept or reject treaties concluded by the colonial power after
the initiation of the process of national liberation 2.
While this proposition is incontrovertible, it seems purely academic in the
present context as it loses sight of three facts. In the first place, it may be
many years before East Timor exercises the right of self-determination.
Secondly, the Treaty is set to last for an initial period of 40 years,
and thirdly the resources dealt with are of a non-renewable nature. By the time
the East Timorese people achieve this right, those resources or some part of
them could well have been lost to them irretrievably. Had the resources dealt
with been renewable resources, it might have been arguable that a temporary use
of the resource would not amount to a permanent deprivation to the owners of the
resource which is rightfully theirs. That argument is not available in the
present case.
When, against this firm background of legal obligation, a Treaty is entered
into which expressly describes East Timor as an Indonesian province, and
proceeds without the consent of its people to deal with the natural resources of
East Timor in a manner which may have the effect of compromising or
alienating them, there can be no doubt that any nation that claims rights under
that treaty to what may be the resources of East Timor is in breach of
obligations imposed upon it by general principles of international law.
A further consideration is that with the increasing international
recognition of the right to development, any action that may hinder the free
exercise of this right assumes more importance now than in the past.
| 1 | Footnote omitted |
| 2 | Footnote omitted |
