| I. | Substantive International Law - First Part |
| 5. | THE UNITED NATIONS |
| 5.9. | Trusteeship System |
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East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90
[pp. 103-104] 30. Portugal presents a final argument to challenge
the applicability to the present case of the Court's jurisprudence in the case
concerning Monetary Gold Removed from Rome in 1943. It argues that the
principal matters on which its claims are based, namely the status of East Timor
as a non-self-governing territory and its own capacity as the administering
Power of the Territory, have already been decided by the General Assembly and
the Security Council, acting within their proper spheres of competence; that in
order to decide on Portugal's claims, the Court might well need to interpret
those decisions but would not have to decide de novo on their
content and must accordingly take them as "givens"; and that
consequently the Court is not required in this case to pronounce on the question
of the use of force by Indonesia in East Timor or upon the lawfulness of its
presence in the Territory.
Australia objects that the United Nations resolutions regarding East Timor
do not say what Portugal claims they say; that the last resolution of the
Security Council on East Timor goes back to 1976 and the last resolution of the
General Assembly to 1982, and that Portugal takes no account of the passage of
time and the developments that have taken place since then; and that the
Security Council resolutions are not resolutions which are binding under Chapter
VII of the Charter or otherwise and, moreover, that they are not framed in
mandatory terms.
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. The Court notes, furthermore, that
several States have concluded with Indonesia treaties capable of application to
East Timor but which do not include any reservation in regard to that Territory.
Finally, the Court observes that, by a letter of 15 December 1989, the Permanent
Representative of Portugal to the United Nations transmitted to the
Secretary-General the text of a note of protest addressed by the Portuguese
Embassy in Canberra to the Australian Department of Foreign Affairs and Trade on
the occasion of the conclusion of the Treaty on 11 December 1989; that the letter of the Permanent Representative was
circulated, at his request, as an official document of the forty-fifth session
of the General Assembly, under the item entitled "Question of East Timor",
and of the Security Council; and that no responsive action was taken either by
the General Assembly or the Security Council.
Without prejudice to the question whether the resolutions under discussion
could be binding in nature, the Court considers as a result that they cannot be
regarded as "givens" which constitute a sufficient basis for
determining the dispute between the Parties.
33. It follows from this that the Court would necessarily have to rule upon
the lawfulness of Indonesia's conduct as a prerequisite for deciding on
Portugal's contention that Australia violated its obligation to respect
Portugal's status as administering Power, East Timor's status as a
non-self-governing territory and the right of the people of the Territory to
self-determination and to permanent sovereignty over its wealth and natural
resources.
[pp. 117-118 S.O. Oda] The authority of Indonesia has been exercised
in the Territory for nearly 20 years since that time. The United Nations has not
given its approval to the annexation of East Timor by Indonesia. However the
rejection of Indonesia's claim that East Timor should be integrated into its
territory disappeared from the 1978 resolution and the demand for the withdrawal
of the Indonesian army ceased to be made. The fact is that the interest of
the General Assembly was directed more to humanitarian aid than to the form of
administration of the Territory.
18. The incident which took place in 1991 at the Santa Cruz Cemetery in Dili
in East Timor was extremely serious from this very standpoint.
Whether the right of the people of East Timor to self-determination has been
duly respected by Indonesia may well be questioned in some other proceedings
before the Court or in the different fora of the United Nations.
While the military intervention of Indonesia in East Timor and the
integration of East Timor into Indonesia in the mid-l970s were not approved by
the United Nations, there has not been any reason to assume that
Portugal has, since the late 1970s and up to the present time, been entrusted
with the rights and responsibilities of an administering Power for the
non-self-governing Territory of East Timor. Few States in the international
community have in the recent past regarded, or at present regard, Portugal as a
State located in East Timor or would maintain that as such it may lay claim to
the continental shelf off the coast of East Timor.
