| II. | Substantive International Law - Second Part |
| 5. | SELF-DETERMINATION |
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East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90
[p. 102] 29. However, Portugal puts forward an additional argument
aiming to show that the principle formulated by the Court in the case concerning
Monetary Gold Removed from Rome in 1943 is not applicable in the present
case. It maintains, in effect, that the rights which Australia allegedly
breached were rights erga omnes and that accordingly Portugal could
require it, individually, to respect them regardless of whether or not another
State had conducted itself in a similarly unlawful manner.
In the Court's view, Portugal's assertion that the right of peoples to
self-determination, as it evolved from the Charter and from United Nations
practice has an erga omnes character, is irreproachable. The principle
of self-determination of peoples has been recognized by the United Nations
Charter and in the jurisprudence of the Court (see 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, pp. 31-32, paras. 52-53; Western Sahara, Advisory Opinion,
I.C.J. Reports 1975, pp. 31-33, paras. 54-59); it is one of the
essential principles of contemporary international law. However, the Court
considers that the erga omnes character of a norm and the rule of
consent to jurisdiction are two different things. Whatever the nature of the
obligations invoked, the Court could not rule on the lawfulness of the conduct
of a State when its judgment would imply an evaluation of the lawfulness of the
conduct of another State which is not a party to the case. Where this is so, the
Court cannot act, even if the right in question is a right erga omnes.
[pp. 105-106] 36. The Court recalls in any event that it has taken
note in the present judgment (paragraph 31) that, for the two Parties, the
Territory of East Timor remains a non-self-governing territory and its people
has the right to self-determination.
[p. 135 S.O. Vereshchetin] Besides Indonesia, in the absence of
whose consent the Court is prevented from exercising its jurisdiction over the
Application, there is another "third party" in this case, whose
consent was sought neither by Portugal before filing the Application with the
Court, nor by Australia before concluding the Timor Gap Treaty. Nevertheless,
the Applicant State has acted in this Court in the name of this "third
party" and the Treaty has allegedly jeopardized its natural resources. The "third
party" at issue is the people of East Timor.
Since the Judgment is silent on this matter, one might wrongly conclude that
the people, whose right to self-determination lies at the core of the whole
case, have no role to play in the proceedings. This is not to suggest that the
Court could have placed the States Parties to the case and the people of East
Timor on the same level procedurally. Clearly, only States may be parties in
cases before the Court (Article 34 of the Statute of the Court). This is merely
to say that the right of a people to self-determination, by definition, requires
that the wishes of the people concerned at least be ascertained and taken into
account by the Court.
[p. 138 S.O. Vereshchetin] The United Nations Charter, having been
adopted at the very outset of the process of decolonization, could not
explicitly impose on the administering Power the obligation to consult the
people of a non-self-governing territory when the matter at issue directly
concerned that people. This does not mean, however, that such a duty has no
place at all in international law at the present stage of its development and in
the contemporary setting of the decolonization process, after the adoption of
the Declaration on the Granting of Independence to Colonial Countries and
Peoples (General Assembly resolution 1514 (XV)).
In the Western Sahara Advisory Opinion the Court states that : "in
certain cases the General Assembly has dispensed with the requirement of
consulting the inhabitants of a given territory" (I.C.J. Reports 1975.
p. 33, para. 59; emphasis added). By implication, it means that, as a rule,
the requirement to consult does exist and only "in certain cases" may
it be dispensed with. The exceptions to this rule are stated in the same dictum
of the Court and, as has been shown above, they could not be held to apply in
the present case. I believe that nowadays the mere denomination of a State as
administering Power may not be interpreted as automatically conferring upon that
State general power to take action on behalf of the people concerned,
irrespective of any concrete circumstances.
[pp. 194-197 D.O. Weeramantry] All of these submissions make it
important to note briefly the central nature of this right in contemporary
international law, the steady development of the concept, and the wide
acceptance it has commanded internationally. Against that background, any
interpretations of that right which give it less than a full and effective
content of meaning would need careful scrutiny.
In the first place, the principle receives confirmation from all the sources
of international law, whether they be international conventions (as with the
International Covenants on Civil and Political Rights and Economic, Social and
Cultural Rights), customary international law, the general principles of law,
judicial decisions, or the teachings of publicists. From each of these sources,
cogent authority can be collected supportive of the right, details of which it
is not necessary to recapitulate here.
Secondly, it occupies a central place in the structure of the United
Nations Charter, receiving mention from it in more than one context.
