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World Court Digest

I. Substantive International Law - First Part
7.6. Invalidity

¤ 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.

1Footnote omitted
2Footnote omitted