[p. 181 D.O. Weeramantry] It is true indeed that the General
Assembly and the Security Council, in all their plenitude of power, preside over
the great task of decolonization and protection of dependent peoples. Yet, with
all respect, they are no substitutes for the particular attention to the needs
of each territory which the Charter clearly intended to achieve. Protection from
internal exploitation and external harm, day-to-day administration, development
of human rights, promotion of economic interests and well-being, recovery of
wrongful loss, fostering of self-government, representation in world forums,
including this Court - all these require particular attention from a Power
specifically charged with responsibility in that regard. Moreover, the
supervision of the United Nations depends also on transmission of information
under Article 73 (e) and, in the absence of an administering Power,
there would be a total neglect of that function and hence an impairment of
United Nations supervision. The Charter scarcely envisaged that a dependent
people should be left to fend for themselves, denied all this assistance. Least
of all can it be envisaged that the use of force could deprive them of these
rights. The basic protective scheme of the Charter cannot thus be negated.
[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).
[p. 188-189 D.O. Weeramantry] There is another aspect as well to be
considered, namely, that it is the duty of an administering Power to conserve
the interests of the people of the territory. As part of their
fiduciary duties, administering Powers recognize in terms of Article 73 of
the Charter "the obligation to promote to the utmost ...
the well-being of the inhabitants of these territories"
and, to that end, "to ensure ... their ... economic ... advancement"
(Art. 73 (a); emphasis added) and "to promote constructive measures
of development" (Art. 73 (d)). Such obligations necessitate the
most careful protection of the economic resources of the territory. Such a duty
cannot be fulfilled without a legal ability on the part of the administering
Power to take the necessary action for protecting those interests. If the
administering Power receives information that the economic interests of the
territory are being dealt with by other entities, to the possible prejudice of
the interests of the territory's people, it is the administering Power's duty
to intervene in defence of those rights. Indeed, failure to do so would be
culpable.
To suggest that the Charter would impose these heavy responsibilities upon
administering Powers and, at the same time, deny them the right of
representation on behalf of the territory, is to deprive these Charter
provisions of a workable meaning. Such a restrictive interpretation of the
authority of an administering Power receives no support, so far as I am aware,
from United Nations practice or from the relevant literature.
Supervision of the administering Power is amply provided for in the Charter
and it is difficult to see any warrant in law or in principle for further
fettering a fiduciary Power in the proper and effective discharge of its duties
under the Charter.
Further, the power given by the Charter under Chapter XI is clearly the
power of a trustee. The power derives expressly from the concept of "a
sacred trust", thus underlining its fiduciary character. The very concept
of trusteeship carries with it the power of representation, whether one looks at
the common law concept of trusteeship or the civil law concept of tutela.
A trustee, once appointed, always carries out his or her duties under
supervision, but is not required to seek afresh the right of representation each
time it is to be exercised, for that is part and parcel of the concept of
trusteeship itself.
[p. 192 D.O. Weeramantry] However, when the status at law of an
administering Power has been duly recognized as such by the appropriate
political authority, this Court cannot take it upon itself to grant or withhold
that status, depending on whether it had a good or bad colonial record. Most
colonial Powers would fail to qualify on such a test, which could make the
system of administering Powers unworkable. The legal question for this Court is
whether, in law, it enjoys that status.
At the commencement of this opinion, reference was made to the change that
has occurred since 1974 in regard to Portugal's attitude towards
self-determination of its colonies 1.
It bears re-emphasizing that the question at issue is the protection of the
rights of the people of East Timor, and not the question of Portugal's record of
conduct. The contention seems untenable that a protected people or territory,
blameless in this respect, should be denied representation or relief owing to
the fault of its administering Power.
Such a contention contradicts basic principles of trusteeship and tutelage,
which always accord paramount importance to the interests of entities under
fiduciary or tutelary care. This is so in international, no less than in
domestic, law.
[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 2.
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.
[pp. 259-260 D.O. Skubiszewski] 114. Since 1960 East Timor has
continually appeared and still appears on the United Nations list of
non-self-governing territories. The United Nations maintains that status of East
Timor. Only the Organization can bring about a change. Rejection of the status
by the original sovereign Power; or the use of force by another country to gain
control over the territory; or recognition by individual States of the factual
consequences of the recourse to force - none of these unilateral acts can
abolish or modify the status of non-self-government. That status has its
basis in the law of the Organization and no unilateral act can prevail over that
law.
