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III. The International Court of Justice
1.5. Ius standi

¤ 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?