| I. | Substantive International Law - First Part |
| 6. | USE OF FORCE AND RELATED PROBLEMS |
| 6.1. | Use of Force |
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East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90
[p. 103] 30. ... 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)".
[pp. 261-263 D.O. Skubiszewski] 122. It is convenient to dispose, at
the outset, of the argument on the analogy between the Timor Gap Treaty and some
of the treaties for the avoidance of double taxation concluded by Indonesia.
Australia has drawn attention to these treaties (Counter-Memorial, Appendix C;
Rejoinder, paras. 52-54; for the Portuguese view, see Reply, para. 6.14). The
Court mentions in general terms (i.e., without indicating their category or
subject) "treaties capable of application to East Timor but which do not
include any reservation in regard to that Territory" (Judgment, para. 32).
The Court does not make any explicit inference from these treaties but points to
them in the context of treaty-making power, not of recognition. The latter point
is made by Australia. That argument is misleading in the sense that no
recognition can be implied from the tax treaties. They do not deal with
territorial problems, and they do not refer explicitly to East Timor, but
concern Indonesian territory under Indonesian legislation for tax purposes
alone. This is an issue that could be regulated by the contracting parties
without detracting from the posture of non-recognition (if it was adopted) or
without entailing recognition. On the other hand, the Timor Gap Treaty refers to
"the Indonesian Province of East Timor" and is based on the assumption
of Indonesian sovereignty over that area, which sovereignty Australia has
recognized.
123. Let me observe that in matters of violent changes resulting in the
imposition of foreign rule or dominant foreign influence a longer perspective is
necessary. Recent history has again shown that what for many years was regarded
as almost permanent and immutable collapsed under our eyes - an outcome which
the proponents of Realpolitik and of consent to accomplished facts did
not foresee. We were told, in connection with East Timor, that "the
realities of the situation would not be changed by our opposition to what had
occurred" (the position of the United States, quoted in Rejoinder, para.
47). For the time being, that may be true. Yet we all know of instances where
there was opposition and various "realities" proved to be less
resistant to change than Governments might have thought.
124. In the present case the Court preferred not to consider the problem of
the non-recognition of a situation, treaty or arrangement which came into being
by means contrary to the prohibition of "the threat or use of force against
the territorial integrity or political independence of any State, or in any
other manner inconsistent with the Purposes of the United Nations" (Art. 2,
para. 4, of the Charter). However, when stating or confirming
the principles relevant to the case this restraint is not the only possible
posture.
125. The policy of non-recognition, which goes back to before the
First World War, started to be transformed into an obligation of
non-recognition in the thirties. Through the Stimson doctrine, the United States
of America played a pioneering - and beneficial - role in this development 1.
The rule or, as Sir Hersch Lauterpacht says 2, the principle of
non-recognition now constitutes part of general international law. The
rule may be said to be at present in the course of possibly reaching a
stage when it would share in the nature of the principle of which it is a
corollary, i.e., the principle of the non-use of force. In that hypothesis
non-recognition would acquire the rank of a peremptory norm of that law
(jus cogens). But that is a future development which is uncertain and
has still to happen. The Friendly Relations Declaration 3 correctly states the
law on the subject: "No territorial acquisition resulting from the threat
or use of force shall be recognized as legal." Contrary to what has been
asserted (Counter-Memorial, para. 365; Rejoinder, para. 74) the obligation not
to recognize a situation created by the unlawful use of force does not arise
only as a result of a decision by the Security Council ordering non-recognition.
The rule is self-executory.
[pp. 264-265 D.O. Skubiszewski] 129. While recognition of States or
Governments is still "a free act", it is not so with regard to the
irregular acquisition of territory: here the discretionary nature of the act has
been changed by the rule on the prohibition of the threat or use of force.
130. As indicated above (para. 125) the rule of non-recognition operates in
a self-executory way. To be operative it does not need to be repeated by the
United Nations or other international organizations. Consequently, the absence
of such direction on the part of the international organization in a
particular instance does not relieve any State from the duty of non-recognition.
Nor does the absence of "collective sanctions" have that
effect. Australia espouses a contrary view (Counter-Memorial, paras. 355 and
356; and Rejoinder, para. 229).
131. The Court has not been asked to adjudicate or make a declaration on
non-recognition in regard to the Indonesian control over East Timor. But let me
restate the question: can the Court avoid this issue when it states certain
principles? Non-recognition might protect or indeed does protect the rights to
self-determination and to permanent sovereignty over natural resources. Any
country has the corresponding duty to respect these rights and no act of
recognition can release it from that duty. In other words, it might be necessary
to consider whether there is any link between Australia's attitute towards the
Indonesian annexation and its duties with regard to East Timor. Such a
determination would not amount to delivering any judgment on Indonesia, for the
Court would limit itself to passing upon a unilateral act of Australia. The act,
contrary to Australia's view (Counter-Memorial, para. 350), means more than mere
acknowledgement that Indonesia "is in effective control of the territory"
while the recognizing Government is willing "to enter into dealings with
that State or government in respect of the territory". Recognition leads to
the validation of factual control over territory and to the establishment of
corresponding rights.
132. The attitude of non-recognition may undergo a change by virtue of a
collective decision of the international community. In law, there is a
fundamental difference between such a decision and individual acts of
recognition. Judge Sir Robert Jennings wrote of "some sort of
collectivisation of the process, possibly through the United Nations itself
... 4". But up till now nothing of the sort has happened with regard to
East Timor. Nor is there any consolidation of the Indonesian "title"
through other means.
| 1 | Footnote omitted. |
| 2 | Footnote omitted. |
| 3 | Footnote omitted. |
| 4 | Footnote omitted. |