Enshrined in Article 1(2) is the principle that friendly relations among
nations must be developed by the United Nations on the basis of equal rights and
self-determination. Developing such friendly relations is one of the Purposes of
the United Nations - central to its existence and mission. There is thus an
inseparable link between a major purpose of the United Nations and the concept
of self-determination. The same conceptual structure is repeated in Article 55,
which observes that respect for equal rights and self-determination is the basis
on which are built the ideal of peaceful and friendly relations among nations.
Article 55 proceeds to translate this conceptual structure into practical
terms. It recognizes that peaceful and friendly relations, though based on the
principle of equal rights and self-determination, need conditions of stability
and well-being, among which conditions of economic progress and development are
specified.
Since the development of friendly relations among nations is central to the
Charter, and since equal rights and self-determination are stated to be the
basis of friendly relations, the principle of self-determination can itself be
described as central to the Charter.
The Charter spells out its concern regarding self-determination with more
particularity in Chapter XI. Dealing specifically with the economic aspect of
self-determination, it stresses, in Article 55, that stability and well-being
are necessary for peaceful and friendly relations, which are in their turn based
on respect for the principle of equal rights and self-determination.
With a view to the creation of these conditions of stability and well-being, the
United Nations is under a duty to promote, inter alia, "conditions
of economic ... progress and development" (emphasis added).
This is followed by Article 56 which contains an express pledge by
every Member "to take joint and separate action, in co-operation with the
Organization for the achievement of the purposes set forth in Article 55".
This is a solemn contractual duty, expressly and separately assumed by every
Member State to promote conditions of economic progress and development,
based upon respect for the principle of self-determination.
With specific reference to non-self-governing territories, Article 73 of the
United Nations Charter sets out one of the objects of the administration
of non-self-governing territories as being:
"to develop self-government, to take due account of the political
aspirations of the peoples, and to assist them in the progressive development of
their free political institutions ..." (Art. 73 (b)).
This responsibility is imposed upon the administering Power under the
principle that the interests of the inhabitants of these territories are
paramount. The solemn nature of this responsibility is highlighted in its
description as a "sacred trust".
The central importance of the concept, and the desire to translate
it into practical terms, are thus built into the law of the United Nations. Its
Charter is instinct with the spirit of co-operation among nations towards the
achievement of the Purposes it has set before itself. Integral to those
Purposes, and providing a basis on which they stand, is the principle of
self-determination.
Thirdly, the basic provisions of the Charter have provided the foundation
upon which, through the continuing efforts of the United Nations, a
superstructure has been built which again aims at practical implementation of
the theoretical concept. Through its practical contribution to the liberty of
nations, the world community has demonstrated its resolve to translate its
conceptual content into reality.
Indeed, the General Assembly's special concern to translate this legal
concept into practical terms has been unwavering and continuous, as reflected in
its appointment of the Committee on Information from Non-Self-Governing
Territories and the conversion of the Committee into a semi-permanent
organ as a result of a General Assembly resolution of December 196l. The Special
Committee (the Committee of Twenty-Four) on the Situation with regard to the
Implementation of the Declaration on the Granting of Independence to Colonial
Countries and Peoples keeps this concern alive as a successor to the Committee
of Information. That Committee has consistently retained the case of East Timor
on its list of matters awaiting a satisfactory solution.
Landmark declarations of the United Nations on this matter have strengthened
the international community's acceptance of this principle. The Declaration on
the Granting of Independence to Colonial Countries and Peoples (General Assembly
resolution 1514 (XV) of 20 December 1960), and the Declaration on
Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations (General
Assembly resolution 2625 (XXV) of 24 October 1970) are among these Declarations.
The International Covenant on Civil and Political Rights (1966), and the
International Covenant on Economic, Social and Cultural Rights (1966),
constitute an unequivocal acceptance by treaty of the obligation to recognize
this right.
The importance accorded to this right by all sections of the
international community was well reflected in the discussions in the United
Nations which preceded the acceptance of the Declaration of Friendly Relations.
A recent study of these discussions collects these sentiments in a form
which reflects the central importance universally accorded to this principle. As
that study observes, the principle was variously characterized at those
discussions as "one of the most important principles embodied in the
Charter" (Japan); "one of the foundation stones upon which the United
Nations was built" (Burma); "basic to the United Nations Charter"
(Canada); "one of the basic ideals constituting the raison d'être
of the Organization" (France); "the most significant example of
the vitality of the Charter and its capacity to respond to the changing
conditions of international life" (Czechoslovakia); "a universally
recognized principle of contemporary international law" (Cameroon); "one
of the fundamental norms of contemporary international law" (Yugoslavia); "a
fundamental principle of contemporary international law binding on all States"
(Poland); "one of paramount importance in the present era of decolonization"
(Kenya); and "indispensable for the existence of [the] community of nations"
(United States of America).