115. It is true that over the years and in some respects, the language of
the resolutions of the General Assembly has become less decisive and less
definite and the majorities smaller. But this is a development of the
political approach and the effect of the search for a solution through channels
other than the Security Council or the General Assembly. The constitutional
position under Chapter XI of the Charter has not changed. Nor have the Geneva
consultations under General Assembly resolution 37/30, currently in progress,
brought about any modification of the Territory's status.
116. Obviously, we are confronted by certain facts which may be long-lived.
Australia rightly maintained that the rejection of the United Nations status of
the Territory by Portugal in the period 1955-1974 did not change the legal
status of East Timor. It is therefore difficult to understand how, at the same
time, Australia argues the effectiveness of the incorporation of East Timor into
Indonesia, and in particular the contribution made to this effectiveness by acts
of recognition of that incorporation. The status of East Timor in law has
remained the same ever since Portugal became a Member of the Organization and
the United Nations subsumed East Timor under Chapter XI of the Charter. It is a
status defined by the law of the United Nations. Unilateral acts - by Portugal
during the dictatorship period and now by Indonesia since 1975 and by the few
States which granted recognition - have had and continue to have no primacy over
that law.
[pp. 271-272 D.O. Skubiszewski] 148. The issue of sovereignty is
relevant to the question of continuity. As explained in paragraphs 144 and 145,
under Chapter XI of the Charter it is the State which has sovereignty of
the colony who becomes and remains administrator. It is an automatic
consequence of being sovereign and a contracting party to the Charter, i.e., a
Member of the Organization. There is no "appointment" or election to
the "function" of administering authority. But sovereignty should not
be confused with factual effective control over the territory. Such control does
not of itself bestow on its holder the status of administering Power.
149. At the time of the Indonesian invasion, Australia admitted that
Portugal had, "of course, the continuing legal responsibility" (United
Nations, Official Records of the Security Council, 1865th Meeting, 16
December 1975, para. 101). But some time later Australia changed its
position.
150. The fact that the General Assembly, unlike in resolution 3458 A (XXX)
on Western Sahara, did not expressly refer to "the responsibility of the
Administering Power and of the United Nations with regard to the decolonization
of the territory" is without significance. The resolutions on East Timor
maintain that "responsibility" by using other terms.
151. Australia admits that "Portugal may be the administering Power for
certain United Nations purposes" (Rejoinder, para. 98). Loss of control
over the Territory in question no doubt resulted in the actual disappearance of
Portuguese administration on the spot. And there may be room for dealing with
the State in effective control with regard to certain specific questions (cf.
the case concerning Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 56,
para. 125).
152. But foreign invasion has not eliminated all the elements which
constitute the competence of the lawful administrator. Nor is there a
right "for others to recognise that there has been a change in the State
administering that Territory" (contra: Rejoinder, para. 183). That
change is a matter exclusively within the domain of the United Nations. Until
such time as the Organization has taken a new decision, the status of the
administering Power continues, legally unaffected, notwithstanding the loss
of control over the Territory.
[p. 273 D.O. Skubiszewski] 154. ... When the invasion took place
Portugal had no other choice but to withdraw its authorities from East Timor.
But that withdrawal did not, and could not, amount to abandoning the function of
the administering Power. This is so because, first, Portugal had no such
intention and, second, no administering Power is competent to give up its
position without the consent of the United Nations. A unilateral act would
remain ineffective in law. Portugal's international action in the United Nations
following the invasion gives ample proof of its decision to continue to exercise
the function of the administering authority. At the same time the Organization
did not release Portugal from its duties.
155. It would be erroneous to contend that Portugal lost its status of
administering Power because some resolutions passed over that status in silence
or the United Nations political organs ceased adopting any resolutions on East
Timor. The status could be changed only by an explicit decision, including
acknowledgment that another State (i.e., Indonesia) had now assumed the
responsibility for the Territory. Hitherto this has not happened.
| 1 | Footnote omitted. |
| 2 | The 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). |
