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World Court Digest

I. Substantive International Law - First Part
4.2. States
4.2.5. Fundamental Rights and Obligations Sovereignty

¤ East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90

[pp. 270-271 D.O. Skubiszewski] 146. Here the distinction between sovereignty and its exercise is a useful one. As already recalled, the Friendly Relations Declaration provides that "[t]he territory of a colony or other non-self-governing territory has, under the Charter, a status separate and distinct from the [metropolitan] territory of the State administering it". The reason for that separateness and distinctness is self-determination. But the provision quoted does not aim at depriving the State of its title to sovereignty which it held prior to the Charter and the Declaration. The State has remained sovereign. The said provision imposes restrictions on the exercise of the State's sovereignty. These restrictions are far-reaching. Portugal rightly referred to its "prerogatives [of] sovereignty" (para. 75 above), though on occasions it has avoided the word "sovereignty" in describing its position with regard to East Timor. Instead it has used the terms "jurisdiction" (CR 95/4, p. 10, para. 2, Co-Agent, counsel and advocate of Portugal, J. M. S. Correia), and "authority" (CR 95/12, p. 44, para. 3, idem). Nonetheless Portugal explains that the

"Administering Powers are independent States which keep their attributes as such when they act on the international scene in relation to the non-self-governing territories for whose administration they are responsible." (Ibid.).

It is submitted that these "attributes" are nothing more than sovereignty, the exercise of which has been restricted in favour of the self-determination of the people concerned. Portugal stresses that the people of the Territory is "the holder of the sovereignty inherent in the capacity to decide for itself its future international legal status" (CR 95/4, p. l3, para. 6, idem) and that "the international law of decolonization has transferred the sovereignty relating to such territories to their own peoples" (CR 95/12, p. 44, para. 3, idem). Under international law these contentions must be understood as referring to self-determination: it is the people which decides on its implementation; but "people" as the holder of "sovereignty" is a concept which, at least in part, lies beyond the realm of law.