| I. | Substantive International Law - First Part |
| 5. | THE UNITED NATIONS |
| 5.3. | Security Council |
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East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90
[pp. 103-104] 31. The Court notes that the argument of Portugal
under consideration rests on the premise that the United Nations resolutions,
and in particular those of the Security Council, can be read as imposing an
obligation on States not to recognize any authority on the part of Indonesia
over the Territory and, where the latter is concerned, to deal only with
Portugal. The Court is not persuaded, however, that the relevant resolutions
went so far.
For the two Parties, the Territory of East Timor remains a
non-self-governing territory and its people has the right to self-determination.
Moreover, the General Assembly, which reserves to itself the right to determine
the territories which have to be regarded as non-self-governing for the purposes
of the application of Chapter XI of the Charter, has treated East Timor as such
a territory. The competent subsidiary organs of the General Assembly have
continued to treat East Timor as such to this day. Furthermore, the Security
Council, in its resolutions 384 (1975) and 389 (1976) has expressly called for
respect for "the territorial integrity of East Timor as well as the
inalienable right of its people to self-determination in accordance with General
Assembly resolution 1514 (XV)".
Nor is it at issue between the Parties that the General Assembly has
expressly referred to Portugal as the "administering Power" of East
Timor in a number of the resolutions it adopted on the subject of East Timor
between 1975 and 1982, and that the Security Council has done so in its
resolution 384 (1975). The Parties do not agree, however, on the legal
implications that flow from the reference to Portugal as the administering Power
in those texts.
32. The Court finds that it cannot be inferred from the sole fact that the
above-mentioned resolutions of the General Assembly and the Security Council
refer to Portugal as the administering Power of East Timor that they intended to
establish an obligation on third States to treat exclusively with Portugal as
regards the continental shelf of East Timor.
[pp. 206-207 D.O. Weeramantry] In relation to the Security Council
resolutions, the technical consideration was urged as to whether in the
resolutions the Security Council spoke in the language of decision or
exhortation.
Resolution 384 "urges all States ... to co-operate fully with
... the United Nations ... to facilitate the decolonization of the Territory"
and resolution 389 "calls upon all States" to do likewise.
Each resolution also calls upon all States "to respect the
territorial integrity of East Timor, as well as the inalienable right of its
people to self-determination in accordance with General Assembly resolution 1514
(XV)".
Words such as urges and calls upon are not necessarily of
a purely hortatory nature. As with all documents that come under legal
analysis, the totality of the document, rather than any particular words, must
be the guide to its overall import. In this case, one can treat them as imposing
no obligation, if one takes the words "urges" and "calls upon"
in isolation, but not in the context of the overall construction of the
document. That is not the method of legal construction and it is not a method I
would employ.
We have here two documents which state categorically the Security Council's
position that self-determination was an imperative and that it had not yet taken
place. They urge all States to co-operate, and call upon all States to respect
the territorial integrity of East Timor. Does a Member State faced with
such resolutions, reaffirming a cardinal rule of international law, have
the freedom to disregard the need for self-determination at its will and
pleasure? In the face of the Security Council's considered assertion that
self-determination has not taken place, is it open to an individual State to
recognize de jure the annexation of a non-self-governing territory by
another State, and to enter into treaty relations with that State regarding the
assets of the territory? The overall circumstances of this case would point to a
negative answer to these questions.
Without any attempt at an exhaustive survey of this matter, it may be noted
that the lack of phraseology such as "decides" and "determines"
does not appear in the past to have prevented Security Council resolutions from
being considered as decisions.
[p. 208 D.O. Weeramantry] The resolutions of the Security Council
involved in this case (resolutions 384 and 389), use phraseology similar to that
of the first resolution cited above relating to the Congo. Each of these
resolutions calls upon all States to respect the territorial integrity of
East Timor, as well as the inalienable right of its people to
self-determination in accordance with General Assembly resolution 1514 (XV).
Each resolution likewise "calls upon" the Government of Indonesia
to withdraw without further delay all its forces from the Territory.
Thus, on United Nations precedent, it would appear that the absence of words
of determination or decision does not necessarily relegate Security Council
resolutions to the level of mere hortatory declarations.
Against the background of the Security Council reaffirming a right
admittedly of fundamental importance, and admittedly enjoyed erga omnes,
it seems academic to examine its obligatory nature in terms of the precise
phraseology used. Especially is this so when one has regard to the fact that the
resolutions were made after hearing Australia, and were in line with the
Australian submissions made to the Council.
