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World Court Digest

I. Substantive International Law - First Part
7.2. Treatymaking Capacity

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

[pp. 101-102] 27. The Court notes that Portugal's claim that, in entering into the 1989 Treaty with Indonesia, Australia violated the obligation to respect Portugal's status as administering Power and that of East Timor as a non-self-governing territory, is based on the assertion that Portugal alone, in its capacity as administering Power, had the power to enter into the Treaty on behalf of East Timor; that Australia disregarded this exclusive power, and, in so doing, violated its obligations to respect the status of Portugal and that of East Timor.
The Court also observes that Australia, for its part, rejects Portugal's claim to the exclusive power to conclude treaties on behalf of East Timor, and the very fact that it entered into the 1989 Treaty with Indonesia shows that it considered that Indonesia had that power. Australia in substance argues that even if Portugal had retained that power, on whatever basis, after withdrawing from East Timor, the possibility existed that the power could later pass to another State under general international law, and that it did so pass to Indonesia; Australia affirms moreover that, if the power in question did pass to Indonesia, it was acting in conformity with international law in entering into the 1989 Treaty with that State, and could not have violated any of the obligations Portugal attributes to it. Thus, for Australia, the fundamental question in the present case is ultimately whether, in 1989, the power to conclude a treaty on behalf of East Timor in relation to its continental shelf lay with Portugal or with Indonesia.

28. The Court has carefully considered the argument advanced by Portugal which seeks to separate Australia's behaviour from that of Indonesia. However, in the view of the Court, Australia's behaviour cannot be assessed without first entering into the question why it is that Indonesia could not lawfully have concluded the 1989 Treaty, while Portugal allegedly could have done so; the very subject-matter of the Court's decision would necessarily be a determination whether, having regard to the circumstances in which Indonesia entered and remained in East Timor, it could or could not have acquired the power to enter into treaties on behalf of East Timor relating to the resources of its continental shelf. The Court could not make such a determination in the absence of the consent of Indonesia.

[p. 104] 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.

[pp. 254-255 D.O. Skubiszewski] 95. The Court is competent to make a finding on whether any of the unilateral acts of Australia conducive to the conclusion, entry into force and application of the Timor Gap Treaty constituted an international wrong. By concentrating exclusively on such acts the Court in no way deals with any treaty-making acts of Indonesia. The Court remains within the limits of an assessment which is covered by its jurisdiction and which is admissible. The Court would fulfil its task by examining these acts in the light of Australia's duties under United Nations law and especially that body of its provisions which is being called the "law of decolonization".

96. In order to examine whether Australia's conduct leading to the conclusion of the Timor Gap Treaty was or was not wrongful, it is not necessary for the Court to determine the wrongfulness of Indonesia's control over East Timor. It is enough to test the Australian conduct against the duty Australia had and has to treat East Timor as a non-self-governing territory. While protecting its maritime rights and taking steps to preserve its natural resources, Australia had (in the circumstances) some obligations towards the Territory: it dealt not with the administering Power, but with Indonesia, a State which was not authorized by the United Nations to take over the administration of the Territory, and yet controlled it. Maritime and related interests of the Territory were also at stake, not only those of Australia. There is no question of equating the position of third States (one of them being Australia) to the responsibilities of States which, like Portugal, have been charged with the administration of a territory or territories under Chapter XI of the Charter. But the non-administrators also have some duties. Did Australia fulfil them? This question does not trigger the Monetary Gold rule; the Court is competent to answer it.