| III. | The International Court of Justice |
| 1. | FUNDAMENTAL PRINCIPLES |
| 1.5. | Ius standi |
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East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p.
[p. 102] 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.
[pp. 107-108 S.O. Oda] 1. ... For my part, I believe that the Court
cannot adjudicate upon the Application of Portugal for the sole reason
that Portugal lacked locus standi to bring against Australia this
particular case concerning the continental shelf in the Timor Sea.
2. Portugal, in its Application, defined the dispute on the one hand, as
"relate[d] to the opposability to Australia:
(a) of the duties of, and delegation of authority to, Portugal as
the administering Power of the Territory of East Timor; and
(b) of the right of the people of East Timor to self-determination,
and the related rights (right to territorial integrity and unity and permanent
sovereignty over natural wealth and resources)" (Application, para. l).
On the other hand, Australia, which did not regard Portugal as having
authority over the Territory of East Timor in the late 1980s, has only
been accused by Portugal in its Application of having engaged in
"[the] activities ... [which] have taken the form of the negotiation
and conclusion by Australia with a third State [Indonesia] of an agreement relating
to the exploration and exploitation of the continental shelf in the area of the
'Timor Gap' and the negotiation, currently in progress, of the delimitation of
that same shelf with that same third State [Indonesia]" (Application,
para. 2; emphasis added).
3. If there had been anything for Portugal to complain about this would not
have been "the opposability" to any State of either "the
duties of, and delegation of authority to, Portugal as the administering Power
of the Territory of East Timor", or "the right of the people of East
Timor to self-determination, and the related rights" (Application, para.
l). Any complaint could only have related to Portugal's alleged title,
whether as an administering Power or otherwise, to the Territory of East Timor
together with the corresponding title to the area of continental shelf which
would overlap with that of Australia. In this respect Portugal, in its
Application, has given an incorrect definition of the dispute and seems to have
overlooked the difference between the opposability to any State of its
rights and duties as the administering Power or of the rights of
the people of East Timor and the more basic question of whether
Portugal is the State entitled to assert these rights and duties.
In particular Portugal contends, with regard to subparagraph (b) in
the quotation in paragraph 2 above, that the right of the people of East Timor
to self-determination and the related rights guaranteed by the United Nations
Charter to a people still under the control of a colonial State or of an
administering Power for non-self-governing territories should be respected by
the whole international community under whichever authority and control that
people may be placed. Australia has not challenged the "right of
the people of East Timor to self-determination, and the related rights".
The right of that people to self-determination and other related rights cannot
be made an issue - and is not an issue - of the present case.
The present case relates solely to the title to the continental
shelf which Portugal claims to possess as a coastal State. This point cannot be
over-emphasized.
[pp. 112-113 S.O. Oda] 6. A dispute could have turned on which of
the two States, Indonesia or Portugal, was a coastal State located on the
Territory of East Timor and thus was entitled to the continental shelf extending
southwards from the coast of the Territory of East Timor, thus meeting
the continental shelf of Australia in the middle of the "Timor Gap".
This is the dispute in relation to which Portugal could have instituted
proceedings against Indonesia on the merits. However, any issue concerning the
seabed area of the "Timor Gap" could not have been the
subject-matter of a dispute between Portugal and Australia unless and until such
time as Portugal had been established as having the status of the coastal State
entitled to the corresponding continental shelf (in other words, Portugal would
have to be designated as State X, see sketch-map).
7. If Portugal was the coastal State with a claim to the continental shelf
in the Timor Gap" (see sketch map: vertical hatching), then the Treaty
which Australia concluded with Indonesia in 1989 would certainly have been null
and void from the outset. Alternatively, if Indonesia was the coastal
State, and thus had a right over the relevant area of the continental shelf,
then Portugal quite simply had no right to bring this case. In order to do so,
Portugal would have had to have been a coastal State lying opposite to
Australia.
In order to entertain the Application against Australia with respect to the
continental shelf in the "Timor Gap" or, more specifically, the area
called the "Zone of Cooperation" which Australia claims in part, the
Court needs to be convinced, as a preliminary issue, of the standing of
Portugal in this case as being a coastal State with a claim to the
continental shelf in the Timor Sea as of 1991, the year of the Application.
[p. 118 S.O. Oda] 19. Irrespective of the status of East Timor -
which is still in abeyance according to the United Nations - and irrespective of
the rights of the people of East Timor to self-determination guaranteed by the
United Nations Charter, it is clear that Portugal has not been considered - at
least since the early l980s - to be a coastal State lying opposite to
Australia and that in 1991, when Portugal's Application was filed in the
Registry of the Court, it did not have any authority over the region of
East Timor, from the coast of which the continental shelf extends south-wards in
the Timor Sea.