Reference should be made finally to this Court's contribution, which has
itself played a significant role in the establishment of the concept on a firm
juridical basis (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. 16;
Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12).
Such is the central principle on which this case is built. In adjudging
between the two interpretations of this right presented to the Court by the two
Parties, this brief survey of its centrality to contemporary international law
is not without significance.
On the one hand, there is an interpretation of this right which claims that
it is not violated in the absence of violation of an express provision of a
United Nations resolution. It is pointed out, in this connection, that there are
no United Nations resolutions prohibiting or criticizing the recognition of East
Timor as a province of Indonesia. On the other hand, it is argued that being
party to an agreement which recognizes the incorporation of a non-self-governing
territory in another State and deals with the principal non-renewable asset of a
people admittedly entitled to self-determination, before they have exercised
their right to self-determination, and without their consent, does in fact
constitute such a violation. The history of the right, and of its development
and universal acceptance make it clear that the second interpretation is more in
consonance with the content and spirit of the right than the first.
Against this background, it is difficult to accept that, in regard to so
important a right, the duty of States rests only at the level of
assistance to the United Nations in such specific actions as it may take, but
lies dormant otherwise.
[pp. 197-198 D.O. Weeramantry] Sovereignty over their economic
resources is, for any people, an important component of the totality of
their sovereignty. For a fledgling nation, this is particularly so. This is
the wisdom underlying the doctrine of permanent sovereignty over natural
resources, and the wisdom which underlies the protection of this resource for a
non-self-governing people until they achieve self-determination.
In the present case, it is impossible to venture a prediction as to how long
it will be before the East Timorese people achieve self-determination. It may be
a very brief period or it may take many years. The matter has remained
unresolved already for nearly twenty years, since the Indonesian military
intervention.
Should a period of years elapse until such time, and the Treaty is in full
operation in the meantime, a substantial segment of this invaluable resource may
well be lost to East Timor for all time. This would be a loss of a significant
segment of the sovereignty of the people.
This is not a situation which international law, in its present state of
development, can contemplate with equanimity.
At such time as the East Timorese people exercise their right to
self-determination, they would become entitled as a component of their sovereign
right, to determine how their wealth and natural resources should be disposed
of. Any action prior to that date which may in effect deprive them of this right
must thus fall clearly within the category of acts which infringe on their right
to self-determination, and their future sovereignty, if indeed full and
independent sovereignty be their choice. This right is described by the General
Assembly, in its resolution on Permanent Sovereignty over Natural Resources, as
"the inalienable right of all States freely to dispose of their natural
wealth and resources in accordance with their national interests ..."
(General Assembly resolution 1803 (XVII)). The same resolution notes that
strengthening permanent sovereignty over natural resources reinforces the
economic independence of States.
Resolution 1803 (XVII) is even more explicit in that it stresses that:
"The exploration, development and disposition of such resources ...
should be in conformity with the rules and conditions which the peoples and
nations freely consider to be necessary or desirable with regard to the
authorization, restriction or prohibition of such activities." (I,
para. 2; emphasis added.)
The exploration, development and disposition of the resources of the Timor
Gap, for which the Timor Gap Treaty provides a detailed specification, has most
certainly not been worked out in accordance with the principle that the people
of East Timor should "freely consider" these matters, in regard to
their "authorization, restriction or prohibition".
The Timor Gap Treaty, to the extent that it deals with East Timorese
resources prior to the achievement of self-determination by the East Timorese
people, is thus in clear violation of this principle.
[p. 202 D.O. Weeramantry] However this may be, the central issue
before the Court is whether the acteptance of this right of East Timor
accords with the conclusion of a Treaty recognizing East Timor as a province of
Indonesia, and whether that act of concluding the Treaty militates against such
rights as East Timor may enjoy to the natural resources that are dealt with by
the Treaty. There is no qualification anywhere in that Treaty of the recognition
it accords to Indonesian sovereignty, such as appears in the statements of
Australia made outside the Treaty.
Upon the basis of the averments in the Treaty, it would seem
therefore that Portugal's assertion of an incompatibility between Australia's
action in entering into the Timor Gap Treaty, and Australia's recognition of the
principle of self-determination, raises issues requiring close
consideration.
If self-determination is a right assertible erga omnes, and is thus
a right opposable to Australia, and if Australia's action in entering into the
Treaty is incompatible with that right, Australia's individual action, quite
apart from any conduct of Indonesia, would not appear to be in conformity with
the duties it owes to East Timor under international law.
