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World Court Digest

I. Substantive International Law - First Part
5.6. Relationship between Different Organs

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

[pp. 189-190 D.O. Weeramantry] One of Australia's contentions was that the progressively lessening vote in favour of the General Assembly resolutions cited by Portugal showed that those resolutions were of a diminishing level of authority. This suggestion in effect calls upon this Court to venture into the uncertain area of the political history of resolutions of the General Assembly and to indulge in a vote-counting exercise to assess the strength of a particular resolution. Speculation on the possible meaning of voting procedures in the General Assembly is not the province of this Court. Rather the Court's concern is whether that General Assembly resolution has been duly passed by that principal organ of the United Nations within the ambit of its legal authority. Once thus passed, it commands recognition and it is part of the courtesy due by one principal organ of the United Nations to another to respect that resolution, irrespective of its political history or the voting strength it reflects.

[p. 246 D.O. Skubiszewski] 70. The basis for the decision on jurisdiction and admissibility and, further, on the merits is the status of East Timor. Under the law of the United Nations East Timor was and, in spite of its incorporation into Indonesia, remains a non-self-governing territory in the sense of Chapter XI of the United Nations Charter. This issue, fundamental to the case, is governed by the law of the United Nations. Unless the Court finds that the Organization acted ultra vires, the Court's opinion cannot diverge from that law and from the implementation of the rules of that law in the practice of the Organization, especially as reflected in the relevant resolutions of the General Assembly and the Security Council 1.

71. Under the law and in the practice of the Organization the implementation of Chapter XI of the Charter is part and parcel of the functions of the General Assembly. In at least some issues falling under that Chapter Member States are not confronted with mere recommendations: the Assembly is competent to make binding determinations, including determinations on the continued classification of an area as a non-self-governing territory or on the administering Power.

[p. 251 D.O. Skubiszewski] 86. The Court is competent, and this is shown by several judgments and advisory opinions, to interpret and apply the resolutions of the Organization. The Court is competent to make findings on their lawfulness, in particular whether they were intra vires. This competence follows from its function as principal judicial organ of the United Nations. The decisions of the Organization (in the broad sense which this notion has under the Charter provisions on voting) are subject to scrutiny by the Court with regard to their legality, validity and effect. The pronouncements of the Court on these matters involve the interests of all Member States or at any rate those which are the addressees of the relevant resolutions. Yet these pronouncements remain within the limits of Monetary Gold. By assessing the various United Nations resolutions on East Timor in relation to the rights and duties of Australia the Court would not be breaking the rule of the consensual basis of its jurisdiction.

1The Memorial speaks of "une donnée" (a "given") of which "the Court will only need to take note". This "donnée" is constituted by the "affirmations" that "the people of East Timor enjoy the right of self-determination, that the Territory of East Timor is a non-self-governing Territory, and lastly, that Portugal is de jure the administering Power thereof" (para. 3.02).