20. It follows that Portugal lacks standing as an Applicant
State in this proceeding which relates to the continental shelf
extending southward into the Timor Sea from the coast of East Timor in the "Timor
Gap". For this reason alone, the Court does not, in my view, have
jurisdiction to entertain the Application of Portugal and the Application must
be dismissed.
[p. 182 D.O. Weeramantry] While recognizing that Portugal has not in
this case sought to base its locus standi on any footing other than that
of an administering Power, this anomaly can also be illustrated in another way.
In South West Africa, Second Phase (I.C.J. Reports 1966, p. 6), two
States which had no direct connection with the territory in question sought to
bring before the Court various allegations of contraventions by South Africa of
the League of Nations Mandate. There was no direct nexus between these States
and South West Africa. Their locus standi was based solely on their
membership of the community of nations and their right as such to take legal
action in vindication of a public interest.
The present case is one where the Applicant State has a direct nexus with
the Territory and has in fact been recognized by both the General Assembly and
the Security Council as the administering Power.
This case has similarities with South West Africa in that there is
here, as there, a territory not in a position to speak for itself. There is
here, as there, a Power which is in occupation by a process other than one that
is legally recognized. There is here, as there, another State which is seeking
to make representations on the territory's behalf to the Court. There is here,
as there, an objection taken to the locus standi of the Applicant.
A vital difference is that here, unlike there, the Applicant State has a
direct nexus with the Territory and enjoys direct recognition by the United
Nations of its particular status vis-à-vis the Territory. The position of
the Applicant State is thus stronger in the present case than the position of
the States whose locus standi was accepted by half the judges of the
Court in the South West Africa Judgment (ibid.), and, indeed, by
the majority of the judges in the earlier phase of that case (South West
Africa, Preliminary Objections, Judgement, I.C.J. Reports 1962, p. 319).
[pp. 255-256 D.O. Skubiszewski] 101. In this case there is a
conflict of legal interests between Portugal and Australia. Several times during
the proceedings Australia admitted that Portugal was one of the States
concerned. That admission was made in order to contrast it with the capacity to
appear before the Court in this case, which Australia denied. However, to have
jus standi before the Court it is enough to show direct concern in the
outcome of the case. Portugal has amply shown that it has a claim for the
protection of its powers which serve the interests of the people of East
Timor.
102. It was said by a Co-Agent and counsel of Australia that "to have
standing, Portugal must point to rights which it possesses" (CR 95/8, p.
80, Mr. Burmester). Portugal has standing because, in spite of all the factual
changes in the area, it still remains the State which has responsibility for
East Timor. This standing follows from the competence Portugal has in its
capacity as administering Power. One of the basic elements of that competence is
the maintenance and defence of the status of East Timor as a non-self-governing
territory; this is the administering Power's duty. Portugal has the capacity to
sue in defence of the right of the East Timorese people to self-determination.
Portugal could also rely generally on the remaining attributes of its
sovereignty over East Timor, such attributes being conducive to the fulfilment
of the task under Chapter XI of the Charter. On the one hand, Portugal says that
it does not raise any claim based on its own sovereign rights; in some contexts
it even denies their existence (Memorial, paras. 3.08 and 5.41, and Reply, para.
4.57). On the other hand, Portugal invokes its "prerogatives in regard to
sovereignty" (Reply, para. 4.54). At any rate, it is erroneous to argue
that the departure from East Timor in 1975 of the Portuguese authorities
resulted in bringing "to an end any capacity [Portugal] had to act as a
coastal State in relation to the territory" (Counter-Memorial, para. 237).
Such an opinion is contrary to both the law of belligerent or military
occupation and the United Nations law on the position of the administering
Power.
103. Portugal may be said not to have any interest of its own in the narrow
sense of the term, i.e., a national interest, one of a myriad of interests which
States have as individual members of the international community.
However, Portugal received a "sacred trust" under Chapter XI of the
Charter. It is taking care of interests which, it is true, are also its own, but
primarily they are shared by all United Nations Members: the Members wish the
tasks set down in Chapter XI to be accomplished. Australia also adopts the
stance of favouring the implementation of Chapter XI. Yet there is a
sharp difference between the two States on how to proceed in the complex
question of East Timor and what is lawful in the circumstances. That is a matter
which should have been decided by the Court. However, through its decision on
jurisdiction, this distinguished Court barred itself from that possibility. Had
this not been the case, the Judgment would have eliminated a number of
uncertainties from the legal relations between the Parties and, more generally,
some uncertainties regarding a non-self-governing territory which has been
incorporated into a State without the consent of the United Nations. At
any rate, it is clear that an actual controversy exists. What doubt could there
be regarding the locus standi?