[p. 209 D.O. Weeramantry] The existence of a right is juristically
incompatible with the absence of a corresponding duty. The correlativity of
rights and duties, well established in law as in logic (see, especially,
Hohfeld, Fundamental Legal Conceptions, 1923), means that if the people
of East Timor have a right erga omnes to self-determination, there is a
duty lying upon all Member States to recognize that right. To argue otherwise is
to empty the right of its essential content and, thereby, to contradict the
existence of the right itself. It is too late in the day, having regard to the
entrenched nature of the rights of self-determination and permanent sovereignty
over natural resources in modern international law, for the accompanying duties
to be kept at a level of non-recognition or semi-recognition.
[p. 211 D.O. Weeramantry] Juristically analysed, it is not
appropriate to view self-determination as though the totality of the duties it
entails consist only in obedience to specific directions of the United Nations.
Performance of duties and obligations must be tested against the basic
underlying norms and principles, rather than against such specific directions or
prohibitions as might have been prescribed. Quite clearly, an obligation cannot
cease to exist merely because specific means of compliance are not prescribed,
nor is its underlying general principle exhausted by the enumeration of
particular itemized duties. The duty of respect and compliance extends beyond
the letter of specific command and prohibition.
[p. 212 D.O. Weeramantry] In the circumstances of this case, the act
of being party to the Timor Gap Treaty would appear to be incompatible with
recognition of and respect for the principle of East Timor's rights to
self-determination and permanent sovereignty over natural resources inasmuch as,
inter alia, the Treaty:
| (1) | | expressly recognizes East Timor as a province of Indonesia without its
people exercising their right; |
| (2) | | deals with non-renewable natural resources that may well belong
to that Territory; |
| (3) | | makes no mention of the rights of the people of East Timor, but only of
the mutual benefit of the peoples of Australia and Indonesia in the development
of the resources of the area (Preamble, para. 6); |
| (4) | | makes no provision for the event of the East Timorese people deciding to
repudiate the Treaty upon the exercise of their right to
self-determination; |
| (5) | | specifies an initial period of operation of 40 years, with possible
renewals for successive terms of 20 years; and |
| (6) | | creates a real possibility of the exhaustion of this resource
before it can be enjoyed by the people of East Timor. |
These aspects, all prima facie contradictory of the essence of
self-determination and permanent sovereignty over natural resources, do not
cease to have that character because treaty-making with Indonesia has been
expressly prohibited.
[p. 215 D.O. Weeramantry] It has thus happened that no Judgment of
this Court thus far has addressed the consequences of violation of an erga
omnes obligation. The present case, had it passed the jurisdictional
stage, would have been just such a case where the doctrine's practical effects
would have been considered. Since this opinion proceeds on the basis that the
merits must be considered, it must advert to the consequences of violation of an
erga omnes obligation.
All the prior cases before this Court raised the question of duties
owed erga omnes. That aspect is present in this case as well, for
every State has an erga omnes duty to recognize self-determination and,
to that extent, if Portugal's claim is correct, Australia is in breach of that
general erga omnes duty towards East Timor 1.
However, this case has stressed the obverse aspect of rights opposable
erga omnes - namely, the right erga omnes of the people of East
Timor to the recognition of their self-determination and permanent sovereignty
over their natural resources. The claim is based on the opposability of the
right to Australia.
In Barcelona Traction, the Court's observations regarding
obligations owed to the international community as a whole were not
necessary to the case before it. Yet, though its observations were obiter,
the notion of obligations erga omnes developed apace thereafter.
The present case is one where quite clearly the consequences of the erga
omnes principle follow through to their logical conclusion - that the
obligation which is a corollary of the right may well have been contravened.
This would lead, in my view, to the grant of judicial relief for the violation
of the right.
I am conscious, in reaching this conclusion, that the violation of an
erga omnes right has not thus far been the basis of judicial relief
before this Court. Yet the principles are clear, and the need is manifest for a
recognition that the right, like all rights, begets corresponding duties.
[p. 266 D.O. Skubiszewski] 136. By. virtue of Chapter XI of the
Charter the East Timorese right to self-determination is the focal point of the
status of the Territory. This has been confirmed by several United Nations
resolutions which have been adopted since the invasion of East Timor by
Indonesia and since the incorporation of the Territory into that State.
137. The issue is not limited to the quadrilateral relationship (which today
finds its expression in the Geneva consultations), that is, the people of East
Timor, the United Nations, Portugal and Indonesia. In particular, the duty to
comply with the principle of self-determination in regard to East Timor does not
rest with Portugal and Indonesia alone. Depending on circumstances, other States
may or will also have some obligations in this respect. By negotiating and
concluding, and by beginning to implement the Timor Gap Treaty, Australia placed
itself in such a position.
